LIKE someone who has just won the lottery, a triumphant President Rodrigo Duterte will be in Congress today to talk to the nation about his “achievements” during his first year in office, and his agenda for the year ahead. At 4 p. m., he will deliver his second State of the Nation Address at the opening of the second regular session of the 17th Congress, two days after a joint special session of the two houses of Congress voted to extend by 161 days his Proclamation 216, declaring martial law and suspending the privilege of the writ of habeas corpus in Mindanao for 60 days. Since May 23, government forces have been fighting the Islamic State-inspired Maute and Abu Sayyaf terror groups in Marawi.
The initial media leak from Malacañang said DU30’s speech, which he is said to have been practising the last few days, will talk of having a “comfortable life” for all. Given what we have seen in the last 12 months, this promises to be a most interesting presentation. We dare not prejudge nor predict it. But given the overwhelming Congress vote for the extension of P-216—261 in favor and only 18 against, out of 321 members—it is safe to assume DU30 will spend some time talking about his fight against the Mautes, the Abu Sayyaf and other extremist elements in Mindanao.
The latest from Marawi
At this writing, 105 government troops are reported to have been killed, 428 militants, and 45 civilians, while 300 hostages remain. Out of about 600 or so militants that confronted government troops in the beginning, only 60 to 200 (depending on who’s providing the estimates) reportedly remain holed up in four barangays of the 49-hectare war-torn city. Reports persist that the leaders of the terror group, including the so-called emir of the Islamic State Eastern Province IsnilonHapilonand theMaute brothers, have either been killed or fled Marawi, but these remain unconfirmed.
Meanwhile, the communist New People’s Army, which is engaged in on-and-off peace negotiations with the government, has engaged the military in new clashes in Palawan and Negros, prompting DU30 to say, “no more talks, let’s just fight.” These incidents had fueled fears that they could be used to expand the grounds for martial law to include the NPA rebellion, and its geographical coverage to include the rest of the Philippines. In the end, only one party-list congresswoman from Sulu proposed that martial law cover the entire archipelago, and no one proposed that the NPA “atrocities” be cited as an additional ground for it.
Although the Constitution gives Congress the power to determine the length of its extension, it was DU30 who proposed the five-month extension, and Congress merely accepted it. Some analysts believe that if the military estimates prove accurate, their mopping-up operations would not take until December; with the IS structure reportedly crumbling in Iraq and Syria, the military should be able to finish the job in Marawi before December 31. So, DU30 could end up having martial law powers in his hands, even after the reason for such powers is no longer there.
This would seem to depend on how the joint resolution of Congress is ultimately phrased. Which has yet to be released. If it says martial law and the suspension of the privilege of the writ are extended until December 31, 2017, and says nothing about their being terminated earlier if the “rebellion/terrorism” is quelled before that date, then the proclamation would remain in force even after the grounds for it have ceased. The problem is, while the Constitution says the Congress has the power to extend martial law as it may itself determine, it does not say Congress may also lift martial law once the danger has been solved. Neither does it command the President to lift it.
An open-ended martial law
This was why I thought the extension should not carry a specific timeline, but be open-ended, coextensive with the national security danger it was supposed to meet. That discussion is now academic. The fact that the Congress authored the extension prevents the original oppositors of P-216 in Congress from going back to the Supreme Court to question the constitutionality of the edict. With 11 of the justices upholding its constitutionality, there seems no chance for the court to reverse itself on the factual basis of the proclamation. But manyseem to believe there is ample ground to ask the Court to reconsider its position on the geographical coverage of the proclamation, which extends way beyond Marawi, where the actual “rebellion/terrorism” exists.
The law is clear and the logic airtight. When the Constitution says the President may proclaim martial law and suspend the privilege of the writ in the country or any part thereof, “in case of invasion or rebellion, when the public safety requires it,” it simultaneously says that he may not declare martial law or suspend the writ in any area where invasion or rebellion does not exist. He may call out the armed forces to prevent or suppress lawless violence in these areas, and this DU30 did when he issued Proclamation 55 on September 4, 2016, declaring a state of national emergency on account of lawless violence. And this has not been lifted.
