Friday, July 31, 2009

Obama-GMA Meeting Reflects US Policy Toward Philippines

Having spoken strongly against those who cling to power through corruption and deceit during his inaugural address, one would think President Obama would somehow reinforce this message during his conversation with GMA, whose waning administration as we know has been beset by serious allegations of corruption and abuse of political power. He made no qualms reiterating this in his disapproval of Honduran President Manuel Zelaya's ouster by the military, although there are still hanging questions on the legitimacy of Zelaya's actions that precipitated his removal. Instead, President Obama steered away from such hot-button issues like charter change, term extensions, martial law, corruption and human rights, despite the fact that these issues threaten the political stability of the Philippines.

To be sure, President Obama was briefed on these issues but policy considerations made them off-limits. That President Obama did not make any reference to them at all, or even a hint, is an indication that the US's only interest in the Philippines right now is regional security. Given the generous accommodation the Philippines provides to US forces, not to mention our history of unflinching support for US foreign policy in other parts of the world, GMA is seen by the US as an invaluable ally in propping up its presence in the Asia-Pacific region in the wake of the North Korean threat and the growing dominance of China. Serious questions about GMA's governance appear to be the least of US's worries for now.

Such approach to US foreign policy is not something new, where notably corrupt and dictatorial regimes have been supported by the US in the past in pursuing its interests, as in the case of Saddam Hussein during the Iran-Iraq War or of Pervers Musharaff of Pakistan in recent memory. Or closer to heart, we have the case of President Ferdinand Marcos who, until Edsa I, continuously enjoyed the support of the US. But the idea that President Obama would resuscitate this reprehensible policy is a big disappointment. After all, President Obama stressed during his inaugural speech that he rejects the false choice between America's safety and ideals; that US foreign policy - when it comes to protecting America - would not compromise its ideals. Although such pronouncement was made in the context of fighting terrorism it is safe to assume that it would also apply in other instances.

What is even disconcerting is that not only did President Obama fail to indicate US disapproval of any totalitarian tendencies and raise concerns on the disturbing corruption and unsolved human rights cases in the Philippines, he also heaped encomiums on GMA for her position on human rights and, in his words, for doing "an outstanding work on a whole range of issues." This is ironical because the human rights record of the Arroyo administration is not anywhere near acceptable. Just last year UN Special Rapporteur on Human Rights Philip Alston gave the Philippines a failing mark on human rights. And five months ago, the Philippines has been listed as the most dangerous peactime country for journalists in the wake of the numerous unsolved murders of journalists.

I don't know if corruption - where the Philippines notoriously and consistently get a high world ranking - is among the "range of issues" where President Obama said GMA is doing an outstanding work. I am sure he is not unaware of the recent World Bank report on corruption of road projects in the Philippines which are funded by no less than the World Bank, in which the US has a stake; or of the allegations of corruption in the use of military assistance funds provided by the US on the joint RP-US military exercises.

But why would the US put so much value in its relationship with an administration which, although has proven to be an important and loyal ally, is already in its waning days and risk the ire of an opposition that could seize power after the elections, given the administration's sagging popularity? This is a fertile ground for speculation of possible US support, or what amounts to the same thing, of off-hand US policy in case our much-feared apprehension of a term extension for GMA comes true. How we wish we knew what transpired behind closed doors between these two leaders.

Tuesday, July 21, 2009

Election Cases: Waste of Time and Money

"It will only be a waste of time and money," observes Pampanga Gov. Ed Panlilio's election lawyer Romulo Macalintal, when asked for his reaction to the Supreme Court's recent ruling allowing the recount of votes cast during the Pampanga gubernatorial elections in 2007. Former Lubao, Pampanga Mayor Lilia Pineda filed an election protest against Governor Panlilio by claiming that the erstwhile priest and his followers committed various electoral frauds.

This statement, coming no less from a veteran election lawyer, speaks a mouthful about the state of election cases in our country. It pains me to say this, but election cases in general do nothing except line the pockets of election lawyers, for in most cases the winners end up with empty victories, no to mention empty purses, because the favorable verdicts come in only after they have become moot. With the 2010 elections just less than a year to go, the election protest against Governor Panlilio is yet another example of an exercise in futility. The recounting of votes, while every protestant's dream, takes the longest and is the most contentious and tedious process in an election protest. The protestee's lawyer interposes every imaginable objection from the custody and handling of the ballot boxes to be re-opened to the reading and inclusion of ballots prejudicial to his client. Take it from Macalintal, who must've handled thousands of election cases (both high-profile and low-key) already, when he said that the recount against Panlilio is futile at this point in time.

