Chapter 11 But these views have been reconsidered in favor of a

stricter interpretation of executive power. In Lacson v.

Roque and Mondano v. Silvosa, for example, our
POWERS OF THE PRESIDENT Supreme Court held that the President’s power of
MENTION HAS ALREADY been made of the general supervision over local governments could be
exercised by him only “as may be provided by law” in
profound influence exerted by the President as head of
accordance with the constitutional limitation.
State and chief executive of the Republic of the
Philippines. This influence derives from the vast powers In the famous Steel Seizure Case, President Truman’s
conferred on him that enable him to assume the takeover of the steel mills to continue their operations
leadership in the conduct of public and governmental while the steel workers were on strike was declared
affairs. illegal in the absence of a specific constitutional or
statutory authority. The argument offered was that the
clause vesting in the President the executive power
This leadership is displayed by him not only in the “constitutes a grant of all executive power of which the
enforcement of laws but also in their enactment, as well Government is capable.” The U.S. Supreme Court, by a
as in the conduct of foreign affairs, the command of the vote of 6 to 3, did not agree. “If that be true,” Justice
Black wryly commented, “it is difficult to see why our
armed forces, the administration of the government and
forefathers bothered to add several specific items,
even the crystallization of public opinion on vital issues. including some trifling ones ... I cannot accept the view
that this clause is a grant in bulk of all conceivable
Does the President enjoy the totality of executive executive power but regard it as an allocation to the
power? Is he authorized to exercise any power so long presidential office of the generic powers thereafter
as it is by nature executive? In other words, is every stated.”
power relating to the enforcement and administration of
It must be noted, however, that in Marcos u.
laws to be regarded as belonging to the President by Manglapus, the Supreme Court, declared through
virtue of his office? Justice Irene R. Cortes:

“x x x we hold the view that although the 1987

The original view of our Supreme Court on these
Constitution imposes limitations on the exercise of
questions as they applied to the President of the Philip specific powers of the President, it maintains intact
pines under the 1935 Constitution favored his complete what is traditionally considered as within the scope
assumption of executive power. The Supreme Court of ‘executive power.’ Corollarily, the powers of
declared in Villena v. Secretary of the Interior1 that “the the President cannot be said to be limited only to
the specific powers enumerated in the
President of the Philippines is the Executive of the Constitution. In other words, executive power is
Government of the Philippines, and no other” and in more than the sum of specific powers so
Planas v. Gil that “all executive authority is thus vested enumerated.”
in him.” These pronouncements were in keeping with
the rule announced in Myers v. United States,3 where This cannot be considered the last word on the matter,
though, considering the strong dissents registered in this
Chief Justice Taft held that “the words of Sec. 2
8-7 decision.
following the general grant of executive power under
Sec. 1 were either an enumeration and emphasis of In fact, in the subsequent case of Laurel v. Garcia, the
specific functions of the Executive, not all inclusive, or Supreme Court prohibited the sale of the properties of
were limitations upon the general grant of executive the Philippines at Roppongi, Japan, on the ground inter
power.” The U.S. Supreme Court cited with approval alia that the President of the Philippines had no specific
statutory authority to sell them. This time the vote was
Alexander Hamilton’s opinion that “the enumeration (of
9-6.
specific executive powers) ought therefore to be
considered as in tended merely to specify the principal It is significant though that, in the later case of
articles implied in the definition of power, leaving the Philippine Coconut Producers Federation, Inc. v.
rest to flow from the general grant of that power.” Republic, the Supreme Court declared that it is the
executive branch, “either pursuant to the residual power
of the President” or by force of his enumerated powers
under the laws, that has control over all matters
pertaining to the disposition of government property structure of the Office of the President, including the
including sequestered assets under the administration of modification of functions of such executive agencies as
the Presidential Commission on Good Government. the exigencies of the service may require.”
