Uncovering and Fighting Back Against the Practice of Promoting Oppression through the Weaponization of the Law: A Call to Reclaim the Dignity of the Law
By: Hon. Leila M. de Lima
Senator

On the occasion of the International Forum on Lawfare: Weaponizing the Law Against Democratic Dissent

De La Salle University, Taft Avenue, Manila, 21 February 2020

(As delivered by her brother, Vicente M. de Lima II)

Our very distinguished plenary speakers; reactors; moderators; members of the diplomatic community, the legal profession, the academe, civil society groups and the media; dear students and other delegates to this milestone event - a most delightful good morning!

It is a great honor to be a part of the first ever International Forum on Lawfare, or the Weaponization of the Law Against Democratic Dissent, which was made possible and made a reality by the efforts of the organizers, namely, Dela Salle University; Human Rights and People Empowerment Center; Alternative Law Groups; the Committee for the Freedom of Leila de Lima; and our media partner, Rappler.

In an opinion piece that was published on the day that marked my 1,000th day of unjust detention, I wrote about a "silent pandemic [that is] afflicting the world". I was referring to the phenomenon called "Lawfare", derived as a portmanteau of the words "law" and "warfare," which is used to signify a form of war consisting of the use (quote) "of the legal system against a perceived enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory"[i] (unquote).

As a long-standing defender of the Rule of Law, I value this gathering as being one decisive step towards fighting this pandemic. By the very act of uncovering its face, and giving a label to it, we have made it "silent" no more.

From my place of detention more than 9 kms away from De La Salle University, deep inside the headquarters of the Philippine National Police - surrounded by armed guards that have been ordered to keep me contained within high walls that are topped with barbed wires, hidden, imprisoned, vilified, YET never silenced, cowered or defeated - I tried to think of the best way to describe what today's Forum means.

This Forum attempts to be many things.

On one hand, it aims to be a gathering of experts - taking an academic and objective approach to studying the phenomenon called "Lawfare", in order to explore its growth and spread, and its ripple effect beyond parochial politics to the broader questions of its effects on the very foundations of nations and societies, such as democratic ideals, nation-building, global governance, etc.

On the other hand, it aims to remain rooted on its most basic aspect, the human aspect, the havoc it plays in individual lives.

For that is the very core of the vileness of weaponizing the law: it turns the people's shield from oppression into the very tool of oppression they need protecting from - all for political gain.

In truth, weaponizing the law victimizes human beings in many ways in different levels.

It destroys individual lives.

It destroys families.

It destroys society by turning the people against each other through the spread of false information and accusations.

It destroys nations by destroying the trust that holds together the social contract between the government and its people. The protector becomes the hunter; the protected becomes their prey until what is left is a people living in fear and oppression, without a voice to defend themselves or advocate for reforms.

It destroys the hard-fought peace among nations that have kept a world war at bay for more than seventy years.

Yet, admittedly, it is nothing new. We are not here to idealize the law or view it from the rosy lens of nostalgia. It has always had the potential to be a tool for both good and for evil. As soon as it was established as an instrument of "justice" (quote, unquote), it already bore the potential to be weaponized and politicized against perceived enemies.

So more than anything, this has to be a gathering of the brave.

Brave enough to share their experiences as victims of lawfare.

Brave enough to share their expert's take on what turns governments and public servants into oppressors of the people they swore to protect.

But most of all, brave enough to face the reality that the weaponization and bastardization of the law cannot truly take root and overtake Justice as its twin pillar without the complicity or, at the very least, the passive acquiescence of the people.

At some level, is there a seed of doubt that leads the people to question whether Law, when fairly administered in accordance to truth and justice, is incapable of preserving peace and security?

It is only when we face the ugly truths that make these ugly side of the Law a reality that we can fight it.

And I think we have to begin with the most basic question: what do people seek in society?

Obviously, they do not seek law for the sake of law alone.

It must serve a purpose.

But what purpose?