With the slew of cases being filed every three years, the Philippines probably has the richest jurisprudence when it comes to election cases. A lot of defeated candidates with money to spare, perhaps excesses from the huge campaign war chests, cry they have been cheated after every elections even when the margins are huge. Many factors can be attributed to this phenomenon - which a visiting Canadian lawyer I once met during a legal forum found unbelieveable because he has never heard of election cases in his country. For one, our electoral system is prone to cheating and election officials are bribe-susceptible. Not only can election officials in charge of counting and canvassing of votes be bribed to guarantee victory for one candidate, but election judges to assure favorable judgments in election cases. Another equally strong, if not more powerful, reason is the insatiable quest for power, with all its illegitimate perquisites that promise luxury and indulgence to the holder. Politicians with such devious motivation (and there are lots of them unfortunately!) will have no qualms bribing their way to victory, both at the polls and courtroom.

If it's any consolation, law students and lawyers won't find a shortage of jurisprudence illuminating the election code and its companion laws that makes for interesting studies and provides guidance to our courts in disposing election cases before them. At least we would not be groping in the dark as US courts did in the wake of the 2000 US presidential elections between George W. Bush and Al Gore, when confronted with thin jurisprudence in trying to make sense of their varied election laws. But then again the dispatch with which these courts came out with a decision in the Bush v. Gore case (decided in less than a month) and the recently concluded legal contest between Norm Coleman and Al Franken for a Minnesota US Senate seat (completed in eight months) would make us weep.

The exceedingly slow pace at which election cases are resolved in the Philippines has turned election law litigation into a big joke. Although election cases are given preferences before regular courts and the election code directs their resolutions with dispatch, our legal system - with its loophole-ridden appeals process - makes it possible for parties on the losing end to prolong the litigation with the end goal of getting them through their terms before a decision is finally handed. More often than not election cases are resolved after the contested terms have expired or elections for the next terms have passed.

In my home town of Mabalacat, Pampanga, for example, when in 2001 the election protest against Mayor Marino "Boking" Morales was resolved declaring his long-time rival Anthony Dee the winner, Morales already completed his term of office. Then again in the 2007 case of Rivera III, et al. v. Comelec, et al., G.R. No. 167591 (May 9, 2007) - originally a petition to cancel the certificate of candidacy of Morales where I was one of the petitioners and counsels - the Supreme Court declared the ineligibility of Morales to run for Mayor in the 2004 elections. But this decision came only less than two months before the term for which he was found ineligible expired. There are tons of other cases bearing similar backdrops which i'm sure most of you can relate to that we need not cite them here for convenience.

Despite this sad reality, however, the Supreme Court, which is empowered by the Constitution to not only give meaning to the law but to promulgate rules of procedure in matters of litigation, has done nothing to put a stop to this abhorrence. Worse, it even sustains it by, for example, allowing wrongdoers to profit from their misdeeds by allowing "elected" candidates found to have lost the elections to keep their salaries, however miniscule they are compared to the illegitimate perquisites of their office, under the de facto officer doctrine. Would it not be more just that a usurper of public office be penalized by returning all the salaries he drew during his unlawful tenancy? The Supreme Court has also the penchant for entertaining petitions that do not establish new law and are clearly covered by established jurisprudence. Instead of declining jurisdiction and deferring to the Comelec or lower courts' rulings in cases squarely adhering to established jurisprudence, it proceeds to hear and publish full decisions in cases that could otherwise be disposed of by minute resolutions, thus adding to the delay in disposition of election cases.

Election litigations should not only be a lawyer's or politician's concern, but of every voter because it is an extension of the electoral process of choosing our leaders. They are designed - supposedly - to protect the voters' choice at the polls and ensure that those who court our votes are only those who are legally qualified to do so. But when they drag on indefinitely and are decided only when they can no longer serve their purpose or worse, when they are manipulated to the advantage of the unworthy, they subvert, and become an affront to, our sovereign will.

