Bongbong’s revolution

Twenty-nine years ago, nobody would have thought that anyone named Ferdinand Marcos could ever be considered for high office in the Philippines. Yet today, the dictator’s son, Ferdinand “Bongbong” Marcos, Jr., is a viable candidate for vice president, hinging his campaign on a call for a “revolution.” He is polling second based on latest surveys.

The return of the Marcos family to the national stage is a very interesting development, to say the least. There is no doubt that many observers, especially those that experienced the People Power euphoria that swept the world in the early years of the first Aquino presidency, find it bewildering. For me, I think Bongbong’s candidacy calls for some reflection on how things have gone since the Marcos dictatorship was overthrown in 1986.

In December 2009, while reading a blog by Malacanang mandarin Manuel L. Quezon III, I came across a very interesting essay by Timothy Garton Ash on velvet revolutions, a label he applies to all modern, generally bloodless uprisings that democratized autocracies in the late 1980s, including, presumably, the Edsa Revolution of 1986. I find his central thesis instructive.

According to Ash, one fundamental difference between traditional revolutions– those class-oriented mass actions led by the republicans in France, the Bolsheviks in Russia and the Maoists in China– and the modern velvet revolutions is that the latter did not produce a winner-takes-all situation where the losers lost not just their influence and properties but also their lives. Instead, the members of the ruling elite got not the guillotine but a seat at the round table. Unlike in old-style revolutions where “the angry masses on the street are stirred up by extremist revolutionary leaders – Jacobins, Bolsheviks, Mao – to support radicalization, including violence and terror, in the name of utopia; in new-style revolution, the masses on the street are there to bring the powerholders to the negotiating table. The moment of maximum mass mobilization is the moment of turn to negotiation; that is, to compromise.”

The reason for this is that proponents of velvet movements generally adhere to two important values: non-violence, in the Gandhian style, and democracy. Hence, they adopt a non-confrontational, sometimes even embracing, attitude towards the old elite and their constituents in the name of stability and of respect for basic human rights. The result is that erstwhile members and supporters of the old regime are absorbed in the new political set-up.

In theory, this is good because it makes the national psyche forward-looking. Unity of the people is valued with the view of building new institutions that will make the nation stable, if not stronger. “Heal the wounds of Edsa,” as Gloria Macapagal-Arroyo liked to say. But in reality, according to Ash, this produces a “post-revolution pathology.” “As the years go by, there is a sense of a missing revolutionary catharsis; suspicious talk of tawdry deals concluded between old and new elites behind closed doors; and, among many, a feeling of profound historical injustice,” he wrote.

But in my view, the fact that apologists of the old regime are allowed by the post-revolutionary dispensation to participate in the national discourse in itself constitutes that “post-revolutionary pathology.”

Antonio Gramsci once postulated that the reason worldwide socialist revolutions that orthodox Marxists had once called inevitable did not occur is because capitalism has become a hegemonic culture; the values of the bourgeoisie have been adopted by the masses as common-sense values. Therefore, the challenge for Marxists is to come up with an alternative culture with alternative sets of values that would topple the prevailing cultural hegemony. Robert Cox applied this theoretical framework in international relations, arguing that the battle for hegemony is not between states but between ideologies and political perspectives. In a way, this paradigm can be stretched further to frame an analysis of the context of post-velvet political conditions. The relaxed attitude of the post-revolutionary dispensations towards the old elites enables the latter to present an alternative political narrative that challenges the ideologies, sometimes even the legitimacy, of the revolution and its post-revolutionary set-up.

And so we see two political narratives competing for hegemony in the post-Edsa arena: one that upholds the ideals of the Edsa Revolution and, corollary to that, the legacy of the Aquino family; and another that states that the Marcosian way of governance is good for the Philippines and that the Marcos era was in fact a golden age for the country.

While both local and foreign press have painted Marcos as the epitome of evil and Cory Aquino as the saint of democracy— and this narrative has been adopted officially by the state—the alternative political perspective offered by the loyalists of the Marcos regime continues to present a major ideological challenge. In 1992, Marcos votes would have handed the presidency to a Marcos loyalist had they not been split between Danding Coujangco and Imelda. In 1998, a Marcos loyalist was elected president. Joseph Estrada’s machine was, to some extent, manned by many old guards of the New Society and while he failed in his quest to give Marcos a state burial, the fact that the issue was not even taboo already indicated that the narrative of Marcos the villain and Aquino the hero has never been a hegemonic political narrative in the neo-Gramscian way.

Ironically, any attempt to hegemonize the anti-Marcos, Edsa narrative is constrained by the democratic framework which that narrative itself upholds. This framework allows, even encourages, all alternative narratives to compete, legally, in the political arena. Ash hinted that putting up a South Africa-style Truth Commission that would identify and assign blames might be the antidote to this. Perhaps he’s right. As things stand, however, the rule of law allows legalistic forces of the Marcos machine to prevent a satisfactory closure to the abuses of the dictatorship while simultaneously re-fashioning the Marcos family as victims of vindictive regimes. Little wonder then that Miriam Defensor-Santiago could get away with her assertion that the Marcos family does not owe the nation any apology.

Those who lament Bongbong’s emergence as a national figure, and now a viable candidate for vice president, should realize, therefore, that this has been a long time coming. There is more to it than being just a case of political amnesia or neglect by the educational system in teaching about the abuses of Martial Law. It’s the direct result of Edsa’s embracing attitude toward the old elite in the name of democracy and the rule of law. By giving Marcos apologists the opportunity to join the national discourse, the post-Edsa regime has given them the license to mount a counter-revolutionary come-back. The effort to rehabilitate Marcos, therefore, started even before the post-Edsa regime could consolidate its institutions. In a way, it’s the price we have to pay for having gained democracy with little bloodshed.

There are two things that are fueling this rising tide of pro-Marcos revisionism. First, the post-Edsa regime is not perfect. The initial chaos of the post-Marcos democracy that stagnated the economy, for instance, made many of those belonging to the generation that experienced Marcos look back in nostalgia to the stability that characterized much of the early years of the New Society. Meanwhile, many of those belonging to the generation that has not experienced Marcos are captivated by the Marcos narrative partly because of their cynicism of the post-Marcos conditions. In the process, they all tend to de-emphasize the dark aspects of the Marcos regime. Secondly, there is a natural constituency for any political narrative that emphasizes strongman rule. This constituency propelled the unsuccessful but nonetheless impressive presidential campaigns of Alfredo Lim in 1998, Panfilo Lacson in 2004, and now the mounting calls for the presidential candidacy of Mayor Rodrigo Duterte of Davao. It is clear that Bongbong has succeeded in harnessing these two factors.

Of course, there is no doubt that Bongbong has a solid record as Governor of Ilocos Norte. He also knows how to tap the pool of policy advisers and technical aides that his resources can afford, thereby enabling him to become one of most prolific of the country’s senators. A superb public speaker, he is able to package himself as an effective politician, which, really, is all that matters for many middle class voters. Obviously, however, his work is driven, more than anything, by his strong revisionist agenda. I think the total rehabilitation of Ferdinand Marcos and the de-legitimization of Edsa is what Bongbong’s revolution is all about. So far, he is succeeding.

How should defenders of Edsa counter Bongbong’s revolution? It should not be through condescendingly taking the moral high horse, but rather through a sophisticated messaging that would convincingly persuade voters that, at the end of the day, the Marcos way had been proven to be a failed experiment and that the post-Edsa regime, while not perfect, works.

Views expressed on this blog are strictly the author’s own and do not necessarily reflect official positions of organizations that the author is a part of.

President Poe in 2016?

Perhaps the most notable result of this year’s midterm election is the emergence of former censors chief Grace Poe as the top-notcher in the Senate race. That’s not because it was surprising, but because it makes her the strongest contender against Vice President Jejomar Binay, the early favorite to succeed President Benigno S. Aquino III.

Binay got his break when he was appointed by President Corazon Aquino as officer-in-charge of Makati City during her post-Edsa revolutionary government, and he has hinged his political career partly on his ties with the Aquino support base since then. In 2010, he ran under the banner of deposed President Joseph Estrada, whose populist support base remains strong, while still harping on his Aquino association. His surprise victory in that race was in large part a result of the underground Noy-Bi campaign.

But this election marks Binay’s coming-of-age, so to speak. When he fielded his daughter Nancy, who, as most observers point out, have almost zero experience in public service, as a senatorial candidate, the Vice President was testing the national viability of his own name. He was no longer banking on his association with the Aquinos and the Estradas; he was building his own house, so to speak. The fact that Nancy has garnered more votes than Bam and JV seems to show that he has succeeded.

In a previous blog post, I drew on Professor Randy David’s discussion of the three different types of post-Edsa presidents: the moralists (the Aquinos), the populist (Estrada), and the technocratic (Ramos and Macapagal-Arroyo).

These three leadership templates have their respective constituencies. The masa base, for instance, has remained intact through the years and, despite Senator Manuel Villar’s vigorous attempt to court it in 2010, under the command of former President Estrada.

The Aquino constituency, meanwhile, cuts across social classes, united in adhering to good governance and moral leadership as exemplified by personal incorruptibility, but is not as compact as the Edsa Tres crowd.

The constituency of the technocratic leadership template, on the other hand, is composed mostly of the middle class. Unfortunately, this constituency has never enjoyed coherence: It was split between Ramos and Defensor-Santiago in 1992, Roco and De Villa in 1998, Roco and Macapagal-Arroyo in 2004, and Gordon and Teodoro in 2010.

Just as the Vice President is building his own name in the national political consciousness, so is he consolidating his hold on the masa bloc as the undisputed successor to President Estrada. The elite and the middle class, which the masa perceive to be smug, publicly dread the specter of a Binay presidency, just as they had dreaded the inevitable rise of Estrada before 1998. The Binays, for instance, are being demonized in the social media just as Estrada was bashed through short messaging system (SMS) prior to and during the 1998 campaign. But while this consolidates an anti-Binay middle class constituency, it also enhances Binay’s image among the masa, due in part to the elitist tone of most anti-Binay propaganda. The way the social media derides Nancy Binay’s complexion, for instance, helps the Binays in the way Erap jokes helped Estrada in 1998– and Reli German reportedly works for the Binays too.

But as the Vice President gains the masa crowd, so is he losing in the yellow constituency. His decision to challenge the President by fielding his United Nationalist Alliance (UNA) slate has diminished his credibility among the President’s supporters. He maintains personal connections with the apparently marginalized Peping Coujangco branch of the President’s clan, as well as with the Aquino sisters, but his pragmatism has led many to question his adherence to Daang Matuwid. In other words, Binay has shed his yellow feature and, like Estrada, is now emerging as a purely masa candidate in 2016. The key to his undoing, therefore, would be the dilution of his hold on the masa bloc.

It might be too premature to say, but the ruling Liberal Party’s favored heir apparent, Secretary of the Interior Manuel Roxas II, appears to have no chance of at least gaining a fraction of the masa constituency. He’s not even trying. The President’s endorsement will only get him so far; the Aquino magic is difficult to bestow on a non-Aquino, as proven by Manila Mayor Alfredo Lim’s failed bid for the presidency in 1998. Ultimately, he will split the middle class vote with someone like Richard Gordon. Unless he repackages himself, and only if the Aquino administration’s gains begins to trickle down in the next three years, he would be no match for Vice President Binay.

Poe, on the other hand, could be a game-changer. The national consensus is that his father, the late Fernando Poe Jr., won the 2004 elections but was cheated by the unlamentable Gloria Macapagal-Arroyo. As Professor Nicole Curato pointed out, she was a consensus candidate: Her being her father’s daughter gave her a formidable masa support base, and her subtle repudiation of the UNA has strengthened her Daang Matuwid credentials among the yellow crowd. For personal reasons, it would be difficult for President Estrada to disown her in favor of Binay; and the FPJ for President Movement  (FPJPM), which supports her, can be said to be capable of causing a split within the Pwersa ng Masang Pilipino (PMP).

This early, Poe is revealing a populist streak that could endear him to the masa: She wants to thoroughly study the possibility of including free lunch meals for the poorest elementary school students in the K-12 education policy. And for the middle class and yellow crowd, she has expressed support for the passage of the Freedom of Information (FOI) Act.

