The death penalty and state monopoly of violence

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I WAS developing a column on “due process of law,” built around the prizefight being promoted (by the Inquirer) between the fiscalizer (Sen. Leila de Lima) and The Punisher (President Rodrigo Duterte), when I realized that the boxing imagery would cheapen the more fundamental issues involved in the depressing spectacle of state-sanctioned killings in the country today.

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I thought it would be more useful if I examined instead the underlying clash between the right of criminal suspects to due process and the right of society to protect itself and its members.

While doing research on this weighty subject, I was startled to find strong and persuasive literature in support of both sides.

Daniel Webster’s noble summation, “Due process of law is that which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,” stands out as a banner for due process, in addition to the Bill of Rights in the Constitution.

On the other side, there is also much persuasive literature and equally explicit constitutional provisions that argue eloquently for the assertion of state responsibility to suppress the lawless.

Conventional thinking presumes that this debate was settled long ago in favor of the rights of suspects to due process over the rights of society to protect itself.

The advent of Duterte is a reminder that the debate is far from settled. There is a strong current of opinion in this country in favor of a hard-line policy against crime, especially the illegal drugs trade.

Duterte conducting a class on public policy
I think what is happening is this: President Duterte is conducting a class in public policy in which we the citizens are the students.

The subject is not the illegal drugs trade, but two critical and related topics:

1. The moral argument or rationale for capital punishment and the execution of criminals.

2. The state’s monopoly of violence, which seeks to crush lawless elements (organized crime, terrorism, insurgency) in the country.

These are fields of study and research in political science, criminology and police science, and sociology.

To take the topics in sequence, this is what DU30 appears to be telling us.

Why the death penalty is necessary
Like other government executives before him, Duterte believes that the death penalty “affirms life.” By failing to execute murderers or stop drug lords, we signal a lessened regard for the value of the lives of victims. People who oppose the death penalty are like the neighbors of a teenage murder victim, who heard her cries for help but did nothing. They are like the neighbors who looked away while the drug pusher plied their ugly trade and ruined the lives of people.

This is the standard “moral defense” of death as punishment. Even if executions don’t deter violent crime or the drugs trade any more effectively than imprisonment, the death penalty is still required as the only means society has of doing justice in response to the worst of crimes.

One former mayor of New York City, Edward Koch, fully endorses this view of the death penalty. He has authored a famous article, “Death and justice: How capital punishment affirms life,” which lays out his argument cogently and persuasively.

He concluded the article with these words: “The death of anyone—even a convicted killer—diminishes us all. But we are diminished even more by a justice system that fails to function. It is an illusion to let ourselves believe that doing away with capital punishment moves the murderer’s deed from our conscience. The rights of society are paramount…

“It is hard to imagine anything worse than being murdered while neighbors do nothing. But something worse exists. When those same neighbors shrink back from justly punishing the murderer, the victim dies twice.”

Duterte’s thinking with respect to illegal drugs is similar to this. He shares the frustration and anger of people who see that the Aquino government did nothing to combat the drug menace. So what if the death penalty doesn’t work as a deterrent? At least it gives citizens the satisfaction of knowing that we got one or two of the sons of bitches.

State monopoly of violence
The other powerful argument focuses on the state’s monopoly of legitimate physical force in society.

State monopoly of violence is the concept that the state alone has the right to use or authorize the use of physical force. It is widely regarded as a defining characteristic of the modern state.

In his lecture “Politics as a Vocation” (1918), the German sociologist Max Weber defines the state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”

The concept does not imply that the state is the only actor actually using violence but, rather, that it is the only actor that can legitimately authorize its use. The state can grant another actor the right to use violence without losing its monopoly, as long as it remains the only source of the right to use violence.

The monopoly of the legitimate use of physical force, also known as the monopoly on violence, is a core concept of modern public law.

This monopoly is limited to a certain geographical area. A necessary condition of statehood is the retention of such a monopoly.

De Lima vs Duterte
Because government has failed miserably to solve the great problems of national life, Duterte is taking us back to the basics of governance to find the wellsprings for effective government.

