Perfect storm in wild, wild Philippines

These last two weeks have been wild for Philippine politics.

First, there was the filing last Friday of the impeachment complaint against President Duterte by Representative Gary Alejano of the Magdalo party list. The timing was perfect, with Congress having just adjourned, surprising the Duterte administration and its supporters.

Second, there was news earlier in the week that Jude Sabio, the lawyer of Edgar Matobato, was set to fly to The Hague to file criminal charges against Duterte before the International Criminal Court. This development follows the release in February of special reports by Amnesty International and Human Rights Watch that exposed the human rights excesses of the Philippines’ war against drug users and pushers. 

Third, the Supreme Court heard the oral arguments on the De Lima case last Tuesday, March 14, with another one scheduled Tuesday this coming week which theoretically can result in a Supreme Court decision ordering the release of the beleaguered senator. 

Fourth, a video of Vice President Robredo lamenting the human rights situation in the Philippines, for an international conference done last February, was released last week, for which she was immediately attacked by prominent Duterte supporters. Reacting to the Magdalo complaint and this video statement of Robredo, Speaker Pantaleon Alvarez has accused the Vice President of being behind the impeachment charges, threatening Robredo with impeachment.

Fifth, in Bulacan, an event of major significance is unfolding as hundreds of urban poor have occupied housing units built by the National Housing Authority. The government has given the Bulacan occupiers a deadline this week to leave peacefully. 

Sixth, and finally, news of China’s surveying of Benham Rise and their building monitoring stations in Scarborough Shoal surfaced also this week. The government’s response to these developments have unsettled many concerned Filipinos.

In my view, none of these six events were planned to coincide with each other.

Conspiracy-minded people are an on overdrive finding the connections. But they will be disappointed because there is none. There is in particular no dilawan or yellow conspiracy here, no big destabilization plot against Duterte.

Nevertheless, we do have a combination of potentially explosive situations, with mostly unintended but serious consequences for the country. For our sake, we better understand what is happening and act collectively to avert the worst outcome. As has often been said, the Mandarin word for crisis means both danger and opportunity. I see more of the former than the latter until men and women of good will intervene decisively for the better outcome.

Magdalo impeachment case

First, I want to make it clear that I do not support the impeachment and the early removal from office of President Duterte.

As a Mindanawon, I want this first president from our island to succeed. I support this administration’s good initiatives on peace, environment, social welfare, agrarian reform, transportation, tax reforms, inclusive development, etc. I oppose the human rights excesses of the war against drugs (the war itself I support if the strategy were modified) and the anti-democratic actions against opposition figures like Senator Leila De Lima and VP Robredo. I prefer that the President self-corrected rather than be ousted. I do not think it is too late for that.

I also oppose impeachment because it only increases corruption in government, since the President has to buy the loyalty of representatives and senators. Look at what happened during the GMA era and Corona’s impeachment. Even Daang Matuwid became crooked in its obsession to oust the then Chief Justice. We are still paying a price for the arrogance of the powers-that-be at that time.

Second, I admire Representative Gary Alejano and have grown to appreciate Senator Trillanes. I did not support the coups against GMA and I did not like the unfair crusade against Binay which was just political and intended to diminish Binay’s standing in the polls. But since then, Senator Trillanes has impressed me with his principled tenacity. Alejano, Trillanes, and their Magdalo colleagues are taking a lot of risks with this complaint. They should be praised for their courage and patriotism. I believe they mean well and their main purpose is to stop the massacre of the poor.

Third, there is no chance right now for impeachment against Duterte to succeed. But because our politicians, most of them at least, have no loyalties, the situation can change overnight. And we actually have three months before any voting happens in the House. A day is an eternity in politics, so we have several eternities to cross before this ends.

Finally, this is a win-win for Magdalo. If the impeachment proceeds, that would audacious indeed. If impeachment fails, it opens the door to the filing of a case in the International Criminal Court (ICC) case.