“Surely,” said the Supreme Court, “such control is
neither legislative nor judicial.” In Pichay v. Office of the Deputy Executive Secretary
for Legal Affairs Investigative and Adjudication
In Ople v. Torres, the Supreme Court declared “void, as Division, the Court upheld the President’s abolition of
a usurpation of legislative power,” Administrative Order the Presidential Anti-Graft Commission (PAGC) and
No. 308, which provided for the adoption of a national his transfer of its functions to the Office of the Deputy
identification system “even in the absence of an enabling Executive Secretary For Legal Affairs (ODESLA)
legislation.” under the Office of the President, stressing that the
President has continuing authority to reorganize the
It will be recalled that, in David v. Arroyo,“ the Court Executive Department under Section 31, Chapter 10,
pronounced that, although the President may call out the Book III of E.O. 292. “Clearly,” said the Court, “the
armed forces and declare a state of emergency, he may abolition of the PAGC and the transfer of its functions to
not, without a law authorizing him to do so, exercise a division specially created within the ODESLA is
emergency powers under Article XII, Section 17, which properly within the prerogative of the President under
authorizes the State, during a national emergency and his continuing ‘delegated legislative authority to
under reasonable terms prescribed by it, to temporarily reorganize’ his own office pursuant to E.O. 292.”20
take over or direct the operation of any privately owned
public utility or business affected with public interest. To stress that the President’s authority to reorganize his
That authorization was eventually conferred upon the office was subject to the strictures provided for under the
President when Republic Acts Nos. 3902, 7477 and 7582 law, the Court even explained the distinctions between
were passed by Congress. his basic authority to reorganize the Office of the
President Proper, and his general power to reorganize
It has likewise been ruled that the President may not the Office of the President. Thus —
amend by Executive Order the functions of the
Commission on Higher Education, as conferred upon it “However, the President’s power to reorganize the
by law, without prior legislative authority. Indeed, the Office of the President under Section 31 (2) and
provision in the Administrative Code on the so-called (3) of EO 292 should be distinguished from his
residual powers of the President declares that “unless power to reorganize the Office of the President
Congress provides otherwise, the President shall Proper. Under Section 31 (1) of EO 292, the
exercise such other powers and functions vested in the President can reorganize the Office of the
President which are provided for under the laws and President Proper by abolishing, consolidating or
which are not specifically enumerated above, or which merging units, or by transferring functions from
are not delegated by the President in accordance with one unit to another. In contrast, under Section 31
(2) and (3) of EO 292, the President’s power to
law.”
reorganize of ices outside the Office of the
President Proper but still within the Office of the
In Banda v. Ermita, the Supreme Court acknowledged
President is limited to merely transferring
that the President has the power to reorganize the offices functions or agencies from the Office of the
and agencies in the executive department in line with his President to Departments or Agencies, and vice
constitutionally granted power of control over executive versa.
offices and by virtue of a previous delegation of the
legislative power to reorganize executive offices under “The distinction between the allowable
existing statutes. organizational actions under Section 31(1) on the
one hand and Section 31 (2) and (3) on the other is
The Administrative Code of 1987 gives the President crucial not only as it affects employees' tenurial
continuing authority to reorganize and redefine the security but also insofar as it touches upon the
functions of the Office of the President. “Concomitant to validity of the reorganization, that is, whether the
such power to abolish, merge or consolidate offices in executive actions undertaken fall within the
the Office of the President Proper and to transfer limitations prescribed under E.O. 292 When the
functions/offices not only among the offices in the PAGC was created under E.O. 12, it was
Office of President Proper but also the rest of the Office composed of a Chairman and two (2)
of the President and the Executive Branch, the President Commissioners who held the ranks of Presidential
implicitly has the power to effect less radical or less Assistant II and I, respectively, and was placed
substantive changes to the functional and internal directly ‘under the Office of the President.’ On the
other hand, the ODESLA, to which the functions
 of the PAGC have now been transferred, is an It clarified, however, that the President is granted
office within the Office of the President Proper. Ordinance Powers under Chapter 2, Book III of
Since both of these offices belong to the Office of Executive Order No. 292 (Administrative Code of 1987)
the President Proper, the reorganization by way of and may issue any of the following:
abolishing the PAGC and transferring its functions
to the ODESLA is allowable under Section 31 (1) Executive Orders, which are acts of the President
of E.O. 292.” providing for rules of a general or permanent character
in implementation or execution of constitutional or
In Galicto v. Aquino, the Supreme Court, while statutory powers;
providing for the dismissal on technical grounds of the
petition assailing the validity of an Executive Order Administrative Orders, or acts of the President which
fixing the compensation and classification systems for relate to particular aspects of governmental operations
all government-owned or controlled corporations and in pursuance of his duties as administrative head,
government financial institutions, nevertheless stressed
that the issuance of a new law vesting said power in the Proclamations, which are acts of the President fixing a
President would mean that “the President can now reis date or declaring a status or condition of public
sue an EO containing these same provisions without any moment or interest, upon the existence of which the
legal constraints.” operation of a specific law or regulation is made to
depend, and which shall have the force of an executive
On the other hand, it must be mentioned that certain order;
powers have been acknowledged as pertaining to the
President despite the absence of express conferments Memorandum Orders, defined as acts of the President
upon him of the same. Thus, “that the authority of the on matters of administrative detail or of subordinate or
President to conduct peace negotiations with rebel temporary interest which only concern a particular
groups is not explicitly mentioned in the Constitution officer or office of the Government;
does not mean that she has no such authority. As Chief
Executive, the President has the general responsibility Memorandum Circulars, which refer to acts of the
to promote public peace, and as Commander-in-Chief, President on matters relating to internal administration,
she has the more specific duty to prevent and suppress which the President desires to bring to the attention of all
rebellion and lawless violence.”23 Moreover, it has also or some of the departments, agencies, bureaus or offices
been ruled that “the President's authority to declare a of the Government, for information or compliance; and
state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength General or Special Orders, which refer to acts and
from her Commander-in-Chief powers.” commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the
Likewise, in Quarto v. The Honorable Ombudsman Philippines. The Court stressed that “President Arroyo’s
Simeon Marcelo, it was pronounced that “while the ordinance power is limited to the foregoing issuances.
