Revising history

I craned my neck watching from the back of a packed room at that historic press conference of Vice President Gloria Arroyo with AFP Chief Angelo Reyes who, together with other senior military officials, had just withdrawn his support from President Joseph “Erap” Estrada. The air was electric since everyone knew that the tide had turned: without the Armed Forces backing his presidency, Erap’s days in Malacañang were numbered.

I waited for Mrs. Arroyo to say something memorable. Surely she and her advisers had prepared for the possibility of her being catapulted to power riding the crest of a massive wave of people’s protest culminating in the four fateful days of EDSA Dos. She must have rehearsed some short lines that, even if not earthshaking, would be somewhat equal to the occasion. It is not everyday that you are a heartbeat away from being the most powerful person in the land.

But no, she was her usual banal self and though anyone could see that she was pleased and excited at the prospect of soon becoming president of the country, all she could say was that she didn’t aim to be the best president but just a “good” one “with the help of God Almighty”. What sounded then like a self-deprecating understatement turned out in fact to be a much bloated overstatement about what her presidency would be for most Filipinos - bad, worse and worst - by any measure.

As fas as EDSA people power uprisings go, Mrs. Arroyo will be remembered more for her preposterously anti-people power official statement on the 23^rd anniversary of the revolt that toppled the Dictator Marcos. Mrs. Arroyo sums up her view thus, “The world embraced EDSA I in 1986. The world tolerated EDSA II in 2001. The world will not forgive an EDSA III, but it will instead condemn the Philippines as a country whose political system is hopelessly unstable.”

In simple terms, what she is actually saying is that she was on the right side of EDSA I (her father, former President Diosdado Macapagal , had by then joined the anti-Marcos opposition) and benefited from it when she was appointed by Pres. Corazon Aquino as undersecretary at the Department of Trade and Industry. By the time Mrs. Aquino’s term ended, Mrs. Arroyo had gotten a sufficient boost in her political career to aim for a senatorial seat in 1992 and the vice presidency in 1998.

Of course, she welcomed EDSA I.

In 2001, Mrs. Arroyo was ever the lucky one, who by just sitting tight as Vice President while sufficiently distancing herself from the unraveling Erap presidency, handily stepped into the vacuum that was created by Estrada’s ouster from power through the EDSA Dos uprising (and, par for the course, through the machinations as well of the anti-Estrada faction of the ruling elite).

She merely “tolerated” EDSA II because, indeed while she benefitted from it, holding court in Malacañang for the remaining three years of Estrada’s presidential term without having to break a sweat, she had to make it appear that the way she came to power was an aberration. That is, notwithstanding people power, the fact that she was vice president, she was the “rightful successor” to Mr. Estrada.

Thus she felt she owed nothing to EDSA II. Soon she eschewed having had anything to do with it, even though she and her husband met with almost all the political forces out to topple Estrada, from Right to Left of the political spectrum, to make sure she was on top of the developing situation. In one unguarded moment, Mrs. Arroyo even publicly acknowledged that she had met with disgruntled military officers and encouraged their moves to go against their Commander-in-Chief.

The Arroyo regime eventually clinched the legal imprimatur of the Davide Supreme Court that created the legal fiction of an Estrada “constructive resignation” and made it appear that rather than having come to power by extra-constitutional means, i.e. via people power, Mrs. Arroyo legally assumed the presidency by virtue of her predecessor effectively relinquishing the post.

In no time, Mrs. Arroyo would become unenthusiastic, disinterested, a no-show at commemorations of EDSAs I or II. Not unlike during Mrs. Aquino’s later years in office, the Arroyo regime increasingly twisted the facts and the meaning of people power so that it could be made to serve the interests of those currently wielding and abusing presidential power.

The official line was that it was time for the legions who enthusiastically joined EDSA II to demobilize and turn their attention and commitment to supporting the new government and diligently working for the status quo. Forget about seeking real changes in government and society as a whole; it was to be business as usual.

