Breaking down the culture of impunity

 

 

It all started with the Marcos dictatorship. In two decades of iron rule, Marcos perfected a system of oppression that knew no bounds, without fear of punishment for illegal wrongdoing for in his own mind his word is the law. Thousands had been killed, jailed and had disappeared. Torture and extrajudicial killings were widely practised with no one brought to the halls of justice for human rights violations.

 

The Marcos years spawned a culture of violence and impunity, and his successors would quietly condone the practice of extrajudicial executions and disappearances of those who voiced their protests against the government. Violence and impunity have become a way of life for the state, so pervasive they have been ingrained into our culture.

Remembering the victims of the Ampatuan massacre, 58 people, 
32 of them journalists, who were brutally murdered 5 years ago in
Maguindano province.

In June 2013, during the World Economic Forum East Asia in Myanmar, President Noynoy Aquino declared that the culture of impunity in the Philippines was over and invited investors to the country. Aquino said: “The culture of impunity is over. Much of what we have done is based on the belief that a sense of justice and the predictability of outcomes breed prosperity.” He added: “It is clear that good governance has created a climate of confidence in the Philippines. If there is no corruption, there will be no poverty.”

 

What was President Aquino thinking? Is he from another planet?

 

I had an almost similar serendipitous experience about two weeks ago in an Internet forum when I brought up the issue of culture of impunity as a stumbling block to a fair, accessible and efficient system of justice. A forum member asked if I was referring to the culture of impunity among lawyers in the bench and other high places. What?

 

It’s high time that President Aquino and like-minded people understand that a culture of impunity is neither caused by corruption or poverty, and that lawyers as a professional group are not responsible for fostering such culture. This a very serious matter and not something we could just quibble with.

 

Impunity simply means exemption from punishment, or the failure to bring perpetrators of human rights violations to justice. As such, impunity constitutes a denial of the right of victims to justice and redress.

 

The Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity of the United Nations Commission on Human Rights defines impunity as “the impossibility of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”

 

Now that we have a clear idea of what impunity means, perhaps we can begin a thorough understanding of what we need to do to combat this pervasive culture of impunity in our country.

 

For journalists alone, the Philippine Centre of Media Freedom & Responsibility reported that an average of six per year is killed for their work. This number may be lower compared to the Gloria Arroyo regime but the number of slain journalists under the Aquino presidency has surpassed those of the administrations of Fidel Ramos and Joseph Estrada.

 

The Centre fears that this continuing violence against journalists will not abate before the end of Aquino’s term in 2016, which shows the failure of the Aquino administration in preventing attacks against the press.

 

The killing of journalists is linked to the larger culture of impunity when wrongdoing of all kinds goes unpunished. For the thousands who had been killed or disappeared during the oppressive Marcos dictatorship, and for the continuing extrajudicial executions and disappearances, not one has been made responsible under the law for either their murder or violations of human rights.

 

Those in authority like the President or his loyal military officers exploit the long arm of the law in persecuting dissenters or those in their judgment are planning to overthrow the government. And if no one is prosecuted for violating the people’s right to express themselves by making them disappear or silencing them permanently through extrajudicial execution, the system of justice breaks down and it spawns a culture of violence.

 

Take the case of former General Jovito Palparan, who is alleged to be the mastermind in extrajudicial abductions and killings of government critics during his military service. Palparan earned the nickname “Berdugo” (“the Butcher”) for his alleged involvement in numerous human rights violations, such as the murder of Edwin Marcellana and Eddie Gumanoy, and the disappearance of University of the Philippines’ student activists Sherlyn Cadapan and Karen Empeno.

 

In 2006, the Melo Commission headed by former Supreme Court Justice Jose Melo rendered a report which concluded that most of the killings of militant activists and journalists were instigated by the military, and recommended that General Palparan and other military officials be held liable. Yet then President Gloria Arroyo did nothing to prosecute Palparan but instead continued with greater impetus the execution of Oplan Bantay Laya, her government’s anti-insurgency operations.

 

Now that Palparan has been arrested after being on the lam for three years, it is highly doubtful if the government will be serious this time around. Palparan is charged with the kidnapping and serious illegal detention of UP students Sherlyn Cadapan and Karen Empeno.

