Living in Fear

In the past week, the Philippines saw a number of anti-drug operations carried out by the police in various locations. Around 80 people were killed during those operations. One stood out: a young boy of 17. The police say he shot at them with a .45 and was killed when they returned fire. However, CCTV footage allegedly shows that the boy was accosted by two police officers and followed by a third who took him to a secluded spot. Witnesses allege that the boy was intimidated, given a gun, told to run, and shot. The death has caused an uproar on social media. A rally has been scheduled on the 21st of August, the day when the country recalls the death of Sen. Benigno Aquino, Jr. The event that spelled the beginning of the end of the Marcos regime.

However, there are two sides to every story and the truth, they say, is somewhere in the middle. One side has the boy as an innocent victim of police abuse in the War on Drugs; while another view says that the boy is far from innocent and was in fact involved with illegal drugs. Some versions of the latter story has his father as the dealer and the boy, a runner for his illegal drugs business. Some say he is, himself, a dealer, while others have him as a mere user. Even if this story is true, whatever version it may be, does that fact prove the alleged CCTV and eyewitness accounts wrong? Hardly. At most, it only shows that he was not the innocent people think he was but how does that change the whole thing?

Even if someone, anyone, is known to be a pusher, runner, dealer or user of illegal drugs, does it make it right to bring him to an isolated spot, give him a gun, order him to run and shoot him? Even assuming he is guilty, is it necessary to kill him? What’s the point?

In the first place, if he is actually known to be involved in illegal drugs, then wouldn’t it be easier to find witnesses and other evidence against him, prosecute him, and send him to jail?

Further, if they want us to believe that he was armed with a .45 and took a shot at them, then they first have to convince us where in the world he hid it considering the way he was dressed at the time. If they will also insist on such an out of this world idea, then we will have to question their ability to comply with police procedures because we have to ask: didn’t they search the boy before they walked away with him? There were two with him followed by another. Three cops who failed to observe simple police procedures? It is easier to believe that they were in fact intentionally disregarding police procedures taking the boy away as they did that night. That’s the suspicion anyway.

Finally, did they think that killing one person will put the fear of God in other pushers, dealers, runners or users? I think not. They live with that fear every single day of their lives and in all probability have accepted it. So, who actually fears such unnecessary killing? It is the innocents. Now they fear the police who they see as out of control, picking people off the streets and shooting them to add another statistic to the War on Drugs. Reuters, the BBC and Al Jazeera all posted articles showing how police officers (and gun for hires) are getting paid for every kill in the War on Drugs. Scratch one more to the tally.

Was that the whole point of the killing then? When the president says that if they kill 32 a day, they solve the drug problem in the country, was this their contribution to the 32 required? Was the boy killed for a scorecard? Was he killed just for a few pesos?

Here’s the thing: somehow, somewhere, someone is going to say enough is enough and take action. That action can be as simple as a non-violent protest march to, God forbid, violent revolution. What it will be depends largely on how much more the country can take. An article on the Internet says that to eradicate inequality, you need large scale famine or pestilence to kill off large swaths of the population. That, or violent revolution of the Russia or China kind. We don’t have pestilence anywhere. Violent revolution though may just be around the corner.

Something else to be fearful of…

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My Fellow Filipinos

Marawi, in the island of Mindanao, was attacked by the Maute group, which is an ISIS-wannabe in the Southern Philippines. In response, the Philippine Government poured in troops to try to root out the group. Hostages have been reportedly taken and used as human shields by the Maute. Where they proved too well entrenched, attack helicopters came in to pound them into submission, or death. Marawi suffered from the attack that appears to have been compounded by the army’s seemingly scorched earth policy against the attackers. Back in the day, there was a shirt for sale that had the message: “Kill them all. Let God sort them out.” Yesterday is here again.

As if that was not enough, the Government declared martial law on the whole of Mindanao even if the fighting appears to be limited to Marawi. Then worse becomes worst. The president, in exhorting the troops to do all that is necessary to win over the Maute group, quips that if the troops rape anyone in the process, then that will be on him. The president, himself a lawyer and a former prosecutor at that, essentially publicly declared that if the troops commit any crime — like rape — during the campaign to defeat the Maute group in Marawi, then they will not be prosecuted for it.