Do things properly

One condition for the latter is the lack of domestic accountability mechanisms. Dismissing an impeachment complaint without proper investigation and deliberation would constitute such a failure that this condition would not be met.

That is why it is very important for Duterte allies to do this thing properly. They should not railroad this process as it will boomerang on them. The Committee on Justice must receive evidence, listen to witnesses, and deliberate on the issues. Otherwise, one condition of an ICC case – that of exhausting domestic processes – will be met.

The Rome Statute is very clear that the ICC can come in if the State is unwilling or unable genuinely to carry out the investigation or prosecution of the alleged international crime being committed.

According to the Statute: “In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:  (a)  The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court . . .;  (b)  There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;  (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”

A railroading of the Duterte impeachment proceedings falls under the third scenario since his impeachment and removal from office is a necessary condition for any domestic criminal proceeding against him. 

In the meantime, there will be nonstop local and international media coverage of this process, for next two months. I am sure that the young, photogenic, and articulate personalities of Magdalo will manage that situation well. Facing them will be Speaker Alvarez, Chief Presidential Legal Counsel Salvador Panelo, Justice Secretary Vitaliano Aguirre II, and Solicitor General Jose Calida.

It does not take rocket science to figure out who is likely to win that media war. The social media terrain might be a bit different because of the strength of the Duterte forces and the disunity of the anti-administration groups. But already I see the anti-Duterte forces emboldened, discovering that so much of the pro-Duterte social media is manufactured noise.

Is ICC case viable?

Like my view on impeachment, I do not want an ICC prosecution of Duterte.

The negative consequences for the country are enormous when such a case is filed. The economy will suffer greatly as we will be seen as a failed state by investors and other countries. The President could be provoked to declare martial law because of this. Human rights advocates and defenders will likely be targeted,

But while not for it, I do get the argument that an ICC prosecution can save thousands of lives as we are on target now to get to 20,000 deaths by the end of the year. I also understand the frustration of many that no one is being held accountable for the massacre of the poor. 

I have reviewed closely both the Amnesty International and the Human Rights Watch special reports on the war against drugs and their narratives are compelling, the evidence is incontrovertible, and the findings and recommendations are solid.

Clearly, a case can be made that crimes against humanity are being committed by this government against a targeted population of drug users and pushers. 

No immunity outside PH

In the Rome Statute creating the ICC, “crimes against humanity” mean, among others, committing murder and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health, when these acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

In the Philippines, the President is immune from criminal and civil suits while he is still President. But outside our borders, no such immunity exists. 

The biggest challenge to the ICC, if prosecution proceed, is how to arrest President Duterte. I suppose our military and police will not cooperate and the President would be prudent enough not to travel outside the country anymore if he is indicted. If he is arrested, I suppose the Cabinet would have to declare him incapacitated and VP Leni might have to take over. Or if he is not arrested as sitting president, once his term ends, the new government could allow his arrest and trial. 

Top military and civilian officers, including the cheerleaders of death who have been inciting the attacks against the targeted population, could also be charged. This is clear under the Rome Statute where those who induce the crime against humanity can also be charged in the ICC.

It is not true that a vote of the United Nations Security Council is needed for an ICC prosecution to be initiated. The ICC prosecutor can initiate that on her own. The Council could ask for a deferment, but that would require a unanimous vote from the permanent members. 

I cannot imagine France and the United Kingdom voting to stop such a prosecution. Their publics would not allow it given the awareness of Europe of what is happening in the Philippines. The recent vote of the European Parliament condemning extrajudicial killings in the country and demanding the release of Senator De Lima is an indication of this. There is even a possibility of our losing trade perks with the European Union because of the human rights situation in the country and the reimposition of the death penalty.

This is speculation and hopefully will be avoided. But it must be said and the government must prepare for the worst-case scenarios. And the right actions to be taken is not to attack the Vice President who has nothing to do with it or even the Magdalo personalities, who so far are being very cunning and gutsy, but by self-correcting the strategy for the war against drugs.

