Commander in Chief Powers

A recent piece of former Ambassador del Rosario (Inquirer, August 13), reports his actual experience of the current administration contemplating emergency rule. Ambassador del Rosario's account is confirmed by former Speaker de Venecia and former Defense Secretary Avelino Cruz. Although, expectedly, these are denied by Malacañang webmasters, they nevertheless invite reflection on the current Commander-in-Chief powers under the Constitution.

I say “current powers” because theoretically they are a far cry from what we saw under the 1935 Constitution as practiced in the previous regime. And I say theoretically because to date that is what they are, written law but untested. We do not know for sure what a Chief Executive bent on flexing his or her muscle will dare do under them.

As under the 1935 Constitution the President is given by the current Constitution three specific Commander-in-Chief powers: (1) to call on the Armed Forces to prevent or suppress lawless violence, invasion or rebellion; (2) to suspend the privilege of the writ of habeas corpus; and (3) to impose martial law on the entire Philippines or any part thereof.

The first of these – calling on the Armed Forces – is the most easily available but also the mildest.

It is the most easily available because the President is given wide discretion when to use it. The Constitution simply says that she can use this power when it “becomes necessary” to use it. For all practical purposes she alone is the judge as to whether using the power is “necessary.” As Our Court has said, “When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.” True, the Court can look into whether there has been grave abuse of discretion; but the Court does not have the capacity to contradict the findings of the vast intelligence network of the President.

It is the mildest because generally it merely empowers her to call on the Armed Forces to come to the assistance of law enforcement agencies when these are seen to need help in preventing or suppressing public disorder. Presidents under the 1987 Constitution have used this power more than once and the Supreme Court has been explicit in declaring what it does not include.

In substance, it does not give her additional powers like the second and third Commander in Chief powers do. She merely signals that she will exercise her normal executive powers with more vigor in the enforcement of law. Calling on the Armed Forces does not authorize her to cross normal constitutional demarcation lines. Admittedly, however, the danger of abuse is significantly enhanced, as shown by the arrest of Randy David and the raid of a newspaper when a state of emergency was declared by President arroyo..

Resort to suspension of the privilege of the writ or the imposition of martial law, however, is more difficult. It can be done only on the basis of demanding factual requirements. They can be resorted to only in case of actual invasion or rebellion when public safety requires it. The Supreme Court may review the existence of these factual basis upon the instance of any citizen. Moreover, the shelf-life of these two extraordinary measures is limited to sixty days, unless shortened by Congress or extended by Congress by a joint majority vote of Congress in joint session.

I wrote about the other limitations on martial law in my column of last July 20, 2009.

As to the suspension of the privilege, the 1987 Constitution has also provided for other limitations. A suspension of the privilege of the writ does not apply to all kinds of offenders; it can cover only persons charged in court for rebellion or offenses inherent in or directly connected with invasion. Moreover, if a person is arrested or detained but is not judicially charged within three days, he shall be released.

Neither martial law nor suspension of the privilege of the writ has been resorted to by any of the four Presidents under the 1987 Constitution. If the President now or any President in the future should resort to them, what assurance can we have that the new safeguards carefully worked out by the 1986 Constitutional Commission will be able to protect democracy and the rights of the people?

Under 1972 declaration of martial law Congress was dissolved, the Supreme Court waffled, and the Armed Forces aligned with the President and abandoned the Constitution. Can we say that these will not happen again?

If the current Constitution is to achieve its goal, three institutions are needed. These are (1) a Congress so committed to democracy that it will not hesitate to go against a martial law declaration by the President or a suspension of the privilege of the writ; (2) an independent Supreme Court committed to uphold the rights guaranteed by the Constitution; (3) an Armed Force insulated from politics and committed to uphold and defend the Constitution.

I might also add, on the basis of Ambassador del Rosario's article, lack lack of support by the United States will be a powerful deterrent.

Email: joaquin.bernas@gmail.com

17 August 2009