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COVID-19 and Conflict | How Duterte’s new Anti-Terrorism Act is terrorizing Filipino citizens, not helping them survive the COVID-19 pandemic

The Philippines, like many other countries, has been hit hard by the COVID-19 pandemic, but a stronger blow was delivered to its citizens and democracy when the Anti-Terrorism Act was passed at the height of the pandemic in July this year. This event reveals President Rodrigo Duterte’s prioritization of the consolidation of his authoritarian regime’s power—at the expense of Filipino citizens. An increased state police and military presence justified as necessary for curbing the spread of COVID-19 shows that this law is being implemented, with dire implications for freedom of speech and expression as those critical of Duterte’s rule are imprisoned or terrorized.

“Junk Terror Law”. Photo by: Maro Enriquez, July 27, 2020 State of the Nation Address protest

Since current president of the Philippines Rodrigo Duterte came into office in 2016, over 20,000 deaths have been ascribed to his regime. Extrajudicial killings have been rampant, many justified by a ‘war against drugs’ necessitating killings to ‘root out drug criminals’, and many of the victims were from the country’s poorest population segments. National and international criticism of this approach have been strong, but has been met with resistance from the state, along with oppressive measures. Activists, farmers, peasants, indigenous peoples, unionists, journalists, lawyers, and human rights advocates accused of being communists or leftist sympathizers due to criticizing Duterte’s decisions and actions faced constant harassment and threats.

Consequently, instead of focusing on more evident socio-economic concerns such as poverty, unemployment, food security, sex trafficking, child sexual exploitation, and other pressing issues facing the country, the administration over the past years has chosen to address what was perceived as political challenges to the Duterte administration through the increased deployment of the police and military.

Things took a turn for the worse when COVID-19 spread across and took hold of the country, with the administration instrumentalizing the pandemic to encroach upon citizens’ right to dissent through its imposition of strict quarantine measures in the name of curbing the virus. This echoes other findings of the instrumental use of COVID-19 regulations for continued or increased political oppression, as in the case of Zimbabwe. In the Philippines, people were not allowed to leave their homes without proper identification cards, as well as permits issued by the local government to move around. Those who would protest, even following social distancing protocols, would be arrested without warrants or charges. The laws are seen to not be applied equally, with the administration telling its citizens to show compassion for government officials who broke quarantine rules while heavily sanctioning, harassing, and even imprisoning those who would protest, beg for food, put up community food stalls, or circumvent the absence of mass transportation.

What makes the Philippines different from other countries that have similarly implemented strict and sometimes unreasonable lockdown measures has been the parallel passing of the Anti-Terrorism Act.

As the country struggles with increasing COVID-19-related deaths and infections, the pandemic’s effects on the economy and the healthcare system have been severe. The clearest indication of the apparent authoritarian character of the state, and its failure to govern on behalf of its people, has been the swift formulation and passage of the country’s Anti-Terrorism Act. The implementation of this law in July this year in an attempt to further control the country shows evidence of a focus on strengthening the Duterte regime and stifling opposition at a time when a state intervention to relieve citizens of the burden of the COVID-19 lockdown should have been the first priority.

Silencing dissent, exacerbating the lockdown’s effects

The Anti-Terrorism Act of 2020 replaces and expands the definition of terrorism under the old Human Security Act. This could have far-reaching consequences: the law essentially allows for the state to suppress freedom of speech in a way that transgresses human rights. The removal of certain key provisions in the Human Security Act are of particular concern: 1) the right to due process; 2) the right against unreasonable searches and seizures; 3) the right to privacy and correspondence; and 4) the right to freedom of expression and association. Moreover, the act enables detention on mere suspicion of a crime, longer detentions without charge and no remedies, and no liability on law enforcement.

This law hence provides the government with the legal tools to oppress and silence those who dissent and oppose injustice. United Nations High Commissioner on Human Rights Michelle Bachelet pointed out how the law has a “chilling effect on human rights and humanitarian work”. In light of the pandemic, these clauses make it more difficult for ordinary citizens to access legal remedies to protect their human rights, organize, or peacefully dissent because of their inability to assemble.

