Reading between the lines of Duterte’s VFA half a turnaround

By Romel Regalado Bagares

Was all of President Duterte’s  kicking and cursing about the Visiting Forces Agreement (VFA) in February – to borrow from the Bard –really just all bluster, “told by an idiot/ full of sound and fury,/Signifying nothing”?

The question arose after President Duterte suspended for the time being an earlier notice he had sent to the Trump administration that  the Philippines was terminating the country’s VFA with the United States.

Foreign Affairs Secretary Teodoro Locsin Jr announced late Tuesday night the stay on the abrogation of the treaty via a tweet – well, at least, for the next six months.

But the clue lies in the conditional nature of the not-quite complete reversal of policy: per Locsin, the suspension of the process of abrogation took effect on June 1, and  “shall continue for 6 months” and may even be extended for an equivalent period.

Under article 9 of the VFA, the notice of termination was to become effective “180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.”

But the big conditional points to a pending purchase by the Philippines of  six advanced combat helicopters, which had already been cleared by the US State Department but is being opposed by Philippine and American human rights groups.

The purchase, with a price tag ranging from US $450 million to US $1.5 billion, depending on the helicopter make and model  that will eventually be sold, still needs US congressional approval.

And that’s the reason why Mr. Duterte is being segurista. He doesn’t want to fully commit yet to the restoration of the VFA, because he’s leery of what the US Congress will do when the proposed sale is formally presented to it for approval. 

 “The Philippines is considering either the AH-1Z or the AH-64E to modernize its attack helicopter capabilities,” a note on the website of the US Defense Security Cooperation Agency (DSCA) states, as quoted by Defense News. “The proposed sale will assist the Philippines in developing and maintaining strong self-defense, counterterrorism, and critical infrastructure protection capabilities.”

The DSCA is a US Department of National Defense unit dealing with security cooperation with American allies. 

To begin with, the approval by the US State Department should not have happened, given the very reason  for Mr.  Duterte’s decision to end the VFA – yet another cautionary example of American regional realpolitik.  They like to wear the human rights hat when it suits them, but they could just as quickly ditch it in the name of US national interest.

In late January this year,  Mr.  Duterte explored in anger over the reported cancellation by the US of the American visa issued to a key ally in his deadly drug war, Senator  Rogelio “Bato” Dela Rosa, because of the role he played as chief implementor of Oplan Tokhang when the latter was chief of the Philippine National Police (PNP).

What really angered  Mr. Duterte was that the visa cancellation was apparently the consequence of the Asia Reassurance Initiative Act (ARIA), signed by US President Donald Trump in December 2018.

ARIA advances a “Free and Open Indo-Pacific” policy based on national security interest of the United States to promote “human rights and respect for democratic values in the Indo-Pacific region.” The law specifically references the Philippines over “disturbing reports of extrajudicial killings.”

It complements the older Magnitsky Act, a law authorizing the US government to sanction those who it sees as human rights offenders by freezing their assets, and banning them from entering the U.S. 

ARIA authorizes the American president to impose “targeted financial penalties and visa ban sanctions, in accordance with applicable law and other relevant authorities, on any individual or entity that–(1) violates human rights or religious freedoms; or (2) engages in censorship activities.”

It specifically provides that the US government may not provide counter-narcotics assistance to the PNP unless the Philippines adopts a strategy “consistent with international human rights standards, including investigating and prosecuting individuals who are credibly alleged to have ordered, committed, or covered up extrajudicial killings and other gross violations of human rights in the conduct of counternarcotics operations.”

ARIA is also tied to the US Asia pivot to contain China’s growing influence in the Asian region, as it authorizes US forces to “conduct, as part of its global Freedom of Navigation Program, regular freedom of navigation, and overflight operations in the Indo-Pacific region, in accordance with applicable international law; and (2) to promote genuine multilateral negotiations to peacefully resolve maritime disputes in the South China Sea, in accordance with applicable international law.”

This makes Mr. Duterte, who has brought the Philippines closer to China more than any other Filipino leader, a prime target of US sanctions under ARIA.

This also explains Mr. Duterte’s decision to go after the VFA, despite protestations from the Philippine defense establishment. 

As they say, there’s an opportunity in every crisis.