legislature is the source of the power to grant immunity, She cannot issue decrees similar to those issued by
the authority to implement is lodged elsewhere. The former President Marcos under PP 1081.”
authority to choose the individual to whom immunity
would be granted is a constituent part of the process and Following is a discussion of the specific powers vested
is essentially an executive function.” in the President by the Constitution.

The Appointing Power

Appointment may be defined as the selection, by the

It is clear, however, that the President does not have
authority vested with the power, of an individual who is
the authority to promulgate decrees. According to the to exercise the functions of a given office. It has
Supreme Court in David v. Arroyo, where it declared as
likewise been defined as the “act of designation by the
unconstitutional President Arroyo’s Proclamation 1017 appointing officer, body or board, to whom that power
which authorized her to issue decrees, “legislative power
has been delegated, of the individual who is to exercise
is peculiarly within the province of the Legislature” and the functions of a given office.” Although intrinsically
“neither Martial Law nor a state of rebellion nor a state
executive and therefore pertaining mainly to the
of emergency can justify President Arroyo’s exercise of President, the appointing power may be exercised by the
legislative power by issuing decrees.”
legislature and by the judiciary, as well as the
Constitutional Commissions, over their own respective appointments, unless he is otherwise specifically
personnel. prohibited by the Constitution or by the law, or
where an acting appointment is repugnant to the
An appointment may be made verbally but is usually nature of the office involved. The President’s
done in writing through what is called the commission. power to issue an acting appointment is
The commission is the written evidence of an particularly authorized by the Administrative Code
appointment. of 1987 (Executive Order No. 292). x x x.

The Constitution vests the appointing power in the “The purpose of an acting or temporary
appointment is to prevent a hiatus in the discharge
of official functions by authorizing a person to
President as follows:
discharge those functions pending the selection of
a permanent or another appointee. An acting
“Sec. 16. The President shall nominate and, with
appointee accepts the position on the condition that
the consent of the Commission on Appointments,
he shall surrender the office once he is called to do
appoint the heads of the executive departments,
so by the appointing authority. Therefore, his term
ambassadors, other public ministers and consuls,
of office is not fixed but endures at the pleasure of
or officers of the armed forces from the rank of
the appointing authority. His separation from the
colonel or naval captain, and other officers whose
service does not import removal but merely the
appointments are vested in him in this
expiration of his term — a mode of termination of
Constitution. He shall also appoint all other
official relations that falls outside the coverage of
officers of the Government whose appointments
the constitutional provision on security of tenure
are not otherwise provided for by law, and those
since no removal from office is involved, x x x.
whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment
“Generally, the purpose for staggering the term of
of other officers lower in rank in the President
office is to minimize the appointing authority’s
alone, in the courts, or in the heads of departments,
opportunity to appoint a majority of the members
agencies, commissions, or boards.
of a collegial body. It is also intended to ensure the
continuity of the body and its policies. A staggered
“The President shall have the power to make
term of office, however, is not a statutory
appointments during the recess of the Congress,
prohibition, direct or indirect, against the issuance
whether voluntary or compulsory, but such
of an acting or temporary appointment. It does not
appointments shall be effective only until
negate the authority to is sue acting or temporary
disapproved by the Commission on Appointments
appointments that the Administrative Code grants.
or until the next adjournment of the Congress.”
