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.
Popularity: 1% [?]
“to repel the Muslim incursions”
incursions of what?
Hello Jester in Exile
Any cadet private gets a dose of plebe knowledge in ROTC and one of the first things he learns is “military discipline” which is the “reasoned obedience to command”.
Now from my training, I would construe that “reasoned obedience to command” may also involve “disobedience” when in conscience a soldier cannot take orders which are indeed lawful or as long as the law provides.
The Nuremberg principles to an extent puts this in statute. We studied as cadets the implication of these statutes in wartime.
Yes the AFP is really accountable to the Constitution,which is indeed our Sovereign. But remember there are no room for constitutional arguments when confronted with a gun barrel on your face.
The Supremes of course can rule if the Executive has transgressed the constitution. Now if the President continues to execute an unlawful order, the AFP may not follow it, that’s it if the officers in the field have as in the words of the Catholic catechism, “correctly formed their conscience”
But even Adolf Hitler never thought of displeasing the Army by violating the Weimar constitution. Hitler followed the constitution to the letter. During the Third Reich, the Weimar constitution was in force although amended by Hitler’s Enabling Act. Do you think Gloria Macapagal Arroyo would be that dumb to subvert the 1987 Constitution when in fact any constitution has the provisions for its own demise?
If you say “yes” to my query,then I would completely lose respect of lawyers to whose profession you want to belong.
We can eliminate the ‘judgement call’ soldiers have to make by having a law that says any military action against Philippine citizens without the express consent of Congress is illegal. We have no such law. The fact that we still do not have such a law is I think a vestige of the martial law years when the military was engaged in domestic affairs.
“…Yes the AFP is really accountable to the Constitution,which is indeed our Sovereign.”
Am a wee bit disappointed hereBlackshama.The Constitution is not the sovereign. The people are with that document embodying their ideals. This is why if the people see fit to overhaul the fundamental law that very compacts has the provisos to retool it to become responsive to the times.
“Whose side will the spear-carrier be for? This is the tricky part. The AFP was turned by Marcos into his own preserve, loading it with saluyot-eating kakabsats but in the end, when the strongman was no longer strong his own defense esecretary, and his cousin sided with the people. Add to this the human nature of self preservation.
Ding
You are right but I am just stating what is ideal. What does the President promises to preserve and defend in his/her oath of office?
It is not the nebulous concept of “the people” but the Constitution! (That’s whyI find that the 1987 provision of the AFP as “protector of the people” as dangerous. The AFP should be protector of the Constitution first.
Gloria Macapagal Arroyo may thrash the people but she cannot be thrown out of office for just doing that. She however can be thrown out of office for thrashing the Constitution.
Jeg
We cannot have a law that prevents the AFP and the Police from engaging against Philippine citizens without permission of Congress. This is silly. The Army cannot have two allegiances. It has allegiance to the Constitution through the Executive.
The Commonwealth realms have it this way. The Army has allegiance to the Queen through her representative, the Governor General AND NOT TO THE CABINET AND PARLIAMENT. While in practice the Prime Minister is commander in chief, the Army owes its allegiance to the Queen. This is an important distinction that is lost in our Presidential system since our system of checks and balances has been screwed up.
Also if criminal or terrorist elements are concerned and they hold Philippine passports, do you think it is a good idea to ask Congress before crushing them and bringing them to justice?
We cannot have a law that prevents the AFP and the Police from engaging against Philippine citizens without permission of Congress
Blackshama, if you notice, I *didnt* include the Police. The police is a civilian organization. I believe the military acting against citizens is against all principles of a free society under civilian authority.
Because my proposed law is limited to the military, your rebuttal is moot.
blackshama’s 3:27:
well, enrile’s now senate president. think as you will of me, but pray not of those as brilliant as the warrior lawyer and his kind.
Hmmm…think hard folks…when was the last time that the Armed Forces of the Philippines disobeyed their Commander-in-chief, withdrew support for him in fact, and instead went hand in hand with the Chief Justice and the Supreme Court to seize political power?
