SEDITIOUS LITERATURE

March 26, 2010

Article 142 of the Revised Penal Code of the Philippines is another law that concerns writers. The statute provides that one of the three ways or acts of committing Inciting to Sedition is by writing, publishing, or circulating scurrilous libels against the Philippine Government or any of the duly constituted authorities thereof, which to end to disturb the public peace (Part 3 of 3, see the entire proviso). It is important to note that in this form of Inciting to Sedition, the purpose of the offender need not be to accomplish any of the objects of Sedition under Article 139. What is required is that the scurrilous or vulgar libel tends to: 1. Disturb or obstruct any lawful officer in executing the functions of his office; or 2. Instigate others to cabal and meet together for unlawful purposes; or 3. Suggest or incite rebellious conspiracies or riots; or 4. Stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government.

Premier Filipino playwright Aurelio Tolentino was found guilty of this crime when the Supreme Court held that his play “Kahapon, Ngayon at Bukas,” exhibited at Teatro Libertad, tended to instigate others to cabal and meet together for unlawful purposes and to stir up the people against the lawful authorities and to disturb the peace of the community and the safety and order of the government (US v. Tolentino, 5 Phil. 682).

Tolentino was considered caught in flagrante delicto and was arrested right during the staging of the play on May 14, 1903. Virgilio S. Almario writes of the play: “Bukod sa isang pailalim na paglalarawan ito ng malungkot na karanasan ng Pilipinas sa kamay ng iba’t ibang mananakop, may isang bahagi sa dula na kailangang hablutin at dapurakin ng tauhang Taga-ilog ang bandilang Amerikano. Ayon sa ulat, ang aktor na na gumaganap na Taga-ilog ay pinanghinaan ng loob nang makita ang mga Amerikano sa lipon ng mga manood kaya’t si Tolentino mismo ang pumasok sa tanghalan para isagawa ang naturang tagpo. Dahil sa napanood, nagsiklab ang mga naroong Amerikano at lumikha ng kaguluhan sa loob ng teatro. Inaresto si Tolentino at ang ibang kasali sa pagtatanghal. Inihabla si Tolentino sa salang sedisyon at pinarusahan ng dalawang taong pagkabilanggo at bayad-pinsalang $7,000.” (Balagtasismo Versus Modernismo, p. 41)

As said earlier, the work of literature need not result to actual disturbance or disorder. It is enough that there be a “Clear and Present Danger.” For instance, there is already a manifest and widespread discontent of government by the citizens, and anytime there could be an uprising. But here you are, an author of great influence, staging a play or publishing literature that adds fuel to the fire. You could very well be liable for Inciting to Sedition.

Prior to the adoption of the “Clear and Present Danger Rule” we had the “Dangerous Tendency Rule.” Under this doctrine, there need not be an actual and manifest outrage against the government. You could be liable for Inciting to Sedition just by publishing materials that tend to create a danger of public uprising. The rule is rather astringent, hence very much frowned upon by libertarians. This was the dictum applied by the Americans in the Tolentino Case.

Rest assured my dear writer-friends that the 1987 Philippine Constitution guarantees Freedom of Expression. It provides that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.” (Art. 3 Sec. 4) Corollary to this right is our freedom from prior restraint or censorship and from subsequent punishment (Chavez v. Gonzales, Feb. 18, 2008). The above discussion on Inciting to Sedition is simply a reminder that Freedom of Expression, even if inherent upon the individual (Universal Declaration of Human Rights, Art. 19-20), is not plenary.

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UNLAWFUL AGGRESSION

March 12, 2010

In Municipal Law, the citizens cannot put the law into their own hands even if the state is challenged with the difficulty of execution of the law. It is even seditious, hence a crime to perform acts of hate and revenge to a public or private person even under the pretense of a sound socio-political ideology (Art. 139 Revised Penal Code of the Philippines). In Public International Law, it is a fact that strictly speaking there is no official competent authority equipped with enough power for its implementation. Hence, shall we say that when such authority as the UN, is faced with difficulty in its implementation, a country can violate settled principles of international law in order to effect sanctions against another country by itself?

