Johnson, David and Jon Fernquest. 2018.

“Governing through Killing: The War on Drugs in the

Philippines.” Asian Journal of Law & Society, 1-32.

CRIME AND SCOIAL CONTROL

STATE KILLING IN THE PHILIPPINES BEFORE DUTERTE

• Under President Marcos - 31 judicial executions and at least 3000 extra-judicial executions; under
martial law - 12 judicial executions; during last nine years of Marcos’s rule - no judicial executions (4).
• After Marcos regime, the Constitution of 1987 abolished capital punishment “unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it” (Johnson & Fernquest 2018).
• Under President Estrada, 7 were executed and all were lethally injected (4).
• Under President Arroyo, more than 1200 death sentences were commuted. After two months, she signed
a Bill that abolished capital punishment into law. The (NGO) Karapatan found that there were 819
victims of “extra-judicial, summary, or arbitrary execution” under the Arroyo government (4).
• Under President Aquino III, extra-judicial killings declined, but at least 300 leftist activists, human right
defenders, and alleged supporters of communist rebels were killed (4).

EXTRA JUDICIAL KILLING IN DUTERTE’S WAR ON DRUGS

• It is impossible to know how many people have been killed by police and other government officials in
the first year of Duterte’s war on drugs, because the Philippine state is neither transparent nor consistent
about how often it kills extra-legally (Johnson & Fernquest 2018:5).
• There are also different degrees of state involvement, from (1) tolerating, condoning, and encouraging
the killing of drug users and sellers, to (2) the fiction of buy-bust operations in which the targets of a
sting resist arrest and are killed in a shoot-out, to (3) cold-blooded assassination as an act of
governmental terrorism (Johnson & Fernquest 2018:5).
• According to the Philippine National Police, as of 30 June 2017, nearly 5,000 drug suspects had been
killed, including 3,151 in reported gun battles with the police, and 1,847 others had been killed in drug-
related attacks by masked gunmen on motorcycles and other vigilante assailants (5)
• The New York Times published an editorial, ten months into Duterte's six-year term, stating that there
had been more than 9,400 deaths and an average of 32 per day (5).

CAUSES
Criminal Injustice (13-15)
- For decades before the slaughter that started in the summer of 2016, the Philippines had one of the
highest rates of homicide in the world (Johnson & Zimring).
- Because of underreporting and other data difficulties, it is hard to tell whether the Philippines has high
rates for crimes such as theft, robbery, and rape but, in the years leading up to Duterte’s election in
2016, official crime rates soared, at least partly because of increased reporting by police (Ranada
2016). The Philippines may also have higher rates of drug use and abuse than other countries in East
and Southeast Asia, especially for methamphetamines (shabu) (Johnson & Fernquest 2018).
- The Philippines may well need a “war on drugs,” but the war it has been fighting under Duterte seems
to be the wrong war, fought with the wrong weapons, and against the wrong enemies. The root causes
of the country’s drug problem are poverty and corruption (Kaiman 2017).
- In addition to public concern about drug and extra-judicial killing-related problems is the dysfunctions
of criminal justice system (15).
- Criminal process moves slowly; judiciary’s backlog cases; lack of judges in trial courts; police
are understaffed (15)
- Criminal justice in the Philippines is ineffective, inefficient, and corrupt. It is also toothless
(Syjuco, supra note 37).

Penal Populism (15-18)

 - “penal populism” consists of the pursuit of punishment policies based primarily on their anticipated
popularity rather than their effectiveness (Pratt 2007).
- Penal populism tends to be rooted in resentment against political elites and the existing political
establishment. In the Philippines, there is little trust in the establishment to protect the interests or
advance the wellbeing of ordinary people (Johnson & Fernquest 2018:16).
- Penal populism in the Philippines has characteristics in common with that of other countries, but
it is also distinct in four ways:
1. Duterte’s brand of penal populism is driven by both a politics of fear of crime and by a politics
of hope that posits a better future once crime problems are under control (Curato 2016b). “Hyper
masculinity”; disdains formality, given to profanity, womanizer — all these characteristics make him
seem “authentic,” in comparison to the hypocrisy “decent” politicians from the past (16).
2. Countries such as Japan and US, most populist anger is targeted at immigrants who do seem to
pose a threat to the social order whereas in the Philippines, the presumed enemies are said to be drug
users and sellers, street criminals and communists rebels (internal) (16).
3. In most countries, the central tool of penal populism is imprisonment but Philippines in
contrast under Duterte, extra-judicial killing has become its most salient feature (17).
4. Connection between penal populism in the present and the long tradition of extra-judicial
killing in the “local bossism” of the past (Berlow 1996).

Democratic Underdevelopment (18-20)

- The scale of extra-judicial killing in Duterte’s war on drugs reflects fundamental economic and
political failures in Philippine society (Johnson & Fernquest 2018:18).
- According to Freedom House (2018), the Philippines earns a score of only 4 out of 16 for the “Rule of
Law” because the application of law and justice in the country are “haphazard” and “heavily favor
ruling dynastic elites.”
- Ultimately, the post-colonial Republic of the Philippines remains poor because it continues to be ruled
by a narrow elite that organizes society for its own benefit, at the expense of the vast majority of its
citizens (Johnson & Fernquest 2018:19).

KILLING AND REFORM?

- During President Duterte’s second SONA, he stressed that his war on drugs would be “unremitting and
“unrelenting” (20).
- However, there was a significant pause in governing through killing during Duterte's second year in
office— 17-year-old Kian Loyd Delos Santos’ case.
- On 29 January 2018, PNP Director General dela Rosa announced that the war on drugs would resume
with a new and improved Operation Knock-and-Plead— police operations would be less violent,
would respect human rights and be governed by the rule of law (21-22).

LESSONS
1. Extra-judicial killing deserves more study than it has so far received (Johnson & Fernquest 2018:23).
2. Students of capital punishment should be less sanguine about the consequences of abolition (Johnson
& Fernquest 2018:23).
3. Penal populism and governing through crime are common not only in developed societies, but also in
those that are developing (Johnson & Fernquest 2018:24).
4. Scholars have long recognized that there are tensions and tradeoffs between crime-control values and
due-process values (Packer 1968), but less appreciated is the fact that failures of crime control can
motivate disregard for due process (Narag 2017a).
5. The number of democracries in the world increased markedly after WWII. Since 2000, however,
nation-states of major significance, including Russia, Turkey, Thailand, and the Philippines, have
gone in the opposite, authoritarian direction (Remnick 2017).