Kulayan v. Tan

KULAYA v.
TAN Governor is not authorized by any law to create civilian armed forces under

Topic: Calling out Powers his command, nor regulate and limit the issuances of PTCFORs to his own
private army.
FACTS: ● As a defense, Governor Tan set forth the following:
● On 15 January 2009, three members from the International Committee of the Red ○ Respondents deny that Proclamation 1-09 was issued ultra vires, as
Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local
Andres Notter, a Swiss national and head of the ICRC in Zamboanga City, Eugenio Government Code, which empowers the Provincial Governor to carry out
Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino emergency measures during calamities and disasters, and to call upon the
engineer, were purportedly inspecting a water and sanitation project for the Sulu appropriate national law enforcement agencies to suppress disorder, riot,
Provincial Jail when inspecting a water and sanitation project for the Sulu Provincial lawless violence, rebellion or sedition. Furthermore, the Sangguniang
Jail when they were seized by three armed men who were later confirmed to be Panlalawigan of Sulu authorized the declaration of a state of emergency as
members of the Abu Sayyaf Group (ASG) evidenced by Resolution No. 4, Series of 2009 issued on 31 March 2009
● On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 during its regular session.
(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, describing it as a ISSUE: Whether or not Proclamation 1-09 is unconstitutional
terrorist act pursuant to the Human Security
● Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 HELD:
(R.A. 7160), which bestows on the Provincial Governor the power to carry out ● YES, the said Proclamation was issued without authority.
emergency measures during man-made and natural disasters and calamities, and to ● Respondent provincial governor is not endowed with the power to call upon the
call upon the appropriate national law enforcement agencies to suppress disorder armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan
and lawless violence. exceeded his authority when he declared a state of emergency and called upon the
● In the same Proclamation, respondent Tan called upon the PNP and the CEF to set Armed Forces, the police, and his own Civilian Emergency Force.
up checkpoints and chokepoints, conduct general search and seizures including ● The calling-out powers contemplated under the Constitution is exclusive to the
arrests, and other actions necessary to ensure public safety. President. An exercise by another official, even if he is the local chief executive, is
● On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to ultra vires, and may not be justified by the invocation of Section 465 of the Local
respondent P/SUPT. Julasirim Kasim. Upon arriving at the police station, he was Government Code, as will be discussed subsequently.
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 WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding
three, he was detained. After a few hours, former Punong Barangay Juljahan Awadi, respondents to desist from further proceedings m implementing Proclamation No. 1, Series of
Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 2009, and its Implementing Guidelines. The said proclamation and guidelines are hereby
Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi declared NULL and VOID for having been issued in grave abuse of discretion, amounting to
Sabdani, were also arrested. The affidavit of the apprehending officer alleged that lack or excess of jurisdiction.
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.
● Arguments of the Petitioners:
○ 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
Proclamation 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.
○ Moreover, petitioners contend that Proclamation No. 1 and its
Implementing Guidelines were issued ultra vires, and thus null and void, for
violating Sections 1 and 18, Article VII of the Constitution, which grants the
President sole authority to exercise emergency powers and calling-out
powers as the chief executive of the Republic and commander-in-chief of
the armed forces. Additionally, petitioners claim that the Provincial

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KULAYA v.

TAN Governor is not authorized by any law to create civilian armed forces under

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