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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

© 2010 Rodel Cruz

I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
a. Scope

i.! Military
Armed Forces of the Philippines (AFP)
Standing Force
Reserve Force
Civilian Supremacy Clause
Compulsory Military Service Clause

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I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
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 Order Council
© 2010 Rodel Cruz

I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES

b. Legal basis
i. Commander-in-Chief Clause
1.! Calling Out Powers
2.! Suspension of the Privilege of the
Writ of Habeas Corpus
3.! Declaring Martial Law

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I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES

c. Requisites
i. Calling Out Powers
1. Exercised “whenever it becomes
necessary”; and
2. For the purpose of preventing and
suppressing:
a. Lawless violence
b. Invasion
c. Rebellion
© 2010 Rodel Cruz

I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES

c. Requisites (continued)
ii. Suspension of the Privilege of the Writ of
Habeas Corpus and Martial Law Powers
1. 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.
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I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
d. Checks on the powers

i. Calling Out
1.! Showing of necessity and the presence of invasion,
rebellion or lawless violence
2.! Judicial review
ii. Suspension of the Privilege of the Writ of Habeas Corpus
and Martial Law
1.! There must be invasion or rebellion
2.! Public safety must require it
3. Period of the suspension must be only for 60 days,
unless Congress extends it if the invasion or rebellion
shall persist and public safety requires
© 2010 Rodel Cruz

I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
4. The President must submit a report to Congress in
person or in writing within 48 hours from the
declaration of martial law or suspension of the
privilege of the writ of habeas corpus
5. 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
6. Judicial review may determine the sufficiency of
the factual basis of the exercise of the power

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I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
7. The Constitution ensures that all armed elements
will, under no circumstances, be used as an
instrument for political purposes of the incumbent
President and Commander-in-Chief
8. The Constitution mandates the preservation of
particular civil and political rights even during the
period of martial law or suspension of the privilege
of the writ of habeas corpus
9. Commission on Human Rights serves as a check on
the President’s exercise of martial law powers

© 2010 Rodel Cruz

I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES
10. Mass media can also provide an effective counter-
balance to martial law
11. Right to information regarding matters that may
affect their fundamental rights especially during
martial law

e. Historical antecedents
i.! In 1972, President Marcos issued Proclamation 1081
placing the entire country under Martial 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”
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I.! POWERS OF THE PRESIDENT AS

COMMANDER-IN-CHIEF OF ALL
ARMED FORCES

iv.! 2009 Declaration of a State of

Emergency followed by a declaration
of Martial Law and suspension of the
privilege of the writ of habeas corpus
in Maguindanao following the
“Maguindanao Massacre”
v.! US Antecedents

© 2010 Rodel Cruz

II.! POWER OF THE PRESIDENT

TO CONDUCT WAR

a. Legal basis
The power to conduct war is a necessary
incident of the power to conduct foreign
relations lodged with the Chief Executive
under the “Sole Organ” Doctrine.
b. Requisites
Generally, the exercise of the power is not
preconditioned on the existence of any
requisites
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II.! POWER OF THE PRESIDENT

TO CONDUCT WAR

c. Checks on the power to conduct war

i. Under the 1987 Constitution, avoidance of war as a

general rule is the established principle of the
State.
ii. If war is conducted pursuant to a treaty or
international agreement, such treaty or
international agreement must be concurred in by
2/3 of the Senate.

© 2010 Rodel Cruz

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 unconstitutionality and/or grave
abuse of discretion on the part of the President.
iv. Subject to exceptions, a prior declaration by
Congress of a State of War is required pursuant
to the War Declaration Clause before the
President as Commander-in-Chief may prosecute
any war effort.

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II.! POWER OF THE PRESIDENT

TO CONDUCT WAR

d. Historical Antecedents
i.! The Revolutionary Government & US-Philippine War
ii.! World War I and the Philippine National Guards
iii.! World War II and the Philippine Commonwealth
iv.! The Korean War and Philippine Army Battalion Combat
Teams under PEFTOK
v.! The Vietnam War and the AFP Engineers (PHILCAG)
vi.! RP peacekeeping missions under UN
vii.! US Antecedents

© 2010 Rodel Cruz

III. POWERS OF THE PRESIDENT

IN TIMES OF EMERGENCY

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 President’s declaration of a
state of national emergency will call into operation
“emergency clauses” of existing laws

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III. POWERS OF THE PRESIDENT