In law enforcement, his government is searching for the right policy mix that will enable it to overcome the threat posed by organized crime, repel the threat of Islamist terrorism, and negotiate lasting peace with insurgents.

At the moment, the public eye is riveted more on the responsibility of government than on the rights of criminal suspects.

The safety of society comes first. The court process can wait. This is one big reason why the death toll is high and mounting.

The balance will tilt when Congress debates the issue and conducts its promised inquiries into the killings.

“I am watching you,” Sen. De Lima has warned the President.

No doubt, the President is watching her in turn.

This is going to be one hell of a prizefight, when Sen. Manny Pacquiao also gets into the ring.

yenmakabenta@yahoo.com

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16 Comments

  1. Nobody should pay attention to De Lima. She just wants media mileage. She will harrass the PNP during the inquiry to show her gratitude to Abnoy. De Lima you can’t fool us!

  2. Sa ngayon lahat ng napatay maliban kay Jaguar na sinasabing drug lord ay mga ordinaryong mga pilipino sabi nga ni Congressman Belmonte lahat naka tsinelas at iisa ang sinasabi ng kapulisan lahat ng napatay ay nagtangkang lumaban kabilang na yung mag ama sa lungsod ng Pasay na napatay sa loob ng presinto dahil umano daw ay nang agaw ng baril ng pulis, sangayon ako sa adhikain ng ating pangulo laban sa droga kailangan natin paigtingin ang pagsugpo at pag laganap ng droga, pero kailangan din respetuhin at pangalagaan ang karapatan pang tao ng bawat pilipino

  3. I agree that it is more diminishing to see a justice system that allows criminals to conduct business even inside jail. De Lima’s motive must be that related to her ego getting hurt than due process. She must learn to move on, she had her chance for 6 years to clean up judiciary and penitentiary but wasted it pinning down GMA.

  4. The prizefight between Senator De Lima (advocate of due process / human rights under our constitution) & President Duterte (assertion of the state responsibility to suppress lawlessness / retribution of the criminals / safety of the society comes first) is WORTH WATCHING. Who is right or wrong is anybody’s game. This is democracy at its best. May God bless the Philippines.

  5. Precisely if death penalty will not deter the commission of heinous crimes with more valid reason it should be imposed. It means those capable of committing such crimes are no longer rational because a rational person should be deterred by death penalty and a person who is not rational is only human in form but worse than non-human animals. We humans belong to animal kingdom and the only thing we are supposed to be superior to the rest is our rationality. But animals kill only for food or to protect their territory not for fun or anything else so those who commit heinous crimes are worse and therefore deserve to be eliminated so they won’t be able to commit future crimes.

  6. The Filipino way of behaviour & thinking were daring … NO FEAR… except for DEATH PENALTY… bow …!

    For officials & politicians…why should have so many doubt & speculations…?
    In the Philippine Law we need to bring back the capital punishment.

    Our people who are in other countries connected with drugs, recieve
    DEATH PENALTY also… now what is the difference? And take note those countries who has capital punishment has less crime rate compare to the countries without such punishment!

    For the sake of Philippine situations on drugs & corruotions, No other substitutions needed….

  7. John D. Knox on

    The fact that German rationalization regarding state-sponsored killing is introduced here as a selling point concerns me as much as Duterte’s current “shoot first” policy.
    My wife and son and I are expected in Cebu this November for my nephew’s wedding, yet I am loathe to support in any way – financially, physically or otherwise – the current regime by coming. Say what you will (and I’m sure with our current troubles some will), but enough of my family and friends here remain silent about this situation.
    The probability of murdering people who have not done what they’re accused of is too great to allow the State to decide who dies, without a trial. Those who think otherwise will change their tune quickly once an innocent – possibly a family member – dies because they were thought to be a drug dealer.
    Or maybe they won’t. Maybe, like many ‘good ‘Germans 80 some odd years ago they’ll simply turn a blind eye until it’s too late, and anyone who’s against the regime decides to label you a drug dealer to get rid of you.

    Enjoy.

