Existence of a state of war

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The Philippines at war
May 23, 2019 | 9:42 pm

Being Right

By Jemy Gatdula
In the area of governance, none perhaps seems more important than the State’s survival. And the matter of survival becomes more imperative when the country is dragged into war. The question is, how does our government — regardless of the administration in power — respond institutionally in the case of armed conflict?

The constitutional spirit by which our government is to be guided is laid out by the Supreme Court in Rodriguez vs. Gella (GR No. L-6266, 1953). Speaking through Chief Justice Ricardo Paras, addressing an issue arising from the President’s war powers:

“Our Government is democratic in form and based on the system of separation of powers. Unless and until changed or amended, we shall have to abide by the letter and spirit of the Constitution and be prepared to accept the consequences resulting from or inherent in disagreements between, inaction or even refusal of the legislative and executive departments. Much as it is imperative in some cases to have prompt official action, deadlocks in and slowness of democratic processes must be preferred to concentration of powers in any one man or group of men for obvious reasons.”

The process then, as now, calls for congressional action. The Constitution’s Article VI.23 provides: “The Congress, by a 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.”

Seems straightforward enough but note that the only thing that Congress does is to declare a war already in “existence.”

The reason is that Congress cannot call for initiatory military action, by dint of international law (e.g., Article 2.4 of the United Nations Charter) and the Constitution’s Article II.2 (“The Philippines renounces war as an instrument of national policy”).

An implication of the foregoing is the question of who brings the Philippines to such a “state of war”. Aggression by another country is, obviously, one possibility.

Another is the President himself.

Note that the President, aside from an unfortunate designation by the Supreme Court that he (or she) is the “architect of foreign policy,” is also mandated by the Constitution to lead us in times of armed conflict. Thus, Article VI.18, in pertinent part:

“The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.”

Going over the latter provisions, the President has the power to either ignore aggression by another country no matter the gravity thereof or bring the country to war on a perceived foreign slight that the commander-in-chief alone decides.

Technically, from the Constitution’s provisions, all the President needs to do is simply not declare suspension of the privilege of the writ of habeas corpus or martial law and Congress is thus kept out of the picture.

By doing so and ordering the military under his commander-in-chief powers, the President could bring the Philippines to a “state of war,” for which Congress would logically have no choice but affirmatively declare.

Upon confirming the existence of a state of war, Congress is left with nothing to do aside from “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.”

But the foregoing could only be just an add-on or embellishment to the President’s built-in military authority. Assuming that Congress withdraws the authorizations it granted, the President is still left with his commander-in-chief powers.

Even more interesting, Congress has no say on how the war is to be pursued. In other words, not only the President alone has the power to bring us to a state of war and how to conduct it (including perhaps the takeover of vital industries), the President can also decide on his own to simply surrender the country to another.

A legal mechanism then is needed to enable the People’s elected representatives to monitor, within reason, the President’s (and the general staff’s) conduct (and even termination) of the war, and to quickly impeach the President if his actions go clearly against the country’s sovereignty or freedom.

The Congress’ budget and taxing mandate should be considered, after all.

Something for the incoming Congress to ponder on as the Philippines faces challenges to its sovereignty.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
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