The AFP in the City...

In the matter of the presence of the military in the cities, some pundits and legal eagles have opined that this will delve into the matter of factual determination of the basis to call out the armed forces.

Such a question has been answered by the SC in the case of IBP vs Zamora. The SC held that the calling-out power of the President is necessarily discretionary and the judiciary cannot be called upon to overrule the President's wisdom unless, of course, if such power was made in such a way constituting grave abuse of discretion.

I humbly disagree however that the controversy will fall under the calling-out power of the President. It seems clear - based on the oscillating position of Malacanang regarding the military deployment in urban areas - that such is not under the calling-out power of the President. There has been no order from Malacanang for the AFP to conduct what it has been doing. Indeed, CSAFP Esperon has been consistent in claiming that the deployment is a unilateral initiative of the AFP in pursuance of its mandate to curb insurgency.

In relation to this, RA 8551 has given back the primary role of conducting counter-insurgency operations intended for the PNP under RA 6975. To properly mount a challenge to these deployments, to my mind, requires revisiting the case of IBP vs. Zamora, RA 6975 and RA 8551.

As can be gleaned from Section 12 of RA 6975, and therefore also in RA 8551, the counter-insurgency operations mentioned therein pertain to "where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles".

On the other hand, the "counter-insurgency operations" being conducted by the AFP in urban areas do not involve these but involve more of the so-called "winning the hearts and minds" strategy which are in the nature of delivering basic services (civil-military operations in military parlance) and law enforcement, activities that should properly pertain to the PNP and other civilian government agencies.

We do not have an equivalent of the Posse Comitatus Act, a law in the United States that forbid the use of the armed forces in the execution of the laws except upon cases and under circumstances expressly authorized by the US Constitution or Act of Congress. What we have is a provision in the 1987 Constitution (Section 5(4), Article XVI) that says:

No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.

Therefore, under the premises declared in IBP vs Zamora, there is an insidious incursion of the military in the task of law enforcement and other govermental duties which properly pertain to civilian government agencies, in violation of Section 5(4), Article XVI of the Constitution.