Palace: BOC lawlessness prompted AFP takeover

MANILA, Philippines — “Lawlessness” and a “state of lawless violence” in the Bureau of Customs (BOC) prompted President Duterte to place what he had acknowledged as a corrupt agency under military control, Malacañang said yesterday.

Presidential spokesman and legal adviser Salvador Panelo said it is within the Chief Executive’s constitutional mandate to protect the people from all forms of “lawlessness,” including tapping the Armed Forces of the Philippines (AFP) for help.

“And let us not also forget that earlier on, the President has declared a state of lawlessness, and the provision of the Constitution says when there is lawless violence, then the President can call out the AFP,” Panelo said in reaction to criticisms that the Duterte administration was militarizing the bureaucracy in violation of the Constitution.

Duterte issued Proclamation No. 55 declaring a state of lawlessness in the country on Sept. 3, 2016, following a deadly blast in Davao City that killed at least 14 people and wounded more than 60 others.

In issuing the proclamation, Duterte referred to Section 18 of the Constitution, which states: “The President shall be the commander-in-chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.”

Panelo said the illegal entry of shabu through the country’s ports constituted a violation of law and that the alleged rampant corruption in the BOC could be counted as a situation of “lawless violence.”

“Definitely, when you say lawless violence, it’s not just physical violence. You do violence to the Constitution, you do violence to the law, that’s a state of lawlessness,” he said.

“Now, the lawless violence would certainly refer to what is happening in BOC. There is a state of lawlessness there. If you can bring in hundreds of kilos of drugs, there must be some grave wrong in that area. And there is state of lawlessness there, it violates the law, it violates the Constitution,” Panelo added.

“Now, it endangers the security of our countrymen. Certainly the President will have to do something about it,” he said.

“You cannot let this President be hostage to a particular provision without relating to previous provisions that grant him the authority as well as the obligation and the duty to serve and to protect this nation,” Panelo added.

Panelo clarified, however, that active members of the military would not be appointed or designated to civilian positions.

“They will be assigned to the BOC to oversee that all operations are in order, and ensure that all laws are strictly enforced in all processes undertaken therein,” he said.

It’s up to the new BOC leadership, he said, to determine if military personnel would be allowed to carry firearms while overseeing operations at the BOC.

President Duterte put ranking BOC officials under floating status and transferred its chief Isidro Lapeña – a retired police general – to the Technical Education and Skills Development Authority (TESDA) amid the controversy over the alleged smuggling of P11 billion worth of shabu through the Port of Manila.

But Duterte cleared Lapeña of any criminal wrongdoing, saying the latter was just being negligent.

For the President, negligence on the part Lapeña’s predecessor Nicanor Faeldon also explained the entry earlier this year of P6.4 billion worth of shabu, also through the Port of Manila.

Appointed as Lapeña’s replacement at the BOC was Maritime Industry Authority chief Rey Leonardo Guerrero, a former AFP chief of staff.

Civilian authority

 Panelo also emphasized the preeminence of civilian authority despite the deployment of military personnel at the BOC.

“With such mandate, our republic possesses a civilian leader who is also the head of the military,” he said.

“There are certain quarters that question the issue on constitutionality but then again… the provisions of the Constitution are very clear. One, it says that civilian authority is supreme cover the military, the President is precisely the head of government, the head of state and so when he makes that order, it is constitutional,” he said.

Panelo cited a provision in the 1986 Constitution, justifying the deployment of soldiers in the BOC.  He also stressed there was no break in the chain of command in the AFP since the President had directed AFP chief Gen. Carlito Galvez to coordinate with the newly appointed BOC chief.

“That no AFP member can be appointed or designated – the President is not appointing or designating any particular member of the AFP,” he said.

He said soldiers at the BOC would “make their presence felt, to create the military presence and hopefully will intimidate those corrupt people there.” 

He maintained that Duterte’s order is based on the Constitution.

“Ours is a civilian President who functions as both Chief Executive and Commander-in-Chief of the Armed Forces. In instructing men from the AFP to ensure that all laws are enforced within the Bureau of Customs, the President is merely exercising his constitutionally mandated functions,” he said.

