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
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

a. Scope i. Military Armed Forces of the Philippines (AFP) Standing Force Reserve Force Civilian Supremacy Clause Compulsory Military Service Clause
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

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 Order Council
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

b. Legal basis i. Commander-in-Chief Clause 1. Calling Out Powers 2. 3. Suspension of the Privilege of the Writ of Habeas Corpus Declaring Martial Law

© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

c. Requisites i. Calling Out Powers 1. Exercised ³whenever it becomes necessary´; and 2. For the purpose of preventing and suppressing: a. Lawless violence b. Invasion c. Rebellion
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

c. Requisites (continued) ii. Suspension of the Privilege of the Writ of Habeas Corpus and Martial Law Powers 1. 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.
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

d. Checks on the powers i. Calling Out 1. Showing of necessity and the presence of invasion, rebellion or lawless violence 2. Judicial review ii. Suspension of the Privilege of the Writ of Habeas Corpus and Martial Law 1. There must be invasion or rebellion 2. Public safety must require it 3. Period of the suspension must be only for 60 days, unless Congress extends it if the invasion or rebellion shall persist and public safety requires
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

4. The President must submit a report to Congress in person or in writing within 48 hours from the declaration of martial law or suspension of the privilege of the writ of habeas corpus 5. Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension 6. Judicial review may determine the sufficiency of the factual basis of the exercise of the power
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

7. The Constitution ensures that all armed elements will, under no circumstances, be used as an instrument for political purposes of the incumbent President and Commander-in-Chief 8. The Constitution mandates the preservation of particular civil and political rights even during the period of martial law or suspension of the privilege of the writ of habeas corpus 9. Commission on Human Rights serves as a check on the President¶s exercise of martial law powers
© 2010 Rodel Cruz

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

10. Mass media can also provide an effective counterbalance to martial law 11. Right to information regarding matters that may affect their fundamental rights especially during martial law

e. Historical antecedents
i. ii. iii.
© 2010 Rodel Cruz

In 1972, President Marcos issued Proclamation 1081 placing the entire country under Martial Law In 2001, President Arroyo declared a State of Rebellion following ³EDSA 3´ In 2003, President Arroyo declared a State of Rebellion following the ³Oakwood Mutiny´

I.

POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF OF ALL ARMED FORCES

iv. 2009 Declaration of a State of Emergency followed by a declaration of Martial Law and suspension of the privilege of the writ of habeas corpus in Maguindanao following the ³Maguindanao Massacre´ v. US Antecedents

© 2010 Rodel Cruz

II.

POWER OF THE PRESIDENT TO CONDUCT WAR

a. Legal basis The power to conduct war is a necessary incident of the power to conduct foreign relations lodged with the Chief Executive under the ³Sole Organ´ Doctrine. b. Requisites Generally, the exercise of the power is not preconditioned on the existence of any requisites
© 2010 Rodel Cruz

II.

POWER OF THE PRESIDENT TO CONDUCT WAR

c. Checks on the power to conduct war i. Under the 1987 Constitution, avoidance of war as a general rule is the established principle of the State. ii. If war is conducted pursuant to a treaty or international agreement, such treaty or international agreement must be concurred in by 2/3 of the Senate.

© 2010 Rodel Cruz

II.

POWER OF THE PRESIDENT TO CONDUCT WAR

iii. The provisions of the treaty or international agreement can also be subjected to judicial review on the ground of unconstitutionality and/or grave abuse of discretion on the part of the President. iv. Subject to exceptions, a prior declaration by Congress of a State of War is required pursuant to the War Declaration Clause before the President as Commander-in-Chief may prosecute any war effort.

© 2010 Rodel Cruz

II.

POWER OF THE PRESIDENT TO CONDUCT WAR

d. Historical Antecedents
i. ii. iii. iv. v. vi. vii. The Revolutionary Government & US-Philippine War World War I and the Philippine National Guards World War II and the Philippine Commonwealth The Korean War and Philippine Army Battalion Combat Teams under PEFTOK The Vietnam War and the AFP Engineers (PHILCAG) RP peacekeeping missions under UN US Antecedents

© 2010 Rodel Cruz

III.

POWERS OF THE PRESIDENT IN TIMES OF EMERGENCY

a. Emergency Powers
i. Legal basis 1. Emergency Powers Clause 2. Ordinance Powers of the President ii. Requisites 1. Congress must enact an ³emergency powers´ legislation 2. In other cases, the President¶s declaration of a state of national emergency will call into operation ³emergency clauses´ of existing laws

© 2010 Rodel Cruz

III.

