Monday, 27 August 2007

"SB 1862: A Slippery Slope" Part 1

Senate Bill 1862 seeks to provide a fixed term for the CSAFP and major service commanders of the AFP. Originally introduced as Senate Bill 1284, after committee hearings it was substituted with SB 1862 which is a result of a merger of SB 1284 and SB 67 of Sen Loi Estrada which intended that no officer be appointed as CSAFP when he has less than a year in the active service. It also includes the qualification that the CSAFP and the major service commanders "can only be removed for cause."

The objectives of the bill, according to its principal sponsor Sen. Biazon, are as follows:

  1. To prevent the trivialization of the position of the Chief of Staff thereby preserving its integrity; and
  2. To provide stability to the leadership of the Armed Forces of the Philippines by fixing the duration of the term of corps leadership so as to ensure continuity and consistency in the formulation and implementation of policies and programs.
I am afraid the legislation might have unintended consequences. This is a piece of legislation too preoccupied with the present, it disregards the future.

In intending to depoliticize processes concerning the armed forces, it might undermine the principle of civilian control of the military. In attempting to make the armed forces apolitical, we are courting them to throw their hat into the political ring. In attempting to insulate the armed forces from politics, it might lead to an armed forces who has a separate definition of "national interest" from the civilian authorities.

In the book "The Man on Horseback", Samuel Finer avers that:
"The moment the military draws this distinction between national interest and the government in power, they begin to invent their own private notion of national interest, and from this it is only a skip to the constrained substitution of this view for that of the civilian government; and this is precisely what we have defined as the very meaning of 'military intervention'."
My position that making the CSAFP a statutory position with a fixed term clashes with the principle of civilian control of the military rests on the fact that the CSAFP remains in the chain of command of the AFP. Reference has been made in the Senate deliberation proceedings to the Nichols-Goldwater Act of 1986 which reorganized the US armed forces following the slew of debacles it encountered, primarily concerning inter-service rivalry and service inter-operability. The said law prescribes a term of office for the Joint Chiefs of Staff and limits the US President's choice for the position to the major service commanders (chiefs of staff), vice chairmen of the Joint Chief of Staff and the unified commands (Centcom, CPAC, etc).

There is, however, one very glaring difference. The Joint Chief of Staff has no operational command of the troops. He is not part of the chain of command. Without authorization from the President or the Secretary of Defense, he cannot command the troops on the ground on his own authority. He is, however, not powerless. He is the most influential military man on the President's round table. And this is why many consider that the Nichols-Goldwater Act makes the Joint Chief of Staff too powerful. If he can monopolize the President's ear, he is the kingmaker!

Contrast that situation here. The CSAFP and the service commanders retain their position in the chain of command. There is a unified commander in the field but I do not know of any operational guideline that straightens out the matter of accountability and conflicting orders.

Now, if the CSAFP already exercises operational command of the troops, is the senior military adviser of the President, and with the subject bill, equipped with a fixed term, what are the consequences? Further, as the proposed law intends, he can only be removed "for cause" which the proposed law strangely fails to provide.

At the center of this question lies the principle of civilian control of the military. At the outset, let me make it clear that this principle is not the same as the principle of "civilian authority is supreme over the military". The former is only a component of the latter. The former emanates from the so-called "commander-in-chief powers" of the President. The 1987 Constitution makes the President the sole entity who has operational command and control of the troops.

So, what happens when the CSAFP disagrees with the President over a matter of policy or strategy, even privately? Who wins? Is this a "cause" that would justify getting fired?

If the President replaces or fires the CSAFP, he would be opening himself/herself to accusations that he/she is attempting to subvert the integrity of the armed forces. Under the proposed law, the burden of proving that the termination or replacement of the CSAFP was for a legal cause would be upon the President. Every action or omission of the President will be scrutinized and analyzed for politicking. What we will then have is a President who will have to tiptoe around all issues concerning the military. The President is virtually a hostage.

6 comments:

Karl M. Garcia said...

Jaxius,
As promised(hope you read my reply)
I will have a visit,and what a nice tour!

Karl M. Garcia said...

Granting ,that this might have originated from a PMA Clas which has a long way to go before retirement and has ambitions of a CS position, the bill might me shortsighted.
A lot of politics to tackle here,it might be a war of the classes and so on.

What I said about the magna Carta for professionalism,even in just a reiterative way, I guess that would be a good bill.

You are correct the president president or future will lose flexibility and the professionalism of the military will become zero.

Jaxius,
I might have told you that I work for the senate deffense committee,but I am just a civilian,and I am just opining as a civilian.In addition,I am just a newbie there,but have been assisting my dad (who is an adviser to Biazon)in some of his work for quite a while.

I don't even know if you are a military lawyer or a presidential adviser or have met my dad at one point in time.Or maybe even more than once.Don't worry I won't ask who you are?

Continue to share the valuable knowledge.

In my opinion again,this bill won't stick :more con than pro.

PS.
Please do not erase your posts,I like to back read archives,if and when I have the time.

Jaxius said...

Karl,

Let's just put it this way. I am no military lawyer. However, the law and the military are my lifelong interests.

Karl M. Garcia said...

Thanks again,

Point taken,

The military has been an interset of mine to but have not joined the PMA for some reason.

One more thing, if you tell me that you
are not a lawyer,I won't believe you,hehe :)

Ingat,
Karl

Karl M. Garcia said...

Sorry for the damn typos.
Sort of a trademark.

One last thing to add. This is just a speculation.
The seniority principle in the PMA makes them hurt inside when bypassed.

Nothing to do but keep it to themselves,if they are professional enough.

AdB said...

I don't think it's practical, to say the least, to have a mandatory fixed term for the chief of staff AFP for the reasons you cited.

UK, France and US militaries do not impose a fixed terms either -- don't understand why the Philippines should be different; might as well offer promotions by way of ballot.