If the President and the Liberal Party want to continue Daang Matuwid, they should build Poe up as the alternative to Binay. On her part, the Senator-Elect should solidify her masa appeal and challenge the Vice President within his new turf. At the same time, she should appeal to the middle class by utilizing her credentials and talents to be a truly progressive senator in the mold of, say, Pia Cayetano. That would consolidate the anti-Binay coalition under her leadership, shake the foundations of the pro-Binay coalition, and make her, like President Aquino in 2010, a truly consensus presidential candidate in 2016.

Sabah: Rewarding violence


President Benigno S. Aquino III has spoken out against conspirators as the ones at fault in the violence in Sabah. He has threatened to charge Jamalul Kiram, pretender to the throne of the defunct Sultanate of Sulu, for his actions that caused his followers to invade Sabah to assert the ancient claim of his family to the vast territory.

But is it really about the Kirams? Is it about the claim to Sabah? Is it about Gloria Macapagal-Arroyo? Or is this incident merely a product of the traditional myopia of successive Philippine administrations, sacrificing long-term perspective for political expediency in developing policy?

Peace framework for continued violence

The government of Gloria Macapagal-Arroyo has sought peace with the MILF as one of its cornerstone policies. To this end, it signed a Memorandum of Agreement on Ancestral Domains with the MILF that served as the capitulation of the Philippine government to demands of the MILF to autonomy. This agreement was struck down by the Supreme Court, and thus President Aquino was able to present the 2012 Framework Agreement on the Bangsamoro as his own legacy of peace in Mindanao.

This policy followed by two successive governments, and the Ramos government before them, was a vindication of the method of armed rebellion chosen by the MILF as its instrument of forcing policy change in the government. It was incongruous that the government chose to accede to peace talks when the stated goal of the MILF was not independence, but rather a substate. That is rather unusual for an armed rebel group, who usually ask for independence and then concede to autonomy. Given that they already demanded autonomy, then it means that the MILF conceded recognition of the legal mandate of the government of the Philippines over the lands they claim and thus its subordination to Philippine laws. Even criminals who do not bother themselves to think of the legal mandate of the government are still prosecuted and then incarcerated, so why didn’t the government respond to MILF acts of violence with vigorous police action?

Even more curious, the government can recognize their grievances by simply encouraging them to participate in the ARMM elections. The ARMM has enough power to change its own system if the MILF’s endorsed candidates can win and implement their proposals within the already existing framework. The fact that the government entered into peace talks with the MILF and then decided to reorganize the autonomy of Muslim Mindanao based on these talks has shown a picture of government concession to violence. Even worse, it was the government agreeing that its own laws and structures, built with legitimacy derived from elections and plebiscites, are insufficient and can be changed only with violent action against such institutions.

This framework also nullified the loyalty shown by many Muslim Filipinos who did not participate in the MILF revolt. They fought with the Republic against the rebels, but ultimately they would live under a government crafted to the wishes of the rebels. This does not count the thousands of Filipino soldiers who died in defense of the same Republic, even as the MILF continued to flout its immunity from laws that bound all other citizens, such as the incident in Al-Barka. The framework’s contents might be valid, but their validity becomes irrelevant when the Constitution remained in force, and it was not respected by either the government or the MILF. Force has won over the law.

But then again, the 2012 Framework Agreement requires the MILF to participate in the electoral process. Does it not nullify the objections raised above? The answer is no. It might require voter approval, but then again the government has already shown its support for the MILF position. What happens if voters reject the framework agreement? Does the MILF go back to the hills? If yes, then what was the reason for the peace talks to begin with? If not, then why should we let the MILF’s decision to rebel slide? Other groups take to Constitutionally protected forms of political agitation, but why is the MILF special? Why are they getting away with violating the Constitution?

Incomprehensibly, even if the argument boiled down to force, there was no reason for the government to concede. Erap has proven that the AFP can defeat the MILF. The fact that the MILF could not even bluster for the rest of his abbreviated term showed that the power of the MILF has been broken, and it can only crumble in the face of sustained assaults from the AFP and PNP. The lull afforded by the peace talks allowed the MILF to establish camps and settlements that it was not able to win by force of arms. And they immediately showed their contempt for Philippine laws inside those enclaves.

As violence continued, the MILF claimed “lost commands” when it suited them to deny responsibility. Given that they cannot control their own troops, or at least they cannot guarantee complete peace even after all concessions granted by the government, there was no reason to sign the framework, but sign the government did.

And so at the end of the day, the Moro Islamic Liberation Front had its way. By exploiting talk of peace, it was able to gain government support for enforcing their way of life on people who never voted for them, in territories they could never win by force of arms. And those who remained loyal to the government and the democratic process looked on.

The Kiram Dynasty

The Kiram Dynasty once ruled over Sulu, Palawan, Tawi-Tawi, Sabah, and various other islands that comprised the Sultanate of Sulu. The Sultan of Sulu’s warriors plundered coastal villages under the rule of Spain, carting off slaves to be sold in the slave markets of Borneo.

But as time passed by, the Sultanate’s fortunes began to wane. Battered by continuous wars, the Sultan had to submit to the King of Spain in 1881, and to the Americans in 1916. To his credit, the Sultan became a Filipino, never again challenging the authority of the Americans  of the Philippine Republic. Indeed, one of his kin was a member of the 1935 Constitutional Commission.

But now, Jamalul Kiram III saw himself becoming sidelined in Mindanao affairs. Although the Sultan of Sulu hasn’t mattered that much for some time, it is probable that poverty and old age is driving him to more desperate measures. The government did promise to honor the Sultan as a spiritual leader of the Moros. The government also promised to uphold and protect the claim over Sabah.

And he has become so irrelevant that even his letter to the President was not deemed worthy of the personal attention of Pnoy. Now left with the pittance that is the annual rent, and facing competing claims over the title of Sultan, he has most likely seen how the MILF, and before them, the MNLF, achieve power and respect from the government through force. And so perhaps he was approached by opposition forces from both the Philippines and Malaysia, perhaps not. But one thing is clear – he had nothing to lose from the venture and everything to gain.

As inflation continued to erode the value of the annual rent and the government continued to express indifference over the Sabah claim, he has fallen far, but can still fall some more.

It is not clear if he actually thought he can invade Sabah and win, or if it was even his intention. But what is clear is that people now consider him Sultan of Sulu and he has obviated the legitimacy of the claims of other people, if only by the standard of being referred to as sultan both in the media and private conversations. He has also succeeded in forcing the government to take another look at the Sabah claim and consider its status.

And most importantly, his letter to the President was miraculously found and read by its intended recipient. And that is what violence brought Kiram.

The post-conflict scenario

The Philippines has long had a history of revolts against the government, even after colonization. The Pulahanes revolted against the Commonwealth, there was the Huk rebellion, the NPA, the MNLF, the MILF, RAM, Kato’s Bangsamoro Islamic Freedom Fighters, and recently, the Magdalo. The question is, why, given the liberal democratic tradition of this country, are revolts so frequent? It becomes even more incongruous considering that not a single one of these revolts has been successful. So many people have tried and failed, but still rebels can be found popping out every so often.

Is it the oppressive nature of the government? Perhaps, but Leftist propaganda to the contrary, the Philippine government has never reached the level of oppression seen in Myanmar, even during the Marcos dictatorship. In addition, the Armed Forces of the Philippines has generally had a successful run against these insurgents. Even in the 1980s, when the AFP had to deal with the NPA, MILF, and MNLF all at the same time while combating putschists in its own ranks, the government was not overwhelmed and engulfed. Not one of these rebellions managed to threaten the government center the way the Huks did in the late 1940s. And the Huks were still beaten off. As a disincentive to revolt, this run of success is a pretty powerful one.

Why do rebels continue to risk their lives when a revolt is unlikely to succeed and when it is easier to go to Manila and just picket government offices? It is because violence works. Kiram’s case is unique in the sense that the violence was not directed against the national government, but it is still violence that got results.

The rebels might not have achieved their stated goals, but their resort to violence was rewarded. Joma Sison continues to live in comfort in the Netherlands and can lay claim to belligerency even as the NPA has been reduced to acts of banditry in the countryside. Honasan of RAM and Trillanes of Magdalo are now Senators. Misuari of the MNLF got ARMM before he revolted against the government once more. The MILF is about to get their peace treaty. And none of them had to account for their crimes to the Filipino people.

In the future, another citizen with grievances against the government might consider what happened all this, and once more eschew legal and institutional frameworks for agitating for reforms. The government should consider the costs of seeking peace in dealing with those who use violence to circumvent the legal process.

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The post-Edsa presidents

In November, right after the President of the United States was re-elected, I wrote the essay “What Kind of President Would Obama Be?” In that piece, I drew on the works of professors Jack Balkin and Stephen Kowronek, the renowned scholar of American presidential history who classified his country’s presidents into four kinds: reconstructive, affiliated, pre-emptive, and disjunctive. The said essay elicited some reactions from both friends and readers, and at least a couple have asked if a similar classification of Philippine presidents can also be made.

Professor Kowronek’s classification describes a political cycle of creating and overturning dominant political regimes, which occur through a long period of time. Thus, it might not be applicable to the Philippine presidency, which has a relatively shorter history. At any rate, I don’t know all Philippine presidents well enough to come up with a similarly structured analysis of the entire Philippine presidential history. However– and I think this is obvious to all observers of Philippine politics– all five post-Edsa presidents seem to fit into only three different leadership templates, of which all students of Philippine politics should take note.

Almost exactly a year ago, Prof. Randy David articulated these three templates in a column on the Philippine Daily Inquirer.

The first template, wrote Professor David, is the moral leadership brand. It has a constituency that cuts across almost all social classes, projecting an “image of a unified moral community” whose vision is “of a nation that can overcome the complex problems posed by corruption in government through the power of personal ethical example.” The figure of this template is, of course, the Aquino dynasty.

Ironically, the forebears of the Aquino name had not been noted originally for their “personal ethical examples.” They were seen merely as cunning politicians, not moral leaders. The original patriarch and the grandfather of the current president, the elder Benigno, was accused– unfairly, historians now agree– of treason because he worked with the Japanese during the Second World War. The more famous Benigno Jr., commonly known as Ninoy, meanwhile, was seen as an overly ambitious politician who, consumed by his desire to climb the stairs of Malacanang, slept with strange bedfellows until, says official history, imprisonment and exile turned him into the martyr that he was.

It was Ninoy’s widow, Corazon, who truly led by “personal ethical examples,” drawing mandate and political capital from her unassailable moral character. But while she successfully restored constitutional democracy and defended it from threats from the Right and the Left, she failed in terms of addressing poverty and inequality. Alas, that seems to be the limitation of the Aquino template: “Its approach to the problem of mass poverty,” says Professor David, “owes less to any structural analysis that prescribes redistribution than to the spirit of charity and sharing that leaves the unequal social order untouched.”

The second template, on the other hand, is the populist leadership brand, which presents a vision of “an inclusive society where no one gets left behind.” This brand draws its mandate and political capital from its ability to, firstly, validate the ways, and, secondly, articulate the hopes and frustrations– sometimes with dangerous rancor that invites class war– of the urban and rural poor, which it glorifies as the masa. Former President Joseph Estrada symbolizes this leadership brand, while Vice President Jejomar Binay, the strongest contender in the 2016 presidential elections, currently bears its banner.

Estrada, known by the masa affectionately as Erap, was the most maligned candidate in 1998. The Makati elite, the middle class, the Roman Catholic Church, and the mainstream media did everything they could to stop his rise to power, but to no avail. They had reasons for doing so: After six years of political stability and economic growth– the country was dubbed as an economic “tiger cub” ready for take-off– under President Fidel V. Ramos, the elite and the middle class doubted if movie star Erap, who never even had any pretensions to sophistication to begin with, could carry the torch onward. This concern was amplified by the eruption of the Asian Financial Crisis during the last few months of the Ramos administration.

The Catholic church, meanwhile, was scandalized by Erap’s philandering, gambling, and drunken lifestyle, and the fact that he was even flaunting it. But by making no apologies about his all-Filipino macho lifestyle, Erap was able to pass himself off as a genuine man of the masa. For some reasons, this kind of transparency– of not being a hypocrite who panders to the guardians of Catholic morality– appeals to the lower class. This probably explains why Vice President Binay, when confronted with rumors that he had an affair with another woman, readily admitted it, and, when asked if he is aiming for the presidency in 2016, made no effort to demure.

