Why Mindanao lawyers have qualms about martial law

MANILA, Philippines – With martial law in effect in Mindanao, lawyers who come from or have been working in the region have concerns with the authorization of warrantless arrests under martial rule.

President Rodrigo Duterte has ordered the suspension of the privilege of the writ of habeas corpus which allows the military to, under guidelines, arrest individuals they suspect to be involved in the rebellion in Marawi City.

Jamal Latiph Hadjiusman of the Philippine Muslim Society, a Maranao lawyer who was born and raised in Marawi City and obtained his law degree from the Mindanao State University (MSU), said the history of militarization of conflict zones in Mindanao is where a certain extent of distrust in the army comes from.

The presence of military in conflict zones in Mindanao has been marred by accusations of abuses including rape.

"We've been militarized since time immemorial. Takot kami sa mga sundalo dahil marami kaming naranasan na karahasan but the thing is dahil malayo kami, kaunti lang ang nagsasalita para sa amin, NGO o media," Hadjiusman told Rappler in a telephone interview.

(We've been militarized since time immemorial. We fear the soldiers because of our experience of abuses and the thing is because we're far away, there were only a few to speak out for us, whether it be a non-government organization (NGO) or the media.)

One of the NGOs which have emerged in recent years is Balay Alternative Legal Advocates for Development in Mindanaw or Balaod Mindanaw which, through seminars and community dialogues, legally empowers marginalized group in Mindanao.

Lawyer Normita Batula, the group's executive director, has lived and worked in Cagayan de Oro City for 17 years now. For her, there is still a gross lack of legal awareness among sectors in Mindanao that might result in other groups taking advantage of the situation.

Batula explained that aside from the armed conflict that stems from terror groups and communist rebels, Mindanao is also facing threats from groups who want to take away land and exploit the environment. (READ: Who's who in Duterte's martial law)

"What if other groups, other than the government, i-maximize ang sitwasyon na magkaroon ng violence, encounter, mag take advantage sa sitwasyon, mga opposed sa land rights and environment? Puwedeng hindi government ang gumawa," Batula told Rappler in a telephone interview.

(What if other groups, other than the government, would maximize the situation and perpetrate violence, and take advantage of the situation, like those opposed to land rights and environment? It's not just the government who can do that.)

Batula added: "The basic understanding of rights is the problem. Even an educated person doesn't understand the nitty gritty of their rights under the martial law; what more the uneducated, poor people here?" (READ: Questions you need to ask about the martial law in Mindanao)

Warrantless arrests

Warrantless arrests have already started in Mindanao checkpoints, with martial law implementor General Eduardo Año, the AFP chief of staff, saying individuals can be subjected to questioning especially if they cannot provide identification.

Last week, around 250 individuals were 'rounded up' in Davao City because they did not have IDs. They were released eventually.

It's things like these that worry the lawyers.

Hadjiusman said that there are hundreds of thousands Mindanaoans who did not finish school and do not have any form of identification. These are also the same people who only know how to speak their dialects.

"Kung wala kang ID, pwede kang pagsuspetyahan, may language barrier, sabihin nila probable cause. Buti kung isa kang college student, lusot ka, you show your ID," Latiph said.

(If you don't have an ID, they can suspect you, then there's language barrier which can lead them to say there's probable cause. You're okay when you're a college student, you can show your ID. ) (READ: If you're arrested or detained, know these rights)

The problem, according to Hadjiusman, is that the determination whether one is a suspect for rebellion is all left to the discretion of a soldier. The history of Muslims always being target of suspicions is a grave cause for concern, according to Hadjiusman.

"Paano kung ayaw 'nung sundalo 'yung itsura mo, kamukha mo pa 'yung mga taga Maute tapos hindi ka makapag-communicate ng maayos? Muslims have always been susceptible. The martial law will increase the animosity, they will look at us again, make generalizations," Hadjiusman said.

(What if the soldier just doesn't like how you look, then you look like the members of the Maute group and you cannot communicate properly?)

"Paano 'pag inaresto ka, dinitine ka, 'yung pamilya mo nasa evacuation, they cannot call you, hindi nila alam, you become a collateral damage. Young Muslim men are susceptible to search and detention," Hadjiusman said.

(What if they arrest you and detain you, and your family is at the evacuation center, they cannot call you, they don't know.)

Hadjiusman suggested that the army deploy to checkpoints women soldiers, or better yet, Muslim women soldiers to do the questionings if necessary. (READ: He watched Maute group kill a cop, then he escaped)

"In this time of war, dapat magtalaga talaga ng women soldiers para mas kumportable at hindi matakot ang mga tao," Hadjiusman said.

(In this time of war, they should designate women soldiers so people are more comfortable and they don't get scared.)

Hadjiusman also said he would like to see a guideline that explicitly mentions sensitivity to the culture and religion of Muslims, especially Muslim women. 

The defense department had reminded soldiers to uphold the rule of law and established human rights norms in the implementation, but the military has yet to release guidlines.

Peace process

Amin Julkipli, a Moro lawyer who hails from Zamboanga City and former commissioner of the National Commission on Muslim Filipinos (NCMF), said this might also have an adverse effect on the ongoing peace process with the Moro Islamic Liberation Front (MILF) and Moro National Liberation Front (MNLF).

