Power as Commander in Chief

8/9/2019 Power as Commander in Chief

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THE PRESIDENT AS

COMMANDER-IN-CHIEF

Rodel A. Cruz

Forum on the Powers of the Presidency:Preventing Misuse and Abuse

Asian Institute of Management, 30 January 2010


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a. Scope

i. Military

Armed Forces of the Philippines (AFP)

Standing Force

Reserve Force

Civilian Supremacy Clause

Compulsory Military Service Clause

I. POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL

ARMED FORCES


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a. Scope

ii. Law Enforcement

Philippine National Police (BJMP/BFP)National Bureau of Investigation

General Welfare Clause (Police Power)

Faithful Execution Clause

iii. Intelligence Agencies (NICA, ISAFP, PNP)

v. National Security Council and

National Peace and OrderCouncil



ARMED FORCES


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b. Legal basis

i. Commander-in-Chief Clause1. Calling Out Powers

2. Suspension of the Privilege of the

Writ of Habeas Corpus

3. Declaring Martial Law



ARMED FORCES


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c. Requisites

i. Calling Out Powers

1. Exercised whenever it becomesnecessary; and

2. For the purpose of preventing and

suppressing:

a. Lawless violence

b. Invasion

c. Rebellion



ARMED FORCES


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c. Requisites (continued)

ii. Suspension of the Privilege of the Writ of

Habeas Corpus and Martial Law Powers1. There must be:

a. Invasion or

b. Rebellion

2. Public safety must require the exercise of the power

3. Martial law must always co-exist with the

necessity it is supposed to address.



ARMED FORCES


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d. Checks on the powers

i. Calling Out

1. Showing of necessityand the presence of invasion,

rebellion orlawless violence

2. Judicial review

ii. Suspension of the Privilege of the Writ of Habeas Corpus

and Martial Law

1. There must be invasion or rebellion2. Public safety must require it

3. Period of the suspension must be only for60 days,

unless Congress extends it if the invasion orrebellion

shall persist and public safetyrequires



ARMED FORCES


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4. The President must submit areport to Congress in

person or in writing within 48 hours from the

declaration ofmartial law orsuspension of the

privilege of the writ of habeas corpus

5. Congress, voting jointly, byavote ofat least a

majority ofall its Members in regularorspecial

session, mayrevoke such proclamation or

suspension6. Judicial reviewmay determine the sufficiency of

the factual basis of the exercise of the power



ARMED FORCES


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7. The Constitution ensures that all armed elements

will, underno circumstances, be used as an

instrument forpolitical purposes of the incumbent

President and Commander-in-Chief

8. The Constitution mandates the preservation of

particularcivil and political rights even during the

period ofmartial law orsuspension of the privilege

of the writ of habeas corpus9. Commission on Human Rights serves as a check on

the Presidents exercise ofmartial law powers



ARMED FORCES


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10. Mass media can also provide an effective counter-

balance to martial law

11. Right to information regarding matters that may

affect theirfundamental rights especially duringmartial law

e. Historical antecedents

i. In 1972, President Marcos issued Proclamation 1081

placing the entire country underMartial Law

ii. In 2001, President Arroyo declared a State of Rebellion

following EDSA 3

iii. In 2003, President Arroyo declared a State of

Rebellion following the Oakwood Mutiny



ARMED FORCES


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iv. 2009 Declaration ofa State of

Emergency followed bya declaration

of Martial Lawand suspension of the

privilege of the writ of habeas corpus

in Maguindanao following the

Maguindanao Massacre

v. US Antecedents



ARMED FORCES


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a. Legal basis

The powerto conduct waris a necessary

incident of the powerto conduct foreignrelations lodged with the Chief Executive

underthe Sole Organ Doctrine.

b. Requisites

Generally, the exercise of the poweris notpreconditioned on the existence ofany

requisites

II. POWER OF THE PRESIDENT

TO CONDUCT WAR


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c. Checks on the powerto conduct war

i. Underthe 1987 Constitution, avoidance ofwaras a

general rule is the established principle of theState.

ii. Ifwar is conducted pursuant to a treaty or

international agreement, such treaty or

international agreement must be concurred in by

2/3 of the Senate.


TO CONDUCT WAR


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iv. Subject to exceptions, a priordeclaration by

Congress ofa State of War is required pursuant

to the WarDeclaration Clause before the

President as Commander-in-Chiefmay prosecuteanywareffort.


TO CONDUCT WAR

iii. The provisions of the treaty or international

agreement can also be subjected to judicial review

on the ground of unconstitutionalityand/orgrave

abuse of discretion on the part of the President.