It is entirely predictable and in character that Mrs. Arroyo would condemn an EDSA III, especially a successful one. Who is the sitting president - especially an illegitimately seated one like Mrs. Arroyo fighting tooth and nail to cling to power - who would welcome being overthrown in disgrace by direct democratic action of an aroused people?

For the record, the attempt of the regrouping pro-Estrada faction of the elite and the remaining Erap following among the urban poor, to kick out Mrs. Arroyo a little over two months after EDSA II, ended in utter failure. Objectively speaking, it is a stretch to accord that attempt the title “EDSA III”.

A real EDSA III, however, one that has the majority of the people’s backing and concludes with Mrs. Arroyo hightailing it out of Malacañang, has been a distinct possibility at several critical junctures in the last five years. This was after Mrs. Arroyo was caught red-handed cheating her way to “victory” in the 2004 presidential race with the help of one shamelessly corrupt Comelec Commissioner Mrs. Arroyo fondly called “Garci”.

That scares the daylights out of Mrs. Arroyo, her scheming husband and her spoiled spawn of two-bit politicians, together with the handful of assorted scum in her Cabinet who can’t imagine the good times coming to an abrupt end, much less being made to account for their plunder, debauchery, murdering spree and just plain aggravation of the public spirit by their overstay in office.

Ironically, the more Mrs. Arroyo dismisses, degrades and tries to consign to oblivion the legacy of people power uprisings - of a people moving as one to overthrow the current Chief Executive Officer of the unjust and exploitative ruling system – the more she underscores its vitality, its correctness and its historical necessity. #

Surrender of national sovereignty

I strongly dissented in the case of Bayan v. Zamora proffering the view that the VFA falls short of the requirement set by … the 1987 Constitution stating that the agreement allowing the presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.” The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA… This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it. - Justice Reynato S. Puno

At first glance, the latest Supreme Court (SC) decision on the petitions of Suzette Nicolas, Bayan et al and Salonga et al appears to be a welcome, if unexpected assertion of Philippine sovereignty. The SC ruled that the transfer of convicted rapist Cpl. Daniel Smith to the US embassy from a Philippine jail, violated the terms of the RP-US Visiting Forces Agreement (VFA).

But on closer scrutiny, the SC decision continues to undermine, if not surrender, Philippine sovereignty by once more affirming that the VFA is constitutional. It gives the US greater legal license to station more troops in the country and increase the scope of its military intervention while claiming legal immunity for criminal acts of its forces on Philippine soil.

Further watering down the impact of the decision is the directive of the Court to the Foreign Affairs Secretary to “negotiate“ with US government representatives “pending which the status quo shall be maintained...” In other words, the Philippine and US governments can both drag their feet transferring Cpl Smith back to a Philippine jail while they take their time agreeing as to what detention facility is most “appropriate”. Meanwhile Cpl Smith gets to stay put in his comfortable quarters surrounded by supportive fellow Americans.

The SC decision, penned by Justice Adolfo Azcuña and assented to by nine justices against four dissenters, flies in the face of a 25 March 2008 ruling by the US Supreme Court, in Medellin v Texas that “a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the US, unless the US Congress enacts the implementing legislation, or the treaty by its terms is self-executory and ratified by the US Senate as such.”

In a separate dissenting opinion, Justice Antonio Carpio said, “Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes domestic law in the Philippines. This unequal legal status of the VFA violates Section 25, Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving the presence of foreign troops in the Philippines must be equally binding on the Philippines and on the other contracting State.” In the light of the Medellin ruling, any assertion of sovereignty by the Philippines is rendered legally in doubt and is certain to be an uphill battle.

The US can reiterate its interpretation that US custody over Cpl Smith extends even up to his current status of being convicted because the applicable VFA provision is Section 6 and not Section 10 as the SC held. More ominously, the US can invoke the Medellin decision in declaring that the VFA is not legally binding on the US in the Smith case since it has not been ratified by the US Senate much less has implementing legislation been passed by the US Congress.