When I called "lawfare" as a global pandemic on the occasion of my 1,000th day in detention last November 20, 2019, I had no idea how apt the term "global pandemic" was going to prove to be. I expressed then my concern about the erosion of the Rule of Law and, with it, not just of the concepts of "truth" and "justice" in our country but the very foundations of our democracy.

But just a few weeks later, lawfare proved to be more fatal than I myself anticipated. The spread of a virus more effectively and more swiftly sparked calls for the end to the suppression of freedom of speech in a way that several months of protests, demonstrations and calls for democracy in the streets of Hong Kong failed to accomplish. When people saw how laws against the so-called spread of "rumors" were used to prevent timely warnings from being disseminated to the populace - and how it resulted in thousands of deaths, the paralyzation of global movement of people and trade, and severe losses to the world's economies - people realized how the weaponization of the law doesn't serve their purpose.

A virus doesn't care if you are rich or poor; well-educated or not. It spreads and it kills without heed to politics, religion, race, gender, or whatever arbitrary divisions we establish to divide ourselves and pit us against one another. Quite simply, a virus kills indiscriminately.

Eventually, the people saw that the same is true about Lawfare.

When everyone is in danger of being called a criminal without ever having committed a crime - except the crime of having a voice and using it to speak truth to power - everyone, in the end, suffers.

So people stopped being passive.

Therefore, it is my belief that it is only once we understand what purpose people want the law to serve that we would truly know how to protect it from being bastardized and turned against the people.

We know of the alarming spread of this pandemic, as it has lately been blazing an unfortunate trail around the world in both hemispheres. Just to name a very few, it is leaving its mark in various countries of varying states of democratic evolution: from the Philippines, China, Hong Kong and Myanmar in Asia, to countries in the Middle East, Russia and Turkey, and all the way around the world from South Africa in the African continent to Venezuela in the Americas. All these nations have experienced how the Rule of Law has been weaponized as a tool to eliminate political discourse and silence legitimate criticisms and dissent.

But the situation is far from being irreversible.

Just three days ago, a positive yet undeniably stunning development was reported in a case closely monitored by human rights groups, when a Turkish court acquitted nine persons, including Osman Kavala, a businessman and philanthropist who has spent more than two years in pre-trial detention over the so-called "Gezi Park protests", which began over something so seemingly politically benign as a plan to turn a small park in central Istanbul into a shopping mall.

It requires something so simple, yet increasingly precious and rare: for good people in key positions in society and government to do the right thing.

I, therefore, call on this Forum to focus on how to make something rare to become more prevalent: how to protect and empower those who have both the will and the capacity to do the most good.

There is a saying, when the state is weak, society must be strong.

When the government cannot - or will not - protect the people, society must step up and be strong.

That is what this Forum ought to be.

It must, ultimately, be a call to action, calling on everyone, especially the members of the legal community and those involved in the administration of justice to uphold the Rule of Law, and defend it against Lawfare. If we fail to act, soon it would be too late. What was once deviant behavior will be normalized, and we would have lost our best chance to protect the democracy and freedoms of this and future generations.

At this point, there are many worrying developments here in our very country, the Philippines.

The continuing idolization and emulation of a repressive foreign regime, while the nation is being isolated from its allies in the free world, is perhaps the biggest peril we are facing.

Already, there are moves to amend the Constitution, one, to ensure that those in power remain entrenched in power in perpetuity; two, to eliminate the provisions that protect our sovereignty from foreign intrusion and, ultimately, control.

That is the other face of "Lawfare" that we have to consider.

The common view is of using Law that is neutral on its face for evil purposes; but Law can, at the very outset, be shaped to be harmful from the outset.

Something as seemingly benign as redefining the definition of "public utility", ostensibly for the purpose of promoting free competition, can have far-reaching repercussion. Far from guaranteeing free competition, such an attempt could, instead, open enterprises and services imbued with public interest, including telecommunications services, to foreign control. Imagine, then, a world where telecommunications and media are controlled by a repressive regime.

