Power versus justice

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President Ferdinand Marcos, Jr. said last week that the demands of some senators for Justice Secretary Jesus Crispin Remulla to resign “have no basis.”

The Department of Justice (DoJ) Chief had declared that he is inhibiting himself from any involvement in the conduct of his son Juanito Jose Diaz Remulla III’s possible prosecution on drug trafficking charges. But the responsibilities of his office may not prevent his using its powers in behalf of his personal and familial interests. And human rights defenders have also called for his resignation for an entirely different reason: his use of, and undisguised support for, “red-tagging” as a means of dealing with critics of government and other dissenters.

He was one of the first appointees of Mr. Marcos to his Cabinet, and one of his most ardent campaigners and allies during last May’s Presidential elections. At one point during the campaign, he even “red-tagged” Marcos Jr.’s rival for the Presidency, then Vice-President Leni Robredo, whom he claimed had entered into an alliance with, and was being supported by, “communists.”

Although elected as a congressman, he accepted his designation, perhaps in the knowledge that not only is the post of Justice Secretary a high-profile one, it is also among the most powerful in government.

The DoJ is first and last the government’s principal law agency. Its vast powers include the investigation and prosecution of law breakers, in addition to being the legal counsel of government. The Justice Secretary has authority and supervision over the National Prosecution Service (NPS) and has the last say on the prosecution of, or the dropping of charges against, suspected wrong-doers. He can also order their investigation by the National Bureau of Investigation (NBI) should he deem it necessary.

Remulla’s intervention in his son’s case would indeed constitute a conflict of interest between that of being his father and that of resolving it in the interest of justice. But his not doing anything about it would be contrary to his mandated duty to decide whether the evidence demands the prosecution of any individual or not on this or that charge.

Even if his son is indeed brought to court, however, suspicions that he could influence its outcome through various means would still arise. At stake, after all, is not just his son’s freedom but also his family’s reputation and future in politics. Not only would it be an outrage for the country’s Justice Secretary’s own son to be convicted of drug charges — if that happens it could also break the Remulla dynasty’s hold on Cavite politics and even prevent any of its other members’ election to a national office such as the Senate, or even the Presidency.

How the case of Remulla’s son is handled and resolved would contribute to perceptions on how fair and impartial the Philippine justice system is. That it seems to be neither is already driving the continuing investigation by the International Criminal Court (ICC) of former President Rodrigo Duterte and those of his officials who implemented his bloody — and, by his own admission, failed — “war on drugs” on charges of crimes against humanity.

Whether the ICC would prosecute Duterte and company on those charges or not depends on whether the Philippine justice system is perceived as so fair as to prosecute alleged wrong-doers of whatever social, economic, or political status, or to be so biased in favor of the powerful, the wealthy, and the well-connected as to validate claims that the culture of impunity makes justice an elusive dream for most Filipinos. By exempting wrong-doers from prosecution and punishment, impunity encourages violence and other forms of lawlessness against journalists, political and social activists, human rights defenders, and ordinary folk.

The ICC decision to continue its investigation suggests that it is convinced that the Philippine justice system is not functioning as impartially as it should. It is another way of saying that because it twice penalizes the poor and less powerful by allowing those who persecute, harass, and even murder them free rein, and then denies them the justice that can only be realized through the prosecution of those responsible, the system is not working at all.

That view of the justice system is not new. No one has been prosecuted for the illegal arrests and detention, torture, enforced disappearances, summary executions, and other rights violations during the Marcos Sr. dictatorship. The killers of protesting farmers during the Mendiola Massacre in 1987 when Corazon Aquino was President have also escaped punishment. And out of the 177 cases of journalists killed by those who resent their reporting and/or commentary, less than 20 have been resolved by the courts. The consequences have since been evident in the common belief that there is one law for the rich and powerful and another for the poor and powerless.

But the justice system over which DoJ Secretary Remulla now presides could still gain some measure of credibility. Other than merely demonstrating its alleged impartiality in such high-profile cases as its current Secretary’s son, it could also look into who were responsible for the two journalists killed within weeks of each other in September and early October as well as the many murders, kidnappings, and other crimes that are among the multiple threats to the lives, well-being, and fortunes of many Filipinos.

Unfortunately, whether the system has the capacity to do so has been seriously challenged by Remulla’s declaration during his attendance at the Geneva meeting of the United Nations Human Rights Committee that “red-tagging” is just “part of democracy.”

“Red-tagging” is a practice that Duterte regime bureaucrats and their propagandists, trolls, enablers, surrogates, and echo chambers had made much use of by accusing critics and dissenters of communist and rebel links. Remulla described it as just another instance of free expression and as part of government’s right to respond to its critics.

It is nothing of the kind.

It is an attack on the citizens that government is duty-bound to protect. Citizen’s exercise of the right to free expression and criticism of government has never led to the harassment, persecution, imprisonment on fabricated charges, and even the killing of those criticized. In stark contrast, “red-tagging” has encouraged exactly those very consequences on those so labeled, due, among other reasons, to the deliberate cultivation by various administrations, specially Duterte’s, of the benighted view that persecution and assassination are preferable responses to criticism of government, its policies, and its officials instead of responding to them with the facts and reasoned argument that civilized discourse demands.

When promising not to intervene in his son’s case, Remulla had pointed out that the former is presumed innocent unless otherwise found to be otherwise in a fair trial. But the “red-tagging” he has himself practiced and is legitimizing presumes the guilt rather than innocence of those labeled, many of whom have also been punished extrajudicially twice over. First with arrest, harassment, threats, and death merely on the say-so of their accusers, and second, without the benefit of redress and the satisfaction of seeing their persecutors punished.

“Red-tagging” is the political equivalent of the “kill them all” Duterte regime policy on suspected and rumored drug users and traders. The use of both against the citizenry validates the view that, as the essayist, novelist, playwright, and poet James Baldwin put it during the US Civil Rights Movement in the 1960s, “arbitrary power is the most ferocious enemy that justice can have.”

Luis V. Teodoro is on Facebook and Twitter (@luisteodoro).