Displaying items by tag: opinion

On Congress and martial law, 2 words: ‘Duty’ and ‘review’

What is assigned to Congress is not just a discretion to revoke or not to revoke President Duterte's martial law declaration but a positive duty to review it

by Emil Marañon III

There has been a chorus of demands from the public for President Rodrigo Duterte to disclose the “factual basis” of his declaration of martial law. He, however, has no constitutional obligation to publicly disclose this in full – vague and generic reasons to assuage public curiosity, yes, but not sensitive information, which could potentially put in danger not only the success of the operation but also the lives of our soldiers fighting on the ground.
The President, however, has a duty to fully disclose his factual basis to Congress, which, under the Constitution, has the automatic duty to revoke, validate, or extend the period of martial law. Thus, to properly decide on the propriety of the declaration, it is essential that all members of Congress – both the House of Representatives and the Senate – have to be informed of the full basis of the declaration so that they can properly decide their course of action.

President Rodrigo Duterte issued Proclamation Number 216 is the second martial law declaration in the post-dictatorial Philippines, the first being the 8-day martial law declared by former President Gloria Macapagal-Arroyo in the province of Maguindanao on December 4, 2009, after the infamous Ampatuan Massacre. Duterte's proclamation declares a state of martial law and the suspension of the privilege of the writ of habeas corpus in the Mindanao group of islands for a period not exceeding 60 days.

Malacañang photo

Malacañang photo

After a martial law declaration, Article VII Section 18 of the 1987 Constitution requires that the following procedure should be done:

Within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress.
Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
“The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session,may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

President Duterte’s written report to Congress was handed to Senate President Aquilino Pimentel III and House Speaker Pantaleon Alvarez on May 25, during a special Cabinet meeting in Davao City. While the submission of the President’s written report complied with the 48-hour requirement in the Constitution, the House of Representatives, through Majority Leader Rudy Fariñas, announced that since the President intends to “send [his] report to Congress in writing…there will be no need for [Congress] to convene tomorrow (May 25) or Friday (May 26).” (READ: No joint session on martial law? Congress 'shields' Duterte)

The nature of this convening requirement has fortunately already been passed upon by the Supreme Court in Fortun vs. Gloria Macapagal-Arroyo (GR Number 190293, March 20, 2012), the suit involving the constitutionality of the aforementioned Maguindanao martial law.

In the case, the Supreme Court characterized Congress’ power to revoke and extend a martial law declaration as an “automatic duty to review and validate or invalidate.” These operative words must be noted: “automatic duty” and “review.”

First, the power of Congress is in the nature of a “review,” meaning the authority to re-examine, revise, or consider for purposes of correction (Black's Law Dictionary). This would translate to Congress’ authority to pass upon the declaration so that, in the end, it can invalidate, validate, or extend the same.

In contrast with the Supreme Court’s power of review, which is confined to the “sufficiency of the factual basis,” the scope of Congress’ review is fuller and unfettered, covering not just its factual basis, but its propriety, proportionality, and even its plain wisdom.

Thus, in the Maguindanao Martial Law case, the court noted that, under the 1987 Constitution, the power to proclaim martial law or suspend the privilege of the writ is no longer the sole and exclusive prerogative of the President, but now exercised “in tandem” with Congress, “sequentially” and “jointly.” Sequentially and jointly because “after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.”

File photo by Mara Cepeda/Rappler

File photo by Mara Cepeda/Rappler

Second, the review of Congress of the President’s martial law declaration is an “automatic duty.” This means that what was assigned to Congress was not just a discretion to revoke or not to revoke, but a positive duty to review. This would mean the duty to summon evidence on the factual basis, examine them, and, in the end, make its own independent judgement on the propriety of the declaration.

And the review is automatic, because no one needs to file anything to trigger the review powers of Congress. By the mandate of the Constitution, Congress has to instantaneously convene when it is in session, or within 24 hours following the proclamation or suspension if it is not in session, without need of a call.

The matter of revoking a martial law declaration is one of the strange scenarios in the 1987 Constitution where the members of the House of Representatives and the Senate are voting “jointly.” I say strange in the sense that the 24 incumbent senators would be mixed with 292 members of the House of Representatives during voting, rendering the Senate virtually irrelevant.

In the Maguindanao Martial Law case, the Supreme Court ruled that Congress’ power to review a martial law declaration takes precedence over its (SC's) own review. While some justices dissented and asserted that the Supreme Court’s power to review is independent from Congress, the majority went on to rule the following:

“Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart.

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If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis.”

Would this mean that those who intend to question a martial declaration before the Supreme Court have to wait for Congress to be in default before they can do so? When exactly can we say that Congress is already in the state of procrastination or that it already failed to fulfil its duty? Does the failure of Congress to convene within 24 hours (as in the case of the present Congress) already qualify as procrastination? These are confusingly vague standards that the Supreme Court can hopefully clarify, if not further redefine, in the future.

