Category: mindanao

The legal argument against martial law

Oscar Franklin Tan

Who sends Tyrion Lannister to a sword fight and Jaime Lannister to a negotiating table? Sadly, this is what the most vocal legal critics of martial law have done in the past 18 months.

Martial law is our most formidable emergency power. Deploying it merits serious political and legal questions.

The political asks: Is martial law correct? The legal asks a more basic question: Is it even permitted given the facts?

Law sets minimums but cannot decide for us.

How confused has the legal debate been?

Initially, for example, critics argued a president may not declare martial law if not recommended by his defense secretary.

No judge could accept this. Our Constitution has no such requirement and it is illogical because a president may overrule or even replace his defense secretary any time.

Sensible legal advocates frame:

1. What actual powers does martial law grant?

2. How has martial law actually been used since May 23, 2017?

3. What military plans for 2019 cannot be pursued without martial law?

Visualize the Marawi siege.

At its height, Mayor Majul Gandamra and policemen barricaded themselves in Marawi’s City Hall, preventing the Islamic State flag from being flown there. City hall reopened days later, although it was too dangerous for staff to come to work daily.

This is the extreme scenario martial law solves. With the mayor fighting for his life and other officials dead or in hiding, martial law empowers a general to intervene and restore government.

But this picture equally demonstrates when martial law is irrelevant.

If no bullets are flying and City Hall is open, what does martial law authorize the general to do that he cannot normally do? Remember, the military already has broad powers, to match its broad responsibilities.

Article VII, Section 18 of our Constitution primarily requires an “actual” — this is the technical legal term, contrasted with threatened or imminent — rebellion to declare martial law.

Our Supreme Court’s Lagman decision, in February 2018, allowed a second martial law extension. It accepted that an “actual” rebellion tried to remove territory from the government. The military is still chasing rebels across Mindanao as they try to regroup, recruit new members and restart the fighting.

How does one dissect planned action in 2019 in a legal context?

If the plan is for a general to run Marawi due to a new attack, this may meet Article VII, Section 18.

But if the plan is to chase rebels into mountains and swamps, troops may be transferred to Mindanao under normal powers. And generals do not need to temporarily take control of mountains and swamps from civilian leaders.

If the plan is to step up intelligence and counter terrorist recruitment, the military is also already authorized. And only new legislation, not martial law, would give them additional budgets and new legal tools for intelligence.

If the plan is to improve peace and order and scour the countryside for loose firearms, then this is a job for police, not the military. Peace and order is a civilian task and the police is a civilian agency.

Remember, the military may be deployed to assist police under normal powers, without martial law, as they are to help build roads in remote areas and rescue flood victims.

One concludes martial law is the wrong legal tool to achieve many military goals, as opposed to new legislation, increased budgets and troop redeployments. It is thus crucial to set politics and egos aside and have the separate legal debate free
of drama.

The goal must be to deploy the best legal tools to allow our soldiers to complete their mission safely and allow Marawi to rebuild with dignity.

Further, we have an obligation to the next generation to document how the new martial law was implemented in fidelity to our Constitution.

But we must understand the difference between political and legal arguments, as we do the difference between standing beside Tyrion and beside Jaime in a sword fight.

mourning marawi

check out the atlantic‘s  A Victory Against ISIS in the Philippines Leaves a City Destroyed.  see the photos and weep for marawi.  one doesnt have to be from there, one doesn’t have to be muslim or maranao, to feel anguish, especially for the sixty percent poor who lost what little they had, and to wonder if there was no other way.  read leandro dd coronel’s Marawi on one’s mind.

Marawi City used to have 200,000 residents. How many of them will or can go back to their former homes? There’s nothing to go back to.

… Did the government win? Did the Maute lose? … What is clear is that the people of Marawi are the losers in the battle of Marawi City. The place is in such total devastation that it will take decades to rebuild it. And it will take a lot longer than that to rebuild the people of Marawi’s lives.

but read too benignO’s Can Marawi City’s reputation as a no-go-zone for Filipino Christians be changed?

