POSTSCRIPT / October 20, 2016 / Thursday
What price is Du30 paying for Panatag?


HAGGLING with the Chinese is always fun, yet tricky to the uninitiated and the faint of heart. But then Filipinos have a tough President Rodrigo Duterte to negotiate for them in Beijing.

Haggling is time-consuming. The beauty of it is that both buyer and seller know that they are just making tawad (bargaining) unmindful of any occasional unintended offense — and in the end both parties feeling they brought home a good deal.

In Beijing, with the preliminary haggling already done by subordinates, the final options and sticky main points are left to President Duterte and his Chinese counterparts to decide.

By his repeated cursing of the United States, calling its president and ambassador names and threatening to cut ties, et cetera, Duterte has performed his own preliminaries to the delight of his hosts in Beijing.

Scanning his long shopping list, we think his top priority, and most difficult case, is having Panatag (Scarborough) shoal off Zambales reopened to Filipinos. Aside from protecting Philippine sovereign interests, Duterte has to show concern for displaced fishermen.

On the other hand, sharing Huangyan Dao (Chinese name of Panatag) with Filipinos must be difficult for China, especially if it has plans to use the area to consolidate control over crucial maritime lanes.

Panatag’s strategic location and resources dwarf the package of projects under an enhanced partnership in trade and investments – estimated to be worth some $3 billion – fattened by side contracts that a planeload of businessmen from Manila are eager to close.

• Camouflaging the Panatag issues

NEGOTIATING access to Panatag appears to be at the center of Duterte’s four-day state visit. China is expected to reject it or exact a heavy price for it.

His hosts could pressure Duterte to gloss over the recent ruling of the Permanent Court of Arbitration in The Hague that the “nine-dash line” basis of China’s claiming some 90 percent of the South China Sea is against international law.

For China to give up its exclusive hold on Panatag, which the tribunal said was unlawful, would amount to its accepting the arbitral verdict. Beijing has refused steadfastly to do that.

Besides, although the ruling was issued on petition of the Philippines, its implications on neighbors that are not a party to the case but have similar overlapping claims are devastating.

We doubt if Duterte is ready to throw away the landmark award that the Philippine government worked hard to get. Turning his back on it in exchange for Panatag could raise accusations back home of a $3-billion sellout.

Maybe the possible fallout on both China and the Philippines, and the consequent loss of face, could be minimized by the clever camouflaging of Panatag issues.

To buy time and avoid embarrassment, they could initially agree “in principle,” with the access details to be ironed out in subsequent negotiations. (This “postponement” will not sit well with the Manila crowd.

Or in the joint statement announcing some agreement, the two parties could avoid direct mention of the Permanent Court of Arbitration award and the United Nations Convention on the Law of the Sea.

Since the award said Panatag should be opened to all nationals who traditionally fish there, the statement could invoke instead “tradition” and possibly “historical basis” (as China has used the term to justify its “nine-dash line” claims).

China itself need not say so, but such opening of Panatag could be interpreted by third parties, including the media, as effective compliance with that aspect of the arbitral ruling. That could help save face for Beijing.

To look good, the neighbors (later possibly with Vietnam whose nationals also “traditionally” fish there) could draw up an understanding on common use, harvest quotas, resource conservation, safety and security, mutual assistance, and whatever else.

• EJK is murder; abetting it is a crime

THE ISSUE of extrajudicial killings (EJK) , meanwhile, refuses to vanish as cadavers of suspects in drugs-related cases pile up. Latest reports place at around 4,000 suspects shot dead by the police and vigilantes since July 1.

To help explain the phenomenon that has caught the attention of the International Court of Justice, we share below excerpts (edited to fit) from an article of Mel Sta. Maria, resident legal analyst of TV5 and dean of the Far Eastern University Institute of Law:

“In the Philippines, death as punishment cannot be meted out by human beings on human beings. Rep. Act No. 9346 prohibits the death penalty. This is the societal imperative all must observe.

“No one is above the law. Not even the Supreme Court can order death as punishment; neither can the President. For the death penalty to be imposed, the law must be amended to allow it. But even with an amendment, the President still has no power to order the killing of people because only the judiciary can impose punishment.

“Any death sentence ordered by any other entity or person outside of the courts is extra-judicial. And if the order is carried out, it is EJK — the commission of murder no less.

“Although it is not yet a legal term in our statute, EJK is now specially used to highlight its gravitas over and above the other types of murder — the brutal extermination of ordinary people, especially the poor, caused or executed by state and non-state actors.

“Because EJK is a crime, every time President Duterte says ‘I will kill you’ or when he said, referring to 3,000,000 drug addicts, ‘I’d be happy to slaughter them,’ he, the head of state, conveys a deadly message discordant with the rule of law.

“The declarations may be taken as encouragement, especially for people in authority like Philippine National Police officers, to have the same motivation and objective. Put into action and ultimate fruition, it is EJK.”

(Next time: What could happen if ICC stepped in?)


(First published in The Philippine STAR of October 20, 2016)

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