MILITARY POWERS

Commander-in-chief powers [Art. VII, Sec. 18]

(1) He may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

(2) He may suspend the privilege of the writ of habeas corpus, or

(3) He may proclaim martial law over the entire Philippines or any part thereof.

The President shall be the Commander-in-chief of all armed forces of the Philippines

The ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authority—the commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same

49 degree of restriction as that which may attach to executive privilege or executive control.

Outside explicit constitutional limitations, the commander-in-chief clause vests in the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. [Gudani v. Senga, G.R. No. 170165, August 15, 2006]

Graduated Powers – Art. VII, sec. 18 grants the President, as Commander-in-Chief, a

“sequence” of “graduated power[s].” From the most to the least benign, these are: (1) the calling out power, (2) the power to suspend the privilege of the writ of habeas corpus, and the (3) 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. However, as we observed in Integrated Bar of the Philippines v.

Zamora, “these conditions are not required in the exercise of the calling out power. 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.’ [Sanlakas v. Executive Secretary (2004)]

Call out the AFP to prevent lawless violence This is merely a police measure meant to quell disorder. As such, the Constitution does not regulate its exercise radically.

State of Rebellion

While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by

way of proof, supported their assertion that the President acted without factual basis. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. [Sanlakas v. Executive Secretary (2004)]

Exercise of Emergency Powers

Background: Presidential Proclamation 1017 (Declaring a State of National Emergency) is different from the law in Sanlakas as this proclamation was woven out of the “calling out” and “take care” powers of the President joined with the “temporary takeover” provision under Art. XII, section 17. PP1017 purports to grant the President, without authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest.

While the President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment, the exercise of the emergency powers, such as the taking over of privately-owned public utility or business affected with public interest, requires a delegation from Congress which is the repository of emergency powers. [David v. Arroyo (2006)]

Suspend the privilege of the writ of habeas corpus

"Writ of habeas corpus"

Is an order from the court commanding a detaining officer to inform the court:

(1) If he has the person in custody; and (2) His basis in detaining that person

50

"Privilege of the writ"

Is that portion of the writ requiring the detaining officer to show cause why he should not be tested. Note that it is the privilege that is suspended, not the writ itself.

Requisites for Suspension of the Privilege of the Writ:

(1) There must be an actual invasion or rebellion; and

(2) The public safety requires the suspension.

Duration: Not to exceed 60 days unless extended by Congress.

Effects of the Suspension of the Privilege:

(1) The suspension of the privilege of the writ applies only to persons "judicially charged"

for rebellion or offenses inherent in or directly connected with invasion [Art. VII, Sec. 18(5)].

(a) Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest.

(b) The suspension of the privilege does not make the arrest without warrant legal.

But the military is, in effect, enabled to make the arrest anyway since, with the suspension of the privilege, there is no remedy available against such unlawful arrest (arbitrary detention).

(c) The arrest without warrant is justified by the emergency situation and the difficulty in applying for a warrant considering the time and the number of persons to be arrested.

(d) The crime for which he is arrested must be one related to rebellion or invasion. As to others, the suspension of the privilege does not apply.

(2) During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released. [Art. VII, sec.

18(6)]]

(a) The effect therefore is only to extend the periods during which he can be detained without a warrant. When the privilege is suspended, the period is extended to 72 hours.

(b) What happens if he is not judicially charged nor released after 72 hours?

The public officer becomes liable under RPC Art. 125 for "delay in the delivery of detained persons."

(3) The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. [Art. III, Sec. 13]

The suspension of the privilege does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights.

The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the speedy means of obtaining his liberty. [Aberca v. Ver (1988)]

Proclaim Martial Law

The requisites in proclaiming Martial Law are:

(1) There must be an invasion or rebellion, and (2) Public safety requires the proclamation of martial law all over the Philippines or any part thereof.

The following cannot be done [Art. VII, Sec. 18]:

(1) Suspend the operation of the Constitution.

(2) Supplant the functioning of the civil courts and the legislative assemblies.

(3) Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function.

"Open Court" Doctrine: Civilians cannot be tried by military courts if the civil courts are open and functioning. If the civil courts are not functioning, then civilians can be tried by the military courts. Martial law usually contemplates a case where the courts are

51 already closed and the civil institutions have already crumbled, i.e. a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect. [Olaguer v. Military Commission No. 34, 150 SCRA 144 (1987)]

(4) Automatically suspend the privilege of the writ of habeas corpus. The President must expressly suspend the privilege.

The Role of Congress [See Art. VII, Sec. 18, par. 1, 2]

(1) Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation.

(2) Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.

(3) Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken).

(4) The Congress shall then vote jointly, by a majority of all its members. It has two options:

(a) To revoke such proclamation or suspension. When it so revoked, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills.

(b) To extend it beyond the 60-day period of its validity.

Congress can only so extend the proclamation or suspension upon the initiative of the President.

The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency.

Note: If Congress fails to act before the measure expires, it can no longer extend it until the President again re-declares the measure.

If Congress extends the measure, but before the period of extension lapses the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back.

The Role of the Supreme Court [See Art. VII, Sec.

18, par. 3]

(1) The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of:

(a) the proclamation of martial law or the suspension of the privilege of the writ, or

(b) the extension thereof. It must promul-gate its decision thereon within 30 days from its filing.

Note: Calling-out power is purely discretionary on the President; the Constitution does not explicitly provide for a judicial review of its factual basis. (IBP v. Zamora [2001])

(2) The jurisdiction of the SC may be invoked in a proper case.

Although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart.

The constitutional validity of the President’s proclamation of martial law or suspension of

52 the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis.

[Fortun v. Macapagal-Arroyo, G.R. No. 190293, Mar. 20, 2012]

(3) Petition for habeas corpus

(a) When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension.

(b) Before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension.