“Ramon P. Binamira v. Peter D. Garrucho, Jr.,
This provision has not done away with the distinction involving the Philippine Tourism Authority (PTA),
between permanent and temporary or acting is an example of how this Court has recognized the
appointments. Permanent appointments are those validity of temporary appointments in vacancies in
extended to persons possessing the requisite eligibility offices whose holders are appointed on staggered
and are thus protected by the constitutional provision on basis. Under Presidential Decree (P.D.) No. 189,
security of tenure. Temporary appointments, on the other (the charter of the PTA, as amended by P.D. No.
hand, which are given to persons without such 564 and P.D. No. 1400), the members of the
eligibility, are revocable at will and without the PTA’s governing body are all presidential
necessity of just cause or a valid investigation. They are appointees whose terms of office are also
ex tended upon the understanding that the appointing staggered. This notwithstanding, the Court
power has not yet decided on a permanent appointee and sustained the temporary character of the
that the temporary appointee may be replaced at any appointment extended by the President in favor of
time a final choice shall have been made by the the PTA General Manager, even if the law also
President. fixes his term of office at six years unless sooner
removed for cause. Interestingly, even a staggered
In General v. Urro, the Supreme Court explained further term of office does not ensure that at no instance
the nature of temporary appointments, and declared that will the appointing authority appoint all the
acting appointments may be made even to offices with members of a body whose members are appointed
on staggered basis, x x x.
staggered terms. Thus —
“Given the wide latitude of the President’s
“Generally, the power to appoint vested in the
appointing authority (and the strict construction
President includes the power to make temporary
against any limitation on or qualification of this
 power), the prohibition on the President from salary attached to the position. Without an appointment,
issuing an acting appointment must either be a designation does not entitle the officer to receive the
specific, or there must be a clear repugnancy salary of the position. The legal basis of an employee’s
between the nature of the office and the temporary right to claim the salary attached thereto is a duly issued
appointment. No such limitation on the President’s and approved appointment to the position, and not a
appointing power appears to be clearly deducible mere designation.
from the text of R.A. No. 6975 in the manner we
ruled in Nacionalista Party v. Bautista. In that case, Both the temporary appointment and the designation
we nullified the acting appointment issued by the are not subject to confirmation by the Commission on
President to fill the office of a Commissioner of
Appointments. Such confirmation, if given erroneously,
the Commission on Elections (COMELEC) on the
will not make the incumbent a permanent appointee.
ground that it would undermine the independence
of the COMELEC. We ruled that given the
specific nature of the functions performed by The Supreme Court discussed the nature of an acting
COMELEC Commissioners, only a permanent appointment in Pimentel v. Ermita. Thus —
appointment to the office of a COMELEC
Commissioner can be made, x x x. “The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
“Since the petitioner merely holds an acting measure intended to fill an office for a limited
appointment (and an expired one at that), he time until the appointment of a permanent
clearly does not have a cause of action to maintain occupant to the office. In case of vacancy in an
the present petition. The essence of an acting office occupied by an alter ego of the President,
appointment is its temporariness and its such as the office of a department secretary, the
consequent revocability at any time by the President must necessarily appoint an alter ego of
appointing authority. The petitioner in a quo her choice as acting secretary before the
warranto proceeding who seeks reinstatement to an permanent appointee of her choice could assume
office, on the ground of usurpation or illegal office.
deprivation, must prove his clear right to the office
for his suit to succeed; otherwise, his petition must “Congress, through a law, cannot impose on the
fail.” President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An
Appointments, whether permanent or temporary, are alter ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in
distinguished from designation in that the latter means
the guise of prescribing qualifications to an office,
simply the imposition of additional duties, usually by
cannot impose on the President who her alter ego
law, on a person already in the public service. For
should be.
example, the chairman of the Board of Investments is,
by designation, a member of the National Economic and “The office of a department secretary may become
Development Authority. vacant while Congress is in session. Since a
department secretary is the alter ego of the
In Binamira v. Garrucho, the Court observed: President, the acting appointee to the office must
necessarily have the President’s confidence. Thus,
“Designation may also be loosely defined as an by the very nature of the office of a department
appointment because it likewise involves the naming of secretary, the President must appoint in an acting
a particular person to a specified public office. That is capacity a person of her choice even while
the common understanding of the term. However, where Congress is in session. That person may or may
the person is merely designated and not appointed, the not be the permanent appointee, but practical
implication is that he shall hold the office only in a reasons may make it expedient that the acting
temporary capacity and may be replaced at will by appointee will also be the permanent appointee.
