[OPINION] Rodrigo Duterte’s gambit: Due process for me but not for thee

Former president Duterte’s arrest has given rise to a strange phenomenon. After years of cheering extra-judicial killings, his supporters now flood the national conversation with calls for “due process.” One even asked citizens to take action to protect the Constitution. It’s a noble plea, invoking the greater values that define us as humans, not beasts. 

But then, when a baby was killed during the drug war, I distinctly remember what was said in response: “Shit happens.” I also remember that Duterte did not shy from spitting at both God and Constitution. “If you know of any addicts, go ahead and kill them yourself” was his advice to the nation at the start of his term. As he now invokes the words of the document he once mocked, it is fair to ask — Does “due process” apply to those who brutally denied it to thousands?

Of course it does. But here are the facts. Duterte was accosted upon his arrival. He survived that encounter. Unlike Kian. The boy died on his knees, begging for mercy. He was Grade 11. Duterte was read his Miranda rights. Jennifer’s father wasn’t. They shot him as the little girl hugged him tightly, refusing to let go. She was 12. Brought to Villamor, Duterte then waited in the VIP section surrounded by his lawyers. Unlike Duterte, Alvin wasn’t a VIP. And those who stabbed him 19 times couldn’t wait. So, they dumped his body in an overpass. But not before wrapping his head in tape. 

On the day of his arrest, Duterte was able to access the courts. The Highest Court of the land in fact. It moved swiftly to conduct a special session to entertain his petition. By the next day, his prayer for TRO was resolved. It was denied but then again, at least he got an answer. The drug war’s victims continue to search for theirs.

The Constitution protects everyone, even Duterte. But due process doesn’t mean he gets priority. While we have a (shaky) tradition on presidential immunity, no legal privilege exists for former presidents. As it is, Duterte already enjoyed far more “due process” than what thousands got under him. He is allowed to claim urgency but, there are hundreds of EJK cases that also need urgent resolution, including the legality of the Drug War itself. Due process for all, yes. But all in due time.

The “denial of due process” narrative now flooding our feeds does not pass muster. But with Duterte, it has never been about facts. The man is a master of narratives. After all, he rode it all the way to the presidency. Today, we should now know better. We cannot merely react to the pace that he sets. What this nation went through under Duterte requires that we ask questions that go far beyond the Bar exam or textbooks. Law, especially constitutional law, cannot simply be about what the law “is.” It is more importantly about what the law, and in this case justice, should be. 

Duterte had years to prepare for what he knew was coming. As we are now being swamped by formidable disinformation operations, we cannot overlook the obvious. That is, Duterte already told us how he plans to end this. The man who presided over the death of thousands, also has no qualms bending the legal system. Recall how he used to brag about planting evidence as mayor and fiscal. Duterte is only too aware that this is the country where stealing a can of corned beef lands you in jail but, plundering billions offers political invulnerability. 

This explains why, after denying it to thousands, Duterte now hides behind the due process clause. It’s hypocritical but, the man doesn’t care. He once dared both Congress and the Courts to try and stop EJKs. He did it because he is a master in exploiting the weakness of those who believe in a rules-based order. In his eyes, we are fools. We over-analyze law to the point of paralysis. Whereas he just does what he likes. Article III, Section 1 of the Constitution says no person can be deprived of life without due process? Duterte looked at it and said, “Kill them all.” 

By exploiting our values and oath to a legal system, Duterte enjoyed something better than power — absolute impunity. Duterte’s drug war culled thousands in full view of the Constitution. The due process clause was in effect. No nationwide martial law was imposed. Congress was in session. And the courts were open. But nothing stopped the killings.

This is the context by which we should approach the sudden appearance of constitutional devotees in the name of Duterte. They may cite the right words and quote the right verses but, their call rings hollow. Because this belated fidelity has nothing to do with constitutional principles. 

Duterte’s gambit is to stress test the legal system. He knows his way out is as simple as invoking “the Rule of Law,” and then he can step back, watch us quibble and, bide his time. The solution is to refuse the false dichotomies he presents. We must define the terms of engagement, not just react. 

To this end, it is critical that we remember that due process and the Bill of Rights exist to protect the poor and powerless. We must remember that a constitution is actually a list of limits on the majority, on the powerful, so that the rule of majority, does not turn into the rule of the mob. This is the path of constitutional tradition that the 1987 Constitution tracks. Its provisions were created not to enable dictators to become immune from accountability but, precisely to hold them to account. 

As Justice Carpio often observes, the Rule of Law can become a “façade for injustice.” In the face of the chaos similar to what Duterte sows, Justice Carpio suggests that “a higher standard of law — the Rule of Justice — becomes the guiding light of lawyers.” 

History will judge our legal institutions when our descendants see that little was done to halt the massacres during Duterte’s drug war. That judgment will be harsher if, after slumbering for years, constitutional protections find resurgence only now that the beneficiaries are the drug war’s perpetrators. For those who believe in a higher power, justice has sources other than the courts. And when the moral arc of the universe begins to correct, will law be the tool or the obstacle to the divine? 

Our answer will define the legal profession and the legal system in succeeding years. Because the public will be keenly watching, and whether we want to or not, they will be making their own judgment. – Rappler.com

John Molo teaches Constitutional Law in the University of the Philippines’ College of Law. He has argued several landmark cases before the Philippine Supreme Court. He is a past president of the Harvard Law School Alumni Association of the Philippines and is a Trustee of the Phil. Bar Association. He Chairs the Editorial Board of the IBP Law Journal.