Statement on the Christchurch Terrorist Attack

To truly stand in solidarity with the victims of the Christchurch Mosque Massacre, we must recognise our failings

A statement from staff and students at the National Centre for Peace and Conflict Studies

University of Otago

 

Tuatahi ake, ka mihi ki ngā ātua o tēnei tō tātou nei ao marama.

Tuarua, ka mihi atu ki tērā hunga i mate ai i tērā o ngā parekura i Ōtautahi i tērā wiki. Ko te tūmanaako ia kua hoki rātou ki tō rātou ake kāinga tūturu e noho ia I te taha o ō rātou mātua tīpuna, nā reira, ki aua tāngata tini, ki aua tāngata mano, haere, haere, haere atu rā.

Tuatoru, nei mātou ko te Centre for Peace and Conflict studies o te Whare Wānanga o Ōtākou e whakapūaki ana i ō mātou mamae, me ō mātou auē.

E taka ana te mahi a te roi o te mata i runga i te aroha mo rātou kua hunga, kua ngaro ki te pō.

Moe mai rā.

Kei noho tātou ka wareware!

We write in memory of 50 innocent lives lost to senseless hate in Christchurch on Friday. We write in honour of the dozens more who now suffer wounds that will heal but never fade. We write to mourn alongside the Muslims of Aotearoa New Zealand, whose dreams of and rights to peace in this land were shattered. We acknowledge that you, our Muslim neighbours, friends, and family, have had your sense of safety attacked, and that your sacred spaces of community and prayer no longer feel like sanctuary. Most of us have never experienced the kind of grief you are experiencing right now, but please know that we care deeply that you are living with this terrible experience.

These horrific events should not have happened, but they did. The Christchurch massacre is a challenge to all of us in Aotearoa New Zealand to ask hard questions about how it happened, and about whether we are doing enough to ensure such brutal violence will not happen here again. While there have been many expressions of solidarity in recent days saying that white supremacist ideology has no place in our society, it is also important to recognise that, sadly, white supremacist ideology is far from unknown in New Zealand. Colonial massacres have been committed in these islands, and collective wounds remain unhealed to this day. White supremacist organisations have existed for years, and continue to exist in New Zealand. Questions will have to be answered about whether we failed to acknowledge the full extent of the threat they represent, to people of colour, and to the very fabric of our society.

So, while we welcome the government’s proposal to ban semi-automatic weapons in New Zealand, we believe it does not go far enough in recognising the underlying factors that gave rise to last Friday’s attacks. The Christchurch shooter walked among us, unspotted, and we have yet to fully understand how he was able to do so. Peace and conflict research shows that the willingness to commit violence does not emerge in a vacuum – we learn from others about who does and doesn’t deserve to be protected. We learn from others who is part of ‘us’ and who we see as ‘other’. We cannot only reduce the availability of weapons, we must also confront any ideologies in our society that claim violence against a group of people is justified.

New Zealand should take some pride and comfort in the outpouring of sympathy and solidarity with our Muslim communities in the wake of this tragedy, but we know that sympathy is not enough.  We must, with great humility, acknowledge our failings as a society, express our collective regret that we did not address the presence of such hate sooner, and commit to doing better in the future. Many Kiwis are saying at the moment, “This is not who we are”. But we believe this atrocity calls us to honestly acknowledge long-existing problems of racism and othering in our society; how many among us are made to feel that they do not belong, or that they somehow belong less than others. Such honesty requires this society to say instead, “This is not who we want to be”.

Everyone living in New Zealand can take this terrible event as a reminder of our responsibility to build a truly inclusive society. As a peace and conflict research centre we recognise we have a particular responsibility to do more to share insights from our research with those working to end violence, and those most directly affected by it. No one has all the answers – if we did, such violence would be unknown. But we need, at least, to start asking the right questions. What more can we do to confront the influence of such ideologies in ourselves and others? What more can we do to ensure everyone feels safe, valued and included in our society?

While recognising our own limitations, in the times ahead we at the National Centre for Peace and Conflict Studies will play a role in encouraging New Zealanders to have these difficult conversations, providing spaces where often-marginalised voices can be heard publically. We welcome suggestions for how we can do more, and we encourage everyone to commit to making any contribution they can towards making New Zealand the society most of us want it to be. Acting together, many small actions can add up to a big difference. But in order to truly stand in solidarity with our Muslim communities, who are suffering most deeply right now, we must first recognise that we can, and must, do better.
Aroha ki te tangata

E rongo whakairia ki runga kia tina!

Tina!

Haumiee, huiee

Taikiee

Staff and students

National Centre for Peace and Conflict Studies

University of Otago

 

Advertisements

A Debt Come Due: The contingent promise of federalism to the MNLF in the Bangsamoro peace process

by Nick Tobia

In my recent article on the Bangsamoro peace process, I argued among other things that one of the key achievements of the government peace panel under Philippine president Rodrigo Duterte was to keep the Nur Misuari-led faction of Moro National Liberation Front (MNLF), a non-party armed group, within the ambit of the Government of the Philippines (GPH)-Moro Islamic Liberation Front (MILF) peace process. Misuari’s status as an indispensable actor in any Bangsamoro peace formula has been contested over the years, and his exclusion at times had resulted in spoiling behavior such as the siege of Zamboanga City in 2013 and the attack on Lahad Datu in Malaysia, the third-party mediator of the GPH-MILF peace process. It is undeniable however that his inclusion in the process since 2016 had coincided with important milestones in a MILF peace process that began in earnest back in 1996. Now that these milestones, such as the establishment of a new Bangsamoro autonomous region through national legislation and a successful plebiscite, have been achieved, Misuari’s concurrence with the process has become tenuous again as he calls out the Duterte government on the promises made to him in exchange for his support.

Misuari and the MILF Peace Process

Misuari is acknowledged as the founding leader of the MNLF, the first modern Muslim insurgent movement in the Philippines. From its establishment in the 1070s, the MNLF has since splintered into many groups including three MNLF factions, the MILF, and a litany of extremist islamic armed groups who trace the genealogy to Misuari’s MNLF. His honored place in the lore of the Bangsamoro freedom movement has made Misuari important, if not indispensable, to a successful formula for peace in the Bangsamoro region. The Benigno Aquino government (2010-2016), the administration that obtained a signed comprehensive peace agreement with the MILF in 2014, certainly understood Misuari’s relevance even though they could not reach any common ground with him. His inevitable exclusion in the Aquino-led process coincided with many other factors, most notably the Mamasapano encounter between the GPH and MILF forces, that contributed to the stalling of the peace agreement in the legislative process in 2016.

