First, fix what’s broke

Proponents of the return of capital punishment say the administration would not have resorted to Oplan Tokhang if the death penalty had not been abolished.

Recalling President Duterte’s explanation to us about the means to his end in his brutal war on drugs, I doubt if capital punishment would have stopped Tokhang in its first six months of implementation – Dirty Rody’s self-imposed deadline for ending the drug menace.

And the reason is the same one that prompted Du30 to resort to Tokhang in the first place: the weakness of the criminal justice system. This weakness inspired the administration to go for creative methods of enforcing the law. The same weakness will prevent Dirty Rody from seeing any convict executed during his six years in power.

Every death sentence will be automatically reviewed and all legal remedies thoroughly exhausted before anyone can be executed. I could be dead before any convict is killed by the state.

The weakness of the justice system is giving even some supporters of capital punishment misgivings about its restoration. They concede that under present circumstances, there is a wide room for miscarriage of justice. Cops plant evidence and justice is for sale, raising the possibility that fall guys will be executed while the guilty remain free to commit more crimes.

There are also valid concerns that like Tokhang, capital punishment will be applied mostly on the impoverished who can’t afford topnotch lawyers, and who are usually advised by state-assigned attorneys to just plead guilty to speed up their cases and get it over with.

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The last time capital punishment was in place in this country, from 1993 to 2006, seven convicts were executed.

Duterte gave opponents of capital punishment more ammunition when he said that if the supreme penalty would again be revived, he would make sure it would be implemented, with five or six executions daily, if possible by public hanging.

Fear can be effective as a crime deterrent, but like Tokhang, capital punishment could collapse if the system of justice is flawed and the innocent end up being executed.

Du30 can argue that countries with some of the lowest crime rates have capital punishment and do not hesitate to carry it out. These include Singapore, Japan and Taiwan.

In Southeast Asia, only the Philippines, Cambodia and Timor Leste have abolished capital punishment. All the rest have the death penalty, with drug trafficking included among the crimes covered.

Ignoring human rights concerns, Du30 may also cite Saudi Arabia as his role model for implementing capital punishment. The Middle Eastern kingdom has executed thousands, often by public decapitation, for crimes that include not just drug trafficking and terrorism but also homosexuality and witchcraft.

The President believes that if you have capital punishment, you better be ready to implement it, especially at the start when the state has to show that it means business.

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As in other penalties, however, capital punishment works when all the pillars of the justice system are also functioning efficiently.

Such is the case with Japan, Singapore and Taiwan. The Singaporeans like to stress the efficiency of their justice system when they carry out executions of convicted felons. As some Singaporeans have pointed out, legal procedures are strictly followed, which makes their cases different from the executions carried out on drug suspects under Tokhang and Double Barrel.

In our case, the criminal justice system is compromised from the start, with the recruitment process. Whether for cops, prosecutors and judges, the appointment and promotion system is not merit-based and is heavily politicized. Even the Judicial and Bar Council is strongly influenced by politics and those in power.

Local and national politicians enjoy the privilege of endorsing people, regardless of capability, for appointment to the police, prosecution service or judiciary. The Iglesia Ni Cristo, using its voting clout, has enjoyed the same privilege in the past. We don’t know if the INC enjoys the same influence over Du30, who professes to hate organized religion and does not owe his position to any religious group.

Congressmen, provincial governors and mayors often have a say in picking cops, fiscals and judges assigned to their turfs. This creates a debt of gratitude that proves useful in the case of political warlords who want their rivals or pesky journalists eliminated.

This also proves useful when the warlord engages in illegal activities such as smuggling, jueteng and, yes, drug trafficking. It also facilitates poll fraud and corrupt transactions.

Awareness of such webs of political patronage surely contributed to Du30’s decision to launch Tokhang and Double Barrel, short-circuiting the normal procedures of the criminal justice system.

Duterte has explained his preferred method several times in public. If a person is a notorious drug dealer, he still must be caught in the act of trafficking, or at least linked by a credible witness to the operation of a shabu laboratory or marijuana plantation. If the dealer is stupid enough to be caught with some drugs without selling the stuff, he can be pinned down merely for possession.

With drug money, the suspect can surely afford a good lawyer, who can dismiss any witness testimony as hearsay and even pin down the police for violations in conducting an arrest or a search and seizure operation.

If the suspect is the local political kingpin, any drug trafficking case against him will be tossed out at the inquest fiscal’s level.

With thousands of such officials in Du30’s so-called narco list, what can he do to fight back?

He can implement his own version of capital punishment. Restoring the death penalty can’t be more lethal. But the restoration will be snagged by the same flaws that doomed Oplan Tokhang: the system and those tasked to implement the program are compromised.