Erap’s strongest argument in 1998 was that, after six years of impressive economic growth that didn’t trickle down to the poor under President Ramos, the time had come for the masa to enjoy the fruits of an emerging economy. However, unlike Prime Minister Thaksin Shinawatra of Thailand, who improved social services and economic livelihood for the rural poor of the Isan region, President Estrada, as far as I know, did not pursue a comprehensive pro-poor economic program comparable to Thaksinomics.

In other words, while it is good at articulating the masa‘s woes, the Erap-style populist template’s record on actually doing something about those woes is unimpressive at best. “Its choice of programs,” says Professor David, “betrays a fixation with patronage.” Look at how the Binay dynasty in Makati spends almost a billion a year on frivolous programs like birthday and anniversary cakes for residents and free movie passes for senior citizens, for instance. Moreover, its most glaring defect is its governance: The Estrada years were characterized by the absence of professional and ethical leadership, incompetence, rampant cronyism, and corruption– and all these made it easier for the elite and the middle class to bring President Estrada down in a civilian-military coup in 2001.

This year’s midterm election is a showdown between these two popular leadership templates. The Liberal Party-led coalition is banking on President Benigno S. Aquino III’s moral appeal, while the opposition United Nationalist Alliance (UNA) is banking on President Estrada and Vice President Binay’s populist appeal.

The leaders of UNA know how popular President Aquino is, while the President knows how formidable the support base of President Estrada and, by extension, Vice President Binay, is, too; which is why all three figures are careful not to directly attack one another.

Still, both sides are harping on the differences of each other’s vision. President Aquino and the Liberals are emphasizing the administration’s gains, claiming that inclusive growth is just around the corner, but will be achieved only if the country stays on the Daang Matuwid. The triumvirate of President Estrada, Vice President Binay, and the politically-savvy Senate President Juan Ponce-Enrile, on the other hand, is claiming that the gains of Daang Matuwid are practically meaningless since they are not being felt by the masa.

Finally, the third template is the technocratic leadership brand. This brand projects itself as being more concerned with meeting the challenges of a highly-competitive modern world than the parochial demands of the electorate. Thus, it draws it mandate and political capital from its ability to deliver good results, as opposed to its charismatic appeal or popularity. Two presidents fit this template: Ramos and Gloria Macapagal-Arroyo.

A West Point-educated soldier with a degree in engineering, General Ramos was the first non-politician and non-Catholic to be elected president. He owed his victory in 1992 to the endorsement of the icon of moral leadership, President Corazon Aquino. As president, he reformed the bureaucracy, controlled the restless Armed Forces of the Philippines, pursued peace with Muslim rebels, dismantled monopolies, and opened the economy. Allegations of corruption hound his name to this day, but he is generally regarded as a good president, if not in fact one of the best the Philippines has had.

On the other hand, Macapagal-Arroyo ascended to the presidency after President Estrada’s ouster in 2001, and was re-installed amid massive evidence of fraud in 2004. At first, she projected herself as the successor of President Ramos, hinging her political vehicle Kampi to the General’s political party, Lakas. Well-educated and articulate, she traveled around the world and, speaking in French and in Spanish aside from English, tried to pass herself off as a “modernist leader” of an emerging economy.

To be fair, the economy did recover under her watch, although critics say it did so despite her. Unfortunately, “all her pretensions to modernity collapsed” when, faced with recurrent legitimacy crises, she became a transactional president, stretching the limits of the post-Edsa presidency; corrupting political and social institutions, including the Catholic church; and violating many political taboos, including the declaration of martial law. In the end, her term was marked with kleptocracy and human rights violations reminiscent of the Marcos years.

The emergence of these three leadership templates characterizes the political history of post-Marcos Philippines. The moral leadership of President Corazon Aquino restored democracy, while the technocratic leadership of President Ramos restored stability and revitalized the economy. In an emerging country whose economic growth is uneven and non-inclusive, populism is very attractive, hence President Estrada rose to power in 1998. The mismanagement and corruption of the Estrada years led to the questionable rise of yet another technocratic leader, Macapagal-Arroyo, whose term went out so badly it necessitated the rise of another President Aquino.

In 2016, assuming Secretary Manuel Roxas II is the preferred bet of the ruling Liberal Party, the Philippines will see a battle between the technocratic leadership brand and the Erap-style populist brand, whose charges will be led by the formidable Vice President Binay.

If President Aquino is able to consolidate his administration’s gains before he steps down, then perhaps Secretary Roxas will have a fighting chance. But, if the masa feels that, once again, they have been left behind, then it would be extremely difficult, if not impossible, to top the rise of Binay — for unfortunately, having endured Macapagal-Arroyo for nine years, the masa has become naturally wary of non-charismatic technocratic leaders, which Roxas is.

Umwelten and the Sabah crisis

The mind, neuroscientists say, operates in a very small subset of the world that its eyes are able to see. This subset forms a restrictive cognitive environment that makes it extremely difficult for the mind to understand the wider world; in other words, a set of biases that makes the mind myopic. This subset is called the Umwelt.

Professor Randy David once wrote that those who live in an Umwelt are, in a way, color-blind– and usually unaware of it.

There is no doubt that the biggest security issue facing both Malaysia and the Philippines, even eclipsing the South China Sea disputes, is the escalating situation in the disputed region of Sabah. And perhaps the biggest bar to a proper resolution of this conflict is the inability of all the actors involved to think beyond their respective umwelten.

There is, for instance, a nationalist Umwelt: a world where advancing the interest of the nation-state, no matter how costly and destabilizing, is the ultimate value. We see this in Malaysians who think that their government’s response to the crisis has been weak and in Filipinos who think that their government’s failure to support the invasion is an act of treason. There is also the historical Umwelt, which insists that events of the past should still be the arbiter of present disputes, despite the fact that realities on the ground have changed. We see this in those who still cling to old titles to claim territories, oblivious to concepts like sovereignty and values like the right to self-determination. Still, there are those who live in an academic Umwelt that sees little value in the modern international system based on nation-states, emphasizing identities that precede modern national boundaries instead.

Even Prime Minister Najib Razak and President Benigno S. Aquino III seem to live in a restrictive Umwelt, too– one that does not compromise the concept of sovereignty or state authority. Prime Minister Najib, for instance, doesn’t seem to fully appreciate the political realities that compel Manila, a government friendly to his, to request access to Sabah on humanitarian grounds. For him, the crisis is strictly a police issue for Malaysia. Similarly, President Aquino doesn’t see the importance of giving the so-called sultan an opportunity to save face. He only sees the Muslim leader’s insubordination.

Resolving the Sabah crisis requires understanding all these umwelten– that is, understanding where the different actors are coming from. We should take note of all the cultural issues involved, and understand and appreciate the history behind the dispute. But, as columnist John Nery said, history can only go so far. At the end of the day, we will have to act in accordance with present realities.

We can of course argue how arbitrary the current national boundaries are, and how older identities are more enduring than modern nationalities. But realistically, these current boundaries and nationalities are here to stay, and the only way to resolve international disputes is through the framework of the current international system, which recognizes these geo-bodies and nationalities, not old kingdoms and identities.

We can also argue all day about the merits of the Sultanate of Sulu’s claim over Sabah, but the following realities will not change:

Firstly, that despite its long history and the Philippine government’s recognition of its importance to the Moro people’s cultural identity, the Sultanate of Sulu is not a juridical entity, much less a sovereign one. It cannot maintain an army, since militias are prohibited under Philippine laws, and it cannot defy the Philippine government and press an international claim by itself.

Secondly, that Sabah is not merely a piece of private property but a territory whose people have been granted the right to self-determination. While the United Nations-sponsored commission that found that the Sabahans desired to federate with Malaysia in 1963 may have been questionable to the Philippine and Indonesian governments then, the fact remains that Sabah has chosen to be part of the Malaya-Singapore-Sarawak federation and that the people of Sabah see themselves today either as Sabahans or Malaysians and not as Filipinos or Sulu subjects.

Thirdly, that historical titles usually mean next to nothing in international law– otherwise, Spain and Portugal should own the world– and that, finally, there is a clear distinction between sovereignty and ownership: the former trumps the latter. And while the Philippines has legislated its sovereignty over Sabah, Malaysia exercises actual sovereignty.

However, despite the inherent weakness of its claim to Sabah, domestic considerations make it extremely difficult, if not in fact impossible, for the Philippines to drop the claim. This is a practical reality that Malaysia should understand, just as Manila understands that Kuala Lumpur will never cede its sovereignty over Sabah.

Similarly, both Malaysia and the Philippines should understand that the Tausugs, the former subjects of the old Sultanate of Sulu, will always see Sabah as part of their homeland. No amount of Philippine admonition or Malaysian crackdown would change this. In this regard, therefore, the nation-state configuration must be flexible enough to accommodate extra-political nuances that are cultural and historical in nature; for given the fact that the Tausugs have historically been a warrior people, any attempt by both states to force their orientation on them will only result in sustained violence. This is why the current crackdown by Malaysia on the Tausugs in Sabah, assuming it is true, is dangerous for Kuala Lumpur– if Prime Minister Najib is not careful, this might become for him what the Jabidah Massacre was to Philippine dictator Ferdinand E. Marcos in the 1970s.

It will be best for both the Philippine and Malaysian governments to break out of their respective umwelten and understand the nuances of the current realities. Good faith between the two Southeast Asian powers is important, as this would create wiggle room for both to end violence in the immediate term and to solve the dispute in the long term. This, not nationalism, is what patriots on both sides should be fanning.

The situation in Sabah is obviously a Malaysian police issue, and there is nothing the Philippines could do but to call on Kuala Lumpur to respond to the Sulu intrusion in a proportionate manner, and to treat Filipinos in Sabah humanely. President Aquino is paying a steep political price domestically for recognizing this. But while he should remain stern towards the self-proclaimed sultan for provoking this crisis, he should also be flexible enough to allow his group a face-saving way to withdraw from Sabah.

On the other hand, while it is understandable for Prime Minister Najib to show his resolve in defending Malaysian sovereignty against the self-styled sultan’s followers, he should also appreciate President Aquino’s political will and help the President minimize the flak he’s getting from Filipino nationalists. For starters, perhaps he should exercise restraint in deploying the armed forces at his disposal, and grant Foreign Affairs Secretary Albert del Rosario’s request to send a Philippine humanitarian team to assist the Tausugs in Sabah.

It would be unfortunate if the Prime Minister would exploit the situation to strengthen the Barisan Nasional’s position ahead of the coming general elections in June at the expense of the Philippines. That would be a myopic path that could lead to long-term instability in the Sabah-Sulu corridor, something that would not be in the interest not only of Malaysia and the Philippines but also of the Association of Southeast Asian Nations in general.

Finally, once the fighting has subsided, the Philippines and Malaysia should pro-actively seek ways to prevent similar incidents from happening in the future. Perhaps Secretary del Rosario and Foreign Minister Anifah Aman should meet and issue a joint communique expressing their intention to, once and for all, put a closure to the Sabah dispute. Perhaps a joint exploratory committee should be formed to determine a framework on how both countries can address all issues concerned, leading to a final treaty on the Sabah dispute that would address the grievances of the heirs of the Sultanate without violating the Sabahans’ right to self-determination.

I’m sure there are sober, creative minds among Filipinos, Malaysians, and Sabahans that can come up with a win-win solution. I myself have some vague ideas, but I’ll keep them to myself for now.

Tubbataha and the Philippine-American alliance

The grounding of the American minesweeper USS Guardian in the world-renowned Tubbataha Reefs in the Sulu Sea is stoking emotions in the Philippines. It has put both the American and the Philippine governments on the spot, and has given anti-American activists plenty of ammunition.

The incident is just the latest in what the New York Times has described as a “string of embarrassments” for the American military in the Philippines. A couple of weeks ago, both Manila and Washington drew flak for the discovery of a US drone off Masbate. In the Filipino activist’s mind, that incident evoked images of America’s drone warfare in Pakistan, despite assurances from both governments that the drone had in fact been unarmed. Much earlier, a Malaysia-based American government contractor was alleged to have dumped thousands of liters of untreated domestic waste from a US Navy ship near Subic Bay, alarming environmentalists.

While a full accounting of all facts surrounding the circumstances of the Guardian‘s grounding has yet to be made, the initial reports have been disturbing. Under Philippine laws, the waters around the Tubbataha are off-limits to navigation, except for purposes of scientific research or tourism. The Tubbataha Marine Park’s management claims that it has warned the Guardian against sailing through the protected waters, but the minesweeper ignored these warnings, telling the Park’s authorities to take their complaints to the American Embassy instead. When the Park’s Marine Rangers tried to board the ship as per protocol, the Guardian shifted into battle mode, intimidating the Rangers away. An apologetic spokesman for the US Navy said this was merely a result of miscommunication.