Flashback to the beginnings of his drug war, and his declaration that any act by the police in pursuit of the drug war will be his responsibility. In essence, he is saying that any crime they may commit during the war on drugs will also not be prosecuted. To date, there are a reported 7,000 deaths related to the drug war. Around 3,000 of these is said to be the result of “legitimate police operations.” The rest are dismissed as random killings. When you read news articles from Al Jazeera and the BBC about how the operations are being conducted with kill quotas and payoffs for every pusher or user killed, then one thinks that while these may actually be police operations, whether or not they are legitimate is far from certain.

Let us be clear, between the criminal and the State, or a terrorist group and the State, we should support the State. Illegal drugs should be prevented from harming citizens, and terror groups should be suppressed. However, how we conduct our wars should also follow the rules laid down in law. When the government begins to wage state terror, the legitimacy of its wars quickly dissipates. We are a nation of laws, and the State should be the first to comply with its demands.

The Philippine experience on martial law was not pleasant. In the end, the abuses of those in power caused a nation to oust a sitting president. The current president declares that his martial law will be as brutal as the old one. If one is knowledgeable enough about how the old martial law was used to abuse the populace, then one cannot readily say that this new martial law will be promising indeed. Far from it.

The newest Philippine constitution — we’ve had three (3) so far — sought to prevent a repetition of this abuse by putting in place the mechanics for the declaration of martial law. It invokes the independence of the legislature to check on the executive. Unfortunately, both houses of congress, peopled as they are mostly by the president’s partymates, supporters, or wannabe-supporters, refuse to convene to study the president’s justification for the declaration of martial law. It is in the refusal of these so-called people’s representatives to do as they are legally obliged that dictators are born.

Article VII of the Philippine Constitution provides that:

“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. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. 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.”

Clearly, the Constitution allows the president to call on the army in case of lawless violence, invasion or rebellion. The attack by the Maute group constitutes lawless violence; hence, the president can direct the armed forces to destroy the Maute group as the commander-in-chief. However, in order to declare martial law, the constitution names only two causes: invasion or rebellion. Moreover, public safety must require it. In other words, it is not enough that there is an invasion or rebellion. The safety of the public must also be in danger before martial law can be declared. If a large Chinese force occupies a few islands in the West Philippine Sea within the Philippines’ Exclusive Economic Zone but no Filipinos are endangered, then martial law still cannot be declared. Since the Maute attack cannot be an invasion, it might be seen as a rebellion, which would then justify the declaration. Under the constitution, the president should have reported to Congress within twenty-four hours from the declaration to prove, first, that it is a rebellion, and, second, public safety requires it, that would justify his decision, and Congress may confirm, revoke or extend martial law…but it must convene to receive the report and pass upon said declaration.

As it is, the president gave no report, and Congress refuses to convene. That, my fellow Filipinos, is dangerous. Filipinos should be free to question its government. When the government is closed to scrutiny even from its own citizens, that is authoritarianism. When Congress, a key component for the system of check and balances, fails to act in accordance with law, it allows absolutism by the president, which the Constitution itself is against. The Constitution, therefore, is slowly eroding. That is something we cannot allow.

Patriotism is never blind allegiance. Patriotism puts the country first before personalities, even the president. To challenge the president is not unpatriotic. Adherence to the rule of law, especially the Constitution, the primary law of the land, must be every citizen’s concern. Holding the government to it, must be the primary duty of every Filipino. We do so not because we hate the president but because that is what the law requires. We are all Filipinos. Whether you are from Luzon, Visayas or Mindanao, all of us are Filipinos. We question the declaration not because he is a Mindanawon but because he did so as president, and in doing so is required by law to abide by certain conditions. To test his compliance with law is a very Filipino thing to do.

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The Philippines’ De Facto Martial Law

Once upon a time, there were things we valued like “due process” and the Rule of Law. It was most revered and celebrated right after the Philippines rose from the darkness that was the Marcos era. Former President Marcos had imposed martial law over the country after a sham assassination attempt against the then Defense Secretary, Juan Ponce Enrile. Under martial rule, due process and the Rule of Law were disregarded and people deemed radicals, and the population in general, suffered for it. When the so-called Marcos Regime was finally defeated, a new Constitution was introduced and the Rules of Court revised to protect and preserve the right of the people to due process of law.

Decades later, a new Philippine president who counts the Marcoses as his friends is intent in bringing back the dark days when due process and the Rule of Law were considered nuisances rather than something to be respected and observed.

