Sec. 18, Art. VII of the Constitution states that The President shall be the Commander-in-Chief and whenever it becomes necessary, he may call out such armed forces to prevent lawless violence, invasion or rebellion. This is a restrictive constitutional provision which requires that:
1. Military personnel are confined unless called outThe Armed Forces of the Philippines, otherwise confined to their barracks, can be called out by the Commander in Chief.
2. Necessity as basisThey may be called out only whenever it becomes necessary
3. Clear and restrictive purposeto prevent lawless violence, invasion or rebellion
1. Confined unless called out
The confinement of the troops to the barracks did not stem from the notion of modern democracy but was reportedly a rule that dates back during the Roman Empire when movements of the Roman legions to the capital Rome were regulated to ensure the security of the Senate in particular and the State in general. Modern States, believing that giving the generals unfettered discretion to deploy troops anywhere constitutes a threat to the civilian government, enshrined in their Constitutions not only the rule on civilian supremacy over the military but also the requirement that the military has to be called out of their barracks by their commander in chief, who in turn is required to provide the factual basis for such calling out. The peace and order function is ordinarily given to the civilian police.
The Philippine Constitution is no different. The express grant on the President the calling out powers presupposes that military commanders cannot unilaterally decide to call out their troopswhether in urban poor communities of Tondo or the rich communities of Forbes, whether in areas around barangay halls or in areas around Malacanang or the Batasan complex.
It must be stressed that the AFP and the respondents themselves did not claim their deployment under such calling out powers. The AFP gave various justifications for the deployment and none of its grounds claimed that such deployment was pursuant to an order from Pres. Arroyo. In fact, respondents were not able to present a written order from their Commander in Chief ordering the troop deployment. Malacanang even claimed ignorance of the said maneuver.
Since the order to deploy troops in Metro Manila was made unilaterally, and was not issued under the calling out powers of the Commander-in-Chief provided in the Constitution, such order is unconstitutional and void.
2. No Necessity
The Constitution, possibly to avoid the unwanted presence of the military in the capital, requires that calling out the armed forces must only be done when necessary. In this instance, no urgency or necessity was claimed by the Respondents nor does one exist. The AFP never alleged urgency and necessity as basis for the deployment. No life threatening situations that require immediate troop deployments were cited. In fact the justification used by the respondents showed the absence of such urgency and necessity.
The respondents presented conflicting admissions as to the reason for the deployment of its troops. Petitioners believe that the real reason is something respondents will not admit publiclyto campaign against Petitioners and other opposition candidates. However, any of the reasons mentioned by respondents, presuming these are the real reasons, do not show the urgency and necessity contemplated by the when necessary clause of the Constitution.
It is clear therefore that the constitutional requirement for necessity is not present and the order to deploy troops, therefore, violates the constitutional prohibition against the deployment of units of the AFP absent such necessity.
3. Absence of lawless violence, rebellion or invasion
Even the respondents cannot claim lawless violence despite their veiled attempts to do so. There have been no reports of bombings, akin to the condition in 1998 when secret marshals were deployed in public buses in the National Capital Region. No rebellion or invasion exists in Metro Manila that will serve as the basis for the deployment of troops. The Constitution does not contemplate the deployment of troops every time an intelligence report claims the presence of armed rebels in urban areas, otherwise the AFP can deploy troops in all urban areas in the entire country merely on the basis of self serving intelligence reports to stamp out the culture of rebellion.
The Memorandum of Agreement signed by Respondents with the Commission on Elections empowers the Comelec to deputize the AFP, upon approval of the President, in areas where there are armed threats. The Commission has not declared the existence of armed groups or armed threats in Metro Manila.
In fact, respondent Gen. Dolorfino, [again through the media] has admitted that no such armed threat or any urgent threat for that matter, exists when he stated that conducting voters education is a way of keeping the troops from being idle:
Earlier, Dolorfino said the NCRCom was undertaking advocacy and watchdog roles in the elections because he did not expect his unit to augment security in the capital that was not under serious armed threat [Attached as Annex S is a copy of the article Poll Exec to AFP: Hold voters forum only thru media written by Nikko Dizon, Christine Avendano, Philippine Daily Inquirer, April 28, 2007]
There are no armed threats or threats of lawless violence, rebellion or invasion in the capital, an indispensable requirement for the deployment of troops under the calling out powers of the President.
The deployment is unconstitutional even if pursuant to the calling out powers
In the alternative, presuming the deployment was upon orders of Pres. Arroyo, the same is still unconstitutional. Respondents may claim that Pres. Arroyo later sanctioned the said deployment putting into operation the calling out provisions under the Constitution. Other than the fact that no Presidential Order of any form has been presented by Respondents, Pres. Arroyo does not have any basis to call out the armed forces and any such act is a grave abuse of discretion.
2007 Elections
