Wake Up, Philippines!

Dangerous experiments

Posted in Charter Change, Congress, Constitution by Erineus on April 22, 2009

Philippine Daily Inquirer
First Posted 04:22:00 04/22/2009

The so-called “fourth mode” for amending the Constitution is nothing more and nothing less than a trial balloon. It is one of many; and if today a “fourth” has been proposed, we can expect a fifth, a sixth—as many as it takes. All these so-called modes should all be understood as attempts to achieve—by hook or by crook and late in the game—the ultimate ambition of the administration coalition: to deprive the public of its historic right and exclusive privilege of selecting the head of state and government of our country.

The present Constitution, unlike the 1973 and 1935 Charters that were more detailed, practically states that there are two ways to propose amendments to the Constitution (because people’s initiative is basically a dead letter). The first is by means of a constituent assembly; the second is through a Constitutional Convention. In truth, the distinction is rather artificial, for it all depends on Congress to decide whether it will itself propose the amendments to the public, or pass the task to a convention—which includes the possibility (actually proposed in the 1960s and more recently by the President’s election lawyer, Romulo Macalintal) of an appointed, not elected, Constitutional Convention.

Part of the confusion stems from a residual historical memory of the Congress under the 1935 Constitution, whose provisions on amendments required the legislature to formally convene, in joint session, for the purpose of considering amendments. The present Charter makes no such explicit requirement; indeed, considering how verbose our Constitution is, its provisions are remarkably terse: any amendment to, or revision of, the Constitution, it says, can be proposed by Congress “upon a vote of three-fourths of all its Members.” Fr. Joaquin Bernas, SJ has written in this paper how the wording of the Charter was an oversight, dating back to when the Constitutional Commission thought it was going to approve a unicameral National Assembly.

But as it turned out, the commission approved a bicameral Congress, and Bernas and many others have pointed out that in terms of proposing amendments, Congress must conform to the nature of the beast—in this case, composed of two, co-equal chambers, neither of which can fulfill the functions of Congress without the other. The political problem this raises is that, for whatever reason, the House of Representatives considers the Senate unfriendly to proposals that would abolish either the presidency as a nationally-elected chief executive who is head of government, or the Senate, or both.

The 2007 elections also left the administration with absolute dominance in the House but very mixed results in the Senate; and with senators responsible to a national constituency, it is difficult for senators to abandon their traditional role as fiscalizers of the administration of the day. So the administration has been scratching its head, trying to figure out a way that will neutralize the institutional veto power of the Senate, especially in the case of amendments.

Not to mention what was, until recently, a Supreme Court with a marked disinclination to tolerate any constitutional foolishness—for it would be to the high court that the Senate would run should the House try to railroad it out of existence.

Time, however, not only heals all wounds but can sort out even the thorniest of political problems. The composition of the Supreme Court has changed drastically from its recent heyday as the bulwark against any constitutional tinkering by the administration. The opposition in the House has been starved and its membership reduced; the Senate is bogged down in presidential campaign intramurals, and will be hard pressed to put up a united front.

Notice that administration loyalists have tried to plead for a debate to take place, as if what’s going on is some sort of harmless academic discussion. It is not; what is at stake is a go-for-broke effort that involves a dangerous experiment with the law and institutions. The underlying assumption is as bold as it is cynical: that the public no longer cares enough to seriously resist an administration riding roughshod over the separation of powers. For to continue the debate now is to provide the pretext for a plebiscite in which political machines, and not public opinion, will dictate the future government of this country.


Militarization by other means

MANILA, Philippines — Soldiers erecting checkpoints, entering communities, and rounding up and interrogating residents in various parts of the country have become so commonplace in Gloria Macapagal-Arroyo’s regime that we take for granted their lawfulness. Do soldiers have a right to do these things?

