The Patriotism of Marine Col. Generoso V. Mariano

Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
July 24, 2011


May a soldier be detained solely by reason of his political beliefs and aspirations?

It is respectfully submitted the answer is NO.

FACTS
1. Colonel Generoso V. Mariano is a bemedalled officer of the Philippine Marines who has rendered more than 33 continuous years of military service to the Republic.

2. Sometime in the first week of July 2011, Col. Mariano’s less than four-minute video clip was seen on YouTube, where he was shown to have made the following declaration of his apparent political beliefs and aspirations:

“We soldiers are human too. Nararamdaman din po naming mga sundalo ang kahirapan na idinudulot ng walang humpay na pagtaas ng mga bilihin, mga gamot at pagkain. Nakikita din po namin na ang ating pamahalaan ay walang kakayanang gumawa ng mga hakbang upang iiwas tayo sa kagutuman at kamatayan. Wala pong pinagkaiba ang nararamdaman naming mga sundalo, sa nakikita at nararamdaman ng ating mamamayan.

Ngunit may katungkulan po kami na hindi namin nakakaligtaan—ang katungkulan na ipagtanggol ang mamamayang Pilipino. At kung ang kasalukuyang pamahalaan ay walang intensyon o kaya walang naisasagawa upang isalba ang buhay ng mga nakararami, it is the duty—it is the right of every Filipino, including soldiers—to replace the government. Huwag na tayong magpaloko sa mga nangangakong sinungaling. Huwag na po tayong pagamit para labanan ang kapwa nating Pilipino sa Mindanao. Huwag na po tayong maniwala sa mga istatistikong gawagawa lamang na umuunlad ang ating bansa, habang parami nang parami ang nagugutom. Ipaglaban po natin ang karapatang mabuhay at ang maunlad na kinabukasan ng ating kabataan.

Ang hangad nating mabuhay ay base sa Katotohanan, sa Katarungan, sa Kapayapaan at sa Kaunlaran.

Let us, once and for all build a nation based on Truth, for without it, there can be no Justice, and without Justice, we shall have no Peace, and without Peace, there will be no Development.

In the end, may I quote our national hero, Dr. Jose Rizal, who said that, ‘If we have had bad leaders today and in the past, it is not the fault of the many who know less, but the fault of the few who know more but who do nothing or who do not do enough.”

3. On July 15, 2011, he was served a subpoena and an order which immediately placed him under effective ARREST and DETENTION. The order reads:


“From: Flag Officer In Command, PN
To: The Naval Provost Marshal

Subj: Restriction to Quarters of COL GENEROSO V MARIANO O-115573 PN(M)(GSC)

1. In connection with the reports received by this Headquarters on the alleged involvement of COL GENEROSO V MARIANO O-115573 PN(M)(GSC) in activities violating the provisions of the Articles of war, you are hereby directed to immediately place subject Officer under restriction to quarters pending investigation of said reported offenses to be conducted by a Special Investigation Committee created for this purpose.

2. Submit to Headquarters a report of actions taken thereon as soon as possible.

3. For strict compliance.

(Signed)
ALEXANDER P PAMA
Vice Admiral, AFP”


4. On July 17, 2011, he reached the compulsory retirement age of 56 years.

5. On July 20, 2011, Presidential Spokesman Edwin Lacierda made public statements in reference to Col. Mariano, which the Philippine Daily Inquirer reported as follows:

“‘He may not have specifically mentioned President Aquino, but in his statement you could see who he was referring to,’ Lacierda said.

Lacierda said Mariano should make his explanations to the Armed Forces of the Philippines and Department of National Defense.

‘It’s a matter of reviewing the tape and hearing the statement he made and that’s up to the DND and AFP to evaluate,’ he said.” (p. A2)

6. The same report further states:

“Justice Secretary Leila De Lima said she had recommended the filing of criminal charges against Mariano for violation of Article 142 of the Revised Penal Code when he made ‘seditious remarks’.

De Lima said Mariano, former Deputy Chief of the Naval Reserve Command, could also be charged with violating other military policies on mutinous and seditious acts. ‘On the face of those statements…He may be held liable for inciting to sedition… because of those seditious remarks which tend to incite others to act against duly constituted authorities of government,’ De Lima said.