 

According to Senator Antonio Trillanes, once a navy officer, General Palparan only followed orders during his time in the armed forces. In other words, he was just doing his job. But Trillanes has forgotten, or perhaps, he didn’t know, that the defence of following orders has already been debunked by the Nuremberg trial and succeeding cases. Besides, military generals are not strangers to the concept of command responsibility. Maybe, Trillanes was simply channeling himself, a convicted mutineer who staged a coup against his commander-in-chief, that he himself was not fully punished for the crime of rebellion and why should Palparan be made liable when he was simply doing a heroic job to fight communism in the country.

 

Chances are, the prosecution of Jovito Palparan will drag on until the press is no longer interested to report about him, exactly what’s happening to the Ampatuan massacre whose trial is yet to be set down. Five years ago, 58 people, 32 of them journalists, were brutally murdered in Maguindanao province, a most gruesome and brazen massacre in Philippine history. It was the worst attack on the press in history and the most violent single election-related incident in the Philippines.

 

The court proceedings have only dragged on under the watch of President Noynoy Aquino whose administration has shown little interest in pursuing justice for the victims of the massacre. Despite strong international outcry, many are being led to believe that the massacre would end up as another statistic in the long list of unsolved political killings in the Philippines. 

 

Just consider some of the grim realities surrounding the trial: four witnesses have been killed so far, obviously to prevent them from testifying; authorities have failed to arrest 98 suspects who remain at-large; 41 accused policemen have been granted bail because the evidence is found not strong; the head of Army’s 601st Brigade who turned down the victims’ request for security escort has been promoted despite the massacre; allegations that the prosecution team has accepted bribes; and the continuing threats on the victims’ relatives and pressures that they settle amicably with the Ampatuans.

 

President Aquino was criticized before for dismissing media killings as not always work-related. According to the International Federation of Journalists (IFJ), a total of 33 journalists have been killed in the line of duty since Aquino took office in 2010 and the President is still bedazzled why. Perhaps this could also explain why he doesn’t understand what a culture of impunity is.

 

On her part, Supreme Court Chief Justice Lourdes Sereno highlights the problem as one of procedural weakness in the justice system, where the courts lack the capability to execute their own writs and processes. In one of her rare public speeches, the Chief Justice admitted that the courts have no means to serve arrest warrants and have little resources to ensure the protection of their servers from the very real threat of retaliation.

 

The culture of impunity is a real enemy, and the indifference of President Aquino has only emboldened those in power to entertain no trepidation in eliminating their most vocal critics and opponents, not excluding those in the media. Offering a lame excuse like the Chief Justice’s most important dilemma in enforcing the law will not solve the injustice in our system. It’s a frame of mind, a way of thinking that has been implanted in our psyche by the long years of dictatorship under Ferdinand Marcos. T

An art exhibit marks the 5th anniversary of the Ampatuan massacre.

The Philippines has an enviable record when it comes to signing up-to-date human rights treaties and ratifying international conventions and agreements, but without a determined and robust prosecution of violators and torturers, all these human rights commitments become empty promises.

 

What must be done?

 

For starters, set down the Ampatuan case to trial, without any more delays, or ifs and buts. The President needs to set aside his ego-bruising experience when the Supreme Court overturned the Disbursement Acceleration Fund. He should extend his hand to the Chief Justice in working together to ensure and secure justice to the victims of the Ampatuan massacre.

 

Next, release all political prisoners and put an end to the state position of repetitive denials that the Philippines does not have political prisoners. In dismissing the existence of political prisoners, the Aquino administration is only replicating the same pronouncements of the Marcos dictatorship which started the practice of rounding up and detaining government protesters.

 

As of November 2014, there are 491 political prisoners in the Philippines, 220 of them were arrested during the current regime. There are 43 female political prisoners, 53 are ailing, 42 are elderly, and six are minors.

 

By releasing all political prisoners, the government will acknowledge that they are not the enemy of the people but the plunderers and those who perpetuate violations of human rights. These are the true enemies of the people who should be jailed.

 

Lastly, establish a genuine Truth and Reconciliation Commission that will be tasked with the final investigation of all past political crimes committed by the state, including illegal imprisonment of those who criticize the government, extrajudicial executions and disappearances. The late President Corazon Aquino decided not to establish such commission after Ferdinand Marcos was deposed apparently because of pressure from the military which was responsible for most of the atrocities and violence committed by the Marcos regime. Most countries who wanted to break from the past like South Africa, Chile, Argentina and others have gone this route and benefitted immensely from the findings and recommendations of such commissions.