For the Americans, the hefty price tag  that the pending sale of defense articles comes with is only icing on the cake, if it pushes through. After all, it will be the single biggest sale of brand new US defense materiel to the Philippines in recent memory.  More than that, it is a chance to re-establish ties with the Philippine military establishment, and even to re-commit the latter into the US regional agenda.

For Mr. Duterte, it’s an opportunity to placate a restive military unhappy with his pro-China policy direction on the South China Sea. It’s also face-saving for him (look, Trump blinked!), even if in reality, he actually fell for the trap laid down by the Americans for Mr. Duterte when they pushed the ARIA button to get him back to talking with them. 

For the military, it is only too happy to take any chance it gets to upgrade its puny  capabilities (yes, it’s true plenty of them do care about the defense of our national patrimony). Yet  it also highlights for its own constituency the key role the military continues to play under the Duterte administration – for or against.

What we don’t know is if a successful sale will mean Senator Dela Rosa will get back his US Visa. Maybe not.

—————-

This was earlier published by Vera Files and news.abs-cbn.com on June 4, 2020.

The recent ILC report on immunity of foreign officials before national courts

The curious case of Omar al-Bashir, recently ousted President of Sudan, has been a sore point to the International Criminal Court at least, until his ouster from power in April last year.  Wanted for a host of crimes cognizable by the ICC, he had eluded arrest warrants, with various  states – and the African Union itself – refusing to enforce them, on the ground that as a head of state, he enjoys immunity from suit and process.

Jordan’s failure to do the same gave rise to a case before the  ICC Appeals Chamber on that very question, and in May last year, just a month after the Sudanese dictator was removed from power by peaceful protests over corruption charges, the Chamber issued a ruling that effectively removed any claim to immunity by foreign leaders with respect to processes conducted by an international criminal tribunal tribunal such as the ICC. Controversially, the Chamber held that under customary international law, no such immunity may be interposed as an objection as far as international criminal tribunals are concerned.

That conclusion sparked something of an uproar in the international criminal law academia. See here, here, and more recently, here.

The International Law Commission has just weighed in on the question in its Eighth report on immunity of State officials from foreign criminal jurisdiction, submitted by Special Rapporteur Concepción Escobar Hernández. Paras. 25-32 of the Report are apropos.

And the ILC essentially supports the conclusion reached by the ICC Appeals Chamber in the al-Bashir case.  As the report puts it, the following summarizes the Chamber’s findings of immunity of foreign officials in relation to international criminal tribunals:

(a) National tribunals and the International Criminal Court are subject to different rules with regard to immunity: while immunity of State officials may be invoked before a foreign criminal court, it cannot be invoked before the Court;
(b) Heads of State enjoy immunity before the national criminal tribunals of a third State, but not before international criminal tribunals.

(c) States parties to the Rome Statute have an obligation to cooperate fully with the International Criminal Court, including by arresting and surrendering persons accused of committing crimes that fall within the jurisdiction of the Court;
(d) The obligation to cooperate is linked to article 27 of the Statute, which creates both vertical effects (jurisdiction of the International Criminal Court) and horizontal effects (jurisdiction of national courts);
(e) In complying with the Court’s request for cooperation, “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of the Court’s jurisdiction.

The special rapporteur notes it is the last three paragraphs above that “may have some bearing on the present topic, particularly on the very concept of foreign criminal jurisdiction.” 

The Special Rapporteur stresses that indeed her work centers on immunity of foreign officials before national courts, but the Commission may not as well disregard the important work of international criminal tribunals in the fight against impunity, citing the International Court of Justice’s ruling in Arrest Warrant of 11 April 2000 case, which, in her view, “identified such tribunals as an alternative means of avoiding impunity in cases where the criminal courts of a State cannot exercise jurisdiction.”

She continues that “this would allow a case to be referred to an international criminal tribunal as a way of ensuring that the immunity of State officials from foreign criminal jurisdiction is respected and, at the same time, that international criminal responsibility for the commission of certain categories of crimes is clearly established.”

Thus she does not see a conflict in the jurisdiction of foreign courts and international criminal tribunals with respect to foreign officials.  Where I sit, I read her as saying that the complementarity principle enshrined in the Rome Statute would be relevant here specifically for states that are parties to the ICC.  In the case of states that are not parties to the ICC, there is a general obligation to assist international criminal tribunals fulfill their work, under customary international law (albeit she doesn’t expressly refer to it). 