One of the understated achievements of Duterte’s peace process has been its success in enticing Misuari to join, and remain within, the ambit of the MILF peace process. It is a matter of speculation why exactly Misuari favored the Duterte goverment over the Aquino government, through secretary of peace Ging Deles. Perhaps Misuari favored a fellow southerner and Mindanaoan like Duterte. Perhaps it is the brotherly regard they have for one another. Though Aquino and Deles may not have this kind of rapport with Misuari, it appears nevertheless that they did not lack in effort.

As Deles pointed out, the previous government had made an continual effort to give Misuari and the rest of the MNLF factions a place in the GPH-MILF peace process. This was necessary, given that the intended final product of this peace process was not simply a peace agreement with the MILF, but a jointly crafted draft bill between the government and Bangsamoro actors in a Bangsamoro Transition Commission (BTC) that would essentially consolidate a then-prospective MILF peace agreement with the contents of the 1996 MNLF peace agreement.

Despite Deles’ efforts, no MNLF faction joined the Aquino-led peace process in a formal role, although the influential MNLF Sema/Jikiri faction had declared support for the MILF peace process. Still, the BTC that jointly drafted the bill (that consolidated the MILF and MNLF peace agreements) did not include a single member of any MNLF faction. Oddly enough, the roster of the commission was announced as early as December 2012, which means that the exclusion of the MNLF (from a formal role in the BTC) was set in stone 3 months before the MILF peace agreement would be signed, and throughout the year and a half that the BTC worked to craft a bill that would be endorsed to the Philippine Congress in September 2014. Congress would later adjourn without passing the bill into law.

The Duterte government had likewise sought to include the MNLF in the same peace process. It had inherited from the Aquino government the rhetorical support of the MNLF Sema faction. In reconstituting the BTC, Duterte took a different path from Aquino by adding seats for additional commissioners and allotted 3 to the MNLF Sema faction. Like the Aquino government, however, Duterte sought to give Misuari’s faction a role in the BTC as well. According to the successor of Deles, peace secretary Jesus Dureza, Misuari refused because the BTC, in his mind, was an MILF mechanism. The government responded by creating a near-field parallel track for the Misuari faction where he could propose a “new autonomy law (NAL)” which incidentally was also the task of the BTC. Although the overlap was evident, the focus of Misuari eventually shifted towards a revising the 1987 centrist constitution (rather than the NAL) to a federalist one in order to actualize a set of MNLF demands that he claimed were not possible under current law. It was on this point where Duterte and Misuari’s positions converged – that a Bangsamoro peace solution which includes the MNLF requires constitutional change. On a promise of a shift to federal form of government, Misuari stayed in the peace process.

All told, the Duterte government pulled off what could not be done in the last one – bring both MNLF factions into the peace process. The MILF and the MNLF Sema faction performed roles in the formal BTC process, while the MNLF Misuari faction functioned parallel to it.

New Developments in the Peace Process

However, now that there are many new developments in the combined MILF-MNLF (or simply Bangsamoro) peace process, it has become evident that this is truly an MILF-dominated process even if it had been conducted in behalf of all the Bangsamoro people. Underlying tensions between MILF and MNLF would renew themselves.

With the passage of a new law in July 2018 that enabled the GPH-MILF peace agreement and revised the GPH-MNLF peace agreement, the Bangsamoro peace process prepared for ratification by plebiscite. Weeks before the plebiscite, Misuari’s support for the process began to fracture as he called for the public to reject the new law in the plebiscite. Despite this, the plebiscite resulted in a successful ratification of the law, and the MILF had secured its hegemonic role among Bangsamoro groups after it was appointed to over half the seats (or 41 out of 80) in the new transitionary Bangsamoro autonomous government. Meanwhile, the MNLF Sema/Jikiri faction received 5 seats, MNLF Misuari faction had none (and was promised none). Now, there is a spectre of another MNLF faction emerging to resist this new, MILF-dominated status quo.

After Misuari’s unsuccessful bid to defeat the Bangsamoro law in the plebiscite, what is his next move?

A New Deal with MNLF?

While Duterte is credited with enticing Misuari to join and remain within the peace process, a debt has come due. Some recent news articles about a “new deal” between Misuari and Duterte have been nebulous, failing to state what exactly are the gripes of Misuari. However, in Misuari’s calls to reject the new law in the plebiscite back in January articulate with specificity a demand for charter change and a shift to a federalist constitution. The Manila Bulletin reported that Duterte apologized for delays in the federalism initiative, one that constituted the main enticement for Misuari to remain within the peace process. Federalism, however, is not entirely up to Duterte. Therefore, keeping Misuari within the peace process is likewise not entirely up to Duterte.

Federalism cannot materialize however while congress is adjourned. It is mid-term election season from February to May 2019, and the new Congress will not be known until June. Even though in theory a new legislative initiative on federalism can commence in about 3 months, there is no guarantee that such an initiative will be successful. This is contingent on a composition of Congress and Senate that will be favorable to it. Moreover, the main political party promoting federalism, PDP-Laban, is splintering in the aftermath of a change in leadership in the House of Representatives. Staunch opponents to constitutional change, especially the original framers Ed Garcia, Hilario Davide and Christian Monsod, have only gone silent as the issue has cooled during election season, but it is almost certain to become heated again after June.

Therefore, a “new deal” between Duterte and Misuari might entail more than a re-hash of the promise of federalism in order to meet the demands of the MNLF-Misuari faction. Given that the peace process will be dominated by MILF for at least the next 3 year during the transitory Bangsamoro government, the new inducements available to Duterte may have little to do with the new Bangsamoro autonomous region or even peace. They may have to resort to rule-of-law matters such as Misuari’s standing indictments for corruption and rebellion, on top of the safe passage and freedom to travel abroad that he currently enjoys. Alternatively, recent news about Misuari and Duterte may signal the start of a renewed push for a federal constitution within the next Congress despite redrawn party lines.