Remember 19 Janury 2001? Now did Angie Reyes conspire with GMA and Davide, or did he act in good conscience against a corrupt president about to go scot free because of his Senate allies?
Perhaps I don’t really get JCC’s point, but isn’t he basically asking what would happen if the President had disobeyed the Supreme Court’s TRO?
This seems to be academic. What happens if ANYONE disobeys a Supreme Court TRO? Surely the fomenting of a Constitutional crisis when the president does it is no reason for the Court to avoid ruling justly and properly on any issue brought before it.
Finally, if you read Marbury v. Madison, it seems pretty clear that any grave abuse of discretino by the PAPP is a grave abuse by the President!
do you then consider 19 jan 2001 as a precedent, dean?
No just one example of “constitutional crisis” being a commonplace in this jurisdiction. BTW, the expanded certiorari power of the SCORP was not something SCOTUS knew about at the time of Marbury v. Madison as I guess it had not been invented yet and SCOTUS doesn’t have it. But one thing the decision seems to suggest is that the discretion of the President’s men is purely presidential discretion and their acts are his acts. I think an argument could be made that only President Arroyo could possibly be guilty of the “grave abuse of discretion” pinned on the hapless Hermogenes Esperon (who barely warmed the seat of PAPP when he got burned for GMA/Dureza’s crimes).
jester,
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?
so far, you are only one looking at the subject from its pragmatic constitutional point. but the above-quote is the reverse of my theoritical scenario.
my theoritical point of view had passed the stage of the court been through the dicta that the MOA-AD is unconstitutional, but despite the ruling the the MILF cotinue to incurs (my apology to danilo, who maintains that the occupation of the ancestral land is legit)into these so-called “ancestral lands”.
the Executive did nothing to repel the “incursions” (again my apology to Danilo). That the SC cannot order the repulsion is admitted.
Then I make the analogy to that dilemma of Justice Marshall in Marbury v. Madison where the court could have made a real constitutinal mess where despite its pronouncement, the Executive would not follow the Court.
So from my theoritical point of view, inasmuch as the Executive has abandoned the MOA-AD, the court could have stop short at making a pronouncement that the MOA-AD is unconstitutional and just dismiss the petition for being moot. The court, from my standpoint was making itself in the center of the controversy itself to addres the political temper of the times, and it is joining the political affray.
Contrast the position of the SCORP with the position of Justice Marshall in Marbury v. Madison. He took pains in explaining the issue of separation of powers and he would not have want the court to take issue with the Executive on matters that are purely “political” where he could have make easily issued the delivery of the commision to Marbury, because the act of withholding the commission by Madison was illegal.
But
continuation,
But Justice Marshall has avoided the confrontation by saying that “the mandamus” jurisdiction” of the court granted by congress was not one of the original powers granted to the Supreme Court by the Constitution, and therefore the Court cannot issue the delivery of the judgship commission to Marbury.
The case is a landmark in the sense that the Court was able to establish the principle of “judicial review” and at the same time the “political law doctrine” and the respect that each co-equal branch must bestow on each other in the discharge of their constitutional duties without creating constitutional crisis. :)
i mean the principle of “judicial review” and at the same time the “political question doctrine”.
jcc,
I wish we could move this discussion forward beyond your intransigent position that somehow SCORP is wrong and has strayed from the path of the Great White Fathers (no disrespect).
I think it is merely factual to note that the Court has ruled on the issues of moot and academic and political questions doctrines in detail in the decisions, and apart from quoting generalities, I have not had the privilege of hearing from you any cogent argument against their point that the MOA-AD is an integral part of a peace of process that began in 2001 and is likely to outlive Arroyo (and the rest of us).
But I would be interested in your opinion, just for the sake of argument (assuming you get off the duff that the Scorp ought to re-read your textbooks) regarding the question of WHO has really been guilty of the grave abuse of discretion found by the Court (your continuing objection notwithstanding)?
There have been 3 PAPPs since the Tripoli Agreement of 2001 (Ging Deles, Jess Dureza, Hermogenes Esperon).
