Constitutional Law 1 (Hand Out 6)

1f

!

T

-,,

-fI

,.'

\

~andout No.6 - Executive DepartmentConstitutional Law 1- Atty. Rene Callanta, Jr.pt Semester, SY2012-2013,P.U.P. College of Law

~~

EXECUTIVE DEPARTMENT (Art. VII)

1. THE PRESIDENT

A. QUALIFICATIONS, ELECTION, TERM AND OATH

Art. VII, Sec. 2.. No person may be elected President unless he is anatural-born citizen of the Philippines, a registered voter, able toread and write, at least forty years of age on the day of theelection, and a resident of the Philippines for at least ten yearsimmediately preceding such election.

IQualifications of President1) Natural-born citizen of the Philippines2) Registered voter3) Able to read and write4) 40 years of age on the day of election5) Resident of the Philippines for at least 10 years immediately preceding the election

Art. VII, Sec. 4. The President and the Vice-President shall beelected by direct vote of the people for a term of six years whichshall begin at noon on the thirtieth day of June next following theday of the election and shall end at noon of the same date sixyears thereafter. The President shall not be eligible for anyreelection. No person who has succeeded as President and hasserved as such for more than four years shall be qualified forelection to the same office at any time.

No Vice-President shall serve for more than two successive terms.Voluntary renunciation of the office for any length of ti"\e shall not'be considered as an interruption in the continuity of the service forthe full term for which he was elected.

Unless otherwise provided by law,. the. regular election forPresident and' Vice-President shall be heid on the second Mondayof May.

The returns of every election fo"} President and Vice- President,'. duly certified by the board of canvassers of each provinces or city,shall be transmitted to the Congress, directed .to the President ofthe Senate. Upon receipt of the certificates of canvass, thePresident of the Senate shall, not later than thirty days after theday.of election (which is the 2nd Tuesday of June), open all the

I certificates in the presence of the Senate and. House ofRepresentatives in joint public session, and the Congress, upondetermination of the authenticity and due execution thereof in themanner provided by law, canvass (i.e., tally the certificates ofcanvass) the votes.

The persons having the highest number of votes shall be pro-claimed elected; but in case two or more shall have an equal andhighest number of votes (tie), one of them shall forth with bechosen by the vote of a majority of all the members of Congress,. voting separately. .

The Congress shall promulgate its rules for the canvassing of thecertificates.

c-

INTRODUCTION - CONSTITUTIONAL LAW I (PLIII)

Type of Teaching: Socratic Method

Class Cards -• Name, Undergraduate College & Course, Working - Where• Recitation Grades (30% of Grade)• Attendance

GRADING SYSTEM: [Mid Term Grade = 20% (recitation) + 30% (Mid-TermExam)] [Finals Grade = 20% (recitation) + 30% (Final exam)] [FINAL GRADE= Average of Both grades)

RECITATION• Shuffle Method (Students will be called randomly)• At least 2 rounds per class session• Absent - automatic grade of 65• Present but not able to answer - 70• Series of questions• While reciting all notes & books should be closed .• Any student caught glancing at his/her notes or that of their

classmates shall automatically receive a grade of 60 for that particularrecitation. .-

MID-TERM& FINALEXAMINATIONS• Multiple Choice Questions (MCQI• Problems• Enumerations & Defmition• Differentiation• True or False• Use the prescribed booklet.• No Permit, No Exam.• No special exams.• Time to take exams shall be strictly enforced.

DRESS CODE: Optional- Dean's office discretion

CLASS DECORUM:• Any unruly or intolerable actuations while the class is ongoing shall

not be tolerated and would be dealt with accordingly.• Only the class beadle would communicate with the professor regarding

any matters pertaining to class schedules and assignments.• Turn Off or put in silent mode all cell phones while the class is ongoing.

ASSIGNMENT:1) Hand Out # 12) Cases:

• Manila Prince vs. GSIS, GRNo. 122156, February 3, 1997 (267 SCRA408)• Bacani vs. NACOCO,GRNo.L-9657, November29, 1956 (100 PHIL468)• U.S. vs. Dorr, GRNo. 1051, May 19, 1903 (2 Phil 332)• PVTAvs. CIR,GRNo.L- 32052, July 25, 1975 (65 SCRA416)• Tanada vs. Angara, GRNo. 118295, May2, 1997 (272 SCRA18)

.\..

Handout No. 6 - Executive DepartmentConstitutional Law 1- Atty. Rene Callanta, Jr

1" Semester, SY 2012-2013, P.U.P. College of LawPage 2 of 73

The Supreme Court, sitting en bane, shall be the sole judge of allcontests relating to the election, returns, and qualifications of thePresident, or Vice-President, and may promulgate its rules for thepurpose.

Election and Term of President

Regular Election and Term

The President and Vice-President (who shall be elected with and in the same manner asthe President) shall be elected by direct vote of the people for a term of 6 years, whichshall begin on the noon of June 30 next following the day of election. The regularelection for President and Vice-President shall be held on the 2nd Monday of May. (Art.VII, Sec~ 4pars. 1 & 3).

The six year term for the incumbent President and Vice- President elected in theFebruary 7, 1986 election is, for purposes of synchronization of elections, herebyextended to noon of June 30, 1992. The first regular elections for the President andViCftPresident under this Constitution shall be held on the 2nd Monday of May, 1992.(Art. XVIII, Sec. 5.)

In 111 re Saturn;lIo Bermudez, 145 SeRA 160 (1986), the SC held that the "incumbentPresident and Vice-President" referred to above are Pres. Corazon Aquino and Vice-President Salvador Laurel (even if they were not the ones declared by the BatasangPambansa as the winners of the February 7, 1986 Snap Election).

Special Election and Term

If a vacancy occurs in the offices of President and Vice- President more than 18 monthsbefore the date of the next regular presidential election, a special election to elect thePresident and Vice-President shall be called by Congress, pursuant to article VII,section 10. (See discussion under Other Powers of Congress, supra and Succession,infra.)

The,Constitution is silent as to whether the persons elected in the special election shallserve only for the unexpired portion of the term, and whether the new President canrun for re- election if he has not served more than 4 years, which depends on theconstruction of the phrase "has succeeded as the President," discussed in the nextsection. * Only unexpired portion.

Re-election

The President shall not be eligible for any re-election. Furthermore, no person who has"succeeded" as President and has served as such for more than 4 years, shall bequalified for any election to the same office (the Presidency) at any time. (Art. VII, Sec.4,par. 1)

The person who succeeds as President and not just in an acting capacity, could eitherbe (i) the Vice-President, or (ii) one who was elected President in a special election. Inboth cases, if he has served for more than 4 years, he is ineligible for re-election asPre!pident.

If he served for 4 years or less, he can run for re- election, since (a) the term"succeeded" encompasses election and (b) the general rule prohibiting the President torun for re-election refers to the President elected during the regular election.

The Vice-President on the other hand, shall not serve for more than 2 successive terms.And for this purpose, a voluntary (but not involuntary) renunciation of office for any


1s' Semester, SY:;O 12-20 13, P. U.P. College of LawPage 3 of 73

length of time, shall not be considered an interruption in the continuity of the servicefor the full terms for which he was elected. (Art. VII, Sec. 4,par. 2).

This is applicable, however, beginning 1992, because of the Transitory Provisions.(This prohibition is similar to that applicable to Senators.)

Canvassing of Election Returns

As already noted in the Other Powers of the Legislature, supra, it is the Congress thatacts as Board of Canvassers of every election for President and Vice-President. Theprovision reads:

"The returns of every election for President and Vice-President duly certifiedby the Board of Canvassers of each province or city, shall be submitted to

. the Congress, directed to the President of the Senate'. Upon receipt of thecertificates of canvass, the President of the Senate shall, not later than 30days after the date of the election, open all the certificates in the presenceof the Senate and the House of Representatives in a joint public session,

! and the Congress, upon determination of the authenticity and due executionthereof, in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected,but in case 2 or more shall have an equal and highest number of votes, oneof them shall forthwith be chosen by the vote of a majority of all themembers of the Congress, voting separately.The Congress shall promulgate its rules for the canvassing of thecertificates." (Art. VII, Sec. 4,pars. 4 - 6).

Electoral Tribunal for the Election of the President and Vice- President

The Supreme Court, sitting en bane, shall be the sole judge of all contests relating tothe election, returns, and qualifications of the President or Vice-President, and maypromulgate its rules for that purpose. (Art. VII, Sec. 4,par. 7.)

Note that while election controversies in the Congress are under the exclusivejurisdiction of their respective Electoral Tribunals, those in the Executive are under theSupreme Court itself.

Oath of Office

Art. VII, Sec. 5. Before they enter on the execution of their office,the President, the Vice-President or the Acting President shall takethe following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully andconscientiously fulfill my duties as Presi~ent (or Vice-President or Acting President) of the Philippines, preserveand defend its Constitution, execute its laws, do justice toevery man, and consecrate to myself to the service of theNation. So help me God." (In case of affirmation, lastsentence will be omitted.)

B. PRIVILEGE AND SALARY

Art. VII, Sec. 6. The President shall have an official residence. Thesalaries of the President and Vice-President shall be determined bylaw and shall not be decreased during their tenure. No increase in


1st Semester, SY 2012-2013, P.U.P. College o/Law. Page 40/73

said compensation shall take effect until after the expiration of theterm of the incumbent during which such increase was approved.They shall not received during their tenure any other emolumentfrom the Government or any other source.

The salaries of the President and Vice-President shall be determined by law. Currently,the incumbent President receives a monthly salary of Php 95,000.00 or 1.14 Million ayear excluding his 13th month pay.

C. PROHIBITIONS

Art. VII, Sec. 13. The President, Vice-President, the Members of theCabinet, and their deputies or assistants shall not, unlessotherwise provided in this Constitution, hold any other office oremployment during their tenure. They shall not, during saidtenure, directly or indirectly practice any other profession,participate in any business, or be financially interested in anycontract with, or in any franchise, or special privilege granted bythe Government or any subdivision, agency or instrumentalitythereof, including government-owned or controlled corporations ortheir subsidiaries. They shall strictly avoid conflict of interest inthe conduct of their office.

The spouse and relatives by consanguinity or affinity within thefourth civil degree of the President shall not during his tenure beappointed as Members of the Constitutional Commissions, or theOffice of the Ombudsman, or as Secretaries, Undersecretaries,chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Prohibition against the President, Vice-President, members of the Cabinet, and theirdeputies or assistants

(al! They shall not hold any other office or employment during their tenure, unlessotherwise provided by this Constitution

In Civil Liberties Union vs. Executive Secretary, 194 SCRA 317(1991), the petitionerchallenged EONo. 284 which in effect allowed Cabinet members, their undersecretariesand asst. secretaries and other appointive officials of the Executive Department to holdother positions in the govt., albeit, subject of the limitations imposed therein. Therespondents, in refuting the petitioners' argument that the measure was violative ofArt. VII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions bythe appointive official if allowed by law or by the pressing functions of his positions.

In declaring the EO unconstitutional, the SC held that by ostensibly restricting the no.of positions that Cabinet members, undersecretaries or asst. secretaries may hold inaddition to their primary position to not more than 2 positions in the govt. and GOOCs,EO 284 actually allows them to hold multiple offices or employment in directcontravention of the express mandate of Art. VII, Sec. 13 prohibiting them from doingso, !Jnlessotherwise provided in the 1987 Constitution itself.

If maximum benefits are to be derived from a dept. head's ability and expertise, heshould be allowed to attend to his duties and responsibilities without the distraction ofother govt. offices or employment.


1st Semester, SY 2012-2013, P.U.P. College of LawPage 5 of 73

Civil Liberties Union (CLU) v. Executive secretary, 194 SCRA 317 (1991)

FACTS: the petitioner challenged Ex. Order No. 284 which in effect allowed cabinet members, theirundersecretariesand asst. secretaries and other appointive officials of the Executive Department to hold otherpositions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting thepetitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowingthe hoiding of multiple positions by the appointive official if allowed by law or by the pressing functions of hispositions.

HELD: By ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst.secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOOCs,EO 284 actually allows them to hold multiple offices or employment in direct contravention of the expressmandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he shouldbe allowed to attend to his duties and responsibilities without the distraction of other govt. offices oremployment.

. The stricter prohibition applied to the President and his official family under Sec. 13, Art. VII as compared tothe prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of theintent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricterprohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment inthe govt during their tenure when such is allowed by law or by the primary functions of their positions,members of the cabinet, their deputies and assistants may do so only when expressly authorized by theConsti. itself. xxx

However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 mustnot be construed as applying to posts occupied by the Executive officials specified therein without additionalcompensation in an ex-officio capacity as provided by law and as required by the primary functions of saidofficial's office. The reason is that these posts do not comprise "any other office" within the contemplation ofthe constitutional prohibition but are properly an imposition of additional duties and function on said officials.

The term ex-officio means 'from office; by virtue of office. It refers to' an authority derived from officialcharacter merely, not expressly conferred upon the individual character, but rather annexed to the officialposition. Ex-officio likewise denotes an act done in an official character, or as a consequence of office, andwithout any other appointment or authority than that conferred by the office. An ex-officiOmember of a boardis onte who is a member by virtue of his title to a certain office, and without further warrant or appointment.To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officioChairman of the Board of the Philippine PortsAuthority, and the Light Rail Transit Authority.

''The ex-offiCio position being actually and in legal contemplation part of the principal office, it follows that theofficial concerned has no right to receive additional compensation for his services in the said position. Thereason is that these services are already paid for and covered by the compensation attached to his principaloffice.

De la Cruz v. COA, Nov. 21, 2001

HELD: Since the Executive Department Secretaries, as ex-officio members of the NHA Board, are prohibitedfrom receiving "extra (additional) compensation, whether it be in the form of a per diem or an honorarium oran allowance, or some other such euphemism," it follows that petitionerg who sit as their alternates cannotlikewise be entitled to receive such compensation. A contrary rule would give petitioners a better right thantheir principals.

(b) They shall not practice any other profession..r .

(ef They shall not participate in any business.

(d) They shall not be financially interested in any contract with, or in any franchise orspecial privilege granted.



CompareProhibitions against other officials

Art. VI, Sec. 13. No Senator or Member of the House of Representativesmay hold any other office or employment in the Government, or anysubdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his termwithout forfeiting his seat. Neither shall he be appointed to any officewhich may have been created or the emoluments thereof increased duringthe term for which he was elected.

Art. IX, A, Sec. 2. No Member of a Constitutional Commission shall,during his tenure, hold any other office or employment. Neither shall heengage in the practice of any profession or in the active management orcontrol of any business which in any way may be affected by the functionsof his office, nor shall he be financially interested, directly or indirectly, inany contract with, or in any franchise or privilege granted by theGovernment, any of its subdivisions, agencies, or instrumentalities,including government-owned or controlled corporations or theirsubsidiaries.

Art. IX, S, Sec. 7. No elective official shall be eligible for appointment ordesignation in any capacity to any public office or position during histenure.

Unless otherwise allowed by law or by the primary functions of hisposition, no appointive official shall hold any other office or employment inthe Government or any subdivision, agency or instrumentality thereof,including government-owned or controlled corporations or theirsubsidiaries.

Art. VIII, Sec. 12. The Members of the Supreme Court and of othercourts established by law shall not be designated to any agencyperforming quasi-judicial or administrative functions.

Ex(eptions to rule prohibiting executive officials from holding additionalpositions:

a. President

(1) The President can assume a Cabinet post, (because the departments are mereextensions of his personality, according to the Doctrine of Qualified Political Agency, sono objection can be validly raised based on Art. VII, Sec. 13.)

(2) The President is the Chairman of NEDA. (Art. XII, Sec. 9)

b. Vice-President

!

Art. VII, Sec. 3. xxxThe Vice-President may be appointed as member of the Cabinet.Such appointment requires no confirmation.

c. Cabinet

(1) The Secretary of Justice shall be an ex-officio member of the Judicial and BarCouncil. (Art. VIII, Sec. 8[lJ)

(2) Unless otherwise allowed by law or by the primary functions of his position,appointive officials shall not hold any other office or employment in the Government or



any subdivision, agency or instrumentality thereof, including government- owned orcontrolled corporations or their subsidiaries. (Art. IX, B, 7,par. 2)

Art. VII, Sec. 13 talks of "unless otherwise provided by the Constitution." In the caseof Cabinet members, this refers to Art. IX, B, 7, par. 2. Thus, the Constitution allows aCabinet member to hold another office provided either (1) such is necessitated by theprimary functions of his position (e.g. Secretary of Trade and Industry as Chairman ofNDC, Secretary of Agrarian Reform as Chairman of the Land Bank), or (2) is allowed bylaw.

D. SUCCESSION

(1) At the beginning of term

Art. VII, Sec. 7. The President-elect and the Vice-President electshall assume office at the beginning of their terms.

This provision refers to the President and Vice-President elected in the regular election,and so the term referred to begins on June 30 next following the election on the 2ndMonday of 1992, and every 6 years thereafter.

Vacancy in the Presidency

There are two sets of rules on succession, depending on whether the vacancy tookplace before the beginning of the term on June 30, or during the pendency of the termsthat commences on June 30. (The cut-off point is unsettled. One view is that the cut-off is noon of June 30, as expressed in Art. VII, Sec. 4, par. 1. The other view is thatthe cut-off is midnight of June 29 when June 30 begins.)

A. Temporary or permanent vacancy in the Presidency before the term

1. If the President-elect cannot assume his post at the beginning of his term because i)he has not qualified as yet ( e.g. he had an operation and so he could not take his oathof dffice on June 30), ii) or a President has not been "chosen" and qualified as yet (e.g.there is a tie and Congress has not yet broken the tie), then the Vice-President shall actas President until the President-elect shall have qualified, or shall have been "chosen:and qualified, as the case may be. (Art. VII, Sec. 7,pars. 2 & 3).

Art. VII, Sec. 7. xxxIf the President-elect fails to qualify, the Vice-President-elect shallact as President until a President shall have been chosen andqualified.

If a President shall not have been chosen, the Vice-President-electshall act as President until a President shall have been chosen andqualified.

xxx

2. If the President-elect i) dies, or ii) becomes permanently disabled "at the beginningof the term of the President" (i.e., before the term), then the Vice-President elect shallbecome the President. (Id.,par. 4)

Art. VII, Sec. 7. xxxIf at the beginning of the term of the President, the President-electshall have died or shall have become permanently disabled, theVice-Preside nt-elect shall become President.

Handput No. 6 - Executive DepartmentConstitutional Law 1- Atty. Rene Callanta, Jr


3. rIf both President and Vice-President (i) have not been "chosen" or (ii) have notqualified, or (iii) die, or (iv) become permanently disabled, then the President of theSenate, or in case of his inability, the Speaker of the House, shall act as President untila President or a Vice-President shall have been "chosen" and qualified. (Id.,par. 5)

Art. VII, Sec. 7. xxxWhere no President and Vice-President shall have been chosen orshall have qualified, or where both shall have died or becomepermanently disabled, the President of the Senate or, in case of hisinability, the Speaker of the House of Representatives shall act asPresident until a President or a Vice-President shall have beenchosen and qualified. (par. 5 thereof.)

In case both the President of the Senate and the Speaker of the House are unable toact as President, then Congress shall by law, provide for the "manner of selecting" theone who will act as President until a President of Vice-President shall have (been either"chlilsen" or "elected" pursuant to the special election referred to in Art. VII, sec. 10,and qualified.

Art. VII, Sec. 7. xxxThe Congress shall, by law, provide for the manner in which onewho is to act as President shall be selected until a President or aVice-President shall have qualified, in case of death, permanentdisability, or inability of the officials mentioned in the nextpreceding paragraph. (par. 6 thereof.)

Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morningof the third day after the vacancy in the offices of the Presidentand Vice-President occurs, convene in accordance with its ruleswithout need of a call and within seven days enact a law calling fora special election to elect a President and a Vice-President to beheld not earlier than forty-five days nor later than sixty days fromthe time of such call. The bill calling such special election shall bedeemed certified under paragraph 2, Section 26, Article VI of thisConstitution and shall become law upon its approval on thirdreading by the Congress. Appropriations for the special electionshall be charged against any current appropriations and shall beexempt from the requirements of paragraph 4, Section 25, ArticleVI of this Constitution. The convening of the Congress cannot besuspended nor the special election postponed. No special electionshall be called if the vacancy occurs within eighteen months beforethe date of the next presidential election.

(2) During the term of office

Art. VII, Sec. 8. In case of death, permanent disability, removalfrom office, or resignation of the President, the Vice-Presidentshall become the President to serve the unexpired term. In case ofdeath, permanent disability, removal from office, or resignation ofboth the President and Vice-President, the President of the Senateor, in case of his inability, the Speaker of the House ofRepresentatives, shall then act as President until the President orVice-President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President incase of death, permanent disability, or resignation of the ActingPresident. He shall serve until the President or the Vice-Presidentshall have been elected and qualified, and be subject to the same


1" Semester, SY 2012-2013, P.U.P. College o/LawPage 90/73

restrictions of powers and disqualifications as the ActingPresident.

B. Permanent Vacancy in the Presidency during the term

1. In case of the President's (i) death (ii) permanent disability, (iii) removal from office(the only way is by impeachment), or (iv) resignation, the Vice-President shall becomePresident for the unexpired portion of the term. (par. I)

2. In case of both the President's and Vice-President's death, permanent disability,removal from office (by impeachment), or resignation, then the Senate President or, incase of his inability, the Speaker of the House, shall act as .president until the Presidentor Vice-President shall have been "elected" (pursuant to the special election in Art. VII,Sec. 10) and qualified. (par. 1.)

Wh~n the Acting President (i.e., the Senate President, or Speaker of the House) dies,beebmes permanently disabled, or resigns (but is not removed, because there is noneed to impeach him, his stay being temporary), then the Congress shall by law,provide "who" shall be Acting President until the President or Vice-President shall havebeen "elected" (pursuant to the special election in Art. VII, Sec. 10) and qualified. ThisActing President shall be subject to the same restrictions of powers anddisqualifications. (par. 2)

Comparisons and distinctions between the two vacancies:

a) The incumbent President never holds-over the Presidency in any case.

b) The vacancy must occur in the offices of both the President and Vice-President inorder for the Senate President, or the Speaker, or, in their inability, the one provided tosucceed according to the Law of Succession passed by the Congress, to succeed asActing President until the qualification of the President.

c) fhe Law on Succession must be passed by the Congress in both cases in the eventthat the President, Vice-President, Senate President and the Speaker are all unable toact as President. But in the case of a vacancy occurring before the term, the lawprovides only for the "manner of selecting" the Acting President, while in the case of avacancy occurring during the term, it provides for "the person" who shall act asPresident. In both cases, the stint of the Acting President is temporary.

d) When the vacancy comes before the term, the Constitution talks of the successoracting as President until a President has been "chosen" and "qualified"; when it comesduring, it talks of "elected" and qualified. The reason is that before the term, thevacancy in the Presidency need not be filled up by election, since it may be filled up bya vote of Congress in case of a tie (Art. VII, Sec. 4, par. 5); but during the term, theonly way to fill up the vacancy is by specialelection.

e) A special election in both cases is held, pursuant to Art. VII, Sec. 10, only when bothoffi<;es of President and Vice-President are vacant. However, if the vacancy occursbefore the term, the grounds are limited to 2 (death and permanent disability or both),while if the vacancy occurs during the term, the grounds are 4 (death, permanentdisability, removal, and resignation).

f) The vacancy that occurs before the term of office may be temporary or permanent;the vacancy that occurs during the term of office can only be a permanent one. Thus,a different set of rules applies, to be discussed next following, in case of the temporaryinability of the President during the term of office.



Estrada v. Desierto, march 2, 2001

ISSUE: Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, hesubmits that the office of the Presidentwas not vacant when respondent Arroyo took her oath as President.

HELD: The issue brings under the microscope the meaning of section 8, Article VII of the Constitution whichprovides:

"SECTION8. In case of death, permanent disability, removal from office or resignation ofthe President, the Vice President shall become the President to serve the unexpired term. Incase of death, permanent disability, removal from office, or resignation of both the Presidentand Vice President, the President of the senate or, in case of his inability, the Speaker of theHouse of Representatives, shall then act as President until the President or Vice Presidentshall have been elected and qualified.

xxx xxx xxx."

The issue then is whether the petitioner resigned as President or should be considered resigned as of January20, L001 when respondent took her oath as the 14th President of the Republic. Resignation is not a high levellegal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent toresign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governedby any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied.As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before heevacuated Malacaiiang Palace in the afternoon of January 20, 2001 after the oath-taking of respondentArroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissionsbefore, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts andcircumstantial evidence bearing a material relevanceon the issue.

Using this totalitv test, we hold that petitioner resigned as President.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leavingMalacaiiang. In the press release containing his final statement, (1) he acknowledged the oath-taking of therespondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he wasleavirg the Palace,the seat of the presidency, for the sake of peaceand in order to begin the healing processof our nation. He did not say he was leaving the Palacedue to any kind of inability and that he was going tore-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the peoplefor the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to servethe people as President; (4) he assured that he will not shirk from any future challenge that may come aheadin the same service of our country. Petitioner's reference is to a future challenge after occupying the office ofthe president which he has given up, and (5) he called on this supporters to join him in the promotion of aconstructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation andsolidarity could not be attained if he did not give up the presidency. The press release was petitioner'svaledictory, his final act of farewell His presidency is now in the past tense.

(3) In case of temporary disability

Art. VII, Sec. 11. Whenever the President transmits to the Presidentof the Senate and the Speaker of the House of Representatives hiswritten declaration that he is unable to discharge the powers andduties of his office, and until he transmits to them a writtendeclaration to the contrary, such powers and duties shall bedischarged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit tothe President of the Senate and to the Speaker of the House ofRepresentatives their written declaration that the President isunable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of theoffice as Acting President.

Thereafter, when the President transmits to the President of theSenate and to the Speaker of the House of Representatives his

Handout No..6 - Executive DepartmentConstitutional Law 1- Atty. Rene Callanta, Jr

1st Semester, SY 2012-2013, P.U.P. College o/LawPage 11 0/73

written declaration that no inability exists, he shall reassume thepowers and duties of his office. Meanwhile, should a majority ofall the Members of the Cabinet transmit within five days to thePresident of the Senate and to the Speaker of the House ofRepresentatives their written declaration that the President isunable to discharge the powers and duties of his office, theCongress shall decide the issue. For that purpose, the Congressshall convene, if it is not in session, within forty-eight hours, inaccordancewith its rules and without need of call.

