Before we go into the usual stuff, folks, do go and check out the Laughs and Gasps website, now up and running.
Better yet, go buy tickets, and watch why magicman Kel at the last event got all them girls moohoohahaha.
(Yet again adapted from a Filipino Voices post.)
Commenter JCC has left an interesting comment on Abe's post Bloggers’ historic act in Arroyo impeachment, nay or aye?, which reads in part:
the above quote from my previous thread had something to do with the dilemma of Justice Marshall in the case of Marbury v. Madison.
Part of that dilemma: What if despite our decision the Executive would not follow our decision? Are we not creating a constitutional crisis in this regard? Will this not cause embarassment on the part of the Court?
...
thus my question, had GMA go(ne) ahead with the MOA-AD and the (muslim) separatists had started exercising jurisdiction over these ancestral domains, how will the court implement its decision describing the agreement unconstitutional and therefore (should it) order the Army to repel the Muslim incursions?
It's an interesting question.
For the benefit of our readers, let's first take a quick look at that landmark case Marbury vs. Madison.
Wikipedia provides the context:
This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams' Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions. Being unable to assume the appointed offices without the commission documents, Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The Supreme Court denied Marbury's petition, holding that the statute upon which he based his claim was unconstitutional.
Here, I believe is the meat of the matter discussing whether or not the acts of the Executive can be questioned and reversed by the Judiciary:
By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
If I understand JCC's scenario, he asks how could the Supreme Court remedy a situation where the President will issue an order to the AFP to abandon Mindanao? If I understand him correctly, JCC predicates it on Article VII, sections 1 and 18 of the Constitution, which say:
Section 1. The executive power shall be vested in the President of the Philippines.
and
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines... (et sequentia).
That said, there could be a situation where the AFP is issued an order which is patently unconstitutional (as declared by the Supreme Court) by the Commander-in-Chief... but would the AFP follow it?
I submit that in theory, the AFP will not.
If I recall correctly, the Soldier's Oath goes as follows:
I do solemnly swear that I will faithfully and conscientiously fulfill my duties as a soldier of the Republic of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.
The Nuremberg Principle IV (a matter of international law which our own state is bound to via Article II, section 2 of our own Constitution), says:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
There's likewise Article 11, section 18, which says in part:
Section 18. Public officers and employees owe the State and this Constitution allegiance at all times... (et sequentia).
Finally, there's Article 2, section 3, which says in part:
Section 3. ...The Armed Forces of the Philippines is the protector of the people and the State.
So here are the principles from which I will argue my theoretical position:
- The Filipino solider's allegiance begins and ends with the Constitution.
- Since it is not a defense to be following orders, whether illegal or legal, it becomes a defense -- or, rather, the moral choice -- for a soldier not to follow an illegal order.
- If the President issues an unconstitutional order, the Filipino soldier, being loyal first and last to the Constitution, can and will refuse such an illegal order.
The crisis, therefore, will not be between the Executive and the Judiciary, but rather between the caput and the sicarii. The Praetorians will turn their spathas against Caesar.
The Supreme Court, thus, by its power of interpreting the Constitution, gives the word by which the AFP will live by, no matter what the President says.
In theory, that is.
I've been asked why I've been used the term "spear-carriers"... short answer: there's the phrase "throne propped up by spears", as well as a term from the professional military establishment (at least in the West) using the term as a nickname for infantrymen or the boots in general.
Corollary to this post, has anyone noticed that the professional corps from the boots upwards is now heavily populated by a good number of idealists, with the brass of the bad old days having retired or died out?
Often I wonder what the captains and lieutenants think of the brass, not to mention those with stripes and rockers, when these middle-grade (and usually combat-duty) soldiers read the papers and listen to AM radio.
Heck, I've been told that a good number -- when they can -- do go and visit Filipino Voices and other commentary blogs.
There's a thought to explore another time.
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