These reports have stoked anger among Filipino activists, along with demands from leftist politicians to abrogate the Visiting Forces Agreement (VFA) between the Philippines and the United States. Put in context, this emotional backlash is understandable. Firstly, the Tubbataha Reefs are the crown jewel of Philippine marine treasures. Protected by UNESCO as a world heritage site, the Reefs are a national symbol akin to the Great Barrier Reefs in Australia, Mount Fuji in Japan, or the Grand Canyon in the United States. Secondly, the American military’s environmental record in the Philippines has not been stellar. Calls for a clean-up of the toxic waste that American military personnel left behind in former US installations in Clark and Subic, for instance, were never heeded by Washington, and, as far as I know, the victims of those wastes have yet to be properly compensated.

The Filipino psyche seems to have contradictory attitudes towards the sensitive issue of American military presence in the Philippines. On one hand, Filipinos are arguably very pro-American in their political and cultural orientation, and, much to the disappointment of nationalists, see the United States as the only indispensable guarantor of Philippine sovereignty. This explains why, historically-speaking, Philippine foreign policy has generally been aligned with that of the United States, and Filipino leaders– especially those whose legitimacy is shaky, like Gloria Macapagal-Arroyo– often see it useful to project that they have Washington’s blessings. On the other hand, like the Japanese, Filipinos view their relations with the United States, particularly the VFA, as inherently skewed. Seeing American presence in his country as a legacy of colonialism, even minor incidents involving Americans usually evoke memories of American mistreatment of the Philippines– from the Philippine-American War through the subsequent American colonial period, the Bell Trade Act of 1946, and the dumping of toxic wastes in Clark and Subic– in the Filipino’s mind.

Perhaps recognizing the effects of the Tubbataha incident on Philippine sensibilities, American Ambassador to the Philippines Harry K. Thomas has issued a public apology on Friday, reinforcing earlier apologies issued by various officials of the US Navy. But while the Philippine government has acknowledged these acts of contrition, its agents, particularly the provincial government of Palawan and the Tubbataha Marine Park authorities, remain adamant. Even President Benigno S. Aquino III, whose administration has welcomed increased American presence in the Philippines amid tensions with China, appears irked, judging from the way he has asked incisive questions.

Meanwhile, leftist activists and politicians, driven by their chronic contrarianism against any Filipino government and their dogmatic hatred of the United States, have castigated the Aquino administration for its level-headed reaction to the crisis. For them, the President should have condemned Washington as strongly as he had condemned Beijing for its incursions into Philippine maritime territories. While this extreme view is probably isolated in the Philippines, both Manila and Washington would do well to recognize that an honest-to-goodness investigation that would reasonably address all concerns is of utmost importance. Needless to say, any perceived whitewash on the part of either government could potentially damage the Philippine-American alliance.

Obviously, the alliance is important not only for the Philippines, who sees America as a hedge against an increasingly threatening China, but also for the United States, who needs the foothold that the Philippines provides for its announced “pivot” to East Asia to be meaningful.

President Aquino would understandably be compelled by domestic considerations to push for an independent investigation of the Tubbataha incident. This should cover the reason why the minesweeper ventured into the protected Tubbataha waters, whether its captain culpably obstructed the work of the Marine Park Rangers, and the extent of the damage incurred on the Reefs. Should the result of this investigation warrants, the captain of the ship must be held accountable, and the United States should properly compensate for the damage its minesweeper has incurred on a Philippine national treasure. After that, both sides should constructively explore ways to avoid similar incidents in the future.

Ambassador Thomas, on the other hand, must convince his government that, as an ally, the United States must help President Aquino by cooperating with the investigation and respecting its findings. Failure to do so could make it difficult for the Philippine government to defend the VFA domestically, and perhaps make it easy for China to drive a wedge between the two allies.

The onus is, on one hand, for the Aquino administration to demonstrate that it can properly balance the country’s national interest of protecting the Reefs against its strategic interest of keeping its alliance with the United States strong; and, on the other hand, for the American government to demonstrate the extent of its respect for Philippine sovereignty.

In an editorial last week, the Inquirer has argued that, should the United States opt not to cooperate with any investigation, the Philippines should mobilize the international environmental lobby, including its American offshoots, to force Washington to cooperate. I see no reason why this should not be done. Still, it should not have to come to that. Ultimately, the bedrock of Philippine-American alliance is good faith and confidence between Manila and Washington, the maintenance of which is in the interest of both countries.

On Manila’s support for the “rearming” of Japan

Philippine Foreign Affairs Secretary Albert del Rosario made news last week for expressing support for the “rearming” of Japan, saying Manila is “looking for balancing factors in the region,” and that Tokyo “could be a significant balancing factor,” presumably against an increasingly-assertive China.

It seems to me that the subliminal message of the way the international press has reported the Secretary’s comments is that, because of China’s intransigence, Japan’s standing among Asian countries is changing. Here are my two cents:

First of all, I don’t think this indicates a change in Japan’s standing among Asian countries. Unlike South Korea and China, which still hold deep grudges against Tokyo for its war crimes, Southeast Asian countries have never been distrustful of Japan in the first place, despite the fact that Tokyo has never really fully apologized for its wartime atrocities. Even in the midst of Chinese and Korean protests over the revisionism of the Japanese Ministry of Education, former Prime Minister Junichiro Koizumi’s repeated visits to the infamous Yasukuni Shrine, and former (and returning) Prime Minister Shinzo Abe’s insistence that there’s no evidence proving that the Japanese Imperial Army was engaged in sexual slavery during World War II, Southeast Asian countries have remained, at the very least, silent.

This is partly because massive Japanese investments and official development aid have arguably been the single, most decisive factor in ushering in a period of Southeast Asian economic development during the post-war period, which scholars dub as the flying geese model of development. Moreover, it was in an address to the Philippine Congress in Manila that former Prime Minister Takeo Fukuda enunciated the so-called Fukuda Doctrine, which asserted that Japan would shun any military role and instead pursue economic cooperation with Asian countries regardless of their ideological inclinations. These had not only been reassuring for Southeast Asian countries; they also built robust Japanese soft power in the region, so much so that by the early 1980s, many Southeast Asian countries were already looking to Japan as a benign regional leader worth emulating. Malaysian Prime Minister Mahatir Mohammad’s Look East Policy comes to mind, for instance.

In other words, far from being an indication of changing Asian attitudes towards Japan, Secretary del Rosario’s comments merely reflected a reality that many Western observers often overlook, which is that there’s actually a dichotomy of Asian attitude towards Tokyo: Southeast Asia loves Japan, while Northeast Asia distrusts it.

I suspect the reason behind this dichotomy is the fact that Southeast Asia has a longer history of colonialism than Northeast Asia. This differences in history has resulted in differences in dispositions of these Asian states’ respective national pysches.

A very weak China had to cave in to Western domination in the early part of the previous century, but it was Japan’s brutal occupation from the aftermath of the Sino-Japanese War through World War II that truly humiliated the Middle Kingdom. China had generally regarded Japan as some sort of a cultural vassal nation, and subjugation by an erstwhile vassal nation can be a huge blow to the psyche of a nation that regards itself as a civilization-state. As for  Korea, another proud nation, it had never been colonized prior its annexation by Japan in 1910. In sharp contrast, Southeast Asian nations, with the exception of Thailand, had been colonies of various foreign powers for centuries prior to Japan’s invasion in the 1940s. Since Southeast Asians had been used to colonial subjugation, Japan’s occupation of their countries might not have been as big a blow to their respective national psyches as it was to those of Korea and China; hence their willingness to forget past Japanese atrocities even sans appropriate apology from Tokyo.

Secondly, I don’t think the “rearming” of Japan would be an effective balancing factor in the region, and by “effective” I mean stabilizing. I might be oversimplifying Secretary del Rosario’s comments, but it seems to me that he’s arguing that Japan should have capable armed forces that can check China’s People’s Liberation Army (PLA).

But the Secretary should know that Japan had in fact already rearmed a long time ago, when General Douglas MacArthur, in order to fill the vacuum left by American forces that were sent from Japan to the Korean War, allowed Tokyo to form the Japanese Self-Defense Forces (JSDF). Indeed, the JSDF has a maritime force that can annihilate the Chinese navy and even give the American Seventh Fleet a run for its money. So, when we talk of a “rearming” of Japan, we’re not talking about Japan having its own armed forces, for it already has a formidable one. What a “rearming” of Japan means is Tokyo discarding its war-renouncing Article 9 of its Constitution and allowing it to participate in military activities that are offensive in nature. A “rearming” of Japan means changing its armed forces’ name from Self-Defense Forces (自衛隊) to National Defense Military (国防軍), which, by the way, is exactly what incoming Prime Minister Abe wants to do.

Now, would discarding Japan’s pacifist disposition be an “effective” balancing factor? If Tokyo participates in active military alliances with countries like the Philippines and Vietnam, would China turn less assertive in the South China Sea? Well, the argument invokes the classic realist balance-of-power calculus, which basically means that high fences make good neighbors. But– looking at the context of the East China Sea– we can see that Japan already has a very high fence, so why is China still not a good neighbor?

The problem with this realist perspective is that it assumes that states act rationally, and this assumption forms the basis of stability through balance-of-power theory. Well, if this were true, Japan would not have provoked the United States, which had a manufacturing capacity almost ten times greater than Tokyo’s, in 1941. But at that time, the myopic militarists, who were anything but rational, were steering Japan. In Beijing’s case, we know that the jingoistic hawks, buoyed by strong nationalist sentiments among the Chinese masses, are determined to steer China’s direction. And like the Japanese militarist of the 1930s, they are anything but rational– if they were, they wouldn’t have squandered China’s carefully-cultivated soft power by coming up with those maps and passports in the first place.

If anything, a re-militarized Japan would only fuel extreme nationalist sentiments in China, which would further embolden the Chinese hawks. The ruling Communist Party, seeing a need to pander to these jingoistic sentiments in order to preserve its legitimacy, would then be forced to act more aggressively to protect China’s perceived core national interests. It would only make China less rational. Far from being an effective balancing factor, therefore, the “rearming” of Japan would only further destabilize the already volatile regional situation.

Why Trillanes is the wrong man

In Manila, President Benigno S. Aquino III’s appointment of Senator Antonio Trillanes IV as his back-channel negotiator with Beijing during the Scarborough stand-off earlier this year has back-fired spectacularly, and the administration is now drawing flak. A doyen of Philippine journalism, who should probably retire, has called the President’s back-channeling a reckless adventure, while one deranged blogger is saying that the Philippines has ceased to be a sovereign state due to the episode.

This blog disagrees with these rabid critics, of course. There is nothing wrong with back-channeling when dealing with a foreign power on something as serious as the Scarborough stand-off. In fact, it’s a fairly common practice of statecraft: It allows nations, in times of crisis, to test waters, send feelers, and thereby explore every possible way to resolve conflicts, even as they parrot an official line. There was, however, something seriously wrong about choosing Senator Trillanes to be the President’s back-door point man.

For starters, Senator Trillanes isn’t exactly known for his trouble-shooting abilities. In fact, it appears that he’s more of a trouble-maker: As a Navy commander in 1999, he allegedly rammed a Chinese fishing boat on waters around the Scarborough Shoal, causing a minor diplomatic ruckus with the People’s Republic. Then Foreign Affairs Secretary Domingo L. Siazon had to convince his friend and fellow Japanese speaker, Vice Foreign Minister for Asian Affairs Wang Yi, that the collision was an “accident.” Beijing grudgingly accepted an apology from the government of then President Joseph Estrada, but demanded compensation from Manila, which the latter rejected. The potential fray was averted only after the Chinese-Philippine Chamber of Commerce offered to provide compensation.

Neither is the junior senator known for his tactical skills. His laughable coup attempts against the Arroyo regime were certainly not a showcase of strategy. I mean, really, taking over a posh hotel, and with only a handful of M16s and grenades? At least Arturo Tolentino brought crowds when he camped at the Manila Hotel back in the Eighties.

