F. Military powers

Frequency: ★★★★☆ | Probability: ★★★☆☆

1. Calling out powers

President – power to call out the armed forces. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. (Section 18, Article VII, 1987 Constitution)

Solely exercised by the President. By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. (Kulayan v. Tan, En Banc, G.R. No. 187298, 03 July 2012)

Kulayan v. Tan (2012)
Respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code.

Fully discretionary. The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review. (Lagman v. Medialdea, En Banc, G.R. Nos. 231658, 231771, 231774 etc., 04 July 2017)

Civilian authority supreme at all times over the military. While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. (Kulayan v. Tan, supra.)

Same; President – empowered to direct military operaions and determine military strategy. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his.  As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual. (Ibid.)

2. Declaration of martial law and suspension of the privilege of the writ of habeas corpus; extension

a. President

President – power to suspend the privilege of the writ of habeas corpus, martial law. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. (Section 18, Article VII, 1987 Constitution)

Requisites for suspending habeas corpus:
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when:
1) There is actual invasion or rebellion; and
2) Public safety requires it. (Lagman v. Medialdea, supra.)
Limitations on suspending habeas corpus:
The 1987 Constitution imposed the following limits in the exercise of these powers:
1) A time limit of sixty (60) days;
2) Review and possible revocation by Congress; and
3) Review and possible nullification by the Supreme Court. (Ibid.)
Scope and extent of martial law:
Under a valid declaration of martial law, the President as Commander-in-Chief may order the:
1) Arrests and seizures without judicial warrants;
2) Ban on public assemblies;
3) Takeover of news media and agencies and press censorship; and
4) Issuance of Presidential Decrees. (Ibid.)
Graduation of powers:
1) The calling out power;
2) The power to suspend the privilege of the writ of habeas corpus; and
3) The power to declare martial law.

Graduation of powers. The 1987 Constitution gives the President, as Commander-in- Chief, a “sequence” of “graduated powers.” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called “graduation of powers” does not dictate or restrict the manner by which the President decides which power to choose. (Ibid.)

Same; Power to choose – initially with the President. These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore necessarily follows that the power and prerogative to determine whether the situation warrants a mere exercise of the calling out power; or whether the situation demands suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the President. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address exigencies or threats that endanger the government, and the very integrity of the State. (Ibid.)

b. Congress

President to report to Congress. Within forty-eight (48) hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. (Section 18, Article VII, 1987 Constitution)

Congress to decide revocation or extension. The 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, which revocation shall not be set aside by the President. (Section 18, Article VII, Ibid.)

Same; Extension. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. (Section 18, Article VII, Ibid.)

Same; If not in sessinon – convene within 24 hours. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. (Paragraph 2, Section 18, Article VII, Ibid.)

c. Supreme Court

Power to review – the sufficiency of the factual basis. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing. (Paragraph 3, Section 18, Article VII, Ibid.)

Same; The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. (Kulayan v. Tan, supra.)

d. Limitations of Martial Law

Limitations of Martial law. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. (Paragraph 3, Section 18, Article VII, Ibid.)

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. (Paragraph 4, Section 18, Article VII, Ibid.)

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released. (Last paragraph, Section 18, Article VII, Ibid.)

Limitations of Martial Law
1) Does not suspend operation of the Constitution;
2) Does not supplant the functioning of the civil courts or legislative assemblies;
3) Does not authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ;
4) Suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion;
5) During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released.

•••••

BAR EXAM QUESTION

(Question A.7, Political Law, 2019 Bar Exam)

The continuing threat to the security of the State in various parts of the country prompted the National Security Adviser of the President to adopt a “Comprehensive National Security Strategy (CNSS)” with the following components:

Component 1: During a state of emergency, the President, in the exercise of his power of general supervision, may delegate to the heads of local government units (LGUs), through an administrative issuance, the power to call-out the Armed Forces of the Philippines (AFP) for a more effective and immediate response to the ground situation; and,

Component 2: In declaring Martial Law, the President, in a preemptive action and without waiting for the recommendation of the Secretary of National Defense and the AFP, may rely upon any intelligence information he may have gathered through other sources.

Disturbed by the strategy’s supposed infirmities, a concerned citizens’ organization raised the constitutionality of the two (2) components of the CNSS before the Supreme Court.

(a) Is component 1 of the CNSS constitutional? Explain. (2.5%)

(b) Is component 2 of the CNSS constitutional? Explain. (2.5%)

Suggested Answer:

(a) No. Answer

Under the 1987 Constitution and jurisprudence, the calling-out powers may only be exercised solely by the President and may not be delegated. Rule

In the case at bar, Component 1 violates the requirement that President alone shall exercise the calling-out powers and the same cannot be delegated to anyone, such as to heads of the local government units (LGUs). Apply

Thus, Component 1 is not constitutional. Conclusion

(b) Yes. Answer

Under the1987 Constitution and jurisprudence, the power to declare Martial law is an extraordinary power are conferred by the Constitution with the President as Commander-in-Chief. It therefore necessarily follows that the power and prerogative to determine whether the situation warrants a for the declaration of martial law, also lies, at least initially, with the President. Rule

In the case at bar, Component 2 is consistent with the President’s exclusive prerogative whether to declare Martial Law. There is no legal requirement that the President has to be wait for any recommendation from the Secretary of National Defense and the AFP. Apply

Thus, Component 2 of the CNSS is constitutional. Conclusion

•••••

BAR EXAM QUESTION

(Question III, Political Law, 2018 Bar Exam)

(b) a declaration of the existence of a state of war;

2/3 vote of all members of Congress, voting separately

(e) the extension of the period for the suspension of the privilege of the writ of habeas corpus?

Majority vote of all members of Congress, voting jointly

•••••

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