If the Congress, within ten days after receipt. of the last writtendeclaration, or if not in session, within twelve days after it isrequired to assemble, determines by a two-thirds vote of bothHouses, voting separately, that the President is unable todischarge the powers and duties of his office, the Vice-Presidentshall act as President; otherwise, the President shall continueexercising the powers and duties of his office.

C. Temporary Vacancy in the Presidency during the term (Art. VI, Sec. 11,supra)

A vacancy in the Presidency arising from his disability can occur in any of the followingways:

1. A written declaration by the President

2. Written declaration by the Cabinet

3. Finding by Congress by 2/3 vote that the President is disabled.

In ali these cases, the Vice-President temporarily acts as the President.

Voll!lntary declaration of inability by President

a. When the President transmits to the Senate President and the Speaker his writtendeclaration that he is unable to discharge the powers and duties of his office, suchpowers and duties shall be discharged' by the Vice-President as Acting President.

b. The Vice-President shall so act until the President transmits to the Senate Presidentand the Speaker a written declaration that he is no longer unable to discharge hisoffice.

Contested inability of the President

a. When majority of all the members of the Cabinet transmit to the Senate Presidentand Speaker their written declaration that the President is unable to discharge hisoffice, then the Vice-President shall immediately assume the Presidency in an actingcapacity.

!b. The President can contest this by sending his own written declaration to the SenatePresident and Speaker, that no inability exists. Upon such transmittal, the Presidentshall automatically assume his office.

c. Should the majority of the Cabinet insist on their original stand by transmitting asecond written declaration of the President's inability within 5 days from resumption ofoffice of the President, then Congress shall step in.

d. Upon receipt of this second declaration by the Cabinet, Congress shall convene, if itis not in session, within 48 hours, without need of call, in accordance with its rules. (Ifit is already in session, it must meet right away, as glimRsed from the fact that they



only have 10 days to decide, whereas if it is not in session, it must convene in 2 daysand decide before the 12th day.)

e. Congress shall determine the President's inability within 10 days after receipt of thesecond written declaration by the Cabinet if it is in session, or within 12 days after it isrequired to assemble by its respective presiding officer if it is not in session.

f. If the President, by a 2/3 vote of both houses voting separately, determined to be"unable" to discharge his office, then the Vice-President shall act as President. If lessthan 2/3 find him unable, then the President shall continue exercising the powers andduties of his office.

Serious Illness of the President

Art. VII, Sec. 12. In case of serious illness of the President, thepublic shall be informed of the state of his health. The members ofthe Cabinet in charge of national security and foreign relations andthe Chief of Staff of the Armed Forces of the Philippines, shall notbe denied access to the President during such illness.

E. REMOVAL

Art. XI, Sec. 2. The President, the Vice-President, the Members ofthe Supreme Court, the Members of the ConstitutionalCommissions, and the Ombudsman may be removed from office,on impeachment for, and conviction of, culpable violation of theConstitution, treason, bribery, graft and corruption, other highcrimes, or betrayal or public trust. All other' public officers andemployees may be removed from office as provided by law, but notby impeachment.

Art. XI, Sec. 3. (1) The House of Representatives shall have theexclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by anyMember of the House of Representatives or by any citizen uponresolution of endorsement by any Member thereof, which shall beincluded in the Order of Business within ten session days, andreferred to the proper Committee within three session daysthereafter. The Committee, after hearing, and by a majority voteof all its Members, shall submit its report to the House within sixtysession days from such referral, together with the correspondingresolution. The resolution shall be calendared ~orconsideration bythe House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the Houseshall be necessary either to affirm a favorable resolution with theArticles of Impeachment of the Committee, or override its contraryresolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment isfiled by at least one-third of all the Members of the House, thesame shall constitute the Articles of Impeachment, and trial by theSenate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against thesame official more than once within a period of one year.

"

,



(6) The Senate shall have the sole power to try and decide allcases of impeachment. When sitting for that purpose, theSenators shall be on oath or affirmation. When the President ofthe Philippines is on trial, the Chief Justice of the Supreme Courtshall preside, but shall not vote. No person shall be convictedwithout the concurrence of two-thirds of all the Members of theSenate.

(7) Judgment in cases of impeachment shall not extend furtherthan removal from office and disqualification to hold any officeunder the Republic of the Philippines, but the party convicted shallnevertheless be liable and subject to prosecution, trial, andpunishment according to law.

[A more detailed discussion on this topic can be found above under Other Powers ofCon'gress: Impeachment.]

Initiation Stage at the House of Representatives

a. Filing of verified complaint for impeachment of the President or Vice-President, onthe ground of culpable violation of the Constitution, treason, bribery, graft andcorruption, other high crimes, or betrayal of public trust.

b. Inclusion of the complaint in the Order of Business within 10 session days.

c. Referral of complaint to the Committee on Justice within 3 session days from itsinclusion.

d. Hearing, voting, and submission of report by the Committee within 60 days fromreferral.

e. Placing on calendar of the Committee resolution within 10 days from submission.

f. Discussion on the floor of the report, then a vote by the membership of the House ofRepresentatives.

g. If 1/3 vote to affirm a favorable resolution or override a contrary resolution, the caseis forwarded to the Senate for trial.

Trial Stage at the Senate

a. The Senators take an oath or affirmation. The Chief Justice of the Supreme Courtpresides over the trial, but does not vote.

b. After trial, the Senators vote to convict or acquit. A vote of 16 (2/3 of all themembers) is required to convict the President or Vice-President.

Post-trial

a. If the President is acquitted by the Senate, he shall continue in office. Noimpeachment proceeding can again be initiated against him within a period of one year.

b. If the President is impeached, he shall be removed from office at once, and shall bedisqualified to hold any office in the Republic. His criminal liability under Art. XI, Sec.3(7) may be subject to him immunity from suit.


1s' Semester, SY 2012-2013, P.U.P. College of LawPage 14 of 73

F. POWERS AND FUNCTIONS OF THE PRESIDENT

(1) Executive Power

Art. VII, Sec. 1. The executive power shall be vested in thePresident of the Philippines.

Id., Sec. 17. The President shall have control of all the executivedepartments, bureaus, and offices. He shall ensure that the lawsbe faithfully executed.

The executive function is essentially the duty to implement the laws within thestandards imposed by the legislature. Under the Constitution, this power is exercisedby the President. Thus, when the Cabinet and other branches of the Executive De-par~ment implement the law, they are acting under the control of the President.

Villena v. sec. of Interior, 67 Phil. 451 (1939)

HELD: The first section of Article VII of the Constitution, dealing with the Executive Department, begins withthe enunciation of the principle that "The executive power shall be vested in a President of the Philippines."This means that the President of the Philippines is the Executiveof the Government of the Philippines, and noother. The heads of the executive departments occupy political positions and hold office in an advisorycapacity, and, in the language of Thomas Jefferson, "should be of the President's bosom confidence" and, inthe language of Attorney-General Cushing, "are subject to the direction of the President".

Marcos v. Manglapus, 177 SCRA 668, 178 SCRA 760

FACTS: This is a petition for mandamus asking the Court to order the respondents to issue travel documentsto Mr. Marcos and his immediate family and to enjoin the implementation of the President's decision to bartheir return to the Philippines. The issue is whether or not, in the exercise of executive power, the Presidentmay prohibit the Marcosesfrom returning to the Philippines.

HELl>: The Constitution provides that the executive power shall be vested in the President (Art. VII, Sec. 1).However, it does not define what is meant by "executive power" although in the same article it touches on theexercise of certain powers by the President, i.e. the power of control over all executive depts., bureaus andoffices, the power to execute the laws, the appointing power, the powers under the commander in chiefclause, the power to grant reprieves, commutations, pardons, the power to grant amnesty with theconcurrence of Congress,the power to contract or guarantee foreign loans, the power to enter into treaties orinternational agreements, the power to submit the budget to congress and the power to address Congress.(VII, Sec. 14-23)

The inevitable question is whether by enumerating certain powers of the President, did the framers of theConstitution intend that the Presidentshall exercise those specific powers and no other?

According to the SC, that although the 1987 Constitution imposes limitations on the exercise of specificpowers of the President, it maintains intact what is traditionally considered as within the scope of executivepower. Corollarily, the powers of the President cannot be said to be limited only to the specific powerenumerated in the Constitution. In other words, executive power is more than the sum of specific powers soenumerated.

In ttiis case, the President has the power to bar the Marcosesfrom returning to the Philippines. She has theobligation to protect the people, promote their welfare and advance the national interest. She has to balancethe general welfare and the common good against the exercise of rights of certain individuals. The powerinvolved is the President's residual power to protect the general welfare of the people. It is founded on theduty of the President, as steward of the people.

Resolution on Motion for Reconsideration:

It cannot be denied that the President, upon whom executive power is vested, has unstated residual powerswhich are implied from the grant of executive power and which are necessary for her to comply with herduties under the Constitution. The powers of the President are not limited to what are expressly enumeratedin the article on the Executive Department and in scattered provisions of the Constitution.

II

•


1st Semester, SY 2012-2013, P.U.P. College o/LawPage 150/73

"Faithful Execution clause" or "Take Care Clause" (Sec 17,Art. VII)

The President shall ensure that laws are faithfully executed. It is not for him todetermine the validity of a law since this is a question exclusively addressed to thejudiciary. Thus, until and unless a law is declared unconstitutional, the President hasthe duty to execute it regardless of his doubts on its validity. A contrary opinion wouldallow him to negate the will of the legislature and to encroach upon the prerogative ofthe judiciary. (Nachara, pp 224-225)

David v. Macapagal-Arroyo, GR No. 171396, May 3, 2006

HELD: Asthe Executiveinwhomtheexecutivepowerisvested,the primaryfunctionof the Presidentis toenforcethe lawsaswellasto formulatepoliciesto beembodiedin existinglaws. Heseesto it that all lawsareenforcedbytheofficialsandemployeesof hisdepartment.Beforeassumingoffice, he is requiredto takeanoathor affirmationto the effect that asPresidentof the Philippines,hewill, amongothers,"executeitslaws!"In theexerciseof suchfunction,thePresident,if needed,mayemploythepowersattachedto hisofficeas the Commander-in-Chiefof all the armedforcesof the country,includingthe PhilippineNationalPoliceundertheDepartmentof InteriorandLocalGovernment.

(2) Control of executive departments

Art. VII, Sec. 17. The President shall have control of all theexecutive departments, bureaus, and offices. He shall ensure thatthe laws be faithfully executed.

"Control" is the power to substitute one's own judgment in that of a subordinate.

Und!:r the qualified political agency doctrine, the different executive departments aremere adjuncts of the President. The secretaries are the alter ego of the President, menof his bosom confidence whom he designated to assist him in his otherwise physicallyimpossible multifarious functions, the extension of the President in the particular field inwhich they act. Their acts are presumptively acts of the "President, until coun-termanded or reprobated by him". The President can substitute his will over those ofthe secretaries, and they cannot complain. Furthermore, they hold their office subjectto the discretion of the President, who can replace them anytime once he loses hisconfidence in them.

Thus, in Planas v. Gil, since the Civil Service Commissioner, then not an independentbody, was the alter ego of the President, and the President could investigate localofficials, the Commissioner could likewise investigate them.

In Vil/ena v. Secretary of the Interior, the investigation of the Mayor of Makati by theSecretary of the Interior was deemed an investigation conducted by the Presidenthimself.

The doctrine on the power of control remained unchanged in the jurisprudence underthe 1973 Constitution. Free Telephone Workers Union v. Minister of Labor, 108 SeRA 757(1981)had! occasion to reemphasize its continuing validity. Here, the power given to theMinister of Labor to assume jurisdiction over a labor dispute affecting the nationalinterest or to certify it for compulsory arbitration was challenged as an unduedelegation of a power which properly belonged to the President. All that was needed tosettle the case was to hark back to the Villena doctrine that the heads of ministries arealter egos of the President. Under the presidential system, all executive andadministrative organizations are adjuncts of the Executive Department, the heads ofthe various executive departments are assistants and agents of the Chief Executiveand, except in cases where the Chief Executive is required by the Constitution or thelaw to act in person or the exigencies of the situation demand that he act personally,the multifarious executive and administrative functions of the Chief Executive areperformed and promulgated in the regular course of business, are, unless disapprovedor reprobated by the Chief Executive, presumptively the acts of the Chief Executive.


Is'Semester, SY 2012-2013, P.U.P. College o/LawPage 160/73

Each head of a department is, and must be, the President's alter ego in the matters ofthat department where the President is required by law to exercise authority. ThePresident has the constitutional power of control and direction over such dept. headsand cabinet secretaries.

(3) General supervision of local governments and autonomous regions

Art. X, Sec. 4. The President shall exercise general supervision overlocal governments. xxx

Art. X, Sec. 16. The President shall exercise general supervisionover autonomous regions to ensure that laws are faithfully exe-cuted.

f"General supervision" means the mere overseeing of a subordinate to make surethat they do their duties under the law. But this does not include the power to overruletheir acts, if these acts are within their discretion.

The grant of mere supervisory power over local governments and autonomous regionsis in line with the policy of the State to promote the autonomy of local governmentsand autonomous regions. There can be no real local autonomy while the NationalGovernment controls the local governments.

Ganzon v. CA, 200 SCRA 271 (1991)

The petitioners question the power of the President, acting through the .Secretary of Local Government, tosuspendand/or remove local officials.

HELD: It is the considered opinion of the Court that notwithstanding the change in the constitution, thecharter did not intend to divest the legislature of its right -- or the President of her prerogative as conferred byexisting legislation to provide administrative sanctions against local officials. The omission of "as may beprovided by law" (Sec. 4, Art. Xl signifies nothing more than to underscore local governments' autonomy fromCongressand to break Congress' "control" over local government affairs. The Constitution did not, however,intend for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, inparticular, concerning discipline.

Petitioners are under the impression that the Constitution has left the President mere supervisory powers,which supposedly excludes the power of investigation, and denied her control, which allegedly embracesdisciplinary authority. This is a mistaken impression because legally "supervision" is not incompatible withdisciplinary authority. "Contro/" has been defined as the power of an officer to alter, modify or nullify or setaside what a subordinate officer had done in the performance of his duties and to substitute the judgment ofthe former for that of the latter. "Supervision" on the other hand means overseeing or the power orauthority of an officer to see that subordinate officers perform their duties.

Bito-Onon v. Fernandez, 350 SCRA 732 (2001)

Distinguish the President'spower of general supervision over local governments from his control power.

HELb: On many occasions in the past, this Court has had the opportunity to distinguish the power ofsupervision from the power of control. In Taule v. santos, we held that the Chief Executivewielded no moreauthority than that of checking whether a local government or the officers thereof perform their duties asprovided by statutory enactments. He cannot interfere with local governments provided that the same or itsofficers act within the scope of their authority. SUPERVISORYPOWER,when contrasted with control, is thepower of mere oversight over an inferior body; it does not include any restraining authority over such body.Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on hispart to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervisiondoes not cover such authority. Supervisingofficers merely see to it that the rules are followed, but he himselfdoes not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are notobserved, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe hisown manner for the doing of the act.


1" Semester, SY2012-2013, P.U.P. College of LawPage 170f73

(4) Power of appointment

Art. VII, Sec. 16. The President shall nominate and, with theconsent of the Commission on Appointments, appoint the heads ofthe executive departments, ambassadors, other public ministersand consuls, or officers of the armed forces from the rank ofcolonel or naval captain, and other officers whose appointmentsare vested in him in this Constitution. He shall also appoint allother officers of the Government whose appointments are nototherwise provided for by law, and those whom, he may beauthorized by law to appoint. The Congress may, by law, vest theappointment of other officers lower in rank in the President alone,in the courts, or in the heads of departments, agencies,commissions or boards.

CrllZ: Appointment may be defined as the selection, by the authority vested with thepower, of an individual who is to exercise the functions of a given office.

Nachllra: Appointment is the selection, by the authority vested with the power, of anindividual who is to exercise the functions of a given office. It is distinguished fromdesignation in that the latter simply means the imposition of additional duties, usuallyby law, on a person already in the public service. It is also different from thecommission in that the latter is the written evidence of the appointment.

The power of appointment is, according to the SC in Concepcion v. Paredes, the mosteminently executive power, because it is through his appointees that the President canexecute laws.

The power of appointment by the President under the 1987 Constitution has beensigl"}ificantly curbed. It can be classified as follows:

i.) Permanent or temporary. Permanent appointments are those extended topersons possessing the requisite eligibility and are thus protected by theconstitutional guarantee of security of tenure. Temporary appointments are given topersons without such eligibility, revocable at will and without the necessity of justcause or a valid investigation; made on the understanding that the appointing powerhas not yet decided on a permanent appointee and that the temporary appointeemay be replaced at any time a permanent choice is made.

ia.) A temporary appointment and a designation are not subject to confirmation bythe Commission on Appointments. Such confirmation, if given erroneously, will notmake the incumbent a permanent appointee {Valencia v. Peralta, 8SCRA 692J

ib.) In Binamira v. Garrllcho, 188SCRA 154, it was held that where a person is merelydesignated and not appointed, the implication is that he shall hold the office only in? temporary capacity and may be replaced at will by the appointing authority. Inthis sense, a designation is considered only an acting or temporary appointmentwhich does not confer security of tenure on the person named.

ii.) Regular or ad interim. A regular appointment is one made by the President whileCongress is in session, takes effect only after confirmation by the Commission onAppointments, and once approved, continues until the end of the term of theappointee. An ad interim appointment is one made by the President while Congressis not in session, takes effect immediately, but ceases to be valid if disapproved bythe Commission on Appointments or upon the next adjournment of Congress. In thelatter case, the ad interim appointment is deemed "by-passed" through inaction anddeemed disapproved by the Commission on Appointments. The ad interimappointment is intended to prevent a hiatus in the discharge of official duties.



iia.) An ad interim appointment is a permanent appointment (Pamantasan ng Lungsod ngMaynila v. Intermediate Appellate Court, 140 SCRA 22J.

Steps in the appointing process:1) Nomination by the President;2) Confirmation by the Commission on Appointments;3) Issuance of the commission;4) Acceptance by the appointee.

In Lllcson v. Romero, 84 Phil 740, the Supreme Court declared that an appointment isdeemed complete only upon its acceptance. Pending such acceptance, which is optionalto the appointee, the appointment may still be validly withdrawn. Appointment to apublic office cannot be forced upon any citizen except for the purposes of defense ofthe ,State under Sec. 4, Art. II, as an exception to the rule of voluntary servitude.

Discretion of Appointing Authority.

Appointment is essentially a discretionary power and must be performed by the officerin which it is vested according to his best lights, the only condition being that theappointee should possess the minimum qualification requirements prescribed by law forthe position. See Luego v. Civil Service Commission, 143 SCRA 327; Lapinid v. Civil ServiceCommission, 197 SCRA 106; Pobre v. Mendieta, 224 SCRA 738.

With the consent of the Commission on Appointments

Q. Enumerate the groups of officers who are to be appointed by the President underSection 16, Article VII of the 1987 Constitution, and identify those officers whoseappointments shall require confirmation by the Commission on Appointments?

HE'l-D: Conformably, as consistently interpreted and ruled in the leading case ofSarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v.COllstitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of theConstitution, there are four groups of officers of the government to be appointed by thePresident:

First, the heads of the executive departments, ambassadors, other publicministers arid consuls, officers of the armed forces from the rank of colonelor naval captain, and other officers whose appointments are vested in himin this Constitution;

Second, all other officers of the Government whose appointments are nototherwise provided for by law; .

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may bylaw vest in the President alone.

It is well-settled that only presidential appointees belonging to the first group requirethe confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312SCRA 239)

Q. State the reason why not all appointments made by the President under the 1987Constitution will no longer require confirmation by the Commission onAppointments?

HELD: The aforecited provision (Section 16, Article VII) of the Constitution has beenthe subject of several cases on the issue of the restrictive function of the Commissionon Appointments with respect to the appointing power of the President. This Courttouched upon the historical antecedent of the said provision in the case of Sarmiento III v.



Mison in which it was ratiocinated upon that Section 16 of Article VII of the 1987Constitution requiring confirmation by the Commission on Appointments of certainappointments issued by the President contemplates a system of checks and balancesbetween the executive and legislative branches of government. Experience showedthat when almost all presidential appointments required the consent of the Commissionon Appointments, as was the case under the 1935 Constitution, the commissionbecame a venue of "horse trading" and similar malpractices. On the other hand,placing absolute power to make appointments in the President with hardly any check bythe legislature, as what happened under the 1973 Constitution, leads to abuse of suchpower. Thus was perceived the need to establish a "middle ground" between the 1935and 1973 Constitutions. The framers of the 1987 Constitution deemed it imperative tosubject certain high positions in the government to the power of confirmation of theCommission on Appointments and to allow other positions within the exclusiveappbinting power of the President. (Manalo v. Sistoza, 312SeRA 239)

Do bureau directors need confirmation? In Sarmiento v. Mison (Dec. 1987),the SC held thatno they did not need to be confirmed. The deliberations of the Con Con showed that adraft similar to Article VII, section 10 of the 1935 Constitution, which included bureauheads in the list of appointees requiring confirmation, was introduced, but upon motion,bureau directors were omitted expressly from the draft because they were consideredof low rank, and so were thought to be better shielded from partisan politics.

But the SC added that of the 4 categories of public officers requiring confirmation, the4th must be given a restrictive construction because confirmation derogates theappointing power of the President. Indeed, it said, only a small class of officers neededconfirmation.

Bautista v. salonga, 172 SCRA 160 (1989)

FACrS: Petitioner was appointed Chairman of the Commission on Human Rights on December 17, 1988. Shetook' her oath of office on December 22, 1988 and thereafter entered into the discharge of her functions andduties. However, on January 9, 1989, she was asked by the Commission on Appointments (CA) to submitcertain information and documents needed in the confirmation of her appointment. She refused to comply onthe ground that her appointment was not subject to confirmation. On January 14, 1989, the Presidentsubmitted petitioner's ad interim appointment to the CA, but, considering petitioner's refusal to submit to thejurisdiction of the CA, the CA disapproved her appointment on January 2S, 1989. Petitioner, anticipating theaction of the CA, filed a petition for cettiorari with the Sc.

ISSUE: Whether or not the appointment by the President of the Chairman of the Commission on HumanRights (CHR) is to be made with or without CA confirmation.

HELD: (1) Only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to bereviewed by the CA, namely, "the heads of the executive departments, ambassadors, other public ministersand consuls, other officers of the armed forces from the rank of colonel or naval captain, and other officerswhose appointments are vested in him in this Constitution." All other appointments by the President are to bemade without the participation of the CA." Since the position of Chairman of the CHR, an independent officecreated by the Constitution, is not among the positions mentioned in the first sentence of Sec. 16, Art. VII,appdintments to which are to be made with the confirmation of the CA, it follows that the appointment by thePresident of the Chairman of the CHR is to be made without the review or participation of the CA. They areamong the officers of the government "whom he (the President) may be authorized by law to appoint." AndSec. 2 (c) of EO 163, May 5, 1987, authorizes the President to appoint the Chairman and Members of theCHR.

Quintos-Deles v. Commission on Appointments, 177 SCRA 259 (1989)

FACTS: Petitioner and 3 others were appointed Sectoral Representatives by the President pursuant to ArticleVII, Section 16, par. 2 and Article XVIII, Section 7 of the Constitution. However, petitioner and the 3 othersectoral representatives- appointees were not able to take their oaths and discharge their duties as membersof Congress due to the opposition of some congressmen-members of the Commission on Appointments (CA),who insisted that sectoral representatives must first be confirmed by the CA before they can take their oathsand/or assume office as members of the House of Representatives.



ISSUE: Whether the Constitution requires confirmation by the CA in the appointment of sectoralrepresentatives to the House of Representatives.

HELD: YES, section 16, Article VII of the Constitution provides that: "The president shall nominate and, withthe consent of the Commission on Appointments, appoint the heads of the executive departments,ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel ornaval captain, and other officers whose appointments are vested in him in this Constitution x x x".

In SARMIENTO VS. MISON(1987), the SCconstrued Sec. 16, Art. VII of the Constitution to mean that onlyappointments to offices mentioned in the first sentence of the said Section'16, Art. VII require confirmation bythe CA.

Since the seats reserved for sectoral representatives in par. 2, Sec. S, Art. VI may be filled by appointment bythe President by express provision of Sec. 7, Art. XVIII of the Constitution, it is indubitable that sectoralrepresentatives to the Houseof Representativesare among the "other officers whose appointments are vestedin th'e President in this Constitution", referred to in the first sentence of Sec. 16, Art. VII whose appointmentsare subject to confirmation by the CA.(SARMIENTOVS.MISON)

Implicit in the invocation of par. 2, Section 16, Art. VII as authority for the appointment of petitioner is, therecognition by the President as appointing authority that petitioner's appointment requires confirmation by theCA. Under Par. 2, Sec. 16, Art VII, appointments made by the President pursuant thereto "shall be effectiveonly until disapproval by the CA or until the next adjournment of the Congress." If indeed appointments ofsectoral representatives need no confirmation, the President need not make any reference to theconstitutional provisions above-quoted in appointing the petitioner. As a matter of fact, the President hadexpressly submitted petitioner's appointment for confirmation by the CA. Considering that Congress hadadjourned without respondent CA having.acted on petitioner's appointment, said appointment/nomination hadbecome moot and academic pursuant to Sec. 23 of the Rulesof respondent CAand "unless resubmitted shallnot again be considered by the Commission." .

Calderon v. Carale, 208 SCRA 254 (1992)

FACTS: In March 1989, RA 671S (Herrera-Veloso Law), amending the Labor Code, was approved. It providesin Sec. 13 thereof as follows:

"xxxThe Chairman, the Division Presiding Commissioners and other Commissioners shall beappointed by the President, subject to confirmation by the CA. xxx"

Pursuant to said law, President Aquino appointed the Chairman (B. CARALE)and Commissionersof the NLRC.The appointments stated that the appointees may qualify and enter upon the performances of the duties ofthe office.

The present petition for prohibition questions the constitutionality and legality of the permanent appointmentsextended by the President to the respondents Chairman and Members of the NLRC,without submitting thesame to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code asamended by RA6715.

Petitioners insists on a mandatory compliance with RA6715 which has in its favor the presumption of validity.RA 6715 is not, according to the petitioner, an encroachment on the appointing power of the executivecontained in Sec. 16 of Art. VII of the Constitution.

