Rodrigo Duterte was appointed as President of the Philippines on July 1, 2016. At the same time, he realized his political promise to catch up drug lords, through a war on drugs policy. War on drugs attempts to eliminate drug trafficking and use in the Philippines by arresting and/or killing dealers, both large dealers and small dealers, and drug users. In its implementation, Duterte hired police, paramilitaries, and assassins (BBC News, 2016).
The Philippines did suffer from drug emergencies as Duterte said in his speeches. According to data from the Dangerous Drugs Board (DDB) in 2016, drug users in the Philippines reached 1.8 million, equivalent to 1.8% of the total population of the Philippines which reached 100.98 million people. The data was collected from the age range of 10-69 years which at least had used drugs even once in his life (Gavilan, 2016).
In an interview with Russia Today, Duterte said that drugs were a threat that could destroy the young generation of Filipinos who became assets for the country. He repeatedly said that he would kill anyone who was caught in a drug case (Russia Today, 2017). Duterte gave an order to arrest drug addicts and dealers if possible. However, if they fight with violence that can threaten the lives of the police or security officers who arrest them, the police or security officers are allowed to kill (Al Jazeera English, 2016).
From July 1, 2016, to September 30, 2018, war on drugs has resulted in 4,948 people being killed in the operation. Moreover, data from the Philippines National Police (PNP) showed that 22,983 people were victims of murder since the implementation of the war on drugs. This number does not include thousands of others killed by gunmen (Human Rights Watch, 2018).
Human Rights Constitution in the Philippines
The Philippines has committed to the promotion of human rights, as evidenced by the ratification of several international agreements on human rights, namely the Universal Declaration of Human Rights in 1948 and the International Covenant on Civil and Political Rights (ICCPR) on October 23, 1986. Furthermore, the ICCPR was instrumental in determining penalties for lawbreakers in the Philippines.
After ratifying the ICCPR, the Philippines then drafted its constitution by including human rights values in article 3 about Bill of Rights of the Philippine Constitution, which was ratified in 1987. Before that, the Philippines did not have a fixed constitution. Regulations imposed in his country are governed by the president in office at that time. That is what makes human rights regulations unclear in the Philippines before the Philippine constitution is ratified. Until now, the Philippine constitution has become the only law that underlies human rights regulation in the Philippines, excluding international agreements that are a source of international law.
In the same year, 1987, the Philippines became the first Asian country to abolish the death penalty. The Philippines abolished the death penalty twice, first abolished in 1987, and the second in 2006 (Armandhanu, 2016). After 2006, the Philippines did not apply the death penalty. Meanwhile, Duterte said he would re-implement the death penalty and direct shooting at drug dealers.
However, until 2018, the Philippine constitution has not been changed. Even though Duterte continued shooting at drug lords. Constitutionally, that cannot be justified. Plus, the Republic Act No. 9165 regarding drugs also does not write the death penalty, but a life sentence.
Violations against Human Rights in the War on Drugs Policy
The Philippine Constitution which specifically deals with human rights as contained in article 03 of the bill of rights. Article 03 consists of 22 sections that discuss the details of individual and community rights. War on drugs policy violated Article 03 Chapter 01, Chapter 14 (1), Chapter 19 (1), and Chapter 22 in the Philippine Constitution.
- Chapter 01: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 3). It shows that every human being has the right to live and obtain freedom. Considering that part, President Duterte has violated the life rights of his citizens by killing without a court of law. This shows that the murder of drug dealers that he did was unfair to the community and violated the basic rules of the human rights constitution in the Philippines.
- Chapter 14 (1): “No person shall be held to answer for a criminal offense without due process of law” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 5). The Chapter clearly emphasizes that no individual can be asked for an answer to a criminal act without legal process. In other words, each individual has the right to undergo legal proceedings for his criminal actions. In the case of President Duterte, the state did not provide an opportunity for drug dealers to undergo regulated legal processes. The drug dealers were shot directly no matter where and whenever, without a court of law. This will be related to chapter 22 concerning the bill of attainder.
- Chapter 19 (1): “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion Perpetua” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 6). The punishment given by the state must be humane by not harassing human dignity. If you have to be given a death sentence, it only applies to very violent crimes. While the war on drugs contradicted the Chapter. According to President Duterte, drug crime is the most heinous crime in the Philippines because it has damaged the young generation of Filipinos (Regencia, 2016). However, many dealers who were killed were small dealers and the days were increasingly out of control. Judging in chapter 14 (1), every violator of the law, whether a minor violation or a serious violation, is obliged to undergo legal proceedings at first. In this case, the Philippines must also provide clear boundaries regarding small-scale drug dealers and drug dealers on a large scale, so that there is a clear and fair law to try the case.
