PROTECTOR OF THE PEOPLE DOCTRINE

By Philip M. Lustre Jr.

(NB I originally wrote this post three days before the May 9 elections. I have to make adjustments since a new president has been proclaimed. This is about the basis of possible military intervention. Please read ...)

As the Philippines looks forward to the assumption into office of a new president on June 30, one of the least discussed topics is the role of the Armed Forces of the Philippines (AFP), or the military establishment, in all aspects, or every aspect , of the political environment.

As a rule, the military establishment stays neutral from politics.

Article 2, Section 3 of the 1987 Constitution says: "Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. "

Amid the incoming president's posturings that he would eliminate criminality and corruption in three to six months, using the military and police, the AFP has hardly taken a stand or issue a statement unlike the Philippine National Police (PNP), of which its top honcho, outgoing Director General Reynaldo Marquez, unequivocally said that the police would not follow illegal orders.

But the AFP's reticence should not be interpreted as acquiescence to what the next president has been saying, or intends to do. On the contrary, it is quietly watching the current political dynamics and implications of all those posturings during the political campaign.

Its core of experts has been silently analyzing the national security dimensions and implications of the current political dynamics. They have been drawing varying scenarios.

Some military officials have quietly indicated his political victory is not an encouraging development, as it could lead to political instability and chaos.

Unlike the previous president, whom the military establishment had learned to trust after they were elected, the incoming president does not appear to have earned the trust and the confidence of the military as an institution.

The men and women in uniform could hardly reconcile the sordid perception or fact that the next president is a reputed supporter or ally of the arch enemies of the AFP - the outlawed Communist Party of the Philippines (CPP), the New People's Army (NPA) , its military arm, and the National Democratic Front (NDF), its political arm.

The enmity of the two implacable enemies is so severe since they literally kill each other in the battle field, or just anywhere.

They could not countenance the emerging reality that the next Commander-in-Chief of the Armed Forces is an internationally known protector or coddler of the CPP-NPA-NDF, which is the enemy from their standpoint.

It does not make sense for the military leadership, its corps of commissioned and non-commissioned officers, and ordinary foot soldiers to know and understand that their next Commander-in-Chief is the friend, protector, ally and coddler of their vaunted enemies.

To kill the enemies or get killed by the enemies in the battle is a fair proposition for every soldier. But to be led by their enemies' friend defies even elementary logic. It just does not make sense.

Moreover, it is equally abhorrent and disdainful for men and women in uniform to be used by their enemies' friend, ally, protector and coddler to fulfill his campaign promise to rid the country of criminality and corruption within three to six months and commit every human rights violations to satisfy the incoming president's lust for blood.

The Armed Forces is different from what it used to be in the past. It is no longer the ogre that sustained the Marcos dictatorship and the subsequent human rights violations committed to prop up the dictatorship.

It is now a reformed institution committed to the Constitution. It is an institution of constitutional soldiers, whose loyalty is to the Philippine flag and Constitution, not to any particular person or political leader.

Hence, it would allow itself to be coopted and used to establish a new dictatorship.

It is committed to the democratic system, its strengthening and preservation. It adheres to the rule of law and due process. It abhors mass murders, summary executions, and forced disappearances.

The constitutional provision on the supremacy of civilian authority over the military is clear and firm. But it does not mean that any civilian leader could just impose what he wants on the military establishment, particularly if his orders do not have the constitutional and legal basis.

When the military establishment, in its judgment as an institution, sees that the civilian leader is about to commit abuses, it can invoke the "protector of the people" doctrine under the Constitution.

This doctrine allows the military to stop any actual or potential abuses to the Filipino people. Since it has the monopoly of arms, it can use the weapons to stop the abuses.

The next chief executive, although a lawyer, probably has not read the Constitution and does not know and understand the protector of the people doctrine.

He probably does not understand that the military establishment can not just blindly obey his illegal orders to commit murder to the very people it has sworn to serve, defend, and protect.

Now that he has been proclaimed as the next president, he will know the ultimate reality that he can not have the military at his beck and call.

It will be a different military when he takes his oath of office on June 30.

ALTERNATIVE TO FOI

By Philip M. Lustre Jr.

(Malacanang has issued an executive order on freedom of information issue. But it appears to be of very little use. Presidential Communications Secretary Martin Andanar, with his mouth zipped, could work to make the executive order useful. But with his abbreviated intelligence, it is doubtful if he could work on it. I have suggested the following as an alternative.)

Because of the failure of Congress to enact the proposed Freedom of Information Law (FoI Law), President Rodrigo Duterte could start his administration with a bang by putting in place the proposed Open Government Initiative (OGI), which could serve as an alternative to the FoI Law.

The proposed OGI local version could be similar to what US President Barack Obama did on his first day of office in 2009 mainly to promote accountability, openness, and transparency in his government.

Duterte could issue an executive order to institute his OGI speech primarily to facilitate the release of official information, which various parties would ask from the government.

In fact, he indicated his willingness to come out with an executive order (EO) as an alternative to the failed congressional initiative. 

It is a big question though if he is still serious to the draft EO envisioned, as his critics have noted his tendency to change his mind in a whiff.

The proposed EO could mobilize the DBM as its main implementing agency and the name OGI chief implementing officer with the rank of a Cabinet undersecretary to handle all requests for releasable information.

The proposed executive order should mandate the OGI head to conduct forums and other discussions, use every available means to generate suggestions to benefit the government, complete identification of un-releasable and releasable government information, and improve their quality and quantity.

