Opinion FORMATION GARY OLIVAR
Chinese puzzles LAST May, I wrote a piece criticizing the Honorable Senior Associate Justice of the Supreme Court, Antonio Carpio, for wading into the fray over our maritime dispute with China with his unsolicited advice to Duterte about how to be a president. The other day, there was Carpio again, this time at a forum on the China dispute organized by StratBase’s Dindo Manhit, in the company of PNoy’s former Foreign Affairs Secretary Albert del Rosario. Both men may fairly be described as the parents of the UNCLOS arbitral ruling in our favor. This is an unenforceable international court judgment that nonetheless the two of them regard as some kind of magic wand, which if they waggle vigorously enough at the Chinese bogeyman will somehow make that recently-conjured monster disappear from the West Philippine Sea. This time, Carpio went even farther and accused the President outright of lack of strategy in dealing with the Chinese on this issue. In his own lofty words, it’s a foreign policy “without discernible direction, coherence or vision…[that] relies more on improvisation than long-term strategy.” *** Well. Those are fighting words. And so, what would constitute an acceptable strategy to Carpio’s thinking? Perhaps arguing homologically, the honorable SAJ a p p r ov i n g ly cited the case of Nicaragua. After that country won a ruling from the International Court of Justice stating that the US had violated international law by supporting the right-wing “Contra” guerrillas, Nicaragua every year sponsored a resolution in the UN General Assembly that would require the United States to pay reparations. Every year the support for the US dwindled, until in the final vote only two allies remained (Israel and El Salvador). But did the US end up paying? Not on your life, and for a very simple reason: The US enjoyed the veto power of a Security Council permanent member—the same veto power, by the way, that China also enjoys. So what kind of strategy is Carpio proposing when there isn’t even a meaningful victory within reach? Whether legally in the UN or militarily in battle, who’ll be willing or able to enforce that ruling against a country like China? *** The military angle crossed my mind often while I was listening to Victor Corpus hold forth on the same issues the other day at a kapihan in Kamuning Bakery, the increasingly iconic pet project of Philippine Star columnist Wilson Flores. Most people are aware of the colorful battlefield history of the former PMA instructor turned NPA commander turned AFP general. But fewer may know that Vic also earned a graduate degree from Harvard, in the Kennedy School program. When it comes to foreign policy and security strategy, I’ll take his advice any day over that of a Supreme Court associate justice, no matter how senior. There is, in fact, a strategic framework for Duterte’s actions
on the South China Sea. It starts with the fundamental reality of geopolitical conflict between the United States and China in our region. China believes it is being slowly encircled by the US and its allies, primarily through the movements of US surface and submarine naval forces. This encirclement threatens its access to oil and other vital commodity imports through the Malacca Straits, the only available shipping lane to China from the Middle East. Encirclement also exposes China’s coastal cities to a possible first strike from US nuclear submarines running deep within the Marianas trench. Recent and current US pronouncements and actions provide prima facie evidence for this encirclement theory. Whether or not this evidence precludes reasonable doubt is immaterial. The perception by China is what matters, because that is what it acts from. *** And so, believing its very survival to be at risk, the Chinese state has been fortifying its defenses, including islands that we and other countries are disputing with them. It isn’t oil, or fishing, or underwater methane that primarily motivates these fortifications. Neither is the Philippines, or Vietnam, or any other neighbor capable of provoking them as sharply as Chinese President Xi intimated, when he told Duterte to his face that China would go to war with the Philippines if we tried to force the issue. The perceived existential threat posed by the US Navy in the waters surrounding China is what truly has them on edge. In that light, nothing we could say or do against them will deter the Chinese, not when they believe their very survival is at stake. And even if we were so minded, we can rely neither on our own immature military capabilities nor on the hedged US intervention ostensibly promised by our mutual defense treaty with that country. This is why Duterte has chosen to pursue the only options afforded to him by this strategic view: leverage our geopolitical position to extract economic concessions from the Chinese, on one hand, while building up our own military capabilities over time, on the other—and that includes fortifying the islands that we do control, no different from the Chinese. Getting the country militarily into shape may require innovations like restoring ROTC, or drafting college graduates into two- or three-year compulsory military service, as Israel and South Korea do. If that happens, it will be interesting to see how all those keyboard war freaks in this country will react. *** The President, like Justice Carpio, is a lawyer. But, unlike Carpio, he appreciates that realworld battles are not confined to courtrooms. And also unlike the SAJ, he is responsible for the well-being of the entire country, not just the well-being of this or that court ruling, regardless of its authorship.
