Can the military take over Customs?

Justice Secretary Menardo Guevarra recently argued our Constitution allows deploying soldiers to the Bureau of Customs (BOC) as a “temporary measure,” amidst troubling smuggling reports. He is actually citing the primary Supreme Court decision on this point, a decision curiously omitted from all discussion.

In 2000, Metro Manila faced heightened crime. Syndicates of ex-servicemen used military tactics and weaponry.

President Joseph Estrada ordered Marines to conduct “visibility patrols” with police in SM Megamall, SM North Edsa, Greenhills, Araneta Center, Makati, airports and train stations.

Soldiers patrolling Megamall sparked a debate on police “militarization.” The Integrated Bar of the Philippines (IBP) sued. The seminal IBP vs Zamora case upheld the Marines.

First, under the Constitution’s Article II, Section 3: “Civilian authority is, at all times, supreme over the military.”

The Supreme Court ruled the military may augment civilian functions. The IBP decision explicitly enumerated typical
examples: elections, disaster relief, law enforcement and customs enforcement.

In short, soldiers rescuing people from rooftops during floods does not militarize government or violate the Constitution.

The Supreme Court specifically stressed the visibility patrols followed police, not military, procedures. Metro Manila’s police chief was in charge, not an Army commander. Individual patrols were likewise led by policemen.

Second, Article XVI, Section 5(4) prohibits soldiers from being “appointed or designated in any capacity to a civilian position.”

The IBP decision simply ruled: “Since none of the Marines was incorporated or enlisted as members of the PNP, there
can be no appointment to civilian position to speak of.”

Further, it emphasized the police continued to be headed by a civilian. No Army general was deemed appointed to any civilian post.

Third, the IBP decision added citizens were not subject to military power. Arrested persons were brought to police stations under normal procedures.

Returning to 2018, again, the IBP decision explicitly cites customs enforcement. Its logic applies if one swaps the BOC for police.

The BOC is headed by Rey Leonardo Guerrero, a civilian after retiring as Army chief of staff last April.

To argue unconstitutionality, one must show a soldier was actually appointed to a BOC post in violation of Article XVI, Section 5(4), the BOC placed under the Army instead of the secretary of finance in violation of Article II, Section 3, or soldiers actually directing the BOC like a military unit instead of merely assisting.

One cannot claim a constitutional violation simply by citing constitutional provisions, without applying these to concrete facts.

The BOC example illustrates why we must deepen discussion of the Constitution’s “commander in chief” powers.

Philippine critiques tend to be shallow, conflating what commander in chief powers exist (a legal issue) with how they are used (a political issue). Even trickier, these powers are necessarily broad and courts often defer to the president’s judgment on their use.

Consider martial law, the final commander in chief power. Martial law in Mindanao has been extended twice and a new extension is up for debate.

Sadly, we have not focused on the scholarly, apolitical debate on what martial law actually authorizes. We conflate this debate with whether or not to extend.

The last Supreme Court decision ruled martial law may be extended even if actual fighting has ceased because a rebellion (a requirement to declare martial law) may continue if rebels are still regrouping or training reinforcements.

If martial law only allows the military to administer combat zones and grants no power outside such areas, it may no longer be an appropriate tool and one could deploy more police or increase intelligence funding. One must appreciate this is a
legal question.

But returning to the BOC and Guevarra, let us encourage reading Supreme Court decisions before commenting on law.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.