Thursday, July 9, 2009

The Military as Arbiter of Political Conflict

In the July 9 New York Times article "Fuel for a Coup: Perils of Latin America's Oversized Military," Nobel Prize winner, Costa Rican President Oscar Arias wrote that strong militaries in Latin America have paved the way for military solutions to political conflicts in the region. He observed that the coup d'état that led to the ouster of Honduran President Manuel Zelaya is something that is not unexpected in a region that "continues to view armed forces as the final arbiter of social conflicts."

While the Philippines is not as extravagant as Latin America when it comes to military spending, since the days of martial law our armed forces have increasingly taken an active role in trying to resolve our nation's manifold problems. We thought that after EDSA I the re-branding (from AFP to New AFP) and reorganization of the armed forces would eventually lead to its depolitization. But as history would have it, coup after coup have wracked the nascent administration of then President Corazon Aquino.

Yet again under the present administration, the military continued its political involvement in seeking solutions to our socio-political problems during the so-called Oakwood Mutiny despite repeated indoctrination at the nation's premiere military academy and among the ranks of active military personnel against military adventurism. Then there was the Manila Pen incident. The leader of Oakwood, Navy Lieutenant Antonio Trillanes IV, would later on be popularly elected as senator even while he was behind bars.

Coup d'état as a means of achieving change is, aside from being a crime punishable by law, without a doubt unconstitutional. Not even the present constitutional provision defining the role of the armed forces as the protector of the people can legally justify the military's role in acting as the arbiter of the country's political conflicts. That provision was meant to highlight the military's role in protecting the people against external threats or aggression, and not as a prescription against a corrupt government, however appealing the idea may be to others.

Arias says the imbalance between Latin America's fragile democracies and strong militaries, with the scales tipping toward the latter, has much to do with the militray taking an active role on the political landscape. The Honduran experience shows that when Zelaya committed flagrant disregard of the country's Constitution and defiance to its high court's ruling, the military decided to resolve the impasse by arresting Zelaya and whisking him out of the country. The Honduran military's swift action did decisively what the Supreme Court and Congress failed to do: to immediately stop the illegal actions of an abusive president.

The failure of our democratic institutions in maintaining political stability and reigning in of official excesses have left our people looking for answers elsewhere. Idealists in the military have seen this as an impetus for involvement in transforming our society by resorting to extra-constitutional measures. As citizens equally disgusted by the worsening problems in the country, these soldiers follow the route where they have been trained well in seeking the much needed change. And for a country that is yet to see a truly military rule, Marcos's martial law notwithstanding, hard line military idealists would find the idea of a military junta a seductive goal, especially so that previous administration changes have only resulted in installing new faces into power without resolving the country's fundamental problems. The guiding political aphorism, it would seem, is that when democracy fails force becomes a necessity.

To be sure, the armies of other nations are much more powerful and highly trained compared to those of Latin America and the Philippines. But we do not see the United States or United Kingdom being threatened by coup d'états. The reason is their democratic institutions and processes do not fail them. Sure there are failings here and there, but not on a scale as grand as in our country. And solutions are invariably found. In the Philippines we've seen how our democratic processes and institutions have been repeatedly mocked by those in power: until now not a single verdict of conviction has been handed down against the former First Lady Imelda Marcos despite the plethora of cases brought against her, she and her family have reacquired political power, public officals who only earn miniscule salaries continue to live lavish lifestyles, we have a president who committed an act comparable to or even worse than Watergate but continues to remain in power, scandals after scandals are being heaped upon us by government officials who remain unscathed by the scalpel of justice, etc.

For as long as we do not fully mature as a democracy, where our democratic institutions and processes are revered as inviolable, members of the military establishment clamoring for change will continue to see their relevance in instituting political reforms. As long as our politicians continue to tinker with the Constitution and unabashedly violate the law, our institutions fail to cut down official excesses and public officials defy the people's will, the military will remain an active participant of political change.

