Thursday, December 08, 2005

The Articles of War and civilian authority

What we Filipinos should know: There are so many disgusting, frustrating, maddening and continuing corruption, abuse and insult to the intelligence done to our fellow Filipino citizens in the homeland that we forget, grown immune to and even accept them.

One of which is the rampant and grave corruption in the Armed Forces of the Philippines, which is well entrenched and well known. Remember the Y2003 Oakwood Mutiny where one of its declared rationalization is corruption in the upper echelons of the AFP? We ought to believe their allegations then, facts now.

Now Major General Carlos F. Garcia --hopefully not related to the late, nationalistic President Carlos Garcia (1958-1962) -- is headlined to have been convicted and sentenced by the military.

Sassy Lawyer/Connie Veneracion of the Manila Standard clearly raised some interesting and important issues for Filipinos-in-the-Philippines to ponder and repair with regards to the Philippine military (should the needed radical social transformations ever come to reality).

Again, in this instance we Filipinos demonstrate our being absolute, nonthinking copycats, i.e. unquestioningly copying America; regardless of our own peculiarities as Ms. Veneracion alluded to. We can define our uncritical mind as colonial/neocolonial mentality, damaged culture, ad nauseam, etc.

We Filipinos make an ass of ourselves by assuming anything or everything American is directly transferable, not even requiring adaptation. Such way of doing things adversely affects and costs society --us, the people-- in the end.

With the court martial/charade behind closed doors adjourned, Major General Carlos Garcia and his fellow Generals must be laughing at the unarmed civilian populace on their way to the bank.

The Commentary follows.

“A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.” – Martin Luther King, Jr.

"I either want less corruption, or more chance to participate in it." - Ashleigh Brilliant, 1933

"The accomplish to the crime of corruption is frequently our own indifference." - Bess Myerson, 1924-present

The Articles of War and civilian authority
Sassy Lawyer/Connie Veneracion, The Manila Standard, 12/06/05

Article II, Section 3, of the 1987 Constitution states that civilian authority is, at all times, supreme over the military. Article VIII, Section 1, says that judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. “Lower courts” does not include military courts.

The Armed Forces of the Philippines, just like many branches of government, exercises administrative jurisdiction over all its personnel. The law recognizes that administrative functions include quasi-judicial authority that allows administrative bodies to impose administrative penalties. Administrative rules, however, are not in the nature of penal laws in the manner that penalties under the Revised Penal Code and other penal laws are.

The AFP, however, is an exception. By virtue of Commonwealth Act 408 (Articles of War), as amended, members of the Armed Forces and the Integrated National Police accused of any crime or offense are triable only in the appropriate courts-martial.

I don’t know why members of the Armed Forces enjoy special treatment — why there is this animal called Articles of War which remains in force even in times of peace when civilian courts are functioning. It doesn’t make sense that members of the Armed Forces enjoy the privilege of being tried by their own peers. It makes even less sense that the Articles of War which is, in reality, a distinct set of penal laws should remain in force.

It makes sense for the AFP to have its own set of administrative rules and regulations… but its own set of penal laws?

The perceived validity of the Articles of War and military courts is more cultural than legal. Their acceptance is based on how we perceive the military and what we believe to be its role in society. But the truth is, just like the internal revenue examiners, clerks, janitors, messengers and other employees in government offices, they are public servants. Stripped of the romance and the glamour of their uniforms, they are public servants subject to the same laws that govern all public servants.

That they risk life and limb in the line of duty is no more heroic than the teachers who strive to teach our children despite the low pay, the leaking roofs of poorly ventilated, overcrowded classrooms and the prospect of ridiculously unrealistic retirement benefits. Soldiers are no more heroic than the government doctors who set up clinics in remote barrios in the hope of helping those that need it most. No, sireee, the military is no more special than any other public servant and its personnel should not be entitled to more. They are merely performing the job they chose and they get paid for it.

It is the association with romanticized heroism that blinds people into accepting a situation where soldiers are considered special. It is this romanticized heroism that allows the Articles of War to remain applicable to military personnel even in times of peace. It is this romanticized heroism that makes us accept that there is nothing wrong in allowing military courts to exercise jurisdiction over military personnel.