Marawi City is one of, if not the most, predominantly Muslim city in the Philippines and has, fairly or unfairly, suffered a reputation as a no-go-zone for Filipino Christians for some time. Across various online forums, assessments of how safe one could feel in Marawi City are varied. Mindanao State University (MSU) — one of the Philippines’ top universities — is located in the outskirts of Marawi. It is often cited as proof that Christians can be counted as inhabitants of Marawi and, indeed, the majority of MSU students and faculty are Christian. However a commentor in the Living in Cebu Forum site noted that most MSU students “go to Iligan [City] for their big city needs”, presumably a preference to the option of venturing into downtown Marawi. Indeed, another went further to describe Marawi as “a scary place”…

Safety, it seems, is conditional and relative in Marawi City. A Yahoo! Answers thread yielded some interesting anecdotes from Netizens responding to the question “Marawi City: Is it safe to go around? I am a christian…?” One remarked that Marawi is safe “if you are from that place or have friends to watch over your back” …

Another said that it is a place where vehicles stolen in Cagayan de Oro City are sent to, never to be recovered again — perhaps a reference to stories about military and police personnel pursuing criminals themselves being disinclined to pursue them into Marawi itself.

As such, it is not surprising that Marawi and cities like it are prime candidates for Islamic terrorists to establish footholds in. Because they are regarded as “Muslim territory” the perception that people in these regions are more tolerant or even accommodation of Islamic extremists is there.

It comes back to the question of how well Filipino Muslims, as has been asked of Muslim minorities living in predominantly Christian or secular societies around the world, can police their own ranksand manage on their own issues that contribute to the radicalisation of members of their community. Lanao del Sur and surrounding provinces are part of the Autonomous Region of Muslim Mindanao and, as such, enjoy some degree of freedom to self-govern. This granting of latitude to govern as an autonomous entity was on the basis of religious identity as the name given to this collective of provinces implies.

The people of Marawi and the greater community of Filipino Muslims should confront the reality of Islamic extremism and how, by all accounts, much of it flourishes in predominantly Muslim-populated regions in the Philippines. This reality cannot be escaped by simply “praying for peace” or counting on social media “influencers” to liberally issue meaningless calls to “stand together in solidarity” with their “Muslim brothers”.

i’m afraid that in marawi’s case, the major consideration was not the residents’ welfare in the immediate then-and-now but the marawi (and mindanao) territory’s status in the long-term.  hapilon and the maute brothers were not only leaders of extremist terrorist bands but hapilon was also the ISIS caliphate’s official rep in east asia.  the goal was to take over and turn marawi into an ISIS province with hapilon as governor.  in effect dismembering the philippine republic.

dismemberment, losing a territory, is anathema to the republic.  losing control over predominantly muslim parts of mindanao to terrorist groups and islamic fundamentalists scares the bejesus out of us all — including peace-loving moros i would think — in a mindanao that is already predominantly christian.

there has to be a way of granting the bangsamoro self-rule and i believe a BBL, not federalism-for-all, is the way to go.

calling out congress #passBBL #no2revgov

it’s great that the war in marawi is practically done.  we all need breathing space from the killings and destruction, the misery and loss.  we need to stop and take stock, seriously consider how to prevent pre-empt more war in mindanao.

in two speeches, before and after hapilon and maute were taken down, the president was unequivocal: federalism is the only way to keep the peace.

“The MI pati MN has been hanging on to the range of their forces. They are cooperating with government, fighting alongside with government forces, but they are hoping that what they have been asking for centuries will be given.

“If we fail to come up with a reasonable counter proposal, then I assure you that there will be fighting everywhere in Mindanao. For then, the mainstream rebel groups would now be joining with the extremist groups.  …their common determination, their dream is … magkaisa itong lahat against the Republic of the Philippines.  And I have it in good authority that they will declare an independence. They would declare an independent Mindanao.” [oct 12]

“… it would be easy if we agree na mag-federal tayo.  kapag hindi, talagang sasabog ito, because then i would predict that the MI (and) MN would now join with everybody in, and there are aplenty…. armas. mahirap talaga tayo magsurvive as a nation, the republic, intact.  hindi ko kayo tinatakot….  sinsasabi ko yan noon pa sa kampanya. bec i know that it would create division and eventually maybe a breakage. ang mahirap nyan kung papasok na naman yang mga UN at … makialam … then if they recognize a belligerent state now, then you would have to treat it as an independent entity. yan ang delikado diyan. once makialam itong mga united nations … we would be reduced from the … yugoslavia, before, then you have serbia, you have so many city states, the balkan states, watak watak na sila, kanya kanyang state …”

