The move has elicited comparisons to former dictator Ferdinand Marcos’ Kilusang Bagong Lipunan – and we’re not just talking about the wording – which was also formed after taking power as President.
In the past few months, you may have heard about the mass movement organized by President Rodrigo Duterte, his allies, and his supporters: the Kilusang Pagbabago (lit. “Change Movement”) or KP. Spearheaded by no less than Cabinet Secretary Jun Evasco, the KP was formed on August 13 to “protect Duterte” as the ruling Administration Bloc makes changes to the country as it sees fit.
The move has elicited comparisons to former dictator Ferdinand Marcos’ Kilusang Bagong Lipunan – and we’re not just talking about the wording – which was also formed after taking power as President.
The 'Nine Dash Line' is Untenable, but...
by Melissa Gracia Lanuza
The Philippine delegation before the Arbitral Tribunal for the Law of the Sea during the hearing of the case filed by the Philippines against China on the territorial issue in the South China Sea (Photo: Permanent Court of Arbitration/inquirer.net)
The Philippines won! The news spread fast. This news could have come like thunder had the people been not engrossed with the spate of killings.
The arbitration Tribunal (Tribunal) acquiesced with the Philippine position. But why can’t Filipino fishers go near Panatag Shoal to fish? Why is there tension still in the South China Sea? What does the Tribunal’s decision serve?
The Arbitral Tribunal and the issues it tackled
The Arbitral Tribunal issued on July 12, 2016 its decision on the questions the Philippines submitted for resolution on January 22, 2013. These pertain to the islands, reefs, rocks and shoals in the South China Sea.
The Tribunal was formed on June 21, 2013, in accord with the Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal is different from the Permanent Court of Arbitration or PCA that has served as the administering institution of cases and keeper of records of the proceedings of this case.
The Philippines asked the Tribunal to decide on several questions that could be summed up into four:
First, the source of maritime entitlements in the South China Sea and the implications of UNCLOS in China’s claim to its historic right inside the so-called “nine-dash-line”;
Second, whether China’s and the Philippines’ classification of specific features in the South China Sea as islands, rocks or elevations during low tide or as submerged banks is correct as this will be the basis of the maritime zones that these may generate;
Third, whether China’s actions, such as construction and fishing that damage the marine environments of the South China Sea, violate the UNCLOS as these interfered with the Philippines’ exercise of its sovereign rights and freedoms under UNCLOS; and
Fourth, whether particular actions of China, especially the large-scale reclamation and construction of artificial islands since the start of the arbitration have illegally aggravated and extended the dispute.
Like what it has repeatedly said and published, China neither accepted nor participated in the arbitration proceedings, insisting that the Tribunal does not have jurisdiction. This did not prevent the Tribunal from continuing its study and from deciding on the issues.
According to Article 288 of UNCLOS: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” The Tribunal decided that it has jurisdiction over the questions, October 29, 2015. Annex VII of UNCLOS clearly states that a party’s non-participation does not impede the arbitration proceedings; it however, provides that a tribunal has to satisfy itself that the claim is well founded in fact and in law.
The decision awarded On the historic rights and the “nine-dash-line,” the Tribunal decided that China does not have legal basis in claiming historic rights over resources within the maritime area of the “nine-dash-line.” According to the Tribunal, the UNCLOS has comprehensively allocated rights of states to maritime areas.
The UNCLOS carefully considered protection for pre-existing rights to resources during negotiations on the creation of the exclusive economic zone but It did not adopt these.
According to the Tribunal, while China had historic rights to maritime resources in the South China Sea, the entry into force of the UNCLOS extinguished these rights in areas that are not a part of its exclusive economic zone as provided in the UNCLOS.
The Tribunal noted that while navigators and fishers from China and other states used the islands in the South China Sea, it finds no evidence that China exercised exclusive control over these waters or its resources.