I .The Solicitor General contends, on the other hand, that RA 6715 transgresses Sec. 16, Art. VII by expandingthe confirmation powers of the Commissionon Appointments without constitutional basis.

ISSUES: (1) WIN Congress may, by law, require confirmation by the Commission on Appointments ofappointments extended by the President to government officers additional to those expressly mentioned in thefirst sentence of Sec. 16, Art. VII of the Constitution. (NO)

HELD: The controversy in the case is focused on Sec. 16, Art. VII of the 1987Constitution which provides:

"Sec. 16. The President shall nominate and, with the consent of the Commission onAppointments, appoint the heads of the executive departments, ambassadors, other publicministers and consuls, or officers of the armed forces from the rank of colonel or navalcaptain, and other officers whose appointments are vested in him in this Constitution. Heshall also appoint all other officers of the Government whose appointments are not otherwiseprovided for by law, and those whom he may be authorized by law to appoint. The Congress



may, by law, vest the appointment of other officers lower in rank in the President alone, inthe courts, or in the heads of departments, agencies, commissions, or boards." xxx

There are four groups of officers whom the Presidentshall appoint. These four groups are:

First; the heads of the executive departments, ambassadors,other public ministers and consuls, officers of thearmed forces from the rank of colonel or naval captain, and other officers whose appointments are vested inhim in this Constitution;

5econd, all other officers of the Government whose appointments are not otherwise provided for law;

Third, those whom the Presidentmay be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congressmay by law vest in the Presidentalone.!

The second sentence of sec. 16, Art. VII refers to all other officers of the government whose appointmentsare not otherwise provided for by law and those whom the Presidentmay be authorized by law to appoint.

Indubitably, the NLRCChairman and Commissionersfall within the second sentence of Sec. 16, Art. VII, morespecifically under "those whom he (the President) may be authorized by law to appoint." Undeniably, theChairman and Members of the NLRCare not among the officers mentioned in the first sentence of Sec. 16whose appointments requires confirmation by the CA.

To the extent that RA 6715 requires confirmation by the 01 of the appointments of respondents Chairman andMembers of the NLRC, it is unconstitutional because:1. it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding theretoappointments requiring confirmation by the CA; and2. it amends by legislation, the second sentence of Sec. 16, Art. VII, by imposing the confirmation of the CAon appointments w/c are otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicialfunction.

I

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of thePhilippines. No doctrine or principle of law laid down by the Court in a decision rendered en bane or in divisionmay be modified or reversed except by the Court sitting en bane.

Notes: From the rulings in sarmiento III v. Mison, 1565CRA 549, Bautista v. salonga, 1725CRA 160, andDeles v. Constitutional Commission, 1775CRA 259, these doctrines are deducible:

1. Confirmation by the CA is required only for presidential appointees as mentioned in the first sentence ofSec. 16, Art. VII, including, those officers whose appointments are expressly vested by the Constitution itselfin the president (like sectoral representatives to Congressand members of the constitutional commissions ofAudit, Civil Serviceand Election).

2. Confirmation is not required when the President appoints other government officers whose appointmentsare not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like theChairman and Members of the Com. on Human Rights). Also, as observed in sarmiento v. Mison, whenCongress creates inferior offices but omits to provide for appointment thereto, or provides in anuncorstitutional manner for such appointments, the officers are considered as among those whoseappointments are not otherwise provided for by law.

ISSUE: (2) WIN legislation can expand a constitutional provision after the SupremeCourt has interpreted it.

HELD: In Endencia and Jugo v. David, 93 Phil. 699, the Court held:

"We have already said that the Legislature under our form of government is assigned the taskand the power to make and enact laws, but not to interpret them. This is more true withregard to the interpretation of the Constitution, which is not within the sphere of theLegislative Department. If the Legislature may declare what a law means, or what a specificportion of the Constitution means, especially after the courts have in actual case ascertainedits meaning by interpretation and applied it in a decision, this would surely cause confusionand instability in judicial processesand court decisions. Under sych a system, a final courtdetermination of a case based on judicial interpretation of the law or of the Constitution maybe undermined or even annulled by a subsequent and different interpretation of the law or of



the Constitution by the Legislative Department. That would neither be wise nor desirable,besides being clearly violative of the fundamental principles of our constitutional system ofgovernment, particularly those governing the separation of powers."

The function of the Court in passing upon an act of Congress is to " lay the article of the Constitution which isinvoked beside the statute which is challenged and to decide whether the latter squares with the former" andto announce its considered judgment upon the question."

It cannot be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately intended by theframers to be a departure from the system embodied in the 1935 Constitution where the CA exercised thepower of confirmation over almost all presidential appointments, leading to many cases of abuse of suchpower of confirmation.

Manfllo v. Sistoza, 312 SCRA239 (1999)

FACTS: Under Republic Act 6975 (the DlLG Act of 1990), the Director General, Deputy Director General, andother top officials of the Philippine National Police (PNP) shall be appointed by the President and theirappointments shall require confirmation by the Commission on Appointments. Respondent Sistoza wasappointed Director General of the PNPbut he refused to submit his appointment papers to the CommissiononAppointments for confirmation contending that his appointment shall no longer require confirmation despitethe express provision of the law requiring such confirmation. Should his contention be upheld?

HELD: It is well-settled that only presidential appointees belonging to the first group (enumerated under thefirst sentence of Section 16, Article VII of the 1987 Constitution) require the confirmation by the Commissionon Appointments. The appointments of respondent officers who are not within the first category, need not beconfirmed by the Commission on Appointments. As held in the case of Tarrosa v. Singson, Congresscannotby law expand the power of confirmation of the Commission on Appointments and require confirmation ofappointments of other government officials not mentioned in the first sentence of Section 16 of Article VII ofthe 1987Constitution.

Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commissionon Appointments to confirm the appointments of public officials whose appointments are not required by theConstitution to be confirmed.

ISSUE: Will it be correct to argue that since the Philippine National Police is akin to the Armed Forcesof thePhilippines, therefore, the appointments of police officers whose rank is equal to that of colonel or navalcaptain will require confirmation by the Commissionon Appointments?

HELD: This contention is untenable. The Philippine National Police is separate and distinct from the ArmedForcesof the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4 of Article XVIof the 1987Constitution, .

"The Armed Forces of the Philippines shall be composed of a citizen armed force whichshall undergo military training and service, as may be provided by law, It shall keep aregular force necessaryfor the security of the State,"

On the other hand, Section 6 of the sameArticle of the Constitution ordains that:

"The State shall establish and maintain one police force, which shall be national in scopeand civilian in character to be administered and controlled by a national policecommission. The authority of local executives over the police units in their jurisdictionshall be provided by law."

To so distinguish the police force from the armed forces, Congressenacted RepublicAct 697Sx x x.

Thereunder, the police force is different from and independent of the armed forces and the ranks in themilitary are not similar to those in the Philippine National Police. Thus, directors and chief superintendents ofthe PNPx x x do not fall under the first category of presidential appointees requiring confirmation by theCommissionon Appointments.



PRESIDENTIAL APPOINTEES UNDER THE CONSTITUTION

(a) Heads of the executive departments (Art. VII, Sec. 16.)

(b) Ambassadors. other public ministers and consuls (Id.)

(c) Officers of the Armed Forces of the Philippines with the rank of colonel or navalcaptain (because these are officers of a sizeable command enough to stage a coup)(Id.)

(d) Other officers whose appointments are vested in the President in the Constitution:

(i) Chairman and Commissioners of the Constitutional Commissions

Art. IX, B, Sec. 1. (2) The Chairman and the Commissioners (of theCivil Service Commission) shall be appointed by the President withthe consent of the Commission on Appointment for a term of sevenyears without reappointment. X x x

Id.,C, Sec. 1. (2) The Chairman and the Commissioners (of theCommission on Elections) shall be appointed by the President withthe consent of the Commission on Appointment for a term of sevenyears without reappointment. X x x

Id., D, Sec. 1 (2) The Chairman and the Commissioners (of theCommission on Audit) shall be appointed by the President with theconsent of the Commission on Appointment for a term of sevenyears without reappointment. X x x

(ii) Regular members of the Judicial and Bar Council (composed of the IBPrepresentative, professor of law, retired SC justice, and representative of theprivate sector. Note the ex-officio members: Chief Justice, Secretary ofJustice, and representative of Congress)

Art. VII, Sec. 8. (2) The regular members of the (Judicial and Bar)Council shall appointed by the President for a term of four yearswith the consent of the Commission on Appointments. X x x

(iii) Sectoral representatives (Now an obsolete provision)

Art. XVIII, Sec. 7. Until a law is passed, the President may fill byappointment from a list of nominees by the respective sectors theseats reserved for sectoral representation in paragraph (2) ofSection 5 of Article VI of this Constitution.

(iv) Regional Consultative Commission

Art. X, Sec. 18. The Congress shall enact an organic act for eachautonomous region with the assistance and participation of theregional consultative commission composed of representativesappointed by the President from a list of nominees frommultisectoral bodies. X x x

Members of the Regional Consultative Council in Art. X, Sec. 18 are according toSarmiento v. Mison, 156seRA 547,supra. also subject to confirmation by the CA, becausetheir appointment is vested in the President by the Constitution. But J. Mendozadisagrees. For unlike the Chairman and members of the Constitutional Commissionsand the regular members of the JBC, the Constitution in Art. X, Sec. 18 does not saythat the appointment is subject to confirmation. Also, the pattern in the Constitution

Handout No. 6 - Executive LiepartmentConstitutional Law 1- Atty. Rene Callanta, Jr


shows that where the nominees are already screened either by JBC (for justices andjudges) or the multi-sectoral bodies (Regional Consultative Council), then there is noneed for CA confirmation to prevent an overkill. It is enough that the President madethe appointment on the basis of nominations. Otherwise, it would be too rigid,considering that the duty of the RCCis only to advise Congress on the autonomous actto be enacted.

Upon recommendation of the Judicial and Bar Council

Art. VIII, Sec. 9. The Members of the Supreme Court and judges oflower courts shall be appointed by the President from a list of atleast three nominees prepared by the Judicial and Bar Council forevery vacancy. Such appointments need no confirmation.

(a) Members of the Supreme Court and all other courts!

For the lower courts, the President shall issue the appointmentswithin ninety days from the submission of the list.

(b) Ombudsman and his 5 deputies (for Luzon, Visayas, Mindanao, Central Office andMilitary and Other Law Enforcements Office)

Art. XI, Sec. 9. The Ombudsman and his' Deputies shall beappointed by the President from a list of at least six nomineesprepared by the Judicial and Bar Council, and from a list of threenominees for every vacancy thereafter. Such appointments shallrequire no confirmation. All vacancies shall be filled within threemonths after they occur.

Appointment of Vice-President as Member of the Cabinet

Art. VII, Sec. 3. xxxThe Vice President may be appointed as a Member of the Cabinet.Such appointment requires no confirmation

Appointments solely by the President

Art. VII, Sec. 16. The President shall xxx also appoint all otherofficers of the Government whose appointments are not otherwiseprovided for by law, and those whom, he may be authorized by lawto appoint. The Congress may, by law, vest the appointment ofother officers lower in rank in the President alone, in the courts, orin the heads of departments, agencies, commissions or boards.

The President shall have the power to make appointments duringthe recess of Congress, whether voluntary or compulsory, but suchappointment shall be effective only until disapproval by theCommission on Appointments or until the next adjournment of theCongress.

1. Those vested by the Constitution on the President alone (e.g. appointment of Vice-President to the Cabinet) [Art. VII, Sec. 3(2)] .

2. Those whose appointments are not otherwise provided by law.

3. Those whom he may be authorized by law to appoint.


1" Semester, SY 2012-2013, P.u.P. College of LawPage 25 of 73

4. Those other officers lower in rank whose appointment is vested by law in thePresident (alone).

The phraseology is muddled.

The meaning of #4 was touched upon in Sarmiento I'. Mison. In arguing that even bureauchiefs needed confirmation even if they are of inferior rank, the argument was thephrase, "The Congress may, by law, vest in the appointment of other officers lower inrank in the President alone" meant that until a law is passed giving such appointingpower to the President alone, then such appointment has to be confirmed. Only aftersuch law is passed does the necessity for confirmation no longer hold. The SCdismissed this view however, saying that the inclusion of the word "alone" was anoversight. Thus, the Constitution should read "The Congress may, by law, vest theappointment of other officers -lower in rank in the President."

Bermudez v. Executive secretary, G.R. No. 131429, Aug. 4, 1999, 3rd Div. [Vitug])

ISSUE: Is the prior recommendation of the Secretary of Justice a mandatory requirement before thePresident may validly appoint a provincial prosecutor?

HELD: This question would x x x pivot on the proper understanding of the provIsion of the RevisedAdministrative Codeof 1987 (Book 111, Title III, Chapter II, Section 9) to the effect that-

"All provincial and city prosecutors and their assistants shall be \lPpointed by the Presidentupon the recommendation of the Secretary."

Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a priorrecommendation of the secretary of Justice endorsing the intended appointment x x x.

IWhen the Constitution or the law clothes the President with the power to appoint a subordinate officer, suchconferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. Itshould be here pertinent to state that the President is the head of government whose authority includes thepower of control over all "executive departments, bureaus and offices:' CONTROLmeans the authority of anempowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in theperformance of his duties, as well as to substitute the judgment of the latter, as and when the former deemsit to be appropriate. Expressedin another way, the President has the power to assume directly the functionsof an executive department, bureau and office. It can accordingly be inferred therefrom that the Presidentcan interfere in the exercise of discretion of officials under him or altogether ignore their recommendations.

It is the considered view of the Court x x x that the phrase "upon recommendation of the Secretary, "found inSection 9, Chapter II, Title Ill, Book IV, of the RevisedAdministrative COde,should be interpreted x x x to bea mere advise, exhortation or indorsement, which is essentially persuasive in character and not binding orobligatory upon the party to whom it is made. The recommendation is here nothing really more than advisoryin nature. The President, being the head of the Executive Department, could very well disregard or do awaywith the action of the departments, bureaus or offices even in the exercise of discretionary authority, and inso opting, he cannot be said as having acted beyond the scope of his authority.

1(5) Limitations on appointing power of the President

Art. VII, Sec. 13. xxxThe spouse and relatives by consanguinity or affinity within thefourth civil degree of the President shall not during his tenure beappointed as Members of the Constitutional Commissions, or theOffice of the Ombudsman, or as Secretaries, Undersecretaries,chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Id., Sec. 15. Two months immediately before the next presidentialelections and up to the end of his term, a President or ActingPresident shall not make appointments, except temporaryappointments to executive positions when continued vacanciestherein will prejudice public service or endanger public safety.



A. The spouse and'relatives by consanguinity or affinity within the 4th civil degree ofthe President shall not, during his "tenure". be appointed as (i) members of theConstitutional Commissions, (ii) member of the Office of Ombudsman, (iii) Secre-taries, (iv) Undersecretaries, (v) Chairmen or heads of bureaus or offices, includinggovernment-owned or controlled corporations and their subsidiaries.

B. Two months immediately before the next presidential. elections (2nd Monday ofMay), and up to the end of his "term" (June 30), a President (or Acting President) shallnot make appointments.

Exception: Temporary appointments, to executive positions, when continued vacanciestherein will (1) prejudice public service (e.g. Postmaster) or (ii) endanger public safety(e.g. Chief of Staff).

This provision seems to have overruled previous pronouncements of the Supreme Courton the validity of "midnight appointments".

(Ad interim appointments could either be "midnight", if made by the President beforehe steps down from office or recess, if made by the President when Congress is not insession.)

In Aytona v. Castillo, 4 SCRA 1 (1962),the SC ruled that while "midnight appointments" arenot illegal, they should be made in the capacity of a "car.e-taker" doubly careful andprudent in making the selection, so as not to 'defeat the policies of the incomingadministration. Said the court:

After the proclamation of an incoming President, the outgoing President is nomore than a "caretaker" administrator duty bound to prepare for the orderlytransition to the new President,and he should not do acts that would obstruct the.policiesof his successor.

The filling up of vacanciesin important posts, if few, and so spacedas to affordsomeassuranceof deliberate action and careful considerationof the need for theappointment and the appointeesqualifications,may be undoubtedlypermitted.

But the issuanceof 350 appointments in one night, and the planned induction ofalmost all of them a few hours before the inauguration of the new Presidentmaybe regardedas abuseof presidentialprerogatives.

Where the President makes ad-interim (I.e., midnight) appointments, he is bound to be"prudent" to insure approval of his selection, either by previous consultation with theCA or by explaining his reason thereafter. Where the CA that will consider theappointees is different from that existing at the time of appointment, and where thenames are to be submitted by his successor who may not wholly approve of hisselections, the President should be "doubly careful in extending such appointment.

In Jorge v. Mayer, 10 SCRA 331 (1964), the Court emphasized the rule in Aytona that aprudently made midnight appointment so spaced as to afford some assurance ofdeliberate action and careful consideration of the need for the appointment and theappointees' qualifications is not prohibited by law. The circumstances of Jorge'sappointment as Director of Lands in this case, based on his 38 years of faithful serviceand confirmed by the CA before its adjournment, were found to be judicious.

In Quisumbing v. Tajanglangit, 10 SCRA 446(1964),the SC emphasized that the Aytona rulingdoes not declare all midnight appointments as invalid, and that the ad interimappointment of the petitioner chief of police here, whose. qualification and regularitywere not disputed, except for the fact that it was made during the last few days of theold administration, is thus not invalid.


1st Semester, SY 2012-2013, P.U.P. College of LawPage 27of73

Q. To what types of appointments is Section 15, Article VII of the 1987 Constitution(prohibiting the President from making appointments two months before the nextpresidential elections and up to the end of his term) directed against?

Held: Section 15, Article VII is directed against two types of appointments: (1) those made forbuying votes and (2) those made for partisan considerations. The first refers to thoseappointments made within two months preceding the Presidential election and are similar tothose which are declared election offenses in the Omnibus Election Code; while the secondconsists of the so-called "midnight" appointments. The SC in In Re: Hon. Mateo A. Valenzuela andHOIl. Placido B. Vallarta, (298 SCRA 408) clarified this when it held:

"Section 15, Article VII has a broader scope than the Aytona ruling. It may notunreasonably be deemed to contemplate not only "midnight" appointments -those made obviously for partisan reasons as shown by their number and the timeof their making - but also appointments presumed made for the purpose ofinfluencing the outcome of the Presidential election."

De Rama v. Court of Appeals, 353 SCRA94 (2001)

FACTS: Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection but lost. Before she vacated heroffice, though, she extended permanent appointments to fourteen new employees of the municipalgovernment. The incoming mayor, upon assuming office, recalled said appointments contending that thesewere "midnight appointments" and, therefore, prohibited under Sec. 15, Art. VII of the 1987 Constitution.Should the act of the new mayor of recalling said appointments on the aforestated ground be sustained?

HELD: The records reveal that when the petitioner brought the matter of recalling the appointments of thefourteen (14) private respondents before the CSC,the only reason he cited to justify his action was that thesewere "midnight appointments" that are forbidden under Article VII, section 15 of the Constitution. However,the C;:5Cruled, and correctly so, that the said prohibition applies only to presidential appointments. In truthand in fact, there is no law that prohibits local elective officials from making appointments during the last daysof his or her tenure.

De Castro VS. Judicial Bar Council, GR No. 191002, March 17, 2010

ISSUE: WONthe incumbent President can appoint the successorof Chief Justice Puno upon his retirement onMay 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, ArticleVII does not extend to appointments in the Judiciary?

HELD: YES.The Constitution consists of 18 Articles, three of which embody the allocation of the awesomepowers of government among the three great departments, the Legislative (Article VI), the Executive (ArticleVII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle ofseparation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna(later a worthy member of the Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the separation of powers ingovernment because we believe that the only way to protect freedom and liberty is toseparate and divide the awesome powers of government. Hence, we return to the separationof powers doctrine and the legislative, executive and judicial departments.

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists thepowers vested by the Constitution in the President. The presidential power of appointment is dealt with inSections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications ofMembers of the Supreme Court, among others. Section 4(1) and section 9 of this Article are the provisionsspecifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that theappointment of Supreme Court Justices can only be made by the President upon the submission of a list of atleast three nominees by the JBC; section 4(1) of the Article mandates the President to fill the vacancy within90 days from the occurrence of the vacancy.

Had the framers intended to extend the orohibition contained in section 15. Article VII to theappointment of Members of the Supreme Court. they could have explicitly done so. They could not haveignored the meticulous ordering of the provisions. They would have easilvand surelvwritten the prohibitionmad! explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the


1st Semester, SY 2012-2013, P.U.P. College a/LawPage 28 0/73

Supreme Court in Article VIII itself, most likely in Section 4 (ll, Article VIII. That such specification was notdone only reveals that the prohibition against the President or Acting President making appointments withintwo months before the next presidential elections and up to the end of the President's or Acting President'sterm does not refer to the Membersof the SupremeCourt.

x x x

Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 1Sas part of ArticleVII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold ofthe appointments dealt with in the leading case of Aytona v. castillo (4 SeRA 1). In fact, in the Valenzuelacase (298 SCRA408), the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments:(1) those made for buying votes and (2) those made for partisan considerations. The firstrefers to those appointments made within the two months preceding a Presidential electionand are similar to those which are declared election offenses in the Omnibus Election Code,viz.:

xxx

The second type of appointments prohibited by Section 1S, Article VII consists of theso-called "midnight" appointments. In Aytona v. castillo, it was held that after theproclamation of Diosdado Macapagal as duly elected President, President carlos P. Garcia,who was defeated in his bid for reelection, became no more than a "caretaker" administratorwhose duty was to "prepare for the orderly transfer of authority to the incoming President."Said the Court:

"The filling up of vacancies in important positions, if few, and sospaced as to afford some assurance of deliberate action and carefulconsideration of the need for the appointment and appointee'squalifications may undoubtedly be permitted. But the issuance of 350appointments in one night and the planned induction of almost all ofthem in a few hours before the inauguration of the new President may,with some reason, be regarded by the latter as an abuse of Presidentialprerogatives, the steps taken being apparently a mere partisan effort tofill all vacant positions irrespective of fitness and other conditions, andthereby to deprive the new administration of an opportunity to make thecorresponding appointments."

As indicated, the Court recognized that there may well be appointments to importantpositions which have to be made even after the proclamation or'the new President. Suchappointments, so long as they are "few and so spaced as to afford some assuranceof deliberate action and careful consideration of the need for the appointment andthe appointee's qualifications," can be made by the outgoing President.Accordingly, several appointments made by PresidentGarcia,which were shown to have beenwell considered, were upheld.

section 15, Article VII has a broader scope than the Aytona ruling. It maynot unreasonably be deemed to contemplate not only "midnight" appointments -those made obviously for partisan reasons as shown by their number and the timeof their making - but also appointments presumed made for the purpose ofinfluencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII - allowingappointments to be made during the period of the ban therein provided - is much narrowerthan that recognized in Aytona. The exception allows only the making of temporaryappointments to executive positions when continued vacancieswill prejudice public service orendanger public safety. Obviously, the article greatly restricts the appointing power of thePresidentduring the period of the ban.

Considering the respective reasonsfor the time frames for filling vacancies in the courtsand the restriction on the President's power of appointment, it is this Court's view that, as ageneral proposition, in case of conflict, the former should yield to the latter. Surely, the



prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling upof court vacancies or the disposition of some cases. Temporary vacancies can abide theperiod of the ban which, incidentally and as earlier pointed out, comes to exist only once inevery six years. Moreover, those occurring in the lower courts can be filled temporarily bydesignation. But prohibited appointments are long-lasting and permanent in their effects.They may, as earlier pointed out, in fact influence the results of el~ctions and, for that reason,their making is considered an election offense.

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that theConstitutional Commission confined the prohibition to appointments made in the Executive Department. Theframws did not need to extend the prohibition to appointments in the Judiciarv. because their establishmentof the JBC and their subjecting the nomination and screening of candidates for judicial positions to theunhurried and deliberate prior process of the JBC ensured that there would no longer be midnightappointments to the Judiciarv. If midnight appointments in the mold of Aytona were made in haste and withirregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire tosubvert the policies of the incoming President or for partisanship, the appointments to the Judiciary madeafter the establishment of the JBC would not be suffering from such defects because of the JBC's priorprocessingof candidates.

Interim or recess appointments

Art. VII, Sec. 16. xxxThe President shall have the power to make appointments duringthe recess of Congress, whether voluntary or compulsory, but suchappointment shall be effective only until disapproval by theCommission on Appointments or until the next adjournment of theCongress.

IRegular and recess (ad-interim) appointments

The procedure for confirmation has been discussed above under ConstitutionalCongressional Committees. To sketch:

Appointments requiring confirmation are of two kinds, (i) regular, if the CA, that is,Congress, is in session, or (ii) during the recess of Congress (because the Commissionshall meet only while Congress is in session (Art. VI, Sec. I9j).

Regular appointments require confirmation before the appointee can take his post. ThePresident nominates, Congress receives the nomination and forwards this to the CA forconfirmation, then the Office of the President issues a Commission, at which point theappointee can assume his office.

Recess appointments, on the other hand, need no confirmation to be effective, albeittemporarily. The appointment is effective until it is disapproved by the Commission onAppointments, or until the next adjournment of Congress (unless meantime, it isconfirmed by the Commission) (Art. VII, Sec. I6,par. 2)

Q. Discuss the nature of an ad-interim appointment. Is it temporary and, therefore,can be withdrawn or revoked by the President at her pleasure?

A. In the case of Matibag v. Benipayo (380 SCRA 49) the SC stated that an AD INTERIMAPPOINTMENT is a permanent appointment because it takes effect immediately and can nolonger be withdrawn by the President once the appointee has qualified into office. The fact thatit is subject to confirmation by the Commission on Appointments does not alter its permanentcharacter. The Constitution itself makes an ad interim appointment permanent in character bymaking it effective until disapproved by the Commission on Appointments or until the nextadjournment of Congress. The second paragraph of Section 16, Article VII of the Constitutionprovides as follows:

"The President shall have the power to make appointments during the recess ofthe Congress, whether voluntary or compulsory, but such appointments shall be



effective only until disapproval by the Commission on Appointments or until thenext adjournment of the Congress."

Thus, the ad interim appointment remains effective until such disapproval or next adjournment,signifying that it can no longer be withdrawn or revoked by the President. The fear that thePresident can withdraw or revoke at any time and for any reaSO{lan ad interim appointment isutterly without basis.