Sure, his come-from-behind election to the Senate in 2007 was indeed a coup, but that success was more because of the prevailing  national hatred for Arroyo than of Trillanes stratagem. Just look at how pathetic his attempted putsch against Senate President Juan Ponce-Enrile was, and you’ll see how naive he is. As the Inquirer asked in an editorial, how can anyone expect him to know where the levers of power in Beijing are, when he doesn’t even know where the levers of power in Manila are?

Thirdly, he’s not a team player. Rather than complementing the efforts of the official point man, Foreign Affairs Secretary Albert del Rosario, the senator stabbed him in the back. He called the Secretary a war-monger for taking the only rational track for the Philippines: Speaking forcefully against Chinese incursions and strategically raising the profile of the country’s military alliance with the United States, while insisting on multilateralizing the dispute. Worse, according to notes written by Philippine Ambassador to China Sonia Brady, he even tried to sow intrigue by apparently pushing for Secretary del Rosario’s replacement by Liberal Party President and Interior Secretary Manuel Roxas III.

Fourthly, he can’t keep his mouth shut. Rather than taking his qualms with Secretary del Rosario’s efforts to himself and just try to make wiggle room to allow more flexibility in crafting Manila’s position, the senator, according to Ambassador Brady’s notes, allegedly told the Chinese about his reservations with the Secretary’s policies, how the Philippines is too weak to enforce its claims on the Scarborough Shoal, and how “nobody in the Philippines cares” about the disputed shoal. These have exposed divisions within the Philippine side, and gave the impression that the Philippine stance is so weak all Beijing has to do is to wait for Manila to succumb to pressure, rather than to negotiate a way out. Thanks to the senator, the Chinese must have realized they don’t really need to pay for spies in the Philippines.

And despite all these, Senator Trillanes has the gall to say that his back-channeling efforts have resolved the crisis. That he had convinced China to pull most of its ships out of the shoal. Excuse me, but this is bullshit.

The formula for ending the stand-off was made neither in Manila nor in Beijing but in Washington, the capital of the country which Senator Trillanes wanted out of the equation. And the DFA, not the popmpous senator, was the one involved in establishing channels in these negotiations. Assistant Secretary of State for East Asian and Pacific Affairs Kurt Campbell prodded both sides to simultaneously pull-out of the Shoal to defuse tensions. Both sides agreed. Unfortunately, in a glaring misstep, Secretary del Rosario made the deal public, enraging Beijing who, in order not to appear weak to its domestic constituents, denied the agreement.

Beijing has since recalled most of its ships, but not before installing ropes supported by buoys to seal the Shoal’s inner lagoon to make sure no Filipino ships could enter it. The People’s Republic has practically established possession of the area. And Senator Trillanes’ calls this a success?

Being a back-channel negotiator, says former National Security Adviser Jose T. Almonte, is a privilege that comes with responsibilities. He knows what he’s talking about.  As Director of the National Security Council, he was part of the administration that successfully facilitated the defection of a ranking North Korean official and warned the United States of a terrorist plot to ram jets into major American buildings six years before 9/11. All these were accomplished quietly, but are now narrated in Trustee of A Nation, the comprehensive biography of former President Fidel V. Ramos written by that old Southeast Asian hand, Prof. W. Scott Thompson, with whom this blogger has the pleasure of corresponding.

“Negotiations should be held as a state secret. Under no circumstances should it be revealed. Only certain people must be allowed to know about it and agencies like the Department of Foreign Affairs must not be compromised,” says General Almonte.

In other words, the back-door point man must keep his mouth shut and complement, rather than obstruct, the efforts of the official actors. These are exactly the things Senator Trillanes did not do. And President Aquino wants him to remain back-channel envoy?

The ball is now in China’s court

Finally, a face-saving opportunity to end the tense stand-off at the disputed Scarborough Shoal.

Last Friday, citing bad weather conditions, President Benigno S. Aquino III ordered the two remaining Filipino ships in the area, a Philippine Coast Guard patrol craft and a Bureau of Fisheries and Aquatic Resources research vessel, to pull out of the disputed waters. The President’s order followed an earlier pull-out by both China and the Philippines from the shoal’s inner lagoon, which was seen by observers as an attempt by both sides to de-escalate tensions.

President Aquino’s deputy spokesperson says the withdrawal is a unilateral decision meant to ensure the safety of the Filipino crew, and that China has nothing to do with it. But Foreign Affairs Secretary Albert del Rosario told reporters last week that the Chinese had also agreed to withdraw their ships from the disputed waters, hinting that a deal of sorts had actually been reached.

So far, however, there’s no sign that the Chinese would honor this supposed agreement. While the Chinese Embassy in Manila has lauded the Philippines’ withdrawal, it was mum on the question of whether Beijing would follow Manila’s lead. This is despite the fact that Manila’s pull-out has given the Chinese government the opportunity to also withdraw around thirty of its maritime surveillance ships from the disputed waters without losing face to its nationalistic domestic constituents.

Yesterday, Malacanang reiterated that it is waiting for China “to honor its commitment” to pull its flotilla out of the shoal. In other words, Manila was sending Beijing a message: We’ve done our part, now do yours.

Obviously, ending the Scarborough stand-off is a necessary tactical initiative for the Philippines, which has very limited military options. But this is so with Beijing too, for different reasons.

China’s firmness on the Scarborough Shoal stand-off has alienated several Asian capitals, thereby squandering the gains of almost a decade of delicate “peaceful rise” diplomacy. To say that China’s soft power has been weakened by the stand-off is an understatement; Asian countries are now beginning to gravitate further towards the United States, which has publicly stated that it intends to remain as a Pacific power. Japan, whose ruling party used to have pro-Beijing leanings, for instance, has chosen to re-affirm its alliance with Washington, while Vietnam is practically laying the welcome mat for America’s Seventh Fleet in Cam Ranh Bay.

Clearly, to repair the damages to China’s image in the region, it’s necessary for Beijing to reciprocate Manila’s goodwill.

Needless to say, the restoration of status quo ante—that is, making the Scarborough Shoal free of government ships from both sides pending the completion of a code of conduct on the South China Sea disputes—should be a win-win solution not only for both the Philippines and China but also for the region as a whole.  But would Beijing see it this way, or would it find Manila’s withdrawal an opportunity to cement its newfound control over the disputed shoal?

How China would respond to the Philippine withdrawal could be indicative of who’s gaining the upper hand in the on-going national debate within the Middle Kingdom on how China should behave as an emerging power. Surely, the rest of Asia is watching closely.

Enrile sets the tone

The final debate between prosecutors and the defense counsels in Chief Justice Renato Corona’s impeachment trial at the Senate this afternoon showed the glaring difference between how the Prosecution and the Defense view the impeachment proceedings. The prosecutors framed their arguments more on on the basis of the fundamental political question of whether it is in the interest of the Philippines for the Chief Justice to remain in office. The Defense, on the other hand, wrapped their speeches with elaborate legalese that, for me, served only to buttress the Prosecution’s claims that the Chief Justice’s defense is merely an excuse. It doesn’t help that many among the senators are non-lawyers.

But the oral arguments aside, what caught my attention was the messages sent by several important players in this impeachment drama. I’m sure these messages are not lost on many political observers.

The first unambiguous message was Senate President Juan Ponce Enrile’s assertion of the Senate’s sole authority to conduct the impeachment proceedings. The Defense team has a pending petition for certiorari before the Supreme Court questioning the jurisdiction of the Senate Impeachment Court on grounds that the House of Representatives committed grave abuse of discretion in transmitting the Articles of Impeachment to the Upper House. Chief defense counsel Serafin Cuevas has also said that he will take the case to the Supreme Court in the event of an acquittal. The Senate President, however, sternly stated that the Supreme Court has no power to overturn the Senate’s decision. That, I think, was a message to the Supreme Court: Don’t encroach on our territory.

In an ambush interview with the Inquirer, Associate Justice Martin Villarama, who had been assigned to write the ruling on the impeached Chief Justice’s petition, said something that’s music to the Senate President’s ear: “We’ll accept the (Senate’s) verdict. Whatever it is, we’ll accept it.” It’s difficult to tell if this is the Supreme Court’s reply to the Senate President’s message, of course; but it’s an indication that the Supreme Court is no longer as assertive in protecting its chief as it was seen to be when it immediately released that TRO on the Senate’s inquiry into Chief Justice Corona’s dollar accounts, which the Senate graciously respected.

The second message, meanwhile, came from the House of Representatives through the speeches of Congressman Rudy Farinas and Speaker Feliciano Belmonte: “The House of Representatives has done its constitutional duty of impeaching Renato Corona and proving his guilt, not only by clear and convincing evidence, but conclusive evidence brought about his admission before the honourable Senate of the charge against him under Article II of the Articles on Impeachment.” I think this was the Lower House’s way of putting the Upper House on the spot before the court of public opinion. It was undoubtedly a challenge to the Senate: We’ve done our part, now do yours.

Finally, the third and most intriguing signal came, again, from Senate President Enrile. Just before the court adjourned, the Senate President posed several questions to the Defense’s star lawyer, Justice Serafin Cuevas.  The presiding officer basically laid down several premises: Firstly, a public servant’s disclosure of his foreign currency deposits has no inherent harm to his person. Secondly, the constitutionally-mandated duty of public officials to disclose everything they own is a sovereign command from the people themselves that all public servants must not ignore. Thirdly, and this is very telling, the word “culpable” in the impeachable offense of “culpable violation of the Constitution” is derived from the Latin word “culpa.” The Senate President pointed out that, according to basic Roman Law, culpa means fault deserving of blame; a contrast from dolus, which means intentional violation.

The Senate President’s insinuation is a very compelling one: In determining “culpable violation of the Constitution,” intent is irrelevant. Therefore, the Defense’s argument of “good faith” is immaterial. This, to my mind, stunned Justice Cuevas, whom I believe was roughly handled by the Senate President.

The exchange between the two legal eagles was not without humor and was extremely interesting, so I’m posting the video here:

Now, was Senate President Enrile setting the tone for the Chief Justice’s conviction on the basis of culpable violation of the Constitution and not just betrayal of public trust? Most observers think so. Congressman Farinas, however, burst the bubble by telling the presiding officer that the framers of the Constitution actually intended “culpable violation” to mean “willful violation.”

At any rate, the first two premises laid by Senator Enrile was telling: A public servant’s constitutional duty of disclosing all assets trumps the statutory privilege of keeping his dollars hidden from public view. To me, that was indicative of how the Senate President and his bloc of four senators will vote. This is significant because, the way I see it, the Enrile bloc can swing the verdict.

The Senate President’s voice holds considerable sway among the senators, especially those who are undecided. To me, his forceful interpelation of Justice Cuevas was his way of using that voice– and its influence– for the first time. He was indeed setting the tone.

I will be greatly surprised if the Senate acquits the impeached Chief Justice tomorrow.

UPDATE, MAY 29: The Senate votes 20-3 to oust Chief Justice Renator Corona from his office. The verdict is “immediately executory.”

UPDATE, MAY 30: The Philippine Star reports that the Senate President and his bloc of four senators met with the Nacionalista Party’s senators Loren Legarda and Manuel Villar, and Lakas chair Senator Ramon Revilla Jr. on Sunday, confirming that the Enrile bloc indeed swayed the vote.

Also, Yahoo! News reports that Senate President Enrile has categorically stated that the Senate will defy the Supreme Court should it try to overturn its decision.

Thin line between law and politics

Impeached Chief Justice Renato Corona’s come-back at the Senate yesterday was definitely a rebound from that monumental walk-out blunder last Tuesday. His announcement that he was finally opening his dollar accounts up for public scrutiny, although practically useless to the Impeachment Court, was a brilliant political stroke that undoubtedly earned for him some vital political capital. The chief magistrate is definitely a cunning politician.

But beyond the effect of his Senate appearance on the court of public opinion, what I find very interesting was the manner with which he defended his failure to declare his multi-million wealth in his Statement of Assets, Liabilities, and Net Worth (SALN). It has an important implication on the conduct of the impeachment trial itself.

Recall that in several TV interviews prior to his appearance at his trial, the Chief Justice had said that the declarations he had made in his SALN, which states that he is worth three and a half million pesos, match everything he owns. The testimony of the Ombudsman, however, had cornered him into admitting that he actually has around eighty million pesos and more than two million dollars in several bank deposits that he had not declared. Article II of the Impeachment Complaint accuses the Chief Justice of gross misdeclaration of his SALN.