Not being a lawyer, I can only ask questions. The construction of the 1987 Constitution is easy enough to permit its commonsensical understanding by ordinary citizens. I turn to its words and the values around which it is woven whenever I am bothered by the actions of government. The Constitution is the self-defense and is a necessity of any democratic nation. Every citizen should keep a copy of his country’s Constitution in his pocket.

There is a division of labor between the military and the police that is recognized in every modern society and is upheld in the successive constitutions we have had in our country. The maintenance of peace and order within communities is basically the function of the police. Our Constitution states that such a police force is “national in scope and civilian in character.”

The same Constitution declares among its guiding principles and policies that “Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” I understand sovereignty to mean the power to govern oneself. To defend a nation’s sovereignty is to protect the nation against foreign invaders. To secure the integrity of the national territory is to protect it against forces that seek its dismemberment. On this basis, one may understand the active presence of soldiers in parts of Mindanao where secessionist movements operate. But how does one account for the presence of military patrols in the streets of Barangay Commonwealth in Quezon City?

I quote from a report that appeared in the Inquirer yesterday (3/3/07): “The military said the deployment of soldiers in some areas of Metro Manila was part of civil military operations in certain barangays where issues like poverty can be exploited by communist insurgents …. Army spokesperson Maj. Ernesto Torres said the deployments had been going on since November last year and were mostly in depressed barangays. Troops are sent to barangays where they stay and ‘talk to (residents), ask them how they are doing and tell them there are programs of government which they can avail (themselves) of,’ Torres said in a phone interview. Torres said this was a ‘holistic approach’ in addressing the insurgency problem. AFP spokesperson Lt. Col. Bartolome Bacarro said such deployments were ‘normal’ as it was the AFP-NCRCom mandate to ‘protect Metro Manila’.”

Protect Metro Manila against whom? Against suspected communists? Sec. 18 (1) of the Bill of Rights is clear on this: “No person shall be detained solely by reason of his political beliefs and aspirations.” Last I heard is that no one can be penalized for mere membership in a communist organization. But as important, if Metro Manila is to be protected, whose function is this? I always assumed this belonged to the police.

There is basis for this assumption. The Constitution takes for granted that the maintenance of peace and order is not the normal function of soldiers but of the police. And so it specifies those exceptional instances when the government, through the President, may call out the military. Art. VII, Sec. 18 provides: “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.”

The last time Ms Arroyo invoked these Commander-in-Chief powers was on Feb. 23, 2006 when she issued Presidential Proclamation 1017 declaring a State of National Emergency. Recognizing that these are emergency powers, the framers of our Constitution made their exercise subject to very stringent qualifications. The most important of these is the provision that ensures the undiminished validity of the Bill of Rights even during such emergencies.

The Supreme Court held PP 1017 to be valid insofar as it was an exercise of the calling-out powers “to prevent or suppress lawless violence,” but struck it down as unconstitutional insofar as it claimed powers for the President that did not belong to her office. These are: the power to issue decrees, to direct the military to enforce obedience to all laws including those not related to lawless violence, and to impose standards on media.

The question we must now ask is: Does lawless violence exist today in our barangays, towns and cities to warrant the engagement of the military in the everyday maintenance of peace and order in our communities? If there is, what is its extent? What is the basis for this assessment? What limits are there, if any, to what the military can do in the course of “suppressing and preventing lawless violence”?

If one goes by the 1987 Constitution alone, there can be no doubt that with these recent troop deployments, the military has overstepped its mandate. My fear is that the antiterrorism law (now euphemistically titled “The Human Security Act of 2007”) is aimed precisely at preempting these questions. By routinizing an undeclared state of emergency, the government lays the ground for the militarization of our communities.