the appointing authority. In this sense, the designation
is considered only an acting or temporary appointment, “The law expressly allows the President to make
which does not confer security of tenure on the person such acting appointment. Section 17, Chapter 5,
named.” Title I, Book III of EO 292 states that ‘[t]he
President may temporarily designate an officer
A designation connotes an imposition of additional already in the government service or any other
competent person to perform the functions of an
duties, usually by law, upon a person already in the
office in the executive branch.’ Thus, the President
public service by virtue of an earlier appointment.- It
may even appoint in an acting capacity a person
does not entail payment of additional benefits or grant
upon the person so designated the right to claim the
 not yet in the government service, as long as the Philippine Coast Guard no longer require confirmation by
President deems that person competent.” the Commission on Appointments in view of its transfer
from the Department of National Defense to, eventually,
The Court went on to say that the President may not be the Department of Transportation and Communication, for
compelled to submit his acting appointments to the which reason, it is now to be considered a civilian
Commission on Appointments for confirmation. Thus — agency,37 although, for purposes of disciplining its officers
and personnel, it remains a component of the Armed Forces
“The power to appoint is essentially executive in of the Philippines. Therefore, said officers and personnel
nature, and the legislature may not interfere with shall still be subject to the primary disciplinary jurisdiction
the exercise of this executive power except in of its Efficiency and Separation Board, and not the Civil
those instances when the Constitution expressly Service Commission.
allows it to interfere. Limitations on the executive
power to appoint are construed strictly against the Some officers whom the President is authorized by law to
legislature. The scope of the legislature’s appoint are the members of the various statutory
interference in the executive’s power to appoint is administrative agencies. Also included in this class would
limited to the power to prescribe the be the Officers-in-Charge of the Autonomous Region of
qualifications to an appointive office. Congress Muslim Mindanao authorized to be appointed by the
cannot appoint a person to an office in the guise of President under the provisions of Republic Act No. 10153.
prescribing qualifications to that office. Neither
may Congress impose on the President the duty to An example of an officer whose appointment is not
appoint any particular person to an office.” otherwise provided for in the Constitution is the Chairman
of the Commission on Human Rights. Accordingly, his
appointment would not require confirmation by the
Commission on Appointments. On the other hand, there is
express constitutional authority given to the President in the
appointment of the Ombudsman,41 although such
appointment, including the appointment by the President of
his deputies, would require no confirmation as well by the
Commission on Appointments.

In Sarmiento v. Mison, the Commissioner of Customs

was held to be not subject to confirmation, being of the
There are now six categories of officials who are subject rank of the bureau director, who was purposely deleted
to the appointing power of the President, viz.: from the listing of those whose appointments had to be
approved by the Commission on Appointments.
(1) The heads of the executive departments.
As pointed out by Justice Teodoro Padilla:
(2) Ambassadors, other public ministers and consuls.
“In the 1987 Constitution, however, as already
(3) Officers of the armed forces from the rank of colonel pointed out, the clear and expressed intent of its
or naval captain. framers was to exclude presidential appointments
from confirmation by the Commission on
(4) Those other officers whose appointments are vested in Appointments, except appointments to offices
him by the Constitution. expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use
(5) All other officers of the government whose in the third sentence of Sec. 16, Article VII the word
appointments are not provided for by law. ‘alone’ after the word ‘President’ in providing that
Congress may by law vest the appointment of lower-
ranked officers in the President alone, or in the
(6) Those whom he may be authorized by law to appoint.
courts, or in the heads of departments, because the
power to appoint officers whom he (the President)
The President of the Philippines under the 1935 may be authorized by law to appoint is already vested
Constitution was empowered to appoint “officers of the in the President, without need of confirmation by the
army from the rank of colonel and of the navy and air force Commission on Appointments, in the second
from the rank of captain or commander.” The rank was sentence of the same Sec. 16, Article VII.