Thus, she recommends a draft Art. 18 in the proposed Articles on immunity of State officials from foreign criminal jurisdiction in this wise:  “The present draft articles are without prejudice to the rules governing the functioning of international criminal tribunals.”

Elsewhere, I have written about the relevance of the al-Bashir ICC Chamber ruling in regard to the bloody drug war launched by President Rodrigo Roa Duterte.

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic

Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic, advanced unedited version – CCPR/C/128/2, April 24, 2020

1. A number of States parties to the International Covenant on Civil and Political Rights have notified in recent weeks the Secretary General of the UN pursuant to article 4 of the Covenant about emergency measures they have taken or are planning to take with a view to curb the spread of the Coronavirus pandemic (COVID-19), in derogation from their Covenant obligations. It has been brought, however, to the attention of the Committee that several other States parties have resorted to emergency measures in response to COVID-19 in a manner seriously affecting the implementation of their obligations under the Covenant, without formally submitting a notification of derogation from the Covenant. The Committee calls on all State parties which have taken emergency measures in connection with the COVID-19 pandemic that derogate from Covenant obligations, to comply without delay with their duty to provide immediate notification to the Secretary General of the UN, if they have not done so yet.

2. The Committee is of the view that in the face of the COVID-19 pandemic, States parties must take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and it recognizes that such measures may result in certain circumstances in restrictions on the enjoyment of individual rights guaranteed by the Covenant. Furthermore, the Committee acknowledges that States parties confronting the threat of widespread contagion may resort, on a temporary basis, to exceptional emergency powers and invoke their right of derogation from the Covenant under article 4, provided this is required to protect the life of the nation. Still, the Committee wishes to remind States parties of the requirements and conditions laid down in article 4 of the Covenant and explained in the Committee’s General Comments, most notably in General Comment 29 on States of Emergency (2001), which provides guidance on the following aspects of derogations: (1) official proclamation of a state of emergency; (2) formal notification to the Secretary General of the UN; (3) strict necessity and proportionality of any derogating measure taken; (4) conformity of measures taken with other international obligations; (5) non-discrimination; and (6) the prohibition on derogating from certain non-derogable rights. In particular, States parties must observe the following requirements and conditions when exercising emergency powers in connection with the COVID-19 pandemic:

(a) Where measures derogating from the obligations of States parties under the Covenant are taken, the provisions derogated from and the reasons for the derogation must be communicated immediately to the other States parties through the Secretary-General of the UN. Notifications by States parties need to include full information about the derogating measures taken and a clear explanation of the reasons for taking them, with complete documentation of any laws adopted. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally to the termination of the derogation. The Committee considers the implementation of the obligation of immediate notification essential for the discharge of its functions, as well for the monitoring of the situation by other States parties and other stakeholders.

(b) Derogating measures can deviate from the obligations set out by the Covenant only to the extent strictly required by the exigencies of the public health situation. Their predominant objective must be the restoration of a state of normalcy, where full respect for the Covenant can again be secured. Derogations must be limited, as much as possible, in respect of their duration, geographical coverage and material scope, and all measures taken, including sanctions imposed in connection with them, must be proportional in nature. Where possible, and with a view of the need to protect the life and health of others, States parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to take place, while subjecting them to necessary public health requirements such as physical distancing.

(c) States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights, such as article 12 (freedom of movement), article 19 (freedom of expression) or article 21(the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as article 9 (right to personal liberty) and article 17 (right to privacy), in accordance with their provisions.

(d) States parties cannot resort to emergency powers or implement derogating measures in a manner that is discriminatory, or which violates other obligations they have undertaken under international law, including under other international human rights treaties from which no derogation is allowed. Nor can States parties deviate from the non-derogable provisions of the Covenant – i.e., article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion) – or from other rights which are essential for upholding the non-derogable rights found in the aforementioned provisions and for ensuring respect for the rule of law and the principle of legality even in times of public emergency, including the right of access to court, due process guarantees and the right of victims to obtain an effective remedy.