Who will be willing or able to enforce that ruling against a country like China?
Readers can write me at gbolivar1952@yahoo.com.
The United States, which the government of Noynoy Aquino wrongly believed would back up its territorial claim, has not was never a party to the pro- done anything to enforce the UN ceedings and has basically dared body’s decision—nor is it likely anyone to enforce it after it was to anytime soon. Meanwhile, Duissued.) terte came into power, unveiling a
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The year after BACK CHANNEL ALEJANDRO DEL ROSARIO IT HAS been a year since the Permanent Court of Arbitration in The Hague ruled in our favor that parts of the South China Sea are within our territorial waters. But the Duterte administration’s soft approach to the issue was not to pressure China into accepting the Hague Tribunal ruling. “I was aghast that the President used the words ‘setting aside’ the favorable Hague ruling, “said Supreme Court Senior Associate Justice Antonio Carpio, when he spoke at a forum marking the first anniversary of the landmark decision. The raison d’ etre of this socalled soft approach was to save a big power like China from losing face in the international community. But what did we get from Beijing in return? Aside from the easing of restrictions on our banana exports, Filipino fishermen were able to return to traditional fishing grounds in Panatag Shoal. Big deal. Chinese patrol boats still ply the waters within our territory although they don’t drive away our fishermen anymore. What about those billions of pesos China infused into the Philippines’ ambitious Build, Build, Build infrastructure program? Everything has its price. Duterte may dislike foreign aid with strings attached. Still, the
Official Development Assistance be it from China or other countries has its quid pro quo in many forms, including looking the other way if the donor is encroaching in our backyard or fencing us with their military bases. We got rid of the US bases in Subic and Clark only to allow another foreign power in. While Manila can thank Beijing for the assistance, it should be seen in its proper light. This is an appeasement present a lover gives to his mistress in exchange for staying on as the other woman. Economic experts believe that if the Philippines pursues The Hague ruling, it would reap bigger returns to be drawn from the exploration of oil and gas in the West Philippine Sea. Meanwhile the Chinese continue to fortify their man-made islands with military installations even as we adopt a policy of appeasement. This can only whet the appetite of an unsatiable neighbor. We wonder what advice or counsel our Philippine ambassador to Beijing, Chito Sta. Romana, is giving to the President vis-à-vis bilateral relations with China. Hardeep Singh, chairman of the Research and Information Development, warned the Philippines and other members of the Association of Southeast Asian Nations to be cautious in accepting financial aid from China. Speaking at a recent forum with Asean journalists in New Delhi, Singh Puri said developing countries should take advantage of China’s loan assis-
tance but must make sure they can pay over the years and that these infrastructure projects are viable. There are many shortcomings in the past Aquino administration but filing a case before the Hague Tribunal to challenge China’s sweeping claim of the South China Sea has to be its one of, if not its only, major accomplishment. Unfortunately, Duterte might have imperiled the country’s security and squandered his own political capital by snuggling up to China. Only time will tell if it’s the right policy to play up to China while disengaging from traditional allies like the United States and the European Union with whom we do much trade. Security, trade and high esteem in the international community are not achieved by narrowing our friends and multilateral relations. How will Duterte explain or justify this benign neglect of our victory in the Hague Tribunal when he delivers his second State of the Nation Address before a joint session of Congress on July 24? For sure, we will witness the nodding heads and rounds of applause by the Duterte-dominated House of Representatives. To do so would entail the plus and minus of such a policy, including an accounting of the financial assistance granted by China to defray the staggering cost of the administration’s ambitious infrastructure projects. But because we have the masses who can relate to Duterte’s “kanto boy” antics and
language, the conscripted Social Weather Stations and Pulse Asia surveys will still come out with Digong enjoying high acceptance ratings. Such is the state of affairs in this country. The people get the kind of leaders they deserve. Flirting with Russia No, we are not talking about Duterte’s flirting with Vladimir Putin. From what is emerging in the current controversy over the Trump campaign team’s dalliance with a Russian operative, things could get messy. No one in Washington is saying the “I” word yet by political opponents of President Donald Trump and critics like the New York Times. But impeachment, if the allegations are proven that Donald Jr., son-in-law Jared Kushner and Paul Manafort who are key members of the Trump campaign team, met with Russian lawyer and Kremlin operative Natalia Veselnitskaya to get dirt to derail Hillary Clinton’s White House bid, is a possibility. The meeting according to the NYT report took place at the Trump Tower in New York If Trump is not impeached for tainting a sacred American political process, he just might go the way of former President Richard Nixon who had to resign because of his role and cover-up in the break-in of the Democrat headquarters in the Watergate apartment complex in Washington. Like Gerald Ford, Vice President Mike Pence might suddenly find himself in the Oval Office.
