[OPINION] Police discretion is advised
When your country is run by a man who shows little concern for the traditions and rule of law, whose every other statement is either an ambiguity or a joke, here’s the thing: the police can refuse to follow patently illegal orders.
The Philippine National Police force is not a private army. It is a respectable institution founded upon the rule of law, upholding the concept that in this government, civilian interests rule supreme.
Article XVI, Section 6 of the 1987 Philippine Constitution provides thus:
The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.
In line with this, the Philippine National Police was created by Republic Act No. 6975 in December 1990. The law merged the then-existing Philippine Constabulary and the Integrated National Police, at the same time demilitarizing the duty of keeping public safety and security.
In its declaration of policy and principles, RA 8551, which amended RA 6975 in 1998, reiterates accountability, and emphasizes uprightness in the police exercise of discretion.
The ethical police force
Good moral conduct is a minimum qualification and arguably a continuing requirement under Section 30 of RA 6975 as amended.
In the 1992 Philippine National Police Ethical Doctrine Manual, Section 2.2 states that "respect for authority is a duty." However, such is qualified.
First, that the said authority is not any person, but rather the Constitution, the laws of the land and applicable rules and regulations.
Second, while it urges the police force to recognize legitimate authority of leadership, they are only duty-bound to obey the legal orders of superior officers. Anything outside the scope of legality is similarly outside their duty to perform.
Under its 2014 version, a similar concept is emphasized: PNP members shall obey lawful orders […] within the chain of command. Notice the qualifying word.
From the declaration of its policy and principles, as well as its ethical standards, the police force recognizes that it does not have to follow orders which are outside permissible law. Indeed, they duty-bound not to follow them.
The consequences of upholding ethics
But what are the possible consequences of such actions? Can these outstanding, morally-upright individuals lose their jobs, or will they be protected by law?
Under Section 41 (c)(2) of RA 6975, insubordination is considered a minor offense. Even if a police officer commits it without reasonable grounds, it does not merit such a strong penalty as removal from office or suspension. Especially so if such refusal to follow orders comes with a legitimate reason: the question of insubordination will not even be applicable. (READ: PNP rejects Duterte gift remark: We're bound by law)
Under the Revised Penal Code (RPC), in fact, police officers are liable for following illegal orders. Under Article 11, circumstances justifying the commission of an offense only apply when orders have been issued for a lawful purpose. Otherwise, individuals following said orders shall be liable and moreover be tried as a principal in the commission of the crime. Should the scales of justice be tested, this will be an interesting situation should police officers follow a superior officer’s patently illegal orders, especially if said officer enjoys executive immunity and they do not. Unless they are willing to go to jail for committing illegal actions espoused by their superiors, their caution and use of discretion is highly advised.
Articles 151 and 231 of the RPC shall also not be applicable in this case because disobedience to persons in authority, or refusal to execute their orders, presumes that the latter are engaged in the performance of official duties, acting within their jurisdiction and issuing commands with all the legal formalities. Such is not the case for illegal orders. (READ: Duterte says he's given billions to PNP for drug war intel work)
In general, illegal orders are those issued against the spirit of existing law, as well as those without the necessary formalities as prescribed by the legal process. For instance, statements of violence made in press conferences which are against human rights.
What are the concrete examples of these illegal orders issued in recent time?
First and foremost is the order to use deadly weapons against civilians, particularly in the absence of a grave threat to the lives of security and safety officers. Such orders, succinctly called "shoot-to-kill," are clearly illegal, especially in a country where we have suspended the death penalty. To do so is a violation not only of national law but international obligations as well, under the Second Optional Protocol to the International Covenant on Civil and Political Right (ICCPR). (READ: 'Shoot them dead': Duterte orders troops to kill quarantine violators)
Police officers who blindly comply with this are liable for murder, under Article 248 of the RPC. Imagine shooting hungry, defenseless people, feeding them bullets, just because they are asking for food and demanding accountability. If this is not a crime of moral turpitude, then nothing is.
Arresting individuals under the sole order of a political official, without warrant and outside the ambit of warrantless arrests, is another excellent example. Follow this illegal order, and the police officer can be liable under Article 269 of the RPC for unlawful arrest. This offense has the potential penalty of incarceration and a fine.
Before I left for further studies abroad, I have taught modules on criminal psychology and international criminal justice to some of the brightest law enforcement officers in the country. My students were smart, hardworking, and professional, and I learned a lot from them, as much as I hope they learned a lot from me. These men and women are the future leaders of our current criminal justice system.
Throughout my lectures, I kept emphasizing the importance of human rights. My assessment activities also aimed to imbibe in them human rights in practice. I take pride that they cascade these lessons down to their subordinates.
As an officer of the court and a representative of justice, I am not advocating for blanket police disobedience to executive authority. What I’m asserting is this: the President is a man who uses strong words lightly. Police officers should use their best judgment. If there are legal bases for not following orders, they are under obligation to the Constitution, the country and the people they serve to disobey.
Please stand your ground, gentlemen and fearless women. Use your discretion in ascertaining what is moral and what is legal. Cleanse your ranks, uphold the Constitution and human rights, and we, the civilians holding sovereign power, will fully support you in fighting the good fight. – Rappler.com
Chad Osorio is a lawyer and legal academic advocating for international and transnational criminal justice. He strongly believes in youth leadership and environmental protection.