"x x x an ad interim appointment is one made in pursuance of paragraph (4),Section 10, Article VII of the Constitution, which provides that the 'President shallhave the power to make appointments during the recess of the Congress, butsuch appointments shall be effective only until disapproval by the Commission onAppointments or until the next adjournment of the Congress.' It is anappointment permanent in nature, and the circumstance that it is subject toconfirmation by the Commission on Appointments does not alter its permanentcharacter. An ad interim appointment is disapproved certainly for a reason otherthan that its provisional period has expired. Said appointment is of coursedistinguishable from an 'acting' appointment which is merely temporary, gooduntil another permanent appointment is issued."

More than half a century ago, this Court had already ruled that an ad interim appointment ispermanent in character. In Summers v, Ozaeta, decided on October 25, 1948, we held that:

I

The \:onstitution imposes no condition on the effectivity of an ad'interim appointment, and thusan ad interim appointment takes effect immediately. The appointee can at once assume officeand exercise, as a de jure officer, all the powers pertaining to the office. In Pacete v, Secretary ofthe Commission on Appointments, this Court elaborated on the nature of an ad interim appointmentas follows:

!"A distinction is thus made between the exercise of such presidential prerogativerequiring confirmation by the Commission on Appointments when Congress is insession and when it is in recess. In the former, the President nominates, and onlyupon the consent of the Commission on Appointments may the person thusnamed assume office. It is not so with reference to ad interim appointments. Ittakes effect at once. The individual chosen may thus qualify and perform hisfunction without loss of time. His title to such office is complete. In the languageof the Constitution, the appointment is effective 'until disapproval by theCommission on Appointments or until the next adjournment of the Congress.'''

Petitioner cites Black's Law Dictionary which defines the term "ad interim" to mean "in themeantime" or "for the time being." Hence, petitioner argues tha,t an ad interim appointment isundoubtedly temporary in character. This argument is not new and was answered by this Courtin Pltl1lantasanng Lungsod ng Maynila v, Intermediate Appellate Court, where we explained that:

"x x x From the arguments, it is easy to see why the petitioner should experiencedifficulty in understanding the situation. Private respondent had been extendedseveral 'ad interim' appointments which petitioner mistakenly understands asappointments temporary in nature. Perhaps, it is the literal translation of theword 'ad interim' which creates such belief. The term is defined by Black to mean'in the meantime' or 'for the time being'. Thus, an officer ad interim is oneappointed to fill a vacancy, or to discharge the duties of the office during theabsence or temporary incapacity of its regular incumbent (Black's Law Dictionary,RevisedFourth Edition, 1978). But such is not the meaning nor the use intendedin the context of Philippine law. In referring to Dr. Esteban's appointments, theterm is not descriptive of the nature of the appointments given to him. Rather, itis used to denote the manner in which said appointments were made, that is,done by the President of the Pamantasan in the meantime, while the Board ofRegents, which is originally vested by the University Charter with the power ofappointment, is unable to act. X x x."

Thus, the term "ad interim appointment", as used in letters of appointment signed by thePresident, means a permanent appointment made by the President in the meantime thatCongress is in recess. It does not mean a temporary appointment that Can be withdrawn orrevdked at any time. The term, although not found in the text of the Constitution, has acquired

Handout No. 6 - Executive DepartmentConstitutional Law 1 - Atty. Rene Callanta, Jr

1st Semester, SY 2012-2013, P.U.P. College of LawPage 31 of73

a definite legal meaning under Philippine jurisprudence. The Court had again occasion toexplain the nature of an ad interim appointment in the more recent case of Marohombsarv. Courtof Appeals,where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive ofthe nature of the appointment, that is, it is not indicative of whether theappointment is temporary or in an acting capacity, rather it denotes the mannerin which the appointment was made. In the instant case, the appointmentextended to private respondent by then MSU President Alonto, Jr. was issuedwithout condition nor limitation as to tenure. The permanent status of private.respondent's appointment as Executive Assistant II was recognized and attestedto by the Civil Service Commission RegionalOffice No. 12. Petitioner's submissionthat private respondent's ad interim appointment is synonymous with a temporaryappointment which could be validly terminated at any time is clearly untenable.Ad interim appointments are permanent appointment but their terms are onlyuntil the Board disapproves them."

An ad interim appointee who has qualified and assumed office becomes at that moment agovernment employee and therefore part of the civil service. He enjoys the constitutional.protection that "[n]o officer or employee in the civil service shall be removed or suspendedexcept for cause provided by law." (Section 2[3], Article IX-B of the Constitution) Thus, an adinterim appointment becomes complete and irrevocable once the appointee has qualified intooffice. The withdrawal or revocation of an ad interim appointment is possible only if it iscommunicated to the appointee before the moment he qualifies, and any withdrawal orrevocation thereafter is tantamount to removal from office. Oncean appointee has qualified, heacquires a legal right to the office which is protected not only by statute but also by theConstitution. He can only be removed for cause, after notice and hearing, consistent with thereq~irements of due process.

Q. How is an ad interim appointment terminated?

HELD: An ad interim appointment can be terminated for two causes specified in theConstitution. The first cause is the disapproval of his ad interim appointment by theCommission on Appointments. The second cause is the adjournment of Congress without theCommission on Appointments acting on his appointment. These two causes are resolutoryconditions expressly imposed by the Constitution on all ad interim appointments. Theseresolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interimappointees. No one, however, can complain because it is the Constitution itself that places theSword of Damocles over the heads of the ad interim appointees. (Matibag v. Benipayo,380SCRA49,April 2, 2002,En Bane[Carpio])

Q. How is an ad interim appointment distinguished from an appointment or designationin an acting or temporary capacity?

HEL!D: While an ad interim appointment is permanent and irrevocable except as provided bylaw, an appointment or designation in a temporary or acting capacity can be withdrawn orrevoked at the pleasure of the appointing power. A temporary or acting appointee does notenjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo,380 SCRA 49,April 2,2002,En Bane[Carpio])

Q. Discuss the reason why the framers of the 1987 Constitution thought it wise toreinstate the 1935 Constitution provision on a.d interim appointments of thePresident.

A. In the case of Matibag v. Benipayo (380 SCRA 49) The SC stated that the original draft ofSection 16, Article VII of the Constitution - on the nomination of officers subject to confirmationby the Commission on Appointments - did not provide for ad interim appointments. The originalintention of the framers of the Constitution was to do away with ad interim appointmentsbecause the plan was for Congress to remain in session throughout the year except for a brief3D-day compulsory recess. However, because of the need to avoid disruptions in essentialgovEfrnmentservices, the framers of the Constitution thought it wise to reinstate the provisionsof ti:\e 1935 Constitution on ad interim appointments. X x x


1" Semester, SY 2012-2013, P.U.P. College of LawPage 32 of 73 .

Clearly,the reinstatementin the presentConstitutionof the ad interim appointingpowerof thePresidentwas for the purpose of avoiding interruptions in vital government services thatotherwise would result from prolongedvacanciesin government offices, including the threeconstitutionalcommissions. In his concurringopinion in Guevarra v. Inocentes, decidedunderthe 1935Constitution,JusticeRobertoConcepcion,Jr. explainedthe rationalebehindad interimappointmentsin this manner:

"Now,why is the lifetimeof ad interim appointmentsso limited? Because,if theyexpired before the session of Congress, the evil sought to be avoided -interruption in the dischargeof essential functions - may take place. Becausethesame evil would result if the appointmentsceasedto be effective during thesessionof Congressand before its adjournment. Upon the other hand, onceCongresshas adjourned,the evil aforementionedmay easily be conjuredby theissuanceof otherad interim appointmentsor reappointments."

Temporary Designations:Administrative Code of 1987, Book III Sec. 17

The President may designate an officer already in the government service or any othercompetent person to perform the functions of any office in the executive branch,appointment to which is vested in him by law, when:

(a) The officer regularly appointed to the office is unable to perform his duties byreason of illness, absence or any other cause; or

(b)TThere exists a vacancy;

In no case shall a temporary designation exceed one (1) year.

(6) Limitations on the appointing power of the Acting President

Art. VII, Sec. 14. Appointments extended by an Acting Presidentshall remain effective unless revoked by the elected Presidentwithin ninety days from his assumption or reassumption of office.

Art. VII, Sec. 15. Two months immediately before the nextpresidential elections and up to the end of his term, a President orActing President shall not make appointments, except temporaryappointments to executive positions when continued vacanciestherein will prejudice public service or endanger public safety.

(7)1 Executive clemencies

Art. VII, Sec. 19. Except in cases of impeachment, or as otherwiseprovided in this Constitution, the President may grant reprieves,commutations, and pardons, and remit fines and forfeitures, afterconviction by final judgment.

It shall also have the power to grant amnesty with theconcurrence of a majority of all the Members of the Congress.

The President may grant (i)reprieves, (ii) commutations, and (iii) pardons, and (iv)remit fines and forfeitures, after conviction by final judgment, except:

(a) In cases of impeachment, and(b) As otherwise provided in this Constitution, viz.



Art. IX, C, Sec. 5. No pardon, amnesty, parole or suspension ofsentence for violation of election laws, rules, and regulations shallbe granted by the President without the favorablerecommendation by the Commission (on Elections.)

Definitions

Reprieve is a temporary relief from or postponement of execution of criminal penaltyor sentence or a stay of execution. It does not more than stay the execution of asen:tence extended to a prisoner to afford him an opportunity to procure some amel-ioration of the sentence imposed. (Black.) It is the withholding of a sentence for aninterval of time, a postponement of execution, a temporary suspension of execution.(People vs. Vera, in/ra.)

Commutation is a reduction of sentence. (Black.) It is a remiSSion of a part of thepunishment; a substitution of a less penalty for the one originally imposed. (People vs.Vera, in/ra.)

Pardon is a permanent cancellation of sentence. (Black) It is an act of graceproceeding from the power entrusted with the execution of the laws, which exempts theindividual on whom it is bestowed, from the punishment the law inflicts for the crime hehas committed. It is a remission of guilt, a forgiveness of the offense. (People v Vera,infra.)

Cruz: Kinds of Pardon.-- Pardon may be classified into absolute or conditional andpletJary or partial. An absolute pardon is one extended without any strings attached, soto speak, whereas a conditional pardon is one under which the convict is required tocomply with certain requirements. A plenary pardon extinguishes all the penaltiesimposed upon the offender, including accessory disabilities, whereas partial pardondoes not.

Where the pardon is conditional, the offender has the right to reject the same since hemay feel that the condition imposed is more onerous than the penalty sought to beremitted. But in the case of an absolute pardon, the pardonee has no option at all andmust accept it whether he likes it or not. In this sense, an absolute pardon is similar tocommutation, which is also not subject to acceptance by the offender.

Amnesty is a'sovereign act of oblivion for past acts, granted by government generallyto a class of persons who have been guilty usually of political offenses (treason,sedition, rebellion), and who are subject to trial but have not yet been convicted, andoften conditioned upon their return to obedience and duty within a prescribed time.(Blahk: Brown v Walker, 161 US 602).

Probation is a disposition under which a defendant after conviction and sentence isreleased subject to conditions imposed by the court and to the supervision of aprobation officer. {Sec. 3 (a), PD 968.)

Parole is the suspension of the sentence of a convict granted by a Parole Board afterserving the minimum term of the indeterminate sentence penalty, without granting apardon, prescribing the terms upon which the sentence shall be suspended.

(a) Pardon distinguished from probation

People v. Vera, 65 Phil. 56 (1937)

HELD: Probation and Pardon are not coterminous; nor are they the same. They are actually distinct anddifferent from each other, both in origin and nature. In probation, the probationer is in no true sense, as inpardon, a free man. He is not finally and completely exonerated. He is not exempt from the entirepunishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the


1" Semester, SY 2012-2013, P.U.P. College of Law, Page 34 of 73

mere fact that he is placed on probation. The probationer,' during the period of probation, remains in legalcustody-- subject to the control of the probation officer and of the court, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve thesentence originally imposed upon him.

Notes: In both cases, there must be a final judgment of conviction, and the convictmust be exempted from service of sentence. But pardon is granted by the ChiefExecutive for any crime, while probation is granted by the court after investigation by aprobation officer only for cases where the penalty imposed does not exceed 6 years and1 dby (prision mayor), where the crime is not against the security of the State, wherethere was no previous conviction for an offense punished by arresto mayor, and wherethere was no previous availment of probation.

In absolute pardon, the sentence and its effects, including the accessory penalties, areabolished upon the grant of pardon. In probation, the restoration of the probationer tohis civil rights takes places only after his final discharge after the period of hisprobation. (Sees. 14& 16)

(b) Pardon distinguished from Parole

Pardon may be granted by the Chief Executive under the Constitution and formerly theAdministrative Code, at any time after final judgment of conviction, even beforeservice; while parole is granted by the Board of Pardons and Parole under theIndeterminate Sentence Law only after the convict has served the minimum term of hissentence.

T

In pardon, the convict becomes a free man; in parole, he is not really free becausealthough he his released from the custody of the law, he must submit to periodicexamination by the Board of Parole.

In Tesoro v. Director of Prisons, 68 Phil 154 (1939), the SC dismissed the contention that.because parole is not mentioned in the Constitution, then the power to grant parole isalso deemed repealed. The Court said that parole is part of the pardoning power of thePresident. Justice Fernando points out, however, that this is not accurate. If ever thePresident has the power to grant parole, it is because the law grants him that power,and not because parole is part of pardon.

Tesoro v.Director of Prisons, 68 Phil 154

FACTS: On Oct. 10, 1934, petitioner Tesoro was convicted in the CFl- Manila of the crime of falsification of apublic document and was sentenced. His penalty was to expire on Oct. 28, 1937.

IOn Nov. 14, 1935, the Gov. Gen. granted the petitioner a parole, which the latter accepted, subject to certainconditions. One of the conditions was that he will not commit any other crime and will conduct himself in anorderly manner.

Dec. 3, 1937, the petitioner was charged with the crime of adultery. However, the case was dismissed fornon-appearance of the complainant, Jose Nagar.

Feb. 1938, Nagar lodged a complaint with the 80ard of Indeterminate Sentence, and upon the same factssupporting the criminal action, charged petitioner with violation of the conditions of his parole. .

Later, by virtue of an order from the President, the petitioner was arrested and recommitted to the custody ofthe Dir. of Prisons.

Petitioner contends that sec. 64 (i) of the Rev. Adm. Code, insofar as it confers upon the Chief Executive thepower to grant and revoke paroles, has been impliedly repealed by Par. 6, sec. 11, Art. VII of the Constitution,as the latter omitted to specify such power in connection with the powers granted therein to the President ofthe Philippines.

!Sec. 64(1) gives the Gov. Gen the ft. powers and duties:

\ Handout No. 6 - Executive DepartmentConstitutional Law 1 - Atty. Rene Callanta, Jr


'To grant to convicted persons reprieves or pardons, either plenary or partial, conditional orunconditional; to suspend sentences without pardon, remit fines, and order the discharge ofany convicted person upon parole, subject to such conditions as he may impose; and toauthorize the arrest and re-incarceration of any such person who, in his judgment shall fail tocomply with the condition, or conditions, of his pardon, parole, or suspensionof sentence."

The aforementioned Constitutional provision provides:

'The President shall have the power to grant reprieves, commutations, and pardons, andremit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment,upon such conditions and with such restrictions and limitations as he may deem proper toimpose. He shall have the power to grant amnesty with the concurrence of the NationalAssembly."

ISSUE NO.1: WIN there has been a repeal.

HELD: NONE.The power to pardon given the President by the Constitution, "upon such conditions and withsuch restrictions and limitations as he may deem proper to impose," includes the power to grant and revokeparoles. If the omission of the power of parole in the Constitution is to be construed as a denial thereof to thePresident, the effect would be to discharge unconditionally parolees, who, before the adoption .of theConstitution, have been released conditionally by the Chief Executive.

ISSUE NO.2: WIN the Board has legal authority to investigate the conduct of the petitioner.

HELD: YES. By the terms of his parole, petitioner agreed to report to the executive secretary of the Boardonce a month during the first year of his parole, and thereafter, once every 3 months. By his consent to thiscondition, petitioner has placed himself under the supervision of the Board. The duty to report on the part ofthe petitioner implies a corresponding power on the part of the Board to inquire into his conduct and a fortiorito make recommendations to the President by whose authority it was acting. The power to revoke parolesnecessarily carries with it the power to investigate and to inquire into the conduct of the parolees, if suchpower of revocation is to be rational and intelligent. In the exercise of this incidental power, the President isnot precluded by law or by the Constitution from making use of any agency of the govt, or even of anyindividual, to secure the necessaryassistance.

ISSUE NO.3: WIN judicial pronouncement to the effect that he has committed a crime is necessary beforehe can be properly adjudged as having violated his conditional parole.

HELD: NO. As one of the conditions of his parole, petitioner agreed that he will not commit any other crimeand will conduct himself in an orderly manner. Thus, the mere commission, not his conviction by court, of anyother crime, that was necessary in order that petitioner may be deemed to have violated his parole. Andunder Sec. 64 (0, the Chief Executive is authorized to order "the arrest and re-incarceration of any suchperson who, in his judgment, shall fail to comply with the conditionls of his pardon, parole, or suspension ofsentence.

ISSljIE NO.4: WIN the courts can review the findings of the Pres. regarding the violation of the conditionalparole.

HELD: NO. Where the determination of the violation of the conditional parole rests exclusively in the soundjudgment of the Chief Executive, the courts will not interfere, by way of review, with any of his findings.

ISSUE NO.5: WIN upon the expiration of his maximum term of imprisonment, his conditional parole alsoexpires.

HELD: NO. When a conditional pardon is violated, the prisoner is placed in the same state in which he was atthe time the pardon was granted. He may be rearrested and recommitted to prison. xxx The rule is well-settled that, in requiring the convict to undergo so much of the punishment imposed by his original sentenceas he had not suffered at the time of his release, the court should not consider the time during which theconvict was at large by virtue of the pardon as time served on the original sentence. (Pp. v. Tape/) This ruleapplies by analogy to conditional parole.

Torres v. Gonzales, 152 SCRA 272 (1987)

FActS: Before 1979, Torres was convicted of the crime of estafa (2 counts) and was sentenced toimprisonment and to pay an indemnity. The maximum sentence would expire on Nov. 2, 2000.


1st Semester, SY 2012-2013, P.u.P. College of LawPage 36 of 73

On April 18, 1979, a conditional pardon was granted the petitioner by the President on condition thatpetitioner would "not again violate any of the penal laws of the Philippines Should this condition be violated,he will be proceeded against in the manner prescribed by law. Petitioner accepted the conditional pardon andwas released.

On Sept. 8, 1986, the President cancelled the conditional pardon of the petitioner upon recommendation ofthe Board of Pardons.The record before the Board showed that petitioner had been charged with 20 countsof estafa, convicted of sedition which is the subject of an appeal, and a letter report from the NBI showing along Ilist of charges brought against the petitioner. The petitioner was subsequently arrested and confined inMuntinlupa to serve the unexpired portion of his sentence.

Petitioner claims he did not violate his conditional pardon since he has not been convicted by final judgment ofthe 20 counts of estafa nor of the crime of sedition. He also contends that he was not given an opportunity tobe heard before he was arrested and recommitted to prison and thus deprived of due process.

ISSUE: WIN conviction of a crime by final judgment of a court is necessary before the petitioner can bevalidly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to servethe balanceof his original sentence.

HELD: NO.The Court cited 3 cases: Espuelas v. Prov'l Warden of Sohal; Tesorov. Oir. of Prisons and salesv. Oir. of Prisons.

The grant of pardon and the determination of the terms and conditions of a conditional pardon are purelyexecutive acts which are not subject to judicial scrutiny.

The determination of the occurrence of a breach of a condition of a pardon, and the proper consequencesofsuchlbreach, may be either a purely executive act, not subject to judicial scrutiny under sec. 64 (i) of the Rev.Adm. Code; or it may be a judicial act consisting of trial for and conviction of violation of a conditional pardonunder Art. 159 of the RPC. Where the President opts to proceed under Sec. 64 (i), RAC, no judicialpronouncement of guilt of a subsequent crime is necessary,much less conviction therefore by final judgmentof a court, in order that a convict may be recommended for the violation of his conditional pardon.

Becausedue process is not semper et ubique judicial process, and becausethe conditionally pardoned convicthad already been accorded judicial due process in his trial and conviction for the offense for which he wasconditionally pardoned, sec. 64 (I), RAC,is not afflicted with a constitutional vice.

In short, in proceeding against a convict who has been conditionally pardoned and who is alleged to havebreached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed against'him underSec. 64 (i), RAC; or (ii) to proceed against him under Art. 159, RPCwhich imposes the penalty of prisioncorre{;cional minimum period, upon a. convict who having been granted conditional pardon by the ChiefExecutive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceedagainst the petitioner under the RAe. That choice is an exercise of the executive prerogative and not subjectto judicial scrutiny.

(e) Pardon distinguished from Amnesty

1. Pardon is usually granted for common crimes; amnesty, for political crimes.

2. Pardon is granted to individuals; amnesty, to a group, class, or community generally.

3. Pardon can only be granted after conviction; amnesty may be granted even beforetrial.

4. Pardon looks forward and relieves the offender from the consequences of an offenseof which he has been convicted, that is, it abolishes or forgives the punishment;amnesty looks backward and abolishes and puts into oblivion the offense itself, that is,it overlooks and obliterates the offense with which the convict is charged that theperson released stands precisely as though he had committed no offense. (Barrioquinto vFernandez, infra.)

5. !Pardon is a private act of the President which must be pleaded and proved by theperson because the courts do not take judicial notice of it; amnesty is a public act ofwhich the courts take judicial notice. (Cruz, Philippine Political Law, 1991etL)

r

ri

r

n

.n



6. Pardon does not require the concurrence of the Congress; amnesty requires suchconcurrence. (id.)

Barrioquinto et al v. Fernandez, 82 Phil 642

FACTS: Petitioners Jimenez and Barrioquinto were charged with murder. Jimenez was Sentenced to lifeimprisonment. Before the period for perfecting an appeal had expired, Jimenez became aware of Procl. NO.8whicjl grants amnesty in favor of all persons who may be charged with an act penalized under the RPCinfurtherance of resistance to the enemy or against persons aiding in the war efforts of the enemy, andcommitted during the period Dec. 8, 1941 to the date when each particular area of the Philippineswhere theoffense was actually committed was liberated from enemy control and occupation. The petitioners submittedtheir casesto the Guerrilla Amnesty Commission(GAC).

The GACreturned their cases to the CFI-zamboanga without deciding whether or not they are entitled to thebenefits of the Amnesty Proclamation, on the ground that inasmuch as neither of the petitioners haveadmitted to committing the offense, they cannot invoke the benefits of the amnesty.

HELD: Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded andproved by the person pardoned, becausethe courts take no notice thereof; while Amnesty is by Proclamationof the Chief Executivewith the concurrence of Congress,and it is a public act of which the courts should takejudicial notice. .

Pardon is granted to one after conviction; while Amnesty is granted to classesof personsor communities whomay be guilty of political offenses, generally before or after the institution of the criminal prosecution andsometimes after conviction.

!Pardon looks forward and relieves the offender from the consequencesof an offense of which he has beenconvicted, that is, it abolishes or forgives the punishment, and for that reason it does "not work therestoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restoredby the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnityimposed upon him by the sentence" (Art 36 RPC).While Amnesty looks backward and abolishes and puts intooblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the personreleased by amnesty stands before the law precisely as though he had committed no offense.

ISSUE: WIN in order to entitle a person to the benefits of the Amnesty Proclamation of Sept. 7, 1946, it isnecessary as a condition precedent that he should admit having committed the criminal act with wlc he ischarged and allege the amnesty as a defense.

HELD: NO. It is sufficient that the evidence, either of the complainant or of the accused, shows that theoffense committed comeswithin the terms of said Amnesty Proclamation.

It is not correct to say that "invocation of the benefits of the amnesty is in the nature of a plea of confessionand ~voidance. Although the accuseddoes not confess the imputation against him, he may be declared by thecourts or the Amnesty Commissionsentitled to the benefits of the amnesty. For, whether or not he admits orconfesses having committed the offense with which he is charged, the Commissions should, if necessary orrequested by the interested party, conduct summary hearing of the witnesses both for the complainants andthe accused, on whether he has committed the offense in furtherance of the resistance to the enemy, oragainst persons aiding in the war efforts of the enemy, and decidewhether he is entitled to the benefits ofamnesty and to be "regarded as a patriot or hero who has rendered invaluable services to the nation," or not,in accordancewith the terms of the Amnesty Proclamation.

ISSUE: WIN the benefits of amnesty may be waived.

HELD: The right to the benefits of amnesty, once established by the evidence presented, either by theprosecution or the defense, cannot be waived, because it is of public interest that a personwho is regarded bythe Amnesty Proclamation, which has the force of law, not only as innocent, for he stands in the eyes of thelaw as if he had never committed any punishable offense because of the amnesty, but as a patriot or hero,cannot be punished as a criminal.

Dissenting Opinion:r

Amnesty presupposesthe commission of a crime. When an accused says that he has not committed a crime,he cannot have any use for amnesty. It is also self-evident that where the Amnesty Proclamation imposescertain conditions, as in this case, it is incumbent upon the accused to prove the existence of those conditions.



A petitionfor amnestyis in the natureof a pleaof confessionandavoidance.Thepleaderhasto confesstheallegationsagainsthimbeforeheisallowedto setout suchfactsas,if true,woulddefeattheaction.

----0 ----

The4th distinction(pardonis forwardlookingwhileamnestyis backwardlooking)is notaccurateon the basisof decidedcases.

It canbeseenfromseveralcases,thereforethat the effect of pardonretroactsto thedayof the crime. It isnotsimpiyforward-looking.

Pardonis still useful,then, evenif the convicthasalreadyseniedhis full sentence,becausetheremaybeaccessorypenaltiesthatareperpetualinextent.

Notes: The fifth distinction bet. pardon and amnesty is that pardon is a private act ofthe President, and so must be impleaded in court; amnesty is a public act by thePresident and Congress, and so the court is enjoined to take judicial notice of it.

The 5th distinction (pardon is a private act while amnesty is a public act) is not true inPhilippine law. The case holds that pardon must be raised as a i:lefense, otherwise thecourt cannot take judicial notice of such pardon. But under' Art. 89 of the RPC, absolutepardon extinguishes criminal liability. And under the Constitution, pardon can only begranted after final conviction. If so, once, a convict has been granted pardon, thisimplies that he has already been convicted, and that precisely he has been exemptedfrorp the penalty arising from conviction. Why would he still have to invoke it? Thisseems to contemplate a situation where he is being charged again of the same crime,and that he needs to invoke the pardon as a defense, which is impossible because ofdouble jeopardy.