Duterte’s federalism promise has come due at a tenuous moment – the mid-term elections, the shifting of political party lines and the transition from the old autonomous region to the new one. While all of these play out, it remains to be seen how long Misuari and other disgruntled MNLF factions hold rank with the MNLF Sema/Jikiri faction, the only one openly committed to supporting the new Bangsamoro region and it transitional MILF-led government.

 

 

Nick is a Rei Foundation PhD Fellow at the National Centre for Peace and Conflict Studies (NCPACS) at the University of Otago. He is also a consultant affiliated with the NCPACS Consultancy Group. He researches populism, democracy and peacebuilding. His views are his own and do not represent the views of the NCPACS.

Populists, Peace & Our Liberal Blindspot: Why few notice that Duterte signed a peace deal into law

by Nick Tobia

Dunedin, New Zealand – One week ago on July 26, news outfits back in Manila reported that Philippine president Rodrigo Duterte finally signed into law the peace deal with the Bangsamoro insurgent groups. Given that Duterte is a very unpopular figure in liberal circles, this milestone in the Bangsamoro peace process had gone virtually unnoticed, even here in the peace center. The legislative process had taken 4 years, and had undergone several setbacks before finally concluding with the passage of a new organic law for a Bangsamoro homeland. Instead of celebrating this as an achievement, it is met with silence or worse, ambivalence. Why is this so?

The short answer is that populism and liberalism are polar democratic opposites. Duterte is a populist, and peace studies is enduringly liberal. As renowned populism researcher Cas Mudde puts it, populism is not anti-democratic, but anti-liberal democratic. By reduction, populism is anti-liberal, and conversely, liberalism is anti-populist. The core incompatibility is on how each conducts politics. Liberal politics is premised on the possibility of harmonizing differences and reaching a decision that is anchored on a consensus over common values. Populism, by contrast, is a form of politics that is premised precisely on identifying and maintaining an opponent. While liberalism de-politicizes democracy, populism re-politicizes it.

The peace studies field from its inception has been underpinned by liberalism. Indeed, its overarching paradigm is called the “liberal peace thesis” and its practice is similar called “liberal peacebuilding”. This liberalism is reflected in a number of ways, particularly how we conceive the end of civil wars – by consensus-based negotiated agreements. For this reason, peace advocates, practitioners and scholars should be normatively oriented against populism.

This normative hostility to populism is useful in calling out the dangers that it poses. The main issues that occupy attention at the National Centre for Peace and Conflict Studies is the death toll in the current anti-drug war (upwards of 13,000 deaths since mid-2016), the detention of Senator Leila De Lima (the first government official to investigate Duterte for summary executions in the late 2000s), threats to press freedom and the Commission on Human Rights, martial law in Mindanao and the campaign to change the constitution. It is a gross understatement to say that Duterte is unpopular in liberal circles, including liberal peace circles.

This normative hostility, however, is also an impediment to identifying what I think is a genuine achievement – the passage of the Bangsamoro deal into domestic law. The negotiation of the peace deal was a difficult process, taking 3 years to secure signatures, and its signing was lauded. The legislation of the peace deal was at least as difficult, taking longer to complete and having suffered spectacular setbacks. While it seems that Duterte cares little for fanfare and affirmation, I think that this milestone should be acknowledged if only within our peace circles. It took the UN and the EU two days to respond to the news, but everywhere else, there is just ennui.

I find that there is this dissonance that deeply affects us in the peace field. How can a populist be good for peace? How can a consummate anti-liberal contribute positively to liberal peace, specifically to our bread-and-butter, namely peace processes? So rather than acknowledge that the Philippines has moved forward in its peace process, we activate our liberal blindspot and refuse to see. Rather than celebrate, I hear derisiveness and scornfulness. But more than anything else, I hear silence. Instead of taking this as an opportunity to seriously contemplate the relationship between populists and peace processes, I sense petulance.

There is hope, though. I spot an imminent trend that allows us in the peace field to overcome our blindspot and pejoration of populism. Though liberalism de-politicizes and populism re-politicizes, a contemporary wave of peace scholarship now advocates for the re-politicization of peacebuilding. The fixation with localized peacebuilding has inadvertently led us towards an assertion of politics in peace discourse. If this trend continues, we will have a peace discourse that is not turned off by politics and enables itself to engage with specifically politicizing discourses. This is not to say that someday, the peace field will begin advocating for populism; instead, I foresee that soon we will be in a better position see with clarity and possibly understand more fully the ramifications, good and bad, of the rise of populists, such as vilified populist figures like Duterte, to peacebuilding. Someday, too, we may be able to look back to 2018, and speak with some intellectual confidence about this populist government and the passage of the Bangsamoro peace deals into law under its auspices.

Nick is a Filipino PhD researcher at the National Centre of Peace and Conflict Studies at the University of Otago. The views reflected here are his own.

Push back and step back

Push back and step back

-Thoughts on the current situation in the Philippine

Ed Garcia

“Cockroaches.” The word screamed from the page. Hurled in anger by a local fiscal at political opponents, it expressed an urge to kill those who think differently.

I shuddered because of a feeling of déjà vu. Haven’t we been there before?

“Cockroaches” was the same epithet uttered in hatred in Kigali, Rwanda, during the ethnic cleansing that took place in 1994.

Justifying the killings of Tutsis by the marauding band of Hutu extremists who murdered even their neighbors in the small villages of the land-locked state, Radio Mille Collines, the hate radio that demonized opponents, then broadcast the call to “exterminate the cockroaches” — referring to “the others,” those who are not “us.”

Drenched in blood, Rwanda has never been the same again.

Invited to that country as part of a peace-building contingent from International Alert, I visited a chapel under guard that bore witness to the horrors of the fratricidal war.

Three hundred corpses, victims all in that bitter campaign to eliminate “enemies of the people,” lay in the desecrated chapel as a tragic testament to the hell that men create when impelled by both hate and fear.

In our own country, the administration’s war on drugs has eclipsed the number of victims killed during Ferdinand Marcos’ martial rule.

Far more Filipinos have been killed either as direct targets or “collateral damage” in the incessant drug war than those who have been murdered by the dreadful Islamic State in attacks launched in nearly 30 sites worldwide in the past years alone.

It seems the police operations code-named “one time, big time” is producing an inordinately higher number of victims than in the past.