Ergo the Philippine Supreme Court’s decision is meaningless unless, the Obama administration is convinced that it needs to maintain the charade that Philippine sovereignty is not derogated by the VFA. To save face for the Philippine government, and in its own interest, the US could appear to comply with the SC ruling and agree to Philippine custody, while insisting on the specific facility for Smith that it will agree to. (In this regard, Smith’s lawyer has a novel idea: the US can carve up a piece of the US embassy property and revert it to the Philippines as part of its national territory while retaining actual control of that piece of property.)

Given the arrant disdain by the sole Superpower for international law and the US government’s need to demonstrate to its soldiers that it can shield them from the long arm of another country’s national law while pursuing its military adventures overseas, it is likely that the US will holds its ground. It will try to figure out how it can escape compliance with the SC ruling and still manage the political fallout that can ensue.

The upcoming Balikatan war “exercises” will certainly be used as leverage by the US government in securing favorable terms for Smith. In the same way that the US cancelled earlier scheduled Balikatan “exercises” until it could get favorable action on Smith’s detention from the Arroyo government, the Philippine government needs to be pressured to do no less.

Justices Puno, Carpio, Martinez and Morales correctly saw the fatal legal flaw of the VFA is not just in Article V regarding criminal jurisdiction over erring US troops. The entire Agreement is a violation of Section 25, Article XVIII of the Philippine Constitution that governs the constitutionality of the VFA.

To quote Section 25 in full: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. “ (Emphasis supplied.)

But beyond legal arguments and procedures, the political reality is that the Arroyo regime has shown itself incapable of standing up to the US on the issue of Cpl Smith’s detention and generally, just how subservient it is to the US, especially on foreign policy matters such as the US war of terror and US troops presence in the Philippines.

Thus the Filipino people themselves must press on with their opposition to the VFA, US permanent presence in the country and specifically, the RP-US military “exercises” being held in different parts of the country, that grow more alarmingly intrusive each year. #

Another Oplan Phoenix?

There is really something more sinister than meets the eye in Malacanang's determined push to place a notorious human rights violator, retired AFP General Jovito Palparan, in the Dangerous Drugs Board. Significantly, this move came to light when President Gloria Macapagal-Arroyo took direct charge of government’s anti-narcotics drive in light of the word war between the Justice Department and the Philippine Drug Enforcement Agency (PDEA) over the former’s dismissal of charges against suspected drug pushers arrested by PDEA.

Too bad for the government, the quarrel has all the makings of a tabloid crime story wherein no less than state prosecutors (even Justice Secretary Gonzales is implicated) get some rich kids off the hook after being bribed by interested parties. In the process the PDEA agents are made to appear incompetent and violators of due process.

GMA’s appointing herself as drug czarina can simply be brushed aside as a clumsy attempt to earn "pogi points" while troubleshooting the DOJ vs PDEA conflict. The objective is to sweep the controversy under the rug and pretend that the Arroyo administration is undeterred in stamping out the drug menace. It is also a signal to the warring parties to cool down and for the publicity-hungry Congressmen to back off so that Malacanang can control the damage.

Mrs. Arroyo is projected as a no-nonsense executive stepping in to fix things after her subalterns make a mess of things. But in reality, naming herself "drug czar" does not vest her with any additional powers or resources to fight the drug menace.

One gets the picture. The Arroyo administration is not really serious about the anti-drug campaign otherwise it would have to confront the fact that a justice system steeped in corruption is of no use in the so-called war against illegal drugs. The big-time drug pushers, those coddled by venal government officials, the criminal syndicates who make buying off the police, prosecutors, judges and jail wardens part of the business, are all untouchable. It is only the small-time, street pushers who the authorities run after and are then paraded to the media as trophies in the anti-narcotics campaign.