  8. Wolfgang Struck on

    Another great article of Yen Macabenta. Maybe one mistake: “repel the threat of Islamist terrorism”. As the President said only yesterday, the US of A led by Zionists are behind terrorism. It happens that there are many Muslims on revenge who got raped, murdered, and had to see their country ruined like in Iraq or Afghanistan. Don’t blame them. What they are doing is only human reaction, not Islamist. It is a different story that Muslims want to spread their religion, long term, all over the Philippines. They have to win over Filipinos who have gone to sleep or to Jollibee, never mind, no more morals, no true backbone any more. Hopefully, Du30 can change direction for many Filipinos and open their eyes. Hoy gising, back to the future, back to Marcos! WES

  9. Driggs Matabaran on

    In my personal view, the previous administration did not just do nothing to address the drug menace. By practically doing nothing, it practically encourages drug lords to intensify their operation, penetrating the farthest islets and hinterlands expanding their business reach, the scope, extent and degree of seriousness of which was fully understood just lately. Drug players extensively corrupted government officials from the top enforcers like the generals of the PNP to the lowliest officials in the barangays. How many lawyers, prosecutors, judges that could have received drug money to help pushers and drug lords in the past years? How many politicians in these country that could have used drug money (knowingly and unknowingly) to buy votes and fuel their political machineries? Because of the vast networks of support and protection of drug rings, crimes such as rapes, murders, robberies also proliferates most of which are drug related. How many broken families, useless if not dead fathers, mothers, sons and daughters were there because of drugs? Now that we have a President that is willing to use all the powers and resources available to him to address the problem, he must have the needed support, even just moral support from ordinary citizens…

  10. De Lima just wants media mileage. To put PNP in a trial by publicity. I bet it was upon the dictates of LP and Abnoy to whom she is indebted to during her campaign. She cant fool us.

  11. The last sentence is all too funny, it is with high hope that it is spoken in jest, to have mentioned the name of Pacquiao, the unschooled and deliquent absentee lawmaker, for how can he interpelate on the floor, with regards to his proposed bill on death penalty – will he bring in with him the bible and quote verses and parables?

    It is dreadful to have people like him playing fun with our laws and constitution, and equally appalling to have tens of millions of Filipinos who are not able to distinguish between philanthrophy and lawmaking, as if a person willing to share the bounty is equitable to be a lawmaker.

    Our country is now on the crossroad to invalidate crime, we need highly evolved and intelligent person to come to preside over and rescue our laws, not one who is keen to observe the popular sentiment of the people, and to side with whatever can propel his personal agenda to hold on to power.

  12. Due Process is never for the protection of criminals, it is a wrong understanding. Rather due process is a protection for innocent people from malicious prosecution, or from getting penalized for a crime he never committed. If we proceed against a person on mere assumptions or accusations, we are almost certain that many innocents will be unjustly punished.

    Thus due process is like a fine strainer, fine grains goes out while the stones stays. Due process is our shield from the overwhelming power of the State and the possible abuses of law enforcement agencies.

    Due process is like a doctor conducting an examination before prescribing a medicine.

  13. siguro ang ipinaglalaban ni delima ay ang mga criminal at druglord kaya dapat imbestigahan ang babaing ito…..

    • hindi baga nabalita nuon na bff nya si sebastian at colangco (tama ba yung pangalan??) na parehong nasa munti. lumabas sa fb yung blog ng buko news sa bukonews.blogspot.com yung interview kay sebastian at nakasabit sa opisina ni sebastian na nasa loob ng commando gang portion ng munti ang litrato nila ni de lima at yung litrato ni de lima at yung mayor ng ozamis city ba na si mayor parojinog (tama ba yung pangalan??) na sinasabing ama ng vice mayor na syota ni colangco na isa ring drug lord na nakakulong sa munti

  14. A fight between De Lima and Duterte is a fight that De Lima can never win. She is estopped from complaining about things that she tolerated during her reign as head of the DOJ. She is in the minority and her fellow senators are inclined to gravitate towards the party in power whose titular head is now Duterte. When you are alone, fighting a Goliath with no weapon at all, even a slingshot, is futile.