As provided for in the 1987 Constitution, the President has control over all executive departments, bureaus and offices, Panelo explained.

“The BOC is certainly an executive office, over which the President has control. Therefore, our fundamental Charter permits the President to direct people he trusts to perform the duties ascribed to the said bureau,” he said.

“The recent order of the President to the military is likewise in line with – and is actually part of – the latter’s constitutional role in securing the integrity of our national territory, which necessarily covers the BOC,” Panelo said.

“Time and again, the President assures everyone that as a lawyer, he knows the limits of the power and authority of his office. Hence, our people can be assured that the directives by the President are well studied, supported by the rule of law and, most importantly, intended solely for the benefit of our country,” Panelo said.

 Presidential takeover

 For veteran lawyer and opposition senatorial candidate Romulo Macalintal, the President himself – and not the military – should take over the BOC and lead efforts to rid it of misfits.

“The ultimate test in solving corruption or irregularities in the BOC is for President Duterte to take over as head of the bureau even for a period of four months to fully understand and solve this never ending problem,” he said.

Macalintal said Article VII, Section 17 of the Constitution provides that “the President shall have control of all the executive departments, bureaus and offices.”

“Since time immemorial, it appears that whoever is appointed as customs head, smuggling and similar illegal activities and controversies remained unabated or uncontrollable at the BOC,” Macalintal said.

“President Duterte’s taking over the BOC could be the ultimate test whether or not said irregularities could still be resolved or prevented,” he added.

“If despite his presence, the same smuggling activities still persist or progress, then we can say goodbye to our quest for a clean and honest government in the Bureau of Customs,” he said.

Macalintal questioned the constitutionality of Duterte’s move to appoint military officials in the BOC, citing Article XVI, Section 5(4) of the Constitution which states that “No member of the armed forces in 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 corporation or any of their subsidiaries.”

He said the only time the President can call on the armed forces is in order to “prevent or suppress lawless violence, invasion or rebellion” as provided for under Article VII, Section 17 of the Constitution.

“For sure, smuggling and irregularities in the BOC could not be considered as violence, invasion or rebellion to justify calling to action our armed forces,” Macalintal said. 

Sen. Richard Gordon, chairman of the Senate Blue Ribbon committee, said a military takeover of BOC is justified but stressed that Duterte should give military personnel specific orders on how to run the BOC.

“If they’re (military) not competent, with about 10,000 containers coming in every day and being held up, we won’t be competitive,” Gordon said at the resumption of his panel’s investigation into the shabu smuggling.

He said illegal drugs trigger lawless violence in the country that “constitutes a real threat” that justifies the deployment of the military to the BOC.

“One thing is clear to me, the President declared that because there is a war going on. There is an invasion of drugs, not on the ground but right in our doorsteps, our ports and airports,” he said.

Clear instructions

He said an executive order by Duterte on the setup should be clear and detailed to avoid confusion, trade disruption and revenue losses.

“The military is not trained to assess (customs duties). They can watch the gates, monitor container vans and issue their intelligence fund, but with collecting revenues, I think professional training is needed,” the senator said.

He also stressed that stationing of military personnel at the BOC should just be a stop gap measure as they themselves might succumb to bribery offers from smugglers.

He also stressed there are civil service rules that need to be followed as well as proper screening process for appointments at the BOC.

Gordon also pushed for the creation of a Customs academy to train professional personnel as BOC work requires technical and legal expertise.

Meanwhile, the Philippine Coast Guard (PCG) has started selecting personnel for assignment to the BOC as Customs police.

“The PCG has begun preparing in compliance with the directive of President Duterte for the military and the Coast Guard to take over the vacant positions at the Bureau of Customs. We are now looking for people, within our organization, who could help in implementing the reforms of the President,” PCG spokesman Capt. Armand Balilo said.

“If there are (Coast Guard personnel) who have background on Customs administration, even if they are in the provinces, then we would pull them out. We are looking for those who have experienced dealing with the BOC,” he said.  With Helen Flores, Paolo Romero, Evelyn Macairan