Philippine President and politicians push for return of death penalty amid ‘war on drugs’

Abby SeiffMonday 17 August 2020

President Duterte has long pushed for the reintroduction of the death penalty. He made it one of his campaign promises, and vowed during his first presidential press conference in 2016 to have Congress restore the punishment for a range of crimes.

Since coming to power on a wave of popular support for his strongman tactics, President Duterte has waged a drug war on an unparalleled scale, including by issuing ‘shoot to kill’ orders to law enforcement.

As of July 2019, the Philippine government had acknowledged at least 6,600 killings by police as part of the ‘war on drugs.’ Thousands of people suspected of being linked to the drugs trade have also died at the hands of ‘unknown armed persons’ according to Amnesty International. Only a single extrajudicial killing has resulted in charges and a conviction.

In this context, reviving the death penalty, particularly for drug crimes, is a natural move for President Duterte.

But such a development would represent a significant step back for the Philippines, which in 1987 became the first Asian nation to end capital punishment. The abolition was made under Article III, section 19 of the Philippine Constitution, which allowed for its Congressional reinstatement in 1993. When the punishment was abolished again in 2006, more than 1,200 prisoners were taken off death row – what Amnesty International called the ‘largest ever commutation of death sentences.’

While the Philippines has yet to see any bills reinstating capital punishment successfully signed into law, efforts have mounted in recent years. In March 2017, the House of Representatives passed a bill making certain drug offences punishable by death – though the Senate stalled the bill the following month.

Early in 2019, the House of Representatives approved a bill that would allow the death penalty for those in possession of drugs during a social gathering – only to withdraw approval at a later reading. But since the May 2019 midterm elections delivered a landslide for President Duterte’s allies, the likelihood is higher than ever that such a bill could pass.

Drug-related offences have drawn significant attention as a means to reinstate capital punishment, but death penalty advocates in Congress have sought other in-roads too. Late last year, Representative Micaela Violago – who introduced the 2017 bill – proposed the amendment of a 2003 anti-human trafficking law to include the possible penalty of death. In early August, both the Senate and House held hearings to discuss numerous death penalty bills.

Legal experts and rights monitors have highlighted that a reinstatement of capital punishment would breach international law – and possibly open the country to sanctions from the international community, such as the withdrawal of trade preferences.

The Philippines has ratified both the International Covenant on Civil and Political Rights (ICCPR), which bars a reintroduction of the death penalty, and its Second Optional Protocol, which is aimed explicitly at abolishing the punishment.

The IBA Asia Pacific Regional Forum has recently published a paper on the Philippines’ attempts to reintroduce the death penalty, the authors of which include Karen Gomez Dumpit, Commissioner at the Commission on Human Rights of the Philippines. While focused on Violago’s bill, the paper sets out that ‘any reintroduction of the death penalty in the Philippines may well constitute a breach of its obligation under the ICCPR Article 6, paragraph 2 and the Second Optional Protocol which guarantees the permanent non-reintroduction of the death penalty in states that ratified the Protocol. The ban is so broadly accepted that it is considered a norm of customary international law.’

While President Duterte and his supporters argue that the death penalty serves as an effective deterrent to crime, research suggests otherwise. And in reintroducing capital punishment, the Philippines may face a raft of other consequences. The human trafficking law targeted by Representative Violago for amendment, for instance, features a broad definition of accessorial liability. If the death penalty is introduced as a possible punishment, that could well dissuade economic investment by companies who fear that their own efforts to investigate or stop slavery within their supply chains could inadvertently expose their employees to death, says Felicity Gerry QC, of Carmelite Chambers, London.

Gerry – who co-authored the IBA Asia Pacific Regional Forum paper – stresses that Violago’s bill does little to address the root causes of trafficking. ‘There’s so many grey areas. It doesn’t solve anything, it just gives power to the state to kill. Human trafficking is widely misunderstood and needs much more complex approaches,’ she says.

There can never be justification for capital punishment, said Anne Ramberg Dr jur hc, Co-Chair of the IBA’s Human Rights Institute, who highlights the frequency with which judicial systems behave in a discriminatory manner.

‘The right to life and dignity prohibits [capital punishment],’ says Ramberg. ‘It is a crime against human rights. Nations should never be entitled to deprive a person of their life, no matter what crime he or she has committed. It is a barbaric way of administering justice that does not belong in a civilised democratic society built on the rule of law.’

‘No justice systems are perfect,’ adds Ramberg. ‘Capital punishment involves the risk that an innocent will suffer from a verdict that is wrong. There are many examples where people on death row have been found not guilty after several years in prison.’

She adds that judicial misconduct, including forced confessions, adds to the risk.

‘A reintroduction of capital punishment is therefore a serious threat to the rule of law and human rights,’ says Ramberg.