Friday, July 3, 2009

When GMA Exercises Commander-in-Chief Powers

Once again talks of an impending martial law abound with the recent story in a major newspaper of a so-called "Oplan August Moon," which is allegedly a plan to extend the term of President Gloria Macapagal-Arroyo by declaring martial rule - to be accomplished by appointment to key military positions of generals loyal to GMA and creation of emergency scenarios reminiscent of the Marcos era. You may want to read Ding Gagelonia and Patricio Mangubat's interesting articles on this issue.

A review of the Constitution tells us that the president can exercise commander-in-chief powers under Art. VII, Sec. 18, which provides as follows:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. . .
The foregoing provision spells out three important powers that the president may exercise in times of national emergencies: (1) calling-out power (2) power to suspend the privilege of the writ of habeas corpus and (3) power to declare martial law.

The calling-out power refers to the power of the president to mobilize the armed forces - whose regular function is to protect the territorial integrity and security of the state against foreign aggressions - in preventing or suppressing lawless violence. In the words of David v. Gloria Macapagal-Arroyo (Prof. Randy David's first taste of eskrima with GMA), this involves ordinary police action. The Supreme Court also said in this case that the criterion by which the validity of the exercise of this power may be tested is the phrase "whenever it becomes necessary" in Section 18, meaning whenever the president determines there are existing conditions or situations - such as widespread violence, invasion or rebellion - that would necessitate the use of more force in restoring and maintaining peace and order in the country.

The power to suspend the privilege of the writ of habeas corpus (HC) and declare martial law are considered the more expansive exercise of the president's emergency powers. Martial law is distinguished from the president's exercise of his calling-out power in that in the former the country or a portion thereof is placed under military rule while in the latter the armed forces is only called upon to assist the police in maintaining peace and order. HC refers to the process by which a court compels the government to produce before it a person under the latter's custody or to justify the reason for such custody. The suspension of this privilege could lead to the detention of persons without charges.

It should be noted that although traditionally the suspension of the privilege of HC is equated with or follows the proclamation of martial law, the Constitution now makes it clear that martial law by itself does not suspend the privilege and there must be an order for such suspension.

If and when GMA declares martial law and/or suspends the privilege of the writ of HC she is required by the Constitution to submit a report to Congress within 48 hours from such declaration and/or suspension. Here again is where GMA can benefit immensely from her allies in Congress. Notice the following paragraph in Section 18:

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.
Unlike the Cha-cha provision in Art. XVII, Sec. 1, there is no equivocation on the manner of voting. The Constitution explicitly allows (in fact it requires it) suspension of the bicameral process by requiring Congress to vote jointly in revoking, affirming or even extending martial law. Given the number of representatives, most of whom being administration allies, GMA can easily get congressional support. And if HR 1109 is any indication the votes alone of the loyal congressmen would suffice to meet the majority vote required.

If this happens the last constitutional resort to question the legality of martial law is the Supreme Court. Unlike in the pre-1987 Constitution era, there is no longer a debate as to whether the courts may look into the factual bases for the declaration of martial law. Where before the determination by the president of the necessity of martial law is binding and conclusive - a political question which the courts may not review - the Constitution now explicitly makes it a justiciable political question by stating in paragraph three of Section 18 that the Supreme Court may review ''the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof." In fact this provision confers a legal standing upon any citizen to bring the appropriate petition.

A word of caution however. David tells us that it will be the petitioner questioning the validity of martial law who must bear the burden of proving the insufficiency of the factual bases relied upon by the president in declaring martial law and/or suspending HC. The problem with this is that there is a strong likelihood that the Court will accord great weight to the executive department's finding of necessity (the Constitution says [1] there is an invasion and public safety requires it or [2] there is a rebellion and public safety requires it), either in subservience to GMA or what amounts to the same thing, in deference to another co-equal branch of government. As the Court ratiocinated in David in finding factual bases for GMA's Presidential Proclamation No. 1017 - declaring a state of emergency - "Owing to her [GMA] Office’s vast intelligence network, she is in the best position to determine the actual condition of the country."

I would like to believe GMA would be wise enough to cover her base if and when she invokes her commander-in-chief powers by seeing to it there would be sufficient basis for martial rule. In addition to this it would be safe to assume that she would also see to the appointment of sympathetic justices in the Supreme Court, where she is in the enviable position of filling almost half of the Court's membership as several of them retire before her term ends.