On June 26th this year, Rey Valmores-Salinas, Bahaghari’s[1] national spokesperson, organized a Pride march in Mendiola as a means to make known the unified voice of the LGBT sector against authoritarian and ineffective COVID-19 responses. Critical of the ‘militarized’ policing of adherence to lockdown regulations, hundreds of protesters took to the streets and clashed with the police, leading to mass arrest based on unfounded charges.

Similarly, members of the national civil society organization Unyon ng Mga Manggagawa sa Agrikultura (UMA)[2] due to their demand for basic needs and livelihood support in the time of COVID-19 have been terrorized by the state police on an ongoing basis. There have been several instances of unannounced raids made at the homes of organization members, which have been framed as a ‘necessary part of the government’s house-to-house contact-tracing interventions to curb the spread of COVID-19’. Antonio ‘Ka Tonying’ Flores, UMA’s national chairperson, claimed that this was a smokescreen for ‘red-tagging’ activists who are considered insurgents by the state. Even their relief operations and community kitchens that have helped assist the poorest communities of the country during the lockdown have been disrupted by the state military and police on several occasions, apparently because they ‘pose a threat to the authoritarian Duterte regime’. This is substantiated with the state’s belief that these forms of gathering could lead to community organizing towards a unified resistance against the Duterte regime.

The use of armed forces to contain the pandemic, as well as the silence of dissenters, is cause for alarm, as it may signify an unchecked abuse of state power and the lack of prioritization of addressing the effects of the COVID-19 lockdown on the country. The Anti-Terrorism Act that has allowed for oppressive state actions has led to the terrorization of ordinary citizens—and to the increased alienation of the citizenry from the state. We are using this space to create a platform for dialogue and awareness of what is happening to the Philippines as it continues to suffer the effects of the pandemic and the authoritarian state. There are currently 15 groups petitioning against the law at the Supreme Court. We call upon the international community to keep a watchful eye and to stand in solidarity with the country.


About this article:

This research on COVID-19 responses in authoritarian state settings was conducted between June and August this year as part of the ‘When Disaster Meets Conflict’ (Discord) project. The methods utilized include a desk review of secondary data sources and interviews with key informants who initiated locally-led/grassroots interventions between March 2020 and present in response to the impacts of the COVID-19 pandemic.

On the ‘COVID-19 and Conflict’ Blog Series: When Disasters, Conflict and COVID-19 Collide:

Responding to the international COVID-19 pandemic is particularly complex in settings of (post) conflict and/or conflict settings underpinned by authoritarian political regimes. In such scenarios, the national responses to the pandemic may be weakened, the infrastructure to respond adequately may be lacking, and power games may easily ensue where response to the pandemic get instrumentalized to serve political interests. To get a better grasp of the interaction and dynamics of top-down and bottom-up COVID-19 responses in such settings, research was conducted in seven different contexts over the summer of 2020, and the findings will be showcased on Bliss through several blog articles. 

The research underlying the blogs was facilitated by the Netherlands Organisation for Scientific Research (NWO) and made possible by a NWO grant (number 453-14-013). It is linked to the research project ‘When Disaster Meets Conflict’ (Discord) hosted at the ISS. More comprehensive findings of the case studies will be shared in different formats, including working papers or articles, on the VICI research webpage: www.iss.nl/whendisastermeetsconflict


[1] Bahaghari is a national-democratic organization of LGBT militants and patriots in the Philippines. It is struggling alongside oppressed people for national emancipation in the fields of economy, politics, and culture. (https://www.facebook.com/BahaghariLGBT/)

[2] Unyon ng mga Manggagawa sa Agrikultura (UMA Pilipinas) is the national progressive center of unions, federations, and organizations of agricultural workers in the Philippines. (https://umapilipinas.wordpress.com/)

About the authors:

Patricia Luzano Enriquez holds a Master’s degree in Development Studies, specializing in Social Policy for Development, from the ISS of Erasmus University Rotterdam. Her research interests and socio-political activism include intersectional feminism, gender, sexuality, human rights, and social justice. She is based in The Hague.

Martin Dacles is a scholar-activist specializing in disaster risk reduction, resilience building, and the localization of humanitarian aid, in Asia Pacific, Africa, the Middle East, and the Caribbean. He recently obtained his Master’s degree in Development Studies at the ISS of Erasmus University Rotterdam. Currently, he is based in Sint Maarten, the Caribbean as the DRR Delegate of The Netherlands Red Cross.

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Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

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JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.


In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.


Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3
A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.


1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.