raised to brigadier-general or commodore in the 1973
charter. “Therefore, the third sentence of Sec. 16, Article VII
could have stated merely that, in the case of lower-
It must be pointed out though that appointments and ranked officers, the Congress may by law vest their
promotions from the rank of captain and higher in the appointment in the President, in the courts, or in the
 heads of various departments of the government. In As to officers lower in rank, the Congress may allow
short, the word ‘alone’ in the third sentence of Sec. their appointments to be made by the President alone,
16, Article VII of the 1987 Constitution, as a literal the courts, and the heads of departments, agencies,
import from the last part of par. 3, section 10, Article commissions and boards. “Officers lower in rank” as
VII of the 1935 Constitution, appears to be redundant
here used, should not be understood as referring to petty
in the light of the second sentence of Sec. 16, Article
VII. And this redundancy cannot prevail over the
or unimportant officers but those below the rank of or
clear and positive intent of the framers of the 1987 subordinate to those in whom the power of appointment
Constitution that presidential appointments, except is vested.
those mentioned in the first sentence of Sec. 16,
Article VII, are not subject to confirmation by the As under the Commonwealth Constitution, the
Commission on Appointments. President’s appointing power is once again subject to
check by the Commission on Appointments, which was
“Coming now to the immediate question before the abolished by the 1973 charter. Consequently, the
Court, it is evident that the position of Commissioner distinctions between the regular and ad interim
of the Bureau of Customs (a bureau head) is not one appointments, and the applicable jurisprudence thereon,
of those within the first group of appointments where
have also been revived.
the consent of the Commission on Appointments is
required. As a matter of fact, as already pointed out,
while the 1935 Constitution includes ‘heads of The usual steps in the appointing process are the
bureaus’ among those officers whose appointments, nomination, which is made by the President; the
need the con sent of the Commission on confirmation, which is the prerogative of the
Appointments, the 1987 Constitution, on the other Commission on Appointments; and the issuance of the
hand, deliberately excluded the position of ‘heads of commission, also done by the President. This is where
bureaus’ from appointments that need the consent the appointment is regular. On the other hand, in the
(confirmation) of the Commission on Appointments.” case of the ad interim appointment, the appointment
comes before the confirmation, which is made by the
Commission when it reconvenes following the legislative
Chief Justice Teehankee and Justices Herrera and recess.
Sarmiento filed separate concurring opinions. Justices
Gutierrez and Cruz dissented. The nomination of the regular appointee is made and
approved during the session, when the Commission on
The Chairman and members of the National Labor Appointments is authorized to meet. But the ad interim
Relations Commission have likewise been declared as appointment is made during the recess and becomes
not subject to confirmation by the Commission on effective then, subject to confirmation or rejection later,
Appointments, as they are not among the officers during the next legislative session.
included in the first sentence of Section 16.44
The distinction between the regular and ad interim
On the other hand, the sectoral representatives appointed appointments are the following:
by the President to the House of Representatives
pursuant to the provisions of Section 5 (2) of Article VI, (1) The regular appointment is made during the
in relation to Section 7 of Article XVIII of the legislative session; the ad interim appointment is
Constitution, required confirmation by the Commission made during the recess.
on Appointments, according to the Supreme Court in the
case of Quintos-Deles v. Commission on Appointments. (2) The regular appointment is made only after the
nomination is confirmed by the Commission on
Under the Constitution, confirmation would also be Appointments; the ad interim appointment is made
required with respect to the appointments of the before such confirmation.
Chairmen and Members of the Constitutional
Commissions and the regular members of the Judicial (3) The regular appointment, once confirmed by the
and Bar Council. The Members of the Supreme Court Commission on Appointments, continues until the end of
and judges of lower courts shall be appointed by the the term of the appointee; the ad interim appointment
President from a list of at least three nominees shall cease to be valid if disapproved by the
prepared by the Judicial and Bar Council. Such Commission on Appointments or upon the next
appointments need no confirmation. Neither shall the adjournment of the Congress. In the latter case, the
appointment of the Vice-President as a member of the appointment is deemed “by-passed” through inaction of,
Cabinet require confirmation by the Commission on and so disapproved impliedly by, the Commission on
Appointments. Appointments.