* * *

By Randy David
First Posted 06:18am (Mla time) 03/04/2007

Comments to public.lives@gmail.com

‘A balanced and healthful ecology’

Posted in Constitution, Environment, Laws by Erineus on February 2, 2009

A PROVISION in the 1987 Constitution, which once some saw as unnecessary, has been gradually gaining attention. Section 16 of Article II says: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” In tandem with it is Section 15, which says: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”

Section 16 is unusual among those found in Article II in that, whereas almost all the other provisions in the Article are not self-executing but need implementing legislation to make them effective, Section 16 has been recognized by the Supreme Court as self-executing like the provisions in the Bill of Rights. As early as 1993 the Supreme Court already recognized it, in conjunction with the right to health, as anchoring the right of a group of minors to challenge logging practices in the country. The minors, speaking for themselves and for “generations yet unborn” under the concept of “inter-generational justice,” asked the Court to order a stop to the harmful effects flowing from deforestation. The Court upheld their right to raise the challenge as flowing from their “right to a balanced and healthful ecology” and “the correlative duty to refrain from impairing the environment.”

Not long after that the Court upheld the right of the Laguna Lake Development Authority to be responsible for the ecological protection of Laguna Lake against the claimed authority of the local governments around the lake. The Supreme Court linked Section 16 with the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978.

Along a similar vein, in 2007 the Supreme Court upheld the validity of an ordinance of the City of Manila requiring the oil companies to close and transfer the Pandacan Terminals to another location within a specified period.

The latest on this subject came out only last December. In Metropolitan Manila Development Authority v. Residents of Manila Bay, the Supreme Court ordered various agencies of government to clean up Manila Bay.

All these have come about because of the desire of the state as enunciated in the Constitution to ensure for the people a healthy environment. This constitutional policy, even if already self-executing, has been injected with an element of urgency through various laws.

The latest development on the subject is an ordinance promulgated by the City of Davao ordering a stop to aerial spraying of fungicides in the plantations of Davao. I wrote about this last week saying that this is unfinished business. The ordinance was brought to court and one of the issues was whether conclusive evidence existed to prove that aerial spraying was the cause of ailments reported as affecting some people in the area. The Court of Appeals found no conclusive evidence and saw this as one of the reasons why the ordinance should be invalidated. (Another reason was the alleged impossibility and enormous cost of switching to a different method of speeding fungicides.)

About the issue of lack of evidence, Fr. Jett Villarin, S.J., president of Xavier University in Cagayan de Oro and a scientist whose area of expertise is environmental matters, made some interesting observations in a letter he sent me. He says:

“Environmental laws and regulations must abide by the precautionary principle. This principle simply holds that uncertainty in the science should not be an obstacle or excuse to postpone mitigating action. It is a conservative principle which in the case of scientific uncertainty places the burden of proof on the polluter, not on the affected, i.e. the polluter has the responsibility to prove that what is being spewed into the environment is not harmful. [The Court of Appeals had said that the planters had failed to do this.] Corollary, it is not the responsibility of the affected to prove that the effluent is poisonous. In view of scientific uncertainty, the presumption is that the chemical is harmful.

“Aerial spraying is better deployed in advanced countries where there is mechanized agriculture and land buffers are maintained. In the Philippines and other developing countries, communities live close to the plants and the land they till.

“The degree of harm depends on the lifetime, human exposure and concentration levels of the chemical. These will depend on the state of the atmosphere. Greater control of the dispersion of chemicals is possible in stable atmospheres. Tropical atmospheres are frequently unstable and less predictable. You only need to ask a fisherman who knows how locally unpredictable amihan can be these days.

“If I were a banana plant manager, I would seriously weigh the marginal cost of mitigating the impact of aerial spraying or the total cost of adopting another technology alongside the externality costs of possible medical, rehabilitation, and legal class action in the future. If three months are not enough to change systems, I would negotiate for a protracted withdrawal schedule. Time, like air, can dilute costs.

“If I were a banana farmer, I would try to convince my amo that people are better than planes. People can say thank you. Planes can only fly.

“As a priest, I hope that our judges and our agriculturists see that heaven might be an aerial place and that God’s bottom line might be different from theirs.”

Of course, the last two paragraphs are neither science nor law. But they can be of greater significance than either science or law, or bananas.

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:18:00 02/02/2009