Now that martial law has been in place in Mindanao and the President has sent his report, the ball is in the hands of Congress and the Supreme Court, which, under the Constitution, are tasked to keep the President’s power in check. It must be recalled that the Marcos martial law came to be, along with its horrors, precisely because these two other great branches of government failed us. Congress handed its full powers to Marcos in a silver platter and the Supreme Court coalesced with the dictator. In their failure, the country burned to the ground and until now we still struggle to pick ourselves up from those ashes.

Today, we look up to them again, Congress and the Supreme Court, hoping that this time they will be on our side. – Rappler.com

Emil Marañon III is an election lawyer who served as chief of staff of former Comelec Chairman Sixto Brillantes Jr. He completed his LLM in Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.

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Duterte’s China policy shift: Strategy or serendipity?

President Duterte’s strategy of de-emphasizing and compartmentalizing, while not abandoning, the territorial and maritime issues, is a wise move that can pay off if done smartly

Aileen S.P. Baviera

Close to marking its first year in office, the Duterte administration has turned around the country’s relations with China in a number of ways. Departing from the previous government’s strong opposition to China’s expansive claims and assertive actions in the South China Sea, President Rodrigo Duterte has downplayed the territorial and maritime disputes in favor of pursuing close economic and political ties with China.
This shift has been rewarded by pledges of major fund infusions in support of the Philippine government’s infrastructure development, with a long wishlist of construction projects (including roads, bridges, railways, industrial zones, ports, flood control, etc.) now in the pipeline or in various stages of negotiation. Filipino fishermen have started returning to their normal fishing activities in the vicinity of Scarborough Shoal, albeit under close watch by Chinese Coast Guard vessels.

Instead of China’s past efforts to diplomatically isolate the Philippines after Manila filed an arbitration suit seeking to protect its own maritime entitlements under international law, it now sees the Philippines as a welcome partner in its major diplomatic initiatives such as the Asian Infrastructure Investment Bank and the Belt and Road Initiative (BRI). China has also apparently come around to the idea of signing with ASEAN a Code of Conduct to regulate activities in the South China Sea, although at best that is still bound to be a protracted process (and at worst, an exercise in futility).

While island construction activities in the reefs held by China continued unabated, including on Mischief Reef which the arbitration ruling acknowledged to be subject to the Philippines’ EEZ rights, there have been no reports of major provocative actions that had become almost daily media fare in previous years – PLA-Navy and Coast Guard presence, military exercises, harassment and intimidation of other countries’ resource-related activities, massive fishing and coral reef destruction, oil rig challenges, psychological warfare conducted through official media mouthpieces, and the like.

No new construction activities are under way on Scarborough Shoal, which some would attribute to the United States and Philippines signalling that this would be a “red line” that China would do best not to cross. Instead, official channels of bilateral dialogue between Manila and Beijing have resumed and new ones have opened up, including early resumption of discussions on the dispute itself as announced during Duterte’s second visit to Beijing (May 13-15) to participate in the BRI Summit.

Can relations between Manila and Beijing truly have transformed overnight, considering how close the two governments came to the brink of outright hostility just a little over a year ago? Can the definition of the two nations’ vital interests change so drastically that they can simply turn a new page in history and start on a clean slate? Or do the goals remain the same – even though the strategies taken by both sides have taken a significant turn?

Duterte’s strategy of de-emphasizing and compartmentalizing, while not abandoning, the territorial and maritime issues, is a wise move that can pay off if done smartly.

By delinking economic relations from management of the disputes, Manila can benefit from economic links with Beijing at a time when sustained high growth and investor confidence in the Philippines coincides with a massive drive by China to invest in global infrastructure buildup and trade, industrial and financial connectivity programs as part of the BRI. The challenge will be to see that China itself separates the two aspects of relations, since we have seen it try to use economic leverage in the past (via travel bans and suspension of banana imports) for political ends.

Duterte’s shift in China policy also reduces what used to be open disagreement within ASEAN over handling of the disputes in the relations with China, but at the same time forces some of the other stakeholders (including some who were free-riding on the Aquino administration’s efforts) to shoulder more of the responsibility to ensure progress on the issue, thus easing pressure on the Philippines.

Fortuitous developments

Despite some minor revision, security and other relations with the US remain strong, being highly institutionalized, while security cooperation with Japan and other countries are growing. Military-to-military contacts with China, which were quite active during the Ramos to Arroyo administrations, have also resumed, hopefully leading to renewed confidence-building and reduced risk of miscalculation.