 In any event, the power of appointment, as explained by
As clarified by the Supreme Court in Guevara v. the Supreme Court in Lusgo v. Civil Service
Inocentes, the phrase “next adjournment” refers to the Commission, “is an essentially discretionary power and
termination of the next regular or special session of must be performed by the officer in which it is vested
Congress. Thus — according to his best lights, the only condition being that
the appointee should possess the qualifications
“It is true that the provision of the Constitution we required by law. If he does, then the appointment
are now considering in speaking of the mode of cannot be faulted on the ground that there are others
termination epitomized in the phrase ‘until the next better qualified who should have been preferred.”
adjournment of the Congress’ does not make any
reference to any specific session of the Congress, —
Accordingly, the Civil Service Commission, which
whether regular or special, — but such silence is of
no moment, for it is a well-known maxim in statutory
approved as “temporary” a permanent appointment
construction that when the law does not distinguish otherwise duly made, was, in this case, declared by the
we should not distinguish. UBI LEX NON Supreme Court as not being “empowered to determine
DISTINGUIT NEC NOS DISTIN-GUERE the kind or nature of the appointment extended by the
DEBEMUS (Robles vs. Zambales Chromite Mining appointing officer, its authority being limited to
Company, et al., G.R. No. L-12560, September 30, approving or reviewing the appointment in the light of
1958). Consequently, it is safe to conclude that the the requirements of the Civil Service Law.” All that the
framers of our Constitution in employing merely the Civil Service Commission may do is determine whether
word adjournment as a mode of terminating an or not the appointee possesses the qualifications and
appointment made during the recess of Congress had requisite or appropriate eligibility. “If he does, his
in mind either the regular or special session, and not
appointment is approved; if not, it is disapproved.”
simply the regular one as contended by petitioner.”
In Matibag v. Benipayo, the Supreme Court clarified
As held in Lacson v. Romero, an appointment is deemed
that “an ad interim appointment is a permanent
complete only upon its acceptance. Pending such
appointment because it takes effect immediately and can
acceptance, which is optional to the appointee, the
no longer be withdrawn by the President once the
appointment may still be validly withdrawn.
appointee has qualified into office. The fact that it is
Appointment to a public office cannot be forced upon
subject to confirmation by the Commission on
any citizen except for purposes of the defense of the
Appointments does not alter its permanent character.
State under Article II.
The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
As earlier noted, the Supreme Court upheld in Datu
disapproved by the Commission on Appointments or
Michael Abas Kida v. Senate of the Philippines the
until the next adjournment of Congress.” However,
authority of the President to appoint officers-in-charge
when the ad interim appointment lapses by inaction of
for elective positions for purposes of temporarily filling
the Commission on Appointments, as when it fails or
the posts left vacant by said elective officials from the
refuses to act on the same until the next adjournment of
expiration of their terms up to the conduct of the regular
Congress, it would not constitute a term of office. The
elections. The basis for said authority was Republic Act
period from the time the ad interim appointment is made
No. 10153, the law which provided for the
to the time it lapses is neither a fixed term nor an expired
synchronization of the elections for the regional
term.
government of the Autonomous Region of Muslim
Mindanao with the regular elections.
The ad interim appointment is intended to prevent a
hiatus in the discharge of official duties. Obviously,
The Court stated that, even if said law had not expressly
the public office would be immobilized to the prejudice
provided for the President’s authority to appoint said
of the people if the President had to wait for the
officers-in-charge, he would still nevertheless possess
Congress and the Commission on Appointments to
the power to appoint them as Section 16 vests in him as
reconvene before he could fill a vacancy occurring
well the power to appoint officials whose appointments
during the recess.
are not otherwise provided for by law. “In other words,
where there are offices which have to be filled, but the
The President’s power of appointment may also be
law does not provide the process for filling them, the
limited by the Congress through its power to prescribe
Constitution recognizes the power of the President to fill
qualifications for public office. The judiciary for its part
the office by appointment. Any limitation on or
may annul an appointment made by the President if the
qualification to the exercise of the President’s
appointee has not been validly confirmed or does not
appointment power should be strictly construed and
possess the required qualifications.
must be clearly stated in order to be recognized.”
Against the contention that this power of the President to The obvious purpose of the above is to prevent the use,
appoint said officers-in-charge, who would be occupying or abuse, of the appointing power for the purpose of
elective offices, breaches Section 16 of Article X of the enlisting political support in exchange for some
Constitution, which grants the President the mere power appointive office in the government.