Such is the subject of this discussion in the light of the 2003 US-Iraq War which continues to take its toll in the international community through economic depression, armed violence, bigotry and ideological disputes. The facts are as follows:

In 1990, Iraq invaded Kuwait which started the Persian Gulf War (1990-91). The United Nations approved a US-led coalition to intervene militarily in the conflict, leading to Iraq’s eventual defeat. Despite the onslaught, Saddam Hussein managed to stay in power. UN inspections during the mid-1990s revealed that Iraq was in possession of proscribed weaponry and technology; hence economic sanctions and weapons ban were effected in order to suppress Saddam’s lethal arms program which could later lead to production of WMD or weapons of mass destruction. Iraq’s continued breach of the arms ban and interference with UN inspection prompted then US President Bill Clinton to order Operation Desert Fox bombing several military installations in the territory. Because of this Iraq refused to accept further UN inspections.

In 2002, after the 911 attack, then US president Bush accused Iraq of supporting the al-Qaeda and of continued possession and manufacture of WMD. Subsequently, the UN Security Council issued Resolution 1441 demanding Iraq to re-admit inspections. Iraq subscribed to the resolution and submitted a 12,000-page declaration claiming no current WMD. US officials were quick to dismiss the denial. In early 2003 both US President Bush and British Prime Minister Blair declared that Iraq was hindering UN inspections and hiding WMD within its territory. In early 2003, while other world leaders such as Jacques Chirac of France and Gerhard Schroder of Germany sought to give Iraq more time, President Bush wanted no more UN Resolutions and gave Saddam 48 hours to leave Iraq.  When the latter refused, Bush commenced his air strikes and deployed his infantry. Within days, Iraqi strongholds gave way to US occupation. Although search of the territory yielded no WMD, the US claimed to have found traces. Bush then contended that it was not only a preemptive war against terror but also a regime change project to liberate Iraq from Saddam’s hold and introduce democracy in the country.

This action by the US stirred much controversy in the international community. After seven years, the following questions prevail: 1. Whether or not the US violated settled principles of international law by making unilateral enforcement action against Iraq, and 2. Whether or not the democratic government set-up by the US in Iraq shall be recognized according to the Stimson Doctrine.

Without question, US intervention during the Persian Gulf War was justified. Both the armed enforcement actions and inspections, being UN-sanctioned were never unilateral and in accordance with the Charter. When there is danger to international peace the Security Council may interfere: 1. on its own (Art. 34 UN Charter), 2. as per General Assembly (Art 11), 3. as per the UN Secretary General (Art. 99), 4. upon motion by a UN Member (Art. 35 Par. 1), and 5. upon motion by a non-member (Art. 35 Par. 2). Also, armed resolution was only resorted to at the instance of acts of aggression by Iraq against Kuwait and upon approval by the Security Council (Art. 51).

As early as then, Iraq was already testing the political will of the UN, with Saddam playing hide and seek with the inspectors. Also, as early as then, US exhibited its tendency for unilateral action by effecting Operation Desert Fox. The waning of UN’s effort for constant inspection at Saddam’s instance (by refusing to accept the inspectors) and the loosening of economic sanctions due to the willingness of Iraq’s former trade partners to resume mercantile relations, showed once and for all the primordial weakness of international law: Enforcement. For it to be a true law; international law must be reasonable, moral, based on common consent of equal nations; and more importantly, it must be enforced. And sadly but truly, where international law fails, the law of might prevails.

