JAMAR KULAYAN, et al. v. GOV.

ABDUSAKUR TAN,

G.R. No. 187298 03 July 2012, EN BANC (Sereno, J.)

FACTS:

Three members from the International Committee of the Red Cross (ICRC) were
kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. Andres Notter, Eugenio
Vagni, and Marie Jean Lacaba, were purportedly inspecting a water sanitation project for
the Sulu Provincial Jail when they were seized by three armed men who were later
confirmed to be members of the Abu Sayyaf Group (ASG). A Local Crisis Committee,
later renamed Sulu Crisis Management Committee (Committee) was then formed to
investigate the kidnapping incident. The Committee convened under the leadership of
respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu.

Governor Tan issued Proclamation No. 1, Series of 2009, declaring a state of emergency
in the province of Sulu. The Proclamation cited the kidnapping incident as a ground for
the said declaration, describing it as a terrorist act pursuant to the Human Security Act
(R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A.
7160), which bestows on the Provincial Governor the power to carry out emergency
measures during man-made and natural disasters and calamities, and to call upon the
appropriate national law enforcement agencies to suppress disorder and lawless
violence. In the Proclamation, Tan called upon the PNP and the Civilian Emergency Force
(CEF) to set up checkpoints and chokepoints, conduct general search and seizures
including arrests, and other actions necessary to ensure public safety.

Petitioners, Jamar Kulayan, et al. claimed that Proclamation No. 1-09 was issued ultra
vires, and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution,
which grants the President sole authority to exercise emergency powers and calling-out
powers as the chief executive of the Republic and commander-in-chief of the armed
forces.

ISSUE:

Whether or not a governor can exercise the calling-out powers of a President

HELD:

It has already been established that there is one repository of executive powers, and that
is the President of the Republic. This means that when Section 1, Article VII of the
Constitution speaks of executive power, it is granted to the President and no one else.
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency
powers as provided under Section 23, Article VI, of the Constitution, as well as what
became known as the calling-out powers under Section 7, Article VII thereof.

While the President is still a civilian, Article II, Section 3 of the Constitution mandates that
civilian authority is, at all times, supreme over the military, making the civilian president
the nation’s supreme military leader. The net effect of Article II, Section 3, when read with
Article VII, Section 18, is that a civilian President is the ceremonial, legal and
administrative head of the armed forces. The Constitution does not require that the
President must be possessed of military training and talents, but as Commander-in-Chief,
he has the power to direct military operations and to determine military strategy. Normally,
he would be expected to delegate the actual command of the armed forces to military
experts; but the ultimate power is his.

Given the foregoing, Governor Tan is not endowed with the power to call upon the armed
forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded
his authority when he declared a state of emergency and called upon the Armed Forces,
the police, and his own Civilian Emergency Force. The calling-out powers contemplated
under the Constitution is exclusive to the President. An exercise by another official, even
if he is the local chief executive, is ultra vires, and may not be justified by the invocation
of Section 465 of the Local Government Code.
 Gudani v. Senga,

498 S 671 August 15, 2006

FACTS:

The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election
fraud and the surfacing of the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials
of the executive department including the military establishment from appearing in any
legislative inquiry without her consent. AFP Chief of Staff Gen. Senga issued a
Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from appearing before the
Senate Committee without Presidential approval. However, the two appeared before the
Senate in spite the fact that a directive has been given to them. As a result, the two were
relieved of their assignments for allegedly violating the Articles of War and the time
honoured principle of the “Chain of Command.” Gen. Senga ordered them to be subjected
before the General Court Martial proceedings for willfuly violating an order of a superior
officer.

ISSUE:

Whether or not the President has the authority to issue an order to the members of
the AFP preventing them from testifying before a legislative inquiry.

HELD:

Yes. The President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such
injunction is liable under military justice. Our ruling that the President could, as a general
rule, require military officers to seek presidential approval before appearing before
Congress is based foremost on the notion that a contrary rule unduly diminishes the
prerogatives of the President as commander-in-chief. Congress holds significant control
over the armed forces in matters such as budget appropriations and the approval of
higher-rank promotions, yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position.
Again, the exigencies of military discipline and the chain of command mandate that the
Presidents 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.
 Gonzales vs. Abaya

GR 164007 August 10, 2006

Facts:

On July 27, 2003 at around 1:00 am, more than 300 heavily armed junior officers and enlisted
men of the AFP entered the premises of the Oakwood Premier Luxury Apartments on Ayala
Avenue, Makati City. The troops announced their grievances against the administration of
President Gloria Macapagal-Arroyo. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resigns as President of the Republic. The President
declared a state of rebellion and directed the AFP and PNP to take all necessary actions to
surpass the rebellion. In order to avoid bloody confrontation, the government sent
negotiators to dialogue with the soldiers with the aim to persuade them peacefully. After
several hours of negotiation, the troops laid down their arms.

The DOJ with the RTC filed an information for coup d’état as well as the military tribunal charges
for violations of the Articles of War specifically for conduct unbecoming an officer and a
gentleman. The Pre-Trial Investigation Panel recommended that, following the “doctrine of
absorption,” those charged with the coup d’état before the RRTC should not be charged before
the military tribunal for violations of the Articles of War. After some time, RTC issued an order
stating that “all charges before the court martial against the accused…are hereby declared
not service-oriented, but rather absorbed and in furtherance of the alleged crime of coup d’état.”
The said recommendation was approved by the AFP top brass. The Solicitor General competed
that the violation of the Articles of War are service-connected, hence, falls under the jurisdiction
of the court-martial

Issue:

Whether or Not the court martial may assume jurisdiction over those who have been criminally
charged of coup d’état before regular courts.

Held:

Yes. The violations of the Articles of War are service-connected crimes as identified
in RA 7055. This offense is triable by the court-martial. The petitioners violated their solemn oath
to defend the Constitution and the duly-constituted authorities and abused their constitutional duty
to protect the people and the State. This allegedly caused dishonor and disrespect to the military
profession, conduct unbecoming an officer and a gentleman.