Executive Department


Power of inquiry of Congress in relation to the Commander-in-Chief Power.


The President prevents a military officer from appearing before Congress can do it by virtue of his/ her power as commander-in-chief. The ability of the President to prevent military officers from testifying before the Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to control the actions and speech of members of the armed forces. The President’s prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. A contrary rule, would unduly diminish the prerogatives of the President as commander-in-chief. The exigencies of military discipline and the chain of command mandate that the President’s ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces. (B/Gen. Gudani, et al. vs. Lt. Gen. Senga, et al., G.R. No. 170165, August 15, 2006, Tinga, J.).


President’s refusal to allow a member of the AFP to appear is reviewable.


The refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions the conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s right to conduct legislative inquiries.


            The constitutional and legal order sanction a modality by which members of the military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-chief. The remedy lies with the courts. (B/Gen. Gudani, et al. vs. Lt. Gen. Senga, et al., G.R. No. 170165, August 15, 2006).


Nature of the calling out power of the President.


While the President’s “calling out” power is discretionary and solely vested in his wisdom, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. Judicial power is the power to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, the discretion of the political departments of the government. It speaks of judicial prerogative inquiry can go no further than to satisfy the court not that the President’s decision is correct, but that the President did not act arbitrarily. The standard therefore, is not correctness but arbitrariness. (David, et al. vs. Arroyo, et al., G.R. No. 171396, May 3, 2006 and other companion cases).


            The President’s power in case of emergency is not absolute, because the Constitution has created a government in the concept of balance of power structure. Executive, legislative and judicial powers are dispersed to the President, the Congress and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power. In times of emergency, the Constitution reasonably demands that a certain degree of faith be reposed in the basic integrity and wisdom of the Chief Executive but at the same time obligates him to operate within carefully prescribed procedural limitation.


Distinction between the President’s authority to declare a state of rebellion and the authority to proclaim a state of national emergency.


While the President’s authority to declare a state of rebellion emanates from the powers as Chief Executive, the statutory authority is Section 4, Chapter 2, Book II of the Revised Administrative Code which provides:


“Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.”


The President’s declaration of a “state of rebellion” was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, P.P. 1017 is more than that. In declaring a state of national emergency the President did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on take over provision of privately-owned public utility and business affected with public interest. Indeed, P.P. 1017 calls for the exercise of an awesome power. Obviously, such proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas, (David, et al. vs. Arroyo, et al., supra.).


Contention that the President’s inclusion of Section 17, Article XII in P.P. 1017 is an encroachment on the legislature’s emergency powers.


This is an area that needs delineation.


            A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But as to the second, national constitutional issues arise.


            Section 23, Article VI of the Constitution reads:


“Section 23. (1) The Congress, by vote of two-thirds of both houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.


(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”


            The second paragraph of the above provision refers not only to war but also to “other national emergency.” If the intention of the framers of our Constitution was to withhold from the President the authority to declare a “state of national emergency” pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a “state of national emergency.”  The logical conclusion then is that the President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment.


            But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. (David, et al. vs. Arroyo, et al.)



Agency vested with emergency powers.


Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power nor repose upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the framers of the Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions.  


Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (David, et al. vs. Arroyo, et al.).