 

But we are not talking of a fact-finding body such as the Philippines Truth Commission that was established by Noynoy Aquino upon his ascendancy to the presidency in 2010. Such commission was invalidated by the Supreme Court for violating the equal protection clause for singling out the Arroyo administration. That commission was tagged by the court as vindictive and focused on selective retribution. 

 

Picking up on the Chief Justice’s suggestion of promoting a counter-culture, which she did not define, to the culture of impunity, the words of the Nobel laureate, Elie Wiesel, seem apt for us to take to heart: “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

Power writes history

 

 

We never learn from history. Or we tend to remember only events and personalities that appeal to our baser instincts. We recall only those we would like to hear.

 

Take, for example, a recent conversation I had, or perhaps more of a disagreement with someone on her interpretation of the Marcos dictatorship and the insignificant role of a certain fraternity from the University of the Philippines in the struggle against the oppressive regime. For the purposes of this blog, we’ll call her Ms. D. Inglesera for her self-declared impeccable grasp of the English language. By insignificant (my word, not hers), I mean from the point of view of the overall Marcos protest movement, which takes into account the greater and more direct role played by nationalist, student, labour, and civil society organizations, more particularly the hundreds of thousands of nameless ordinary people who braved the sun and rain and bullets and brutality of the military and police riot squads during those tumultuous years.

Philippine dictator Ferdinand Marcos declares martial law on
September 21, 1972.

Fast forward to the present, more than 28 years after Marcos was driven out of Malacañang, this aforementioned Ms. Inglesera would only remember the more famous among the members of that UP fraternity whom she claimed bravely stood up to their fellow fraternity brother who hijacked the presidency of the country for more than twenty years. As if their participation which is highly suspect was the turning point in the people’s ultimate rejection of the Marcos regime, thus leading to the restoration of democratic rights, albeit in their most basic form.

 

It is common for the powerful to write history, according to American author and cultural critic Greil Marcus. He said that “events that do not change into power or that take place outside of the normal circuits in which power is exchanged, outside of the institutional distribution and control of social goods – such events, in certain ways, do not make history at all. They are resistant to history, because history does not know how to account for them, and history resists them, because it can get away with it.”

 

This is true in the case of traditional and bourgeois interpretation of history, or of Philippine history, for that matter. Accounts of the 1896 Philippine revolution and the ensuing Filipino-American War from 1899 to 1902 focused on the exploits of so-called leaders and less on the contributions of ordinary folks and soldiers who had remained both faceless and nameless throughout the armed conflict that resulted in more than 20,000 Filipino deaths. The name of Emilio Aguinaldo was mentioned in most of these accounts perhaps by well above a significant number of times than Andres Bonifacio who was acclaimed the leader of the Philippine revolution. Naturally so because in the context of power and social status, Bonifacio was illiterate and was born to a poor family. Whereas Aguinaldo was educated and a member of the landed gentry.

 

During the resistance against Japan, General Douglas MacArthur and the US military were remembered as the significant personalities in the liberation of the Philippines, with little highlight given to the Hukbalahap and Filipino guerrilla movement. Between 500,000 and 1,000,000 Filipinos died during the Japanese occupation, yet written history glossed over this fact and focused most entirely on the return of General MacArthur during the liberation period as a bigger than life hero.

 

The same is true with the expulsion of the dictator Marcos in 1986. After the downfall of the dictatorship, glowing accounts were written about the martyrdom of Senator Benigno Aquino Jr. and some members of his UP fraternity, singling out their supposed objection to the repressive rule of their fraternity brother. Except for the assassination of Senator Aquino who was Marcos’s formidable political opponent at that time, the alleged contributions of the rest or other members of their college fraternity in disposing Marcos were overrated and perhaps simply the handiwork of the Philippine media which they had great influence over.

 

The German literary critic and philosopher Walter Benjamin spoke of such events as an attempt to “seize hold of memory as it flashes up in a moment of danger.” Because such moments do not turn into history, they lose their shape, and turn into stupid self-parodies, legends, nonsense or old stories told by cranks.