On the status of features of the sea, the Tribunal ruled that none of the Spratly islands can generate an extended maritime zone (EEZ and continental shelf) and as a collective unit, these islands cannot likewise generate a maritime zone. And, since none of the reefs that China claims can generate an EEZ and having ascertained that “Mischief Reef, Second Thomas Shoal and Reed Bank form part of the EEZ of the Philippines and are not overlapped by any possible entitlement of China,” the Tribunal ruled that “the UNCLOS is clear in allocating rights to the Philippines with respect to sea areas in its exclusive economic zones.”
Before reaching this conclusion, the Tribunal first evaluated whether the reefs that China claims are above water or not during high tide. According to the UNCLOS, maritime features that are above water during high tide generate an entitlement to at least a 12-nautical mile territorial sea. Features that are submerged during high tide, however, are not entitled to any maritime zone. Islands are entitled to a 200-nautical-mile EEZ and continental shelf while rocks, which cannot sustain human habitation and economic life on its own do not have this entitlement.
A crew member of a fishing boat from Masinloc, Zambales on their way to fishing grounds at the West Philippine Sea (www dailymail com)
UNCLOS classifies maritime features in their natural state. This natural state is based on historical evidence. The Tribunal noted that reclamation and construction have greatly altered the reefs.
The Tribunal likewise pointed out that official personnel deployed in these reefs depend on external support and therefore, their presence does not reflect the capacity of these features. It mentioned as well that historically, small groups of fishers and Japanese enterprises used the Spratly islands for fishing and to gather guano but these were temporary and did not constitute inhabitation in a stable community.
As to whether China violated the law in the South China Sea, because it is clear that the Philippines’ EEZ covers specific areas, the Tribunal decided that China violated the sovereign rights of the Philippines in its EEZ. China prevented fishing and petroleum exploration, built artificial islands and did not prevent Chinese fishers from fishing within the EEZ of the Philippines.
The Tribunal ruled that Filipino fishers, just like the Chinese fishers, have traditional fishing rights at the Scarborough Shoal. China has prevented Filipino fishers from using this right by denying them access to the fishing area.
The Tribunal pointed out that China’s latest large scale reclamation and construction of artificial islands severely damaged the coral reef environment. China, the Tribunal further ruled, violated their obligation to preserve and protect fragile ecosystems and habitat of depleted species. Besides, China did not perform its obligation to stop Chinese fishers from gathering sea turtles, corals and giant clams even if they knew that this was happening.
As to whether China’s particular actions illegally aggravated and extended dispute, since the commencement of the arbitration, the Tribunal saw that the large-scale reclamation and construction of artificial islands were not in keeping with the obligation of a state at a period when proceedings are ongoing towards the resolution of the dispute. This caused irreversible harm to the marine environment and destroyed evidence of the natural state of the feature (particularly, Mischief Reef) in the South China Sea, which is being disputed by the two parties.
The Tribunal did not decide on the stand-off between naval ships and coast guard vessels of the Philippines and China at the Second Thomas Shoal (Ayungin) because it lacks jurisdiction on military activities.
A starting point for a peaceful solution
While both the Philippines and China consider territorial sovereignty as the vital question, the Tribunal did not rule on this. Likewise, it did not decide on the boundaries of the EEZ of the Philippines and of China. It would be easier, however, to resolve these issues if the Tribunal’s ruling could be implemented.
Upon reckoning, it is not only the dispute between the Philippines and China that can get enlightenment from this ruling of the Tribunal. The Tribunal’s award is largely an elucidation of some provisions of the UNCLOS. Other states that have claims over features of the South China Sea may use this as a starting point in reexamining their positions. After all, all the concerned states ratified the UNCLOS.
While the UNCLOS, however, obliges or binds the two parties to implement the Tribunal’s ruling, the peaceful solution is not immediately achievable. China does not recognize the decision. The UNCLOS does not have the mechanism to force its implementation. The ASEAN attempted again to move the dispute towards a solution, decision making through a consensus, though, hinders it. The ASEAN Foreign Ministers’ Meeting could not get a consensus even in the mere mention of the Tribunal’s ruling in its statement.
