Democracy and the ARMM elections

I used to be uncertain about my position on the administration’s planned postponement of the elections at the Autonomous Region for Muslim Mindanao (ARMM). I no longer am.

The postponement appears to be the brainchild of a dear friend and law client, Political Affairs Secretary Ronald Lamas and is for the noblest of intentions: the holding of truly democratic elections at the ARMM. Commission on Human Rights Chair Loreta “Etta” Rosales, another dear friend, explained that the postponement is necessary to give the COMELEC time to purge the voters list and conduct a comprehensive dissemination on the sacred value of the right to suffrage in a democracy. The last time we had elections at the ARMM, the Ampatuan family emerged victorious. The perception was the dreaded clan won because it used the 3 G’s of traditional politics: guns, goons, and gold, but not necessarily in that order. It helped too that the clans’ patriarch, Andal Sr., astutely married off his sons and daughters to the different influential clans in Muslim Mindanao. This united in marriage the fractious and normally warring clans of the region.

The opposition to the postponement has been articulated by Fr. Eliseo “Jun” Mercado of Notre Dame, Cotabato. According to Fr. Mercado, the postponement is contrary to the organic law of the ARMM. Congress could not amend this organic act without a plebiscite held especially for the purpose. This is because the date of the ARMM elections was expressly provided in the ARRM organic law passed by Congress and duly ratified by its constituents. Any amendment thus to a provision of the ARMM organic law, including the date for its regular elections, should likewise be approved by the people. Moreover, Fr. Mercado highlights the point that a Manila sanctioned postponement would bolster criticisms that the current system of autonomy proffered as a solution to the age-old Mindanao conflict is a – sham. How could there be genuine autonomy when elections are held hostage by colonial Manila? Ramon Casiple has pointed out an irony: while the motives behind proposal to postpone the ARMM elections has to do with the wish to strengthen democracy in the region, a postponement would in fact have the opposite result: destroy democracy. This, according to Casiple, is because the appointment of leaders in the ARMM, a move that the President would have to do in the event the elections were to be synchronized with the 2013 elections, is simply anathema to democracy where elections could be resorted. This last argument certainly made the most sense to me: the postponement would kill democracy to promote it.

Besides, why should we expect elections at the ARMM to dramatically change after two years? Already, it is obvious that while the Ampatuan massacre has led to what Fr. Mercado has described as the “beginning of the end of the Ampatuan clan”, it is very clear that the Mangudadatus will simply substitute them. Pakung S. Mandudadatu, also known as Pax, although well loved by his Christian constituents in Sultan Kudarat, does offer a glimmer of hope. But already, we see that in places like Maguindanao under yet another Mangudadatu, Toto- all that has occurred thus far is a change of characters. The institutional changes that are required to liberate our Muslim brothers from the yoke of poverty and feudalism will not happen in two years. It probably will not happen in my lifetime!

In any case, time does not appear to be on the side of those who want to postpone the elections. In what appears as yet another Senate “snub”, the upper house, most likely deliberately, failed to act on the House approved bill mandating the postponement. This has prompted the political elites of the region to file their respective certificates of candidacy. As expected, a Pax has filed his certificate of candidacy for the post of governor. Even the President’s own aunt, Margarita “Tingting” Reyes-Cojuangco, has become Muslim and has filed her certificate of candidacy for Vice-Governor. In fairness to the beautiful Tingting, she has indeed spent long periods of time studying the culture and politics of Muslim Mindanao. I do not know though if this is enough to make her a bona fide resident of the ARMM.

Meanwhile, the talk has shifted to what kind of elections will be conducted at the ARMM. Apparently, my friend and comrade against the SMARTMATIC PCOS machine, now Commissioner Gus Lagman, was the lone dissenter in a COMELEC resolution authorizing the purchase of about 5000 PCOS machines to be used in the ARMM elections. This decision has certainly reignited the debate about the PCOS as an agent of democracy. I have been one of those who like Gus and the rest of the AES Watch consortium, believe that the use of the PCOS machine is both unconstitutional and illegal. It is unconstitutional because COMELEC has for all intents and purposes, abdicated its constitutional mandate to conduct and supervise all elections to foreigners. It is illegal because among others, it does not give the voter an opportunity to verify how his vote was counted. Worse, Smartmatic, despite a legal duty and a Supreme Court decision ordering it to have its source examined, has dismally failed in this regard because it is unable to have a program owned by a third party to be examined by anyone. This means that we were denied- and the ARMM voters may yet be again denied- the only means to ensure that the computer programs used in the electoral exercise does not have pernicious codes that may undermine the right of the people to choose their leaders.