Stop the killings and the threat will diminish. Hold the killers accountable and the prosecution will likely not proceed. Change your language that gives impunity to the murderers, and there will be no attribution to the President of the facts on the ground.

The De Lima oral arguments

Last Tuesday, March 14, the Supreme Court heard oral arguments on the petition of Senator De Lima, asking the Court to prohibit the Regional Trial Court of Muntinlupa from proceeding with the drug trafficking charges filed against her.

Former solicitor general Florin Hilbay was formidable in presenting his arguments in favor of De Lima, emphasizing how the constitutional rights of the senator have been disregarded and violated by the Department of Justice. I was there with my University of the Philippines constitutional law class and Prof. Hilbay hammered this point again and again. This lack of clarity and confusion on what De Lima is being charged with violates her right to be informed of the nature of the charges against her. This is a basic constitutional right of the accused because without such information, a defense is not possible.

Why De Lima an exceptional case

In the exchange between Prof. Hilbay and Justice Marvic Leonen, the latter asked what made the De Lima case exceptional that the Supreme Court should set aside normal procedure to grant the senator the remedies she is requesting.

The answer to this question is actually in Brocka vs. Enrile, a 1990 decision written by Justice Leo Medialdea, father of the current executive secretary, where the Court ruled emphatically that when a prosecution is tainted with bias and lack of due process from the very beginning, nothing can cure that process and the High Court can intervene to stop the proceedings from going on further.

The Court will convene again Tuesday, March 21, to hear the side of the government who will be represented by Solicitor General Calida. Shortly after that, the Court may decide to grant De Lima a temporary restraining order and allow for her provisional liberty. Such a decision would probably generate a strong reaction from Malacañang.

Can Robredo be impeached?

Last February, the Vice President was invited to a side session of the annual meeting of the Commission on Narcotics – Narcotics Drugs in Vienna. She could not make it and sent a video instead.

According to her spokeswoman, as reported by Rappler, “Since the VP could not attend, she was asked to give a video message where she only stated the condition in our country and the fact that a lot of people have died due to the drug war.” Hernandez was quoted as saying that the Vice President’s statement was based on her dialogues with members of the urban poor whose families or neighbors have been victims of extrajudicial killings.

Clearly, there is no connection between this video statement of Robredo and the Magdalo impeachment case. Nor is there any connection between the statement and the planned ICC case against Duterte. Still, Speaker Alvarez seemed determined to go after Robredo and have her impeached. 

The Vice President has asked what the legal basis would be for her impeachment. Unfortunately, the basis is whatever the required number of legislators – just around a hundred (one third of the Representatives) are needed – think is sufficient to constitute betrayal of public trust. It is really quite arbitrary. 

That’s why I was always warning people during the Corona impeachment to be circumspect because, in the future, the awesome powers of impeachment could be misused. Most likely, the anti-Robredo forces will not be able to muster the 18 votes necessary in the Senate to secure the VP’s conviction and removal from office. But that is far from certain. We have seen how former president Benigno Aquino III used the bully pulpit and the great powers of the presidency (including budgetary powers) to successfully go after Chief Justice Corona.

Impeachment is a political process; a numbers game is how it has been described. Indeed, law students know by heart that impeachment is neither criminal nor civil in nature; it is sui generis, a class by itself. But the process being political does not mean it must necessarily be partisan or that it is arbitrary and unjust as it would be in the case of a Robredo impeachment.

Flashpoint in Bulacan

Seemingly unrelated to the national political situation are events unfolding in the province of Bulacan, the occupation of housing projects built by the National Housing Authority in Pandi town in Bulacan province. Starting with only a few hundred members of Kalipunan ng Damayang Mahihirap (Kadamay), an urban poor group, the occupation has now escalated and hundreds more have been flocking to take over houses that were intended for policemen and soldiers. According to reports, around five thousand units have now been taken over. Militants from Metro Manila and other places are converging in Bulacan to support the occupiers. This in spite an appeal coming directly from President Duterte and a looming order of eviction from the NHA.

