GADIAN’S DILEMMA:BANTAY SALAKAY (AN INSIDE JOB)


With the 9th Division of the Court of Appeals granting Navy Lt. Sr. Grade Nancy Gadian a Protection Order, the latter has without a doubt, been vindicated. Obviously, we, – Lt SG Mary Nancy Gadian and her lawyers and supporters – are also elated and grateful to both the Supreme Court for granting her a Writ of Amparo and to the Court of Appeals for the Writ of Protection order extended to her. In granting both the writ of Amparo and the Protection order in less than one month in record time, our courts have also upheld the efficacy of the writ of amparo as a means to protect the most important human right of them all: the right to life.

The CA decision is also significant since it is the first time that the ruling of the Supreme Court in the case of Secretary of Defense vs. Manalo et al., was literally applied. Until the case of the Manalo brothers, it was incumbent upon the Petitioners in Amparo cases to prove – and here previous CA decisions apparently required proof beyond reasonable doubt when the rules require only substantial evidence – the actual threat to ones life, liberty and security, as well as the authorship of these threats. But applying now the decision in the case of the Manalo brothers, the CA applied instead the correct standard, that is freedom from fear from a threat to one’s life, liberty and security. While the CA did not Order the respondents to cease and desist from making threats which the CA said was not proved by Petitioners, still the Court, as Lt. SG Gadian argued, ordered the AFP leadership to investigate these threats. This part of the decision implements our Treaty obligation relative to the right to life under the International Covenant on Civil and Political Rights (ICCPR) which includes both the duty to protect and promote the right to life, along with a duty to investigate , punish and prosecute those who may even wish to violate the right to life.

While Gadian has good reasons to be truly elated with the CA decision, we at the Center for International Law (CENTERLAW) who acted as her lawyers for the Petitioner, her sister Nedia Diamante-Gadian, still have reasons to be very concerned. This is because while the court gave credence to Gadian’s complaint that the threat on her was emanating from yet unidentified persons in the military, the CA decision nonetheless ordered the Secretary of National Defense to protect her. Even prior to the CA decision, the Secretary of the DND has publicly offered to protect Lt. SG Gadian. This, however, we rejected for at least two reasons: one, the fact that the Secretary of the DND has shown himself biased in favor of the military hierarchy that he still heads. In fact, in a statement dated May 23, 2009 which the Secretary caused to be distributed to the media, he cautioned the CA in granting Gadian’s petition : “We are hoping the court will be careful in reviewing the petition and the circumstances behind it as well as granting such relief as this could affect the chain of command and the implementation of the disciplinary system in the military.” This is a clear indication that the Secretary, now tasked with protecting Gadian, is more concerned with the military chain of command than Lt. SG Gadian’s right to life. Second, the DND, albeit in civilian in character, could only extend protection to Lt. SG Gadian through its military personnel. This was unacceptable and continues to be so because of the obvious security risk posed by military personnel protecting a military whistleblower whom the CA found is the subject of threat emanating also from the military institution.

This is why it is now imperative for the Supreme Court to proceed forthwith to accredit private providers of safe havens to implement protective orders issued by our courts in Amparo cases. Unless this havens are accredited as soon as possible, we will have further repeats of what appears to be a ludicrous scenario: protection to be provided by the same institution responsible for the threats to begin with.

It is hence our intention to partially appeal the CA decision on the matter of who should provide protection to Lt SG Gadian. We will ask the Supreme Court to amend the appellate Court’s Order to allow the Association of Major Religious Superiors to continue to provide protection and sanctuary to Lt. SG Gadian, but with a further plea that the Head of the Human Rights Office of the Philippine National Police should provide her and the AMRSP with 24 hour security and protection.

Dangerous Seas


 

The collision between a Chinese submarine and an underwater radar being towed by a U.S. military ship in waters off the coast of Subic underlies the security threats to the Philippines caused by the recent passage of the new baselines law. This recent incident shows how the Philippine waters could become a danger to itself.

 

On June 14, a Chinese submarine bumped against the sonar equipment of the USS John S. McCain, a guided missile destroyer.  The sonar is attached to the McCain by a long cable, and is used to remotely detect objects underwater.

 

Our 2009 Baselines Law is largely based on the United Nations Convention on the Law of the Seas. Before the law was passed, the waters in and around the islands of our archipelago are “internal waters.” Under this doctrine, foreign vessels, including submarines and warships, can only “sail through” our internal waters after getting the Philippine government’s express consent. Under customary international law, these vessels are also allowed to sail through our “territorial seas,” or the waters within 12 nautical miles from our baselines.

 

Under the new baselines laws, the waters in and around our islands are now classified as “archipelagic waters.” Under this doctrine, submarines and warships not only have the right to innocent passage, but aircrafts may also exercise the right to overflight, with our without our consent. This is precisely why concerned citizens led by Prof. Merlin Magallona of the University of the Philippines College of Law challenged the constitutionality of the said law before the Supreme Court.

 

Philippine and American authorities insist that the collision happened in international waters, despite wire reports that the collision happened near Subic, a former American naval facility. Philippine authorities understandably insist upon this as the incident is a realization of one of the security dangers already earlier raised by concerned citizens before our court. At the very least, the collision inspires fresh debates over security concerns that have become real.

 

To begin with, while the UNCLOS grants submarines and warships the right to exercise innocent passage through territorial seas and archipelagic waters, this must be done in the context of a continuous and uninterrupted journey requiring passage through these waters. It is a long stretch to justify as innocent passage the presence of an American destroyer towing a sonar array in close proximity to a Chinese submarine near a former US naval base. It is also important to point out that the waters off Subic are not used as established sea lanes – the South China Sea already serves that purpose.

 

Philippine Navy officials have admitted they did not receive any request from either the Chinese or the Americans to allow their respective vessels passage through our waters. Apparently, the Philippine Navy is ready to conclude that in the absence of such a request, the collision could only have happened in international waters. The problem with this explanation is that it accords the superpowers too much benefit of the doubt. The more plausible scenario is that the two military vessels were shadowing each other. Why so near the Philippines? And even if we grant that the collision happened outside Philippine territories, why is such shadowing of each other happening in waters that are characterized by conflicting territorial claims?

 

It is very revealing that the two military vessels could afford to be nonchalant in their brazenness off the coast of Subic: the Arroyo government is subservient to both Beijing and Washington DC.

 

The Philippine Constitution provides that the Philippines is a nuclear free zone. How does the government now reconcile this provision with the new baselines law that effectively allows all vessels, including those carrying nuclear materials, access to almost the entirely of our waters? In the event of radioactive contamination resulting from a collision similar to this recent one, who will pay for the cost of clean up?

 

Finally, it is worrisome that Philippine officials habitually seek refuge from the doctrine of classified information on ground national security in refusing to divulge all facts relating to this collision is particularly worrisome. The fact that our waters could already be used by superpowers as theaters for war certainly makes this matter one imbued with intense public interest. And yet, the refusal of all powers concerned to even acknowledge where exactly the collision occurred violates the right of the Filipino people to information on matters involving public interest. This is perhaps why the incident is living proof that our waters, particularly with the Baselines law,  have indeed become dangerous seas.