Which of them committed grave abuse of discretion?
Constitutional law is not my best suit. Civil and criminal procedures are so I decided to practice my law rummaging every court corridors in Quezon City, but that was 8 years ago.
It was my constitutional handicap that fodder my interest to seek for higher constitutional ideals.
So I begin to reread the Federalist Papers by Hamilton, the Thomas Jefferson Letters and a couple of landmark constitutional cases on constitutional law. As I brushed myself with the genius of the past, one particular ideal of Republicanism I have come to revisit is the principle that power is invested to the people and the people is sovereign. The constitution is only the expression of the sovereign people. It is said that they are free to alter it or even trashed it.
The tripartite form of government confines tightly compartmentalized powers and authorities to each branch. The duty to interpret the constitution is textually committed to the Court, the purse to Congress, the execution of laws and foreign policy determination to the Executive. But in the course of civilization, those well-defined textual allocation of powers are oftentimes blurred by human vanity. Thus in one dark period of our life as a nation, we see the Judiciary under the grip of Mr. Marcos and he had ruled the country outside the authority of Congress and at another time, the Judiciary would like to place the Executive under its grip.
Sometimes these powers conceded to each branch are being used to bully or blackmail another branch. I can see the bullying of Congress against the Chief Justice Davide because he has engineered the oath taking of GMA or the bullying of SCORP against Congress when it prevented the latter to inquire into Executive Privilege and the bullying of the SCORP of the Executive when it branded the MOA-AD, which according to the government has already been abandoned and placed at the backburner and this SCORP bullying the Executive cascaded into Congress bullying the Executive because on the basis of the SCORP rebuke of the Executive, Congress has initiated an impeachment against GMA.
Now you can see the realignment of SCORP and Congress against the Executive.
Not that one branch has moral superiority over the other because the functionaries in one branch are as corrupt as the functionaries in the other branch. So admittedly, all these bullying are designed to extort “ransom”. The ransom being asked of GMA is to make sure that she does not engineer a “cha-cha” to prolong her empire.
If you read you read the SCORP rebuke on the executive because of the unconstitutional MOA-AD, you have seen the worst “constitutionalism” RP version.
I go back to Justice Marshall in Madison v. Marbury. This case is a classic example of judicial restraint and prudence. No pontification, only a pure deliberation on the law and the attitude one branch should bestow on the other branch.
Further court rulings had solidified its respect to the executive branch when it ruled that where no “judicially manageable standard” is available, the issue becomes non-justiciable and political.
I read these doctrines in line with the observation of Thomas Jefferson:
[For the] difficult task in curbing the Judiciary in their enterprises on the Constitution . . . the best [remedy] I can devise would be to give future commissions to judges for six years [the Senatorial term] with a re-appointmentability by the president with the approbation of both houses. If this would not be independence enough, I know not what would be . . .
The Judiciary perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every sixth year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation.
Thus my conclusion is that the worst enemy of civil liberties is the Judiciary and not the Executive. The judiciary did not rescue the arrest of thousands of political prisoners from the clutches of Mr. Marcos. Cory rescued some when he ordered release of political prisoners when she assumed the Presidency.
The SCORP can pervert the constitutions but Congress and the Executive cannot because these branches do not interpet the constitution.
djb,
Frankly i just read the conclusion in the papers that the SCORP considered the MOA-AD unconstitutonal. I did not go into the ratio-decidendi of the court. But I am a sort of a guy who has adopted the attitude “if you have seen one, you have seen it all”. So what is new about the Cotabato vs. GRP? or the Tripoli Agreement as it relates with MOA-AD? Pleas tell me.
Also in this respect, I repost my prior post at PCIJ:
SAME SIDE OF THE SAME COIN
One of my favorite professors in college was Prof. Perfecto Fernandez and not Justice Vicente Mendoza when it comes to constitutional law issues. And the irony is, Prof. Fernandez is an authority on labor laws while Prof Mendoza is an authority on constitutional law. Prof. Fernandez is physically impaired, but his legal mind is not. He goes to college with a cane and he limps. Professor Mendoza loves to talk Greeks in class, while Prof Fernandez speaks constitutional reality with a great sense of humor.