The Chief Justice justifies the non-declaration of his peso deposits by claiming that these are co-mingled funds that belong to his immediate relatives. As for his dollar deposits, he claims that the Foreign Currency Deposits Act (FCDA), a Marcos-era law, requires “absolute confidentiality” of dollar deposits; hence, he could not declare his dollar savings, which he said is an accumulation of the returns of his dollar investments since the 1960s when he was still in college (note that it was illegal for Filipinos to engage in dollar trading during those times).

In short, the Chief Justice is saying that the constitutional provision on declaration of assets by public officials is limited by a statute requiring “absolute confidentiality” of dollar deposits. A bewildered Senator Francis Pangilinan asked if he meant that the FCDA trumps this constitutional provision, and the Chief Justice implied that it does. The provision has the qualifier “as may be provided by law,” said the Chief Justice, and that law refers to the FCDA.  I have no formal legal training whatsoever, but I find this interpretation extremely peculiar for three reasons.

Firstly, the said constitutional provision (Article II, Section 17) mentions the phrase “as may be provided by law” only twice: In reference to the frequency of the filing of the SALN, and the manner with which the SALN is to be disclosed to the public. The FCDA concerns neither of these.

Secondly, the FCDA’s “absolute confidentiality” clause applies only to bank officials who must not divulge any information on foreign currency deposits of their clients. The clients themselves, however, are free to divulge these information, which is exactly why the Chief Justice was able to waive his bank secrecy rights last Friday.

Thirdly, the Constitution does not speak of any exception to the assets and liabilities that public officials are required to disclose. Indeed, any exemption would defeat the purpose of the SALN itself, as activist Red Tani has suggested. Moreover, relevant laws would show that the SALN is supposed to contain “all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like (Section 8, RA6713).” No exceptions whatsoever.

These mind-boggling peculiarities aside, the Senate would now have to decide whether the impeached Chief Justice culpably violated the Constitution by failing to declare his multi-million assets in his SALN. To do so, the Senate would have to determine whether the Chief Justice’s counter-intuitive interpretation of the supposed conflict between the FCDA and the constitutional provision on the SALN is correct or not.

This is tricky, because the supposed conflict between the two laws is a strictly legal issue that only the Supreme Court has the competence and the power to resolve. As columnist Frederico Pascual tweeted, the Senate’s mandate is to merely decide the impeachment case against the Chief Justice, not to interpret the laws.

This is of great interest for students of politics and Law for it shows how the sui generis impeachment process traverses a very thin line between the political and legal realms. So how should the Senate navigate this line?

My take— and this is of course not an expert opinion– is that the Senate, if it chooses to, can determine what the correct interpretation should be for the purpose of arriving at a decision. This doesn’t mean that the Senate would be usurping the function of the Supreme Court, since its primary intent is to merely exercise its mandate– to arrive at a decision– rather than to interpret the laws. Obviously, the Senate’s interpretation would not form part of precedence. It can be validated or disproved by a Supreme Court decision.

Which begs the question, if the Supreme Court ultimately rejects the Senate’s interpretation, would it render the Senate’s decision invalid?  Again, this exposes the thin line between the political and legal realms. I think a Supreme Court rejection would only affect the legal question of how to reconcile the FCDA with the constitutional provision on the SALN, but not the decision of the Senate Impeachment Court, which concerns a purely political question.

Beyond legalese.

How then should the senator-judges decide if the Chief Justice’s interpretation of the laws is correct or not? Indeed, how should the Senate decide the case in general? These questions must be asked because it seems that quite a number of Chief Justice Corona’s supporters believe that he should be acquitted on the basis of technical legalese.

They cite, for instance, the “fruit of the poisonous tree” doctrine to condemn the presentation of “illegally-obtained” evidence against the Chief Justtice. But, as lawyer Butch Dado had blogged, this doctrine should not apply on impeachment cases since “the potential damage to our political institutions and processes by the imposition of fruit of the poisonous tree rule outweighs any possible abridgement of personal privacy rights” of the accused.

Alexander Hamilton once described the impeachment process as “a method of national inquest into the conduct of public men.” The idea is that, through the senators, the people are supposed to judge the moral fitness of their government’s high officials. For the purpose of procedural considerations, judicial rules apply, but only to a certain extent. These judicial rules must not get in the way of removing an obviously erring official.

The senator-judges should decide on the basis of the public’s basic sense of right and wrong. Is it right for a chief magistrate to recklessly assume that his supposed bank secrecy rights are more important than the constitutionally-mandated value of transparency? Is it right for the Chief Justice to use the letter of the law to circumvent the spirit of the law? Is it right to entrust the Supreme Court to a man who had lied several times before and during his three-hour monologue at the Senate? How high should the bar of integrity and honesty imposed on the head of the judiciary be?

Ultimately, the impeachment process is a policy-making process that must resolve the question of whether or not it is in the interest of the nation for the impeached official to remain in his office.

 ELSEWHERE: Speaking of technical legalese, a lawyer-blogger has correctly pointed out that the Impeachment Court should disregard Corona’s interpretation of the supposed conflict between FCDA and Article XI, Section 17 of the Constitution. Under rules of court, it has no probative value since Corona was not presented as an expert witness.

Also, Corona’s uncorroborated testimony is a mere denial of the charges against him. Jurisprudence puts premium on “categorical testimony that rings of truth” (read- Ombudsman) over “bare denials” that are not backed by proof. Justice Cuevas and Corona admitted under questioning that they have no documentary proofs whatsoever.

Moreover, in view of the evidence, Corona’s undeclared assets are presumed by law to be prima facie ill-gotten. Therefore, Corona has the burden to prove otherwise. Note that he never presented any proof; he merely denied– and cried. Read the blog here.

Former Chief Justice Artemio V. Panganiban said that the prosecution has been, to a minimum extent, successful in presenting a prima facie case, while the Defense has failed. See his column here. Former UP College of Law Dean Raul Pangalangan, meanwhile, says the Chief Justice’s interpretation of the law on SALN is “plain wrong.” See his Inquirer piece here.

Rappler has a very interesting article on the intriguing rift between Corona and Associate Justice Antonio Carpio here.

Read about the root of all this brouhaha here.

More on the Corona impeachment drama here.

Convict him

I have long maintained that impeachment is a policy-making exercise as much as it is a judicial one. Therefore, the senator-judges must decide not only based on the articles of impeachment but also on the general question of whether or not it is in the interest of the nation for the impeached official to remain in his office. Based on the behavior exhibited by Chief Justice Renato Corona in his appearance before the Senate Impeachment Court the other day, it should now be a no-brainer. He must be convicted.

His three-hour testimony was full of irrelevant innuendoes that besmirched the reputation of a number of people. He threw far-fetched accusations (a leftist haciendero?) against the President that can best be described as non-sequitur. He practically admitted that the Ombudsman’s testimony was actually correct, after he had called it a “lantern of lies.” He offered inconsistent explanations behind his unexplained wealth. He wrapped his refusal to open his accounts up for scrutiny with a repulsive Red Herring, which is nonetheless a stroke of political genius: he said he would only waive his bank secrecy rights if all the prosecutors and Senator Franklin Drilon would waive theirs.

At the end of the day, after promising to explain himself, and to open his dollar accounts “in due time”, all he offered in his testimony were baseless assertions that are, at best, hearsay. Senator Allan Peter Cayetano even asked chief defense counsel Serafin Cuevas yesterday if the Chief Justice would offer proof to back his assertions up, and Justice Cuevas said the senators would just have to take Corona’s words because there are no proofs.

The worst part, of course, was the arrogant conclusion of his testimony. Addressing himself by his lofty position and in the third person, he said: “And now, the Chief Justice of the Republic of the Philippines wishes to be excused.” In an imperious fashion, he rose without waiting for the presiding officer to discharge him, shook hands with Jose Roy III and another defense lawyers, and, with the equally overbearing Cristina Corona and Midas Marquez in tow, walked out. Senate President Juan Ponce-Enrile banged the gavel and, within hearing distance of the Chief Justice’s entourage, asked Justice Cuevas to bring his client back, but Corona ignored him.

Clearly taken aback, the heretofore very lenient Senate President Enrile sternly asked the Sergeant-at-Arms to seal the Senate building and prevent the Chief Justice, whose car’s engine was already fired up, from leaving. Senate guards blocked Corona’s way to the elevator, prompting the Chief Justice to ask the Sergeant-at-Arms, “Am I being arrested?” Mrs. Corona said, “Is this Martial Law?”

The Chief Justice’s son-in-law, a physician, then claimed that Corona left the witness stand because he was suffering from a hypoglycemic episode. He claimed that the Chief Justice  had skipped lunch, which was belied by a TV5 report. The Chief Justice, now on a wheelchair, was then ushered back into the Senate Hall. Justice Cuevas, who appeared genuinely out of the loop, apologized for what he said was a misunderstanding. The Chief Justice didn’t mean any disrespect, he said; he was just on the verge of fainting.

To most observers, the events of that fateful day were clear. Chief Justice Corona never intended to submit himself to direct and cross-examination in the witness stand. He felt it beneath him. As blogger Leo Alejandrino said, he just wanted to talk.

I have written about the enormous risk of a cross-examination by prosecutors and Liberal Party senators, especially since Corona is not known for being articulate. My take is that he merely wanted to turn the witness stand into a press conference as a last-ditch effort to gain brownie points in the court of public opinion. How else could one explain the logical fallacies in his three-hour monologue? As Chief Justice, he should have known that witnesses are not allowed to give speeches in the stand. Their testimonies are supposed to be delivered through direct examination.

Moreover, as Chief Justice, he knows that whatever he would say on the witness stand would be privileged. Meaning, he will not be held accountable by libel and defamation laws. That’s why he was free to slander just about anyone, including a dead man.

He had, of course, under-estimated the resolve of the Senate President, who was clearly intent on upholding the dignity of the institution he represents. The presiding officer gave the Chief Justice until Friday to come back for direct and cross-examination; the Senate would give its verdict either on Monday or Tuesday. The Chief Justice, who had been rushed to a posh hospital after the commotion at the Senate, remains confined in the intensive care unit (ICU) of the said hospital.

I suspect that the Chief Justice would no longer appear at the Senate, and therefore break his promise of explaining himself and opening his dollar accounts up. I will not be surprised if he would shift the battle to his home turf, the Supreme Court, and claim that the Senate acted with grave abuse of discretion because he was denied due process. If it goes that far, I’m sure the Senate would hold its ground and the country would again be on the verge of a constitutional crisis, one that the Supreme Court would ultimately lose.

Meanwhile, the senator-judges would now have to determine whether the Chief Justice’s glaring failure to declare all his wealth in his Statement of Assets, Liabilities, and Net Worth (SALN) constitutes betrayal of public trust. But beyond this issue is a question posed eloquently by noted sociologist Randy David:

“Let us for a moment set aside the issue of the four dollar accounts he has virtually admitted to owning, and assume the law indeed allows him to treat these as non-assets in view of their confidential nature.  Let us likewise grant his claim of lifelong frugality that supposedly enabled him to accumulate millions of dollars in savings. Let the impeachment court answer only one question: Is it right to continue entrusting the leadership of the justice system to this man?”

Renato Corona eschewed delicadeza by accepting a midnight appointment; believes that the absolute secrecy of dollar deposits is more important than transparency and accountability; fudged his explanations regarding his unexplained wealth through logical fallacies; slandered many people; and acted in contempt of the Senate Impeachment Court. He even appears to be not above dragging the whole institution he leads, and even the country itself, into a constitutional crisis just to keep his position. Clearly, this man does not deserve to remain chief magistrate of the Republic.

Convict him.

UPDATE: Reports say Justice Cuevas has announced that Corona would be attending tomorrow’s trial.

ELSEWHERE: A very informative Medico-Legal discussion on whether the walk-out was really due to a medical emergency or not can be found hereMore on the Corona impeachment drama here.

An Ombudsman with balls

Impeached Chief Justice Renato Corona’s gamble has clearly failed. Seeking to turn the tables on his accusers by attacking the premise of the alleged ten million dollar deposits in his bank accounts, he had his lawyers summon Ombudsman Conchita Carpio-Morales as hostile witness. Since the Supreme Court had already imposed a TRO on any probe on his foreign currency deposits, he probably thought that the Ombudsman has no solid evidence, and that he can bombard the public with his convoluted legalese and cry fishing expedition.