 

The re-election of Marcos to the presidency in 1969 signaled the stirrings of a dictatorship in the making, which became apparently clear when he declared martial law three years to his second term, thus paving the way to his unchallenged stranglehold of political power. Our friend Ms. Inglesera who sang praises to the dictator’s fraternity brothers failed to mention that the said fraternity or its more famous members she singled out never led, planned, or conspired a robust and widespread challenge, whether on the streets or the illegal underground. It was left to national democratic organizations which were declared subversive and illegal associations at the time to plant the seeds of resistance that culminated in the 1987 EDSA Revolution. Here again was another historical anomaly – the people’s success in driving the dictator out of the country was snatched by the powerful oligarchs and their friends in big business and newly-minted allies in the military establishment.

 

In writing about the history of the people’s resistance against the Marcos dictatorship, ignorance of things past seems to be the easier tendency, thus sustaining the earlier argument made by Marcus that power writes history. That is exactly what Ms. Inglesera did, by cherry-picking on better-known personalities of the time who incidentally were members of a leading UP fraternity and intentionally ignoring the nameless but true heroes of the revolution.

Leaders of the Marcos opposition stage a protest march in October 1984.

I had very close friends who were killed in the prime of their youth during the oppressive years of the Marcos dictatorship, two former companions in the struggle who were recently detained in peace time by the military for sticking to their political convictions, and met hundreds of thousands of nameless fellow marchers in street rallies against Marcos, but alas they will be continually ignored and forgotten as mere part of the landscape of protests and demonstrations.

 

So unlike Ms. Inglesera’s favourite names from the past whom she would display in her pedestal of fame: the fateful fraternity brothers of the dictator who did nothing close to the sacrifices of the faceless genuine makers of history. Since she assumes that she is entitled to her own opinions, she can choose or name people she believes made or are making history. 

 

American writer and former editor of Harper’s Magazine Lewis H. Lapham wrote: “History is a work in progress, a constant writing and rewriting as opposed to museum-quality sculpture in milk-white marble.” Every era changes its interpretation of the past to fit the present context. It is the task of the historian to find the facts that will prove the truths of his or her interpretation.

 

Friedrich Nietzsche wrote in On the Use and Abuse of History that while we need the services of history, we must also accept that an excess measure of history will do harm to the living. This is particularly true when talking about distortions or misunderstanding of history, in the sense of being restrained by the past in current action, which has a limiting effect on the intellect.

 

By deftly cataloguing her sources to puff up the deeds of the band of fraternity brothers Ms. Inglesera has chosen to pay homage to, she has fallen to the similar ploy taken by others who simply regurgitate the events of the past and nothing more. Old news, as someone would be apt to say. How we define the past, not to simply glorify a particular few we personally like and want to be on our side, is a matter of importance because it points to the future we are trying to construct.

Continuing history after Marcos

 

 

I recently read Raïssa Robles’ blog about the return of the Marcoses to power (http://raissarobles.com/2014/02/09/stopping-the-marcoses-from-erasing-their-crimes-from-history/)  and how certain of our cultural norms are enabling and helping them obliterate their crimes from the history of our country. It’s an interesting and a provocative piece of writing although I don’t fully subscribe to the author’s argument that our culture is partly responsible for the restoration of the Marcos political dynasty, and its recent resurgence because of persistent talks about the possibility of the former dictator’s son and namesake running for the presidency.

Former Philippine dictator Ferdinand Marcos and his wife, Imelda Romualdez-
Marcos, as the country's Marahas and Mapurot (ugly and undesirable).

What completely surprised me after reading Ms. Robles’ blog is the sorry state of history as a major field of study in university, which she rightly wrote is vital for a nation in documenting lessons from the past. Ms. Robles wrote: “to this day, The History of the Filipino People written by UP historians Teodoro Agoncillo and Milagros Guerrero – which a lot of schools continue to use as their history textbooks – has not been updated to include the Marcos years and the years afterward.”

 

I still have the 1974 edition of Agoncillo’s Introduction to Filipino History which we brought with us when we moved to Canada in 1987, a copy to remind us and our then- still-young children of our roots. The last chapter of the book was about the New Society, a phrase Agoncillo used only once in the book, perhaps revealing his great discomfort in using it, although the short chapter encapsulated the early crisis that Marcos alluded to from 1966 until he declared martial law in 1972 and changed the Constitution in 1973 to provide legitimacy to his dictatorship.