He said that hard cases have the tendency to unmake the Supreme Court. He made this statement in relation with the case of Executive Secretary vs. Javellana, the infamous ratification cases in 1972 under Mr. Marcos. I attended college of law in 1974.
On hard cases, he said, the SC would like to play like a discordant symphony playing a cacophony of tunes. One Justice would partially dissent but nonetheless would agree with the result arrived at by the majority; some would dissent on every point raised by the majority while others would simply affirm the majority opinion and each justice would write his thesis displaying his collective wisdom or lack of it for future scholars to ponder and think about.
In every decision, a jurist can cite flavorful authorities in support of the issue for or against it and all positions have respectable and tenable arguments and sometimes one wonder if the majority opinion was arrived at after serious and conscientious deliberations in a session hall or in chamber by our distinguished jurists, or simply arrived at in a banter a dice table.
Prof. Fernandez said that at times it is discernible enough that the SC had already made its mind on a particular issue and disposing of it is only a matter of looking for the authorities that support this position rather than closely examining these “positions” or what scholars would love to call “jurisprudence” if they still hold meaning and wisdom in the light of contemporary events.
Sometimes, cases you read would give you an idea that as if the SC have agreed to disagree even before being confronted with the issue they are disagreeing on and the assignment of who will write the majority and minority opinion is a matter of pinpointing which jurist has the profound bias in favor of the majority position and which one has the distaste for it to write the dissenting opinion.
But believe me gentlemen, all of them belong to the same side of the coin. Those were not the exact words of Prof. Fernandez, it was my paraphrasing of his legal thought.”.
My conclusion in this present post is that had the SCORP consider the MOA-AD moot and academic, it could argue the position with the same flair and compelling arguments because there are equally weighty authorities to support the position.
ah, i see now, jcc. thank you.
i will take off from that second paragraph above, and will illustrate that the theoretical thesis holds.
for the executive to do nothing to repel an incursion (or drive out an occupying invader), it will order one or both of two options.
the first option is to order the AFP to (in order) 1. cease fire in place, 2. withdraw from the forward edge of the battle area (FEBA) back to their bases, and 3. abandon the bases and emplacements and withdraw completely, declaring the abandoned areas as “open cities/ provinces” (like manila to the japanese in WW2).
such an order is patently unconstitutional as well, under art ii, section 3.
on a more personal level — with the the technical term is “will to combat”, which is the motivation for a soldier to go into conflict — i do not doubt that the boots will not be pleased with such an order. soldiers not being the automatons many idiot militants portray them to be, the average combat soldier sees in the faces of the civilian populace he is sworn to defend the faces of his father, his mother, his wife, and his kids. also, having lost comrades in the conflict in that area, with the saying that “where comrades’ blood has been spilled, the land becomes valuable”, the average combat soldier will not be pleased to hand over without a fight that which his brothers have bled and died for.
if ordered to withdraw and leave the land where they’ve shed blood and leave the civilian populace behind to the tender mercies of the MILF occupying forces, theoretically the AFP would have both constitutional and visceral basis to declare such an order to be illegal and thus refuse to follow.
the other option for the executive not to repel an incursion or drive out an invading occupying force will be for the executive to order the soldiers to cross the FEBA with terms of unconditional surrender. the executive’s other option would be to tell the AFP to stack arms and allow the MILF to occupy their bases and emplacements, hold the government troops as POWs, and negotiate for a repatriation of prisoners.
perhaps this could be considered a lawful order under the constitution’s article vii, section 18, even perhaps arguing validly that it could be in the best interest of the civilian populace that such an order was issued… but as a practical matter i am not sanguine over the chances the executive would remain in power should the AFP be ordered to surrender to the MILF.
jester,
that these are invaders is a political issue. once these invaders have taken hold of the island, raised their own flag and managed to invite international recognizition, you have a separate republic of mindanao.
