EXPLAINER: Soldiers can help enforce ECQ in Cebu City. Question was raised before and DOJ upheld president's right.

Pachico A. Seares

THE SITUATION. Aside from the 150 Special Action Force (SAF) troops initially sent to Cebu City to help regular police enforce enhanced quarantine rules, Local Government Secretary Eduardo Año announced Thursday, June 25, that soldiers would be tapped from military camps in Bicol, Western Visayas and Manila.

Inevitably, the question about an impending or virtual martial law and whether soldiers could be used for a civilian law enforcement function was raised anew.

This is not the first time. When they imposed a total lockdown in Metro Manila two months ago, they also used soldiers. Justice Secretary Menardo Guverra said on April 21 the president can mobilize the military to help the police enforce an ECQ.

Guevarra cited as basis the "special powers" given the chief executive by "Bayanihan to Heal As One Act" or Republic Act #11469. A leaked military memo instructed "all personnel to prepare for strict implementation of extensive enhanced community quarantine." The said memo was apparently prompted by the president's April 16 speech that berated people for lack of discipline and police and warned that military would enforce health protocols in a scenario he described as "parang martial law na rin."

CAN'T INVOKE CONSTITUTION. Fast forward to the president's June 22 speech, which dwelt on a similar alleged discipline problem in Cebu City, which was reverted to ECQ from June 15 to 30. Soldiers will be fielded again and the issue of martial law and the legality of tapping the military without martial law have come up anew.

No martial law to be sure, not yet. ("Hindi pa," as Gen. Debold Sinas loved to tell Cebu media when he served here as police regional chief.) Under the Constitution (Art. 7. Sec. 18), martial law can be imposed only "in case of invasion or rebellion, when the public safety requires it."

Despite that April assurance, a news story in a local paper brought it up again this week, without saying who talked or complained.

NOT 'CALLING OUT POWER.' DOJ chief Guevarra at the time explained this was different from the "calling-out power" of the president under the Constitution, which provides that he can employ military troops "whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion."

Shooing home "hard-headed" Cebuanos or detaining them for a few hours because they violated ECQ prohibitions is not the situation the Constitution has in mind.

Yet Presidential Spokesman Harry Roque at the time called it as the president's potential exercise of his "calling out power." How's that again: Did Roque mean the president was about to and could do so if he did? What is "potentially exercising" a power, something like publicly thinking about it but not yet actually doing it?

Now that the same situation is presented in Cebu City, there is almost nil chance that anyone would go to court to question the use of military troops.

WHO WOULD SUE? Bashed by the presidential accusation of being hard-headed, no Cebuano might dare to litigate over the gray area of soldiers doing civilian enforcement.

Cebuanos tend to accept Roque's theory that calling out the military is so "inherent" in the president as chief executive and commander-in-chief that he wouldn't need to issue an executive order.

In an April 20 press briefing, Roque cited the February 3, 2004 case of Sanlakas vs Executive Secretary, where the Supreme Court said "the calling out power" is a "residual power" of his powers as president and "a declaration of a state of rebellion is an utter superfluity." And it is not martial law, Roque said.

THE SENSITIVE AREA. It would not be the use of soldiers that would raise potential problem. It would be the legality of detention beyond the hours allowed by ordinary law.

In Cebu City, there is no ordinance yet punishing violation of quarantine rules. The measure is still stuck in the City Council. As to the Bayanihan to Heal As One Act, it already ceased to be in force last June 5, when Congress adjourned, or last June 25, the end of the three-month lifetime of the special, whichever the courts would interpret as its expiry date.

If police and soldiers would behave like enforcers and volunteers helping in a period of emergency or disaster, with no incident of abuse or oppression, there could be no problem between people carrying the gun and hapless civilians.

Legal authority would be assailed only if things would go wrong and citizens would have to seek court protection when their rights are violated.