The ‘following orders’ fallacy: From security guards to the ICC

There is a chilling phrase echoing through the halls of the International Criminal Court (ICC) these days: “I was just following orders.” To a young police officer or a career general, it sounds more like a confession than a valid defense. This mantra—the “following orders” fallacy—is the national anthem of the unaccountable. It is the shield of the underpaid guard, the “ninja cop” in Pampanga, and, if the rumors are true, the soon-to-be-indicted “Big Players” in the government’s war on drugs.

Walk into any mall or office building in Metro Manila, and you may eventually encounter a security guard who prevents you from entering for a reason that defies common sense. When you challenge the logic, the response is almost always the same, delivered with a shrug: “Order lang po, Boss.” (just following orders). As an 86-year-old geezer of the law, I have a timely reminder for these subordinates: “Just following orders” may not shield you in the eyes of the law.

The ICC recently reminded the Philippines that “superior orders” will not shield an individual from justice. As we look at the possible indictments of Sen. Ronald ”Bato” dela Rosa, former Justice Secretary Vitaliano Aguirre II, and former Philippine National Police chief Gen. Oscar Albayalde, the message is clear: The law does not recognize a “blindfold” as part of the uniform.

History is a cruel teacher. At the Nuremberg trials after World War II, the world decided that “I was just doing my job” was not an excuse for mass murder. Section 12 of our own Republic Act No. 9851 (The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), explicitly states that an order from a superior shall not relieve a person of criminal responsibility. Even our own Revised Penal Code is clear. Article 11, Paragraph 6 states that obedience to a superior is only a justifying circumstance if the order was issued “for some lawful purpose.” People vs Midoranda (1950). Otherwise stated, the subordinate has a legal duty to refuse. A verbal command from a president or a general to “neutralize” or “bypass the rules” does not rewrite the law. For the defense of “obedience to a superior order” to prosper, the order must not only be within the officer’s authority but must not be patently illegal. An order to “neutralize” a suspect without a warrant, or to bypass the inventory of a massive drug haul in Pampanga, is not a “lawful purpose.” It is a crime. Everyone involved becomes or can be held to be a coprincipal or a coconspirator.

If the rank and file need a modern-day warning, they need only look at the Sandiganbayan. Today, we see lower-ranked employees of the Department of Budget and Management and various nongovernmental organizations still facing criminal prosecution for the Priority Development Assistance Fund and Disbursement Acceleration Program anomalies. Where are the “Big Bosses” who signed the memos? Many are enjoying their retirements or seeking “medical treatment abroad,” while the clerks and division chiefs—the ones who “just followed orders” to process the disbursements—are spending their life savings on legal fees and facing years in prison.

In the eyes of the Ombudsman, “I was just doing my job” is no defense for facilitating a plunder.

We’ve seen the script. Whether it’s the “ninja cops” linked to the big drug busts in Pampanga or the architects of the Davao model, the “Big Players” are beginning to realize that sovereign immunity has an expiration date. When the plane takes off for that “medical checkup” in Singapore or some far-flung tourist-starved foreign country, the poor subordinates are left holding the bag or neck braces—and eventually, the handcuffs.