To those who are with us on this issue: do not despair. If the first time around, we did not have actual evidence of our apprehensions against the Smartmatic PCOS machines, we have them now courtesy of the flawed 2010 elections. Moreover, we also have the procurement law on our side: the COMELEC resolution was without the benefit of the mandatory competitive public bidding. As they say: abangan ang susunod na kabanata!(wait for the next chapter) #30#

Congratulations, Mr. President

After 34 years, the Philippines has finally taken steps to ratify Additional Protocol 1 to the Geneva Conventions. AP1, as it is referred to, was entered into by the international community in 1977 to expand the coverage of protection to all civilians in times of armed conflict. Under the 1949 Geneva Conventions, only those civilians living in “occupied territory” were entitled to protection. This ignored the reality that non-combatants living in the territory of a party to a conflict could also be the subject of inhumane attacks perpetrated by combatants and fighters. This was certainly the case with the German Jews and gypsies who perished likewise in the gas chambers of Auschwitz, together with civilians in occupied territories such as Poland and other central European countries. AP 1 hence seeks to insulate civilians, as much as possible, from all the adverse consequences of an armed conflict.
The international community adopted AP1 at the same time as Additional Protocol 2 to the Geneva Conventions. AP 2 provides, for the first time, binding code of conduct to all fighters in non-international armed conflicts. This was a worldwide recognition that since World War Two, the world has seen more conflicts which were not interstate in nature, but between states and domestic armed groups. It was also the sad experience of humanity that these internal armed conflicts were not only more prevalent, but also proved to be more barbaric and inhumane. The Philippines had to have Cory Aquino as President before we could accede to AP 2 in 1986. Meanwhile, despite Mrs. Aquino, we have opted to shy away from AP1.

The reason for our non-accession to AP 1 is the provision under the Geneva Conventions that defines an international armed conflict as those “between states or between a state and a belligerent group engaged in a war of national liberation”. We have been a theater to the world’s longest-running communist insurgency, the conflict with the New Peoples Army, as well as two of the longest running insurgencies involving those clamoring for a separate Islamic independent state, the Moro National Liberation Front and the Moro Islamic Liberation Front. The fear then of all Philippine governments since Mrs. Aquino’s time was that ratifying AP 1 might lead to an international recognition of these insurgents’ status as belligerents, which already is the position of the lawyers of NPA.

Fortunately, the Philippine government has seen through this specious argument and has finally realized that bare assertion of a belligerent status will not suffice under international law. In fact, there have only been two conflicts recognized by the international community as genuine wars for national liberation, to wit: the conflicts against the racist’s regimes of Rhodesia and South Africa. This is because textually, the Geneva Conventions specify that wars of national liberations governed by the Geneva Conventions are only those against “racists or colonial regimes”. The NPA clearly cannot qualify as a belligerent group under this very clear definition.

In any case, congratulations are in order to President Noynoy Aquino for finally sending AP 1 for concurrence of the Senate, which is the last constitutional step before we could deposit our instrument of ratification evidencing our intent to be bound by the treaty. Certainly, his submission of the treaty after 34 long years is proof that despite his declining ratings, Aquino has recognized the importance of providing protection to all civilians from the adverse consequences of armed conflict. Kudos too to the Chair of the Senate Committee on Foreign Affairs, the pride of the UP Institute of Mass Communication, Senator Loren Legarda, for prioritizing the Senate hearings on AP 1. The good senator has also promised to prioritize Senate concurrence to the Rome Statute of the International Criminal Court, yet another institutional remedy against impunity here and abroad.

***

Speaking of the UP Institute of Mass Communication, it lost recently one of its best journalism educators and one of the country’s most respected journalists, Chit Estela. Aside from her stellar performance as a journalist in publications such as Malaya, the Philippine Daily Inquirer, Manila Times, Philippine Journalism Review, and with Vera Files, the country’s newest but probably the best investigative journalism outfit, Chit will be most remembered for her uncompromising stand in favor of press freedom even at great cost to her personal well-being.

When the then-Gokonwei-controlled Manila Times wrote a series of investigative reports on supposed pay-offs given in connection with the IMPSA hydro-electric plant during the short administration of Joseph Estrada, the latter was furious and actually filed a P110-million libel suit against the publication. The former President though indicated that he withdraw his suit if the publication and its editors apologize to him. Chit, then a senior editor of the Manila Times, refused downright to apologize, standing pat on her conviction that no one should apologize for good journalism. When the paper did apologize, Chit, unlike many of her peers who opted for the easy way out, opted to resign rather than sit through the ignominy of an obvious attack on press freedom. Her decision to resign marked the end of her “mainstream” journalism career as Chit would then spend the rest of her professional life in alternative media outlets such as the Pinoy Times and Vera files.

Chit certainly lived a life worthy of emulation. Though she has moved on, I am sure her legacy will live on especially in the hearts and minds of the young people whom she has taught and mentored.