The error in the Barrioquinto ruling is that it borrowed this distinction from Americanlaw, which allows the President the power to grant pardon even before conviction (thus,Ford was able to pardon Nixon even without a trial.)

Such was our law under the Jones Law of 1916. But under the 1935 Constitution, thisrule was changed: pardon could only be granted after conviction, In 1973, it was madestricter: pardon could be granted only after "final" conviction. Then, in 1981, thephrase "after final conviction" was dropped, thus going baCKto the rule under the JonesLaw and the President could grant pardon anytime. In 1987, the phrase reads: "afterconviction by final judgment."

Asicje from extinguishing criminal liability, pardon also works to remit fines andforfeitures paid in favor of the Government.

But it does not automatically restore the public office forfeited, nor relieve the pardoneeof civil liability and other claims pertaining to the private offended party.

(d) Effects of Pardon

In Cristobal v. Labrador, 71Phil 34 (1940), the voter whose right to vote was challenged in anexclusion proceeding because he had been convicted of estafa which carried theaccessory penalty of disqualification from the right of suffrage, and in Pellobello v. Palatino,72 Phil 441 (1941), the mayor-elect who was not allowed to'take his oath because of aprevious conviction, for falsification of a private document which likewise carried theaccessory penalty of disqualification, were both allowed to exercise their political rightin view of the subsequent pardon granted them. [There would be no problem if theywer" pardoned beforehand, for then they would be restored to their political right(s)right away.]


1st Semester, SY 2012-2013, P:U.P. College of LawPage 390/73

Cristobal v. Labrador, 71 Phil 34 (1940)

FACTS: On March 15, 1930, Teofilo santos was found guilty of estafa and sentenced to 6 months of arrestomayor. Upon appeal, his conviction was affirmed. He was confined in jail'from March 19, 1932 to August 18,1932. Notwithstanding his conviction, Santos continued to be a registered elector in Malabon, Rizal and wasmunicipal president from 1934 to 1937. Subsequently,The Election Codewas approved. sec. 94, par. (b) ofsaid law disqualifies the respondent from voting for having been declared by final judgment guilty of any crimeagainst property" Becauseof this provision, Santos petitioned the Chief Executive for absolute pardon. ThePresi1dentgranted his petition restoring him to his "full civil and political rights, except that with respect to theright to hold public office or employment, he will be appointed for appointments only to positions which areclerical or manual in nature and involving no money or property responsibility. On November 1940, Cristobalfiled a petition for the exclusion of Santos' name in from the list of voters in Malabon on the ground that thelatter is disqualified under par. (b), Sec. 94 of CA 357. The Lower Court denied Cristobal's petition holding thatSantos' pardon had the effect of excluding him from the disqualification created by par. (b) of sec. 94. Hence,this petition for ceritorari.

HELD: There are 2 limitations upon the exercise of the constitutional prerogative of the Pres. to grantpardon: (1) that the power be exercised after conviction; (2) that such power does not extend to cases ofimpeachment. An absolute pardon not only blots out the crime committed but it also removes all disabilitiesresulting from conviction. In the present case, the disability is the result of conviction without which therewould be no basis for the disqualification from voting.

In the present case, while the pardon extended is conditional in the sense that "he will be eligible forappointment only to positions which are clerical or manual in nature involving no money or propertyresponsibility, "it is absolute insofar as it "restores the respondent to full civil and political rights."

IPelobello v. Palatino, 72 Phil 441

FACTS: Pelobello alleges that Palatino is disqualified from voting and being voted upon. It appears thatPalatinowas convicted by final judgment in 1912 of atentado contra la autoridad y sus agentes and sentencedto imprisonment. He was later elected mayor of Torrijos, Marinduque in 1940. It is admitted that Palatino wasgranted by the Gov. Gen. a conditional pardon in 1915. It is also proven that on Dec. 25, 1940, the Presidentgranted him absolute pardon and restored him to the enjoyment of full civil and political rights.

. ISSUE: WIN the absolute pardon had the effect of removing the disqualification incident to criminal convictionunder the then Election Code, the pardon having been granted after the election but before the date fixed bylaw for assuming office.

HELD: YES.The SCadopts the broad view in Cristobal v. Labrador that s~bject to the limitations imposed bythe Constitution, the pardoning power cannot be restricted or controlled by legislation; an absolute pardon notonly blots out the crime committed but removes all disabilities resulting from the conviction; and that whengranted after the term of imprisonment has expired, absolute pardon removes all that is left of theconsequencesof conviction. Thus the better view is not to unnecessarily restrict or impair the power of theChief Executivewho, after inquiry into the environmental facts, should be at liberty to atone the rigidity of lawto the extent of relieving completely the party or parties concerned from the accessory and resultant disabili-ties of criminal conviction.

Under the circumstances of the case, it is evident that the purpose in granting him absolute pardon was toenable him to assume the position in deference to the popular will; and the pardon was thus extended afterthe election but before the date fixed by the ElectionCode for assuming office.

In Lacuna v. Ahes, 24 SeRA 780, the petitioner was convicted of counterfeiting, and so wasdisqualified from the right of suffrage. As a result, he was not allowed to file hiscandidacy, even if he was already granted pardon, because one of the requirements forthe office was that the candidate be a qualified voter. The SC, after pointing out thatthe law did not require that he be a registered voter but only a qualified voter at theday of election, pointed out that, granting arguendo, pardon retroacted to the day ofthe crime. Thus, on the day of the election, "it is as though he was a registered votereven if on that day, he was not yet pardoned."

Lacllna v. Abes, 24 SCRA 780 (1968)

FACTS: Mayor-elect Abes had been convicted of the crime of counterfeiting treasury warrants and sentencedto prision mayor and a fine. After he had partially served his sentence, he was released on April 7, 1959 by



virtue of a conditional pardon granted by the President, remitting only the unexpired portion of the prisonterrI; and fine. Without the pardon, his maximum sentencewould have been served on Oct. 13, 1961.

With the approach of the 1967 elections, Abes applied for registration as a voter but said application wasdenied. Despite this, Abes filed his certificate of candidacy for the office of mayor and later won. On Nov. 16,1967, he was proclaimed the fully elected mayor. Lacunaplaced second.

Lacura filed his petition for quo warranto with prelim. injunction in CA-Nueva Ecija. On the same day that thehearing was held on the application for prelim. injunction, the President granted Abes an absolute andunconditional pardon and restored to him full civil and political rights.

CFI dismissed the petition, declaring Abes' eligibility to the position of mayor.

Lacuna contends that the restoration of Abes' civil and pol. rights did not retroact to remove thedisqualification existing anterior to the grant of the pardon.

ISSUE: WIN a plenary pardon, granted after election but before the date fixed by law for assuming office,had the effect of removing the disqualifications prescribed by both the criminal and electoral codes.

HELD: YES. The view consistently adopted in this jurisdiction is that the pardon's effects should not beunnecessarily limited as it would lead to the impairment of the pardoning power, which was not contemplatedin the Constitution (Cristobal v. Labrador; Pelobello v. Palatino; Mijares v. Custorio).

As laid down in the Pelobello case, "xxx subject to the limitations imposed by the Constitution, the pardoningpower cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out thecrim'i! committed but removes all disabilities resulting from conviction; and that when granted after the termof imprisonment has expired, absolute pardon removes all that is left of the consequences qf conviction. Thusthe better view is not to unnecessarily restrict or impair the power of the Chief Executivel\tho, after inquiryinto the environmental facts, should be at liberty to atone the rigidity of law to the eXtent of relievingcompletely the party or parties concerned from the accessory and resultant disabilities of criminal conviction.

In Monsanto v. Factoran, 170 SCRA 190, where a woman who was convicted of estafathrough falsification of public documents was granted an absolute pardon, andthereafter claimed she was entitled as a consequence to reinstatement as assistant citytreasurer, the SC held that a pardon cannot mask the acts constituting the crime.These are "historical facts" which, despite the public manifestation of mercy andforgiveness implicit in pardon, "ordinary, prudent men will take into account in theirsubsequent dealings with the actor." Pardon granted .after conviction frees theindividual from all penalties and legal disabilities and restores him to all his civil rights.But unless expressly grounded on the person's innocence, it cannot bring back lostreputation for honesty, integrity and fair dealing. This must be constantly kept in mind,lest we lose track of the true character and purpose of the privilege. Thus, pardon doesnot! ipso facto restore a convicted felon to public office necessarily relinquished orforfeited by reason of the conviction, although such pardon undoubtedly restores hiseligibility for appointment to that office.

Monsanto v. Factoran, 170 SCRA 190 (1989)

A Pardoned Convict is not Entitled to Reinstatement to a Public Office.

FACTS:Petitioner 5alvacion Monsantowas Asst. Treasurer of calbayog City. Shewas convicted of estafa thrufalsification of public documents and sentenced to 4 yrs., 2 mos. and 1 day of prision correcional, asminimum, to 10 yrs. and 1 day of prision mayor, as maximum; to pay fine (P3,500) and to indemnify the govt(P4,892.50) in a decision of the 56. While her case was pending appeal in the SC, she was granted absolutepardon and "restored to full civil and political rights" by then Pres. Marcos: The Ministry of Financeagreed toreinstate her without necessity of a new appointment provided this was done not earlier than the date of herpardon. However, on April 15, 1986, the new administration held that she was not entitled to automaticreinstatement on the basis of the pardon granted her. As her motion for reconsideration (MFR) was denied,petitioner brought this action to the Sc. Petitioner's theory is that the general rule on pardon does not applyto her becauseshe was extended clemency while her case was still pending in the Sc. She contended thatwithout final judgment on convictio'n, the accessorypenalty of forfeiture of office did not attach.•



HELD: (1) Petitionerwas granted pardon under the 1973Constitution, as amended,which, by deleting therequirement that pardon could be granted only after final conviction, impliedly authorized it to be grantedeven before conviction. The 1987 Constitution reverted to the former rule, requiring final conviction as acondition for the grant by the Presidentof pardon. However, it is immaterialwhen the pardonwas granted,for the result would be the same. By acceptingthe pardon, the petitioner is deemedto haveabondonedherappeal, with the result that the judgment of conviction of the 5B (which entailed her temporary absolutedisqualificationfrom holding publicoffice) becamefinal.

(2)IThe modern trend of authorities rejects the unduly broad language of Ex Parte Garland,4 Wall. 333(1867) to the effect that in.the eyesof the law, the offenderwho is pardonedis as innocentas if he had nevercommitted the offense. While we are preparedto concedethat pardonmay remit all the penal consequencesof a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative,should not be circumscribedby legislativeaction, we do not subscribeto the view that pardon blots out theguilt of an individualand that once he is absolved,he shouldbe treated as if he were innocent. Forwhatevermay have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moralchanges"as to equatea pardonedconvict in characterand conductwI onewho hasconstantlymaintainedthemark of a good, law-abidingcitizen. Accordingly,pardondoes not ipso facto restore him to public office mayhave been forfeited by reasonof the conviction, although such pardon undoubtedly restoreshis eligibility forappointment to that office. Petitionermay apply for reappointmentbut, in consideringher qualifications,thefacts constituting her conviction should be taken into account to determine whether she can again beentrustedwI publicfunds.

(3) Nor can petitioner be exempted from the payment of the civil indemnity. It subsists notwithstandingservice of sentence, if for any reason the sentence is not served by pardon, amnesty or commutation ofsentence.

rNotes on the case: "Pardon granted after conviction frees the individual from all thepenalties and legal disabilities and restores him to all his civil rights. But unlessexpressly grounded on the person's innocence (w/c is rare), it cannot bring back lostreputation for honesty, integrity and fair dealing. This must be constantly kept in mindlest we lose track of the true character and purpose of the privilege. xxx"

(e) Sanctions for violations of conditional pardon

Q. Discuss the nature of a conditional pardon. Is its grant or revocation by thePresident subject to judicial review?

HELD: A CONDITIONAL PARDON is in the nature of a contract between the sovereign power orthe Chief Executive and the convicted criminal to the effect that the former will release the lattersubject to the condition that if he does not comply with the terms of the pardon, he will berecommitted to prison to serve the unexpired portion of the sentence or an additional one. Bythe pardonee's consent to the terms stipulated in this contract, the pardonee has thereby placedhimself under the supervision of the Chief Executive or his delegate who is duty-bound to see toit that the pardonee complies with the terms and conditions of the pardon. Under Section 64(i)of the Revised Administrative Code, the Chief Executive is authorized to order "the arrest andre-incarceration of any such person who, in his judgment, shall fail to comply with the condition,or conditions of his pardon, parole, or suspension of sentence." It is now a well-entrenched rulein this jurisdiction that this exercise of presidential judgment is beyond judicial scrutiny. Thedetermination of the violation of the conditional pardon rests exclusively in the sound judgmentof the Chief Executive, and the pardonee, having consented to place his liberty on conditionalpardon upon the judgment of the power that has granted it, cannot invoke the aid of the courts,however erroneous the findings may be upon which his recommitment was ordered.

Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive authorof the conditional pardon and of its revocation, is the corollary prerogative to reinstate thepardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filedagainst him, warrants the same. Courts have no authority to interfere with the grant by thePresident of a pardon to a convicted criminal. It has been our fortified ruling that a final judicialpronouncement as to the guilt of a pardonee is not a requirement for the President to determinewhether or not there has been a breach of the terms of a conditional pardon. There is likewisenil a basis for the courts to effectuate the reinstatement of a conditional pardon revoked by thePresident in the exercise of powers undisputably solely and absolutely in his office. (In Re:Wilfredo Sumulong Torres, 251 SeRA 709,Dec. 29, 1995 [HermosisimaJJ



Torresv. Gonzales,152 SCRA272 (1987)

HELD:In proceeding against a convict who has been conditionally pardoned and who is alleged to havebreached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed against him underSec. 64(i), RAC; or (ii) to proceed against him under Art. 159, RPCwhich imposes the penalty of prisioncorreccional minimum period, upon a convict who having been granted conditional pardon by the ChiefExecutive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceedagainst the petitioner under the RAe.That choice is an exercise of the executive prerogative and not subjectto jutficial scrutiny.

(f) Does pardoning power apply to administrative cases?

Llamasv. ExecutiveSecretary,202SCRA844 (1991)

"Conviction"may be used in either a criminal caseor in an administrative case.

FACTS:Petitioner Llamaswas Vice-Governorof Tarlac who assumed the position of governor when GovernorOcampo was found guilty by DILG of a violation of RA 3019 and meted a penalty of 90 days suspension.Administrative conviction was based on complaint filed by petitioners and others charging Ocampo withexecuting loan agreement with Lingkod Tarlac Foundation for the amount of P20M,which is a non-stock andnon-profit organization headed by the governor as chairman and his brother-in-law as executive director,trustee and secretary. Loanwas claimed to be disadvantageous to the government. The MFRby Ocampowasdenied by DILG. On March 19, 1991, Ocampo issued an "administrative order" wherein he signified intentionto continue in office at his residence in the belief that pendency of appeal to the Executive Secretaryprecluded finality as executory of the DILG order. Without ruling on the MFR,the Executive secretary issueda reSolution granting executive clemency to Ocampo. Llamas filed petition claiming that executive clemencycould only be granted by the President in criminal cases, not in administrative cases.

HELD: According to petitioner, "after conviction by final judgment" applies solely to criminal cases." But, hehimself describes the governor as one "convicted in an administrative case" and thus actually concedes that"conviction" may be used either in a criminal or administrative case. The Constitution does not distinguishbetween which cases executive clemency may be exercised by the President, with the sole exclusion ofimpeachment cases.

If the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminalcases, with much more reason can she grant executive clemency in administrative cases, which are clearlyless serious than criminal offenses. However, the power of the President to grant executive clemency inadministrative cases refers only to administrative cases in the Executive branch and not in the Judicial orLegislative branches of the government .

Under the doctrine of Qualified Political Agency, the different Executivedepartments are mere adjuncts of thePresident. Their acts are presumptively the acts of the President until countermanded or reprobated by her.In this case, the President in the exercise of her power of supervision and control over all executivedepcirtments, may substitute her decision for that of her subordinate. It is clearly within the power of thePresident not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinateagainst an erring public official, where a reconsideration of the facts alleged would support the same. It is inthis sensethat the alleged executive clemencywas granted.

Sec. 53. Chapter 7, Subtitle A. Title L Book V,Administrative Code of 1987

Sec. 53. Removal of Administrative Penalties or Disabilities.-- Inmeritorious cases and upon recommendation of the (Civil Service)Commission, the President may commute or remove administrativepenalties or disabilities imposed upon officers or employees indisciplinary cases, subject to such terms and conditions as he mayimpose in the interest of the service .

(g) Who may avail of amnesty?


Is'Semester, SY 2012-2013, P.U.P. College of LawPage 43 of 73

Tolentino v. Catoy, 82 Phil 300 (1948)

FACTS: Petitioner was a Hukbalahap who was found guilty of illegal assembly in furtherance of theHukbalahapdesigns. After the judgment was promulgated, the President issued Proclamation No. 76 grantingamnesty to leaders and members of the Hukbalahap. Petitioner who was already serving his sentence, sent apetition to the President for his release under the provisions of the proclamation. No action was taken on hispetition. He then went to court and filed an application for a writ of habeas corpus.

IHELl': Though some members of the Court question the applicability of Amnesty Proclamation No. 76 toHukbalahapsalready undergoing sentence upon the date of its promulgation, the majority of the Court believethat by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. It makesno exception when it announces that the amnesty is proclaimed in favor of the leaders and members of theassociations known as the Hukbalahap and Pambansang Kaisahan ng Magbubukid (PKM). No compellingreason is apparent for excluding Hukbalahapsof any class or condition from its object which is "to forgive andforego the prosecution of the crimes of rebellion, sedition, etc." If total punishment is foregone in favor ofHukbalahapswho succeeded in evading arrest, it stands to reason that those who fell into the clutches of thelaw have a better claim to clemency for the remaining portion of a punishment fixed for the same offense.

The avowed practical objective of the amnesty is to secure pledge of loyalty and obedience to the constitutedauthorities and encourage resumption of lawful pursuits and occupation. This objective cannot be expected tomeet with full success without the goodwill and cooperation of the HuRbalahapswho have become moreembittered by their capture, prosecution and incarceration.

Fundamentally and in their utmost effect, pardon and amnesty are synonymous. Pardon includes amnesty.Pardonand amnesty are both construed most strictly against the state.

r

Macaga-an v. People, 152 SCRA430 (1987)

FACTS: Petitioners were charged and convicted of estafa through falsification of public and commercialdocuments by the Sandiganbayan. They claimed that they had been granted amnesty by President Marcos.The Sandiganbayanclaimed that the benefits of amnesty were never available to petitioners under PD 1182.HELD: The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified fromamnesty. The acts for which they were convicted were ordinary crimes without any political complexion andconsisting only of diversion of public funds to private profit. The amnesty proclamation covered only acts inthe furtherance of resistance to duly constituted authorities of the Republic.

Vera v. People, 7 SCRA 1S2 (1963)

Amnesty cannot be invoked, where the accused actually denies the commission of the offense charged.

FACTS: In the CFI-Quezon, petitioners Vera, among others, were charged wi the complex crime ofkidnapping with murder of Amadeo Lozanes. Upon petitioners' motion, invoking the benefits of AmnestyProclamation of the President in 1946, the case was referred to the Eight Guerrilla Amnesty Commission,which actually tried it. During the hearing, none of the petitioners admitted having committed the crimecharged. In fact, Vera, the only defendant who took the witness stand, instead of admitting the killing of thedeceased Lozanes, categorically denied it. Hence, the Commission, in its decision held that it could not takecognizance of the case, on the ground that the benefits of the Amnesty Proclamation, could be invoked onlyby defedants in a criminal case who, admitting the commission of the crime, plead that said commission wasin pursuance of the resistance movement and perpetrated against persons who aided the enemy during theJapanese occupation. Consequently, the Commission ordered that the case be remanded to the court oforigin for trial. A MFRwas filed by petitioners but was denied. From this order of the Commission,petitionersappealed to the CAwhich certified the appeal to us, in view of the legal issue involved.

ISSUE: Win persons invoking the benefit of amnesty should first admit having committed the crime of whichthey are accused.

Petitioners contend that to be entitled to the benefits of Amnesty Procl. No.8, it is not necessary for them toadmit the commission of the crime charged, citing in support of their submission, among others, the case ofBarrioquinto, et. al vs. Fernandez, et, al (82 Phil 642.) to the effect that "in order to entitle a person to thebenefits of Amnesty Proclamation, it is not necessary that he should, as a condition precedent, admit havingcommitted the criminal act or offense with which he is charged, and allege the amnesty as a defense; it issufficient that the evidence, either of the complainant or the accused, shows that the offense committedcomes within the terms of said Amnesty Proclamation.



HELD: But said caseshave been supersededand deemedoverruled by the subsequentcasesof People vs.L1amta,et. al. (86 Phil. 219), etc. whereinwe heldthat--

"It is rank inconsistencyfor appellant to justify an act or seek forgiveness for an act,accordingto him, he has not committed. Amnesty presupposes the commission of a crime,and when an accusedmaintains that he has not committed a crime, he cannot have any usefor amnesty. Where an amnesty prod. imposescertain conditions, as in this case, it isincumbentupon the accusedto prove the existenceof such conditions. The invocation ofamnesty is in the nature of a plea of confessionand avoidance, which means that the pleaderadmits the allegations against him but disclaims liability therefor on account of interveningfacts which, if proved, would bring the crime charged within the scope of the amnestyproclamation."

At any rate, the facts establishedbef. the Commissiondo not bring the casewithin the terms of the AmnestyProclamation.Asfoundby the Commission,the killingof the deceased(Lozanes)was not in furtheranceof theresistancemovement,but due to the rivalry bet. the Hunter'sGuerrilla,to w/c he belonged,and the Vera'sGuerrillaof petitioners.

(h) Who has the power to grant reprieve

Q. By issuing a TRO on the date convicted rapist Leo Echegaray is to be executed bylethal injection, the Supreme Court was criticized on the ground, among others, thatit encroached on the power of the President to grant reprieve under Section 19,Article VII, 1987 Constitution. Justify the SC's act.r

HELD: Section 19, Article VII of the 1987 Constitution is simply the source of power of thePresident to grant reprieves, commutations, and pardons and remit fines and forfeitures afterconviction by final judgment. This provision, however, cannot be interpreted as denying thepower of courts to control the enforcement of their decisions after the finality. In truth, anaccused who has been convicted by final judgment still possesses collateral rights and theserights can be claimed in the appropriate courts. For instance, a death convict who becomesinsane after his final conviction cannot be executed while in a state of insanity (See Article 79 ofthe Revised Penal Code). The suspension of such a death sentence is undisputably an exerciseof judicial power. It is not usurpation of the presidential power of reprieve though its effect isthe same - the temporary suspension of the execution of the death convict. In the same vein, itcannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penaltyof death to life imprisonment. The effect of such an amendment is like that of commutation ofsentence. But by no stretch of the imagination can the exercise by Congress of its plenarypower to amend laws be considered as a violation of the President's power to commute finalsentences of conviction. The powers of the Executive, the Legislative and the Judiciary to savethe life of a death convict do not exclude each other for the simple reason that there is nohigher right than the right to life. (Echegaray v. Secretary of Justice, 301 SeRA 96, Jan. 19,1999, EnBalle /PunoJ)

(8) Powers as commander-in-chief

Art. VII, Sec. 18. The President shall be the Commander-in- Chief ofall armed forces of the Philippines, and whenever it becomesnecessary, he may call out such armed forces to prevent orsuppress lawless violence, invasion or rebellion. In case ofinvasion or rebellion, when the public safety requires it, he may,for a period not exceeding sixty days, suspend the privilege of thewrit of habeas corpus or place the Philippines or any part thereofunder martial law. Within forty-eight hours fro'm the proclamationof martial law or the suspension of the privilege of the writ ofhabeas corpus, the President shall submit a report in person or inwriting to the Congress. The Congress, voting jointly, by a vote ofat least a majority of all its Members in regular or special session,may revoke such proclamation or suspension, which revocationshall not be set aside by the President. Upon the initiative of thePresident, the Congress may, in the same manner, extend suchproclamation or suspension for a period to be determined by the



Congress, if the invasion or rebellion shall persist and public safetyrequires it.

The Congress, if not in session, shall within twenty-four hoursfollowing such proclamation or suspension, convene in accordancewith its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filedby any citizen, the sufficiency of the factual basis of theproclamation of martial law or the suspension of the privilege ofthe writ or the extension thereof, and must promulgate its decisionthereon within thirty days from its filing.

A state of martial law does not suspend the operation of theConstitution, nor supplant the functioning of the civil courts orlegislative assemblies, nor authorize the conferment of jurisdictionon military courts and agencies over civilians where civil courts areable to function, nor automatically suspend the privilege of thewrit.

The suspension of the privilege shall apply only to personsjudicially charged for rebellion or offenses inherent in or directlyconnected with invasion.

During the suspension of the privilege of the writ, any person thusarrested or detained shall be judicially charged within three days,otherwise he shall be released.

Art. III, Sec. 13. All persons, except those charged with offensespunishable by reclusion perpetua when the evidence of guilt isstrong, shall, before conviction, be bailable by sufficient sureties, orbe released on recognizance as may be provided by law. The rightto bail shall not be impaired even when the privilege of the writ ofhabeas corpus is suspended. Excessive bail shall n9t be required.

Art. VIII, Sec, 1. xxxJudicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandableand enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdictionon the part of any branch or instrumentality of the Government.

As Commander-in-Chief of all armed forces of the Philippines. the President has thefollowing powers:

a. He may callout such armed forces to prevent or suppress lawless violence, invasionor rebellion.

b. He may suspend the privilege of the writ of habeas corpus, or

c. He may proclaim martial law over the entire Philippines Of" any part thereof.

Subject to: Art. VIII, Sec. 1 par. 2. Judicial power includes the duty of the courts ofjustice to settle actual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuse ofdisdretion amounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of the Govt.


1" Semester, SY 2012-2013, P.U.P. College of LowPage 46 of 73

Call out the AFP to prevent lawless violence

This is merely a police measure meant to quell disorder. As such, the ConstitiJtion doesnot regulate its exercise radically


ISSUE: WIN PPNo. 1017 is a declaration of martial law or the exercise of the President of her "calling out"powers?