But as it turned out, this strategy was a monumental blunder. It may be too soon to say that it’s all over, but in the public’s eye, it really is. The Ombudsman’s evidence was beyond incriminating: Transaction records of the Chief Justice’s accounts, based on a 22-page report from the Anti-Money Laundering Council (AMLC), show around thirty million dollars in withdrawals alone. The movement of the money implies that the chief magistrate was involved in either money laundering or foreign exchange trading and speculation. More importantly for the impeachment court, these millions were not declared in his Statement of Assets, Liabilities, and Net Worth (SALN).

Clearly taken aback, chief defense counsel Serafim Cuevas tried to block the Ombudsman’s PowerPoint presentation. But the senators knew better; they didn’t want a second envelope redux. For Justice Cuevas, it was arguably the worst cross-examination ever in his long career as a brilliant litigant. For Chief Justice Corona’s handlers, it was a horrible PR nightmare.

But the horror, it seems, is shared by many politicians. The Ombudsman’s actions have wide-ranging implications for them.

Ombudsman Carpio-Morales obtained the supposedly confidential information by merely asking the AMLC for it. How could this be, asked Senator Allan Peter Cayetano, when the AMLC had refused to share the bank records of the unlamented Gloria Macapagal-Arroyo when the Senate Blue Ribbon Committee asked for it? The AMLC had said at that time that a court order is needed to share the said information.

The answer is obvious, and the fact that a lawyer like Senator Cayetano had to ask this question boggles the mind. Both the Constitution and the Ombudsman Law empowers the Ombudsman to seek even confidential information from any government instrumentality, sans court order, in the course of her investigation. Other officials like senators don’t have the same powers.

The famously feisty Senator Miriam Defensor-Santiago, however, expressed apprehension. She “juxtaposed” the Ombudsman’s powers with the Anti-Money Laundering Act (AMLA), which states that the AMLC would have to find probable cause first before it submits information to the Ombudsman and recommend appropriate investigation. But even this should have been a no-brainer, and I think the senator was just being KSP when she raised this.

First of all, the AMLA processes apply only to the AMLC and not to the Ombudsman. If it is the AMLC that detects something fishy, it would have to go through the AMLA-mandated steps of determining probable cause first before proceeding. But if it’s the Ombudsman who detects irregularities in bank transactions, she doesn’t need to wait for the AMLC to declare probable cause; she can obtain the information from AMLC and proceed with her own investigation. Secondly, and this is something even a sixth grader knows, the Constitution, which grants the Ombudsman motu proprio power to investigate, obviously trumps mere statutes like the AMLA and the Foreign Currency Deposits Act (FCDA).

Senator Defensor-Santiago further asked: “Are you of the opinion that should somebody file a complaint against any senator or member of the House, you can go straight to AMLC, and ask for records without going to the court or without waiting for probable cause to be found by the council itself?” Obviously, the answer is yes. And the implication is that, well, all public officials are at the mercy of a very powerful constitutionally-mandated graft-buster. No crooked official is safe.

It’s a shocker, I know. Even the senators were shocked by the precedence set by Ombudsman Carpio-Morales’ actions. Who could blame them? Previous ombudsmen had been very timid in excercising the wide-ranging powers they actually had. It’s the first time the Philippines is seeing an ombudsman who has balls.

Some cynics are pointing out that this might have human rights implications. But what rights would a zealous ombudsman violate? The right to privacy? Public officials are mandated by law to give up, to a considerable extent, their right to privacy. That’s why they are required to file their SALNs every year in the first place. The law puts greater premium on public accountability over flimsy rights of public officials, as it should. Moreover, if these public officials have nothing to hide, why be bothered by the Ombudsman’s wide-ranging powers?

Clearly, the appointment of Ombudsman Conchita Carpio-Morales is one of the best decisions President Benigno S. Aquino III has made. She has given teeth to the heretofore unassertive Office of the Ombudsman. As Ateneo School of Government Dean Tony La Vina said, this has opened a pathway to transparency and accountability never before seen in the Philippines.

Corona’s gamble

On Monday, Senate President Juan Ponce Enrile and his protégée, Senate President Pro Tempore Jinggoy Estrada, exhorted the Defense to present impeached Chief Justice Renato Corona before the Senate Impeachment Court. The Defense heeded their exhortations the very next day, announcing that the Chief Justice himself would take the witness stand, but with some interesting pre-conditions: The Ombudsman and ten others must testify first. The Senate President immediately agreed.

It has now become clear that revelations regarding the Chief Justice’s dollar accounts has changed the dynamics of the game for the Defense, which explains why the accused has decided to take the stand.

Continue reading “Corona’s gamble”

On Clinton’s ‘hands-off’ declaration

Some lawmakers in Manila are upset with American Secretary of State Hillary Clinton’s declaration that the United States does not take sides in the territorial disputes in the South China Sea. They should know, however, that a declaration of American neutrality in terms of the competing claims in the area is in fact more beneficial to the Philippines.

The American position on the Scarborough crisis, as articulated by Secretary Clinton in yesterday’s Philippine-American ministerial dialogue in Washinton, is actually more nuanced than the supposed neutrality that these lawmakers—and the Daily Tribune— are trying to paint. While Washington does not take sides on sovereignty issues; it has declared that it is against the threat or the use of force, and is in favor of a multilateral approach, in solving the Scarborough crisis. It has also reiterated that it will honor its obligations under the Mutual Defense Treaty (MDT) and that it will commit itself to building a “minimum credible defense posture” for the Philippines.

China’s actions in the shoal these past eighteen days have made it apparent that its strategy is to gain control of the territory through bullying tactics, as opposed to the Philippines’ desire to resolve the stand-off through a rules-based mechanism. China also insists that the Scarborough issue is a bilateral matter that must not internationalized, but the Philippines thinks otherwise. By calling for a “collaborative and multilateral diplomatic process” to resolve the stand-off, therefore, Washington has basically adopted Manila’s stance.

Of course, by saying that it will abide by the MDT, the United States is merely being strategically ambiguous, since that treaty does not have an ‘automatic retaliation’ clause. Obviously, Washington intends to keep its options open. This should not be a source of concern for the Philippines, however, since strategic ambiguity also characterizes the American position on Taiwan. Indeed, in the event of an actual armed attack on any Philippine vessel in the shoal, the Americans will surely come to the Philippines’ aid, just as they will come to Taiwan’s aid in the event of an invasion from the Mainland. They just have to. Not doing so would make the United States appear unreliable in terms of honoring its treaty obligations, which will surely spook the four other treaty allies in the Pacific and turn away Vietnam, Singapore, Indonesia, and the other Asian countries that the Americans have been trying to win over.

So, when militant leftist congressman Neri Colmenares said that Secretary Clinton’s declaration could embolden China “to start a limited war in the shoal just as it did to Vietnam,” we know that he’s just being, well, a typical militant leftist. This statement, which is a stark contrast to his Bayan Muna Party’s earlier demands for the US to stay off the territorial disputes, reinforces the perception that for the militant left, things are often a matter of damned if you do, damned if you don’t.

The truth of the matter is that a shooting war in the Scarborough would be more probable had the United States declared support for the Philippines’ sovereignty claims to the shoal. Such a declaration would validate the suspicion held by many Chinese citizens that the Philippines is merely acting as a proxy for the supposedly vicious American agenda of encircling China and containing its rise. The hawks in Beijing– like General Luo Yuan and the Global Times, for example– could in turn use this to further fan nationalist flames, which would extremely limit the wiggle room for the Chinese government to make compromises with its Philippine counterpart. This would make it very difficult for both sides to diplomatically manage the on-going stand-off.

Clearly, despite these lawmakers’ concerns, the Philippines has been able to get the minimum American support it needs. Its negotiators, however, could have done better in pressing for greater American assistance in terms of upgrading the country’s terribly dilapidated armed forces. But that’s for another blog entry.

Manila should try to understand how Beijing works, too

When China prevented the Philippines from apprehending illegal Chinese poachers caught pilfering endangered marine life in the Scarborough Shoal— in clear violation of Philippine and international laws— it probably thought that the militarily-weak Philippines would meekly submit and call it a day. But as an American expert on Asian affairs said, Beijing has clearly underestimated Manila’s resolve.

For sixteen days now, Philippine and Chinese vessels are in a stand-off in the Scarborough, and neither side is showing signs of blinking. The military power asymmetry between the two sides is beyond obvious. China has an overwhelming advantage. The Philippines, however, knows how to play its cards.

Manila is holding its ground by keeping its ships in the Scarborough while simultaneously rallying international support for its cause and intensifying its military alliance with the United States. Under the circumstances, these are the best insurance to at least maintain the status quo as the Philippines tries to elevate the dispute to international tribunals.

It is true that the members of the Association of Southeast Asian Nations (ASEAN) are still reluctant to take a collective stand on the crisis because of their deep economic ties with China, but that doesn’t mean that they are not concerned. Indeed, they have expressed these concerns through Track II diplomacy, and I’m sure that the smarter people in Beijing know that they, along with the world, would condemn China should it unleash its vastly superior navy on the Philippines. Gone are the days when might is right.

The smarter people in Beijing know, too, that taking the shoal from the Philippines by force would push almost all Asian countries to the American orbit. It will intensify the alliances between America on one hand and Japan, South Korea, Thailand, and Australia on the other. It could make Vietnam an American ally, and Singapore, along with other ASEAN states, very friendly to the United States. It will totally undo a decade of efforts by China to rein in these Asian states through its “peaceful rise” overtures, and shift the region’s balance further towards Washington.

The Philippines, on the other hand, stands to gain tremendously by merely holding its ground. The longer the crisis drags and the tenser it gets, the more leverage Manila gains in, firstly, negotiating its way to get more military concessions from the United States, which will be pressured by public opinion to acquiesce, and, secondly, trying to rally the world into forcing China to bring the matter before international courts, where Manila stands to win.

Should the Chinese try to end the stand-off by firing the first shots, the United States will be forced to honor its treaty obligations and defend the Philippines. It won’t be different from what would happen if the Chinese invade Taiwan. Washington wouldn’t dare? It would, especially in an election year; and with world opinion supporting it to boot. The smarter people in Beijing know this, too.

Unfortunately, however, the smarter people in Beijing don’t always get to see their views become official policy. With too many different power poles and loose definition of where the lines between these poles are drawn, China’s policy-making can be unpredictable. The smarter people in Beijing form probably just one of these poles; the other poles can be either too myopic to see the dynamics of long-term balance-of-power realpolitik or just too jingoistic, or both.

Indeed, if we believe Gordon Chang, who says that the conservatives in the People’s Liberation Army (PLA) have gained too much leverage in Beijing’s policy-making circle, or the International Crisis Group, which says that purely domestic maritime agencies struggling for a say on the dispute in their efforts to protect their turfs have been steering China’s actions in the South China Sea; then we shouldn’t expect China to be always rational in dealing with this crisis. Japan realized this painfully when it became a target of China’s soft economic sanctions due to a similar stand-off near the disputed Senkaku Islands in 2010.

In order to avoid dangerous miscalculations, therefore, the Philippines should strive to understand the nuances of Beijing’s domestic politics and bureaucracy, and calibrate its actions accordingly. President Benigno S. Aquino III should include China hands — long-time Beijing resident and journalist Chito Sta. Romana comes to mind, for instance — in consultations and discussions on how best to deal with the Scarborough crisis.

Corona’s Original Sin

“I know the legal justifications for your appointment, but what’s the moral justification?”

This was my question to Renato C. Corona, the most controversial Chief Justice the Philippines ever had, during a dinner-meeting with several bloggers at his Supreme Court office in Manila last Wednesday. The said meeting was organized by Noemi Lardizabal-Dado, editor of Blogwatch.

“Well, modesty aside, if you see my qualifications, I think you’d agree that any president would appoint me, or at least consider appointing me, to the post,” he said.

“Yes, I do agree with you, sir. But why, then, did you not wait for President Aquino to appoint you instead?”

“Well, you see, the Constitution does not provide for an acting Chief Justice.”

Continue reading “Corona’s Original Sin”

Tide turning against Aquino?

Yesterday, the prosecution team in Chief Justice Renato Corona’s impeachment trial prematurely rested its case, thereby dropping five of the eight impeachment charges. This decision has been a surprise, and the motivations behind it are not yet clear– they will certainly become a subject of speculation among Manila’s commentariat today.

But I think what’s clear now is that, more than two months after President Benigno S. Aquino III and his allies launched their surprise blitzkrieg attack against Chief Justice Renato Corona, the President’s forces now appear to be in some sort of a disadvantage. It seems that the tide of the war has shifted against the Aquino government. There are three reasons behind this.

