Monday, December 07, 2009

The Unintended Brilliant Legal Strategy

The Philippine government placed Maguindanao, a province in Mindanao, Philippines under Martial Law. The public has been generally supportive of this aggressive military action as a proportionate response to the massacre of more than 60 people in broad daylight. Martial Law has been in effect only for two days and the government has unearthed, literally, in various places, dozens of high powered firearms, thousands of ammunition and machine guns. The biggest problem of the government though is justifying the imminent danger of rebellion. This is because the government chose the "Martial Law" option. I suggested the "Doctrine of Equivalent Action" instead. (Read my blog on this topic). The government is set to file rebellion charges, separate of the charges of murder. We must note that direct evidence is always the problem in criminal prosecution. It is not far out to say that the government has no strong direct evidence linking to the Ampatuans although the circumstantial evidence is overwhelming. Enter Martial Law. I have realized that the government has a very powerful brilliant legal strategy on hand. The gathering of evidence using search warrants are tedious because it requires "personal" hands-on knowledge of the applicant for the warrant before the courts issue warrants. This procedural due process is obviously inefficient and inadequate but then efficiency and due process are usually contrapuntal. With the advent of Martial Law, however, there is a dramatic strategy that is available to the government. Under the cloak of Martial Law, any gathering of evidence that would been illegal, are suddenly, legal, as a consequence. There is speed, efficiency, universality of scope. The illegally gathered evidence are now legal and can be used in the courts of law. And since rebellion, which is a political crime, and murder, which is a crime against persons, are being prosecuted separately and independently, then failure in the prosecution of the former crime does not automatically mean failure in the prosecution of murder. What is the brilliant strategy I am referring to? The brilliant strategy is using the mantle of Martial Law to illegally gather evidence but instead of prosecuting them under political crimes, the suspects are charged with the ordinary crimes of murder. Thus, Martial Law is used to gather evidence and but the evidence is used to prosecute for murder under ordinary courts using ordinary criminal procedure. This avoids any political cloud because the procedure is definite and clear: prosecution of murder under the rules of criminal procedure. A brilliant strategy, indeed, and the government is commendable for this legal strategy. But are they that brilliant to have the foresight to think that far ahead? Or is it the unintended consequence? Or maybe, it is the Street Strategist seeing what everybody else has seen and thinking what nobody else has thought? --

"Constitutional Expert" and the "Street Strategist"

What is the difference between the "Constitutional Expert" and the "Street Strategist?" 1. Here, constitutional expert Fr. Joaquin Bernas discusses the options of GMA 2. While the Constitutional Expert is groping for specific actions, here, the Street Strategist goes a step further and immediately works out a political strategy for GMA, on top of legal analysis Enjoy.

The Strategy of Equivalent Action

The Maguindanao massacre in Mindanao was the worst public display of barbarism in recent Philippine history.

Even during the entire Martial Law regime, no such public display of massacre happened. (The massacres of over 50 people in one sitting during Martial Law could have been done in private, though.)

Given the situation, ordinary police action using ordinary rules of police engagement would have been inefficient, ineffective, inadequate.

After all, barbaric and systematic gunning down of innocent women and weaponless journalists being made to kneel before being shot goes beyond the usual commission of crimes.

The crimes were committed without fear of the law. That was the unique element of the massacre.

There was premeditation, planning, and engineering during the commission of the massacre and in the subsequent attempt to hide the evidence using heavy equipment to crush vehicles and bullet-ridden bodies into layers of soil.

Without fear of the law!

Thus, the enraged public needed an action, a very aggressive police action to arrest the suspects and to dismantle their huge private murderous army and eventually to exact vengeance and justice.

The police action that the public needed is similar to Martial Law.

Thus, from my viewpoint, we needed a "police action" that can give us a "similar" force and efficiency of a "Martial Law."

I call this the "doctrine of equivalent action."