Given the Commander in Chief’s somewhat indiscriminate declaration of support for police operations and his careless pronouncements of blanket pardon for police officers who exchange fire with drug dealers and who engage people involved in drugs, it is no wonder that the police seem to have been emboldened to shoot before anything else.

But, is there a better way?

The United Nations Office on Drugs and Crime has produced the 2015 “better practice” guidelines and the 2016 World Drug Report, both of which draw on lessons learned in the field of drug use prevention and intervention.

Based on comparative experiences on the ground, the UN agency has drafted international standards and recommended more comprehensive approaches believed to be more effective in the long term, including medical, psychosocial, rights-based and community-driven approaches.

But at this stage, one thing is crystal-clear: A war on drugs that literally targets thousands of deaths may make for shock and awe but not much else; it may even produce short-term results but in the long term the country may end up back to square one. This is a lesson learned from global experience, and we can ignore this only at our own peril.

Moreover, the “holy anger” that accompanies the dreaded war is normally fueled by a zealous hatred unable to distinguish the deadly addiction from the persons addicted who may need help to rehabilitate, to heal and to have another chance at life.

On the other hand, those who manufacture and supply drugs and profit from their trade are often not found in impoverished communities but are ensconced in gilded offices and pads.

In the end, it is ignorance, cynicism and hate that we must push back against. It is poverty, the lack of jobs and opportunities, or the lack of meaning and purpose in life that we can address urgently if we are to step back from the brink.

We have seen too many deaths, thousands too many. We cannot go on killing our young.

We push back, we step back, we turn things around. This we can do; this I believe.
* Ed Garcia is a research affiliate of NCPACS. He taught political science at the University of the Philippines and Ateneo de Manila University before working with Amnesty International and International Alert in London for over two decades. He now serves as consultant for the formation of scholar-athletes at FEU Diliman.

* The original article can be found from: http://opinion.inquirer.net/106678/push-back-step-back#ixzz4r5rCPZxo

Remembering Nagasaki

Remembering Nagasaki

Richard Jackson

We are here to remember the countless lives lost in one of the worst acts of political violence of the past century. We remember the 80,000 people who died from their injuries in Nagasaki in the first two months following the bomb. We also remember the unknown but much greater number who later died from radiation poisoning and radiation-induced cancers.

But the nuclear bombs exploded on Hiroshima and Nagasaki did not end the devastation caused by nuclear weapons. Therefore, we remember that eight countries have exploded more than 2,000 nuclear weapons in the air, land and sea since 1945. And we remember that tens of thousands of military personnel have been injured and harmed by their expose to radiation and the effects of the test explosions, including personnel from New Zealand, Australia, the United Kingdom, the United states, the Soviet Union, Pakistan and elsewhere. Many of them continue to suffer the effects today. We also remember all the ordinary people, as well as the environments, harmed by nuclear testing in the South Pacific, including Fiji and the Marshall islands, the United States, Australia, Central Asia, Pakistan, and elsewhere.

However, it’s important that we don’t restrict our memory to the harm done by these inhuman – and indeed, anti-human – weapons. We need to also remember all those who have struggled over the years against nuclear weapons, including those who have been beaten, arrested, imprisoned and even killed for their peaceful protests – such as Fernando Pereira who was killed on the Rainbow Warrior. We remember the Faslane Peace Camp, the Greenham Common Women’s Peace Camp, the Ploughshares activists, the Campaign for Nuclear Disarmament, the New Zealand anti-nuclear movement, and countless other courageous groups and individuals struggling against nuclear weapons. These brave souls have succeeded in banning nuclear ships from New Zealand, and in having the Nuclear Weapons Ban Treaty adopted recently, among others.

In conclusion, we are here to remember the Nagasaki bombing because the threat of nuclear weapons is not a historical event from the distant past, but because it is a continuing threat that hangs over us all. We remember Nagasaki because the threat of nuclear war is alive and looming ever closer on the Korean peninsula; because it is an ever-present threat in the conflicts between Israel and its neighbours, and between India and Pakistan, and between Russia and its neighbours. We remember Nagasaki because the world’s nuclear states are currently pouring trillions of dollars into renewing and modernising their nuclear arsenals.

In the end, the point of remembering goes beyond acknowledging and honouring the victims of nuclear weapons; the point of remembering is to renew our courage and determination – and to recommit ourselves to the crucial struggle to rid the world of these inhuman weapons. Our remembrance means very little if we don’t go from this place with a renewed determination and a renewed commitment to advancing the moral struggle against nuclear weapons.

  • This is the text of a speech delivered at the Nagasaki Peace Commemoration on 9 August 2017.

Accurate vs Sufficient Facts: Locating the space to review the basis of the 2017 martial law proclamation

by Nick Tobia

Background

Just over a month and a half ago, President Rodrigo Duterte declared martial law over the entire island of Mindanao in the Southern Philippines. I had previously written a blog post on the martial law proclamation, and had argued essentially that it is the president’s prerogative to decide if a certain set of facts comprise one or several of the constitutional grounds for invoking martial law. The president’s power to promulgate martial law is undeniable.

The duration of martial law, however, is subject to limitations set in law. First, a state of martial law can only last for 60 days at most, extendible only at the initiative of the president and the concurrence of the legislature. Second, the legislature, voting jointly (i.e. both chambers), has the power to either ratify or revoke the martial law proclamation by majority vote. Finally, the Supreme Court can review the sufficiency of the factual basis of the proclamation of martial law. I had, again, previously argued that observers should wait to see how these limitations actually operate in reality. After all, martial law declarations are rare occasions, this being only the second instance since the promulgating the 1987 Constitution. It is also the first one where we expect a judicial ruling on the sufficiency of the factual basis for the proclamation, specifically a ruling based on the merits of arguments raised before the court.

That ruling was promulgated on July 4, 2017. It upheld Duterte’s martial law proclamation. There are many summaries of the decision from various new outfits, including this one.

Overview: Abdicating from Facts

Here at the outset, I argue that the decision of the supreme court effectively results in an abdication from its duty to genuinely review facts. It is generally not the venue to review facts, but martial law counts as an exception. The court states, and I agree, that in reviewing the sufficiency (i.e. whether or not there is enough) of the president’s factual claims of actual rebellion or invasion that underpin his martial law declaration, it need not review the accuracy or veracity of such claims (i.e. whether or not these are true).

