Newspeg: “Two TV crew members who disappeared along with a Jordanian journalist last June were “recovered” in Sulu Saturday night, but police could not immediately say if ransom was paid for their release.” (gmanetwork.com/news)
Last year, in the aftermath of the kidnapping of three members of the Red Cross by the Abu Sayyaf, the Sulu governor organized private armies, issued a proclamation declaring a state of emergency, imposed curfew, and called out the police and the armed forces to conduct warrantless searches, seizures, and arrests. Several residents were warrantlessly arrested and detained on no probable cause except the mere affidavit of a policeman that they were Abu Sayyaf members.
The Supreme Court in a case promulgated seven months ago unanimously held: 1.The commander-in-chief powers (“calling out” powers) are vested by the Constitution only on the President; 2. the governor has no such commander-in-chief powers, and cannot on his own organize private armies. Here’s the case (excerpted):
Jamar M. Kulayan, Temogen S. Tulawie, Hji. Moh. Yusop Ismi, Julhajan Awadi, SPO1 Sattal H. Jadjuli, Petitioners, (as taxpayers and residents of Sulu) vs. Gov. Abdusakur M. Tan in his capacity as governor of Sulu, Gen. Juancho Saban, Col. Eugenio Clemen PN, P/ Supt. Julasurim Kasim, and P/Supt. Bienvenido G. Latag, in their capacity as officers of the Phil. Marines and PNP, Respondents.
G.R. NO. 187298 July 3, 2012. en banc.
Sereno, J.
“On 15 January 2009, three members of the International Committee of the Red Cross were kidnapped … in Patikul, Sulu. xxx
xxx
“The leader of the alleged kidnappers was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf. xxx
xxx
“Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from different municipalities, who were redeployed to surrounding areas of Patikul.
xxx
“The organization of the CEF was embodied in a “Memorandum of Understanding” entered into between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police, represented by P/SUPT. Latag.
xxx
“The Whereas clauses of the Memorandum alluded to the extraordinary
situation in Sulu, and the willingness of civilian supporters of the municipal
mayors to offer their services in order that “the early and safe rescue of the
hostages may be achieved.” xxx
“On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring a state of emergency in the province of Sulu. It cited the kidnapping incident as a ground for the said declaration, xxx
xxx
“In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure public safety. The pertinent portion of the proclamation states:
“Now, therefore, by virtue of the powers vested in my by law, I, Abdusakur Mahail Tan, Governor of the Province of Sulu, do hereby declare a state of emergency in the province of Sulu, and call on the Philippine National Police with the assistance of the Armed Forces of the Philippines and the Civilian Emergency Force to implement the following:
“1. The setting-up of checkpoints and chokepoints in the province;
“2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper authorities;
“3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters; and
“4. To conduct such other actions or police operations as may be necessary to ensure public safety. xxx”
xxx
“On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT. Julasirim Kasim. Upon arriving at the police station, he was booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that he was indeed related to the three, he was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also arrested. The affidavit of the apprehending officer alleged that they were suspected ASG supporters and were being arrested under Proclamation 1-09. The following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG. xxx
xxx
“On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari and Prohibition, claiming that roclamation 1-09 was issued with grave abuse of discretion amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of the 1987 Constitution. xxx
xxx
(The Supreme Court unanimously struck down the governor’s Proclamation 1-09 as unconstitutional on the following grounds: )
“II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic . The exceptional character of Commander-in-Chief powers dictate that they are exercised by one president.
xxx
“(I)t is clear that the framers never intended for local chief executives to exercise unbridled control over the police in emergency situations. This is without prejudice to their authority over police units in their jurisdiction as provided by law, and their prerogative to seek assistance from the police in day to day situations, as contemplated by the Constitutional Commission. But as a civilian agency of the government, the police, through the NAPOLCOM, properly comes within, and is subject to, the exercise by the President of the power of executive control.
xxx
“The provincial governor does not possess the same calling-out powers as the President. Given the foregoing, respondent provincial governor 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.
xxx
“Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the organization of private armed groups similar to the CEF convened by the respondent Governor.
On President PNoy’s pronouncement that “the United States Navy be held answerable under Philippine laws for the damage caused by the grounding of a US 7th Fleet warship in Tubbataha Reefs”: Wake up, buttercup! The U.S. government legal position on this as articulated by USS Guardian spokesman Lt. Cdr. James Stockman last week (reported by GMA News Online and other media organizations), and which has not been contradicted by any of the USS Guardian officers, is: “Should a claim for damages be filed, it will be handled in accordance with the Foreign Claims Act.” (USS Guardian Spokesperson Lt. Cdr. Stockman).
Open your eyes. The U.S. does not recognize Philippine law and jurisdiction for any claims for damages caused to the Tubbataha Reef by the USS Guardian. The Foreign Claims Act is U.S. federal law, in particular, U.S. military law: it applies to injury, death, or property damage sustained by inhabitants of a foreign country due to noncombat activities of members of the U.S. armed forces overseas; it says “foreign country includes any place under the jurisdiction of the United States in a foreign country.”; the U.S Judge Advocate General’s Corps will adjudicate it; there is a ceiling of $100,000 for recoverable damages (or P4 million pesos at $1 to P40) and any damages in excess of that amount would have to be filed with the U.S. Treasury to be decided by that office.
“10 USC § 2734 – Property loss; personal injury or death: incident to noncombat activities of the armed forces; foreign countries
“(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for—
“(1) damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy;
“(2) damage to, or loss of, personal property of any foreign country or of any political subdivision or inhabitant of a foreign country, including property bailed to the United States; or
“(3) personal injury to, or death of, any inhabitant of a foreign country;
“if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this section, “foreign country” includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but shall perform his duties under regulations of the department appointing the commission.
“(b) A claim may be allowed under subsection (a) only if—
“(1) it is presented within two years after it accrues;
“(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
“(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
“(c) The Secretary concerned may appoint any officer or employee under the jurisdiction of the Secretary to act as an approval authority for claims determined to be allowable under subsection (a) in an amount in excess of $10,000.
“(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
“(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
“(f) Upon the request of the department concerned, a claim arising in that department and covered by subsection (a) may be settled and paid by a commission appointed under subsection (a) and composed of officers of an armed force under the jurisdiction of another department.
“(g) Payment of claims against the Coast Guard arising while it is operating as a service in the Department of Homeland Security shall be made out of the appropriation for the operating expenses of the Coast Guard.
“(h) The Secretary of Defense may designate any claims commission appointed under subsection (a) to settle and pay, as provided in this section, claims for damage caused by a civilian employee of the Department of Defense other than an employee of a military department. Payments of claims under this subsection shall be made from appropriations as provided in section 2732 of this title.”