MEETING WITH XI. President Duterte bares details of a meeting with Xi Jinping to prove to critics he isn't scared of China. Presidential photo

MEETING WITH XI. President Duterte bares details of a meeting with Xi Jinping to prove to critics he isn't scared of China. Presidential photo

The policy shift may or may not reflect a fully thought-out strategy, but thus far its relatively successful outcomes have also relied on fortuitous developments well beyond Duterte’s control. Serendipity played a role.

One factor was the hard-won arbitration ruling itself, which came within the first twelve days of Duterte’s taking the helm of government. The favorable ruling for the Philippines is now part of international jurisprudence, whether the Duterte government pushes for full compliance now or later. Because the ruling is final and binding, Manila is as much duty-bound as China is, to comply with it and see it through. Aquino’s successful “lawfare” (or legal ‘warfare’) has opened a new platform for management and resolution of the disputes, one that the current or any future governments of the Philippines and China should pursue (preferably sooner rather than later, but when conditions are favorable), if they are genuinely committed to rule of law in the international system.

The second serendipitous event was the election of US President Donald Trump. China-US relations had been moving in a dangerous downward spiral, and in the course of Washington’s supposed show of support for its Philippine ally, Manila’s disputes with Beijing ran the risk of becoming less about the former’s maritime rights and resource entitlements and more about major powers’ competition for influence and right to conduct military activities at sea. With Trump at the helm, and considering his administration’s yet unclear foreign policy towards China (other than seeking China’s help in constraining North Korea’s renewed belligerence), Beijing has reason to act more studiously and with greater caution in the South China Sea. After all, Trump may provide opportunities for China to attain strategic gains even larger in importance than control of the South China Sea (perhaps leading to its aspiration for a “new type of major country relations”). On the other hand, because US commitment to engage in the South China Sea is also unclear under Trump (whether on behalf of allies or purely on its own behalf), the Philippines has reason to push the thought of military solutions to the backburner and return to a mainly diplomatic track.
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The third fortuitous development for Duterte is Xi Jinping’s launch of the bold and ambitious “Belt and Road Initiative”. BRI is a major campaign for China-led economic, industrial, financial, technological, and sociocultural connectivity (mainly through infrastructure support) that would link 65 countries from Asia, Europe and Africa, ostensibly to spur development and growth in light of the slow recovery of the global economy from the 2007 crisis. It is also intended to stimulate growth in China’s backward frontier provinces, and to put China’s excess manufacturing capacity and foreign currency surplus into profitable use.

Good fortune for Duterte

The successful implementation of the program will elevate China further into the ranks of leading countries, but it relies as much on China’s powers of persuasion, soft power diplomacy and internationalist credentials as on its massive financial resources.

This will likely translate into China downplaying nationalist emotions and territorial claims, or restraining military adventurism, possibly giving Duterte breathing space both for repairing relations with China, and reorienting the alliance with the US away from a China focus and towards what he feels are more convergent objectives at the moment.

The overall interests of both China and the Philippines may not have changed, but the (rather serendipitous) changes in circumstances unarguably paved the way for adjustments in Philippine strategy in directions preferred by the new President, and no doubt by China.

If the 3 factors I mentioned together represent a spate of good fortune for Duterte, I dare argue that China, too, has serendipity to thank, for allowing it an opportunity to pull back from the brink and change course. Whether China fully makes use of this opportunity or not is still an open-ended question, but the opportunity is there.

For China, good fortune’s name is Duterte. But that’s another story.

The author is a professor at the Asian Center, University of the Philippines and president of Asia Pacific Pathways to Progress Foundation.

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Why solidarity with Mindanao requires opposing martial law

We need to block rather than support Duterte’s martial law in Mindanao in order to pave the way for a different kind of peace that will not just benefit Mindanaoans but all Filipinos 

 by 

Herbert Docena

As with their "war on drugs”, Duterte and his army of enablers are trying to rally support for martial law and their own version of the "war on terror" by claiming that, just as there is no other way to help and support victims of drug-related crimes but to curtail people's rights and exterminate drug peddlers/dependents, there is now no other way to help and support the victims of "terrorism" in Mindanao but to curtail people's rights and liquidate the "terrorists." Those who support martial law are the only ones who "care" about the people of Marawi; those who are against it are on the side of, if not in cahoots with, the "terrorists."

This is of course not only dishonest but ridiculous. We oppose martial law precisely because we stand in solidarity with the people of Mindanao, and because we know that martial law will not help but only harm, and indeed, terrorize them – ust as so many people from Mindanao themselves have said (See statement from over 20 Mindanao-based groups below, for example).

Duterte's "war on terror" will only allow and embolden state forces to perpetrate even more human rights violations against all those they suspect as the "enemies" and we know that, despite all the legal restrictions imposed on them on paper, they will tag and treat as enemies even ordinary civilians. It is bound to create or reinforce a climate of impunity that is likely to result in so many illegal arrests, arbitrary detentions, disappearances, torture, and other atrocities that, instead of resolving the conflict, will only drive even more people – the sons, daughters, brothers, sisters or friends of those they terrorize or slaughter – to join rather than reject the likes of the Maute Group, thus further perpetuating rather than ending the conflict.