IN TIMES OF EMERGENCY

b. Take-Over Powers
i. Legal basis
1. Take-Over Clause

ii. Requisites
1. Authority from Congress
2. National emergency
3. Public interest
4.! Subject to such reasonable terms which the State may
prescribe
5.! Defined period for effectivity
6.! Subject of the take-over must be a business affected
with public interest

© 2010 Rodel Cruz

III. POWERS OF THE PRESIDENT

IN TIMES OF EMERGENCY

iii. Checks on the exercise

1.! Congressional authority
2.! Only for a limited duration
3.! Judicial review

iv. Historical antecedent

In 1989, President Aquino was granted
emergency powers by Congress through
Republic Act No. 6826 in the aftermath of
several failed coups

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III. POWERS OF THE PRESIDENT

IN TIMES OF EMERGENCY

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 after declaring Martial Law
2.! In 2006, President Arroyo issued Presidential
Proclamation No. 1017
3.! In 2009, President Arroyo issued Executive Order No.
839 imposing a price ceiling on petroleum products in
the aftermath of Typhoon Parma (Ondoy)

© 2010 Rodel Cruz

IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF
a. Power of Appointment and Reorganization

i.! Legal basis

1.! Appointment Clause
2.! Extension of the tour of duty of the Chief
of Staff
3.! Appointment Powers under the
Administrative Code
4.! Commander-in-Chief Clause
5.! Reorganization powers
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IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF

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, economy and efficiency

© 2010 Rodel Cruz

IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF
iii. Checks on the exercise
1. Limitations on the power of appointment

a. Commission on Appointments may reject an

appointment made by the President.
b. Commission on Appointments may by-pass an
appointment made ad interim.
c.! No member of the armed forces in the active
service shall, at any time, be appointed or
designated in any capacity to a civilian position in
the Government including government-owned or
controlled corporations or any of their subsidiaries.
d.! Periodic ban on appointments
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IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF

2. Judicial review

iv. Historical Antecedents

1.! “Revolving Door” policy
2.! Appointment of military generals to key
political or diplomatic posts

© 2010 Rodel Cruz

IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF
b. Executive Control and the Faithful Execution Clause

i. Legal basis
1.! Control Clause
2.! Faithful Execution Clause
3.! Deputation Clause under the
Constitutional provisions on the
COMELEC
4.! “Protector of the Peace” Powers

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IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF

ii. Requisite
Clear and sufficient basis in law
iii. Check on the exercise
Judicial review
iv. Historical antecedents
1. In 2000, President Estrada ordered the
Marines and the PNP to conduct joint
visibility patrols to prevent and suppress
crime

© 2010 Rodel Cruz

IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF

c. Residual powers
i. Legal basis
1. Section 20, Chapter 7, Title I, Book III
of The Administrative Code
2. Marcos vs. Manglapus (Restriction
on freedom to travel back home)

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IV. POWERS OF THE PRESIDENT

ANCILLARY TO BEING
COMMANDER-IN-CHIEF
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 the
Marcos family from returning to the
Philippines
2. Negotiation of peace agreements
© 2010 Rodel Cruz

V. ABUSES OF THE POWERS OF

THE PRESIDENT AS
COMMANDER-IN-CHIEF
Abuses in the invocation
Testing the waters and laying the basis
Arbitrariness and casual invocation of drastic
powers
Trifling with the Constitution
Weakening institutions to avoid checks and
balance
Moot and academic
Setting bad precedents
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V.! ABUSES OF THE POWERS OF

THE PRESIDENT AS
COMMANDER-IN-CHIEF
Abuses in the exercise
Marcos Martial Law abuses
ASSO/PCO (warrantless arrests and
prolonged detentions)
Military Tribunals
Unjustifiable duration
Muzzling the Press
Military abuses
Seizure of businesses

© 2010 Rodel Cruz

Secret Decrees

V.! ABUSES OF THE POWERS OF

THE PRESIDENT AS
COMMANDER-IN-CHIEF
Abuses in the exercise
Later Abuses
Warrantless arrests
Unlawful searches & seizures
Chilling effect
Muzzling the press
Curtailment of freedom of assembly &
expression
Confiscatory acts against private business
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VI. RECOMMENDATIONS

Rule of Law: Legislate the limits of power but preserve

essential prerogatives
Respect for constitutional rights even in emergencies
Protect the independence and integrity of the judiciary
Preserve the power of judicial review
Support a professional and non-partisan armed forces
Competent, capable and disciplined armed forces that
is insulated from partisan politics and respectful of
human rights
Empower a vigilant citizenry
Choose well

© 2010 Rodel Cruz

End of presentation

© 2010 Rodel Cruz

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