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Sep 12

The Long View: Dangerous articles

Dangerous articles

First posted 22:25:30 (Mla time) September 12, 2004 
Manuel L. Quezon III 

Inquirer News Service 
 

 

WHAT surprises me is not that Rep. Antonio Diaz of Zambales has threatened to resign from the House of Representatives; it is the possibility that his resignation might be illegal, a possibility raised by an unnamed justice department source citing Book II, Chapter 6 (“Other Offenses or Irregularities by Public Officers”) of the Revised Penal Code, specifically, Art. 234 thereof, which reads: “Refusal to discharge elective office. The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.”

The operative words in Diaz’s case would be “legal motive.” By his actions and statements, can Diaz assert he possesses any “legal motive” to relinquish his office? Or might it be argued that he cannot resign merely for the reason that he was unable to get the position of deputy speaker in the House?

Not being a lawyer, I haven’t the vaguest idea of how “legal motive” might be interpreted. But I would like to suggest that not just Art. 234, but all the other three articles of Book II’s Chapter 6 should be revisited.

These articles penalize the following:

Art. 231. Open disobedience. “Any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities.”

Art. 232. Disobedience to order of superior officers, when said order was suspended by inferior officer. “Any public officer who, having for any reason suspended the execution of the orders of his superiors, shall disobey such superiors after the latter have disapproved the suspension.”

Art. 233. Refusal of assistance. “Public officer who, upon demand from competent authority, shall fail to lend his cooperation towards the administration of justice or other public service, if such failure shall result in serious damage to public interest, or to a third party.”

All four articles seem to me dangerous articles indeed. They are relics of colonialism.

Recall that the Revised Penal Code is an old law. It is Act No. 3815, approved by the Philippine Legislature on Dec. 8, 1930. In those days-up to July 4, 1946, in fact-all Filipino officials took an oath of allegiance to the United States government and pledged to uphold its “supreme authority” in the Philippines, as a condition to accepting, holding, and discharging any office.

It is in the light-the duty to uphold American sovereignty-that the above-quoted provisions must be viewed. They are designed to strengthen the legal grounding of foreign rule; they are not in keeping with a modern independent nation.

To be more specific, Articles 231, 232 and 233 with refusing to obey orders. Beyond the obvious intent of the articles-to prevent Filipinos from disobeying the American governor-general or subverting the apparatus of the colonial government-the articles fail to take into account the lessons of World War II. The Nuremberg, Tokyo and Manila war crimes trials all led to the widespread adoption of the principle that an order, even if legal, should not be followed if it contravenes morality. For example, German and Japanese officers were sent to the gallows because their argument that they “were just following orders” was not accepted as a valid defense.

Art. 231 sounds as if it could have been written by the Nazis: as long as a superior issues an order “with all the legal formalities,” it must be obeyed by an inferior official. This is the sort of rigid requirement of law that led to martial law with all its trappings of “presidential decrees” and “letters of instruction.”

Art. 234, too, is quite obviously a legacy of colonialism because it does not permit the refusal to hold or relinquish office on the basis of conscience. This is the sort of legal requirement that is useful, even necessary, to an occupying power; but not the sort of thing the law arms an independent government with.

I can think of many reasons why a person would want to decline to assume office, or to surrender it. I would like to find out how much latitude the law allows a person to exercise his or her conscience when it comes to holding-or letting go of-a public office. If you don’t think you can do any good, should you hold on to a position any moment longer? If you believe a government, possessing and exercising-“with all the legal formalities”-power or a mandate your conscience cannot and should not accept, shouldn’t you refuse to serve or simply quit? Some people may argue that once elected (and presumably, after having made the effort to run and campaign in the first place), one must serve; just as when asked by the president, he must, even in an appointive capacity.

This raises the question of duty. Do you have the duty to serve, even when you feel, for whatever reason, that your usefulness has come to an end? Senators leave the Senate all the time to take up appointive positions. What of the voters who elected them? If senators can quit, why can’t representatives, even if they quit out of pique? These questions may not be too serious in a relatively free democratic system, though they were burning questions during the Japanese occupation and during martial law. The fact, though, that they are still being asked and debated up to the present time is disturbing.

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