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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

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Location: San Juan, Metro Manila, Philippines

Thursday, September 15, 2005

Commander-in-Chief

Under what constitutional authority did the President have when it refused the recommendation of the Board of Generals to appoint the eminently qualified General Samuel Bagasin to head the Southern Command and instead appointed General Edilberto Adan who never handled a division.

At first glance, the answer would be simple. Article VII, Section 18 of the 1987 Constitution states that the President is the Commander-in-Chief of all armed forces of the Philippines. As to her appointing power, Section 16 of the same article provides that the president has the power to appoint generals with the consent of the Commission on Appointments.

Given these two constitutional bases, do the officers and men of the Armed Forces just grin and bear when their professionalism appears threatened?

I think the answer lies beyond a mere restatement of the cited constitutional provisions and demands a conceptual overhauling of the constitutional thinking and interpretation of the commander-in-chief clause.

In the first place, and quite oddly, the Constitution takes for granted the meaning of the term “commander-in-chief”. The records of the Constitutional Commission bare no discussion on the meaning of those words. When referred to, the debates would revolve around putting legislative oversight on the president’s power to declare martial law or the suspension of the privilege of the writ of habeas corpus.

The U.S. Constitution likewise has the same commander-in-chief clause. But in their jurisdiction, the term generally implied the president’s theoretical responsibility “for tactical command of training military forces and conducting hostilities” (Tribe, American Constitutional Law, 3rd Edition, volume 1, p. 665, 2000). Like our constitution, it is silent on presidential authority over military affairs.

In short, when the commander-in-chief clause is invoked, it always refers to the president’s use of military forces to perform a public good when a danger is clear and present or to conduct military campaigns and hostilities towards enemies of the state to preserve the integrity of the national territory.

But having said that, does the commander-in-chief clause likewise extend to arbitrary decisions of appointing a fellow not recommended by the professional Board of Generals on the basis of political expediency?

The answer is difficult as it is controversial. To answer in the affirmative is the easier path because the letter of the constitution clearly provides the president’s pre-eminence in the military hierarchy.

But it nonetheless does not settle the president’s unprofessional manner of appointing unqualified generals because first, being a professionally run armed forces, the president is required and even mandated to lead the military in an equal, if not, a more professional capacity. She must, and ought to be as, Caesar’s wife is.

Second, concurrent with the president and perhaps even more so, the military, as a professional corps of soldiers, is constitutionally bound to protect the people and the State. The military must balance the interests of the Office of the President or the person who sits upon that throne as against the interests of the general public and sometimes, these two interests may not converge harmoniously. In that instance, it should be a no-brainer as to whose interests the military will defend.

And third, even if the president is the commander in chief, that position is a constitutional fiction derived from historical tradition for the purpose of emphasizing that the military is not a separate co-equal branch of government but is placed under that branch that wields the sword. This means that in theory, while she may head the armed forces, in practice, she has no actual command of soldiers.

Thus, if the president acts in a manner totally alien and beneath the standards of professionalism required under the mandates of the armed forces as well as the 1987 Constitution, does the military have the right to act in self-defense to protect its own integrity and eventual survival? Like any juridical or natural entity following the immutable laws of nature which man-made deeds like the constitution must abide by, the inevitable answer must be a yes. Adherence to authority is one thing but blind adherence is what has already been proscribed in the Nuremberg Principles and should find no basis in a professional army.

As to what course this “yes” must take, the military must construe according to its wits and let the generals search their souls. Or better yet, seek out Fr Joaquin Bernas, S. J. After all, he is the loyal son of Ignatius Loyola, a Basque soldier who founded the militant Society of Jesus and organized it along military lines. They may find common cause with him.

Or maybe not.



1 Comments:

Anonymous John N. said...

Padre, I found the implications of this latest entry so disturbing I was moved to write a lengthy criticism, in Newsstand. Best regards,

9:36 AM  

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