Among the major news stories for today is the story that: “The National Democratic Front will declare the termination of the peace negotiations, if the Senate ratifies the Visiting Forces Agreement.”Obviously, the story was released last weekend, as part of the continuing attempt to influence our deliberations on the VFA. Therefore, it raises the minor issue: Should the Philippine Senate take seriously the threat to break off peace talks, if this chamber concurs with the VFA?
To be able to address this issue, we in this august Senate need to put the VFA in the context of the international law of belligerency. Within Philippine national territory, the influence of any dissident group, such as the NDF, on the design of any national policy program, such as the VFA, depends upon whether the NDF possesses either the status of belligerency, or the status of insurgency. If the NDF members are belligerents, they should be taken seriously; but by contrast, if they are merely insurgents, they should be taken lightly, and ignored.
I humbly submit that, under international law, the NDF possesses no more than the status of insurgency. Therefore, the NDF threat should not be taken seriously, particularly by this Senate. We should assess the VFA only in the light of enlightened self-interest on the part of the Filipino people. We should not allow the Senate debate to be influenced by a threat that could be punishable under the Penal Code, and that simply has no weight under international law.
By way of introduction, it is useful to emphasize that international law is part of Philippine domestic law. This is so under the Constitution, Article 2 Section 2, which provides that the Philippines “adopts the generally accepted principles of international law as part of the law of the land.”
The NDF is a dissident group. As such, they are entitled to the constitutionally protected right of free speech. However, their freedom of expression is limited by the Penal Code provisions penalizing rebellion, sedition, and disloyalty.
Thus, the NDF has a right to issue press releases criticizing administration policies. However, they should not do any of the following:
* The NDF should not rise publicly and take arms against the government, for the purpose of depriving the Senate, wholly or partially, of any of its legislative powers or prerogatives, such as debating on, and concurring with, the VFA. Under the Penal Code Article 134, this is the crime of rebellion or insurrection.
* Even without taking arms or being in open hostility against the government, the NDF should not incite others to the execution of the act of depriving the Senate of the power of debate and voting. Under Article 138, this is the crime of inciting to rebellion or insurrection.
* The NDF should not prevent the national government, particularly the Senate, or the senators, from freely exercising their functions. Under Article 139, this is the crime of sedition.
* Even if the NDF will not take any direct part in the crime of sedition, the NDF should not incite others to sedition, should not utter seditious speeches or libels against the government or the Senate, which tend to disturb or distract any senator from executing the functions of his office. Under Article 142, this is the crime of inciting to sedition.As a graduate of the University of the Philippines college of law, -- that conceded bastion of liberal thinking and enlightened skepticism -- I would be the first to argue that these Penal Code provisions should be interpreted liberally in favor of dissident groups. However, as a senator, I feel justified in warning that those who call the Senate by pejorative names are skating on very thin ice.
The news stories attribute to Jose Maria Sison the following statement: “By pushing the ratification of the VFA, the Estrada regime and its cohorts in the Senate prove themselves as no better than running dogs of US imperialism.” In constitutional law, this provocative and derogatory sentence might constitute so-called “fighting words.” Under the so-called “fighting words doctrine,” the Constitution does not protect any person using words, which have a direct tendency to cause acts of violence.
In the present case, the words “running dogs of US imperialism” may be viewed as non-fighting words, only because nobody pays them any attention anymore. This is my humble view, and hence I will not even invoke the fighting words doctrine. Instead, I challenge the critics to conduct a reasoned and enlightened debate on the VFA on the basis of constitutional and international law, as well as on the basis of policy considerations, and not on the basis of epithets or slogans.
The administration has shown its goodwill by calling the NDF as insurgents. The purpose of the use of the term “insurgents” is to prevent the NDF from being treated as mere criminals or pirates. Incidentally, under international law, the use of the term “insurgents” also precludes any suggestion that the Estrada administration could be held responsible for the acts of the NDF.
The NDF are insurgents, but they are not belligerents. Under international law, insurgency implies that the war between the present government and the NDF is a purely internecine struggle, meaning, mutually destructive, but insignificant. The NDF are unhappy at being called insurgents. Instead, they aspire to be called belligerents. For under international law, belligerency implies that there is a civil war in the Philippines, and that it is a real war between rival powers.
However, the NDF fails to meet the conditions for a status of belligerency. These standard conditions are:
First, the hostilities must be of a general character, as distinct from those of a purely local nature;
Second, the insurgents must be in control of a sufficient portion of territory to justify the inference that they represent a rival power of some magnitude; and
Third, both parties must act in accordance with the laws of war, and the insurgents in particular must have organized armed forces under a proper command.
The NDF fails to meet all of these three conditions; therefore, the NDF are merely insurgents. In international law, the result is that the Philippines and foreign states are entitled to ignore the NDF. The NDF are not de facto authorities anywhere. They have no capacity for large-scale threats to foreign nationals, their commercial interests, or their seaborne trade.
Following British practice, the mere declaration by insurgents that they have constituted a “National Democratic Front” is insufficient to justify belligerent recognition. The insurgent forces, such as they are, do not have the requisite number, order, and discipline; and they are definitely incapable of maintaining international relations with foreign states.
For these reasons, I humbly submit that if Senate concurrence with the VFA results in a termination of the peace negotiations, that would be extremely unfortunate. Certainly, the senators must do all we can to prevent such a termination. But the Senate will not be threatened, intimidated, or blackmailed; to attempt do so is to be guilty of a crime. And those engaged in such threats, intimidation, or blackmail should be ready to accept responsibility for breaking off the peace talks, in the bar of public opinion.
It need hardly be pointed out that the Penal Code, Article 286, penalizes the crime of grave coercions, as follows:
“The penalty of prision correccional and a fine not exceeding P6,000. shall be imposed upon any person who, without any authority of law, shall, by means of violence, threats, or intimidation, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong.”
From a legal point of view, the recent NDF press release constitutes probable cause for filing a criminal information for the crime of grave coercion. However, from a policy point of view, it is preferable to waive criminal prosecution, and simply let the NDF suffer the consequences in public opinion of its words insulting to the duly elected Senate of our republic, and consequently insulting to the Filipino voters who elected them.
If the NDF opposes the VFA, let it join the marketplace of ideas, and expose its arguments to the sunshine of free and open debate. But it is underhanded to tie the fate of the VFA to the peace talks. These are two disparate issues.
Since the Senate is in the middle of the VFA debate, as an act of courtesy and deference to the sponsor of the measure, I respectfully decline to yield to interpellation at this time. I will do so, only if appropriate questions are raised during the debate, and if the distinguished sponsor consents to my intervention at the proper time.
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The Isulong Team: Isulong SEOPh, Isulong Seoph by Benj, Pinoy Isulong by Seoph Martinez and Useless Isulong