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TO CONDUCT WAR

d. Historical Antecedents

i. The Revolutionary Government & US-Philippine War

ii. World WarI and the Philippine National Guardsiii. World WarII and the Philippine Commonwealth

iv. The Korean Warand Philippine Army Battalion Combat

Teams underPEFTOK

v. The Vietnam Warand the AFP Engineers (PHILCAG)

vi. RP peacekeeping missions underUN

vii. US Antecedents


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a. Emergency Powers

i. Legal basis

1. Emergency Powers Clause

2. Ordinance Powers of the President

ii. Requisites

1. Congress must enact an emergency powers

legislation

2. In other cases, the Presidents declaration of a

state of national emergency will call into operation

emergency clauses of existing laws

III. POWERS OF THE PRESIDENT

IN TIMES OF EMERGENCY


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b. Take-OverPowers

i. Legal basis

1. Take-OverClause

ii. Requisites

1. Authority from Congress

2. National emergency

3. Public interest

4. Su

bject to such reasona

ble terms which the State mayprescribe

5. Defined period foreffectivity

6. Subject of the take-overmust be abusiness affected

with public interest




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iii. Checks on the exercise

1. Congressional authority

2. Only for a limited duration3. Judicial review

iv. Historical antecedent

In 198

9, President Aquino was grantedemergency powers by Congress through

Republic Act No. 6826 in the aftermath of

several failed coups




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1. Congressional authority

2. Exercised within the bounds and under the terms

and conditions laid down in the law

iv. Historical antecedents

1. In 1972, President Marcos issued Letter of Instruction

No. 2 afterdeclaring Martial Law

2. In 2006, President Arroyo issued Presidential

Proclamation No. 1017

3. In 2009, President Arroyo issued Executive OrderNo.

839 imposing a price ceiling on petroleum products in

the aftermath of Typhoon Parma (Ondoy)




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a. Powerof Appointment and Reorganization

i. Legal basis

1. Appointment Clause

2. Extension of the tourof duty of the Chief

of Staff

3. Appointment Powers underthe

Administrative Code

4. Commander-in-Chief Clause

5. Reorganization powers

IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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ii. Requisites

1. There must be a vacancy

2. Appointing authority must have the

power to appoint and the appointee must

be qualified to assume the post

3. Reorganization guided by imperatives of

simplicity, economyand efficiency


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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1. Limitations on the powerofappointment

a. Commission on Appointments may r eject anappointment made by the President.

b. Commission on Appointments may by-pass an

appointment made ad interim.

c. No memberof the armed forces in the active

service shall, at any time,b

e appointed ordesignated in any capacity to a civilian position in

the Government including government-owned or

controlled corporations orany of theirsubsidiaries.

d. Periodic ban on appointments


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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2. Judicial review

iv. Historical Antecedents

1. Revolving Door policy

2. Appointment ofmilitary generals to key

political ordiplomatic posts


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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b. Executive Control and the Faithful Execution Clause

i. Legal basis

1. Control Clause

2. Faithful Execution Clause

3. Deputation Clause underthe

Constitutional provisions on theCOMELEC

4. Protectorof the Peace Powers


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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Clear and sufficient basis in law

ii. Requisite

Judicial review

iii. Check on the exercise

1. In 2000, President Estrada ordered the

Marines and the PNP to conduct joint

visibility patrols to prevent and suppress

crime



ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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c. Residual powers

i. Legal basis

1. Section 20, Chapter7, Title I, BookIII of The Administrative Code

2. Marcos vs. Manglapus (Restriction

on freedom to travel back home)


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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ii. Requisite

1. Only subject to the limitation that it is not

prohibited by the Constitution


1. Judicial review


1. In 1989, President Aquino barred theMarcos family fromreturning to the

Philippines

2. Negotiation of peace agreements


ANCILLARY TO BEING

COMMANDER-IN-CHIEF


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Abuses in the invocation

Testing the waters and laying the basis

Arbitrariness and casual invocation of drasticpowers

Trifling with the Constitution

Weakening institutions to avoid checks and

balance

Moot and academic

Setting bad precedents

V. ABUSES OF THE POWERS OF

THE PRESIDENT AS

COMMANDER-IN-CHIEF


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Abuses in the exercise

Marcos Martial Lawabuses

ASSO/PCO (warrantless arrests and prolongeddetentions)

Military Tribunals

Unjustifiable duration

Muzzling the PressMilitaryabuses

Seizure ofbusinesses

Secret Decrees


THE PRESIDENT AS

COMMANDER-IN-CHIEF


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Abuses in the exercise

LaterAbuses

Warrantless arrests

Unlawful searches & seizures

Chilling effect

Muzzling the press

Curtailment of f reedom of assembly &

expression

Confiscatory acts against private business


THE PRESIDENT AS

COMMANDER-IN-CHIEF


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VI. RECOMMENDATIONS

Rule of Law: Legislate the limits of power but preserve

essential prerogatives

Respect forconstitutional rights even in emergencies

Protect the independence and integrity of the judiciary

Support a professional and non-partisan armed forces

Empower a vigilant citizenry

Choose well

Preserve the powerof judicial review

Competent, capable and disciplined armed forces that

is insulated f rom partisan politics and respectful of

human rights


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End of presentation

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Power as Commander in Chief