(e) In addition, States parties cannot derogate from their duty to treat all persons, including persons deprived of their liberty, with humanity and respect for their human dignity, and they must pay special attention to the adequacy of health conditions and health services in places of incarceration, as well as to the rights of individuals in situations of confinement, and to the aggravated threat of domestic violence arising in such situations. Nor can States parties tolerate, even in situations of emergency, the advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence, and they must take steps to ensure that public discourse in connection with the COVID-19 pandemic does not constitute advocacy and incitement against specific marginalized or vulnerable groups, including minorities and foreign nationals.

(f) Freedom of expression, access to information and a civic space where a public debate can be held constitute important safeguards for ensuring that States parties resorting to emergency powers in connection with the COVID-19 pandemic comply with their obligations under the Covenant.

A (post)modern-day Vandal contra the Church

President Rodrigo Duterte’s vituperation against the Roman Catholic Church is unprecedented in recent Philippine political history. Not even the late dictator Ferdinand Marcos’s record matches it.Yet, in a predominantly Catholic country, his outrageous display of irreligiosity appears to perturb only a few.

His harangue hits at the heart of Orthodox Christianity: the doctrine of the Trinity and the crucifixion of Christ. It highlights the biggest catechetical challenge as yet to the Filipino Church, even as it finds itself in yet another crossroads.

In the broader context, the Francis Papacy has exposed seismic rifts between Church progressives and traditionalists. His “Amoris Letitia” threatens to tear the very fabric of the Church’s existence; indeed, conservative Catholic leaders see his exhortation as an immoral rewriting of marriage, and a door through which liberal ideas are smuggled into the Church.

Too, the epidemic of pedophilia in the American Church and elsewhere that has devoured thousands, and Francis’s failure to decisively address it, has served to further undermine the global Church’s integrity as a clear moral voice amidst a postmodern amoral wilderness.Worse, the Vatican itself has been wracked by revelations of high immorality that would make even libertines blush.

Here, post-EDSA 1986 politics saw Catholic bishops playing footsie with the powers-that-be (think Pajero bishops!). This, even as they actively opposed the government’s program to promote family planning in the country and prosecuted such a harmless soul as Carlos Celdran for his schoolboy antics.

All we see now is a Catholic Bishops’ Conference of the Philippines reluctant to speak a common voice of conviction, not a body of believers a prophetic Cardinal Sin once led, although the recent bombing of the Jolo Cathedral, which killed 21 Catholic faithful and wounded nearly a hundred others,has forced them to issue a pastoral letter decrying the “cycle of hate” that has gripped the country.

The pastoral letter, issued at the close of the CBCP’s 118th plenary assembly, also made an oblique reference to the President’s anti-Catholic vitriol, but said they are responding to it with “silence and prayer.” At least, for now.

To my Protestant eyes, what we have is a Filipino Church at its politically weakest.

An astute politician, the President knows this. Like Arian Vandals besieging St. Augustine’s beloved city of Hippo and its Latin Christian culture, he is exploiting the crises facing the Church to whittle away at the foundations of what is potentially the sole unified opposition to his bloody drug war, and yes, his vision of the future.

He also understands that this is no longer the time of Thomas Aquinas, who, at the height of Christendom in Europe, taught that the Church has a moral right to excommunicate and depose from power a ruler who is leading the faithful away from the gospel.

But it is beautiful to see such weakness of the Church typified by Caloocan Bishop Pablo Virgilio David, a soft-spoken French-trained bible scholar who has chosen to walk with the poor and the powerless of his diocese.

Or by Sister Maria Juanita Daño, RGS, who has lived through the horrors of Oplan Tokhang in San Andres, Bukid with her fellow parishioners. Bishop Ambo and Sister Nenet exhibit the poverty of spirit of the Sermon on the Mount.Or by the Vincentian fathers who have given refuge to the families of victims of the deadly scourge of tokhang that has decimated scores of lives in urban poor communities in Quezon City.

They also reaffirm a central message delivered by Pope Pius XII from the Vatican on Christmas Day, 1942. In his address, Pius XII said every human power has a duty to give back to the human person “the dignity given to it by God from the very beginning.” This, said Pius XII, is only possible where people once again recognized a divinely instituted juridical order, one “which stretches forth its arm, in protection or punishment, over the unforgettable rights of man and protects them against the attacks of every human power.”

These brave words said at the height of the Nazi onslaught was “a critical turning point” for the idea of universal human rights, subsequently defining postwar history and shaping governments in Europe, argues Harvard law professor Samuel Moyn’s book “Christian Human Rights”(2015).