Occupy Bulacan promises to be a watershed moment, good or bad I do not know yet, for the urban poor in the country and could even figure on the fate of the peace process. One hopes people involved here are guided by strategic and not just tactical considerations. My sense here is that the government will not back down and lines could be crossed soon with potentially serious, even deadly consequences.

The China question

To muddy an already complicated domestic political situation, the question of how our country should engage with China also came up strongly this week with the controversy around Benham Rise and Scarborough Shoal. 

The former controversy seems to be just a minor confusion, with the President and many others confused about the nature of our jurisdiction over Benham Rise and what is a country like China allowed to do in the area. In the case of the latter, he seemed to have mistaken Benham Rise as being in the South China Sea and included in our dispute with China.

It has been pointed out that Benham Rise is continental shelf that we successfully claimed according to the procedures of the United Nations Law of the Sea. It has been clarified that right of innocent passage is allowed to China and other countries so long as they limit themselves to exactly that. It has also been clarified that the President did not enter into an agreement with China on Benham Rise other than a general invitation to visit the Philippines. Fortunately for us, we have experts like Professor Jay Batongbacal and diplomats like our Ambassador to China Chito Sta. Romana who quickly went to work so that the confusion would be dispelled.

The plan of China to build environmental monitoring stations in Scarborough Shoal, claimed by and awarded to us, as part of our Exclusive Economic Zone last year by the Arbitral Tribunal is more problematic.

If we allow China to do this, as President Duterte seems to imply in his statement on the matter, that would effectively lead to loss of EEZ territory and a nullification of the arbitral award. Having permanent monitoring stations, which can easily be transformed to military installations, will radically change the situation and have serious military consequences to us. It could lead to serious unrest in the military and national security establishment if the government is perceived to be not strong and aggressive in defending national territory.

Riding the perfect storm 

Two impeachment processes, a brewing foreign policy crisis because of our human rights situation, a crucial decision by the Supreme Court, confrontation in a province that could result in bloodshed similar to the Mendiola massacre in 1987, and a confrontation with our aggressive giant neighbor.

Each of this can be tricky, but coming to us together, unplanned and uncoordinated, it is a perfect storm of crises that brings with it multiple perils.

What are we to do so the country can ride this storm and land safely? In all of these situations, there could be winners and losers in the political spectrum. But what about the country? 

I say that we must all stand down, particularly partisans from all sides. I say we need to reach out, with respect, and dialogue with each other to find the solutions to the real problems we face. I say we should listen to experts who clarify things for us as was done rapidly in the Benham Rise controversy. There are also experts who can guide the government on the ICC and other human rights related issues. I say that we must all be patient. For example, in the case of the Bulacan occupiers, perhaps the peace process can give them the concessions they need.

We are, as a country, like a Greek tragedy. We are like Sisyphus perpetually falling down the mountain to start all over again. We have many Cassandras warning of the impending doom, Oracles speaking of what is about to happen, and still we step forward toward the abyss. We are faced with a real-life game of thrones. One can only hope it does not turn bloody like the television original.

In the early days of the Corona impeachment, I wrote a column entitled “Pandora’s Box”. I was of course referring to the familiar Greek story of Pandora who opened a box (actually a jar) that she was not supposed to open. After realizing the gravity of what she has done, Pandora hastened to close the lid of the jar. But it was too late because the jar was emptied of its contents except one that remained at the bottom, which is hope.

As I wrote then, I would like to hope that the challenges we are facing today would not unleash the evils of Pandora’s Jar but instead transform this nation into a stronger, better and most of all kinder Republic. – Rappler.com

 

The author is former dean of the Ateneo School of Government.