Aggression and the President’s Commander-in-Chief powers

The Philippines renounces war as an instrument of national policy (Article II.2 of the Constitution). That much is clear. It doesn’t mean, however, that the Philippines can’t defend itself. When circumstances permit, the Philippines, through the president, can unleash the Armed Forces to defend the country’s sovereignty, territory, and people.

Thus, the president may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion. Furthermore, in case of invasion or rebellion, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.

Congress, on the other hand, shall have the sole power to declare the existence of a state of war (Constitution, Art. VI.23). In which case, 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 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 Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.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 question that can be raised is: can the president exercise his “commander-in-chief” powers ahead of a congressional declaration of “the existence of a state of war”? From Article VII.18, it seems such is possible in cases of lawless violence, invasion, or rebellion.

Verily, when an aggression occurs, the Philippines has the inherent international law right to self-defense. If such aggression amounted to an invasion, the president could unilaterally make the call to self-defend anent Art. VII.18. But what of cases amounting to foreign “aggression” not amounting to an invasion (thus removing it from the purview of Art. VII.18)? Who makes the call then to bring the country to war?

Aggression is defined by the Rome Statute (Article 8 bis [2]) as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” UN General Assembly Resolution 3314 defines aggression similarly but also enumerates the acts which could “qualify as an act of aggression”:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Hence, a blockade at the outskirts of Philippine territorial waters or an “attack” by a foreign ship against a Philippine ship constitutes an “act of aggression” triggering a national right to self-defense. However, should such be considered an act of “invasion” (or perhaps an act of “lawless violence”) thus triggering in turn Art. VII.18 of the Constitution?

However, it is more reasonable to presume that such acts of aggression constitute neither an invasion nor lawless violence. This effectively prevents the president from acting under Art. VII.18. Or does it? Can the president act presumptively in that the aggression entitles the Philippines to self-defense and thus justify the use of his residual powers as Commander-in-Chief? This even more if an “armed attack occurs” (UN Charter Article 51) or the Philippines is faced with a situation that is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation” (as provided for in the Caroline case).

However, would it also be possible to interpret aggression as bringing the country to a “state of war,” for which the Congress is duty bound to declare its “existence” and thus the need to authorize the president to do what is necessary for national self-defense?

These are important matters that need to be deliberated upon now rather than later.

The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Jemy Gatdula is the dean of the Institute of Law of the University of Asia and the Pacific and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence. He read international law at the University of Cambridge.