POWERS OF THE PRESIDENT IN TIMES OF EMERGENCY

b. Take-Over Powers
i. Legal basis 1. Take-Over Clause ii. Requisites 1. Authority from Congress 2. National emergency 3. Public interest 4. Subject to such reasonable terms which the State may prescribe 5. Defined period for effectivity 6. Subject of the take-over must be a business affected with public interest
© 2010 Rodel Cruz

III.

POWERS OF THE PRESIDENT IN TIMES OF EMERGENCY

iii. Checks on the exercise 1. Congressional authority 2. 3. Only for a limited duration Judicial review

iv. Historical antecedent In 1989, President Aquino was granted emergency powers by Congress through Republic Act No. 6826 in the aftermath of several failed coups
© 2010 Rodel Cruz

III.

POWERS OF THE PRESIDENT IN TIMES OF EMERGENCY

iii. Checks on the exercise 1. Congressional authority 2. Exercised within the bounds and under the terms and conditions laid down in the law iv. Historical antecedents
1. 2. 3. In 1972, President Marcos issued Letter of Instruction No. 2 after declaring Martial Law In 2006, President Arroyo issued Presidential Proclamation No. 1017 In 2009, President Arroyo issued Executive Order No. 839 imposing a price ceiling on petroleum products in the aftermath of Typhoon Parma (Ondoy)

© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

a. Power of Appointment and Reorganization i. Legal basis 1. Appointment Clause 2. 3. 4. 5.
© 2010 Rodel Cruz

Extension of the tour of duty of the Chief of Staff Appointment Powers under the Administrative Code Commander-in-Chief Clause Reorganization powers

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

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 Reorganization guided by imperatives of simplicity, economy and efficiency

3.

© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

iii. Checks on the exercise 1. Limitations on the power of appointment a. Commission on Appointments may appointment made by the President. reject an

b. Commission on Appointments may by-pass an appointment made ad interim. c. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries. Periodic ban on appointments

d.
© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

2. Judicial review iv. Historical Antecedents 1. ³Revolving Door´ policy 2. Appointment of military generals to key political or diplomatic posts

© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

b. Executive Control and the Faithful Execution Clause i. Legal basis 1. 2. 3. Control Clause Faithful Execution Clause Deputation Clause under the Constitutional provisions on the COMELEC ³Protector of the Peace´ Powers

4.
© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

ii. Requisite Clear and sufficient basis in law iii. Check on the exercise Judicial review iv. Historical antecedents 1. In 2000, President Estrada ordered the Marines and the PNP to conduct joint visibility patrols to prevent and suppress crime
© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

c. Residual powers i. Legal basis 1. Section 20, Chapter 7, Title I, Book III of The Administrative Code 2. Marcos vs. Manglapus (Restriction on freedom to travel back home)

© 2010 Rodel Cruz

IV.

POWERS OF THE PRESIDENT ANCILLARY TO BEING COMMANDER-IN-CHIEF

ii. Requisite 1. Only subject to the limitation that it is not prohibited by the Constitution iii. Checks on the exercise 1. Judicial review iv. Historical antecedents 1. In 1989, President Aquino barred the Marcos family from returning to the Philippines 2. Negotiation of peace agreements
© 2010 Rodel Cruz

V.

ABUSES OF THE POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF

Abuses in the invocation Testing the waters and laying the basis Arbitrariness and casual invocation of drastic powers Trifling with the Constitution Weakening institutions to avoid checks and balance Moot and academic Setting bad precedents
© 2010 Rodel Cruz

V.

ABUSES OF THE POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF

Abuses in the exercise Marcos Martial Law abuses ASSO/PCO (warrantless arrests and prolonged detentions) Military Tribunals Unjustifiable duration Muzzling the Press Military abuses Seizure of businesses
© 2010 Rodel Cruz

Secret Decrees

V.

ABUSES OF THE POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF

Abuses in the exercise Later Abuses Warrantless arrests Unlawful searches & seizures Chilling effect Muzzling the press Curtailment of freedom of assembly & expression Confiscatory acts against private business
© 2010 Rodel Cruz

VI. RECOMMENDATIONS
Rule of Law: Legislate the limits of power but preserve essential prerogatives Respect for constitutional rights even in emergencies Protect the independence and integrity of the judiciary Preserve the power of judicial review Support a professional and non-partisan armed forces Competent, capable and disciplined armed forces that is insulated from partisan politics and respectful of human rights Empower a vigilant citizenry Choose well

© 2010 Rodel Cruz

End of presentation

© 2010 Rodel Cruz

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