don’t get me wrong. i am not in favor of dismembering the archipelago and i believe in the concept of one nation one flag and that the archipelago is composed of Luzon, Visayas and Mindanao, or the 7,100 islands.
my point here is that the SCORP could have strengthened the Executive by allowing it the untramelled prerogative on issues that are political and not undermine it. Inasmuch as the Executive has already scrapped the MOA-AD, declaring the issue moot would have been the better option. SCORP rebuke is equivalent to slapping the President while she was addressing the issue of peace and order in Mindanao. This is most irreverential act of SCORP if you go by the standard sets by Justice Marshall in Marbury.
My point is not GMA specific, because I would have the same point of view regardless who is the incumbent President.
Unless of course the SCORP rebuke is a charade so GMA can save face and tell the Muslims, “i was really for it, but the SCORP would not like it”.
but jcc, i don’t see how that is germane to the question on who, theoretically, will the AFP follow in such scenarios we’ve gamed above, whether it be the executive or the judiciary.
the tennis game between the supreme court and the royal court has been sufficiently discussed by DJB, methinks.
jester,
we are discussing the matter theoritically. GMA will order the repulsion because she is the commander-in-chief, and plus the fact that she has already abandoned the cession of the island of Mindanao to the Muslims. That as a President who has been pressured by the “political atmosphere” to abandon the “proposed cession”, she is duty-bound to order the Army to repulse what you call the “invaders”, with our without the sanctimonious pronouncement of the SCORP.
My theoritical model is that if GMA would not order the AFP to repulse these “invaders” (my apology again to Danilo) can the SCORP order the Army so it can give meaning to its pronouncement that the Muslims are “unconstitutionally” occupying their territories?
jester,
so your position is that if GMA would not order the AFP to repel the Muslims, the SCORP in alliance with the GMA-bashers will replace GMA so they can have their own stooge to order the repulsion?
jester,
my post above is an attempt to highlight the political question doctrine. judicially manageable standards, from my standpoint is that concept where the the court is unable to enforce its decision because of the political realities and it not equipped with administrative tools to enforce its decision and therefore it is better getting out of the area and allow the executive to address it.
can the SC issue an order? no.
however, in such a situation where the executive would order the AFP not to repulse the occupation, we’ve gamed it via my 3:35 reply to you. as such, for the executive to perform either or both options mentioned therein would put the executive at risk of having the praetorians turn against the palace.
as to your 8:35, that is not my position either. i merely point out in 3:35 that the AFP will be a) not pleased with such an order and b) have both legal and visceral cause to disobey such an order.
as to your 9:01, even if the political reality does demonstrate the SC not having administrative tools to enforce its decisions (being dependent on the executive for its muscle) the SC’s decision in this theoretical case will give rise to a cause for the AFP to disobey their commander in chief, the order not to repulse the invader being unconstitutional, morally untenable, or both (via nuremberg principle iv).
jester,
One thing I found odd at this concept of constitutional triumvirate is the idea that where Congress and the Executive transgress the Constitution the people can go to the Judiciary and ask that it be declared void. But where the Judiciary perverts the Constitution we call it the law of the land and the people can go nowhere for its transgressions. Where the two branches which are supposed to be co-equal of the Judiciary are rebuked on this instance the people can boot them out of office comes election time. Meantime the jurists who perverted the Constitution still hold party all year round secured in the thought that they are life-tenured and can dish out their most atrocious constitutional enthusiasms free from censure from the other branches and from the people who is supposed to hold the sovereign power over these distinguished jurists.
as to your post on 11:38, is not the nuremberg trial about foreign military leaders who ordered the massacre of occupied people? we are talking here of our own people who happened to have different faith from us. the AFP may justify its position not to assault them in the light of this particular circumstance.
err, jcc, the nuremberg principles, among them the precept that “following orders is not a defense”, are now part of international law, and consti 2:2 makes RP bound to them. i would have thought that this was taught in law school.