In 1945, diplomats drafted a Universal Declaration of Human Rights that echoed Pius XII’s words, saying the Declaration intends “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.”

The Filipino Church badly needs to rediscover this legacy for such a time as ours.

This essay was first published by Verafiles  on January 31, 2019 here.

Void ab initio: A legal history

“He who has real power is also capable of determining concepts and words,” wrote Nazi constitutional theorist Carl Schmitt. “Caesar dominus est supra grammaticam (Caesar is also the lord of grammar).”

Schmitt is studied not as a grammar Nazi but for the import of his most famous words in the very first line of his “Political Theology” (1922): “Sovereign is he who decides on the exception.” A true sovereign wields unchecked power to name friends and enemies of the state.

Solicitor General Jose Calida may not have read Schmitt in law school, but his use of the Latin maxim void ab initio in Sen. Antonio Trillanes IV’s amnesty case is textbook Schmittian grammar. It is what the President says it is.

In 1941, the German Jewish émigré Ernst Fraenkel published in the United States his book, “The Dual State,” showing how the Nazis applied Schmitt’s ideas to seize control of German administrative and judicial bodies.

The legal scholar described two contrary features of Hitler’s government: There was the “normative state,” the formal constitutional norms for civil and political rights, and the “prerogative state,” with its arbitrary exercise of power. Fraenkel’s study shows the gradual surrender of the normative state to the prerogative state by German lawyers, legal scholars and judges after Hitler declared martial law on Feb. 28, 1933.

For one, German courts considered martial law a political act outside their jurisdiction. Schmitt argued that the grounds for martial rule in Article 48 of the Weimar constitution cannot limit the Führer’s own prerogatives. If the constitution provides but two grounds for martial law—rebellion or invasion—he may disregard it. Or he may hold that terrorists who lay siege to Berlin are committing rebellion, even if it means treating them as a political group, as long as he gets his martial law.

Hitler had argued that he is the societal order. Thus, he who opposes the president opposes law and justice. Yet many believed him. Every governmental action must align with the goals of National Socialism, a “religion without a god.”

In 1929, professor Carl Bilfinger wrote that international law is limited by reservations on national security. Schmitt agreed, saying the reservations are more important than the treaty. Both scholars would be fine with the Philippine withdrawal from the International Criminal Court as a sole executive prerogative.

There was only muted resistance to this system, like a lower court ruling that a composer is entitled to royalties for his music aired by radio stations, rejecting arguments that the stations — since they also aired Nazi propaganda — were exempt from royalty fees.
Otherwise, democratic institutions toed the line. Across Germany, the prerogative state reduced the rule of law to its arbitrary and irrational diktat.

Even civil servants were denied access by the courts to their own official records in disputes with their superiors (sounds familiar?). A 1935 decision of the Prussian Supreme Administrative Court abolished Article 129, Section 3 of the constitution guaranteeing the right, as it contradicted the Nazi “leadership principle.”

The Prussian Supreme Court also held that all religious activities must meet government regulations; if not, believers may be guilty of stoking “indirect Communist danger.”
In 1938, another court convicted a minister of breaching the peace for praying for prisoners held by the Nazis. Fraenkel noted how the highest court of Bavaria erased the fundamental principle of double jeopardy, punishing anew a man who had already served his sentence for “high treason.” The principle is merely procedural, it so held.

All eyes are now on the Makati City Regional Trial Court Branch 148, and the Supreme Court: Is ne bis in idem, as the principle is said in Latin, also void ab initio, as the President says?

By 1936, “the resistance of traditional law-enforcing bodies was weakened.” We all know what happened to German Jews — they lost their right to property, and their very own lives. For, by simply being born into a race not of their own choosing, they rendered their right to exist void ab initio.

This was first published in the Philippine Daily Inquirer, October 3, 2018.

The “public interest” and its (mis)use throughout history

 

Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.

The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)

Republic’s Interregnum: Legal Lacunae in the State of Exception

Going over Republic v. Sandiganbayan’s ponencia by J. Carpio in class last night, I was struck by the abnormal situation it had to cope with and the way in which the Court dealt with it. For one, we have to realize that the 1987 Charter is a constitution that expressly carves out a state of exception for a series of acts committed by the revolutionary government — through Jovito Salonga no less! –in the constitutional interregnum.