This president, a former prosecutor at that, has twice publicized the names of people allegedly involved in the illegal drug trade. The first list was composed of former and current police officers. The second, longer, list, contains the names of politicians, judges and others. The president claims that the list was verified and re-verified before he made it public. Interestingly, one of the judges he named appears to have passed away eight (8) years ago. How someone dead figures in the illegal drug trade has yet to be established but it does make you wonder what kind of verification and re-verification was undertaken by those who prepared it.

What’s more interesting though is that he ordered those he named and shamed to report to him (as far as the politicians, mostly mayors, are concerend) and the Supreme Court for the judges to clear their names.

Now, people might say “See, they are being given due process because they can try to prove their innocence! Doesn’t that prove that the president is adhering to the Rule of Law?” Well, no. Hell no!

He claims that he is duty-bound to the people who elected him president to tell the people “what is happening.” It might do well to remind the president that when he took his oath as president of the Republic of the Philippines, he swore to uphold the Constitution and the laws of the land. The Constitution he swore to uphold contains the Bill of Rights where the right to due process, among others, is enshrined. The president is also duty-bound to observe due process and the Rule of Law. When he declares that he is not bound to give anyone due process because he is not a court, he betrays a lack of understanding of one of the most fundamental principles of law. We shudder at the thought.

You see, it all begins with something called presumption of innocence. That means someone is innocent until he is proven guilty. To start an investigation, say a violation of the Comprehensive Dangerous Drugs Act of 2002, a charge has to be made against a person that the accused will then answer. The charge will have to be specific enough for the accused to be able to refute. If the accusation progresses into a criminal complaint, then the matter is brought before a court for trial. There, both the prosecution and the defense present evidence to prove the guilt and innocence, respectively, of the accused. The judge then decides the case based on the law and the evidence presented. If found guilty, then the accused can appeal his case all the way to the Supreme Court. That is what we call due process of law and adherence to the Rule of Law.

What the president has done is do away with the presumption of innocence. Those he named are, to him, involved in the illegal drug trade. They do not have the presumption of innocence in their favor. Instead, like in China, they have to prove their innocence. The people he named and shamed does not even have anything specific to admit or deny. They are simply people involved in the illegal activity. How will they even begin to defend themselves? What exactly are they being accused of? What evidence is there that allegedly shows their participation in the crime? If the Government has something against each and every one of those named by the president, then the evidence should have been taken before a fiscal/prosecutor to determine whether or not there is probable cause to bring a criminal charge against that person. You do not subvert the Rule of Law by doing away with due process by making him answer a general accusation. In all likelihood, those accused would probably incriminate themselves or just plead guilty to get out of it.

It gets worse, whether these people are innocent or guilty, these people will forever have their names connected to the illegal drug trade but it doesn’t end with them. The same fate is now shared by their families. It will be harshest on the children. Those innocent will find it hard to shake off the stigma that will forever stain their lives. To that, the president only says he is responsible. Little comfort to the innocent. That’s where the president’s former position of prosecutor really stings: he should know better. We in the legal profession expect so much more from him because of it, and yet here we are. As the Good Book says, to whom much is given, much is expected. Two months into his administration, he is woefully found wanting. Should we even be surprised considering his record as former mayor of Davao where death squads abound giving us a foreshadowing of things to come? Yes, because, maybe foolishly, we thought he would change his ways and be more presidential when he won the post. With each passing day, he continues to prove us wrong.

Make no mistake, illegal drugs that kill and ruin the lives of thousands if not hundreds of thousands, should be addressed. No one is questioning or challenging that. What is being questioned and challenged is how it is being addressed. A War on Drugs has failed in Mexico, Colombia and the U.S. For all the firepower that has been employed to strike at those involved, the illegal drug trade is still going strong. Instead of a War, other states have opted to treat the problem as a health issue. The solution is controversial but in the countries that have taken such a step, the illegal drug trade isn’t as big a problem, if at all.

By his actions, this president has brought the Philippines back to the days of martial law when no one was presumed innocent; you had no rights; and everything was what the Government, and the president in particular, said it was. That’s exactly where we are right now. His Government sees human rights as something that can destroy the country. He is outraged at the statements of the Human Rights Commission, a body created under the Constitution to protect and uphold human rights. Most of his sorties are to police and military installations where he promises them higher salaries and full support purportedly in the War on Drugs. You don’t have to be a conspiracy theorist to fear the worst.

At least Marcos had the decency to declare martial law. This president just rolled us in it.

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