 

But Ms. Robles is on the correct side of history when she decried the lack of updating in Agoncillo’s book, or other history textbooks, to include the Marcos years and the years after his fall from disgrace. A saying from the philosopher George Santayana aptly reminds us why this is important: “Those who do not remember the past are condemned to repeat it.”

 

It is not that there has been a great failure in documenting the events of the Marcos dictatorship which prevents their scholarly publication for use in the teaching of history and as a guide for us in remembering the past. There are plenty of written accounts in newspapers, magazines, local and foreign journals, archival reports, congressional and government records, and other influential books that can be used in accumulating the information needed to update our history. In addition, many survivors of the Marcos era are still alive and they can offer oral histories or personal accounts of what transpired during those repressive and cruel years of dictatorship.

 

In every transition from repression to freedom, many governments such as those in Argentina, Chile, and South Africa have established Truth and Reconciliation Commissions, not only for the purpose of documenting the repression the people have suffered under the old regime, but also to identify remedial measures which may be necessary. Unfortunately, the current president’s mother, former President Cory Aquino, put a brake on past efforts to create a similar commission after Marcos was driven to exile because of pressure from the military. The invisible hand of the United States’ government could also be partly responsible for this obvious ploy to expunge the memory of the Marcos dictatorship which it nurtured and supported.

 

Ms. Robles mentioned that Berlin has established a documentation centre of Nazi crimes during the war, as noted by her husband, journalist Alan Robles. Schoolchildren in Berlin are being taught of Hitler’s crimes to remind them of the horrors of the Nazi regime. Similarly, we also need to educate our children of the crimes of the Marcos’ martial law years and the rise of crony capitalism which continues to survive. My wife, who is also a writer and a classmate of Ms. Robles’ husband at the International Institute of Journalism in Berlin, was equally disturbed that Agoncillo’s book and other Philippine history books have not undergone an updating after the fall of the Marcos dictatorship considering we have so much archival information that can be used.

 

There are four cultural norms that Ms. Robles mentioned in her blog which she argued are being exploited by the Marcos’ political clan and their supporters in propagating their twisted version of reality. These are: respect your elders, do not speak ill of the dead, forgive your enemies, and do not bring the sins of the father on his children. All these so-called social practices are shallow and superficial and they only make light of the crimes committed by the Marcos dictatorship by reducing their culpability. We do not invoke such norms when confronted with the serious gravity of crimes committed against our people. We have long learned and appreciated the clear distinction between right and wrong, and these cultural norms that Ms. Robles mentioned do not by any means mitigate the crimes committed by a dictator against his own people.

 

Noam Chomsky wrote that memory and consciousness of what’s happening right in front of you must be repressed, because once the public comes to understand what’s being done in its name, they would resist and disallow it. This is what exactly was done during the martial law period, and Ms. Robles mentioned it in her blog. Marcos shepherded all the young intellectuals during that time and transformed them into propagandists and mouthpieces of the New Society. The Marcos propaganda machine took care and rewarded them well to crank out glowing and flattering accounts and achievements of the New Society. In other words, they were co-opted by the dictatorship. As soon as the Marcos regime had fallen, these intellectuals would cross the divide to become spokespersons and members of the government think-tank. Now they are either writing and regurgitating daily opinion columns for prestigious local newspapers or serving in the high echelons of government, and for whoever is elected president of the country. Loyalty seems so fungible that ethics or morality doesn’t even matter at all.

Propaganda. Photo courtesy of love unrefined.

Erasing memory and consciousness is the main reason for propaganda. Otherwise, there’s no point to it. Those in systems of control and power never tell the truth, if they can get away with it.

 

The only alternative in bridging this gap between the Marcos years and the present is in scholarship and the academe. Not that academia is totally resilient or immune to government influence, but there is hardly any place left to start this odyssey of reconnecting the past and the present but in the halls of the university. There is a need to fund such scholarship, perhaps through a foundation composed of the survivors of the martial law era and those who do not wish to repeat the past.

 

Ms. Robles’ blog must stir at least the consciousness of those who still yearn for a society that treasures freedom and dignity more than any materialistic achievement. Perhaps, it’s also time to create a new breed of intellectuals to replace the old generation who has betrayed the public.