jester,
we do not intend to prosecute the AFP in the international court but in our local court. do you think that the nuremberg principle has any bearing on this?
jester,
i think it is quite different. the nuremberg principle that the soldier cannot raise the defense of “just following order” that is why he killed people is totally different from a soldier who did not shoot people because he was ordered by his commander-in-chief not to shoot people.
re your 12:58 — do the nuremberg principles have any bearing on local courts? answer: consti 2:2, and quite a lot of local jurisprudence that have incorporated international law, even SCOTUS decisions as controlling doctrines.
re your 1:08 — will you not agree that if a equals b, not a equals not b?
jester,
how i wish political and criminal law are as simple as a math equation.
in our model one act resulted in killing of some people in the other it did not result in the death of people but though both acts are unconstitutional.
the first calls for the application of one’s sense of moral right (kill because it was ordered) and the latter calls for an iquiry on the soldier’s mind in refusing to kill because the Commander-In-Chief did not give the order to kill.
put in the hands of people who will act as jurors, the soldier in the first model has a lesser chance of getting acquittal while symphaty on the soldier of the second model could be overflowing.
the inquiry on the conduct of man before a court of justice rest not on unbending rules of science as math, but on the bias or fiddleness of human conduct.
jester,
i don’t know your consti: 2.2. but if a soldier kills because of an unlawful order, the court need not delve on consti principle. it will just dispose of it under the criminal code as the unlawful killing of a person without justification. the unlawful order is not a ground to kill unless a gun is put on his head to kill another, in which case he was under duress, but even then such would only serve as a mitigating circumstance but not an exempting circumstance.
apologies. you are practicing in the US, then?
here’s why the philippines is bound to the nuremberg principles:
consti 2:2 (hehe) is Article II, section 2 of the 1987 constitution says, “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (emphasis mine)
as to your 12:50 and 12:56, they seem to be non-sequiturs to my answers to your 12:58 and 1:08 comments in response to my 8:32. to finally put a tack on that, the statement “if a = b, therefore not a = not b” is simple deductive logic used in law and jurisprudence. do correct me if i am wrong in saying that deductive logic is not something used in the practice of law.
jester,
consti 2:2 was also in the 1935 consti but the provision is not nuremberg principle specific.
disabuse your mind about it and look at our model as a plain prosecution of AFP personnel for not shooting the Mindanao “invaders” because they were ordered by the Commander-In-Chief not to shoot and the order was unconstitutional. The most that they can be charged with is “derelection of duties”. A purely administrative proceedings where the penalty is dismissal from service.
Look at the other model again where AFP personnel were ordered to shoot innocent people knowing full well that the order was unlawful and they shot people. They can be charged with murder for this act. You do not have to invoke the nuremberg principle or consti 2:2. This is a simple case of homicide or murder and they are defined and penalized by the revised penal code.
When you used the dedactive reasoning that if a=b then b=a. If you apply the equation to our models you will notice that “a” is not really equal to “b” and therefore “b” will not be equal to “a”. It was only you who consider that inasmuch as both “a” and “b” were unlawful or unconstitutional, then one is but the representation of the other.
here is your confusion of the nuremberg:
“as to your 9:01, even if the political reality does demonstrate the SC not having administrative tools to enforce its decisions (being dependent on the executive for its muscle) the SC’s decision in this theoretical case will give rise to a cause for the AFP to disobey their commander in chief, the order not to repulse the invader being unconstitutional, morally untenable, or both (via nuremberg principle iv).”
You already assumed that the soldiers will repel the invaders despite the order of the CIF not to repel, then you support your position that this was by virtue of the nuremberg principle. Actually you were applying the principle in “reverse”.
The nuremberg principle is a concept that if the order given to the soldier to kill is unlawful, the perpetrator cannot raise the defense that he was just following the unlawful order of his commander.
when i said in one of my posts that “lawyering should be left to lawyers” it was for the reason that laymen see legal points from laymen’s point of view but there position is not necessarily incorrect or incoherent, only that some nuances can escape their untrained eyes.
i mean, their position is not x x x….