Published — July 14, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
After reading “What is the Military Power of the President?”, read also “Executive Powers of the President: Borrowing Power and the Philippine Foreign Debt”
Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier’s personal views on the matter.
(Kapunan v. De Villa, G.R. No. 83177, December 06, 1988)
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The President shall be the Commander-in-Chief of all armed forces of the Philippines.
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Whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.
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In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. (Section 18, Art. VII, 1987 Constitution)
The President as the Commander-in-Chief wields of the extraordinary powers of:
- calling out the armed forces;
- suspending the privilege of the writ of habeas corpus; and
- declaring martial law.
These powers may be resorted to only under specified conditions.
The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the “grounds for the activation of emergency powers, the manner of activating them, the scope of the powers, and review of presidential action.” (Lagman v. Medialdea, G.R. No. 231658, July 04, 2017)
What is the calling-out power of the president?
The law says:
Article VII, Section 18 of the 1987 Constitution provides that:
Section 18. 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. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight 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. 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. 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.
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The calling-out power refers to the power of the president to call out the Armed Forces of the Philippines to prevent and suppress lawless violence, invasion, or rebellion. Every act that goes beyond this is power is considered as ultra vires and illegal. For this reason, the President must be careful in the exercise of this power. The president cannot invoke a greater power when he/she wishes to act under a lesser power. (David v. Maccapagal-Arroyo, G.R. No.171396, May 03, 2006)
Jurisprudence says:
In the case of Sanlakas v. Reyes (G.R. No. 19085, February 03, 2004), the Supreme Court ruled that the commander-in-chief powers of the President can is a sequence of graduated powers. As such:
“The above provision grants the President, as Commander-in-Chief, a “sequence” of “graduated power[s].” 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. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power.”
In the case of Integrated Bar of the Philippines v. Zamora (G.R. No. 141284, August 15, 2000), the Supreme Court held that:
“Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers.
What are the limitations to the power of the president to suspend the privilege of the writ of habeas corpus?
The limitations to the power of the president to suspend the privilege of the writ of habeas corpus are the following:
- The grounds for the suspension of the writ of habeas corpus under the c1987 Constitution are invasion or rebellion, or when public safety requires it;
- Such suspension shall not exceed sixty (60) days, following which it shall be lifted, unless otherwise extended by the Congress;
- Such suspension shall not impair the right to bail. (Section 13, Art. III, 1987 Constitution);
- The suspension applies only to persons judicially charged for rebellion or offenses inherent or directly connected with invasion;
- During such suspension, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released;
- The President has the duty to report such action to the Congress within forty-eight (48) hours, personally or in writing;
- The Congress may revoke, or so extend upon the request of the President, the effectivity of the proclamation by a majority vote of all its members, voting jointly;
- The Supreme Court may review, in an appropriate proceeding 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 a decision thereon within thirty (30) days from filing. (Section 18, Article VII, 1987 Constitution)
What is the effect of Martial Law?
The law says:
“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.” (Section 18, Article VII, 1987 Constitution)
Jurisprudence says:
In David v. Macapagal-Arroyo, (G.R. No.171396, May 03, 2006), the Supreme Court ruled that:
“Under a valid declaration of martial law, the President as Commander-in-Chief may order the “(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and press censorship; and (d) issuance of Presidential Decrees x x x”
Worthy to note, however, that the above-cited acts that the President may perform do not give him unbridled discretion to infringe on the rights of civilians during martial law. This is because martial law does not suspend the operation of the Constitution, neither does it supplant the operation of civil courts or legislative assemblies. Moreover, the guarantees under the Bill of Rights remain in place during its pendency. And in such instance where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those judicially charged with rebellion or offenses connected with invasion.
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties, the Constitution has safeguards against the President’s prerogative to declare a state of martial law.”
In the case of Lagman v. Medialdea (G.R. No. 231658, July 04, 2017), the Supreme Court stated that:
“A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the State.”
Further, the Supreme Court ruled that:
“Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police action. The President may resort to this extraordinary power whenever it becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. 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.
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution imposed the following limits in the exercise of these powers:
(1) a time limit of sixty days;
(2) review and possible revocation by Congress; and
(3) review and possible nullification by the Supreme Court.
The framers of the 1987 Constitution eliminated insurrection, and the phrase “imminent danger thereof’ as grounds for the suspension of the privilege of the writ of habeas corpus or declaration of martial law. They perceived the phrase “imminent danger” to be “fraught with possibilities of abuse;” besides, the calling out power of the President “is sufficient for handling imminent danger.”
The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial law serves as a warning to citizens that the Executive Department has called upon the military to assist in the maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner that will render it more difficult to restore order and enforce the law. As such, their exercise requires more stringent safeguards by the Congress, and review by the Court.”
What is the importance of the military powers of the President?
Jurisprudence says:
In the case of Gudani v. Senga Corona (G.R. No. 170165, August 15, 2006), the Supreme Court held that:
“The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.”
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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