Martial law espresso (2) imminent (required by the 1935 Constitution) but actual and necessary (as required by the 1987 Constitution). Since the requirement is actual, the President cannot declare martial law in other places by simply anticipating that the rebels could be going to these other places, or a “spillover.” This is why, Carpio agreed with martial law in Marawi only and not for the entire Mindanao because there is not actual rebellion –yet—outside Marawi. Because of the above restrictions, I liken Duterte’s martial law in Mindanao to coffee espresso—coffee dispensed in a small cup, seemingly strong (in coffee flavor) but with lesser coffee content than a regular cup of coffee. I also call it martial law express—in the manner restaurant chains, supermarket chains, and even banks call their small or ad hoc branches “express”— a small unit operation without the whole menu of services or products offered by their regular branches. In his dissenting opinion, Senior Justice Antonio Carpio offers even more restrictions. “The 1987 Constitution does not automatically vest significant additional powers to the President under a state of martial law or suspension of the privilege of the writ. However, a declaration of martial law or suspension of the privilege of the writ has a built-in trigger mechanism for the applicability of other constitutional provisions that may lawfully restrict the enjoyment of constitutional rights, provided there are existing laws specifically authorizing such restrictions,” Carpio writes in his 13,500-word dissenting opinion. Carpio pretends to raise the specter of a Marcos-era martial law then proceeds to contradict
himself, in very fine and cogent language. He recalls: “When President Ferdinand Marcos declared martial law in 1972 under the 1935 Constitution, he abolished Congress, shut down media, imprisoned leaders of the political opposition, packed the Supreme Court with his law school classmates and loyalists, and ruled by decree - thereby making himself a dictator for over 13 years until the people ousted him from power in 1986.” Duterte salivates at having such a Marcos-type martial law, saying his martial law “will not be any different from what Marcos did.” Unfortunately, the 1987 Constitution does not allow him to back that rhetoric with action. Carpio reminds the President: “The review power of the Court, as well as of the Legislature, on the Presidents exercise of his Commander-in-Chief powers was precisely written in the 1987 Constitution as a checking mechanism to prevent a recurrence of the martial law of Marcos. The 1987 Constitution further mandates that a state of martial law does not suspend the operation of the Constitution. It is apparent that President Duterte does not understand, or refuses to understand, this fundamental principle that forms part of the bedrock of our democracy under the 1987 Constitution, despite his having taken a solemn oath of office to “preserve and defend the (1987) Constitution.” With his martial law, Marcos was able to take over enterprises like public utilities (power plants, radio-television stations and telephone companies) and businesses like banks and didn’t return them to their original owners until his ouster in 1986. Under the 1987 Constitu-
tion, the President can take over business enterprises like power plants, television stations, and businesses affected with public interest—but he needs a law from Congress to do so. Marcos never needed a law; he simply produced his own law or decrees. Today’s President cannot do that. Moreover, Carpio notes, “counsel for petitioners (Lagman et al) and the (Solicitor General) share the view that martial law under the 1987 Constitution does not significantly give the President additional powers. Indeed, there are only incremental accretions of power that automatically attach under a state of martial law. The significant additional powers that the President can exercise under a state of martial law require laws to be enacted by Congress.” Finally, there is now a law which places members of the Armed Forces of the Philippines and the Philippine National Police under the jurisdiction of civilian courts (not military tribunals) for abuses or offenses committed in the performance of their duties. Notes Carpio: “To date, no statute confers jurisdiction on military courts and agencies over civilians where civil courts are unable to function. On the contrary, Republic Act No. 705562 even strengthened civilian supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees promulgated during the Marcos dictatorship.”