The interregnum was our Schmittian moment in a deeply paradoxical way: we ousted the martial law regime but resorted to some of its tactics to make sure the political gains already won will not be lost again. Indeed, in the 1987 Charter, we have a constitution that expressly sanctions unconstitutional acts committed in the space of the interregnum s when there was no operative constitution!

Section 26, Article XVIII,  states:

SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

As it were, it co-exists happily with Art. III, the Bill of Rights.

Second, the way in which J. Carpio directly applied international law into a domestic question of unreasonable search and seizure, purportedly because there was no Bill of Rights to speak of, with the throwing out of the 1973 Marcos constitution by the People Power Revolution.

It’s as if –among other things — nearly nine decades of jurisprudence laying down due process protections did not exist, the doctrine of stare decisis ceased to apply,  and Art. 8 of the Civil Code also went out the window along with the 1973 Constitution. Dean Magallona’s critique of this decision was spot on, if only it wasn’t cryptic in parts. Nevertheless, that offending clause in the 1987 Charter is more Agamben than Schmitt to me.

Aquinas on Tyrants and Tyrannicide

Aquinas’ De regno ad regem Cypiri (Address to the King of Cyprus, circa 13th C.) : interesting to read this short work written by Thomas Aquinas, especially the section on tyrants and tyrannicide, which I find to be a fertile source for contemporary political thought and discussion. A special note to make is that for Aquinas, a monarchy is the best political arrangement, hence the discussion is centered on the king.

Aquinas is reluctant to endorse private ventures to kill a tyrant; at the most, he appears to allow an uprising led by public authority as a last resort (I suppose, to give it a cloak of legality). Calvin follows this line, as do the Dutch Calvinists (for example, getting William of Orange to lead against Spanish tyranny), but I am not sure if Calvin et al acknowledge Aquinas as their source for their position.

Too, one thinks of the failed attempt to assassinate Hitler that was joined by the Lutheran theologian Diectrich Bonhoeffer, which seems to meet Aquinas’ requirement, as it was hatched by a small group that involved military officers and a couple of civil servants, who thus might qualify as public authorities. Yet Aquinas gives sufficient caution against such an adventurism, citing Roman examples when the ouster of a tyrant led to worse tyrannies. (Think of Pol Pot too!)

He also appears to provide a basis for later social contract theories here: ” If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power. It must not be thought that such a multitude is acting unfaithfully in deposing the tyrant, even though it had previously subjected itself to him in perpetuity, because he himself has deserved that the covenant with his subjects should not be kept, since, in ruling the multitude, he did not act faithfully as the office of a king demands.”

As earlier stated, Calvin and the Dutch Calvinists appear to echo this Thomist idea of revolt led by public authority; The English Puritans also argue that the governed have the right to revolt against unjust leaders. The American revolutionaries who rose up against the British re-state the same idea, by way of the English social contractarians, notably John Locke.

Ideas have legs, indeed? (Also serves to show Ecclessiastes is right — there is nothing new under the sun. Human nature, being what it is, often falls victim to the same weaknesses and bad habits). Hence the relevance of the battle cry — ad fontes!

Finally, Aquinas allows that tyrants may have been allowed by God to rise to power as punishment for the sins of the people. Now we Filipinos should start asking ourselves whether the present darkness is a punishment or a reward.

 

(photo of the Tyrant Periander of Corinth’s  source)

The UDHR and the Ontology of Rights

 

More than 60 years after its founding, the Universal Declaration of Human Rights (UDHR) remains a document relevant to contemporary issues and problems; Perhaps, its genius lies in the fact that it is a declaration that embodies a broad sweep of the world’s varied traditions, philosophies and perspectives, so that no single bloc can claim ownership over its “sacred truths,” to use a theological term in this highly secularized era of ours.

Perhaps too, it can well be said that their commonality lies in the sureness of their being profoundly human. And while critics may rightly point to how its more influential interpreters often offer to the world a lopsided bent towards the individualistic view of human rights, as a founding document, its relevance is measured by the willingness of its adherents to a reasoned dialogue about the differences and commonalities that characterize various interpretive traditions.