Restoring what’s been deleted
The 1935 Constitution, which Marcos invoked to proclaim martial law in 1972, provides that the President may declare martial law and suspend the writ in case of “invasion, insurrection, or rebellion, or imminent threat thereof, when the public safety requires it”. But the 1987 Constitution deleted the phrase “imminent threat thereof” in the present provision, precisely to limit martial law and the suspension of the writ to areas directly affected by invasion or rebellion, where the public safety requires it. P-216 and the Supreme Court ruling upholding its constitutionality illegally restored what the 1987 Constitution has expressly deleted. The President committed the first error and the Court capitulated.
The original oppositors should have asked the Court to reconsider this error, but they ran out of time. The court ruling came 30 days after they had filed their petition, and in a few days P-216 was to expire. It became moot and academic. But with the five-month extension authored by Congress, there seems more than ample time to ask the Court to reexamine this particular point. Many will argue, from the military point of view, that it is wise and prudent for areas that may be potentially affected by the rebellion or terrorism to be included in the coverage of martial law and the suspension of the writ. But the issue here is not its wisdom or practicality. The only issue here is: is this what the Constitution says? The court cannot say more than what the Constitution says.
Overwhelmed by the voting in Congress, the original oppositors to martial law may now be restrained from filing a new petition with the court. A new set of petitioners should perhaps pursue this effort. We cannot allow a grave and widely shared doubt on this issue to remain unresolved.
Can DU30 fire Evasco et al?
Going forward, the President may want to clarify his latest statements on the cancellation of peace talks and the resumption of armed hostilities with the NDF. This goes against his promise of a successful peace settlement with the communists. In fact, he has named four communist members to his Cabinet and several others to the subcabinet and some agencies, ahead of any peace talks. He has since released top communist leaders from detention to allow them to go to Norway for these talks. What happens to them now is something the government should tell us.
The military and the police are not likely to oppose renewing hostilities with the communists. After all, they have borne the brunt of the campaign against them all these years. And the NPA revolutionary taxation and other illegal activities persist. Persistent reports also claim the NPA’s Moro Army Committee is singularly responsible for supplying arms and ammunition to the Mautes and other extremist groups.
If DU30 means what he says, the best way of showing it would be to announce the separation of his communist appointees in the Cabinet and some national agencies. These would include Cabinet Secretary cum NDF Vice Chairman LeoncioEvasco Jr., Social Welfare Secretary Judith Taguiwalo, Agrarian Reform Secretary Rafael Mariano, National Anti-Poverty Commission convenor Liza Masa, and other members of the subcabinet and some national agencies.
But I see zero chance of this happening. Evasco is DU30’s most trusted Cabinet member. He runs the Office of the President for DU30, aside from some 18 agencies. From the time DU30 was mayor of Davao, Evascohas been his chief implementor—he runs things for him, while DU30 does all the talking. Some people refer to him as the de facto President. Those who have an intimate knowledge of DU30’s work habits are convinced his office would grind to a halt if Evasco were removed. As for the other communists in the Cabinet, they provide the “populist face” with which DU30 tries to project a pro-poor image of the administration while, in fact, being in league with the oligarchs. There’s no chance of the communists getting off.
The true state of the nation
Will the President claim having delivered a “comfortable life” for any in the last 12 months? Or will he promise to deliver a “comfortable life” to the nation in the next 12 months? We are eager to hear it. But he is certain to make big claims about his war on drugs and his current war against extremists. The second one seems to enjoy popular support across the board, but the first one has polarized the nation, primarily because DU30 has mistaken the summary killing of some 8,000 alleged drug suspects as a genuine achievement.
International reaction from foreign governments, institutions and organs of public opinion continues to be largely critical of DU30. In the United States alone, members of the US Congress have called on President Donald Trump to withdraw his invitation to DU30 to visit the White House. Happily, they have not called on him to cancel his scheduled November visit to the Philippines.
People expect DU30 to make an inventory of the promises he made as a candidate and the promises he has so far fulfilled. This is how he could frame his “state of the nation.” But I am more interested in hearing him say something about the state of humanity of the Filipinos under his watch. Given the language of vulgarity, violence and death that became the nation’s daily staple during the last 12 months, can DU30 honestly say he has delivered good governance to the nation, and helped Filipinos become better citizens and better human beings? The real state of the nation depends on his answer to this question.