In fact, one need not imagine - as the experience of one professor, who expressed a rare public critique of the Communist Party of China's stranglehold on the freedom of expression and speech, readily demonstrates, as reported by The Guardian.[ii]

Soon after the death of the Wuhan coronavirus whistleblower, Professor Xu Zhangrun wrote and published a piece entitled "Viral Alarm: When Fury Overcomes Fear", which is described as "a rare, bold expression of dissent"[iii] against current Chinese leadership's control and censorship. One need not speculate why such dissents would be "rare". In fact, in the same article, he predicted that he would likely be punished - more than he had already suffered so far, including his suspension from teaching - and that the essay "may well even be the last piece" he writes. True enough, it is reported that he was thereafter placed under house arrest for days, barred from social media, and now cut off from the internet. Allegedly, he was detained for quarantine reasons, yet the presence of guards stationed "in front of his house around the clock and a car with a signal box" seemed to indicate a different motive. And when he attempted to have his internet reconnected, he reportedly found out that his IP address has been blocked.

If the scourge of lawfare continues - when it silences dissent, chills legitimate criticism and limits intelligent discourse - anyone can be the next Professor Xu. Or the next Maria Ressa. Or the next Leila De Lima - detained for three (3) years and, worse, maliciously and falsely labeled a "drug queen."

The biggest lie is the promise that, if one "toes the line", they would be spared.

The destructive effects of Lawfare, as a tool of oppression, spares no one. The Wuhan experience is just one stark example.

Lawfare destroys and kills indiscriminately because oppression respects no one.

The true targets are not abstract ideas like democracy and Rule of Law. Destroying ideas is merely the means to an end, the end being the destruction of humans and their humanity to transform them into nothing but slaves and factors of production that serve the sole purpose of enriching those who wield oppressive power.

Let us make no mistake: this is a fight to preserve human life and dignity. Nothing more and nothing less.

Let this Forum serve as one decisive step as we fight to reclaim the power of Law as an instrument of Justice for the protection of people - not against people. The people must regain trust in the Law and the Justice System, instead of fearing being killed like animals without the opportunity to defend themselves. Let the innocent live free; and the guilty serve their just punishment.

For myself, I remain defiant. I refuse to be silenced and cowered. I refuse to remain as merely another victim of Lawfare.

Today, I declare myself free. For though I may be physically detained, my mind is freer than it has ever been; my dignity is intact; and my will to fight to protect the freedom and interests of the Filipino people is stronger than ever.

Thus, I am not a victim. I am not merely a survivor. I am not just a fighter.

I am a defender.

My armor, shield and sword are Truth, Reason and Compassion - the three things that my oppressors lack in themselves and fear most in those they oppress.

So I take this opportunity to declare, in this first ever International Forum on the Weaponization of Law, that up to my very last breath and to the very last words I utter, I will make everything I do count as a counterattack against the weaponization of Law, and a defense of democracy, the Rule of Law and, most of all, the sovereignty and welfare of the Filipino people.

I wish everyone a most empowering day.

Maraming, maraming salamat po. ###

End Notes:

[i] En.wikipedia.org. (2020). Lawfare. [online] Available at: https://en.wikipedia.org/wiki/Lawfare#cite_note-Case_Western_Journal_of_International_Law [Accessed 6 Feb. 2020]. Citing:

(1) Is Lawfare Worth Defining? [PDF]. Case Western Reserve Journal of International Law. 43 (1). 11 September 2010. Archived from the original on 7 August 2011. Available at: https://web.archive.org/web/20110807201635/http://www.case.edu/orgs/jil/vol.43.1.2/43_Lawfare_Report.pdf. [Accessed 06 Feb. 2020].

(2) Unrestricted Warfare, p. 55. [PDF] Archived 19 November 2006 at the Wayback Machine. Available at: https://web.archive.org/web/20061119123552/http://www.terrorism.com/documents/TRC-Analysis/unrestricted.pdf [Accessed 06 Feb. 2020].

[ii] https://www.theguardian.com/world/2020/feb/15/xi-critic-professor-this-may-be-last-piece-i-write-words-ring-true

[iii] Ibid.