If Operation Desert Fox was a violation of international law, there was a repeat of it during the 2003 US-Iraq War. In 2002, the US gave Islamic Fundamentalism’s stateless terrorism another known address: Iraq. It accused Saddam Hussein of possessing WMD and supporting the al-Qaeda. The UN Security Council was quick to interfere by issuing Resolution 1441 compelling Iraq to open up for inspection. Iraq also issued a 12,000-page declaration belying US allegations. But the US, then supported by Great Britain, was so sure of its theory. Either that you were with them or you were with the terrorists, the Bush Doctrine provided. Hence, not listening to other world leaders and not waiting for further UN Resolutions, the US made another unilateral enforcement action.

Clearly, the action was in violation of Art. 51 of the UN Charter. “Armed Attack” cannot be so construed to include imminent threat of a nuclear or atomic first strike or mere threats. (Quincy Wright, “The Cuban Quarantine,” p. 560) The Bush Doctrine of Anticipatory Self-Defense cannot apply until the cause for preemption is proven. And since the invasion was without UN sanction, evidence searched to support the WMD theory cannot be admissible as per the Exclusionary Rule; hence the US claim of having found traces is not tenable. UN members must also refrain from threat to the peace and must not resort to armed intervention on matters of territorial integrity and political independence of other states (Art. 2 Par. 3-4 UN Charter). Likewise member states are also required to use peaceful means in settling disputes (Art. 3).  Enforcement or obligatory actions such as issuing an ultimatum prior to air strikes and military invasion also cannot be done unilaterally as it requires consent from the UN Security Council (Art. 53).

Now we go to the other weakness of the Bush Doctrine: Its inconsistency. When the preemption theory failed, Bush contended that it was actually a democratization project of the US—that the only way to keep their country and the world safe is by introducing democracy in the Middle East, particularly the rogue states reputed by them to be harboring terrorists. The war-induced removal from office, capture and subsequent trial, conviction and execution of Saddam Hussein on war crimes and human rights violation although purporting itself to be in accordance with the Nuremberg Judgment (an individual can be convicted of war crimes even if he claims to have acted in behalf of the state), cannot be countenanced by international law. For one, being an international dispute, it could have been more properly decided by an impartial international tribunal with the decision enforced through the Security Council (Art. 36 No. 2 and Art. 94 No. 2 Statute of the International Court of Justice).

The Bush Doctrine of using military action to effect democratization of other independent states is without question, of no moment within the ambit of international law. The end does not justify the means, being in violation of Art. 51. The Stimson Doctrine shall apply in the sense that the democratic government erected through external aggression shall not be recognized. This Pax Americana by means of war, being more retaliatory than preemptive, is inconsistent with the purposes of the United Nations (Art. 2 Par. 4 UN Charter). Hence any government established through it cannot demand recognition by operation of international law. Here, the Declarative View must prevail in that it shall remain within the discretion of independent recognizing states whether or not it will recognize post-Saddam Iraq at its own risk. For one, it could hardly be said that the current US-sponsored Iraqi government is able to maintain peace and security in the territory in the light of continuing sporadic assaults and bombings (by suicide bombers or otherwise) which only shows persistent resistance by many sectors. Also many countries still prohibit their citizens from traveling to Iraq.

The UN although it has yet no power to legislate, shall remain as one competent authority in enforcing international law through its rules of procedure (Art. 21-22, 62, 101 UN Charter). Although reprisal and war are some valid sanctions in international law, it cannot be done unilaterally but upon the instance of the UN Security Council. Hence the US even if supported by Britain cannot claim bilateral enforcement action for they acted like allies in a war of aggression not sanctioned by the UN. Although one direction of Public International Law is ultimately erecting a World State (with one World President, one Word Congress and Supreme Court of the World perhaps), it shall be effected slowly through reasonable, moral principles of international law consented upon and enforced by nations as equals and without pretenses of supremacy. Pax Americana if achieved through unjustified armed aggression cannot be more than acts of world domination and neo-colonialism if not imperialism, which Public International Law seeks to prevent in the light of the congenital rights of states.