A ship of the Chinese Coast Guard barring the passage of a fishing boat of Filipinos in this photo taken near the Scarborough Shoal before the Philippines file a case against China before the Arbitral Tribunal (www philstar com)
China’s hardline position
For many observers, China is arrogant and unreasonable. It still repeatedly says it will not budge on its claim of sovereignty in the South China Sea. It will not abide by the decision of the Tribunal.
It is difficult to comprehend that China asserts sovereign control over almost the entire sea based solely on what it states as role of the features in their history when it had ratified the UNCLOS.
China’s behavior is not at all new among big powers. China behaves as a big power like the US, Russia and the UK that do not obey decisions of international courts or tribunals when decisions are not in their favor.
We should view China’s position in relation to its economic and political targets as a rising power that experienced humiliation several times before the international community. As an economy, whose primary strength is in trading, it is very important for China to secure the entry and exit of its export and import. This is in the eastern seaboard of China, facing the East China Sea. China’s effort to build up its navy and have access to the open seas anchor on this. But the US, by all means, aims to foil China’s being a “threat” to its dominance. Hence the pivot or rebalance to Asia-Pacific, a strategy to confront and defeat the challenger to US’s lone dominance.
China is very well aware that the US will use its concept of “air-sea-battle” against China (Manyin,et al. 16). While this is not discussed very much in open publications, this consists of the building of US’s “networked of integrated forces capable of attack-in-depth to disrupt, destroy and defeat adversary forces or NIA/D3” (Etzioni 39). That's why, the dispute over reefs and rocks in the South China Sea is secondary. The rivalry of the two powers: the one maneuvering to remain number one and, the one in the second place that does not want to be hampered in its dream to soar, is primary.
The rivalry between US and China is mounting. While they call for a peaceful solution and easing of the conflict, both of the two states are non-stop in taking provocative actions.
The US pushes through with its FONOPS and shows the world that it wants an unhampered access to the sea, an important factor in the operation of its empire of bases. Its deployment of US bombers and missile systems to Guam, Korea and Japan continues.
China will continue preparing the launching pads of its super long-range ICBMs.
EDCA, an obstacle to the implementation of the Tribunal’s ruling
Despite former Foreign Affairs Secretary Albert del Rosario’s and former Philippine ambassador to the US Jose Cuisia’s push to force on China the implementation of the Tribunal’s ruling that would expectedly add heat to the dispute, the Duterte government correctly decided to be calm and to look for ways to start again decorous talks with China. A barrier, though, for China to rebuild its trust for a peaceful settling of issues with the Philippines exists. This is the US-Philippines Enhanced Defense Cooperation Agreement (EDCA) that the Supreme Court declared constitutional, to which Duterte did not object.
US exerted effort to produce the EDCA in line with the pivot’s task of strengthening existing alliances and making the allies carry some of the burden in fighting US’s enemy. Through this, the US can easily position soldiers and war materiel including the NIA/D3.
If the Duterte government is serious at finding a peaceful solution to the South China Sea dispute, he should rescind the EDCA and start a new era of independent foreign policy. K
Duterte is the Law
What else do we want to confirm? Coming straight from President Rodrigo Duterte’s mouth, his word is law and investigations of the NBI, the Philippines’ premier investigating agency, will not matter.
Duterte had just arrived from his side trip to Thailand when he first said that nothing was irregular in the killing by the CIDG-8 of detained Mayor Rolando Espinosa and Raul Yap on November 5. “Utos ko iyon.” (It was upon my order.) He said after getting only the report of the CIDG saying that they killed Espinosa in a shootout.
Now, December 7, after the NBI reported their findings that it was a rubout, that no shootout between Mayor Espinosa and the policemen took place and that “the killing was premeditated and that the victim was defenseless when he was killed,” Duterte insists, he will not allow those involved in the killing of Espinosa to go to jail.
“Ang findings ng pulis, murder, ay NBI. Good. Ako, naniniwala ako sa police. Ang mga mayor, sino ba ng pinaniniwalaan nila? Police o ang mayor? Kung ano ang sinasabi ng pulis, iyan ang tutuo sa akin.” (The findings of the police, murder, I mean, the NBI. Good. I believe in the police. Who do mayors believe? In the Police or in the mayor? Whatever the police say, that for me is true.)
