Military as Customs is unconstitutional

The Constitution, in Article XVI, General Provisions, Section 5 (4), states:

“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.”

That bars President Rodrigo Duterte from placing soldiers in all or some Customs positions. The rule is clear as day, civil libertarians and law scholars aver. Duterte and the citizenry’s frustration with corruption in that agency notwithstanding, deploying the military is simply not among the solutions.

Other drastic options need to be devised fast. Like, intelligence against contrabandists and their abettors in Customs should be strengthened. If not, more tons of shabu (meth) can slip past Customs. More billions of pesos in import duties would be lost to “tara” (bribes).

Confabulations by Duterte’s legal counsels do not help any. They only delay the urgent actions. Parties surely will question Duterte’s orders before the Supreme Court.

The claim that the Commander-in-Chief provision allows mobilization of the Armed Forces is inapplicable. Even lawyer-senator Francis Escudero of the pro-Duterte majority says so. Article VII, Executive Department, Section 18 pertains to “lawless violence, invasion, or rebellion.” Customs may be teeming with crooks, but there certainly is no violence to warrant army intervention.

The other claim about “civilian supremacy” is neither here nor there. That tongue-in-cheek defense goes this way: Supposedly Rey Leonardo Guerrero, the retired AFP chief whom Duterte has designated Customs head, is now a civilian. A civilian as well is Finance Sec. Carlos Dominguez, under whose office Customs falls. Ergo, Article II, Declaration of Principles and State Policies, Section 3, about “civilian authority (being supreme),” is maintained. The issue is not about Guerrero and Dominguez, however. It is about active military personnel whom Duterte is putting in to man Customs x-ray inspections and sign import releases, among others. General headquarters reportedly has dispatched units to the Customs central office, and is to send more to district offices. The Constitution simply forbids that.

National experiences spurred the framers of the 1987 Charter specifically to debar soldiers from civilian office. One was the takeover of Customs by purported incorruptible military officers in the 1960s, under the 1935 Constitution. That led to their embarrassing corruption using femme fatales, recounts Sen. Panfilo Lacson, once a Constabulary man. Another was dictator Marcos’ staffing of civilian offices and state firms by active generals and colonels, to keep them loyal. It resulted in massive fraud and bankruptcies. Ironically among the well-placed officers were also the leaders of the 1986 military uprising against Marcos.

Reason lies in every provision of the Constitution, imperfect as it may be. Precisely to prevent abuses, abort illegal orders, and uphold the rule of law is there an Article XVI, General Provisions, Section 5 (1), that states:

“All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.”

Precisely to keep the mighty Presidency in line is there an Article VII, Executive Department, Section 5, that specifies:

“Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:

“’I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its law, do justice to every man, and consecrate myself to the service of the Nation. So help me God.’ (In case of affirmation, last sentence will be omitted.)”

The Constitution guarantees equality of all. It also expects abidance by all.

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