The Justice Secretary’s statement on the Mamasapano Report

The Justice Secretary’s Reaction to the BOI Report: “BOI’s wrong premise on the President’s role in the Mamasapano incident”

[Released on March 14, 2015]

The effort of the PNP Board of Inquiry on the Mamasapano Incident is laudable. The report attempted a comprehensive and full account of the incident in accordance with its mandate. This includes the role and accountability of key public officials.

However, this early, attention has focused on the purported role of the President as Commander-in-Chief of the PNP. The premise that the President is the PNP Commander-in-Chief is also the basis for the BOI finding that the President as Commander-in-Chief is bound by the PNP Chain of Command under the PNP Manual, and that the President bypassed the PNP Chain of Command as written in the PNP Manual.

Comprehensive as the BOI Mamasapano Report wishes to be, it starts on the wrong premise insofar as the role of the President as Commander-in-Chief of the PNP is concerned. As early as 23 years ago, the Supreme Court already declared in Carpio v. Executive Secretary (G.R. No. 96409; February 14, 1992) that the President is not the Commander-in-Chief of the PNP. He is not the PNP Commander-in-Chief because under the 1987 Constitution, the PNP is no longer part of the armed forces. The President is only Commander-in-Chief in relation to the armed forces. The PNP, being a civilian agency, is not part of the armed forces. In relation to the PNP, the President is the Chief Executive, in the same way that he acts as the Chief Executive to all the civilian agencies of the Executive bureaucracy.

Based on a wrong premise, the BOI Report on the nature of the President’s role can only arrive at a wrong conclusion. Inevitably, the BOI report gratuitously made the President privy to the PNPs erroneous dogma that he relates to the PNP as Commander-in-Chief. This unconstitutional and even illegal operating premise of the PNP cannot bind the President. The PNP’s mistaken 28-year tradition of treating itself as part of the armed forces and the President as its Commander-in-Chief can never ripen into a statutory provision or legal principle, most especially since the Supreme Court has already declared the contrary as early as 23 years ago.

Article 7 of the Civil Code of the Philippines provides that laws are only repealed by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. Art. 11 provides that customs which are contrary to law, public order, or public policy shall not be countenanced. Consequently, the custom or tradition of the PNP of treating itself as part of the armed forces, contrary to the Constitution and the law, can never become law without amending the 1987 Constitution.

Since the President is not the Commander-in-Chief of the PNP, he cannot be part of the PNP Chain of Command as Commander-In-Chief. He can only be part of the PNP Chain of Command as the Chief Executive of a civilian agency of the Executive branch of the government. Consequently, a PNP Manual laying down a chain of command cannot override the President’s constitutional and statutory prerogatives as Chief Executive. It cannot bind him to an erroneous understanding of the Constitution and the law. It cannot limit the President’s exercise of his powers as Chief Executive, including the exercise of the prerogative to go directly to a subordinate. The PNP Manual, for all its affinity to a military chain of command and a military command structure, does not change the constitutional and statutory intent that policemen are no longer soldiers, that the PNP is no longer part of the armed forces, and that its officers no longer relate to the President as their Commander-in-Chief, but as Chief Executive.

Instead of laying down this wrong premise as the foundation of its framework on the President’s accountability in the Mamasapano Incident, the BOI should have instead confronted this misplaced military culture and tradition within the PNP—as underpinned by its most basic belief that it is still part of the armed forces—head on. From this assessment, it could have gone deeper into the most basic premises of its organizational and command structure, and the relevance of the military-type chain of command to a civilian agency that must by law treat the President as Chief Executive, and not as Commander-in-Chief. It should have revisited and assessed the applicability of a centralized chain of command to an organization that, unlike the AFP which has a singular and unitary line of command from the Commander-in-Chief up to the lowliest private, has several lines of command and authority that include not only the President or the PNP Chief, but also the National Police Commission and the governors and mayors of provinces, cities and municipalities.

Notwithstanding the failure of the PNP Manual to reflect the President’s proper Constitutional role as Chief Executive in the PNP command structure, the PNP Manual can neither limit nor bind the President’s plenary control and supervision over the PNP as its Chief Executive. In this sense, the PNP BOI cannot assume to impose upon the President his role and corresponding accountabilities as Commander-in-Chief of the PNP, without itself understanding the very nature of the PNP as a civilian agency that should relate to the President as its Chief Executive.



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