August 10, 2016

Can Duterte really declare Martial Law? The faulty "insight" of Rappler's Pia Rañada-Robles

Last month, ThinkingPinoy (TP) criticized Pia Rañada-Robles’ Rappler article “Duterte's first week as president: 8 things we saw”. TP said Cosmopolitan, a fashion magazine, managed to provide more insightful content than what Rappler gave.

In response, Rappler tweeted [Screenie]:
"We'd like to point out that the post you're referring to is a Rappler blog (it is clearly indicated in the story page). Rappler blogs are analysis and insight pieces from members of the Rappler team..."
TP tweeted back [Screenie]:
"analysis and insight pieces" EXACTLY the point. It's shallow insight.
Since then, TP makes sure to disregard all "insight" pieces written by Rañada-Robles. While’s Rañada-Robles opinions not exactly incorrect, TP finds them too shallow.

Note, however, that this is not entirely her fault, so...
Note that the operative word is "pointlessly". Dahil kung may point naman...

Anyway,  Rañada-Robles struck again.

Hindi na nadala, humirit na naman si ate.

Sereno’s Letter

Let’s start with a short background.

In a speech on 07 August 2016, President Rodrigo Duterte publicly accused seven judges of having links with the illegal drug trade [TP: List]. Chief Justice Lourdes Sereno responded to Duterte through an open letter dated the next day [Star].

Sereno said several things in the letter, with the most important part being her warning that Duterte’s actions may interfere with “our sense of constitutional order”.

Duterte responded with a 20 minutes tirade on live television, with the most poignant was the part being his threat to declare Martial Law if judicial activism a constitutional crisis actually ensues.

According to Rappler’s Pia Rañada-Robles report, Duterte said:
"If this continues, pigilan mo ako eh 'di sige 'pag nagwala na, or would you rather I declare martial law? Pinapatay ang Pilipino. I grieve for so many women raped, men killed, infants raped tapos ipitin mo ako," said a visibly agitated Duterte on Tuesday, August 9.
(If this continues, you try to stop me and all hell breaks loose, or would you rather I declare martial law? Filipinos are being killed. I grieve for so many women raped, men killed, infants raped, then you put me against a corner.)

In fairness to Rañada-Robles, this was exactly what he said, but that’s not the issue here. Instead, it’s the part where Rañada-Robles offered her opinion on the matter.

Mababaw kasi ulit ang analysis.

Pia Rañada-Robles’ Opinion

ThinkingPinoy was a news reporter once. He vividly remembers that news reporters should report events as they are, without adding anything that clearly qualifies as a journalist’s opinion. That’s reason why Opinion Sections in newspapers exist.
Rappler seems to work differently. I don’t exactly understand how, but judging from Rappler’s Google Meta Tag, “News | Multimedia | Citizen Journalism | Social Media – RAPPLER”, TP guesses that the “Citizen Journalism” part means they can add opinion.

In particular, Rañada-Robles added her own opinion to the report when she wrote [Rappler]:
But by threatening the Supreme Court with martial law, Duterte seemed to forget the part of the 1987 Constitution that says the declaration of martial law can be scrutinized and reviewed by the Supreme Court.
Now, let’s analyze that statement."Seemed to forget"?

Wow, Pia knows something that the President does not. Wow! All hail Pia!

Pia, kung magpapasiklab ka lang rin ng wala sa lugar, siguraduhing mong tama ka.

Here's Rañada-Robles going smart-ass against a President who managed to win the National Elections despite all odds.

'Eto nga kasi. Pia, huwag ka nang magpabida. Mababaw kang mag-isip 'teh. Hindi naman kita sinisisi, kaya lang, ipinagpupumilit mo e. Wag na nga lang kasi. ANG KULIT.

Martial Law and the Constitution

The problem with Rañada-Robles’ opinion, however, is that it’s too too naïve.

Before going further, let TP note that Rañada-Robles cited the wrong section of the constitution. It’s actually Article VII Sec. 18, not Art. VIII Sec. 18. Article VIII has 16 sections only. But that’s a minor issue, probably a typographical error, so it’s okay. Chances are, Rappler would've already corrected that minor error by the time this article is posted.
So let's focus on the issue. That is, let's ask...
How was Rañada-Robles opinion on the Martial Law issue naïve?

We start with a simple explanation of the basic mechanics of Martial Law declarations per Article VII Sec. 18:
  • The President can declare Martial Law via Executive Order (EO) whenever he wants.
  • The President needs to prepare a report for Congress within 48 hours, after which Congress decides to lift or extend the declaration.
  • The Supreme Court can lift the declaration if a citizen files a proceeding against it.
Then, let's ask...

What if Duterte declares Martial Law?

Now, suppose the Supreme Court, regardless of justification, starts meddling with the Executive’s affairs to a point where the Executive starts to lose its teeth and its influence. For example, if the High Court continues to publicly lecture the Executive on how to his job, like what Sereno did in her letter. Suppose furthermore that the President, the Chief Executive, declares Martial Law in response to the issue.

FIRST, the effects of a Martial Law declaration will be practically immediate, as evidenced by the immediate arrests of media men such as Teodoro Locsin Sr. and Amando Doronila per President Marcos’ Proclamation 1081 [Gov].

SECOND, a Joint Session of Congress (Senate plus Congressmen) may cancel martial law after 48 hours, but there’s one major problem: a supermajority of congressmen support Duterte [TP: “Plan B”] making a an anti-Martial Law joint vote impossible.

THIRD, there are lots of political butterflies in Congress so Congress may still be able to lift Martial Law.