 

In his book, Necessary Illusions, Chomsky wrote that citizens of democratic societies should “undertake a course of intellectual self-defence to protect themselves from manipulation and control.” In other words, we need to train ourselves to ask the obvious questions, and learn how to be skeptical. For example, if all political commentators are all in agreement with President Noynoy Aquino’s crusade against corruption but differ only on the means of achieving this noble goal, we should instinctively take a few minutes of our reflection to see that this can’t possibly be true. If everyone takes for granted something that cannot possibly be true, what does that make of our value systems and culture as a whole?

 

Any government is founded on opinion, and this extends to the most despotic and most militaristic governments, as well as to the most free and most popular. Rulers rely on consent, whether a state is democratic or totalitarian. The state must ensure that the people do not understand that they actually have the power. To Chomsky, this is the fundamental principle of government.

 

There are many ways by which the government can control the governed. We don’t need special skills to figure what these are.

Depoliticizing Malampaya

 

 

So much of the controversy about the Malampaya Fund focuses on whether the President has the authority to use the Fund for purposes other than to finance energy resource development and exploitation programs as originally intended.

 

While the Malampaya gas field off the shores of Palawan would be discovered 18 years later, this is the intent of the Special Fund established by Presidential Decree 910 issued by Ferdinand Marcos during the second year of martial law in 1973. The aforementioned Fund shall be collected from fees, revenues, fines and penalties under the old Petroleum Act of 1949, as well as the government’s share representing royalties from service contracts and similar payments on the exploration, development and exploitation of the country’s energy resources.

The Malampaya Natural Gas Platform on the Palawan shore

The controversy surrounding the Malampaya Fund, however, is not just about the shifting of government funds, which came about only after the Commission on Audit reported that P900-million from the Fund were allegedly diverted to bogus NGOs by the pork barrel queen, Janet Napoles. This was on top of the enormous P10-billion congressional pork barrel that was also attributed to the plundering Napoles.

 

At the outset, the Malampaya Deep Water Gas-to-Power project—inaugurated in 2001 and now the biggest single source of the President’s Special Fund—is a Pandora’s Box filled with schemes of fraud, abuse of political power, usurpation of legislative authority, violation of the Constitution, and a host of possible irregularities by the current and previous administrations.

 

One of the largest and most significant industrial endeavors in Philippine history, the Malampaya natural gas project was considered a milestone for a country that has been hitherto been solely dependent on imported fuel. Malampaya changes this dependency as it now provides 40 to 45 percent of Luzon’s power generation requirements, thus enabling the Philippines to import less fuel for power generation.

 

Led by the Philippine Department of Energy (DOE), the Malampaya project was developed and operated by Shell Philippines Exploration B.V. (SPEX) on behalf of joint venture partners Chevron Malampaya LLC and the PNOC Exploration Corporation. At first blush, the project appears to be a perfect model for public and private cooperation, until one understands the investment structure and profit sharing arrangement of the Malampaya project.

 

When inaugurated in 2001, the $4.5-billion Malampaya natural gas project is and remains the largest single foreign investment in the history of the Philippines. The project is 45% owned by Shell Philippines Exploration, 45% by Chevron-Texaco and only 10 percent by Philippine National Oil Company (PNOC). What seems wrong with this picture?

 

Shell and Chevron-Texaco thus control virtually all of the country's proven natural gas reserves, and at the same time, ensnare the largest share of benefits from its exploitation. In return for their investment, Shell and Chevron-Texaco expect to get $14 billion back over 20 years, or P574 billion at current exchange rates.

 

What does the Philippine Constitution say about foreign exploration, development and utilization of our natural resources?

 

Article 12 of the 1987 Constitution allows ventures or production-sharing agreements with foreign companies up to 40 percent capitalization. This means that at least sixty percent of the capitalization of such joint ventures or projects must be owned by Filipino citizens.

 

The Malampaya natural gas project was an exception, if not an anomaly. It clearly violates the Constitutional limit on foreign capitalization to 40% on exploration, development and utilization of natural resources. The Philippine government has therefore allowed Shell and Chevron-Texaco to disproportionately benefit from our natural gas resources against the interests of the country.