I disagree, however, with sole reliance on the Duterte’s assessment of facts in making a determination on whether or not there is an actual rebellion/invasion. The court itself has the duty to make this determination independent of the president. This means that it must rely on a set of facts separate (but not necessarily entirely different) from that relied upon by the president. The court fails to do this duty first by narrowly limiting its review to the facts stipulated in the martial law proclamation and partly in the president’s report to congress (See page 48), and second, by deferring to the president’s prerogative to decide whether or not the information available at the time was sufficient basis to declare martial law (See page 61).

Based on the decision, determining what is, and what is not, a fact rests on the same authority that makes an a priori claim of fact, which in this case is the president. Therefore, all that is left for the Supreme Court to do is to decide if a president has made sufficient claims, regardless of whether these claims are indeed factual.

This is the result of our patience in seeing through how the constitutional limitations on martial law actually operate in reality. It is an absurd result in the supreme court, which compounds the disappointing manner that the legislative review process was conducted (See previous blog post). All that remains now is to see how the 60-day limit and extension/revocation process between the executive and legislative branches operates on July 22.

Sufficient Factual Basis Test

I focus my assertion on the introduction of a new jurisprudential test – the “sufficiency of the factual basis” test (See beginning page 48 of the decision). The court’s constitutional duty is only to review the sufficiency of the facts used as basis of proclaiming martial law. But, what constitutes sufficient factual basis? The decision states,

“…the parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion” (See page 51, emphasis supplied).

It appears that all three parameters must be fulfilled to pass the test. To pass the test therefore, a court must always find for an actual rebellion or invasion, public safety factually requires martial law (or the suspension or the writ of habeas corpus), and that a president did in fact have probable cause. The construction of the parameters is untidy, however, and the overlap between #1 and #3 with regards to “actual rebellion or invasion” will create tremendous confusion. More on this later. The most important implication here is that Parameter #3 can never be fulfilled unless the president correctly, as opposed to mistakenly, believes that there is an actual rebellion or invasion.

But can the president mistakenly believe that there is an actual rebellion or invasion, and still fulfil Parameter #3?

Mistaken Belief: Testing the logic

The answer is yes, but then logically, Duterte’s martial law declaration cannot pass the sufficiency of the factual basis test. A mistake in assessing an actual rebellion/invasion is fatal to passing the test, not because the president is disallowed from making errors in his probable cause assessment; rather, a mistake simply means that the first parameter is not met. That is, there is no actual rebellion/invasion.

Probable cause has a technical meaning in criminal law, pertaining to an average man with no legal background who weighs facts and circumstances, relying on common sense, and finds that more likely than not, a crime (i.e. rebellion or invasion) had been committed. The implication is that Duterte, thinking with the common sense of an average man, can mistakenly believe that there is an actual rebellion or invasion, based on inaccurate information or mistaken assessment of the veracity of facts, and still fulfil the third parameter of the test. Though probable cause gives Duterte leeway for timely decision-making despite inaccuracies, his determination of actual rebellion/invasion is controlling only in so far as his prerogative to declare martial law. It is not controlling, however, as to whether or not it meets the requirements of sufficient factual basis test.

Temporarily disregarding Parameter #2, consider whether or not it is possible that, on the one hand, the president is mistaken, though he had probable cause, in his belief that there was an actual rebellion or invasion (i.e. Parameter 3, but mistaken), while on the other hand, the court finds that there is an actual rebellion or invasion (i.e. Parameter 1). This scenario is a logical absurdity. Though the scenario fulfils both Parameters 1 and 3, it cannot both establish that there is and isn’t an actual rebellion/invasion. Still disregarding Parameter #2, I find that the only possibility of successfully passing the sufficient factual basis test is for the court to find that there is an actual rebellion or invasion, and therefore previously, the president correctly believed the same, based on a probable cause assessment. The most important implications of this logical exercise are as follows:

  1. Parameter #1 and #3 both refer to an assessment of whether or not there is an actual rebellion or invasion. Parameter #1 directly inquires into the fact, while Parameter #3 only inquires into whether or not probable cause was used in the assessment;
  2. Parameter #1 and #3 are separate assessments. Parameter #1 is one conducted by the Court, and #3, by the president;
  3. An allowance for mistaken assessments based on inaccurate facts is immaterial to Parameter #3. The only question is whether or not the president, acting as if an average man using common sense in assessing available information, would find that it is more likely than not that there is an actual rebellion or invasion;
  4. Whether a president is correct or mistaken in his probable cause assessment hinges on whether or not Parameter #1 is answered in the affirmative. Therefore, in so far as the existence of an actual rebellion/invasion is concerned, it is Parameter #1, not Parameter #3, that is controlling.
  5. Thus, the supreme court should always make a determination of whether or not there is an actual rebellion or invasion.

Mandatory: Accuracy and Veracity

However, the implications of this logical exercise contradict the decision of the supreme court. The problem emerges at the intersection of the probable cause assessment of the president (Parameter #3), and where the court limits its review of the sufficiency of the factual basis only to those facts stipulated by the president in (a) the martial law proclamation document, and (b) the corresponding report to congress, documents prepared by the president. The court stated:

“…the determination of this Court as to whether there is sufficient factual basis for the exercise of [martial law], must be based only on the facts or information known by or available to the President at the time he made the declaration or suspension, which facts or information are found in the proclamation as well as in the written Report submitted by him to Congress” (See page 48).

In my opinion, this portion of the decision impairs the ability of the supreme court to make a factual determination of the first (i.e. actual rebellion or invasion) and second parameters (i.e. requirements of public safety), independent of the president’s own probable cause assessment of facts and information available to him.

I agree with the court’s acknowledgement that the president has the sole prerogative to decide on the accuracy and veracity of the alleged facts, and information available to him at the time he makes the martial law declaration. Only the president has the prerogative to subsequently act upon his assessment of the accuracy and veracity of such facts and information. Indeed, on page 54, the court states,

“…the purpose of judicial review is not the determination of accuracy or veracity of facts upon which the President anchored his declaration… rather, only the sufficiency of the factual basis as to convince the President…”

I argue, however, that this cannot be taken to mean that the supreme court need not make a determination of accuracy or veracity of any facts. It must be repeated here that the first parameter in the sufficient factual basis test is a determination of an actual rebellion or invasion, and that it is a separate parameter from the probable cause determination of the president. Therefore, judicial review demands a determination of the accuracy or veracity of a set of facts that are independent of the set relied upon by the president.