MILF was engaged by the Aquino administration in a peace process that resulted in the crafting of the draft Bangsamoro Basic Law (BBL) which will be the basis of a Bangsamoro political entity in the region. Duterte, when he took office, opened the talks to the MNLF, rival faction of the MILF whose heads include Nur Misuari.

Misuari, who is facing rebellion charges when his MNLF faction took parts of Zamboanga City hostage in 2013, was granted temporary freedom by Duterte so he could join the talks.

"If mobility of the regular civilians are restricted, more so for the rebels associated with the Moro liberation fronts," Julkipli told Rappler in an email interview.

Julkipli, who also worked as a lawyer for the Office of the Presidential Adviser on the Peace Process (OPAPP) in the peace talks with MILF, explained the importance of the ceasefire networks between the Moro liberation fronts and the military.

"If these ceasefire and other peace process mechanisms are not used or are avoided, the negative effects may be dire. It is very critical that the protocols are observed, else another Mamasapano-like incident is not impossible," Julkipli said.

The Mamasapano bloodbath of 2015 is entangled in a web of issues that include the presence of MILF fighters in the gunfire, some of whom also fired at the special action force (SAF) troopers. It was one of the many unfortunate results of the lack of coordination of the SAF with the MILF, which has a ceasefire agreement with the government.

"It is very important for the authorities to engage with the liberations fronts because the communities and areas that are target of the martial law operations can be the same communities and areas of the MNLF or MILF," Julkipli said.

Difference of opinion

The declaration of martial law in Mindanao is another divisive issue that sometimes pits the people of Mindanao against the people of Luzon.

While several groups, particularly those from the left, stage protests against martial law in Manila, some individuals from Mindanao have come out to say the Manileños' sentiments are misguided. That martial law is good for them, that it makes them feel safe. (READ: Who's afraid of martial law...in Mindanao?)

Batula recognizes this sentiment from the communities in Cagayan de Oro that she encounters on a day-to-day basis.

"Kanina lang mayroong isa dito sa workshop na sinasabi niyang okay ang martial law. We have to understand that this is a Duterte country; there's a good number of people here who support the President," Batula said.

(Just earlier here in our workshop there was someone who said martial law is okay.)

For the lawyers, the difference of opinions come from the different sets of histories, even realities in different areas in Mindanao.

"If you're in Davao City or Cagayan de Oro you feel safe, especially if you're a non-Muslim. But if you're a Muslim living in a conflict zone and you're just there to sell, to make a living, you fear. If you're not coming from that place, you don't worry," Hadjiusman said.

"Mindanao (including the Sulu archipelago) is a very vast and dynamic space and the people who label themselves as "Mindanaoans" have vastly different living conditions and are situated in vastly different contexts as their "fellow" Mindanaoan," Julkipli said.

Is it justified?

Julkipli said martial law is justified if it is confined in specific locations in Marawi City, but not the entire region – only areas "where martial law is absolutely required."

"Expanding martial law throughout the entire Mindanao gives the Maute group undeserved mileage and recognition," Julkipli said.

Hadjiusman has the same opinion. Moreover, he said, it didn't help that martial law was declared without proper evacuation mechanisms in place.

Hadjiusman said his people were left to figure out for themselves how to get out of Marawi City, some even walking for hours.

"Sana binigyan muna nila ng chance na maka evacuate fully, nag-provide ng transportation, ng pagkain, ngayon nagkakandarapa na mga tao saan sila pupunta," Latiph said.

(The government should have given people to fully evacuate first, they should have provided transportation and food, now they are desperate as to where to go.)

Hadjiusman's own relatives traveled to Iligan on foot with children in tow.

Hadjiusman added that the martial law might also hamper economic activities such as the transfer of goods.

"Lanao is circumferential. Pinaligiran ng Lake Lanao. Lahat 'yon namamalengke sa Marawi; ang Marawi ay umaangkat sa Iligan; dahil Marawi is shut down, 'yung ibang provinces wala na rin mapuntahan. It's a massive humanitarian crisis looming right now," Hadjiusman said.

(Lanao is circumferential. It is surrounded by the Lake Lanao. Everyone goes to Marawi to buy goods; Marawi gets its supplies from Iligan; but because Marawi is shut down, the other provinces don't have any other place to go.)

Batula questions the entire legality of the martial law declaration, saying that according to their initial analysis, the situation in Marawi does not pass as rebellion or invasion which are the two constitutional grounds for declaring martial law.

Batula and Hadjiusman said their groups have their own initiatives into researching whether they can file a petition before the Supreme Court (SC) challenging Duterte's martial law.

Under the constitution, SC has the power to review the declaration upon the filing of a petition, after which they have to issue a decision within 30 days. This means, according to lawyer and political analyst Tony La Viña, that "from a legal point of view, SC shall have the last say."

"Martial law is martial law, martial law is prone to violation of human rights, bali-baliktarin mo man ang sitwasyon (no matter how you turn the situations upside down)" Batula said.

"Abuses, martial law or pre-martial law, already abound. It is one of the direct effects of having armed conflict, where violence is the norm and the rule of law is very much wanting. Government may be in place but the services are hardly present. These make people highly susceptible to abuses," Julkipli said. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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