HELD: section 18, Article VII grants the President, as Commander-in-Chief, a "sequence" of graduatedpowers. From the most to the least benign, these are: the calling-out power, the power to suspend theprivilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of thePhilippines v. Zamora, the Court ruled that the only criterion for the exercise of the calling-out power is that"whenever it becomes necessary", the President may call the armed forces "to prevent or suppresslawless violence, invasion or rebellion." Are these conditions present in the Instant cases? As statedearlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017.Owing to her Office's vast intelligence network, she is in the best position to determine the actual condition of~~~ .Under the calling-out power, the President may summon the armed forces to aid him insuppressing lawless violence, invasion and rebellion. This involves ordinary police action. But everyact tpat goes beyond the President's calling-out power is considered illegal or ultra vires. For this reason, aPresident must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes toact under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater arethe limitations.

In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of theConstitution, a provision calling on the AFPto prevent or suppress lawless violence, invasion or rebellion. Shealso relied on Section 17, Article XII, a provision on the State's extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of anawesome power.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is notso. What defines the character of PP 1017 are its wordings. It is plain therein that what the Presidentinvoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by theexecutive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, uponpain of arrest and punishment, not commit any acts which will in any way render more difficult the restorationof orper and the enforcement of law."

In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V. Mendoza,an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, thepower to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine whichshould not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It isplaced in the keeping of the President for the purpose of enabling him to secure the people from harm and torestore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

. . .A state of martial law does not suspend the operation of the Constitution, .nor 'supplant the functioning of thecivil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts andagencies over civilians where civil courts are able to function, nor automatically suspend the privilege of thewrit.

Justice Mendozaalso stated that PP1017 is not a declaration of Martial Law. It is no more than a call by thePresident to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justifyacts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is aperversion of its nature and scope, and any act done contrary to its command is ultra vires.

IJustice Mendoza further stated that specifically, (a) arrests and seizureswithout judicial warrants; (b) ban onpublic assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance ofPresidential Decrees,are powers which can be exercised by the President as Commander-in-Chief only wherethere is a valid declaration of Martial Law or suspensionof the writ of habeas corpus.



Basedon the abovedisquisition,it is clearthat PP1017is not a declarationof MartialLaw. It is merely anexercise of President Arroyo's calling-out power for the armed forces to assist her in preventingorsuppressinglawlessviolence.

The rourt finds and so holdsthat PP1017 is constitutional insofaras it constitutesa call by the Presidentfor the AFPto preventor suppresslawlessviolence. The proclamationis sustainedby Section18, ArticleVIIof the Constitution and the relevant jurisprudence discussedearlier. However, PP 1017's extraneousprovisionsgiving the Presidentexpressor impliedpower (1) to issuedecrees;(2) to direct the AFPto enforceobedienceto all laws even those not related to lawlessviolence as well as decrees promulgated by thePresident;and (3) to imposestandardson mediaor any form of prior restraint on the press,are ultra viresand unconstitutional.

On the basis of the relevant and uncontestedfacts narrated earlier, it is also pristine clear that (1) thewarrantlessarrest of petitioners Randolf S. David and RonaldLlamas; (2) the dispersalof the rallies andwarrantlessarrest of the KMUand NAFLU-KMUmembers; (3) the impositionof standardson media or anyprior restrainton the press;and (4) the warrantlesssearchof the Tribune officesand the whimsicalseizuresof some articles for publicationand other materials, are not authorized by the Constitution, the law andjurisprudence. Not evenby the valid provisionsof PP1017andG.O.NO.5.

Q. Distinguish the President's power to call out the armed forces as their Commander-in-Chief in order to prevent or suppress lawless violence, invasion or rebellion, fromhis. power to proclaim martial and suspend the privilege of the writ of habeascorpus. Explain why the former is not subject to judicial review while the latter twoare.

HELD: There is a clear textual commitment under the Constitution to bestow on the Presidentfull discretionary power to call out the armed forces and to determine the necessity for theexercise of such power. Section 18, Article VII of the Constitution, which embodies the powersof the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of thePhilippines and whenever it becomes necessary, he may call out such armedforces to prevent or. suppress lawless violence, invasion or rebellion. In case ofinvasion or rebellion, when the public safety requires it, he may, for a period notexceeding sixty days, suspend the privilege of the writ of habeas corpus, or placethe Philippines or any part thereof under martial law.

The full discretionary power of the President to determine the factual basis for the exercise ofthe calling out power is also implied and further reinforced in the rest of Section 18, Article VII xx x.!

Under the foregoing provIsions, Congress may revoke such proclamations (of martial law) orsuspension (of the privilege of the writ of habeas corpus) and the Court may review thesufficiency of the factual basis thereof. However, there is no such equivalent provision dealingwith the revocation or review of the President's action to call out the armed forces. Thedistinction places the calling out power in a different category from the power to declare martiallaw and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framersof the Constitution would have simply lumped together the three powers and provided for theirrevocation and review without any qualification. Expressio unios est exclusio alterius. X x xThat the intent of the Constitution is exactly what its letter says, i.e., that the power to call isfully discretionary to the President, is extant in the deliberation of the Constitutional Commissionx x x.

The reason for the difference in the treatment of the aforementioned powers highlights theintent to grant the President the widest leeway and broadest discretion in using the power to callout because it is considered as the lesser and more benign power compared to the power tosus~end the privilege of the writ of habeas corpus and the power to impose martial law, both ofwhich Involve the curtailment and suppression of certain basic civil rights and individualfreedoms, and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power tosuspend the privilege of the writ of habeas corpus or to impose martial law, two conditions mustconcur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it.These conditions are not required in the case of the power to call out the armed forces. The



only criterion is that "whenever it becomes necessary," the President may call the armed forces"to prevent or suppress lawless violence, invasion or rebellion." The implication is that thePresident is given full discretion and wide latitude in the exercise of the power to call ascompared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted withoutfactual basis, then this Court cannot undertake an independent investigation beyond thepleadings. The factual necessity of calling out the armed forces is not easily quantifiable andcannot be objectively established since matters considered for satisfying the same is acombination of several factors which are not always accessible to the courts. Besides theabsence of textual standards that the court may use to judge necessity, information necessaryto arrive at such judgment might also prove unmanageable for the courts. Certain pertinentinformation might be difficult to verify, or wholly unavailable to the courts. In many instances,the evidence upon which the President might decide that there is a need to call out the armedforc~s may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network togather information, some of which may be classified as highly confidential or affecting thesecurity of the state. In the exercise of the power to call, on-the-spot decisions may beimperatively necessary in. emergency situations to avert great loss of human lives and massdestruction of property. Indeed, the decision to call out the military to prevent or suppresslawless violence must be done swiftly and decisively if it were to have any effect at all. Such ascenario is not farfetched when we consider the present situation in Mindanao, where theinsurgency problem could spillover the other parts of the country. The determination of thenecessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritableprescription for disaster as such power may be unduly straitjacketed by an injunction or atemporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it isnecessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.Unl~ss the petitioner can show that the exercise of such discretion was gravely abused, thePresident's exercise of judgment deserves to be accorded respect from this Court. (IntegratedBar o{the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 14/284, Aug. 15, 2000, En Bane IKapunanlJ

David v. Macapagal-Arroyo, GR No. 171396, May 3,2006

HELD: The issue of whether the Court may review the factual bases of the President'sexercise of hisCommander-in-Chiefpower has reachedits distilled point - from the indulgent days of Barcelon v. Baker andMontenegro v. castaneda to the volatile era of Lansang v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla v.Enn/e. The tug-of-war alwayscuts acrossthe linedefining"political questions",particularlythose questions"inregard to which full discretionaryauthority has beendelegatedto the legislativeor executive branch of thegovernment". Barcelon and Montenegro were in unison in declaringthat the authority to decidewhether anexigencyhasarisen belongsto the Presidentand his decisionis final and conclusiveon the courts. Lansangtook the oppositeview. There, the membersof the Courtwere unanimousin the convictionthat the Court hasthe authority to inquire into the existence of factual bases in order to determine their constitutionalsufficiency. From the principle of separationof powers, it shifted the focus to the system of checksandbalances,"under which the Presidentis supreme,x x x only ifand when he actswithin the sphereallotted tohim by the BasicLaw,and the authority to determinewhether or not he hasso acted is vested in the JudicialDepartment, which in this respect, is, in turn, constitutionally supreme." In 1973, the unanimousCourt ofLansang wasdivided in Aquino v. Enrile. There, the Courtwas almost evenlydividedon the issueof whetherthe validity of the impositionof Martial Law is a politicalor justiciable question. Then came Garcia-Padilla v.Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case,ratiocinatingthat "in times of war or nationalemergency,the Presidentmust be givenabsolutecontrol for thevery life of the nation and the governmentis in great peril. The President,it intoned, is answerableonly to hisconscience,the People,and God".

The Integrated Bar of the Philippines v. Zamora -- a recent case most pertinent to these casesat bar --echoeda principle similar to Lansang. While the Court consideredthe President's"calling-out" power as adiscretionarypower solely vested in his wisdom, it stressedthat "this does not prevent an examinationofwhether such power was exercisedwithin permissibleconstitutional limits or whether it was exercised in amanner constituting grave abuseof discretion". This ruling is mainly.a result of the Court's reliance onSection 1, Article VIII of 1987 Constitutionwhich fortifies the authority of the courts to determine in anappropriateaction the validity of the acts of the political departments. Under the new definition of judicialpower, the courts are authorized not only "to settle actual controversiesinvolving rights which are legally



demandable and enforceable", but also "to determine whether or not there has been a grave abuse ofdiscretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of thegovernment". The latter part of the authority represents a broadening of judicial power to enable the courtsof justice to review what was before a forbidden territory, to wit, the discretion of the political departments ofthe government. It speaks of judicial prerogative not only in terms of power but also of duty.

As to how the Court may inquire into the President'sexercise of power, Lansangadopted the test that 'judicialinquiry can go no fUlther than to satisfy the Court notthat the President's decision is correct; but that 'thePresident did not act arbitrarilye Thus, the standard laid down is not .correctness, but arbitrariness. InIntegrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner toshow that the President's decision is totally bereft of factual basis" and that if he fails, by way ofproof, to support his assertion, then "this Court cannot undertake an independent investigationbeyond the pleadings".

IPetitioners. failed to show that President Arroyo's exercise of the calling-out power, by issuing PP 1017, istotaily bereft of factual basis. A reading of the Solicitor General's Consolidated Comment and Memorandumshows a detailed narration of the events leading to the issuanceof PP 1017, with supporting reports formingpart of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the MagdaloD-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements fromthe communist leaders. There was also the Minutes of the Intelligence Report and Security Group of thePhilippine Army showing the growing alliance between the NPA and the military. Petitioners presentednothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that thePresidentwas justified in issuing PP1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her armsand do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion.However, the exercise of such power or duty must not stifle liberty.

Suspend the privilege of the writ of habeas corpus

A "writ of habeas corpus" is an order from the court commanding a detaining officer toinfat-m the court (i) if he has the person in custody, and (Ii) what his basis in detainingthat person.

The "privilege of the writ" is that portion of the writ requiring the detaining officer toshow cause why he should not be tested. Note that it is the privilege that issuspended, not the writ itself.

Requisites:1. There must be an invasion or rebellion, and2. The public safety requires the suspension.

Effects of the suspension of the privilege

1. The suspension of the privilege of the writ applies only to persons "judiciallycharged" for rebellion or offenses inherent in or directly connected with invasion (Art.VII, ,Sec. 18, par. 5). Such persons suspected of the above crimes can be arrested anddetained without a warrant of arrest.

"Judicially charged" as used in the Constitution is imprecise. For if one were alreadyjudicially charged, his detention would be legal and so he could no longer petition forhabeas corpus. Habeas corpus precisely contemplates a situation in which a person isbeing detained without being charged in court. Thus, the provision should read "onewho is suspected of complicity in" the two crimes above.

As a general rule, no person could be arrested without a warrant of arrest (validlyissued upon probable cause to be determined personally by the judge after examinationunder oath or affirm'ation of the complainant and the witnesses, (cf. Art. III, Sec. 2),unle.ss(i) the arrest was made in connection with a crime CQmmitted in the presence ofthe detaining officer, or (Ii) the privilege of the writ was suspended. If the public officer


1st Semester, SY 2012-2013, P.o.P. College of LawPage 50 of 73

arrests him without a warrant, the officer becomes liable for "arbitrary detention" underArt, 124 of the RPC,and a petition for habeas corpus can be filed to seek his release.

The suspension of the privilege does not make the arrest without warrant legal. Butthe military is, in effect, enabled to make the arrest, anyway since, with the suspensionof the privilege, there is no remedy available against such unlawful arrest (arbitrarydetention). The arrest without warrant is justified by the emergency situation and thedifficulty in applying for a warrant considering the time and the number of persons tobe a'rrested.

But the crime for which he is arrested must be one related to rebellion or the invasion.As to other crimes, the suspension of the privilege does not apply.

I

2.. During the suspension of the privilege of the writ, any person thus arrested ordetained shall be judicially charged within 3 days, or otherwise he shall be released.(Art. VII, Sec. 18, par. 6).

In other words, the public officer can detain a person without warrant of arrest, but hecan only do so for 72 hours. Before the lapse of 72 hours, an information must havebeen filed in the proper court charging him of the offense for which he was arrested.Under the Rules of Criminal Procedure, if the detainee wants a preliminary investigationto be first conducted by the fiscal, he must sign a waiver of the effects of Art. 125.(delay in the delivery of detained persons)

The' effect of the suspension of the privilege, therefore, is only to extend the periodsduring which he can be detained without a warrant. Under Art. 125, as amended by EO272, the public officer can only detain him for 12, 18 or 36 hours depending on thegravity of the offense of which he is charged; within this time, he must be judiciallycharged, otherwise, he must be released. When the privilege is suspended, the periodis extended to 72 hours.

What happens if he is not judicially charged nor released after 72 hours? The publicofficer becomes liable under Art. 125 for "delay in the delivery of detained persons." Asto the detainee, it is submitted that he or someone else in his behalf can file a petitionfor habeas corpus. For even if the suspension has a lifetime of 60 days in general, asto that person, the suspension only has an effectivity of 72 hours, so that after thistime, the suspension is lifted as to him.

3. The right to bail shall not be impaired even when the privilege of the writ of habeascorpus is suspended. (Art. III, Sec. 13)

Art. III, Sec. 13. xxx The right to bail shall not be impaired even when the privilege ofthe writ of HC is suspended. Excessive bail shall not be required.

This new provision abrogates the ruling in Morales v Ponce- Enrile which held the contrary.

PROCLAIM MARTIAL LAW

Requisites:1. There must be an invasion or rebellion, and2. Public safety requires the proclamation of martial law allover the Philippines or any

part thereof.

Effects of the proclamation of martial law

The President can:1. Legislate

2. Order the arrest of people who obstruct the war effort.

'.

";1(I

'r



But the following cannot be done (Art. VII, Sec. 18,par. 4)

1. Suspend the operation of the Constitution.

2. Supplant the functioning of the civil courts and the legislative assemblies.

The principle is that martial law is proclaimed only because the courts and othercivil institutions like Congress have been shut down. It should not happen thatmartial law is declared in order to shut down the civil institutions.

3. Confer jurisdiction upon military courts and agencies over civilians, where civil courtsbre unable to function. .

This is the "open court" doctrine which holds that civilians cannot be tried bymilitary courts if the civil courts are open and functioning. But if the civil courtsare not functioning, then civilians can be tried by the military courts. Martiallaws usually contemplates a case where the courts are already closed and thecivil institutions have already crumbled, that is a "theater of war." If the courtsare still open, the President can just suspend the privilege and achieve the sameeffect.

4. Automatically suspend the privilege of the writ of habeas corpus.

This overrules the holding in Aquino v. Ponce-Enrile, 59 SeRA 183 (1974), that when thePresident proclaims martial law, he also impliedly suspends the privilege of thewrit.

Under the present rule, the President can still suspend the privilege even as heproclaim martial law, but he must so suspend expressly.

The Role of Congress

a. When the President proclaims martial law or suspends the privilege of the writ, suchproclamation or suspension shall be effective for a period of 60 days, unless soonerrevoked by the Congress.

b. Upon such proclamation or suspension, Congress shall convene at once. If it is notin session, it shall convene in accordance with its rules without need of a call within24 hours following the proclamation or suspension.

c. Within 48 hours from the proclamation or the suspension, the President shall submita report, in person or in writing, to the Congress (meeting in joint session of theaction he has taken).I

d. The Congress shall then vote jointly, by an absolute majority. It has two options:

(i) To revoke such proclamation or suspension.

When it so revokes, the President cannot set aside (or veto) the revocation as henormally would do in the case of bills. If Congress does not do anything, the measurewill. expire anyway in 60 days. So the revocation must be made before the lapse of 60days from the date the measure was taken.

(ii) To extend it beyond the 60-day period of its validity.

Congress can only so extend the proclamation or suspension upon the initiative of thePresident. The period need not be 60 days; it could be more, as Congress woulddetermine, based on the persistence of the emergency. If Congress fails to act before



the measure expires, it can no longer extend it until the President again redeclares themeasure, for how do one extend something that has already lapsed?

Note that Congress cannot "validate" the proclamation or suspension, because it isalready valid. It is thus restricted to the 2 measures above.

If Congress extends the measure, but before the perio.d of extension lapses, therequirements for the proclamation or suspension no longer exist, Congress can lift theextension, since the power to confer implies the power to take back. If Congress doesnot review or lift the order, this can be reviewed by the Supreme Court pursuant to thenext section.

1The Role of the Supreme Court

The Supreme Court may review, in an appropriate proceeding filled by any citizen, thesufficiency of the factual basis of (a) the proclamation of martial law or the suspensionof the privilege of the writ, or (b) the extension thereof. It must promulgate itsdecision thereon within 30 days from its filing. (Art. VII, Sec. 18par. 3)

This is because judicial power includes the duty to determine whether or not there hasbeen a grave abuse of discretion amounting to lack or excess of jurisdiction on the partof any branch or instrumentality of the Government. (Art. VIII, Sec. l,par. 2)

The jurisdiction of the SC may be invoked in a proper case. A petition for habeascorpus is one such case. When a person is arrested without a warrant for complicity inthe rebellion or invasion, he or someone else in his behalf has the standing to questionthe validity of the proclamation or suspension. But before the SC can decide on thelegality of his detention, it must first pass upon the validity of the proclamation orsuspension.

The test to be used by the Supreme Court in so reviewing the act of the President inproclaiming or suspending, or the act of Congress in extending, is the test ofarbitrariness which seeks to determine the sufficiency of the factual basis of themeasure. The question is not whether the President or Congress acted correctly, butwhether he acted arbitrarily in that the action had no basis in fact.

Deciding on whether the act was arbitrary amounts to a determination of whether ornot there was grave abuse of discretion amounting to lack or excess of jurisdiction,which is now made part of judicial power by Art. VIII, Sec. 1, par. 2. This curbsradically the application of the political question doctrine.

This test was taken from the case of Lansang v. Garcia, 42 SCRA 446 (1971). The issue thereraised was whether in suspending the privilege of the writ in 1971, Marcos had a basisfor tiDing so. The SC, in considering the fact that the President based his decision on(a) the Senate report on the condition in Central Luzon and (b) a closed door briefingby the military showing the extent of subversion, concluded that the President did notact arbitrarily. One may disagree with his appreciation of the facts, but one cannot saythat it is without basis.

In this case of Lansang vs. Garcia, the SC held unanimously that it has the authority toinquire into the existence of the factual basis in order to determine the constitutionalsufficiency thereof. This holding of the SC is now found in Art. VII, Sec. 18, par. 3.

With this test and the new provisions in the 1987 Constitution, the case of Garcia-Padillav. POlice Emile, 121 SCRA 472 (1983), is, at last, overruled, and l)1ay it be so always. In thatcase, the SC held that the President's proclamation of martial law is beyond judicialreview, and that the citizen can only trust that the President acts in good faith. Thecases of Barcelon v. Baker and Montenegro v. Castaneda, which ruled that the validity of the


1S, Semester, SY 2012-2013, P.u.P. College of LawPage 53 of 73

suspension of the privilege was a political question, are likewise buried in the grave ofjudicial history.

There are 4 wavs, then, for the proclamation or suspension to be lifted:1) Lifting by the President himself2) Revocation by Congress3) Nullification by the Supreme Court4) Operation of law after 60 days

Military Trial of Civilians Void Even Under Martial Law, If Civil Courts Are Open. (Art. VII,Sec.lS, par. 5.).

In AI/llino v. Military Commission No.2, 63SCRA 546,the SC upheld the power of the Presidentto create military tribunals authorized to try not only military personnel but alsocivilians even if at that time civil courts were open and functioning, thus rejecting the"open court" theory. The SC there held: "Martial law creates an exception to thegeneral rule of exclusive subjection to the civil jurisdiction, and renders offensesagainst the laws of war, as well as those of a civil character, triable by militarytribunals. Public danger warrants the substitution of executive process for judicialprocess. The immunity of civilians from military jurisdiction, must, however, give wayin areas governed by martial law.

In the case of Olaguer vs Military Commission No. 34,150 SCRA'144, the Aquino vs. MilitarvCommission NO.2 decision was reversed. According to the SC, civilians who are placedon trial for civil offenses under general law are entitled to trial by judicial process.Since we are not enemy-occupied territory nor are we under a military govt. and evenon ~he premise that martial law continues in force, the military tribunals cannot try andexercise jurisdiction over civilians for civil offenses committed by them which areproperly cognizable by the civil courts that have remained open and have beenregularly functioning. The assertion of military authority over civilians cannot rest onthe President's power as Commander in Chief or on any theory of martial law. As longas civil courts remain open and are regularly functioning, military tribunals cannot tryand exercise jurisdiction over civilians for offenses committed by them and which areproperly cognizable by civil courts. To hold otherwise is a violation of the right to dueprocess.

"The presiding officer at a court martial is not a judge whose objectivity andindependence are protected by tenure and undiminshed salary and nurtured by thejudicial tradition, but is a military officer. Substantially different rules of evidence andprocedure apply in military trials. Apart from these differences, the suggestion of thepossibility of influence on the actions of the court-martial by the officer who convenesit, selects its members and the counsel on both sides, and who usually has directcOlT)mandand authority over its members is a pervasive one in military laws, despitestrenuous efforts to eliminate the danger.

(9) Emergency powers

Art. VI, Sec. 23. xxx(2) In times of war or other national emergency, the Congress,may, by law, authorize the President, for a limited period, andsubject to such restrictions as it may prescribe, to exercise powersnecessary and proper to carry out a declared national policy.Unless sooner withdrawn by resolution of the Congress, suchpowers shall cease upon the next adjournment thereof.

This grant of emergency power to the President is different from the Commander-in-Chief clause. When the President acts under the Commander-in-Chief clause, he actsunder a constitutional grant of military power, which may include the law-making



power. But when the President acts under the emergency power, he acts under aCongressional delegation of law-making power.

The scope of the grant is such "powers necessary and proper to carry out a declarednational policy." Under the 1935 Constitution, this was construed the power to issuerules and regulations to carry out the declared policy. The 1987 Constitution, it issubmitted, does not change the scope. "Power necessary and proper" should meanlegislative power, because Congress is only allowed to delegate legislative power, beingits only inherent power. Its other powers are only granted to it by the Constitution,andrso it cannot delegate what has only been delegated to it.

This power is (1) for a limited period, and (2) subject to such restrictions as Congressmay provide. The power ceases (a) upon being withdrawn by resolution of theCongress, or, if Congress fails to adopt such resolution, (b) upon the next (voluntary)adjournment of Congress. For the fact that Congress is able to meet in sessionuninterruptedly and adjourn of its own will proves that the emergency no longer existsis to justify the delegation.

This rule or the termination of the grant of emergency powers is based on decidedcases, which in turn became Art. VII, Sec. 15 of the 1973 Constitution.

In Araneta v. Dinglasan, 84 Phil 368 (1949), the Congress granted the President emergencypowers to fix rentals of houses. After the war, Congress held a special session. TheSC held that the emergency power lasted only until Congress held its regular session.The fact that Congress could now meet meant that there was no emergency anymoretha~ would justify the delegation.,In the cases of Rodriguez v. Treasurero, involving the law made by Pres. Quirinoappropriating the sum of money for the operation of the government; Barreda v.COMELEC, involving another law made by Pres. Quirino appropriating an amount todefray the expenses for an election, and Guevarra v. Col/ector of Customs, involving aregulation of export, the SC held that the emergency power that enabled the Presidentto legislate ceased the moment Congress could meet in regular session.

At the very least, said the SC in Rodriguez v. Gel/a, 92 Phil 603 (1953), it should cease uponthe approval of a resolution by Congress terminating such grant. In this case, theCongress enacted a bill precisely terminating the grant of emergency power, but thiswas vetoed by the President. The SC ruled that the vetoed bill should be deemed aresolution that terminates the grant.

Araneta v. Dinglasan, 84 Phil 368 (1949)

FActS: The petitions challenge the validity of EOsof the Pres. avowedly issued in virtue of CA671. They resttheir case chiefly on the proposition that the Emergency Powers Act (CA 671) has ceased to have any forceand effect.

HELD: CA 671 became inoperative when Congress met in regular session on 5/25/46, and the ExecutiveOrders were issuedwithout authority of law.

CA 671 does not in term fix the duration of its effectiveness. The intention of the Act has to be sought for inits nature, the object to be accomplished, the purpose to be subserved, and its relation to the Constitution.

Art. VI of the 1935 Constitution provides that any law passed by virtue thereof should be "for a limitedperiod." The words "limited period" are beyond question intended to mean restrictive in duration.Emergency, in order to justify the delegation of emergency powers, "must. be temporary or it can not be saidto be'an emergency."

It is to be presumed that CA 671 was approved with this limitation in view. The opposite theory would makethe law repugnant to the Constitution, and is contrary to the principle that the legislature is deemed to havefull kf10wledgeof the constitutional scopeof its powers. The assertion that new legislation is needed to repealthe act would not be in harmony with the Constitution either. If a new and different law were necessary to



terminate the delegation, the period for the delegation would be unlimited, indefinite, negative and uncertain;"that which was intended to meet a temporary emergency may become permanent law," for Congressmightnot enact the repeal, and even if it would, the repeal might not meet with the approval of the President, andthe Congress might not be able to override the veto. Further, this would create the anomaly that, whileCongressmight delegate its powers by simple majority, it might not be able to recall them except by a 2/3vote; .