References:

Paras, Edgardo L. International Law and World Organzations. Manila, Philippines: Rex Bookstore, 1985

Nachura, Antonio Eduardo B. Outline/Reviewer in Political Law. Quezon City: VJ Graphic Arts, Inc., 2009

Suarez, Rolando A. Political Law Reviewer. Manila Rex Bookstore, Inc., 2002

“Persian Gulf War.” Encyclopædia Britannica. Mar. 1, 2010 http://www.britannica.com/EBchecked/topic/870845/Iraq-War

“The Underpinnings of the Bush Doctrine By Thomas Donnelly.” AEI Online. February 2003

“Miscarriage of Justice.” Wikipedia. March 2009

“Stimson Doctrine.” US History.Com. Mar. 1, 2010 <http://www.u-s-history.com/pages/h1500.html>

“War of Aggression.” Wikipedia. March 1, 2010

“The Bush Doctrine.” BushDoctrine.Org. March 1, 2010http://www.bushdoctrine.org/

“Iraq and Just War: A Symposium.” The Pew Forum on Religion and Public Life. Sept. 30, 2002<http://www.pewforum.org/events/?EventID=36

“Iraq and Weapons of Mass Destruction.” National Security Archive Electronic Briefing Book No. 80. Feb. 11, 2004 http://www.gwu.edu

“War of Aggression.” Wikipedia. Mar. 1, 2010

Sad news, sad summer. In the middle of earthquakes and hypertemperature came the all-too-sudden and premature passing of a dear writer-friend, Fae Barandon. We met back in 2003 as co-fellows for the 1st Juliana Arejola-Fajardo Workshop for Bikol Writing in Pili, Camarines Sur. She was then a staffer for The Pillars, the Ateneo de Naga University school paper. I remember her as smart, reserved, friendly and pretty. It turned out later that she was from Baao, so on my way to Iriga we took the same bus. We talked about the writers’ group that we were planning to form.

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From Silive.com

Sad summer, sad news. she never was able to attend any of our poetry critique and reading sessions due to “personal issues” as she would opt to say. Later, she went on to take her master’s degree in the US. Thereon, we became occasional chatmates. For her, it was in between MA classes, coffee breaks and her bartending side job. For me, it was in between teaching units, beer breaks, writing and guitar playing. She would describe her milieu, life pattern, and even her European boyfriend who spoke little English. Lost in translation they were.

Sad to hear about her untimely demise. Rest assured though that she enjoyed the last of her days as she was able to do the things she wanted. She used to say that she was not much of a writer. I disagree. Not only that during our workshop she exhibited poetic tension through carefully chosen choppy-syllabic lines, she also truly lived the life of a poet: Ever with a vision, ever with the zeal to create through images and film sequences. As wise men say, death is merely consummation of truth. Now she rests into completion.

Yes dear blog hoppers, my book has reached Manila. Copies are now being sold at the National Commission for Culture and the Arts. But I believe most of it will be sent out by the government to public libraries throughout the country. I myself have donated copies to the Naga and Iriga City public libraries, including the Ateneo de Naga, Naga College Foundation, University of Nueva Caceres, Universidad de Santa Isabel, Camarines Sur State Agricultural College and Holy Rosary Minor Seminary libraries. I pray they will take care of the copies for posterity.

Again, I also have copies displayed at Museo de Caceres, Basilica Bookshop and Kulturang Bikolnon shop.

Now going to the 2010 elections.

Also, the Supreme Court re-promulgated the Quinto and Tolentino v. Comelec ruling. Appointive government officials are now ipso facto resigned upon filing their Certificate of Candidacy. The ponente is no less than Chief Justice Puno. The venerable Justice Nachura made a very strong dissent though as he was the ponente for the previous ponencia. Truly, there is substantial distinction between elective and appointive officials.

Another issue is whether or not Erap can still run for the presidency. Our Constitution provides that he cannot avail of any re-election whatsoever. Unless for example, he runs for vice-president and should his president conk out, he can succeed as president. What is disallowed is re-election, not succession. So let us see.