Continue reading “Tide turning against Aquino?”

Symptom of judicial supremacism

What transpired in yesterday’s hearing of the impeachment complaint against Chief Justice Renato Corona highlights the danger of judicial privilege, which the Supreme Court invoked in issuing a gag order on its members and employees last Valentine’s Day.

While not totally striking out Justice Secretary Leila de Lima’s testimony on the alleged irregularities in the Corona-led Supreme Court’s issuance of the controversial temporary restraining order (TRO) involving Rep. Gloria Macapagal-Arroyo’s attempt to leave the country last November, which were revealed by Associate Justice Ma. Lourdes Sereno in her separate opinion; Senate President Juan Ponce Enrile dismissed the Secretary’s comments as hearsay. For this reason, he admonished his colleagues not to regard the Secretary’s testimony regarding Justice Sereno’s revelations, although he allowed the said testimony to remain on record.

Continue reading “Symptom of judicial supremacism”

Clash of Values: Judicial Review vs Impeachment

There’s an on-going debate among the legal commentariat in the Philippines on the question of whether the Supreme Court could exercise its power of judicial review over the impeachment proceedings in the Senate. The debate pits two important values that the country’s Constitution upholds: On one hand, the duty of the Judiciary to point out grave abuse of discretion on the part of any instrumentalities of government in order to protect citizens’ rights, and, on the other hand, the power of the Legislative to check the other two branches of government.

The Senate itself holds some sort of a middle ground: It says that the Supreme Court can exercise judicial review in interlocutory matters, but it has no jurisdiction on matters pertaining to trying and deciding an impeachment case, since the Senate has the sole constitutional authority on such matters. In my opinion, however, this middle ground opens a Pandora’s Box that could lead to either the dilution of the Congress’s exclusive impeachment powers or an outright constitutional crisis.

Continue reading “Clash of Values: Judicial Review vs Impeachment”

Did the Senate fall for the Defense’s gambit?

In a significant vote, the Senate sitting as the Impeachment Court decided on Monday to uphold the Supreme Court’s temporary restraining order (TRO) against the subpoena on impeached Chief Justice Renato Corona’s dollar accounts. The vote came after the Defense counsels, in a dramatic press conference at the historic Club Filipino last Sunday, accused Executive Secretary Paquito Ochoa of trying to bribe senator-judges on behalf of President Benigno S. Aquino III.

At first glance, the Defense’s accusation—which is based on the words of an anonymous source; therefore, hearsay—looked like a desperate, but largely impotent, act; one that, in the words of legal scholar and Huffington Post commentator Edzel Tupaz, “burned all the political capital the Defense had.” But it appears now that it could have actually been, in fact, a well-thought political gambit that paves the way to the shifting of the main arena from the Senate to the Supreme Court.

Continue reading “Did the Senate fall for the Defense’s gambit?”

The Supreme Court will lose in a constitutional crisis

In an unprecedented move, impeached Chief Justice Renato Corona petitioned his own colleagues at the Supreme Court to stop his on-going impeachment trial at the Senate basically on grounds that the House of Representatives did not follow due process when it transmitted the impeachment complaint to the Senate.

Why the fact that Corona had already acknowledged the validity of the trial at the onset should not have estopped him from lodging this petition, only lawyers know.  But what’s probably clear to both lawyers and non-lawyers alike is that Corona’s petition appears to be a sign of either panic or desperation, or perhaps both.

Corona’s petition was prompted by revelations that he maintains multiple multi-million peso bank accounts amounting to around thirty million pesos, and that he also maintains dollar accounts in several banks. These have shifted the tide of the trial in favor of the inexperienced prosecution team, who had earlier struggled to keep up with the legal acumen of Justice Serafin Cuevas and other high caliber defense counsels.

These revelations expose the glaring dishonesty in the Chief Justice’s Statement of Assets, Liabilities and Net Worth (SALN), where Corona only declared around three million pesos in cash assets. While Corona’s defense has yet to be heard, it appears that disproving the prosecution’s allegations that Corona misdeclared his SALN would be very challenging for the Chief Justice’s lawyers to do.

A graph showing the discrepancies between Corona’s SALN and his actual bank accounts. From Finance Secretary Cesar Purisima’s Facebook page.

Indeed, when Corona’s defense counsels questioned the subpoena issued by the Senate on Corona’s bank records, the senator-judges voted to uphold the subpoena during their closed-door caucus. This vote, veteran journalist Ellen Tordesillas observes, could be indicative of how the Senate would ultimately rule on Corona’s impeachment. This is why it appears that the Chief Justice is seeking to shift the arena from the Senate to his home turf, the Supreme Court.

This is the height of shamelessness. In his desperate ploy to prevent his inevitable ouster, Corona is pitting the Supreme Court against the Senate and pushing the country to the brink of a constitutional crisis. What’s more, it seems that he has even allowed himself to be used by another political actor, the politically-influential religious sect Iglesia ni Cristo.

Unconfirmed rumors indicate that the influential Iglesia, who counts Justice Cuevas among its members, is siding with Corona on this issue due to its beef with President Benigno S. Aquino III. Intelligence reports by the Philippine National Police indicate that the seven thousand people that protested in support of the Chief Justice at Padre Faura Street yesterday was mobilized by the Iglesia. It is unclear what the Iglesia’s stake on the impeachment drama is, but my speculation is that it has something to do with the sacking of Magtanggol Gatdula, a member of the Iglesia, as Director of the National Bureau of Investigation for his alleged complicity in the kidnapping of a Japanese national. Allegedly, despite the fact that the Iglesia’s support was crucial in his winning the 2010 election, President Aquino, compared with former Presidents Joseph Estrada and Gloria Macapagal-Arroyo, has been less accommodating to the Iglesia’s requests.

It remains to be seen if the Iglesia factor would affect how the Senate would ultimately decide on Corona’s impeachment. What’s clear is that the Senate as an institution has traditionally been protective of its own turf, and it would never allow the Supreme Court to, in the words of Senator Teofisto Guingona III, “emasculate” its “exclusive constitutional mandate of impeachment.”

Indeed, as Raul Pangalangan notes in his Inquirer column today, when Senate President Juan Ponce Enrile denied the prosecution’s motion to subpoena Supreme Court justices as witnesses in the impeachment court on grounds that, out or respect to a co-equal branch, the Senate should “scrupulously stick to its own turf” and shouldn’t “venture into the Court’s;” he was actually telling the Supreme Court that the Senate “expects the same deference in return.”

“The Senate decision not to issue subpoenas to the Court is a classic pre-emptive strike. The Supreme Court should read between the lines of the Senate order and, having done that, see the writing on the wall,” writes Pangalangan.

Should Corona’s colleagues grant his petition to stop the impeachment trial, the Senate would almost certainly ignore the Court’s order. This would cause a deadlock between the two political institutions. If such deadlock results in actual defiance of each other’s orders, the country will be in a constitutional crisis.

But in the event of such a crisis, where two institutions are issuing conflicting orders, the real arbiter would be the person who has the mandate to execute the State’s police power. That person would merely choose which of the conflicting orders to carry out. And unfortunately for Corona, that person happens to be his nemesis, the President of the Philippines.

The Palace-Faura War and its three fronts

What a spectacle it was. In front of hundreds of court employees who skipped work to cheer him, the embattled Chief Justice Renato Corona, who had earlier been impeached by the House of Representatives, declared war against President Benigno S. Aquino III. And into this war he has dragged the Supreme Court itself, along with practically the entire Judiciary and the Integrated Bar of the Philippines. Rallying behind him are judges and lawyers, loyalists of the previous administration, the Daily Tribune— yes, that paper still exists– and Senator Joker Arroyo.

It is now apparent that the Chief Justice is willing to compromise the Judiciary’s ability to maintain the fiction of its cold neutrality, from which its moral authority as the prime arbiter of law emanates, in order to protect his position. For the President and his allies, this means that they should now prepare for a protracted total war, one that would be fought in three different fronts.

The first front of this war, unfortunately for the President, would be the Supreme Court itself. There still are pending issues involving Gloria Macapagal-Arroyo, including questions regarding the constitutionality of the joint DOJ-Comelec panel that indicted her and thus the validity of her arrest. The Chief Justice and his group of perceived pro-Arroyo justices retains the majority in the Court. Of course, with impeachment hanging over their head like the swords of Damocles, it remains to be seen if they could remain intact. But if they do, as they likely would, they would most likely wield decisions that could leave the President incensed but, in terms of gaining judicial remedies, practically powerless. I doubt impeaching all the pro-Arroyo justices, as Justice Secretary Leila de Lima has suggested, would be a good option to address this scenario, since such an exercise would be time-consuming and politically taxing, and could even dissuade the President’s allies.

The second front would obviously be the Senate, which would be conducting Corona’s trial. Securing a conviction there would be very challenging for the President’s political operators, considering that the administration coalition does not have the two-thirds majority required to convict the Chief Justice. Lawyer Harry Roque has a pretty impressive projection of how the senators would likely vote, identifying ten who would surely vote for impeachment and four who would vote against. Nine of the senators are wild cards, and it is them that the President’s handlers would have to convince.

Some of these nine senators, like the maverick Liberal Party stalwart Sergio Osmena III, who is known to be a man of his own as proven by his opposition to Domingo Lee’s appointment to be ambassador to China, and Miriam Defensor-Santiago, who owes her recent election to the International Criminal Court to the President but is nonetheless independent-minded, would probably vote based on the substance of the complaint; therefore, it would be up for the prosecution to convince them. But the others, like Manny Villar and his bloc, or even Loren Legarda and Edgardo Angara, would most likely require concessions in exchange for their votes, in a classic political game of quid pro quo. I speculated in my previous post that it would be easy for the President to win these senators over since he has the overwhelming support from the public, but I failed to realize that, as Manuel Buencamino has pointed out, these senators could actually abstain, which would allow them to save Corona without incurring public ire.

The President could only hope that the political capital needed in the intense horse-trading that would surely ensue in the Senate would only be minimal. But for that to happen, the President must sustain the overwhelming tide of public support for Corona’s ouster; which leads us now to the third arena of this war: the propaganda front.

It is true that the President has the public and the media behind him, but Corona is nonetheless determined to challenge him. This is the reason why Corona is now shedding his aloof, if not imperious, image by speaking in Tagalog instead of English, the language that he seemed to have been more comfortable in. He is trying to appeal directly to the public in an apparent attempt to win public opinion. He is now grabbing every opportunity, including that gathering of public attorneys earlier today that he initially said he won’t attend but did at the last minute, to step up his attacks against President Aquino. His photogenic spokesman Midas Marquez is also doing the same.  Indeed, it seems that Corona has become not just a magistrate but a politician.

Conversely, the President’s handlers are obviously not taking things sitting down. They have even unleashed the most popular and trusted public official today, Secretary de Lima, against Corona and her fellow pro-Arroyo justices; proving that they are taking the propaganda war seriously. As indeed they should, especially since Corona has an ace he can play in order to, at the very least, divide or weaken the President’s support base and, at most, totally debase it. I’m talking about the re-distribution of the Hacienda Luisita, of course.

Arroyo apologists in the media like Bobi Tiglao are already framing the President’s crusade against Corona as a presidential vendetta to avenge his family’s loss of its crown jewel. Their narrative is appealing. Not surprisingly, many well-minded supporters of the President, along with genuine champions of social justice, are already buying it. I personally believe that the President’s crusade against the Chief Justice has nothing to do with the Luisita issue. This is because, firstly, the President’s beef with the Corona predates the Court’s decision to dismantle the Hacienda and that, secondly, even Aquino appointees supported that unanimous decision. But until the President himself presses for a speedy re-distribution of the vast estate, doubts on his intentions would continue to linger.

Finally, it appears to me that a prolonged Palace-Faura war would in fact be beneficial to Arroyo. The intensity of the war could end up draining the administration’s political capital. The Judiciary, on the other hand, could end up utterly politicized. And while the two branches of governments destroy each other, Arroyo, protected by her justices, could just sit things out in her hospital suite until 2016, or until the exhausted public no longer cares.

The best way out of this grim scenario is for the President to be smart enough to effectively wield the vast powers of his office and win this war decisively and promptly. How he could possibly do that is anybody’s guess.

ELSEWHERE: Corona’s Counter-Attack on the Philippine Online Chronicles and Of Circuses and Sanity in the Philippines on the Huffington Post.