Of course, ontological issues cannot be summarily set swept aside. (Indeed, the Western tradition presses on the primacy of the individual as the supreme if not the only ontological truth there is).

But that precisely is the role of reasoned dialogue: to show which interpretative strategy is better able to explain the problems and the solutions to them. Hence how can we better account for the so-called collective/group rights other than a resort to the positivist predilection for the description of the what is (and its undisguised disdain for the teleological)?

This discussion is also crucial to an understanding of the rise of non-state actors in international law. Is the sociological account (as for example, the process view of Higgins) enough to convince us that original objective legal personality must now be seen as something that transcends the state.

Indeed, much of theorizing on the state has been influenced by a philosophical movement that either exalts the state as the only political reality or treats it as a legal fiction of the social contract between among purportedly free and autonomous individuals.

International legal theory takes it for granted that there is an opposition between the individual and the state, to the exclusion of all other non-state actors. International legal theory thus confronts us with a nominalism of the state as the only true sovereign and a nominalism of individuals as the basic elements of the international legal order.

Hence, international law theorists resort to an unsatisfactory strategy of (1) devising external limits to the powers of the state or (2) stressing the primacy of the individual over all else to curtail abuse of state power. This nominalistic approach has so dominated international law that for the most part, the state has been seen as the only source of legal standing and legal personality in the international arena.

The first strategy cannot fully account for the state’s public and private duties while the second strategy fails to do justice to the proper exercise of the same duties as well as to the existence of other non-state entities, such as civil society groups, churches and multinational corporations.

This in fact leads to an irresolvable conflict between the state and the individual, inasmuch as it fails to properly recognize their respective competencies, as well as the existence of other spheres in society.

Neither of the two strategies can properly account for the rise of non-state actors in international legal discourse, other than resorting to notions of democratic participation and legitimacy that in the first place do not provide a convincing ontological justification for why non-state actors should be granted the right to democratic participation and the power to ascribe legitimacy to international legal processes.

As Jeremy Sarkin has persuasively argued, there is a “clear position from 1948,” when the UNDHR was adopted, that the instrument demands that “every individual and every organ of society … promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

From this standpoint, although “companies may not be in the habit of referring to themselves as ‘organs of society,’ they are a fundamental part of society. As such, they have a moral and social obligation to respect the universal rights enshrined in the Declaration.”[1]

Yet his observation also begs to ask the question thus: is this merely a matter of opinio juris and state practice, or something that requires a radical and fundamental ontological commitment? Of course, we all know that even the positivist position is anchored on an unstated ontological commitment, that is, one that thinks lightly of ontology, if at all.

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On the occasion of International Human Rights Day, Dec. 10, 2015

[1]Jeremy Sarkin, The Coming of Age of Claims for Reparations for Human Rights Violations in the South, 1 SUR INT’L J OF HUM. RIGHTS 67, 69-70 (2004)

 

The Cebu Declaration for Free Expression in Southeast Asia

Lawyers from five countries in Southeast Asia have met in an historic conference in Cebu, Philippines to form a common front against the repression of freedom of expression in the region.

One of their key proposals is to engage together and hold accountable regional institutions like the ASEAN Intergovernmental Commission on Human Rights – an organization, they say, remains unresponsive to human rights violations in member countries.

More than 30 lawyers, representing 10 civil society organizations from Thailand, Malaysia, Myanmar, Indonesia and the Philippines established Sunday the Advocates for Freedom of Expression Coalition-Southeast Asia (AFEC-SEA) and vowed to “raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.”

“A violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region,” they said in a document signed over the weekend during the four-day conference in Mactan, Cebu. “The protection of freedom of expression is an obligation of the whole region under international law.”

Most of the signatories are trial lawyers who have handled cases against freedom of expression and Internet freedom. Some – including senior lawyers from Myanmar – had been jailed for fighting against human rights violations or for advocating freedom of expression.

“Recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia,” the declaration said, signed by the Center for International Law Philippines (CenterLaw), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Institute for Criminal Justice Reform (ICJR), iLaw, The Legal Aid Center for the Press (LBH Pers), Malaysian Centre for Constitutionalism & Human Rights (MCCHR), Myanmar Lawyers’ Network (MLN), Myanmar Media Lawyers’ Network (MMLN), Philippine Internet Freedom Alliance (PIFA), and the Thai Lawyers For Human Rights (TLHR).