 

In addition to their return on investment, Shell and Chevron-Texaco would also benefit from significant incentives under Presidential Decree No. 87 of 1972, the precursor to PD 910, and other related decrees leading to the creation of the Department of Energy. Among these incentives are tax credits that are exempted from income taxation, duty-free importation and unrestricted entry of foreign personnel. There could be more but without Freedom of Information legislation, the average Filipino would never know the exact details of Service Contract No. 38 that granted Shell and Chevron-Texaco free rein to exploit our natural gas reserves. The government also failed to negotiate any kind of meaningful technology transfer, which is important if we wish to end our perpetual reliance on foreign firms for exploitation of our energy resources.

 

Is it too late to correct this situation?

 

The current Constitution of the Philippines, which was adopted after the fall of the Marcos dictatorship, provides that existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. Quite clearly, all presidential decrees made by Ferdinand Marcos are inconsistent with who has legislative authority under the Constitution. Besides, how can one morally justify perpetuating the vestigial decrees of a much-hated dictatorship? It amounts to continuing the dictatorship and its oppressive laws.

 

The Malampaya natural gas project is clearly unconstitutional because it violates the provisions of the Constitution on national economy and patrimony. The Special Fund created by PD 910 could likewise be inconsistent with the present Constitution because it was a law not passed by Congress but issued by a hold-over president under a dictatorship. If we can borrow an analogy from criminal law, the provisions of any presidential decree issued by Marcos during his dictatorship are tainted and are fruits from the same poisonous tree. We should junk all presidential decrees issued by the Marcos dictatorship if we are serious in enforcing the constitutional delineation of the power to legislate.

 

In the words of Supreme Court Justice Antonio Carpio, “PD 910 is functus officio [no force or authority].”

 

In view of the huge royalties from the Malampaya gas project, it appears ludicrous that allies of President Aquino in Congress would now like to amend PD 910 insofar as limiting the Special Fund to the financing of energy–related projects. President Noynoy Aquino apparently wants his authority to use the Special Fund for other purposes be clearly defined so that it would give him the discretion to use the Fund as he pleases. Of course, Congress can pass a law to this effect which makes it more legally palatable under the Constitution instead of relying on the provisions of a Marcos-issued presidential decree.

 

Even if Congress amends PD 910 or enacts a new law that would define and expand the authority of the President in using the Malampaya Fund, this is not a foolproof escape route from the onerous provisions of a martial law presidential decree and it will certainly not prevent misappropriation and misuse of the Fund and future pork barrel scams. By and large, it only enhances the probability of more abuses and opportunities for economic plunder by this administration and succeeding governments since the pie would be significantly enlarged, not to mention the broad discretion to use it.

 

It was estimated that the Malampaya project would yield over P12 billion annually in royalty shares for the national government. In 2012 and 2013, the royalty shares reached $1 billion or P40 billion annually.

 

During the Arroyo Administration, about P25 billion was spent while P15 billion has been used under President Noynoy Aquino. The Malampaya royalty will get larger and the opportunities for its misappropriation and abuse will increase exponentially. In fact, the Malampaya Fund has become a huge political pork barrel.

 

There is also an ongoing dispute before the Supreme Court regarding the legal framework on natural wealth sharing. Under the Local Government Code, the local government unit where a natural gas field, in this case the Malampaya gas project, is located gets 40 percent of the royalties while the national government, 60 percent. But Palawan has been denied by the national government of its share and it’s taking the Supreme Court an inordinate time to rule on the territorial jurisdiction issue.

 

The interim sharing between the national government and Palawan has not been subjected to public scrutiny and transparency. Although an initial release of P3.9 billion to Palawan has been made in 2008, the disposition of the fund did not follow the general provisions of PD 910 which prescribed that 80% must be spent in energy-related projects benefitting the local population.

 

As it was the case for the congressional pork barrel, local political leaders determined the projects and manipulated bidding rules to favour certain public works contractors. Like the Napoles pork barrel scam, there were ghost and overpriced projects.

 

To reverse the current situation, Congress must regain its power to legislate under the Constitution by revoking all presidential decrees issued by the Marcos dictatorship. It must exercise congressional oversight of the Malampaya royalty fund, with the end in view of depoliticizing the fund as a pork barrel.

 

In addition, the Supreme Court should now decide on the sharing arrangement between the national government and Palawan: the Malampaya royalty should be used where the law intends it to and the local population gets the benefits from the exploitation of their natural resource.