SC already okayed military involvement in Customs way back in 2000

“A LITTLE knowledge is a dangerous thing,” says that adage attributed to the 18th century poet Alexander Pope. The brouhaha over President Duterte’s plan to mobilize the military to clean up the Bureau of Customs (BoC) is such a perfect demonstration of the truth of that aphorism.

Right after Duterte announced his plan when he got fed up with the drug traffickers’ success in smuggling P7 billion or more worth of shabu right under the noses of Customs officials, there was a flurry of instant constitutional experts — mostly stragglers of the Yellow Cult — hysterically shouting that this is unconstitutional, pointing to Section 5 Article 16 of the Constitution.

“Malinaw na ilegal, malinaw na unconstitutional, isang impeachable offense ang ginagawa ni Pangulo dito kasi talagang culpable violation of the Constitution,” law professor Antonio La Viña pompously declared. For chrissake, La Viña is a former dean of the Ateneo School of Government. Does that explain why that school which has been the base of the Yellow Cult has been churning out so much garbage? One writer in an astonishing flight of imagination even saw Duterte’s move as his scheme to lure military men into corruption, and thus make them subservient to him!

The constitutional provision they claim that Duterte is violating “so clearly” reads: “No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including government-owned or controlled corporations or their subsidiaries.” 

I was astonished why these instant experts on the Constitution wouldn’t believe that Duterte, a San Beda-educated lawyer took courses and exams on constitutional law that he wouldn’t have forgotten that section.

I was also stupefied why they don’t have the common sense to understand that Duterte won’t and can’t certainly be appointing “in a concurrent capacity,” say, AFP Intelligence Service Army Brig. Gen. Macairog Alberto to head Customs intelligence or Marine Col. Edgard Arevalo (the current Armed Forces spokesman) as Customs spokesman — and give them the compensation and benefits for the pay-grades for these posts. Even civil service laws prohibit that, since government employees can have only one salary. Either for example, Alberto has a military position or he is not, which he can be if he resigns first from the service. You don’t need a constitutional provision to require that.

Secondment
This conundrum as I wrote in my column last Wednesday is resolved with the concept of secondment: “Haven’t they heard of the concept called ‘secondment,’ when men in uniform are assigned to civilian tasks on a temporary basis without giving up their military posts? It has been routine for military and police officers to be seconded to the Office of the President (and even to other departments) as aides to the president.”

I am grateful to Singapore-based lawyer Franklin Tan for his recent column in the Philippine Daily Inquirer — yes, the Inquirer, believe it or not — for pointing to the actual case decided by the Supreme Court that ruled that such secondment doesn’t at all violate the Constitution.

The unanimous Supreme Court decision (G.R. No. 14128) issued August 15, 2000 was in response to a case filed by the Integrated Bar of the Philippines that year which asked the high court to rule as unconstitutional President Joseph Estrada’s deployment of Marines to join the Philippine National Police in patrols in order to in counter the rise of violent crimes.

The IBP claimed it violated that provision now cited by those opposing Duterte’s move to clean up Customs of its decades-old corruption by getting the help of the military.

The high court dismissed the IBP’s suit, and declared Estrada’s actions as not violating the Constitution at all, and does not counter the republican dictum of civilian supremacy over the military. Significantly, it pointed out:

“The President is not only clothed with extraordinary powers in times of emergency but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision.

Discretionary power
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.”

The Court pointed out: “The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement…. There can be no insidious incursion of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.”

The Court ruled: “Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian positions to speak of.” I don’t think Duterte would be so stupid or ignorant of the Constitution as to give military men what are called “plantilla” positions in Customs.

But of course our instant constitutional experts would say that this case is different from the military being mobilized to clean up the Bureau of Customs. They are dead wrong

The court noted: “Military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally civilian functions.”

The court listed seventeen examples of military involvement in civilian operations, among these the conduct of elections, relief and rescue operations during calamities and disasters, conservation of natural resources, implementation of the agrarian reform program, and the conduct of the census.

Customs laws enforcement
Guess what? Number 8 in the Supreme Court list is: “Enforcement of customs laws.” A footnote in that item explains that military involvement was even authorized in Executive Order No. 45 of 1998 which created a Presidential Anti-Smuggling Task Force against smuggling, that included military men.

Number 12 in that list of military involvement in civilian functions is s “anti-drug enforcement activities.” Again, a footnote there explains that military involvement in that case was ordered by Executive Order No. 61 of 1999 which created the “National Drug Law Enforcement and Prevention Coordinating Center,” which again had military men as members and operatives.

Wasn’t Duterte’s order precisely for the military to enforce Customs laws and to undertake anti-drug enforcement activities, which that Supreme Court ruling in 2000 said wasn’t violative of the Constitution?

Columnist Tan in lawyerly fashion also raised that little-knowledge-is-a dangerous-thing adage when he pointed out: “One cannot claim a constitutional violation simply by citing constitutional provisions, without applying these to concrete facts.”

There’s another adage for these instant constitutional experts, a biblical one even (Proverbs 29:20), so applicable to Ateneo’s La Viña: “Do you see a man who is hasty in his words? There is more hope for a fool than for him.”

 

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