In a legal opinion, she said Mariano may have breached Article 63 (Disrespect toward the President), Article 67 (Mutiny or sedition), Article 91 (Provoking speeches or gestures) and Article 96 (Conduct unbecoming an officer and a gentleman) of the Articles of War.

The Justice Secretary said she issued the legal opinion on Monday (July 18) on the request of Brig. Gen. Gilberto Jose Roa, head of the Judge Advocate Generals’ Office.” (ibid.)

7. In sum, Col. Mariano is now DETAINED solely by reason of his political beliefs and aspirations. He is, therefore, a POLITICAL PRISONER.

The Law
8. IS HIS DETENTION CONSTITUTIONAL OR UNCONSTITUTIONAL? UNCONSTITUTIONAL. The libertarian 1987 Constitution expressly provides:

“NO PERSON SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.” (Par. 1, Sec. 18, ART. III)

Since the Constitution is clear and does not provide for any qualification or exception, there is no room for any qualification or exception. Where the law does not qualify, we should not qualify. Where the law does not provide an exception, we should not provide any exception. And, where the law is clear, there is no room for construction. Hence, the provision may be properly restated as follows:

“NO SOLDIER SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.”

The published pronouncements of the Executive Department show that, aside from the YouTube statement, there are no other grounds for his detention.

9. Assuming arguendo there is a conflict between such provision of the Constitution, on one hand, and the Articles of War and the Revised Penal Code, upon the other, it ought to follow that the latter, to that extent, would be UNCONSTITUTIONAL.

10. RETIRE means “to terminate employment or service upon reaching retirement age” (BLACK’S LAW DICTIONARY). Hence, when Col. Mariano reached the retirement age on July 17, 2011, his military employment or service was TERMINATED. He was reverted to the status of a CIVILIAN by operation of law. While he may have residual benefits for services rendered, there is no more legal obligation to serve.

11. WAS COL. MARIANO DEPRIVED OF A CONSTITUTIONAL RIGHT? YES.

a. His right not to be detained solely by reason of his political beliefs and aspirations was disrespected. His arrest and detention were based solely on his YouTube statement.

b. The Presidential Spokesman and Secretary of Justice are alter egos of the President. Under the doctrine of qualified political agency the action of the alter egos is the action of the President, unless the latter reprobates the same. Since the President did nothing with respect to the public pronouncements of his alter egos, it would follow that such pronouncements are effectively his own. The pronouncement to the effect that Col. Mariano’s statement constitutes “seditious remarks” is thus a prejudgement by the Commander-in-Chief. Col. Mariano’s statement has been PREJUDGED as SEDITIOUS even before any investigation has been completed. CAN THE MILITARY PANEL OF INVESTIGATORS OVERTURN SUCH PREJUDGEMENT BY THEIR COMMANDER-IN-CHIEF? They obviously CANNOT. Consequently, it would appear that Col. Mariano is being deprived of a fair and impartial tribunal which is an indispensable element of DUE PROCESS.

c. WHAT IS THE EFFECT OF SUCH DEPRIVATION OF DUE PROCESS? The Special Investigation Committee is thereby OUSTED OF JURISDICTION over the case. “Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgement in question is deemed ousted of jurisdiction” (Olaguer v Military Commission No. 34, 150 SCRA 144, at 161).

12. WHAT IS THE EFFECT OF COL. MARIANO’s COMPULSORY RETIREMENT WITH RESPECT TO THE MILITARY PROCEEDINGS AGAINST HIM?
Since the retirement is by operation of law, it follows that it automatically rendered the military-created investigation committee WITHOUT JURISDICTION over the person of the retired colonel who, since then, is now a CIVILIAN.

13. WHAT IS THE SCOPE OF AN ACCUSED CIVILIAN’s RIGHT TO DUE PROCESS? According to the Supreme Court: “Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty, the accused shall be entitled to, among others, a trial. The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system” (Olaguer Case, ibid., p 158).

It ought to be observed that this pronouncement shows faithful adherence to the constitutional principle of civilian supremacy over the military.

“Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” (Sec 3, ART II)

14. Col. Mariano appears to have the quality our ancestor Katipuneros would have been proud of. WHAT IS THAT QUALITY? The patriotism to serve up to the end of his term as a soldier with unadulterated truthfullness, regardless of the consequences.

Consequently, it would not be a surprise at all if, in fact, the majority of the Philippine Marines and the sovereign Filipino people are proud of him.