- Chapter 22: “No ex post facto law or bill of attainder shall be enacted” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 6). Ex post facto law is a law that is implemented after being given a sentence as a result of subsequent actions. Then the bill of attainder is an act that states someone is guilty and sentenced without trial at first. In chapter 22 states that ex post facto law or bill of attainder is not invited, which means that no sentence is given without a court. Reviewing President Duterte’s policies, the policy violates chapter 22 of the Philippine constitution. The killings committed did not take the court first, but immediately killed once the target was weak.
At its conclusion, President Duterte’s policy injured the Philippine constitution itself. Four Chapters of Article 03 have been violated. That was the reason for the Philippine Supreme Court to warner President Duterte to dismiss his policies (Al Jazeera, 2017). However, Duterte insisted on continuing this policy based on the emergency threat (Al Jazeera English, 2016).
Introduction to the International Criminal Court (ICC)
The International Criminal Court (ICC) is an international regime that focuses on handling crimes against humanity. The ICC was established on July 1, 2002, through the Rome Statute agreement, which gave legitimacy to the ICC to try perpetrators of crimes against humanity. Based on the elements of crime contained in the Rome Statute, four major crimes must be dealt with by the ICC, namely genocide, war crimes, crimes against humanity and crimes of aggression (International Criminal Court, 2011). These issues have similarities with the issue of crime handled by the UN Security Council. For this reason, the two institutions coordinate with each other in dealing with these issues.
The ICC will prosecute genocide perpetrators, crimes against humanity, or war crimes on and after July 1, 2002 – so that any crimes that occur before that time cannot be tried through the ICC. These three crimes can be tried by the ICC if carried out by nationals of ICC member countries, in the territories of ICC member countries, or in countries that accept ICC jurisdiction. Besides, as explained above regarding the coordination of the ICC and UNSC, the UNSC can refer criminal cases to the ICC Prosecutor to be tried under the resolution adopted under Chapter VII of the UN charter.
Meanwhile, for the case of a new crime of aggression, it will be regulated on July 17, 2018, on the recommendation of the UNSC. In this case, the ICC can try parties’ guilty outside of the ICC membership. If the UNSC does not propose an investigation of cases of aggression, then the ICC can conduct investigations independently or based on proposals from member countries. However, before conducting an investigation the ICC needs to check the status of the case at the Security Council, whether the case has been handled or not (International Criminal Court, n.d.).
In conducting the legal process, the ICC has several stages, namely as follows:
- Preliminary examinations
- Pre-Trial stage
- Trial stage
- Appeals stage
- Enforcement of sentence
Because the ICC upholds human rights values, the penalties applied are only imprisonment and fines, as stated in the Rome Statute Chapter 7, Article 77 (International Criminal Court, 2011). The ICC does not implement the death penalty.
ICC Action Plan on the Philippines’ War on Drugs
On February 8, 2018, the ICC announced the opening of preliminary examinations on the war on drugs case launched by the Government of the Philippines since July 1, 2016. The examination focuses on thousands of drug users who have been killed and extrajudicial killings in the context of anti-drug police operations (Gallaghera, Raffleb, & Maulanab, 2019). It should be emphasized that ICC conducted preliminary examinations, not yet at the investigation stage. Preliminary examinations are needed to observe the urgency of the case, jurisdictional power, and justice. If all components have been fulfilled and with careful consideration, this case can be raised towards the investigation phase (International Criminal Court, 2018).
The Philippines responds to the ICC’s actions by writing an official written statement stating that it left the Rome Statute on March 17, 2018. However, legal proceedings against the Philippines are still ongoing. The waiting period from exit statement to the official exit is one year. During this period, the ICC will continue to conduct examinations on the Philippine government for its war on drugs policy that killed many people.
The 1987 Constitution of the Republic of the Philippines.
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International Criminal Court. (t.thn.). How the Court works. Dipetik April 28, 2019, from International Criminal Court: https://www.icc-cpi.int/about/how-the-court-works/Pages/default.aspx#legalProcess
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Regencia, T. (2016, Agustus 10). Duterte Threatens Martial Law If ‘Drug War’ Is Blocked. Dipetik April 29, 2019, from Al Jazeera: http://www.aljazeera.com/news/2016/08/duterte-threatens-martial-law-drug-war-blocked-160805170518830.html
Russia Today. (2017, Mei 22). ‘They want me to fight China. It’s gonna be a massacre!’ – Duterte to RT (FULL INTERVIEW). Dipetik April 25, 2019, from RT: https://www.youtube.com/watch?v=rHjlCmdyesY
This article was written by Laras Ningrum Fatma Siwi, an undergraduate student of International Relations Studies at the Universitas Muhammadiyah Yogyakarta, while working as an intern at Center for Southeast Asian Social Studies (CESASS).
Photo by Aditya Joshi on Unsplash