Rodriguez v. Gella, 92 Phil 603 (1953)

FACTS: On 12/16/41, CA671 was approved declaring a state of total emergency as a result of war involvingthe Philippines and authorizing the President to promulgate rules and regulations to meet such'emergency."In 1949, the SC decided that said emergency powers ceased as early as 1945. Here, the issue again iswhether or not CA 671 is still effective. It appears that in 1952, the President issued EOs 545 and 546 (forappropriation of funds for public works and for relief in the provinces and cities visited by typhoons, floods,etc.)

The Congress passedHouse Bill 727 declaring that "was has long ended" and that the "need for the grant ofsuch unusual powers to the President has disappeared," and for that reason, Congress repealed all theEmergencyPowersActs of the President. However, this was vetoed by the President.

Petitioners seek to invalidate said EOs.

HELD: Although House Bill 727, has been vetoed by the President and.did not thereby become a regularstatute, it may at least be considered as a concurrent resolution of the Congress formally declaring thetermination of the emergency powers. To contend that the Bill needed presidential acquiescenceto produceeffect, would lead to the anomalous, if not absurd situation that, "while Congresswhile delegate its powers bya simple majority, it might not be able to recall them except by 2/3 vote.,Bariol/gay: Notice the apparent inconsistency between the Constitution and the cases.The Constitution [Art. VI, Sec. 23 (2)] states that the emergency powers shall cease uponthe next adjournment of Congress unless sooner withdrawn by resolution of Congresswhereas the cases tell us that the emergency powers shall cease upon resumption ofsession. To reconcile the two, I believe that it would not be enough for Congress tojust resume session in order that the emergency powers shall cease. It has to pass aresolution withdrawing such emergency powers, otherwise such powers shall ceaseupon the next adjournment of Congress.


HELD: The pertinent provision of PP1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by mepersonally or upon my direction; and as provided in Section 17, Article XII of the Constitution do herebydeclare a state of national emergency.,The import of this provision is that President Arroyo, during the state of national emergency under PP 1017,can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to actpursuant to the provision of Section 17, Article XII which reads:

sec. 17. In times of national emergency, when the public interest so requires, the State may,during the emergency and under reasonable terms prescribed by it, temporarily take over ordirect the operation of any privately-owned public utility or business affected with publicinterest.

What could be the reason of PresidentArroyo in invoking the above provision when she issuedPP1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant thePresident, without any authority or delegation from Congress, to take over or direct the operation of anyprivately-owned public utility or business affected with public interest

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the1971 Constitutional Convention. In effect at the time of its approval was Preside~t Marcos' Letter ofInsti'uction NO.2 dated September 22, 1972 instructing the Secretary of National Defense to take over "themanagement, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone



Company, the National WatelWorks and Sewerage Authority, the Philippine National Railways, the PhilippineAir Lines, Air Manila (and) Filipinas Orient AilWays ... for the successful prosecution by the Government of itseffort to contain, solve and end the present national emergency. "

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo's inclusionof Section 17, Article XII in PP1017 is an encroachment on the legislature's emergency powers.

This is an area that needsdelineation.

A di~tinction must be drawn between the President'sauthority to declare "a state of national emergency" andto exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants thePresidentsuch power, hence, no legitimate constitutional objection can be raised. But to the second, manifoldconstitutional issuesarise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (l) The Congress, by a vote of two-thirds of both Houses in joint sessionassembled, voting separately, shall have the sole power to declare the existence of astate of war.

(2) In times of war or other national emergency, the Congressmay, by law, authorize thePresident, for a limited period and subject to such restrictions as it may prescribe, to exercisepowers necessaryand proper to carry out a declared national policy. Unlesssooner withdrawnby resolution of the Congress,such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph cif the above provision refers not only to war but also to"other national emergency." If the intention of the Framers of our Constitution was to withhold from thePresildentthe authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress(like the declaration of the existence of a state of war), then the Framerscould have provided so. Clearly, they did not intend that Congressshould first authorize the President beforehe can declare a "state of national emergency." The logical conclusion then is that President Arroyo couldvalidly declare the existence of a state of national emergency even in the absence of a Congressionalenactment.

But the exercise of emergency powers, such as the taking over of privqtely owned public utility or business.affected with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. otherwisestated, different clauses, sections, and provisions of a constitution which relate to the same subject matter willbe construed together and considered in the light of each other. Considering that Section 17 of Article XII andSectiQn23 of Article VI, previously quoted, relate to national emergencies, they must be read together todetermine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2),Article VI authorizing it to delegate such powers to the President. certainly, a body cannot delegate a powernot ieposed upon it. However, knowing that during grave emergencies, it may not be possible or practicablefor Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allowCongressto grant emergency powers to the President. subject to certain conditions, thus:

(l) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress mayprescribe.

(4) The emergency powers must be exercised to carry out a national policy declared byCongress.

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over ofprivate businessaffected with public interest is just another facet of the emergency powers generally reposedupon Congress. Thus, when Section 17 states that the "the State may, during the emergency andund~r reasonable terms prescribed by it, temporarily take over or direct the operation of anyprivately owned public utility or business affected with public interest," it refers to Congress, notthe President Now, whether or not the President may exercise such power is dependent on whether


1st Semester, SY 2012-2013, P.U.P. College of LawPage 57of73

Congressmay delegate it to him pursuant to a law prescribing the reasonable terms thereof. YoungstownSheet & Tube Co. et at. v. sawyer, held:

It is clear that if the President had authority to issue the order he did, it must be found insome provision of the Constitution. And it is not claimed that express constitutional languagegrants this power to the President. The contention is that presidential power should beimplied from the aggregate of his powers under the Constitution. Particular reliance is placedon provisions in Article II which say that" The executive Power shall be vested in a President .. . .;" that "he shall take care that the Laws be faithfully executed:' and that he "shall beCommander-in-Chief of the Army and Navy of the United States."

The order cannot properly be sustained as an exercise of the President's military power asCommander-in-Chief of the Armed Forces. The Government attempts to do so by citing anumber of cases upholding broad powers in military commanders engaged in day-to-dayfighting in a theater of war. Such cases need not concern us here. Even though "theaterof war" be an expanding concept, we cannot with faithfulness to our constitutionalsystem hold that the Commander-in-Chief of the Armed Forces has the ultimatepower as such to take possession of private property in order to keep labordisputes from stopping production. This is a job for the nation's lawmakers, notfor its military authorities.

Nor can the seizure order be sustained because of the several constitutionalprovisions that grant executive power to the President. In the framework of ourConstitution, the President's power to see that the laws are faithfully executedrefutes the idea that he is to be a lawmaker. The Constitution limits his functionsin the lawmaking process to the recommending of laws he thinks wise and thevetoing of laws he thinks bad. And the Constitution is neither silent nor equivocalabout who shall make laws which the President is to execute. The first section ofthe first article says that "All legislative Powers herein granted shall be vested in aCongress of the United States ... "

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to"tsunami," "typhoon," "hurricane" and "similar occurrences:' This is a limited view of ''emergency.''

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree ofexisting danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions arethe elements of intensity, variety, and perception. Emergencies,as perceived by legislature or executive in the.United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3)principal heads: a) economic, b) natural disaster, and c) national security.

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economiccrisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.This is evident in the Recordsof the Constitutional Commission,thus:

MR.GASCON.Yes. What is the Committee's definition of "national emergency" which appearsin section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over ordirect the operation of any privately owned public utility or businessaffectedwith public interest.

MR.VILLEGAS. What I mean is threat from external aggression, for example, calamitiesor natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes andriots?

MR.VILLEGAS. Strikes, no; those would not be covered by the term "national emergency:'

MR. BENGZON. Unless they are of such proportions such that they would paralyzegovernment service.

xxx xxx

MR.TINGSON. May I ask the committee if "national emergency" refers to military nationalemergency or could this be economic emergency?



MR.VILLEGAS. Yes, it could refer to bothmilitaryoreconomicdislocations.

MR.TINGSON. Thank you very much.

It may be argued that when there is national emergency, Congress may not be able to convene and,therefore, unable to delegate to the Presidentthe power to take over privately-owned public utility or businessaffected with public interest.

./In Araneta v. Ding/asan, this Court emphasized that legislative power, through which extraordinary measuresare exercised, remains in Congresseven in times of crisis.

After all the criticisms that have been made against the efficiency of the system of theseparation of powers, the fact remains that the Constitution has set up this form ofgovernment, with (III its defects and shortcomings, in preference to the commingling ofpowers in one man or group of men. The Filipino people by adopting parliamentarygovernment have given notice that they share the faith of other democracy-loving peoples inthis system, with all its faults, as the ideal. The point is, under this framework of government,legislation is preserved for Congress all the time, not excepting periods of crisis no matterhow serious. Never in the history of the United States, the basic features of whoseConstitution have been copied in ours, have specific functions of the legislative branch ofenacting laws been surrendered to another department, unless we regard as legislating thecarrying out of a legislative policy according to prescribed standards; no, not even when thatRepublic was fighting a total war, or when it was engaged in a life-and-death struggle topreserve the Union. The truth is that under our concept of constitutional government, intimes of extreme perils more than in normal circumstances the various branches, executive,legislative, and judicial, given the ability to act, are called upon to perform the duties anddischarge the responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, thisCourtrulesthat suchProclamationdoesnot authorizeherduringthe emergencyto temporarilytake overor directthe operationof anyprivatelyownedpublicutilityor businessaffectedwithpublicinterestwithoutauthorityfromCongress.

Let it be emphasized that while the Presidentalone can declarea state of nationalemergency,however,without legislation,he has no power to take over privately-ownedpublicutility orbusinessaffectedwith publicinterest.The President cannot decide whether exceptional circumstancesexist warranting the take over of privately-owned public utility or businessaffected with public interest. Norcan he determine when such exceptional circumstances have ceased. Likewise, without legislation,thePresident has no power to point out the types of businessesaffected with public interest that should be takenover. In short, the President has no absolute authority to exercise all the powers of the State under Section17. Article VII in the absence of an emergency powers act passedby Congress.

(10') Contracting and guaranteeing foreign loans

Art. VII, Sec. 20. The President may contract or guarantee foreignloans on behalf of the Republic of the Philippines with the priorconcurrence of the Monetary Board, and subject to such limitationsas may be provided by law. The Monetary Board shall, withinthirty days from the end of every quarter of the calendar year,submit to Congress a complete report of its decisions onapplications for loans to be contracted or guaranteed by theGovernment, or government-owned or controlled corporations,which would have the effect of increasing the foreign debt, andcontaining other matters provided by law.

Art. XII, Sec. 21. Foreign loans may only be incurred in accordancewith law and the regulation of the monetary authority. Informationon foreign loans obtained or guaranteed by the Government shallbe made available to the public.



Republic Act 4860AN ACT AUTHORIZING THE PRESIDENT OF THE PHILIPPINES TO OBTAIN SUCH

FOREIGN LOANS AND CREDITS, OR TO INCUR SUCH FOREIGN INDEBTEDNESS, AS MAYBE NECESSARY TO FINANCE APPROVED ECONOMIC DEVELOPMENT PURPOSES OR

PROJECTS, AND TO GUARANTEE, IN BEHALF OF THE REPUBLIC OF THE PHILIPPINES,FOREIGN LOANS OBTAINED OR BONDS ISSUED BY CORPORATIONS OWNED ORCONTROLLED BY THE GOVERNMENT OF THE PHILIPPINES FOR ECONOMIC

DEVELOPMENT PURPOSES INCLUDING THOSE INCURRED FOR PURPOSES OF RE-LENDING TO THE PRIVATE SECTOR, APPROPRIATING THE NECESSARY FUNDS

THEREFORE, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Congressassembled:

Sec. 1. The President of the Philippines is hereby authorized in behalf of the Republic ofthe Philippines to contract such loans, credits and indebtedness with foreign governments,agencies or instrumentalities of such foreign governments, foreign financial institutions, or otherinternational organizations,-with whom, or belonging to countries with which, the Philippines hasdiplomatic relations, as may be necessary and upon such terms and conditions as may beagreed upon, to enable the Government of the Republic of the Philippines to finance, eitherdireGtly or through any government office, agency or instrumentality or any government-ownedor controlled corporation, industrial, agricultural or other economic development purposes orprojects authorized by law: Provided, That at least seventy-five per cent shall be spent forpurposes of projects which are revenue-producing and self-liquidating, such as electrification,irrigation, river control and drainage, telecommunication, housing, construction andimpl-ovement of highways and bridges, airports, ports and harbors, school buildings, waterworks and artesian wells, air navigation facilities, development of fishing industry, and other:Provided, That such foreign loans shall be used to meet the foreign exchange requirements orliabilities incurred in connection with said development projects to cover the cost of equipment,related technical services and supplies, where the same are not obtainable within the Philippinesat competitive prices as well as part of the peso costs, other than working capital andoperational expenses not exceeding twenty per cent of the loan: Provided, further, That in thecase of roads, bridges, irrigation, portworks, river controls, airports and power, the amount shallnot exceed seventy per cent of the loan.

The authority of the President of the Philippines as herein provided shall include the power toissue, for the purposes hereinbefore stated, bonds for sale in the international markets theincome from which shall be fully tax exempt in the Philippines.

Sec. 2. The total amount of loans, credits and indebtedness, excluding interests, whichthe President of the Philippines is authorized to incur under this Act shall not exceed one billionUnited States dollars or its equivalent in other foreign currencies at the exchange rate prevailingat tlile time the loans, credits and indebtedness are incurred: Provided, however, That the totalloans, credits and indebtedness incurred under this Act shall not exceed two hundred fifty millionin the fiscal year of the approval of this Act, and two hundred fifty million every fiscal yearthereafter, all in United States dollars or its equivalent in other currencies.

All loans, credits and indebtedness under the preceding section shall be incurred only forparticular projects in accordance with the approved economic program of the Government andafter the plans for such projects shall have been prepared by the offices or agencies concerned,recommended by the National Economic Council and the Monetary Board of the Central Bank ofthe Philippines, and approved by the President of the Philippines.

Sec. 3. The President of the Philippines is, likewise, hereby authorized, in behalf of theRepublic of the Philippines, to guarantee, upon such terms and conditions as may be agreedupon, foreign loans extended directly to, or bonds for sale in international markets issued by,corporations owned or controlled by the Government of the Philippines for industrial, agriculturalor other economic development purposes or projects authorized by law, such as thosementioned in Section one of this Act, including the rehabilitation and modernization of thePhilippine National Railways, the cash capital requirements of the Land Bank, electrification,irrigation, river control and drainage, telecommunication, housing, construction and/orimprovement of highways, housing, construction and/ or improvement of highways, airports,ports and harbors, school buildings, waterworks and artesian wells, air navigation, developmentof the fishing industry, iron and nickel exploitation and development, and others: Provided,

•I


1" Semester, SY 2012-2013, PU.P. College of LawPage 60 of 73

That at least seventy five per cent shall be spent for purposes or projects which are revenue-producing and self-liquidating. The loans/ or bonded indebted[less of government-owned orcontrolled corporations which may be guaranteed by the President under this Act shall includethose incurred by government-owned or controlled financial institutions for the purpose of re-lending to the private sector and the total amount thereof shall not be more than five hundredmillion United States dollars or its equivalent in other foreign currencies at the exchange ratepre'lailing at the time the guarantee is made: Provided, That the government-owned orcontrolled financial institutions shall re-Iend the proceeds of such loans and/ or bondedindebtedness to Filipinos or to Filipino-owned or controlled corporations and partnerships, atleast sixty-six and two-thirds per centum of the outstanding and paid-up capital of which is heldby Filipinos at the time the loan is incurred, such proportion to be maintained until such time asthe loan is fully paid: Provided, however, That during anytime that any amount of the loanremains outstanding, failure to meet with the capital ownership requirement shall make theentire ioan immediately due and demandable, together with all penalties and interests, plus anadditional special penalty of two per centum on the total amount due.

Sec. 4. The implementation of this Act shall be subject to, and governed by, theprovisions of Executive Order 236, dated February 13, 1957, prescribing procedures for theplanning of development finances, the issuance of government securities, and the disbursementof proceeds and creating the Fiscal Policy Council and the Technical Committee on DevelopmentFinance, as amended by Executive Order No. 236, dated May 26, 1966, not inconsistent withthis Act, which are hereby adopted by reference and made an integral part of this Act.

Sec. 5. It shall be the duty of the President, within thirty days after the opening of everyregular session, to report to the Congress the amount of loans, credits and indebtednesscontracted, as well as the guarantees extended, and the purposes and projects for which theloans, credits and indebtedness were incurred, and the guarantees extended, as well as suchloans which may be reloaned to Filipino-owned or controlled corporations and similar purposes.

Sec. 6. The Congress shall appropriate the necessary amount of any funds in theNational Treasury not otherwise appropriated, to cover the payment of the principal and intereston such loans, credits or indebtedness as and when they shall become due.

Sec. 7. This Act shall take effect upon its approval.

Approved, September 8, 1966.

Does Congress have to be consulted by the President when he contracts or guaranteesforeign loans that increase the foreign debt of the country?

The affirmative view cites Art. VI, Sec. 24 which holds that all bills authorizing increaseof ~he public debt must originate exclusively from the House of Representatives,altHough the Senate may propose or concur with amendments.

The negative, and stronger view, is that the President does not need prior approval byCongress because the Constitution places the power to check the President's power onthe Monetary Board and not on Congress. Congress may, of course, provide guidelinesfor contracting or guaranteeing foreign loans, and have these rules enforced throughthe Monetary Board. But that Congress has prior approval is a totally different issue.

At any rate, the present power, which was first introduced in the 1973 Constitution,was based on RA 4860 or the Foreign Loan Act. What used to be a statutory grant ofpower is now a constitutional grant which Congress c,!nnot take away, but onlyregulate.

(11) Powers over foreign affairs

(a) Treaty-making power

Art. VII, Sec. 21. No treaty or international agreement shall be validand effective unless concurred in by at least two-thirds of all themembers of the Senate.



Q. Who has the power to ratify a treaty?

A. In our jurisdiction, the power to ratify is vested in the President and not, ascommonly believed, in the legislature. The role of the Senate is limited only to givingor \I)Iithholding its consent, or concurrence, to the ratification. (BAYAN [Bagong AlyansangMakahayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Bane [Buena])

By reason of the President's unique position as head of state, he is the logical choice asthe nation's spokesman in foreign relations. The Senate, on the other hand, is grantedthe right to share in the treaty-making power of the President by concurring with himwith the right to amend.

Treaty distinguished from executive agreements

Executive agreements entered into by the President need no concurrence. The reasonis that although executive agreements are a kind of international agreements, when theConstitution intends to include executive agreements, it says so specifically, as in Art.VIII, Sec. 5, par. 2, when it speaks of the power of the SC to review final judgments oflower courts in cases in which the constitutionality or validity of any treaty,international or executive agreement, is in question.

IIn holding that treaties are formal documents which require ratification with approval ofthe Senate, while executive agreements become binding through executive actionwithout need of a vote by the Senate, the SC in Commissioner of Customs v. Eastern SeaTrading, 3 SCRA 351 (1961), said that the difference between a treaty and an executiveagreement is that a treaty is an international agreement involving political issues orchanges of national policy and those involving international arrangements of apermanent character, while an executive agreement is an international agreementembodying adjustments of detail carrying out well-established national policies andtraditions; and those involving arrangements of a more or less temporary nature.

Examples of treaties are an agreement on tax, extradition, alliance. Examples ofexecutive agreements are agreements relating to postal conventions, tariff rates,copyright, most-favored nation clause.

Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 {1961}

IFACTS: Respondent Eastern was the consignee of several shipment of onion and garlic which arrived at theport of Manila from 8/5 to 9/7/54. Some shipments came from Japan and others from HK. Inasmuch as noneof the shipments had the certificate required by CB Circulars Nos. 44 and 45 for the release thereof, the goodsthus imported were seized and subjected to forfeiture proceedings for alleged violations of Sec. 1363 (f) ofthe Rev. Adm. Code, in relation to the said circulars. said goods were then declared forfeited in favor of thegovt by.the Commissioner of Customs-- the goods having been, in the meantime, released to the consigneeson surety bonds. On review, the Court of Tax Appeals reversed the Commissioner of Customs and orderedthe aforementioned bonds to be cancelled and withdrawn. According to the erA, the seizure and forfeiture ofthe goods imported from Japan cannot be justified under EO 238, not only because the same seeks toimplement an Executive Agreement-- extending the effectivity of our Trade and Financial Agreements w/Japan-- which agreement, is of dubious validity xxx owing to the fact that our senate had not concurred inthe making of said Executive Agreement.

HELD: The concurrence of said House of Congress is required by the Constitution in the making of "treaties",which are, however, distinct and different from "executive agreements," which may be validly entered intow/o such concurrence.

[Thercourt went on to distinguish a treaty from an executive agreement.]

The agreement in question, being merely an executive agreement, there is no requirement of concurrence.



USAFFEVeterans Assn. v. Treasurer, 105 Phil 1030

FACTS:The central issue in this case concerns the validity of the Romulo-SnyderAgreement (1950) wherebythe Philippine Government undertook to return to the USGovernment in ten annual installments, a total of$35 M dollars advanced by the USto, but unexpended by, the National Defense Forcesof the Philippines.TheUSA~FEVeterans contended that the money delivered by the USwere straight payments for military servicesand that therefore there was nothing to return to the US and nothing to consider as a loan. They alsocontended that the Romulo-SynderAgreement was void for lack of authority of the officers who concluded thesame.

HELD: The funds involved have been consistently regarded as funds advanced and to be subsequentlyaccounted for. Such arrangement therefore includes the obligation to return the unexpended amounts.

In this case, President Quirino approved the negotiations. He had power to contract loans under RA 213amending RA 16. As to the contention that the agreement lacks ratification by the Senate, it was held thatthe yearly appropriations by Congressof funds as compliance with the agreement constituted ratification. Buteven if there was no ratification, the agreement would still be valid. The agreement is not a "treaty" as theterm is used in the Constitution. The agreement was never submitted to the Senate for concurrence. It mustbe nQted that a treaty is not the only form that an international agreement may assume. For the grant oftreaty making power to the Executive and the Senate does not exhaust the power of the govt. overinternational relations. Consequently, executive agreements may be entered into with other states and areeffective even without the concurrence of the Senate. From the point of view of international law, there is nodifference between treaties and executive agreements in their binding effect upon states concerned as long asthe hegotiating functionaries have remained within their powers. The distinction between an executiveagreement and a treaty is purely a constitutional one and has no international legal significance.

In the caseof Altman vsUs, it was held that an international compact negotiated between the representativesof two sovereign nations and made in the name and or behalf of the contracting parties and dealing withimportant commercial relations between the two countries, is a treaty internationally although as an executiveagreement, it is not technically a treaty requiring the advice and consent of the Senate.

Nature of Executive Agreements: There are 2 classes : (1) agreements made purely as executive actsaffecting external relations and independent of or without legislative authorization, which may be termed aspresidential agreements, and (2) agreements entered into in pursuanceof acts of Congress,or Congressional-ExecutiveAgreements. The Romulo-SnyderAgreement may fall under any of these two classes, for preciselyon Sept. 18, 1946, Congressspecifically authorized the President to obtain such indebtedness wi the Govt ofthe US, its agencies or instrumentalities. Even assuming, arguendo, that there was no legislativeauthorization, it is hereby maintained that the Romulo-SnyderAgreement was legally and validly entered intoto conform to the second category. This 2nd category usually includes money agreements relating to thesettlement of pecuniary claims of citizens.

ICIRv. Gotamco, 148 SCRA 36 (1987)

FACTS: The World Health Organization (WHO) is an international organization which has a regional office inManila. It enjoys privileges and immunities which are defined in the Host Agreement entered into betweenthe Philippines and the said organization. One of the provisions is that WHO shall be exempt from all directand indirect taxes. When it decided to construct a building to house its own offices, it entered into a furtheragreement with the govt. exempting it from paying duties on any importation of materials and fixturesrequired for the construction. WHO informed the bidders that it was exempt from the payment of all fees,licenses and taxes and that their bids should not include such items. However, the CIR demanded from itscontractor, Gotamco, the payment of 3% contractor's tax. The CIR questions the entitlement of the WHO totax exemption, contending that the Host Agreement is null and void, not having been ratified by the PhilippineSenate.

HELD: While treaties are required to be ratified by the Senate, less formal types of international agreementsmay be entered into by the Chief Executive and become binding without the concurrence of the legislativebody. The Host Agreement comeswithin the latter category. It is a valid and binding international agreementeven without the concurrence of the PhilippineSenate.

I

BAYAN v. Exec. sec. zamora, 342 SeRA 449 (2000)

ISSUE: Which provision of the Constitution applies with regard to the exercise by the Senate of itsconstitutional power to concur with the Visiting ForcesAgreement (VFA)?



HELD: The 1987 Philippine contains two provisions requiring the concurrence of the Senate on treaties orinternational agreements.

Section 21, Article VII x x x reads:

"No treaty or international agreement shall be valid and effective unless concurred in by atleast two-thirds of all the Membersof the Senate:'

Section 2S,Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines andthe United States of America concerning Military Bases, foreign military bases, troops, orfacilities shall not be allowed in the Philippinesexcept under a treaty duly concurred in by theSenate and, when the Congress so requires, ratified by a majority of the votes cast by thepeople in a national referendum held for that purpose, and recognized as a treaty by theother contracting State."

Section 21, Article VII deals with treaties or international agreement? in general, in which case, theconcurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subjecttreaty, or international agreement, valid and binding on the part of the Philippines. This provision lays downthe general rule on treaties or international agreements and applies to any form of treaty with a wide varietyof subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. Alltrea~es or international agreements entered into by the Philippines, regardlessof subject matter, coverage, orparticular designation or appellation, requires the concurrence of the Senate to be vali~ and effective.

In contrast, Section 2S, Article XVIII is a special provision that applies to treaties which involve the presence.of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of theSenate is only one of the requisites to render compliance with the constitutional requirements and to considerthe agreement binding on the Philippines. Section 2S, Article XVIII further requires that "foreign militarybases, troops, or facilities" may be allowed in the Philippinesonly by virtue of a treaty duly concurred in by theSenate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required byCongress,and recognizedas such by the other contracting State.