Why else has the focus shifted to random drug testing in the campuses? There is no way this measure can flush out, much less stop drug lords and pushers, any more than the mandatory drug test for driver's license applicants has yanked out the drug users from behind the steering wheel. If this is all the government has to offer, it obviously is merely trying to deflect attention from the dirty linen exposed to public view by the "Alabang boys" scandal.

Emboldened by how it has gotten away with the most corrupt deals, the most heinous of crimes perpetrated by state security forces with impunity, the most brazen of political maneuverings and the most outrageous lies – the Arroyo boys are deep into their latest Machiavellian maneuvers to turn a bad thing to their advantage.

Why not use the quarrel between justice officials and the drug enforcers over alleged rich-kids-cum-drug-pushers as an occasion to highlight the “drug czar’s” political will to fight the drug lords and related scumbags. Why not recycle Gen. Palparan, Mrs. Arroyo’s counter-insurgency poster boy, as the newest crime buster, this time against drug pushers, the kind of public scourge everyone abhors and would like to be rid of.

Riding on the public clamor for decisive action on the drug problem, Malacanang has named Palparan as a prospective key official of the DDB or the PDEA. The general, not having any legal, moral or political scruples about resorting to extrajudicial killings in counter-insurgency is now touted to be just what is needed for the anti-illegal drugs drive. This feeds into the thinking that government can and should utilize extralegal, in fact, illegal measures to solve intractable problems.

But the plot thickens. It is mind boggling that Mrs. Arroyo and her bright boys would not see that pushing Palparan into the DDB would set off another controversy. Several senators, a conservative cardinal and another prelate, opinion makers, not to mention human rights advocates and activists have all decried this politically explosive appointment of “The Butcher” in the DDB.

Arroyo’s Executive Secretary Eduardo Ermita, himself a retired general who saw official duty in Vietnam together with Fidel Ramos as part of the Philcag contingent in the late sixties, says that Gen. Palparan will be useful because of his expertise in intelligence work that he put to good use dismantling the communist movement’s political infrastructure. That is, he was supposedly good at identifying and eradicating communist rebels pretending to be unarmed activists.

(He was also good, by the way, in scaring the daylights out of the relatives, neighbors and friends of these government “enemies” by threatening or actually punishing them instead. The reality is that the quality of the intelligence gathered may be poor, unreliable or even riddled with false information, but for the likes of Palparan, it doesn’t matter. Brute force, naked terror and summary execution should do the trick.)

Not so subtly, Malacanang is not only praising Palparan's "intelligence" but also exonerating him and the Arroyo government of the murder, torture and disappearances of hundreds of victims who were innocent, in truth and in law.

We suspect that Arroyo’s foremost militarist in civilian garb, General Ermita, is taking a leaf from the Vietnam War, specifically the Phoenix Program, and trying to apply this failed counter-insurgency measure into the Philippine setting. In brief, the Phoenix Program was a military, intelligence, and internal security program designed by the United States Central Intelligence Agency (CIA) and coordinated and executed by the South Vietnam security apparatus and US Special Operations Forces during the war. It was in operation between 1967 and 1972 and was designed to identify and "neutralize" (via infiltration, capture, terrorism, or assassination) the civilian infrastructure supporting the National Liberation Front of South Vietnam.

The Phoenix Program that this government has copied and used in its Oplan Bantay Laya I and II is historically proven to be a failure. It was a covert operation, evidently and admittedly violative of international law and it failed. It did not destroy nor did it undermine the Vietnamese people’s support for the Vietnamese revolutionaries. The ultimate judgment came in the form of abject US defeat in the Vietnam War.

By resurrecting Gen. Palparan and attempting to absolve him of his crimes, Malacanang is banking on the public's short memory and its strong repugnance for and condemnation of the drug menace in order to clear the GMA regime as well for its coddling and encouragement of this erstwhile criminal-in-uniform. Unwittingly, the GMA regime reopens the case against Palparan and itself. It may end up with the whole scheme backfiring on its face.#