Because then if there is a status of belligerence given to them, then it becomes very, very, very serious for all of us. …  And the Americans will realize to their sorrow that they have been too myopic in this thing. [oct 16]

the president has not mentioned the draft BBL (version 2017) transmitted by the palace to congress in mid-august and which the senate prez and house speaker promised will be passed by yearend, na tila di gumagalaw; anyway walang balita except a tidbit from ANC‘s  Bangsamoro and Beyond: A National Conversation taped oct 5 and aired oct 19, na meron na daw itong more than a hundred signatures sa lower house.  totoo?

tila walang sense of urgency sa legislature, and this might explain why the president is antsy, seeing destab plots, and threatening  revolutionary government, by hook or by crook?  revgov na lang, kung walang BBL by yearend, para makapag-chacha para makapag-shift to federalism para maibigay sa MI at MN ang matagal nang inaasam na regional autonomy for muslim filipinos?

naguguluhan ako, at siguro ang lehislatura rin, dahil back in july 2016, his first month as president, this is what the president said:

If majority of Filipinos vote against federalism in a plebiscite, President Rodrigo Duterte will throw his support behind the Bangsamoro Basic Law (BBL), he said.

“If the Filipino nation in a plebiscite would not want it, I am ready to concede whatever is there in the BBL law. We will see to it that it will pass,” said the Philippine president on Friday, July 8 during a gathering of Muslim leaders in Davao City.

Duterte said he is eyeing a “framework” on federalism to be ready by the end of 2016.

“Towards the end of the year, we can come up with the framework,” he said. The framework could entail a “reconfiguration” of territories of ethnic groups like the Tausug, something desired by Moro National Liberation Front (MNLF) leader Nur Misuari.

okay lang naman kung BBL muna, i can’t imagine why not. calling out speaker alvarez and senate prez koko, paki-explain why you guys aren’t bothered by the president’s fearless forecast of war in mindanao if BBL does not happen.  (i know, i know, they’re all on vacation.)

of course, puwede ring plebiscite muna to vote on a new charter that provides for federalism and a truly autonomous bangsamoro region, why not.  balita pa nga ng rappler, meron nang draft constitution na naisumite ang PDP-Laban Federalism Institute sa lower house.

… a draft Constitution that would govern the Philippines under a federal system of government. The draft is the result of research and consultations done by a group of experts gathered by PDP-Laban president Aquilino Pimentel III through the institute. 

i always figured that it’s the president’s call, as he’s so astig.  but, yes, he needs the cooperation of congress, whether for the BBL or the new charter, and congress is proving to be uncooperative, even recalcitrant.

come on, guys!  kaysa naman mag-revgov?  or is that the goal.  argh.  these trapos.

#passBBL #no2revgov

Requiem for Marawi

Amelia HC Ylagan

Only the rat-a-tat of gunfire cuts through the thick smoke standing unafraid in the stillness. Then, dusty feet climb soundless on the ash-carpeted stairs onto a tiered stage nested amidst rubble and fallen stone pillars — and slowly the haze lifts like a curtain rising. High gothic arches loom as backdrop, and the light from a shattered stained-glass rose window shines upon a full symphonic orchestra and choir: it is Zubin Mehta conducting the Sarajevo Symphony and Choir, for Wolfgang Amadeus Mozart’s “Requiem in D-minor.”

It was at the saddest height of the infamous Siege of Sarajevo that Mozart’s “Requiem” was played in 1994. The charred remains of the National Library, once the Sarajevo City Hall, was a tragic monument to “some 10,000 people, the vast majority civilians and many of them children, (who) have died or disappeared during the Serbian nationalists’ bombardment of Sarajevo (April 5, 1992 to Feb. 29, 1996) (The New York Times, 06.20.1994).” The 10-minute video of the 35-minute full concert showed buildings burning from air strikes and bombings, juxtaposed with horrible vignettes of the wounded and killed. Children and babies wide-eyed with fear must have harkened, in their innocence, to the plaintive wailing of violins in the requiem and the magnified pounding of their hearts in the heavy bassoons and drums.

The persistent adagio of Mozart’s Requiem bears on the hearts of all in predominantly Muslim Marawi, as in the whole country today, like it did in Sarajevo two decades ago — still to evoke the rueful destruction from ethnic/religious conflicts and rebellions between and among citizens of one country.