FOURTH, The Supreme Court, on the other hand, can also lift the declaration, but with the requirement that a citizen files a case against the declaration. drafting the petition, plus writing the decision, plus delivering the decision for official receipt of Malacañan, takes time, so let’s say the High Court will take at least one (1) working day to lift Martial Law.

With these said, Rañada-Robles is technically right. Rañada-Robles, however, is practically wrong.

Tama sa papel. Mali sa totoong-buhay.

Why is Rañada-Robles "practically" wrong?

A Game of Technicalities

Here’s where things become interesting.

You might have noticed that TP meticulously included time frames for potential judicial and congressional actions. This is because he wants to estimate a minimum time frame where unabated Martial Law actually takes effect.

To lift Martial Law, Congress will take 2 days minimum while  the Judiciary takes 1 day minimum. In short, Duterte has 1 full day’s worth of unencumbered Martial Law.

Moreover, if you will take a closer look at Art VII Sec 18, there is no period of prescription for Martial Law declarations. That is, there’s no minimum time limit requirement between martial law declarations.

What does that imply? 

Given these, Duterte can just re-declare Martial Law as soon as SC cancels a previous Martial Law proclamation. Let me state this more simply:

All Duterte needs is a Xerox machine to put the Philippines under long-term Martial Law.

If the SC can manage to issue a lift order every day, then Duterte can just declare Martial Law every single freaking day too. Yes, 365 SC lift orders can easily be countered by 365 additional Martial Law proclamations.

Duterte can also pretend to not receive SC decisions, similar to what former Justice Secretary Leila de Lima did in the PGMA-NAIA incident [TP: Arroyo Acquittal].

That’s just crazy, right? Yes it is, but it’s constitutional. And even if it weren’t constitutional, the SC will take at least one day to say it’s unconstitutional.

What’s worse, an SC lift order will be something like “We hereby declare EO unconstitutional.” Thus, the lift order shall be very specific. If SC strikes down, say, EO 100, that same decision will not apply to EO 101.

Besides, who will be "requested" to enforce the SC order?

Duterte, and why would Duterte do that?

In this regard, there are only two possible remedies left: impeachment and People Power, but impeachment will not work because of Mark Villar’s DPWH appointment [TP: “Thwart Plan B”] and the supermajority in the House of Representatives.

Thus, we ask...

So how about People Power?

People Power is unlikely to work either.

FIRST, People Power happens only when it’s against unpopular leaders. Duterte is not unpopular: he currently enjoys a 90% trust rating [GMA].

SECOND, People Power doesn’t work all the time, as evidenced by the failed Iglesia-led EDSA Tres [Rappler].

THIRD, People Power, as the name implies, requires people… lots of people.

Combining Poe’s, Roxas’, and Binay’s supporters may create momentum. However, the pro-Duterte crowd can easily outnumber a unified opposition, judging from the crowd sizes in the Miting de Avances in May 2016.

FOURTH and most importantly, People Power works only if the Armed Forces defect to the opposition, just like what happened in EDSA 1 with Juan Ponce Enrile and Fidel Ramos [Guingona 2010] and in EDSA 2 with the late Angelo Reyes [Star].

The problem is that a major military defection is unlikely because…

AFP Defection is unlikely

Recall that Duterte recently lifted the unilateral ceasefire with the NPA insurgents after the NPA allegedly attacked government troops, killing one soldier [CNN].

Some say this is proof of his fickle-mindedness, but they fail to see the forest for the trees.

Let's recall a few key points:
  1. Duterte said he wants to double their AFP’s salary [CNN]. 
  2. Duterte said he will protect AFP/PNP from lawsuits involving deeds done in the line of duty [Star]. 
  3. Duterte said he’d continue AFP modernization [Star]
  4. Blah blah Military blah blah blah.
And do you remember the scene when he hugged one of the injured soldiers?
Duterte meets soldiers wounded by NPA
On the South China Sea Issue, you, the idealist, want to insist on our "legal rights". That means risking war. That means more dead and wounded soldiers.
Now, are you okay with seeing more scenes like these every day?
Posted by Thinking Pinoy on Thursday, August 4, 2016
Simply put, a large number of Duterte’s moves are aimed at maintaining the loyalty of the AFP and the Police. Why? Because he fully understands that ONLY THE AFP AND NOTHING ELSE can topple his presidency.

In short, the answer is no, military defections are unlikely. People power WILL NOT WORK.

The Bottom-line

Rañada-Robles is correct when she said the SC can lift a prospective Duterte Martial Law declaration. What she failed to realize (or mention), is how effective that power is in practical terms. This is the same reason why opinions (or “insights” as Rappler calls it) are best confined in opinion sections: so people can easily opt to ignore those pages.

As explained in the previous sections, Duterte can de facto put the entire country under Martial Law whenever he wants, as long as he wants. This is not to imply that Duterte should declare Martial Law. In fact, TP categorically hates Martial Law [TP: Robredo-vs-BBM].

The point, however, is that TP wants to encourage his readers to exercise critical thinking when reading news from “reputable sources”, because Philippine Media is suffering a crisis today.

Just look at how Big Media shamelessly ignored Foreign Secretary Albert del Rosario's financial interests in South China Sea oil [TP: Reed Bank].

Let TP finish this article with a message for Pia Rañada-Robles:
Pia, please focus on the story you’re covering whenever you write reports. We do not yearn for, as Rappler puts it, your “insight”. This is not to say that TP is better than you. Instead, it's because Filipinos deserve better deserve better from Big Media persons like you.
Pagpasensiyahan mo ako Pia dahil mainit ang ulo ko ngayon. Istorbo ka kasi sa paglalaba ko at sa paglalaro ko ng Pokemon Go. Sa totoo lang kasi, mas interesting si Pikachu kaysa sa mga "insights" mo.

That's all. [ThinkingPinoy]



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