The supreme court avoids that task of determining the accuracy or veracity of the facts upon which the President relied. Yet in its duty to determine an actual rebellion/invasion, it limits its review to exactly the same set of (claimed) facts relied upon by Duterte, the purpose of which is to not to establish fact, but a common sensical belief in the likelihood of a fact. How then can the supreme court make an independent determination of “actual rebellion or invasion”? Or even a determination of the actual requirements of public safety?

The result of limiting the facts to what was contained in the president’s promulgation (and partly the report to congress) is that the court essentially conflated its determination of facts with that of the president. On pages 64-65, it claims other “independent facts showing that more likely than not, actual rebellion exists…” This line, in my opinion, illustrates the confusion of the court over the task of determining actual rebellion/invasion. The independent facts here refer to facts that are still within the promulgation and report, but independent of the allegedly false stipulations therein. Moreover, “more likely than not” is the standard of proof applied to the president.

68 pages into the an 82-page decision, I still could not find the a determination of Parameter #1 independent of the Parameter #3. The court sealed its abdication by conceding at page 68 that it does not have the same fact-finding capabilities as the executive branch, and must therefore rely on the capabilities of the latter. Effectively, it concurred with the president. The duty to determine actual rebellion/invasion (i.e. Parameter #1) could not be distinguished from the probable cause determination of the president on the actual existence of rebellion/invasion (Parameter #3).

Of the three parameters for determining sufficient factual basis, the supreme court effectively negated the first two in favor of the third (i.e. there is probable cause for the president). Could the court have intended Parameters #1 and #3 to be one and the same? Could it have intended to conflate the two, thereby excluding any evidence presented by petitioners pertaining to facts beyond what was stipulated in the martial law promulgation and report to congress? Unless there is an appeal in the pipelines, or another martial law declaration in the near future, then we may never know if the recitation of a three-parameter test for sufficiency of factual basis was purposefully meant to be confusing.

Facts: An epilogue

The end result of the decision appears to be that the court had effectively abandoned any duty of establishing facts, other than those established by the president under a standard or probable cause. Sufficient factual basis as a concept, legal or logical, loses its meaning because the facts in ‘factual’ do not need accuracy or veracity.

The supreme court decided that the ‘accuracy and veracity of facts’ is different from ‘sufficiency of facts’. That is, facts can be sufficient for a given purpose even without assessing their accuracy and veracity. Again, I agree that this is acceptable in the traditional power of the president to declare martial law. Duterte does not need a standard of information accuracy or veracity other than what he is satisfied with, and this is inherent in executive power in times of emergency. Lamentably, this cannot be the same standard for a court’s separate determination of an actual rebellion/invasion. Thus, for the supreme court to abide by its own test for sufficient factual basis, it must delve into determining accuracy and veracity of facts surrounding the martial law in Mindanao, whether or not these are the same facts upon which the Duterte relies.

Facts, in ordinary dictionaries, are simply things with actual existence, or events of that have actually occurred. Is there a fact of rebellion/invasion? Some facts are straightforward and easily verifiable, especially scientific facts. Law, however, is decidedly not a precise science, no matter any assertions to the contrary. What constitutes rebellion or an invasion or a valid basis for declaring martial law have technical meanings and have objective characteristics; and yet, it is easy to forget that facts can also be hegemonic assertions. It can be the most vociferous opinion that excludes others to such an extent that it ceases to be opinion, and becomes an accepted fact.

In the judicial review process over Duterte’s martial law declaration, the competing advocates for what constitutes facts are not simply the Solicitor General versus the many petitioners. Judicial review here is not simply an impartial venue for hegemonic competition; it is itself an act of the judiciary to engage and compete with the co-equal branches of government to establish facts surrounding martial law. This is the nature of the supreme court and the legislature acting as checks and balances against the executive’s prerogative to declare martial law. The decision called the court’s review power a “passive” remedy, while that of congress is “active”. In either case, active or passive, each one operates in a different manner towards the same thing – asserting the fact of a valid or invalid martial law declaration. So far, in both cases, Duterte’s martial law proclamation, and the ‘facts’ that accompany it, are validated. All that remains now is to see how the last of the check and balance mechanisms, the 60-day limit and extension/revocation process between the executive and legislative branches, operates on July 22.

 

Nick Tobia is a PhD candidate at the National Centre for Peace and Conflict Studies, University of Otago. He was a former civil servant at the national human rights commission in the Philippines, and officer at the regional human rights commission of ASEAN. The views expressed here are his own.

 

 

The ambiguous boundaries of the 2017 Martial Law declaration in Mindanao

If you are still struggling with what to make of Philippine president Rodrigo Duterte’s declaration of martial law throughout the southern island of Mindanao last 23 May 2017, then you have the current pulse of the Filipino people. Is martial law necessary? Is it an excessive response to the Marawi City Crisis? What are the conditions for its termination? Will it at all be lifted?

To better understand the ‘modern’ 1987 variant of the Philippines’ martial law provisions, I argue first that there are ambiguities that we need to first negotiate – the natural uncertainty as to a martial law declarations’ validity, and ambiguity as to the martial law discourse of the Filipino people. Knowing where the ambiguities are located allow observers to focus on finding a more stable vantage point in gaining a genuine understanding of the modern variant of the martial law provisions in the Philippines. That vantage point is one that focuses on observing how our modern checks and balances to martial law declarations will finally operate and perform.

The Facts and Initial Questions
The facts are straightforward. Marawi City was attacked on May 23 by a small insurgent faction called the Maute Group. The Group is loosely affiliated with, but wholly disowned by, the Moro Islamic Liberation Front, the largest Islamic separatist group with a signed peace agreement with the Philippine Government. The Maute Group has been engaged in firefights with government forces for some years now, with an intensification of activity beginning early last year in Butig, Lanao del Sur.

This latest incident in Marawi City now motivates Duterte’s martial law declaration (the Declaration hereafter), not only over Marawi City, but the rest of the island of Mindanao. In a press conference, Duterte warned that he may declare martial law over the entire country if circumstances warrant it. In questioning the geographical breadth of the Declaration, it escapes attention that the entire country is in a current and uncontested state of emergency due to lawless violence since the 2016 bombing of Davao City.