into law by state legislatures. That will not preclude our regional legislatures in the Philippines from enacting commercial laws (once more, it matters little whether they will be called Acts or Ordinances because their statutory status will be clear) that address the particularities of a region. Where indigenous communities live side by side with Filipinos absorbed by main-stream culture, then it may be necessary to provide
for transactions between indigenous communities and others—and these may include the codification of customary law that, in turn, will call for very serious and studious anthropological research. One criterion in American jurisprudence that will certainly be inapplicable in a federal Philippines is the doctrine of “original powers” that can be summarized thus: When a power of the United States is one that the states originally possessed, then the US Congress cannot trump such power by federal legislation. In the Philippines, states or regions have no original powers, be-
cause they were not original configurations. The United States was formed from colonies turned states surrendering some of their powers—though not all—that the United States might exist. Not so, in the case of the Philippines, for what was original is Las Filipinas that was a Spanish colony, the Republic that declared its independence in 1898 and was “granted” independence by the United States in 1946. Another factor that will of crucial importance is that some resources will be found in one or the other region that are vital to the national economy: Consider hydroelectric,
geothermal or other sources of renewable energy. But all of this is really part of that greater challenge about determining the extent that we go federal—and the salutary realization that there is no fixed formula for a federal republic, that tough decisions, forged by listens of history as well as the pressures of contemporary life that militate against crippling tribalism, must be made about devolution, decentralization and empowerment.
policy of strengthening ties with all countries, especially our neighbors (to include China and Japan) for the economic benefit of all. This is where diplomacy is different from the law. If Duterte, who is himself a lawyer, was not also a realist politician,
he would have harped on the ruling instead of deescalating the brewing conflict with China and ushered in improved economic cooperation that benefits the people of both countries. I have always wondered why there are still those who believe
that the Philippines cannot have good relations with everyone, especially since going to war with any other country is definitely not an option for us and when those good relations benefit us economically. And I am glad that the Philip-
pines’ foreign policy is no longer in the hands of those who think the law is more important than peace and prosperity, especially if the law cannot be enforced without us—and probably us alone—waging a war that we will never win.
VIRTUAL REALITY TONY LOPEZ CAN President Duterte declare martial law in the manner Ferdinand E. Marcos did in September 1972? The answer is no. This is because under the 1987 Constitution, martial law is limited by three things, as enumerated in the dissenting opinion of Chief Justice Maria Lourdes Sereno in the Supreme Court’s 11-3-1 July 4, 2017 decision finding factual and constitutional basis for Dutere’s May 23 martial law declaration (Proclamation 216) in the whole island of Mindanao. The three restrictions: One, the ability of Congress and all legislative assemblies in the country to legislate or enact laws. With this ability, the rule of law prevails. Two, the continuing operation of all civil courts which cannot thus be supplanted by military courts. With the operation of civilian courts, the Rules of Court continue to be applicable. Three, the ban against arbitrary arrests. In general, no one can be arrested without an arrest warrant. The military can arrest a suspect for rebellion without warrant but it must be for his immediate prosecution and he must be charged within three days (36 hours without martial law). This kind of arrest without warrant is like arresting a suspect who is being arrested for committing a crime in the presence of the arresting officer. Under Philippine law, rebellion is reckoned as a continuing crime. Also, rebellion must not be
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