The hitherto "unnamed, unidentified undefined" desired action is a police action, meaning it is an executive action by the chief executive, acting as a chief executive. This desired police action is, therefore, a civil action exercised by the chief executive in his/her capacity as head of the civilian government.

For lack of better term, for the moment, I will call this police action as the "Martial Law equivalent action" or simple "Equivalent Action" or simply, "EA."

The action should not be a military action being exercised by the President acting as commander-in-chief of a military organization. It should not be a Martial Law action.

Thus, I make a distinction between the "military action" which is "Martial Law" on one hand, and the "police action" which I call as "Equivalent Action", on the other.

Why the distinction?

The "Equivalent Action" is a civil, police action which does not require the elements of "invasion, rebellion, or imminent danger thereof." It is not a political decision, rather a management decision. It does not expire over a fixed period but subsists until the resolution of the case and the attainment of the objective of exacting justice.

On the other hand, "Martial Law" is a military action. It requires the elements of "invasion or rebellion." It is a political decision in addition to being a military strategy decision because it has to satisfy constitutional requirements. It expires over a fixed period although a subservient congress can extend it indefinitely.

So far, the legal community is divided on the basis of the phrase "invasion or rebellion." Some are in favor of the martial law, some are not.

However, the frustrated, enraged general public are almost unanimous: this is the way the government should handle the barbarians at the gate, the mindless savages who massacred helpless women, journalists and civilians with heartless premeditation and callous engineering. Without fear of the law, without fear of punishment, without fear of vengeance.

As we can see, the public having seen the barbaric massacre supports the Martial Law action ignored the legalities of the term "Martial Law."

The public, therefore, desires the "Equivalent Action", the civil police action that attains the objectives of justice and vengeance without the requirements of "invasion, rebellion, or imminent danger thereof."

What does this mean?

The people are satisfied with the results of the action, not the actual terminology being used.

So here is a tip for GMA and future dictators.

It is within the means of a management decision of a civilian organization, the means of an executive decision of a civilian government to enforce an "aggressive police action" without the need of imposing martial law.

Avoid the term "Martial Law." Don't use it.

Remember, when for the first time in modern Philippine history, the government used the term "State of Rebellion?" The Supreme Court declared that such declaration of "State of Rebellion" was a "political question" beyond the ambit of the Supreme Court.

GMA could repeat the same strategy.

Invent a new term, use this term as the basis of an aggressive police action, and let the lawyers debate the implication of the term in the courts.

The President does not even have to invoke actual "invasion or rebellion."

Because the new term is "unnamed, unidentified, and undefined," the vagueness and the doubt will have to be resolved in favor of "political question", beyond the ambit of the Supreme Court.

Will this result in creeping Martial Law for the entire country? Like the story of the slowly boiled frog?

Ordinarily, that's what extrapolation is all about.

However, there is the fallacy of extrapolation. We cannot just assume extrapolation.

There is always an asymptote. For the Philippines, the people have realized that Martial Law cannot just be imposed in the entire country, again, without them rising against it. Their previous experience with Martial Law gives us a reasonable basis to say that the people have an asymptote of their tolerance for it.

Just because Martial Law has been imposed in Maguindanao with many of the public supporting it does not automatically mean that the same public will support Martial Law imposed in the entire country.

This leaves the Chief Executive about two years of breathing space.

The people do not want "Martial Law", but they want the "Equivalent Action."

And, consequently, I could be the first detainee of the "Equivalent Action."

1. Strategy vs. tactics.
This article discusses the Strategy of the Equivalent Action, and leaves the tactics with respect to habeas corpus, rebellion as a political crime, etc as another subject.

2. This is an exercise in thought; and does not reflect my political beliefs)

Thursday, December 03, 2009

An Economic Strategy for the Presidentiable

I have been busy compiling a set of talking points, ideas, facts and figures that should be useful for a presidential candidate who thinks that the economy is a serious factor in running the country. While I don't intend to circulate this to the general public, I am writing this down to communicate to a future policy maker some ideas that economists and politicians have overlooked.