MALACAÑANG ON Tuesday maintained that President Rodrigo R. Duterte’s order for the Armed Forces of the Philippines (AFP) to take over the Bureau of Customs (BoC) is constitutional, saying that soldiers will only be “assigned” to the bureau to “oversee” the operations there and “will not be appointed nor designated to civilian positions.”
But a legal expert sought for comment said this “assignment” is a “designation” and, therefore, is “illegal.”
“Active members of the AFP will not be appointed [n]or designated to civilian positions in the BoC. They will be assigned to the BoC to oversee that all operations are in order and ensure that all laws are strictly enforced in all processes undertaken therein,” Presidential Spokesperson and Chief Presidential Legal Counsel Secretary Salvador S. Panelo said in a statement on Tuesday, Oct. 2.
Mr. Panelo was referring to the alleged conflict of the President’s order with Article 16, Section 5(4) of the 1987 Constitution which provides that, “[n]o 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.”
Sought for comment, University of the Philippines (UP)-Diliman law professor Antonio G.M. La Viña said in a phone interview: “The fact that they will be assigned there, even if temporarily, and the fact that they are physically there, it’s already a designation. Yeah, that’s illegal. It’s a designation. They are given an assignment; they are being sent on a mission.”
In a press briefing at the Palace, Mr. Panelo said the President’s order is based on the state of lawlessness in the BoC, which is corruption.
“The state of lawless violence would refer to what is happening in the BoC. There is a state of lawlessness there…. It’s not just physical violence. You do violence to the Constitution, you do violence to the law. That’s a state of lawlessness,” he said.
But Mr. La Viña said, “That’s not the lawlessness that the Constitution says. The Constitution says ‘lawless violence,’ and these are riots, killings, and bombings.”
“Corruption is lawlessness, but it’s not lawless violence….Kasi kung lawlessness lang, ang daming lawlessness diba in any agency (Because if it is only about lawlessness, there are many cases of lawlessness in any agency),” he added.
Mr. Panelo also noted that “with former General Rey (Leonardo B.) Guerrero as our Customs Commissioner, coupled with the assistance of AFP Chief-of-Staff Carlito (G.) Galvez (Jr.) and his men, we are hopeful that the BoC will be finally cleansed from corruption and drug-related activities.”
For his part, Mr. La Viña said: “If corruption is really endemic, then the [solution] is for Congress to pass a law abolishing the Bureau of Customs and replacing it with a different agency. Maybe you can privatize the inspection work, but still have a specialized agency that monitors all your private inspection facilities.”
GUBAN TO WPP
In a related development, former Customs officer Jimmy S. Guban will be turned over to the Department of Justice (DoJ) on Tuesday and will be admitted to the agency’s witness protection program (WPP), Senator Richard J. Gordon said.
“Guban will now be turned over to the Secretary of Justice today. Delikado na siya dito (it’s risky for him to stay here),” the senator told reporters after the hearing on the illegal shabu shipments last August that slipped past the Bureau of Customs (BoC).
Justice Secretary Menardo I. Guevarra also confirmed that Mr. Guban is now under WPP. “Mr. Guban has been admitted into the WPP. But that’s all I can say,” he told reporters in a text message.
Mr. Gordon said he will also recommend that Customs official Lourdes V. Mangaoang be placed under WPP as well.
Mr. Duterte had earlier ordered Mr. Guban’s arrest, but Mr. Gordon said the former Customs intelligence officer could not be arrested without a case against him.
Sacked police officer Eduardo Acierto and former deputy director of the Philippine Drug Enforcement Agency (PDEA)-National Capital Region Ismael G. Fajardo failed to attend the Senate hearing on Tuesday. The two former officers were allegedly behind the entry of the P11 billion worth of illegal drugs into the country.
During the hearing, Mr. Guban, in a written affidavit, claimed that he refused to facilitate the entry of a shipment that Mr. Acierto wanted out of the Bureau of Customs (BoC) after being informed that it contained illegal drugs.
He recounted that Mr. Acierto asked for his help sometime between May and July to find a consignee for the importation of several goods, including four magnetic lifters. Mr. Acierto also allegedly sought assistance for another set of goods since it was revealed that the original importer was not accredited by the BoC.
When Mr. Acierto told him that the said goods contained illegal drugs, Mr. Guban responded by saying that the BoC would apprehend the goods.
“Upon hearing, I immediately responded that it was not possible to do and I declared to Colonel that we from the Bureau of Customs would cause the apprehension of these drugs. This is my duty as government employee and as Customs Intelligence Officer,” Mr. Guban said.
“Upon seeing my sincere will and intention to have these drugs apprehended, Col. Acierto committed to me that he would help in its apprehension by providing the details of the shipment,” he added. He also said he referred Mr. Fajardo to Mr. Acierto so operations could be done on the shabu shipment.
It was through Mr. Acierto’s “staggered or piecemeal” information that law enforcement agencies were able to locate the illegal drugs inside the magnetic lifters stored at the Manila International Container Ports (MICP), Mr. Guban said.
However, Mr. Gordon expressed skepticism about Mr. Guban’s narrative that Mr. Acierto’s information helped in the discovery of the illegal drugs at MICP.
“I think that’s what they’re trying to put out from the very beginning. I never bought that because my first theory is that they wanted the big shipment out then they allowed the small shipment to be caught but I think they were really trying to get it out,” he said.
For its part, the House Committees on Dangerous Drugs is set to continue its investigation. “We will probably have another hearing when we resume in November,” Committee chair Robert Ace Barbers of the 2nd district of Surigao del Norte told BusinessWorld in a phone interview, Monday.
Mr. Barbers said the Committee intends to get the testimonies of Messrs. Acierto and Fajardo.
“Gusto namin mag-appear sila. Kailangan ang mga testimonies nila, especially Col. Acierto and Fajardo because they were implicated by Guban, by the witness,” Mr. Barbers said. (We want to them to appear before the panel. We need their testimonies, especially Col. Acierto and Fajardo because they were implicated by Guban, by the witness).
In their hearing last Oct. 24, the joint House panels on Dangerous Drugs and Good Government and Public Accountability subpoenaed Messrs. Acierto and Fajardo after their no-show in that inquiry.
Mr. Barbers said, “We want to prove kung sino ‘yung mga (who among the) BoC (Bureau of Customs), PDEA and PNP personnel (are) in cahoots with the drug syndicate….”
“We will definitely recommend prosecution against those government employees, officials that have committed malfeasance, misfeasance and nonfeasance, ‘yun ang aming (that’s our) objective.” — Arjay L. Balinbin, Camille A. Aguinaldo, and Charmaine A. Tadalan