Unfortunately, the romanticized heroism exists only in our heads. Soldiers are not demi-gods who can, and should, only be tried by their own peers. When regular courts are functioning, as they do now, there is no reason why military personnel should be triable by courts-martial. It simply goes against the very essence of the supremacy of civilian authority. It is a denial of the principle of equal protection before the law.

It is in this light that the so-called conviction of Maj. Gen. (ret.) Carlos F. Garcia becomes a big joke — a conviction with a sentence of two years’ hard labor by a military court that only has recommendatory powers. It is a conviction the validity of which will be determined by only one man. And that man is part of the system that allowed Garcia to operate with impunity over the years.

Hard labor… a penalty under a law that took effect during the Commonwealth period. The Articles of War, including the penalty of hard labor, has survived unmolested by every form of Congress, including Marcos’ Batasang Pambansa. It has survived despite the Philippines being a signatory to international treaties and conventions that condemn inhumane treatment of detainees, prisoners and convicts. It has survived even after the ratification of the 1987 Constitution which specifically prohibits the imposition of cruel, degrading or inhuman punishment.

The imposition of the penalty of hard labor on Garcia is a joke. It is a penalty written on water. It means that beyond the dishonorable dismissal and the forfeiture of benefits, nothing else will be done to Garcia. As though dishonorable dismissal is a big deal to a man like him; as though he would miss the benefits being forfeited.

And why does Garcia have to remain in military custody, in detention in Camp Crame, during the pendency of his case before the Sandiganbayan? Isn’t it elementary that it is the Sandiganbayan that acquires jurisdiction over his person while the case is on trial? This situation is supposed to show us all just how supreme civilian authority is over the military, huh? Garcia is entitled to airconditioned quarters and decent food because he is accused of stealing millions.

Meanwhile, the petty thieves, including minors, accused of snatching cellphones and handbags cram the jails, living under very unsanitary and inhuman conditions. So, the message is if you’re going to steal, better steal big time — it will earn you better quarters during trial. Duh! This is democracy? This is equal treatment before the law? To call it an ironic situation must be the understatement of the decade. Darn, what a bloody circus.

But let me dispense with the sarcasm by simply saying that it is time to review the applicability and scope of the Articles of War and to reassess the real relationship between civilian and military authority.

Can it be done? Will it be done? Oh, I forgot. The Articles of War and the system that defines the relationship between civilian and military authority is patterned after the American model. And the American model is the standard of all standards, irrespective of our historical and cultural peculiarities. Right, right, right. I must be having memory lapses. It slipped my mind that every administration operated under the principle that America is just, America is good and America is correct. Ummm… this administration even believes that the American war in Iraq was just. Did someone say colonial mentality? Neo-colonial mentality?

Furthermore, in a situation where politicians court the favors of the military, does it even sound realistic that something will be done? In a situation where, whether we admit it or not, the military determines when an administration should be booted and who should take over, how deep and how far will a civilian government go in clipping the powers and special privileges of the military? Do we even have to wonder why it has become an accepted practice to appoint retired military officers to plum posts in the civilian government? Do we even need to ask why people like ex-President Fidel V. Ramos are still very much visible in the political scene?

Oops, sorry, the sarcasm slipped out again.

or Sassy Lawyer blogsite -

"In all institutions from which the cold wind of open criticism is excluded, an innocent corruption begins to grow like a mushroom - for example, in senates and learned societies." - Friedrich Nietzsche, 1844-1900

"Corruption is like a ball of snow, once it's set arolling, it must increase." - Charles Colton, 1780-1832

"Corruption is worse than prostitution. The latter might endanger the morals of an individual; the former invariably endangers the morals of the entire country." - Karl Kraus, 1874-1936.

"Democracy is not about trust; it is about distrust. It is about accountability, exposure, open debate, critical challenge, and popular input and feedback from the citizenry. It is about responsible government. We have to get our fellow citizens to trust their leaders less and themselves more, trust their own questions and suspicions, and their own desire to know what is going on." - Michael Parenti

"Upang maitindig natin ang bantayog ng ating lipunan, kailangang radikal nating baguhin hindi lamang ang ating mga institusyon kundi maging ang ating pag-iisip at pamumuhay. Kailangan ang rebolusyon, hindi lamang sa panlabas, kundi lalo na sa panloob!" --Apolinario Mabini, La Revolucion Filipina (1898)

No comments :