power as commander in chief
TRANSCRIPT
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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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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.
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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
I. POWERS OF THE PRESIDENT AS
COMMANDER-IN-CHIEF OF ALL
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.
II. POWER OF THE PRESIDENT
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.
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 unconstitutionalityand/orgrave
abuse of discretion on the part of the President.
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II. POWER OF THE PRESIDENT
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
III. POWERS OF THE PRESIDENT
IN TIMES OF EMERGENCY
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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
III. POWERS OF THE PRESIDENT
IN TIMES OF EMERGENCY
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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. 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)
III. POWERS OF THE PRESIDENT
IN TIMES OF EMERGENCY
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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
IV. POWERS OF THE PRESIDENT
ANCILLARY TO BEING
COMMANDER-IN-CHIEF
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iii. Checks on the exercise
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
IV. POWERS OF THE PRESIDENT
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
IV. POWERS OF THE PRESIDENT
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
IV. POWERS OF THE PRESIDENT
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
iv. Historical antecedents
IV. POWERS OF THE PRESIDENT
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)
IV. POWERS OF THE PRESIDENT
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
iii. Checks on the exercise
1. Judicial review
iv. Historical antecedents
1. In 1989, President Aquino barred theMarcos family fromreturning to the
Philippines
2. Negotiation of peace agreements
IV. POWERS OF THE PRESIDENT
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
V. ABUSES OF THE POWERS OF
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
V. ABUSES OF THE POWERS OF
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