The proposed OGI Philippine version is premised on the political philosophy of "open source governance," which seeks to open in this digital age the sources and movement of information to allow the greater participation of the general citizenry in the crafting of policies and their implementation.

It is also premised on the concept of "e-democracy" or democracy electronics, which rejects any "black box" on the issue of information.

Obama's OGI differs from the incoming president's in the sense that Washington has its Freedom of Information Law from which Obama has based his OGI. Hence, Obama's OGI is based on a strict implementation of the expanded US FoI Law.

DID DIGONG EXERT PRESSURES TO SELL SMC TELECOM ASSETS TO PLDT-GLOBE DUOPOLY?

By Philip M. Lustre Jr.

They have moved with surgical precision and haste.

In a single, swift and decisive move, the duopoly of the PLDT Group and Globe Telecom has acquired the telecommunications assets of food conglomerate San Miguel Corporation (SMC) in a deal that is seen to strengthen the duopoly of the two telecommunications giants in the country .

The deal could involve the sale to the duopoly of SMC assets that could reach $ 1.2 billion (or about P56 billion), the acquisition of Vega Telecom Inc., which owns controlling interests in at least five telecommunications firms, the return of 700 MHz of radio spectrum to the government, and assumption of P17 billion in unpaid debts and liabilities of the acquired firms.

The deal came at the most inauspicious time.

The Philippine Competition Commission (PCC), the newly formed quasi-judicial body whose mandate is to enforce and implement the provisions of the Philippine Competition Act, or RA 10667, has yet to come out with its implementing rules and regulations (IRRs) .

Outgoing President Benigno S. Aquino III has signed the competition policy on July 21, 2015 mainly to ensure efficient market competition and level the playing field among businesses engaged in trade, industry, commercial and all economic activities, but without the IRRs, the PCC is a toothless and powerless agency to deal with antitrust issues or creation of monopolies, oligopolies and duopolies, or any other combinations that could restrain trade and commerce.

The timing of the deal business becomes more dubious as the outgoing president has signed into law only last week the creation of the Department of Information and Communications Technology (DICT), which is mandated to come out with policies on telecommunications and information technology.

The DICT would have to come out with its own implementing rules and regulations (IRRs) in the next six months on how it would impose and implement policies on the country's telecommunications and IT sector.

Moreover, the deal came exactly a month before incoming president Rodrigo Duterte would take his oath and assume the presidency.

Duterte has openly articulated the people's complaints about slow Internet services, warning that if the telecommunications players would not improve, other firms would come in to compete against the major players.

In his press conference this morning, where he announced the deal PLDT-Smart, PLDT chairman Manuel Pangilinan said they intended to tell the Philippine Competition Commission and to its present commissioners led by chair Arsenio Balisacan that "it is already a done deal."

In fact, Pangilinan and Ray Espinosa, PLDT on regulatory affairs chief, announced that payments would be made to SMC within days to ensure a successful transaction among the participating parties. In short, the PCC would not be in a position to stop it even if it violates the law on competition.

It would be a fait accompli even before the official notice of the deal reaches the desk of PCC chair Arsenio Balisacan, who earlier resigned his post as socio-economic planning secretary and NEDA director general to become the first PCC chair.

The two PLDT officials described the deal as a "win-win" for everybody, particularly the public, which has been clamoring for faster and more efficient Internet services.

In a joint statement, PLDT and Globe said they would acquire Vega Telecom Inc., which owns controlling interest in Bell Telecommunication Philippines Inc., Eastern Telecommunications Philippines Inc., Cobaltpoint Telecommunication Inc., Tori Spectrum Telecommunication Inc., and Hi-Frequency Telecommunication , Inc.

In addition, PLDT said it would acquire a 50-percent stake in New Century Telecoms Inc. and eTelco Inc.

Globe said it would acquire 50 percent of Bow Arken Holdings Inc and Brightshare Holdings Corp.

Espinosa explained the deal would not require any congressional approval because they were not dealing with franchises or operating vehicles.

The two dominant telecommunications giants were acquiring the parent companies, Espinosa said.

There is no immediate explanation for the almost surgical move to acquire the two firms, but even Pangilinan dropped strong hints it had the approval of the incoming president, as he claimed that he was informed of the deal.

But industry sources said no less than the incoming president has taken a direct hand to force SMC honcho Ramon Ang to sell those assets to the coveted two telecommunications giants.

When he declared that the telecommunications industry would be opened to other parties, the reality was that SMC assets would be acquired by the two giants, industry sources.

With one month to go before he assumes the presidency, the incoming president would not be accused of anything in the deal. There is no crime when he is not yet in power, they said.

Outside parties, particularly foreign firms, understand that it is very difficult to enter the Philippine telecommunications market because of existing restrictive environment, which include public policies.

The industry sources said has become a virtual pariah among the big business leaders because he did not support Duterte but chose to stay with his favored presidential candidate, Sen. Grace Poe.

Pangilinan, or MVP as he is called in the business circles, originally supported Vice President Jejomar Binay but took a jumpship in the homestretch and went to support the incoming president.

Not to be outdone, the Ayala family, majority owners of Globe Telecom, likewise jumped ship to support Duterte. They originally supported Roxas.

Lawyer Rodolfo Salalima, who is the chief lawyer of the Ayala business interests and possibly the incoming DICT secretary, was reputed to have engineered the Ayalas' jumpship to the camp of the incoming president.

Pangilinan could hardly describe the mechanism on how the two telecommunications giants would divide the SMC telecommunications assets, but said a mechanism to identify which assets would go to each party was being devised and conceived.