It is our considered view that both constitutional provisions, far from contradicting each other, actually sharesome common ground. These constitutional provisions both embody phrases in the negative and thus, aredeemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x xx," and Section 2S contains the phrase "shall not be allowed:' Additionally, in both instances, the concurrenceof the Senate is indispensable to render the treaty or international agreement valid and effective.

To our mind, the fact that the President referred the VFAto the Senate under Section 21, Article VII, and thatthe Senate extended its concurrence under the same provision, is immaterial. For in either case, whetherunder Section 21, Article VII or Section 2S, Article XVIII, the fundamental law is crystalline that theconcurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and personnelvisiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and furtherdefines the rights of the United States and the Philippine government in the matter of criminal jurisdiction,movement of vesselsand aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, section 2S, Article XVIII, which specifically deals with treaties involving foreign military bases,troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, theprovisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose ofdetermining the number of votes required to obtain the valid concurrence of the Senatex x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a generalone. Lex specialis derogat general;'

(b) Deportation of undesirable aliens

In Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1959), the SC declared that while theDeportation Board has no power to issue a warrant of arrest issued upon the filing offormal charges against certain alien for the purpose of taking him in custody to answerthose charges, it has the power delegated by the President, to issue a warrant to carryout a final order based on a finding of guilt.

Handout No. 6 - Executive DepartmentConstitutional Law 1- Atty. Rene Col/onto, Jr

1" Semester, SY 2012-2013, P.U.P. Col/ege of LawPage 64 of 73

In Go Tek v. Deportation Board, 79SeRA 17 (1976),the SC upheld the President's power toorder the deportation of an alien under Sec. 69 of the Revised Administrative Code. Heneed not wait for the pending case to end in conviction. He may, even during thepentJency of the case, order the deportation if he thinks he is undesirable to nationalinterest. This decision to deport, said the Court, is an act of State.

Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1963)

FACTS: On 5/12/52, Special Prosecutor Galang charged petitioners before the Deportation Board with havingpurchased dollars in the total sum of $130,000, without having the necessary license from the CB, and ofhaving clandestinely remitted the same to HK; and petitioners with having attempted to bribe officers of thePhilippine and US Governments in order to evade prosecution for said unauthorized purchase of US dollars.Following the filing of said deportation charges, a warrant for the arrest of said aliens was issued by thepresiding officers of the Deportation Board.

Petitioners contest the power of the President to deport aliens and, consequently, the delegation to theDeportation Board of the ancillary power to investigate, on the ground that such power is vested in theLegislature. It is claimed that for the power to deport aliens be exercised, there must be a legislationauthorizing the same.

HELp: Under CA613, the Commissionerof Immigration was empowered to effect the arrest and expulsion ofan alien, after previous determination by the Board of the existence of ground or grounds therefore. With theenactment of this law, however, the legislature did not intend to delimit or concentrate the exercise of thepower to deport on the Immigration Commissioneralone. While it may really be contended that Sec. 52 of CA613 did not expressly confer on the President the authority to deport undesirable aliens, but merely lays downthe procedure to be observed should there be deportation proceedings, the fact that such a procedure wasprovided for before the Presidentcan deport an alien-- which provision was expressly declared exempted fromthe repealing effect of Immigration Act of 1940-- is a clear indication of the recognition, and inferentially aratification, by the legislature of the existence of such power in the Executive.

Under the present and existing laws, therefore, deportation of an undesirable alien may be effected in 2 ways:(1) by order of the President, after due investigation, pursuant to. Sec. 69 of RAC, and (2) by theCommissionerof Immigration, upon recommendation of the Bd. of Commissioners, under Sec. 37 of CA 613.

President's power of investigation may be delegated to the Deportation Board -- The President's power ,ofinvestigation may be delegated. This is clear from a reading of Sec. 69 of the RACwhich provides for "a priorinvestigation, conducted by said Executive or his authorized agent xxx the Deportation Board has beenconducting the investigation as the authorized agent of the Pres.xxx

J

PoWer to arrest aliens. -- Sec. 69 of the RACdoes not provide for the exercise of the power to arrest. Thecontention xxx that the arrest of a foreigner is necessaryto carry into effect the power of deportation is validonly when there is already an order of deportation. To carry out the order of deportation, the Presidentobviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is notindispensablethat the alien be arrested.

Power to order arrest of alien may not be delegated to Deportation Board by President. -- Conceding withoutdeciding that the President can personally order the arrest of alien, yet such power cannot be delegated byhim to the Deportation Board. The exercise of the power to order the arrest of an individual demands theexercise of discretion by the one issuing the same, to determine whether under specific circumstances, thecurtailment of the liberty of such person is warranted. xxx And authorities are to the effect that whileministerial duties may be delegated, official functions requiring the exercised of discretion and judgement may~bem~.~. .

Go Tek v. Deportation Board, 79 SCRA 17 (1977)

FACTS: Petitioner was arrested for possessionof fake dollars and prosecuted under Art. 168 RPC. At thesam~ time, deportation proceedings were brought against him. He filed a petition for prohibition against theDeportation Board, contending that he could only be deported on grounds enumerated in Sec. 37 (3) of theImmigration Law (of which possession of fake dollars is not) and only after conviction. The CFI-Manilasustained his contention.

HELD: The President's power to deport aliens derives from Sec. 69 of the Rev. Adm. Code w/c does notspecify the grounds for deportation of aliens but only provides that it be ordered after due investigation. The


1sf Semester, SY 2012-2013, P.V.P. College of LawPage 65 of 73

intention is to give the Chief Executive full discretion to determine whether an alien's residence in the countryis so undesirable as to affect or inure the security, welfare, or interest of the State. The Chief Executive is thesole and exclusive judge of the existence of facts w/c warrant the deportation of aliens as disclosed in aninvestigation.

I(12) Power over legislation

(a) Message to Congress

Art. VII, Sec. 23. The President shall address the Congress at theopening of its regular session. He may also appear before it at anyother time.

Every 4th Monday of July, the President delivers the State of the Nation Address(SONA), which contains his proposals for legislation. Through this speech, he caninfluence the course of legislation that Congress can take d~ring the regular session.

(b) Prepare and submit the budget

Art. VII, Sec. 22. The President shall submit to Congress withinthirty days from the opening of every regular session, as the basisof the general appropriations bill, a budget of expenditures andsources of financing, including receipts from existing and proposedrevenue measures.

The budget is the plan indicating the (a) expenditures of the government, (b) sourcesof financing, and (c) receipts from revenue-raising measures. This budget is the upperlimit of the appropriations bill to be passed by Congress. Through the budget,therefore, the President reveals the priorities of the government.

(c) Veto power

Art. VI, Sec. 27 (1) Every bill passed by the Cong'ressshall, before itbecomes a law, be presented to the President. If he approves thesame, he shall sign it; otherwise, he shall veto it and return thesame with his objection to the House where it originated, whichshall enter the objections at large in its Journal and proceed toreconsider it. If, after such reconsideration, two-thirds of all theMembers of such House shall agree to pass the bill, it shall be sent,together with the objections, to the other House by which it shalllikewise be reconsidered, and if approved by two-thirds of all theMembers of that House, it shall become a law. In such cases, thevotes of each House shall be determined by yeas or nays, and thenames of the Members voting for or against shall be entered in itsJournal. The President shall communicate his veto of any bill tothe House where it originated within thirty days after the date ofreceipt thereof, otherwise, it shall become a law as if he hadsigned it.

(2) The President shall have the power to veto any particular itemor items in an appropriation, revenue, or tariff bill, but the ,vetoshall not affect the item or items to which he does not object.

!As a general rule, all bills must be approved by the President before they become law,except when (i) the veto of the President is overridden by 2/3 vote, and (ii) the billpassed is the special law to elect the President and Vice-President. This gives thePresident an actual hand in legislation. However, his course of action is only to approveit or veto it as a whole. (See Legislative Power of Congress)


1st Semester, SY 2012-2013, P.U.P. College of Law. Page 66 of 73

(d) Emergency Power

Art. VI, Sec. 23. xxx(2) In times of war or other national emergency, the Congress,may, by law, authorize the President, for a limited period, andsubject to such restrictions as it may prescribe, to exercise powersnecessary and proper to carry out a declared national policy.Unless sooner withdrawn by resolution of the Congress, suchpowers shall cease upon the next adjournment thereof.

(See Previous Notes)

(e) Fixing of tariff rates

Art. VI, Sec. 28. xxx .The Congress may, by law, authorize the President to fix withinspecified limits, and subject to such limitations and restrictions asit may impose, tariff rates, import and export quotas, tonnage andwharfage dues, and other duties or imposts within the frameworkof the national development program of the Government.

The reason for the delegation is the highly technical nature of international commerce,and the need to constantly and with relative ease adapt the rates to prevailingcommercial standards.

(13) Immunity from suit

The SC has affirmed time and again the doctrine of the President's immunity from suit.In a resolution in Carillo v. Marcos, (April 1981) and in the later case of In re Bermudez (October1986), the Court said that it is "elementary that incumbent presidents are immune fromsuit or from being brought to court during the period of their incumbency and tenure."

Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Bane [Puno]}

DiSQUSSour legal history on executive immunity.

HELD: The DOCTRINEOF EXECunVE IMMUNIlY in this jurisdiction emerged as a case law. In the 1910case of Forbes, etc. v. Chuoco Tiaco and Crossfield, the respondent Tiaco, a Chinese citizen, sued petitionerW. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief ofPolice and Chief of the Secret service of the City of Manila, respectively, for damages for allegedly conspiringto deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

"The principle of nonliability x x x does not mean that the judiciary has no authority to touchthe acts of the Governor-General; that he may, under cover of his office, do what he will,unimpeded and unrestrained. Such a construction would mean that tyranny, under the guiseof the execution of the law, could walk defiantly abroad, destroying rights of person and ofproperty, wholly free. from interference of courts or legislatures. This does not mean, either,that a person injured by the executive authority by an act unjustifiable under the law has noremedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not bepersonally mulcted in civil damages for the consequences of an act executed in theperformance of his official duties. The judiciary has full power to, and will, when the matter isproperly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who hasbeen deprived his liberty or his property by such act. This remedy is assured to every person,however humble or of whatever country, when his personal or property rights have beeninvaded, even by the highest authority of the state. The thing which the judiciary can not dois mulct the Governor-General personally in damages which result from the performance of his



official duty, any more than it can a member of the Philippine Commission or the PhilippineAssembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personallysued at all in relation to acts which he claims to perform as such official. On the contrary, itclearly appears from the discussion heretofore had, particularly that portion which touchedthe liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power andauthority that he can not be said to have exercised discretion in determining whether or nothe had the right to act. What is held here is that he will be protected from personal liabilityfor damages not only when he acts within his authority, but also when he is without authority,provided he actually used discretion and judgment, that is, the judicial faculty, in determiningwhether he had authority to act or not. In other words, he is entitled to protection indetermining the question of his authority. If he decide wrongly, he is still protected providedthe question of his authority was one over which two men, reasonably qualified for thatposition, might honestly differ; but he is not protected if the lack of authority to act is so plainthat two such men could not honestly differ over its determination. In such case, he acts, notas Governor-General but as a private individual, and, as such, must answer for theconsequencesof his act."

Mr. Justice Johnson underscored the consequencesif the Chief Executivewas not granted immunity from suit,viz: "x x x. Action upon important matters of state delayed; the time and substance of the chief executivespent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the Stateand for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to theintegrity of government itself." .

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Thencame the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoevershall lie for official acts done by him or by others pursuant to his specific orders during histenure.

The immunities herein provided shall apply to the incumbent President referred to in ArticleXVII of this Constitution."

In his second Vicente G. Sinco Professorial Chair Lecture entitled, "Presidential Immunity And All The King'sMen: The Law Of Privilege As A Defense To Actions For Damages," (62 Phil. L.J. 113 [1987]) petitioner'slearried counsel, former Dean of the UP.College of Law, Atty. Pacifico Agabin, brightened the modificationseffected by this constitutional amendment on the existing law on executive privilege. To quote hisdisquisition:

"In the Philippines though, we sought to do the American one better by enlarging and fortifying theabsolute immunity concept. First, we extended it to shield the President not only from civil claims butalso from criminal casesand other claims. second, we enlarged its scope so that it would cover evenacts of the President outside the scope of official duties. And third, we broadened its coverage so asto include not only the President but also other persons, be they government officials or privateindividuals, who acted upon orders of the President. It can be said that at that point most of us weresuffering from AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasang Pambansa sought the repeal of tlJis Marcosian concept of executiveimmunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary ofFinance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcosviolated the principle that a public office is a public trust. He denounced the immunity as a return to theanachronism "the king can do no wrong." The effort failed.

IThe .1973 Constitution ceased to exist when President Marcos was ousted from office by the People Powerrevolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executiveimmunity provision of the 1973 Constitution.



David v. Macapagal-Arroyo, GR No. 171396, May 3,2006

HELD: Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine thatthe President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case,and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high officeof the President, the Head of State, if he can be dragged into court litigations while serving as such.Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enablehim to fully attend to the performance of his official duties and functions. Unlike the legislative and judicialbranch, only one constitutes the executive branch and anything which impairs his usefulness in the dischargeof the many great and important duties imposed upon him by the Constitution necessarily impairs theoperation of the Government. However, this does not mean that the President is not accountable to anyone.Like any other official, he remains accountable to the people but he may be removed from office only in themode provided by law and that is by impeachment.

A related doctrine is the President's "immunity from liability". In the US case of Nixon v.Fitzgerald, an employee of the Air Force was laid off due to an adverse decision of aSen~te Committee made upon the insistence of Pre's. Nix-on, but which decision waslater found to be baseless, the SC ruled that the President, whether in office or not, isabsolutely immune from liability for his official acts. The Court gave three reasons forsuch immunitv:

1. 1ihesingular importance of the Presidency and his high visibility.

2. The distraction that suits would bring to such an important official laden withenormous responsibility.

3. The consequence that the President might hesitate at the moment of greatest perilto the nation if he knows that he would be held liable later on.

In Harlow v. Fitzgerald, however, the SC ruled that Cabinet members and senior aidessued for the same act as in Nixon v Fitzgerald only enjoy "qualified immunity." Thisimmunity is less than absolute, and yet it would enable them to defeat unsubstantiatedclaims without resorting to trial. They are allowed to show i11a preliminary manner thatthe claim is unsubstantial.

Q: Does the President's immunity from suit extend to his alter egos?A: f'J0'Carillo v. Marcos, Res. of April 4, 1981

HELD: The President as such cannot be sued, enjoying as he does immunity from suit, but the validity of hisacts can be tested by an action against the other executive officials or such independent constitutionalagencies as the Commissionon Electionsand the COmmissionon Audit.

In re: Saturnino V. Bermudez, 145 SCRA 160 (1986)

FACTS: In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the firstpar. of Sec. 5 of Art. VIII of the proposed 1986COnsti.,wlc provides:

"Sec. 5. The six-year term of the incumbent President and Vice-President elected in theFebruary 7, 1986 election, is for purposes of synchronization of elections, hereby extended tonoon of June 30, 1992.

Claiming that the said provision is not clear as to whom it refers, he then asks the Court "to declare andansWer the question of the construction and definiteness as to who, among the present incumbent Pres.Aquino and Vice-Pres. Laurel and elected Pres. Marcos and Vice-Pres.Tolentino being referred to under thesaid provision.

HELD: This petition is dismissedoutright for lack of jurisdiction and lack of cause of action.

Prescinding from the petitioner's lack of capacity ,to sue, it is elementary that this COurt assumes nojurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit



against the incumbent Pres. Aquino and it is equally elementary that incumbent Presidentsare immune fromsuit or from being brought to court during the period of their incumbency and tenure.

Soliyen v. Makasiar; Beltran v. Makasiar, 167 SCRA393 (1988)

FACTS: This is the libel case involving Beltran's allegations that President Aquino was hiding under her bed.One of the issueswas whether the President may initiate criminal proceedings against the petitioners throughthe filing of a complaint-affidavit. According to Beltran, the reasons which necessitate presidential immunityfrom suit impose a correlative disability to file suit. He contended that if criminal proceedings ensue by virtueof the President's filing of her complaint-affidavit, she may subsequently have to be a witness for theprosecution, bringing her under the TC's jurisdiction. This would be an indirect way of defeating her privilegeof immunity from suit, since by testifying on the witness stand, she would be exposing herself to possiblecontempt of court or perjury. .

HELD: The rationale for the grant to the President of the privilege of immunity from suit is to assure theexercise of Presidential duties and functions free from any hindrance or distraction, considering that being theChief Executive is a job that, aside from requiring all of the office-holder's time, also demands undividedattention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invokedonly by the holder of the office; not by any other person in the President's behalf. Thus, an accused in acrim!'nal case where the President is a complainant cannot raise the presidential privilege as a defense toprevent the case from proceeding against the accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. ThePresident may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choiceof whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision thatcannot be assumed and imposed by another person.

Q: Does the President's immunity from suit extend even beyond his term?A: Yes. So long as the act was done during his term.

Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, En Bane [Puno]

Can former President Estrada still be prosecuted criminally considering that he was not convicted inthe impeachment proceedings against him?

HELD: We reject his argument that he cannot be prosecuted for the reason that he must first be convicted inthe impeachment proceedings. The impeachment trial of petitioner Estradawas aborted by the walkout of theprosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the senatepassed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." Since theImpeachment Court is now functus officio, it is untenable for petitioner to demand that he should first beimpeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual baragainst his prosecution. Such a submission has nothing to commend itself for it will place him in a bettersituation than a non-sitting President who has not been subjected to impeachment proceedings and yet canbe the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make itclear that when impeachment proceedings have become moot due to the resignation of the President, theproper criminal and civil casesmay already be filed against him x x x.

This is in accord with our ruling in In Re: saturnino Bermudez that "incumbent Presidents are immune fromsuit or from being brought to court during the period of their incumbency and tenure" but not beyond.Considering the peculiar circumstance that the impeachment process against the petitioner has been abortedand thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to hiscriminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings.

(14/) Executive Privilege

In the case of US v. Nixon, President Nixon refused to release information concerning theWatergate scandal, claiming what he called "executive privilege." The US SC held hisrefusal invalid, declaring that neither the doctrine of separation of powers, nor the needfor confidentiality of high-level communications, without more, can sustain an absolute,unqualified Presidential privilege of immunity from judicial process under allcircumstances. The President's need for complete candor and objectivity from advisers



calls for great deference from the courts. However, when the privilege depends solelyon the broad, undifferentiated claim of public interest in the confidentiality of suchconversations, a confrontation with other values arise. Absent a claim of need toprotect military, diplomatic or sensitive national security secrets, it is difficult to acceptthe argument that even the very important interest in confidentiality of Presidentialcommunications is significantly diminished by production of such material for inspectionwith all the protection that the court will be obliged to provide.

2. VICE PRESIDENT

A. QUALIFICATIONS, ELECTION, TERMAND OATH

Art. VII, Sec. 3. There shall be a Vice-President who shall have thesame qualifications and term of office and be elected with and inthe same manner as the President. He may be removed fromoffice in the same manner as the President.

The Vice-President may be appointed as a Member of the Cabinet.Such appointment requires no confirmation.

Id., Sec. 4. The President and the Vice-President shall be electedby direct vote of the people for a term of six years which shallbegin at noon on the thirtieth day of June next following the day ofthe election and shall end at noon of the same date six yearsthereafter. X x x No person who has succeeded as President andhas served as such for more than four years shall be qualified forelection to the same office at any time.

No Vice-President shall serve for more than two successive terms.Voluntary renunciation of the office for any length of time shall notbe considered as an interruption in the continuity of the service forthe full term for which he was elected.

Unless otherwise provided by law, the regular election forPresident and Vice-President shall be held on the second Mondayof May.

The returns of every election for President and Vice- President,duly certified by the board of canvassers of each provinces or city,shall be transmitted to the Congress, directed to the President ofthe Senate. Upon receipt of the certificates of canvass, thePresident of the Senate shall, not later than thirty days after theday of election (w/c is the 2nd Tuesday of June), open all thecertificates in the presence of the Senate and House ofRepresentatives in joint public session, and the Congress, upondetermination of the authenticity and due execution thereof in themanner provided by law, canvass (i.e., tally. the certificates ofcanvass) the votes.

The persons having the highest number of votes shall be pro-claimed elected, but in case two or more shall have an equal andhighest number of votes (tie), one of them shall forth with bechosen by the vote of a majority of all the members of Congress,voting separately.

The Congress shall promulgate its rules for the canvassing of thecertificates.


1st Semester, SY:f012-2013, P.U.P. College o/LawPage 71 0/73

The Supreme Court, sitting en bane, shall be the sole judge of allcontests relating to the election, returns, and qualifications of thePresident, or Vice-President, and may promulgate its rules for thepurpose.

Id., Sec. 5. Before they enter on the execution of their office, thePresident, the Vice-President or the Acting President shall take thefollowing oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully andconscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserveand defend its Constitution, execute its laws, do justice toevery man, and consecrate to myself to the service of theNation. So help me God." (In case of 'affirmation, lastsentence will be omitted.)

B. PRIVILEGE AND SALARY

Art. VII, Sec. 6. The President shall have an official residence. Thesalaries of the President and Vice-President shall be determined bylaw and shall not be decreased during their tenure. No increase insaid compensation shall take effect until after the expiration of theterm of the incumbent during which such increased was approved.They shall not received during their tenure any other emolumentfrom the Government or any other source.

C. PROHIBITIONS

Art. VII, Sec. 13. The President, Vice-President, the Members of theCabinet, and their deputies or assistants' shall not, unlessotherwise provided in this Constitution, hold any other office oremployment during their tenure. They shall not, during saidtenure, directly or indirectly practice any other profession,participate in any business, or be financially interested in anycontract with, or in any franchise, or special privilege granted bythe Government or any subdivision, agency or instrumentalitythereof, including government-owned or controlled corporations ortheir subsidiaries. They shall strictly avoid conflict of interest inthe conduct of their office. X x x

D. SUCCESSION

Art. VI, Sec. 9. Whenever there is a vacancy in the Office of theVice- President during the term for which he was elected, thePresident shall nominate a Vice-President from among themembers of the Senate and the House of Representatives, whoshall assume office upon confirmation by a majority vote of all themembers of both houses, voting separately.

Note that in case the vacancy occurs in both the offices of President and Vice-President,there is no Acting Vice-President spoken of. The reason is that the Vice-President doesnot have real functions when the President is around.

When a vacancy occurs in both offices, the Vice-President is elected in a specialelection. If the vacancy occurs only in the Vice-Presidency, the successor is not electedanymore, but merely chosen from the Congress.


P'Semester, SY 2012-2013, P.U.P. College o/Law.Page 720[73

E. REMOVAL

I Art. XI, Sec.2. The President, the Vice-President, the Members ofthe Supreme Court, the Members of the ConstitutionalCommissions, and the Ombudsman may be removed from office,on impeachment for, and conviction of, culpable violation of theConstitution, treason, bribery, graft and corruption, other highcrimes, or betrayal or public trust. All other public officers andemployees may be removed from office as provided by law, but notby impeachment.

Art. XI, Sec. 3. (1) The House of Representatives shall have theexclusive power to initiate all cases of impeach,:",ent.

(2) A verified complaint for impeachment may be filed by anyMember of the House of Representatives or by any citizen uponresolution of endorsement by any Member thereof, which shall beincluded in the Order of Business within ten session days, andreferred to the proper Committee within three session daysthereafter. The Committee, after hearing, and by a majority voteof all its Members, shall submit its report to the House within sixtysession days from such referral, together with the correspondingresolution. The resolution shall be calendared for consideration bythe House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the Houseshall be necessary either to affirm a favorable resolution with theArticles of Impeachment of the Committee, or override its contraryresolution. The vote of each Member shall be rElcorded.

(4) In case the verified complaint or resolution of impeachment isfiled by at least one-third of all the Members of the House, thesame shall constitute the Articles of Impeachment, and trial by theSenate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against thesame official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide allcases of impeachment. When sitting for that purpose, theSenators shall be on oath or affirmation. When the President ofthe Philippines is on trial, the Chief Justice of the Supreme Courtshall preside, but shall not vote. No person shall be convictedwithout the concurrence of two-thirds of all the Members of theSenate.

(7) Judgment in cases of impeachment shall not extend furtherthan removal from office and disqualification to hold any officeunder the Republic of the Philippines, but the party convicted shallnevertheless be liable and subject to prosecution, trial, andpunishment according to law.

F. FUNCTIONS

(1) Right of succession

Art. VII, Sec. 8. In case of death, permanent disability, removalfrom office, or resignation of the President, the Vice-President

Handout No, 6 - Executive DepartmentConstitutional Law 1- Atty. Rene Callanta, Jr


shall become the President to serve the unexpired term. In case ofdeath, permanent disability, removal from office, or resignation of

1 , both the President and Vice-President, the President of the Senateor, in case of his inability, the Speaker of the House ofRepresentatives, shall then act as President until the President orVice-President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President incase of death, permanent disability, or resignation of the ActingPresident. He shall serve until the President or the Vice-Presidentshall have been elected and qualified, and be subject to the samerestrictions of powers and disqualifications as the ActingPresident.

Art. VII, Sec.11. Whenever the President transmits to the Presidentof the Senate and the Speaker of the House of Representatives hiswritten declaration that he is unable to discharge the powers andduties of his office, and until he transmits to them a writtendeclaration to the contrary, such powers and duties shall bedischarged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit tothe President of the Senate and to the Speaker of the House ofRepresentatives their written declaration that the President isunable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of theoffice as Acting President.

"

Thereafter, when the President transmits to the President of the,Senate and to the Speaker of the House of Representatives hiswritten declaration that no inability exists, he shall reassume thepowers and duties of his office. Meanwhile, should a majority ofall the Members of the Cabinet transmit within five days to thePresident of the Senate and to the Speaker of the House ofRepresentatives their written declaration that the President isunable to discharge the powers and duties of his office, theCongress shall decide the issue. For that purpose, the Congressshall convene, if it is not in session, within forty-eight hours, inaccordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last writtendeclaration, or if not in session, within twelve days after it isrequired to assemble, determines by a two-thirds vote of bothHouses, voting separately, that the President is unable todischarge the powers and duties of his office,' the Vice-Presidentshall act as President; otherwise, the President shall continueexercising the powers and duties of his office.

(2) Membership in Cabinet

Art. VII, Sec.3. xxxThe Vice-President may be appointed as member of the Cabinet.Such appointment requires no co'nfirmation.

Documents

Constitutional Law 1 (Hand Out 6)