Does this situation at all merit a martial law declaration? If it does, is the geographical scope overbroad?

Ambiguity: Emergency and Emergency Powers

To answer these questions, we need to first understand emergencies and emergency powers like martial law. The main problem with situations like that in Marawi City is the nature of emergencies – it is difficult to gauge their true extent and all the dangers they pose at the moment they are unfolding. Correspondingly, the nature of emergency powers is such that it allows a president to act decisively even without the benefit of grasping the full extent of the emergency.

It is impossible to provide an a priori list of emergency situations where martial law is allowed or deemed necessary. Thus, at the time a martial law declaration is made by the president, it can only be presumed to be necessary, that is, until deemed otherwise by the checks and balances in the other branches of government.

Is martial law necessary? Is it overbroad in geographical scope? Given the nature of emergencies and emergency powers, the simple answer is that the president decides if it is necessary at the time the emergency unfolds. Duterte’s prerogative here, consistent with constitutional law traditions everywhere, is undeniable. Previous incidents such as the the 2008 War in Mindanao, the Zamboanga Siege of 2013, and the Mamasapano Encounter, all included Islamic insurgent groups, had ramifications to ongoing peace processes related to the muslim autonomous region, and exploded in violent armed encounters. Though none of these merited a martial law declaration, unfortunately for anti-martial law advocates, these cannot be the basis for limiting the martial law prerogative of Duterte. The concept of precedent and the ambiguous nature of emergency are incompatible.

Ambiguity: The Utility of our 1972 Martial Law discourse

The Philippines has an uncomfortable memory of martial law. The late dictator Ferdinand Marcos declared martial law in 1972 and only lifted it in 1981. The surviving legacy of the abuses inflicted during the Marcos era is the reparations process for martial law victims through the Human Rights Victims’ Claims Board. It is understandable that there exists a knee-jerk revulsion within Philippine political discourse to any martial law declaration.

No matter how vociferously some sectors of Philippine society object to Duterte’s declaration based on a memory of the Marcos-era, it is evident that 1) the Philippines already has a ‘modern’ set of martial law provisions; and that 2) the country still has not fully tested current set of the checks and balances. Marcos declared his martial law based on section 10.2 of 1935 Constitution. The current Constitution of 1987, in response to the Marcos-era martial rule, now requires, among other things, that congress convene to decide whether to revoke martial law by a majority vote. It added that the Supreme Court can review the factual basis for a martial law declaration.

Emergent Ambiguity: The usefulness of modern checks and balances

The real point of contention now I argue is not Duterte’s choice in employing martial law, because he has the clear prerogative to do so; rather, whether or not the congressional and court procedures for ratifying or revoking martial law operate as intended. The only other post-Marcos era martial law declaration was made by president Gloria Arroyo  in 2009. This was in response to severe election-related violence in the Province of Maguindanao in Mindanao. At that time, the Court declined to decide on the merits of the declaration since martial law was lifted within eight days. Because of this, it failed to fresh out judicial guidelines on any grey areas in the martial law powers of the president, and the mechanisms of checks and balances.

On this occasion in 2017, the grey areas are emerging. There are interpretations from within congress that the directive to convene only applies if it intends to revoke the declaration of martial law. Moreover, the 60-day limit is extendable by the president with congressional approval; there is however no constitutional guidelines on how long an extension the president can seek and congress can grant. Ostensibly, the constitution does not seem to foresee the possibility of a congress that is ‘friendly’ to the president. Duterte is within the first year of his 6-year term, enjoys high approval ratings, and is allied with a majority of congress. Will the congressional checks on the martial law powers of the president operate ‘as intended’?

It has yet to be seen how the Supreme Court, acting as a checks and balance mechanism, will now operate. Prospective challenges before the Supreme Court could produce a clearly articulated limit if a petitioner files a case. It’s likely then that the current chief justice will not pass on this opportunity to finally pen such guidelines into jurisprudence, whether or not the issue becomes moot.

Worryingly, the president has announced that he will ignore congress and the courts in carrying out his martial law policy. It is not very important to determine whether these are simply misplaced, fighting words typical of Mr. Duterte speeches, or a clear intent to defy the modern martial law provisions. Neither is it important to argue over whether or not a president can declare martial law in such fluid circumstances such as that surrounding Marawi City and the rest of the country. It is, however, vital to demand from congress and the courts their faithfulness in carrying out their mandates as checks and balances against the emergency powers of the president. Only in this exercise can we truly understand the modern martial law provisions of the 1987 Constitution, its effectiveness and its flaws.

 

UPDATES: As mentioned above, there are concerns over congress acting as a check on executive prerogative. Now, we find that both the lower and upper chambers have decided not to convene for the purpose of deliberating the president’s martial law declaration. This illustrates a dissonance between the intended and actual operation of the modern martial law provisions.

UPDATES: Lower chamber convened in plenary, and approved a house resolution supporting the martial law declaration. The house resolution was based on hours-long committee session, including an executive session on national defense department testimony. The plenary session in turn was over in minutes, hearing one objection, and conducting an audible vote (yeas and nays) without need of counting votes. Congress ratifies the martial law declaration.

 

Nick Tobia is a PhD candidate at the National Centre for Peace and Conflict Studies, University of Otago. He was a former civil servant at the national human rights commission in the Philippines, and officer at the regional human rights commission of ASEAN. The views expressed here are his own.

Dear America and Americans

Dear America and Americans

There are only 9 days before Donald J Trump is inaugurated as the 45th President of the USA. This is a prospect that appalls most New Zealanders as it does millions of others all around the world.

We had no say and no vote in the election so can only watch this tragedy unfold as mute bystanders.

Although we are separated from this event by 7,000 miles ( the distance between Wellington and Washington) we “Kiwis “ have a deep sense of dread and foreboding about what is going to happen after the event.

I can’t remember a time when I have felt so uneasy about a Presidential inauguration. The early signs do not augur well. Trump’s administration choices have been uniformly disastrous. The incoming President is more concerned with Celebrity Apprentice Ratings and his spat with Meryl Streep than with any policy dilemma. Like a mafia don he has surrounded himself with cronies and family rather than people who are knowledgeable about any of the big issues that are afflicting the US or the world.

