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The first duty

SEARCH FOR TRUTH - Ernesto M. Maceda (The Philippine Star) - April 1, 2017 - 12:39am

The first duty of the government is to afford protection to its citizens.” April fools?

Indeed, in times of desperation, the normal tendency of man is to seek help – if unavailing from his family, then from his government. But with our Executive and Legislative parents beset with paralyzing burdens of their own making, its not surprising to see refuge seekers surging to the cathedrals of their faith. 

At the convention of the Integrated Bar of the Philippines last week, it took the Chief Justice to remind us that our third governmental parent is still very much around. The Judicial branch, under the leadership of the Supreme Court and with the help of all lawyers, can help provide the needed sanctuary. The Court is also a cathedral – of Justice.

Hence, her exhortation to lawyers who are all officers of the court to uphold the rule of law and, when necessary, throw off the blanket of inertia and confront the status quo.

Rule of law. “The first thing we do, lets kill all the lawyers!” is Shakespeare’s immortal line from Henry VI as part of a bucket list once rebel becomes King. The prevailing wisdom, at least among lawyers, is that the Bard was actually giving the legal profession a left handed compliment for being crucial to ordered liberty.

The rule of law implies that the rights of the citizen are not subject to arbitrary whim. They are recognized by law and protected by law. The law which the Legislature  enacts, the Executive enforces and the Judiciary applies. The safest shelter should be the rule of law.

Culture of impunity. If the Chief Justice exhorts lawyers to observe fidelity to the rule of law, it seems that President Rodrigo Roa Duterte’s exhortation to his men is to do the opposite in the fight against drugs. This view is buttressed strongly by his continued assurance of Presidential pardon to those that the Courts find guilty.

Various legal theories have thus entered the public debate in connection with the possible accountability of the President or his men for insisting on doing bad as a means to do good. For subordinates, there is the superior orders doctrine a.k.a. the Nuremberg defense. The accused basically pleads that he was left with no choice. He was simply following orders. After the Nuremberg trials of the Nazi leadership, this defense was rejected and considered only in mitigation of punishment.

Command responsibility. As for the accountability of leaders, the doctrine of command a.k.a. superior responsibility is a mainstay in the commentary. Often misunderstood, it does not ask what the superior did or knew in holding him guilty for acts of his subordinates. This principle does not refer to guilt by commission, rather it refers to guilt by omission. The commander is guilty for failing to prevent or punish a subordinate’s unlawful act despite being aware of it.

The Philippines played a leading role in the contemporary development of this  principle. It was at the Yamashita war trials where the judgment of the US Military Commission, affirmed by the US Supreme Court, found the Japanese General guilty. Though there was no direct allegation that he knew of or much less ordered any of the atrocities (Batangas and Manila were the worst hit), the court felt that he had the duty to not stand idly by while gruesome and heinous crimes were being perpetrated by his men. They called it affirmative duty to control his subordinates. Yamashita was hanged.

Our own FVR era E.O. 226, 1995, in a tribute to accountability, institutionalized this principle of command responsibility in all government offices. In one of its preambular clauses, it states: “WHEREAS, a supervisor/commander is duty-bound and, as such, is expected to closely monitor, supervise, direct, coordinate, and control the overall activities of his subordinates within his area of jurisdiction, and can be held administratively accountable for neglect of duty in taking appropriate action to discipline his men.”

Presidential critics seem to be relying on this principle, among others, each time they call out the President for the epidemic of extra judicial killings. 

Police brutality. The policeman caught on CCTV brutalizing a citizen in the very premises of the police station seeks to explain away his conduct by pleading human frailty. Sadly, this “I’m only human” defense does not fly given a policeman’s superior training, higher education qualification, and his conscious choice to be a protector of the citizenry. In addition, they play a unique role in the community as the only office authorized to use deadly force. Under the circumstances, their accountability is aggravated rather than lessened.  No deal.

7,641. According to the findings of the Philippine Islands Measurement Project, our archipelago is home to 7,641 islands and not 7,107 as formerly believed. No, this is no consuelo for potentially losing out to China on the “shoals of controversy.” This is a long overdue clarification. How long it stays accurate may depend on external factors like climate change. I don’t know about you but this new development has aroused my slumbering wanderlust for a PH expedition. What are you doing this holy week?

Tidbits. Women’s month came to a close yesterday. In recognition of the indomitable spirit of the Filipino woman, we pay tribute to Janelle May Frayna, the Philippines’ 1st Filipino Woman Grandmaster. Her journey to history was not without its tests and challenges. The life of a champion is a story of training, sacrifice and adversity. Of course, she surmounted them. But what should truly inspire us about WGM Janelle is that she never gave up on her dream to excel in academics as well. Next month she graduates with the chance for latin honors. Good luck WGM Janelle. Thank you for bringing honor to us all.

Birthday greetings to our beloved Auntie Alma Maceda Calleja. For taking care of all your nephews and nieces and loving us like a second mother, we are eternally grateful. 

Happy birthday Jose Luis A., the best evidence for the proposition that success in business need not be at the expense of a happy family life.

 

FIRST DUTY
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