“I weep for all the civilians who were mercilessly killed, I weep for the lost homes of my people and I weep for the loss of the true essence of Islam in the people who caused all these destructions to our lives and properties,” Marawi Mayor Majul Gandamra painfully shared (AP, 06.14.2017).

Nearly every day for weeks, the Philippine military has pounded Marawi with rockets and bombs, to ferret out militants believed to be linked to the terrorist Islamic State group. It is one of the fiercest urban combat this volatile region has seen in decades, the Mindanao Sunstar notes (06.12.2017).

On May 23, President Rodrigo Duterte issued Proclamation No. 216 declaring martial law and suspending the writ of habeas corpus in the whole of Mindanao (ABS-CBN News, 05.23.2017). Around 400,000 residents of Marawi City and neighboring towns in Lanao del Sur have been displaced in different parts of the country. Reports of death of civilians due to indiscriminate aerial bombardment have risen to 39 individuals by government reports, according to the Rural Missionaries of the Philippines or RMP, founded by the Association of Major Women Religious Superiors of the Philippines (AMWRSP), a religious civil activist group. The military confirms that around 507 people have died — of this number, 379 were terrorists; 89 were soldiers and rest were civilians (msn.com, 07.20.2017).

“Thousands of families have been staying in different evacuation centers since the fighting erupted before the start of Ramadan on May 23. Many people have died not because they were caught in the crossfire but because of the poor condition at evacuation centers, Sharjah resident and former MarCom (Maranao Community) president Roy Tamano said (Ibid.). “Many cadavers are not yet collected,” he said. “Only after the war has concluded and a thorough clearing operation is conducted can we ascertain the number of casualties,” he explained. Evacuees worried that they will have nothing left of their properties when they go back home (Ibid.)

Yet two months on, and the fighting is still going on in Marawi. Meanwhile, the declaration of martial law, which was effective for a maximum 60 days as prescribed in the Constitution, was to end on July 22. To the rescue, the Philippine Congress met for a marathon joint session of the Senate and House of Representatives to vote on President Duterte’s letter request for the extension of martial law for another 152 days, to expire on Dec. 31 (CNN Philippines live coverage, 07.22.2017).

The Senate House voted 16 Yes and 4 No to the motion of Sen. Gregorio Honasan to allow Duterte’s request for a 152-day extension of martial law. Sen. Franklin Drilon tried to submit an amended motion to limit the extension only for another 60 days, as also proposed by a few other legislators, and as it would be more in keeping with the original 60 days of initial declaration. His motion was denied, and Honasan’s motion was approved.

The House of Representatives voted 245 Yes and 14 No to the motion of Rep. Rodolfo Fariñas, which was identical to the Honasan motion. Rep. Edcel Lagman tried to object to Fariñas’s motion on the argument that there was no factual basis for martial law ab initio. All objections were put aside as a combined total vote of 261 Yes and 18 No from both Houses gave Duterte an overwhelming mandate to effectively proceed with the siege of Marawi, armed with legitimate martial law for the whole Mindanao, until Dec. 31.

“Please ask us how we feel. Please ask us how do we stand up and rise,” Samira Gutoc-Tomawis, Meranon civil rights leader pleaded in tears to the joint Congress at Saturday’s hearing on Duterte’s request. Tindeg Ranao, a group formed by Marawi City evacuees as “a response to the need to unite evacuees that call for justice to victims of human rights violations, calls for a stop to military air strikes that resulted in the destruction of their communities, and calls to lift martial law declaration that has resulted in military abuses (http://rmp-nmr.org).” Tindeg Ranao wants martial law lifted, to allow the 260,000 displaced Marawi residents to return to their homes (Philippine Daily Inquirer, 07.22.2017).

But the cymbals clashed a metallic death clang for Marawi as the final decision was made at the joint-Houses voting to extend President Duterte’s martial law powers over Mindanao. The air strikes and strafing will continue and collateral damage to people and property will continue. Search and destroy assaults by the military will capture Maute and supporters-accomplices, or more likely, kill rebels and innocents alike, in the facelessness of the foe in the very first extensive and long-playing open urban war of brother against brother in recent Philippine rebellion history.

Mozart’s “Requiem” is played for Marawi.