He seems intent on destruction instead of construction, on chaos rather than stability, on hate politics rather than the politics of inclusion. His personal life, thin skin and extreme narcissist personality make him temperamentally incapable for prudent, altruistic decision making.

His inauguration will confer legitimacy on someone who has forfeited the right to legitimacy. Someone who has not paid taxes in the last twenty years cannot expect others to do so. Someone who has never experienced war or been willing to listen to those who have should not be given the status of commander in chief. Someone who believes in the death penalty for political opponents and torture for the enemies of the United States should not be given any legitimacy. Someone who has to be persuaded of the benefits of intelligence has no intelligence.

So what do we do on the other side of the world? How can we sleep easy when the portents are all negative? What confidence do we have that American checks and balances will be able to check and balance this totally unpredictable maverick? What do we do when decades of nuanced diplomacy are undermined by off the cuff tweets or intemperate utterance? How do we protect those Trump wishes to make vulnerable and how do we resist all that which needs to be resisted?

We look forward to some answers so that our days are not blighted by the dark shadow of this appalling President in waiting !!

Professor Kevin Clements
Director and Chair
National Centre for Peace and Conflict Studies

Interdisciplinarity Solves Complex Problems and Saves Lives

Author:  Adan E. Suazo, National Centre for Peace and Conflict Studies, University of Otago

If the Ebola outbreak in West Africa taught the world anything, it is the need to interlink public health, environmentalism and human security matters to ensure sound crisis response mechanisms.

That was the clear conclusion of three days of talks held by experts in the fields of environmental science, conflict analysis and public health who gathered in Montreal, Canada earlier this year to discuss the research avenues that would lead to a better understanding of the real challenges of the 21st century.

As one of the members of the organising committee, along with Loyola Sustainability Research Centre (Concordia University) Director Peter Stoett, one of our reasons for creating such a venue was the realisation that the countries most affected by the Ebola crisis were also states recovering from the legacy of civil war (as in Sierra Leone and Liberia).

Research suggests that such fragility tends to reduce economic opportunities for local communities, which generally leads to the creation of alternative economic activities that put substantial pressures upon natural resources. This is coupled with the environmental degradation caused by the machinery of armed conflict itself, which puts additional burdens on natural resources to sustain the war effort. Along with environmental degradation, war often leads to the breaking of public health institutions, which weakens the State’s ability to respond to the immediate aftermath of conflict, and often results in civilian populations becoming increasingly vulnerable to the spread of diseases.

Under such conditions, how can the State secure sufficient capabilities for the effective provision of public health services?

This is a key question at the on-going 71st United Nations General Assembly, where the above-mentioned issues are bound to be front of mind for leaders and delegates.

What the conclusion of our discussions in Montreal shows however, is that the complexity of our world, and the intricacy of our global processes demand that the environment, conflict and issues of public health be approached as inseparable concerns.

As I, and colleagues at the Montreal gathering, expressed in The Lancet Global Health journal recently, there are no easy assurances about social, environmental and health security within the context of the increasingly acute effects of climatic change and natural disasters.

We wrote that the conceptual disaggregation of these fields “must be met by broader collective action and political will, at local, national and international scales”. Such an integrative approach is already bearing important fruits in the research community, with significant investments allocated for the creation of institutes such as Future Earth, the New Zealand Institute for Pacific Research and our own National Centre for Peace and Conflict Studies (NCPACS) at the University of Otago, where interdisciplinary research on matters of conflict, environmental decay and health are currently paving the way for results-based decision-making, both in New Zealand and abroad.

One important finding in my research at NCPACS suggests that local violence over access to freshwater supplies is becoming more frequent amidst a progressively interconnected and interdependent world.

While advocates of the free market continue to lobby for the opening of financial (and arguably political) borders, it is crucial to understand the effects of these trends on our economic, social, political and environmental systems, and the only channel that will allow such thorough insights is one that is completely holistic and that seeks to approach issues as complex, multidimensional phenomena. In face of complex problems, we must endeavour to find dynamism in our solutions.

  • Adan E. Suazo is a doctoral researcher at the National Centre for Peace and Conflict Studies (University of Otago), and Associate Member of the Loyola Sustainability Research Centre (Concordia University). 
  • This article was published as an op-ed of Otago Daily Times on 28 September 2016.

Dunedin Sleep-out 2016

by Caitlyn Hart.  NCPCS Masters Candidate 2016

In winter 2016, I took part in the Dunedin Sleep-out in an attempt to raise awareness for the homeless in our city. It just so happened to be one of the two coldest weekends of the winter so far, and the forecast was for snow and below freezing temperatures throughout the evening. I spent the entire day asking anyone who would listen whether it was too late to pull out, or whether I would be a terrible person if I didn’t show up. The general consensus was that I should ‘flag’ it; it was too cold and I would surely make myself sick.

Fortunately, I was able to pull myself together; if people had no choice but to do this every night, surely I could handle one evening in the cold. We arrived to some generic house music, while cameramen were getting set up for our live cross. It’s fair to say I avoided live television that evening (I was wearing four pairs of pants and three hoodies). As the night progressed we saw multiple creative acts; from acoustic guitar and to solo artists, to comedians and dance crews, and were happy to boogie away in the background as the soup was being heated.

I spent a few hours of my evening helping out at the stall selling merchandise and answering questions as people walked past. The most common comment I heard over the course of the evening was “but we don’t have any homeless in Dunedin” … This is the moment when the problem became clear to me. We need more awareness of the homelessness problem, not only in Dunedin, but the whole of New Zealand.
It was gratitude I felt as I arrived home and jumped back in to my warm, electric blanket heated bed for a few hours of shut eye before work. What hit me the most, as I reflected on the night that had been, was not how much I had learned about the experience of homelessness, but that I had enjoyed my evening… While I’m glad I took part in the experience, I want to stress that homelessness is not fun. In reality, the homeless do not have constant entertainment, an endless supply of hot soup, coffee and tea, warm Kathmandu sleeping bags, enough food and goodies and a friend by their side to make the night enjoyable. In reality, most of the time they are cold, lonely and hungry.

It is estimated that there are around 42,000 people moving between temporary and insecure accommodation such as garages, garden sheds, cars and caravan parks. Please take any chance you have to raise some awareness, even if it is simply educating the person that tells you there are no homeless people in Dunedin, or New Zealand doesn’t have much of a problem.