“I will not allow these guys to go to prison maski sabihin ng NBl murder. Tutal, under ko man ang NBI. Under ko rin iyan, ang department of Justice. But I do not interfere.” (…even if the NBI says it was murder. After all, the NBI is under me. It is also under me, the Department of Justice. But I do not interfere.)
“May finding sila? Good. File nila ng kaso? Pero hindi ko pabayaan ang mg pulis na ito kasi ako ang may utos eh.” (They now have their findings? Good. But I will not abandon these policemen because I was the one who gave them the order.)
Even before the NBI issued its findings, Duterte had admitted that it was he who ordered Police Director General Roland de la Rosa not to reinstate Superintendent Marvin Marcos and the rest of the CIDG-8 team that raided the subprovincial jail in Baybay City in Leyte.
Is Dutere merely expressing his sympathy and support for police officers who are in hot water after faithfully performing their task in line with his administrations’ gory war on drugs?
Duterte will find it difficult now to make it appear so. The implications of his words and actions especially now that the NBI has given a more credible report following some senators’ pointing out of the signs of irregularity in the operation, are definitely beyond Duterte’s “compassion” for the police officers.
He is the president of the Philippines, supposedly a democracy, and is duty-bound to see to the proper carrying out of duties and obligations of both government and state primarily to protect the interests and welfare of the people. He is not an anti-drug czar whose primary duty is to oversee measures to minimize if not totally eradicate the drug problem.
He is duty-bound to uphold the Constitution and other laws, rules and duly established processes. He has to uphold these so that government and state institutions and agencies function in harmony and complement each other, so that these serve and do not abuse the people, people get redress whenever abuse happens, so that the people can live and work in peace and security to fully enjoy the fruits of their labor and happily support their government back. Human rights, after all, cannot exist without rule of law
But we have a president who does not listen to appeals for due process of law.
We have a president who shows to the world that he owns the Philippine National Police (PNP) that he is now turning into a killing machine purportedly to end criminality and the drug problem. He expects the chief PNP, and everyone under him to obey. Undoubtedly, he is turning the Philippines into a police state.
Since day one of his presidency, he has urged police officers to hunt everyone in illegal drug trade, instructing them not to hesitate to kill if their own lives are in danger. He has repeatedly promised police officers he will not abandon them if they are accused for doing jobs in line of duty. Now, he swears to coddle police officers even when these are involved in acts that point to their possible complicity as protectors of drug dealers.
This is the latest of the menacing words and acts by Duterte after earlier threatening to include human rights activists in the drug hit list. Both these came after burial of the late dictator, Ferdinand Marcos’ at the Libingan ng mga Bayan, which is still being protested by an increasing number of people.
Everyone who upholds democracy should be alarmed and should work to stop Duterte’s madness for tyrannical rule!
Kilusan para sa Pambansang Demokrasya (Kilusan)
December 10, 2016
Utang na Loob
Former President Ferdinand E. Marcos declaring martial law, September 21, 1972 (interaksyon com).
It’s his duty to country, he said, that made him decide to inter the corpse. According to him, we should forgive and forget so that the nation could move on.
It’s as if moving on means forgetting what happened. It’s as if moving on means revising or tearing the bad chapter of history so the ill feeling, the pain and the bitter experiences and memories of those who were arrested and detained or involuntarily disappeared, three or four decades ago, would be washed away from our hearts and minds.
The infamous decision also prescribes lying. As if the nation can be likened to couples or families who move on by forgetting grievous acts of infidelity and waste of family resources or savings by the partner or a family member who has also caused great shame and damage to the family. One has to remember only the few good things done. When the person dies, a beautiful eulogy is delivered at the necrological service for him/her and a wonderful dedication is etched on his/her tombstone. In order to move on, one has to be in permanent “state of denial”.