(4) Limit on Calling out Power. —Test of Arbitrariness: The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact. [IBP v. Zamora, (2000)].

This amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction.

There are 4 ways, then, for the proclamation or suspension to be lifted:

(1) Lifting by the President himself (2) Revocation by Congress

(3) Nullification by the Supreme Court (4) By operation of law, after 60 days

Cf. RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by Returning to the Civil Courts the Jurisdiction over Certain Offenses

involving Members of the Armed Forces of the Philippines, other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees"

RA 7055 effectively placed upon the civil courts the jurisdiction over certain offenses involving members of the AFP and other members subject to military law.

RA 7055 provides that when these individuals commit crimes or offenses penalized under the RPC, other special penal laws, or local government ordinances, regardless of whether civilians are co-accused, victims, or offended parties which may be natural or juridical persons, they shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected in which case it shall be tried by court-martial.

The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. [Olaguer v. Military Commission No. 34 (1987)]

Q: Do Letters of Instruction (LOI) and Presidential Decrees issued by the President under the 1973 Constitution during Martial Law form part of the laws of the land?

A: LOIs are presumed to be mere administrative issuances except when the conditions set out in Garcia-Padilla v. Enrile exist. To form part of the law of the land, the decree, order or LOI must be (1) issued by the President in the exercise of

53 his extraordinary power of legislation as contemplated in Section 6 of the 1976 Amendments to the Constitution, (2)(a) whenever in his judgment there exists a grave emergency or a threat or imminence thereof, or (b) whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action. LOIs that are mere administrative issuances may be repealed, altered, or modified by way of an executive order. (PASEI v Torres [1993])

B.5. PARDONING POWERS Nature of Pardoning Power

Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. [Art. VII, Sec.

19, par. 1]

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress

Forms of executive clemencies

(1) Reprieves - a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution.

[Black’s Law Dictionary] It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution. [People v. Vera (1937)]

(2) Commutations - Reduction of sentence.

[Black’s Law Dictionary]. It is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed.

[Vera, supra]

(3) Amnesty - a sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty

usually of political offenses and who are subject to trial but have not yet been con-victed, and often conditioned upon their return to obedience and duty within a prescribed time. [Black’s; Brown v. Walker, 161 US 602].

(4) Requires concurrence of majority of all members of Congress [Art. VII, Sec. 19]

(5) Remit fines and forfeitures, after conviction by final judgment

(6) Pardons - Permanent cancellation of sentence. [Black’s] It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for the crime he has committed. It is a remission of guilt, a forgiveness of the offense. [Vera, supra]

Plenary or partial

(a) Plenary - Extinguishes all the penalties imposed upon the offender, including accessory disabilities.

(b) Partial – Does not extinguish all penalties imposed

Absolute or conditional

(a) Conditional - The offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted.

(b) Absolute pardon - Pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not subject to acceptance by the offender.

Limitations on PARDON [F-I-E-CCC]

(a) Cannot be granted for impeachment. [Art.

VII, Sec. 19)

(b) Cannot be granted in cases of violation of election laws without the favorable recommendation of the COMELEC. [Art. IX-C, Sec. 5]

54 (c) Can be granted only after conviction by

final judgment [People v. Salle, 250 SCRA 581]

(d) Cannot absolve the convict of civil liability.

[People v. Nacional (1995)]

(e) Cannot be granted to cases of legislative contempt or civil contempt.

(f) Cannot restore public offices forfeited, even if pardon restores the eligibility for said offices. [Monsanto v. Factoran (1989)]

Pardon Amnesty

Infractions of peace of the state

Addressed to Political Offenses

Granted to individuals To classes of persons Exercised solely by the

executive

Requires concurrence of Congress

Private act which must be pleaded and relieves the pardonee of the consequences of the offense

Looks backward and puts into oblivion the offense itself.

Extended after final judgment

May be extended at any stage

General Exceptions to Executive Clemencies (a) In cases of impeachment, and

(b) As otherwise provided in this Constitution e.g. For election offenses No pardon, amnesty, parole or suspension of sentence for violation of election laws, rules, and regulations shall be grander by the President without the favorable recommendation by the Commission on Election[Art. IX, sec. 5]

When can pardon be granted?

Only after conviction by final judgment. The

“conviction by final judgment” limitation under Sec. 19, Art. VII prohibits the grant of pardon, concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. [People v.

Bacang (1996)]

Who determines breach of the conditions of pardon?

The determination of whether the conditions had been breached rests exclusively in the sound judgment of the Chief Executive. Such determination would not be reviewed by the courts. A judicial pronouncement stating that the the conditionally pardoned offender has committed a crime is not necessary before the pardon may be revoked. [Torres v. Gonzales (1987)].

Differentiated from

(a) Probation - Disposition where a defendant after conviction and sentence is released subject to (1) conditions imposed by the inde-terminate sentence penalty, without granting a pardon, prescribing the terms commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.

(2) However, the power of the President to grant executive clemency in administrative cases

55 refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the govt. [Llamas v.

Executive Secretary (1991)]

Removal of Administrative Penalties or Disabilities

In meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service. [Sec. 53, Chapter 7, Subtitle A, Title I, Book V, Administrative Code of 1987 ]

Who may avail of amnesty?

(Asked 5 times in the Bar; answers from case law) Amnesty Proclamation No. 76 applies even to Hukbalahaps already undergoing sentence upon the date of its promulgation. The majority of the Court believes that by its context and pervading spirit the proclamation extends to all

(Asked 5 times in the Bar; answers from case law) Amnesty Proclamation No. 76 applies even to Hukbalahaps already undergoing sentence upon the date of its promulgation. The majority of the Court believes that by its context and pervading spirit the proclamation extends to all

In document Political Law Reviewer 2015 (Page 67-77)