BIN LADEN AND THE LAW

No doubt that Osama Bin Laden is loathsome. He was accused by the civilized world for perpetrating the most murderous crime against humanity committed in recent years: the World Trade Center bombing that claimed the lives of at least 3000 civilian lives. He is also said to be the leader of the dreaded al Qaeda, a notorious terrorist group that has either claimed responsibility or said to be responsible for many terrorist acts worldwide. So when news broke out that Osama Bin Laden was killed, most of the civilized world rejoiced.

Be that as it may, human rights and humanitarian law advocates have sounded the bells of alarm. Despicable as he may have been during his lifetime, the circumstances of his killing may have undermined the normative system that we have nurtured to provide protection to human beings against potential abuses of states. Specifically, nagging doubts have now been expressed on the legality of his killing under international law, and with good reasons.

The right to life is a cornerstone of Human Rights Law. It is a guarantee against the arbitrary taking of life. According to the United Nations Human Rights Committee, this right is absolute. Side by side with Human Rights Law, International Humanitarian Law is also the applicable law where there is an on-going armed conflict. Here, the point of divergence between these two branches of international law is on the issue of culpability. While human rights law provides that the right is absolute, humanitarian law nonetheless exempts those who may kill from criminal liability if the killing is done pursuant to the laws and customs of warfare. In times of armed conflicts, killings would not be criminal if combatants will target only valid military objects, the definition of which is a person, thing, or object whose destruction will contribute to the military objective, that is: subjugation of the enemy with minimal collateral damage. All killings of civilians, including combatants who have laid down their arms, are hence prohibited and criminal.

Given that the right to life is absolute under Human Rights Law, the first issue is whether Bin Laden’s killing is justified under International Humanitarian Law. The US impliedly says it is when its authorities invoke “self-defense” as a justification for the killing. Problem here is that “self-defense” may only be invoked in case of an armed attack. In the case involving the US backed Contras out to topple the then Sandinista government in Nicaragua, the International Court of Justice defined an armed attack as the “sending of regular armed forces or its equivalent into the territory of another state”. The questions insofar as the Al Qaeda is concerned are: does it have regular armed forces or its equivalent? Did it send its forces into the territory of another state? And if so, whose territory?

Furthermore, self-defense is subject to both necessity and proportionality. According to United Nations Special Rapporteur on Extrajudicial Killings, Philip Alston, a targeted killing is legal “only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal forcenecessary)”.

The American Supreme Court has had at least two instances to rule on the characterization of the US “war against terror” In the cases of Hamdan and Boumediene, the Court refused though to categorically rule that the conflict was either international or non-international. Instead, it nullified the measures adopted by the Guantanamo Military Tribunal as contrary to the rules and customs of warfare. It ruled that its procedure was contrary to Common Article Three of the Geneva Conventions, specifically, the provision that the imposition of penalties must be done only after judicial determination that conforms to minimum standards recognized by civilized nations. The invalidated procedure included a refusal to grant the accused access to evidence presented against him.

While these two American decisions may be read to mean that the “war against terror” is governed by International Humanitarian Law, it still does not answer the question of whether the killing of a combatant, even assuming Bin Laden to be one, is justified under all circumstances. It is hence no different from the question of whether all combatants may be killed all the time.

Interestingly, the Supreme Court of Israel may have already ruled on this issue. In the 2006 Targeted Killings case, two human rights NGOs challenged Israel’s policy of targeted killings or assassinations as violative of International Humanitarian Law and Human Rights Law. The Court found that a civilian taking a direct part in hostilities, including members of a terrorist organization – may be lawfully targeted, provided four conditions are met i.e., the attacking State must have accurate and verifiable information about the target; any killing must be thoroughly investigated and if innocent civilians are killed compensation must be paid; any killing must not violate the principle of proportionality; and most importantly, “a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed”.

Since US authorities have admitted that Bin Laden was unarmed when he was killed, the conclusion is that his killing was not justified. As explained by the Israeli Court, it is because: “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”#

Press Freedom?

Yesterday was the occasion for the world to celebrate Press Freedom Day. As if to mark it, but with no prior plans, yesterday also marked the termination of the hearings in connection with the preliminary investigation for the murder of slain Palawan broadcaster, “Doc Gerry Ortega”. I was taken back with what Dr. Patty Ortega, […] More →

CENTERLAW’S STATEMENT ON WORLD PRESS FREEDOM DAY

As Filipino journalists mark World Press Freedom Day today, the Center for International Law (CenterLaw) urges President Benigno Aquino III to move decisively against the forces of impunity that have continued to imperil free expression and freedom of the press in the country. “The killings targeting journalists have not stopped,” said CenterLaw Executive Director Romel […] More →