Marcos was president and soldier, he asserts. Duterte dabbles on legal technicality saying that the law that created the Libingan ng mga Bayani (LNMB) does not specify whether one had to be a good president.
According to Duterte, no law bars Marcos from being buried in the LNMB. The spirit and objective of the law (RA 289), however, are clear. “To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn…” (Section 1, RA 289)
Meanwhile another law (RA 10766) orders that victims of human rights violation under Martial rule be compensated from Marcos’ ill-gotten wealth.
Even before President Ferdinand E. Marcos, Sr. declared martial law on September 21, 1972, serious graft and corruption had characterized his administration. Nonetheless, he plotted to stay in power beyond his term and ordered charter change in 1971. But the bribes and threats to some delegates to the constitutional convention (Con Con) were exposed and the scheme to draft a charter suited to Marcos’ plan was foiled.
Marcos then declared martial law, closed Congress and ruled as a dictator. He had a viva voce referendum to ratify the greatly altered draft charter called later the Marcos constitution. State tyranny reigned.
Are we going to forget what Marcos did or do we create a different image of him and let his cadaver be buried at LNMB?
We should not forget the raids soldiers conducted in urban poor communities, at the dead of the night, to conduct body searches of residents, inspect houses and drag men with tattoos or with long hair to interrogation rooms inside military barracks.
We should not forget that soldiers forcibly undressed several hundred women activists during interrogation, molested and/or raped them.
We should not forget that they burned several barrios (now barangays) like in some parts of Samar. In Mindanao, whole Moro and Lumad communities were forcibly evicted and in certain cases massacred. We should not forget that the Philippine military bombed and burned Jolo, Sulu in February 1974. We should always remember that some barrios, like Sta. Filomena in Lanao became a “no man’s land” when the military declared it a “free fire zone.” Not a few farmers spit blood, could hardly urinate or had broken ribs after experiencing torture in their hands. Remember that martial law banned workers’ unions, workers’ strikes and put behind bars and tortured many leaders and ordinary workers. And in Bicol, soldiers forcibly took away seven babies of suspected rebels from the families attending to them and were never seen again.
Marcos was a ruthless dictator that’s why, because of fear, many people went underground or to the mountains and when they realized that they would be dying without putting up a fight, they joined the armed struggle against the Marcos dictatorship.
His fascist rule did not result in discipline but fear and certainly, not in development. Stealing from the state coffers was reserved among Marcos’ family and his cronies and they were stealing big. The number of criminals increased including a big number of soldiers and officers who got involved in different kinds of criminal syndicates. And, the paramilitary Civilian Home Defense Forces or CHDF that he formed became small gangs of plunderers in the rural areas.
As they lived like king and queen, Ferdinand and Imelda Marcos raided the national treasury. The Philippines sunk deeper in debt while they stashed away billions of dollars of the country’s wealth in banks outside the Philippines. Had they not plundered the country, the Philippines could have built more than one cultural center, international convention center, film center, kidney and heart hospitals, more than one line of the light railway transit (LRT) and other infrastructures.
Burying the late dictator in the LNMB means trampling on the sovereign will of the people that ended the dictatorship. We should not forget that the people overthrew the Marcos Dictatorship in the 1986 EDSA People Power Revolution. We should not forget also that the bigger number of soldiers and officers of the Armed Forces joined in dismantling the dictatorship.
The former dictator should never be made a hero for the youth to emulate. It is troubling that Ferdinand Marcos, Sr. is the idol of the president.
Is it his duty to the people that made him decide to have Marcos buried in the LNMB? Or, as payback (bayad sa utang-na-loob) to the family that supported his candidacy?
Utang na loob, sobra na! (for God’s sake, stop this madness) Stop the moves that defile the history of genuine heroism of the Filipino people.
We don’t have to forget the past in order to understand the present and shape the future.
Military reign or dictatorship should not be allowed again, never.K
Hadlangan, balik-kapangyarihan ng mga Marcos! Labanan, banta ng muling pag-iral ng tiranikong paghahari sa bansa!
Hawakan ang mga Aral