Militarizing the Bureau of Customs vs the Constitution

BY ANTONIO P. CONTRERAS   NOVEMBER 01, 2018

IN order to suppress, if not eradicate, corruption, the President has stated that he will have the Armed Forces of the Philippines (AFP) take over the Bureau of Customs (BoC). While this idea is tempting, and appealing, and in fact can inspire many, including myself, to even wish that he does the same to the Commission on Elections (Comelec), if only to prevent the bastardization of the automated election system, the move is full of legal and constitutional problems.

While the President has the power to call out the military, this can only happen at the very least—and stopping short of declaring martial law and suspending the privilege of the writ of habeas corpus—at its most benign and mildest manifestation if he declares a state of lawlessness. In fact, technically, the entire country is still under such a state, when the President so declared it in reaction to the Davao bombings in Sept. 3, 2016, and has never lifted it since. Under Section 18 of Article VII of the Constitution, the President, as the Commander in Chief of all the Armed Forces of the Philippines, and whenever necessary, “may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.”

However, calling out the armed forces to prevent or suppress lawless violence is limited only to the extent that it shall enhance, if not augment, the ordinary police activities of the state to maintain peace and order. This “calling out” power of the President was defined by the Supreme Court as limited only to the act of summoning the armed forces to help, through ordinary police action, the suppression or prevention of lawless violence. Operationally, this would mean more presence of the military in activities that are otherwise done by the Philippine National Police (PNP), such as manning roadblocks and checkpoints, patrolling and being involved in police operations to apprehend criminal elements.

Nowhere in the powers granted to the President is it stated that he can call out the military to take over the operations of a civilian organization, which would include the likes of the BoC.

What further limits any attempt by the President to remove civilian employees from performing their duties and put them on floating status, and replace them with military personnel is contained in Section 5, paragraph 4 of Article XVI of the Constitution. It states that “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 any of their subsidiaries.” The phrase “in any capacity” implies that any form of involvement of the military in the running of a civilian agency is prohibited, and this includes even just on a temporary capacity. The phrase “at any time” implies that this would not be allowed even during a declaration of a state of lawless violence. This prohibition may even apply during the period where martial law is declared, considering that there appears to be no exemption provided in the Constitution. In fact, it is stated in Section 18 of Article VII that “A state of martial law does not suspend the operation of the Constitution.”

Furthermore, declaring martial law appears to be not even a constitutional option to suppress corruption, considering that it is limited only to cases of invasion and rebellion. Certainly, wanton corruption in government agencies, even if it leads to the entry of illegal drugs into the country, by itself, does not amount to invasion or rebellion, unless we again stretch the limits of the legally possible and argue that illegal entry of drugs amounts to a form of invasion.

There are people who argue that corruption in the BoC that leads to the entry of drugs, that then causes crime and other incidents that can be construed as composite of a breakdown of law and order, can be considered as evidence of a state of lawless violence. This would be a bit of a stretch, and may only be true if and when we already experience massive and widespread actual shooting wars and street violence between the state authorities and the drug lords, or among rival drug lords. But then again, the calling out power of the President in relation to the military would be technically limited to augmenting the PNP in keeping peace and order, and would not allow the military to take over the actual operations of the BoC. The best that the military can do, within the ambit of the provisions of the Constitution, would be to assist police operations and provide protection to civilian employees of the BoC as they perform their functions, and be present during the physical inspection of shipments and cargo that pass through our ports and airports.

In the face of the fact that even if called out, the military cannot perform civilian functions, and that martial law cannot simply be declared to stamp out corruption, and under the premise that we will remain within the ambit of a constitutional government, and not of a revolutionary one where constitutional restraints will no longer prevail, then the President will have to look for other means to clean up the BoC.

As head of government, President Duterte has the power to reorganize the government bureaucracy. He also has the leverage to seek assistance from the legislature should there be a need to enact a law. He is in full control of the Department of Justice (DoJ), which can be mobilized to investigate corruption and establish a compelling reason to fire and prosecute corrupt employees, and revamp or even abolish and replace the entire BoC, or any other agency under the Executive Branch, with new blood.

There are many creative alternatives, other than militarizing the BoC. A military takeover of the bureau is not only constitutionally problematic, but would logistically deplete our Armed Forces of vital human resources. Theoretically, this would mean pulling out from the military a good number of its best and most upright and incorruptible personnel.

Other means include providing more incentives and protection to people like lawyer Lourdes Mangaoang to blow more whistles and expose anomalies in the bureau, as this can provide vital information to get to the bottom of the corruption, and use this as a basis to punish the ones who corrupted the system. It is also about time we think of privatizing the agency, by outsourcing the operations to a private entity. Automating the system can also minimize human interference and corruption.

https://www.manilatimes.net/militarizing-the-bureau-of-customs-vs-the-constitution/460567/