 

We – and many people in Mindanao, especially – know this from experience (and common sense): Marcos also imposed official martial law in Mindanao in 1972 (and successive regimes imposed 'unofficial' martial law after) but, instead of ending the violence, their own wars of terror only led to more blood and tears. Instead of eliminating the "enemies," official and de facto military rule only drove many Moros and lumad to join, and fight with, the various resistance groups in the region.

The root of all the violence and suffering in Mindanao is all too clear (despite so many governments' attempts at Filipino-nationalist historical revisionism): The emergence and persistence of groups such as the Abu Sayaff or the Maute group – their continuing ability to draw recruits and keep fighting – has been the consequence not just of the spread of irrational ideologies such as "Islamic fundamentalism" nor of conspiracies hatched by the United States. It has been the result of the abject failure of all previous negotiations agreements between the government and various Moro/Muslim and other groups in Mindanao (the MNLF, MILF, etc.) to improve the conditions of life in Mindanao and to guarantee real as opposed to bogus autonomy to the Moros and lumad.

Those agreements failed, in turn, because politicians, landowners, capitalists, military generals, and other elites from the northern Philippines (and from other countries) have refused to give up even just a small portion of the vast lands and resources they took from the Moros/Muslims/lumad from the 19th to the 20th century through state-sanctioned land grabs and resettlement programs (itself an attempt to pacify all those whose lands they grabbed in the Visayas and Luzon).

“Conflict" has continued because instead of simply acquiescing as they were effectively subjected to colonial rule by Filipinos, the Moros/Muslims/and lumad organized themselves and formed various groups (the MNLF, MILF, etc), to fight for their rights – groups that, because their oppressors used arms and violence to subdue them, also felt compelled to use arms and violence to fight back. The history of Abu Sayyaf and Maute groups are nebulous, but available information suggest they were formed largely by rebels who felt betrayed after the government failed to deliver on its promise to grant them real autonomy, and who feel that they could only finally achieve their goals by fighting for an independent (and 'Islamic') state.

Oppression breeds resistance

It's easy to think of them as just dupes or stooges of ISIS (or of the CIA), but what more likely happened is that, isolated and desperate to attract support, they only adopted the language and ideology of ISIS (and perhaps accepted resources from them and other groups) in order to pursue their own homegrown goals. We may disagree with (and we should condemn) their methods, but it would be inaccurate to dismiss them all as mere "bandits" or "terrorists."

Oppression always breeds political resistance, and political resistance comes in many – sometimes ugly and detestable – forms.

This is why the "war on terror" now being being waged by Duterte – and being justified by his army of enablers – will not actually help but only further harm, and terrorize, those they claim to "care" about. Unable to once and for all pacify Mindanao, Duterte is once again unleashing the swords of war in yet another attempt to once and for all open up Mindanao to local and foreign investors and foster capital accumulation – something he could not quite do for as long as armed groups continue to fight the state.

But even if Duterte captures, tortures, or slaughters all the members of the ASG/Maute and other groups – just as Marcos and his henchmen tried to capture, torture, or slaughter members of the MNLF/MILF/etc in the 1970s, many of their sons and daughters will simply replace them, and much of Mindanao will only continue to be a valley of blood and tears, for as long as the injustices committed against the Moros/Muslims/lumad (and landless Christian settlers) in the region are not corrected.

The kind of military “solution” that Duterte is now pursuing—the same solution that Marcos (and Erap, GMA, etc) before him pursued, will therefore not work to end the violence; what's needed instead are political solutions – the same ones that Cory, FVR and others tried to pursue but ultimately failed to deliver. 

What's needed is for the government to conduct earnest and honest peace negotiations with the various armed groups in the regions and be willing to finally respect rather than suppress the right to self-determination of the Moros/Muslims/lumad in Mindanao. And the enemies or the "spoilers" here, let us be very clear, are not the oppressed but the landlords, investors, generals and other elites who, seeking to hold on to their stolen property, would rather that Mindanao continues to be ruled as a de facto colony.

There is another way to help, or be in solidarity with, the people of Marawi and the rest of region – just as there is another way to help, or be in solidarity with, drug dependents and the victims of drug-related crimes. 

We need to block rather than support Duterte’s martial law in Mindanao in order to pave the way for a different kind of peace that will not just benefit Mindanaoans but all Filipinos: the peace of the free and living, not the peace of the muffled, nor the peace of the graveyard. – Rappler.com

Herbert Docena has a PhD in Sociology from the University of California, Berkeley. He is a member of #BlockMarcos and the Bukluran ng Manggagawang Pilipino, but his views do not necessarily represent said organizations.

 
 
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