The conference was organized by Centerlaw with the support of the American Bar Association Rule of Law Initiative Internet Freedom program.

“(I)n establishing this freedom of expression collation, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world,” the declaration added.

“It is an opportune time for us to issue this declaration given the escalating repression of expression in the region, including restrictions on the use of the Internet,” said Romel Bagares, CenterLaw executive director.

He said the lawyers realize that for the most part, they are fighting an uphill battle in countries like Thailand, Myanmar and even Malaysia. “But it is important that cases are filed to have an historical record of wrongs brought to court.”

Among the projects coalition members will undertake is a campaign against the use of a single gateway for the Internet in Thailand, legal challenges against the use of the 1948 Sedition Act in Malaysia to repress protests against the government, and the filing of cases in the Philippines against recently-issued government regulations on the Cybercrime Act, according to Gilbert Andres, a Centerlaw senior litigator who played a key role in bringing the lawyers together to the conference.

“The lawyers have also agreed that the Asean Intergovernmental Commission on Human Rights needs to be challenged and engaged to play an active role in the promotion and protection of free expression,” said Andres.

Delegates from Myanmar also highlighted their “Yellow Ribbon campaing” for judicial independence in their country in the wake of the appointment by the government of senior military officials to their Supreme Court. “Free expression is stifled when the courts are filled with generals who repress dissent the first time they see it,” said Aung Soe, a veteran lawyer who represented the Myanmar Media Lawyers Network and the Myanmar Lawyers Network, two largest lawyers’ groups in his country .

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Cebu Declaration  on the  Right to Freedom of Expression as a Fundamental Human Right  and its importance to the Southeast Asia region

WHEREAS, we are non-governmental organizations in Southeast Asia working for the protection and promotion of human rights, especially for the right to freedom of expression;

WHEREAS, recent events have posed and continue to pose serious threats to freedom of expression in Indonesia, Malaysia, Myanmar, Philippines, Thailand, and the rest of Southeast Asia;

WHEREAS, we see an urgent need in Southeast Asia to utilize remedies under domestic and international law against these threats to freedom of expression, for we want to establish an edifice for free expression that will serve not only this generation but the future generations of Southeast Asians;

THEREFORE:

WE DECLARE that the right to freedom of expression is essential in the pursuit of truth, justice, equality, and accountability; but more importantly, freedom of expression is a fundamental human right since as human beings we yearn to express our own humanity.

WE DECLARE that in order to animate our core belief in the right to freedom of expression as a fundamental human right, our individual members shall commit not to prosecute criminal cases against anyone for something he or she expresses except in accordance with international human rights norms, and shall advocate for the repeal of criminal libel laws.

WE DECLARE that the right to freedom of expression is universal, but that the methods for its advocacy and protection are contextual; hence, we shall raise a Southeast Asian voice that will champion freedom of expression in our region in accordance with international human rights norms as exercised by journalists, bloggers, netizens, citizens and human rights defenders, in whatever medium, form, or frontier, whether traditional or emerging.

 WE DECLARE that the economic and social integration of Southeast Asia requires the respect and protection of freedom of expression in our region consistent with international human rights norms. Freedom of expression cannot be bargained for purely economic, social or political considerations. Moreover, a violation of the right to freedom of expression in one Southeast Asian nation is a matter of grave concern to the whole region; the protection of freedom of expression is an obligation of the whole region under international law.

WE DECLARE that the rule of law, equality, non-discrimination, access to justice and fair trial are essential to the protection and promotion of freedom of expression.

WE DECLARE that to be more effective advocates for freedom of expression and the rule of law in Southeast Asia, we resolve to work together in unity of purpose, action, spirit and passion, and WE THEREFORE ESTABLISH the Advocates for freedom of expression Coalition-Southeast Asia to advance freedom of expression across Southeast Asia consistent with international human rights norms, through strategic litigation, education, training and advocacy.

LASTLY, WE DECLARE that in establishing this freedom of expression coalition, our vision is to achieve a Southeast Asia that upholds and protects freedom of expression, and the rule of law, serving as a beacon of free speech to the world.

Signed this 27^th day of September 2015, in Lapu-Lapu City, Mactan Island, Cebu, Philippines, by our duly authorized representatives