of general supervision over autonomous regions, the
Court explained that it saw “no incompatibility between This will also prevent the “midnight appointments” that
the President’s power of supervision over local may otherwise be issued by an outgoing President, as
governments and autonomous regions, and the power happened in the case of Aytona v. Castillo, which
granted to the President, within the specific confines of involved the validity of President Diosdado Macapagal’s
RA No. 10153, to appoint OICs.” Administrative Order No. 2, issued on December 31,
1961, recalling, withdrawing, and cancelling all (350) ad
“The petitioners’ apprehension regarding the President’s interim appointments made by President Garcia after
alleged power of control over the OICs is rooted in their December 13, 1961, (the date when Macapagal was
belief that the President’s appointment power includes proclaimed elected by the Congress), including several
the power to remove these officials at will, xxx The ad interim appointments made by outgoing President
-wording of the law [Section 3, RA 10153] is clear. Carlos P. Garcia on December 29, 1961, or one day
Once the President has appointed the OICs for the before the expiration of his term. In providing for the
offices of the Governor, Vice Governor and members of dismissal of the petition, the Court declared that “under
the Regional Legislative Assembly, these same officials the circumstances above described, what with the
will remain in office until they are replaced by the duly separation of powers, this Court resolves that it must
elected officials in the May 2013 elections. Nothing in decline to disregard the Presidential Administrative
this pro vision even hints that the President has the Order No. 2, cancelling such ‘midnight’ or “last-minute’
power to recall the appointments he already made. appointments.” It did point out though that
Clearly, the petitioners’ fears in this regard are more
apparent than real.” “Of course, nobody will assert that President Garcia
ceased to be such earlier than at noon of December
The Court further noted that the “grant to the President 30, 1961. But it is common sense to believe that after
of the power to appoint OICs in place of the elective the proclamation of the election of President
Macapagal, his was no more than a ‘care-taker’
members of the Regional Legislative Assembly is
administration. He was duty bound to prepare for the
neither novel nor innovative. The power granted to the orderly transfer of authority to the incoming
President, via RA No. 10153, to appoint members of the President, and he should not do acts which he ought
Regional Legislative Assembly is comparable to the to know, would embarrass or obstruct the policies of
power granted by BP 881 (the Omnibus Election Code) his successor. The time for debate had passed; the
to the President to fill any vacancy for any cause in the electorate had spoken. It was not for him to use
Regional Legislative Assembly.” powers as incumbent President to continue the
political warfare that had ended or to avail himself of
Two special limitations on the appointing power presidential prerogatives to serve partisan purposes.
should be noted in Article VII, thus:
The filling up of vacancies in important positions, if
few, and so spaced to afford some assurance of
“Sec. 14. Appointments extended by an acting
President shall remain effective unless revoked by the deliberate action and careful consideration of the
need for the appointment and the appointee’s
elected President within ninety days from his
assumption of office.” qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and
planned induction of almost all of them a few hours
This emphasizes the caretaker capacity of the Acting before the inauguration of the new President may,
President but at the same time allows the elected with some reason, be regarded by the latter as an
President to ratify his appointments by mere inaction abuse of Presidential prerogatives, the steps taken
during the specified ninety days. being apparently a mere partisan effort to fill all
vacant positions, irrespective of fitness and other
“Sec. 15. Two months immediately before the next conditions, and thereby deprive the new
presidential elections and up to the end of his term, a administration of an opportunity to make the
President or Acting President shall not make corresponding appointments.”
appointments except temporary appointments to
executive positions when continued vacancies therein In De Castro v. Judicial and Bar Council, the Supreme
Will prejudice public service or endanger public Court declared that the prohibited appointments under
safety.”
Section 15 do not cover appointments to the Supreme expressly conferred upon him said power, which he
Court. shares with the Ombudsman.

“There is no question that one of the reasons The President is without any power to remove elected
underlying the adoption of Section 15 as part of local officials, since the power is exclusively vested in
Article VII was to eliminate midnight appointments the proper courts as expressly provided for in the last
from being made by an outgoing Chief Executive in paragraph of Section 60 of the Local Government Code.
the mold of the appointments dealt with in the
leading case of Aytona v. Castillo. Given the
background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition In all other cases where the power of removal is lodged
to appointments made in the Executive Department. in the President, the same may be exercised by him only
The framers did not need to extend the prohibition to for cause as may be provided by law and in accordance
appointments in the Judiciary, because their with the prescribed administrative procedure. The
establishment of the JBC and their subjecting the exception only is with respect to the members of the
nomination and screening of candidates for judicial Cabinet or to other executive officials whose term of
positions to the unhurried and deliberate prior process office is determined at the pleasure of the President.
of the JBC ensured that there would no longer be Legally speaking, their separation is effected not by the
midnight appointments to the Judiciary.
process of removal but by the expiration of their term.
“Under the Constitution, it is mandatory for the JBC
to submit to the President the list of nominees to fill a Thus, in Alajar v. Alba, the charter of a city provided
vacancy in the Supreme Court in order to enable the that its vice-mayor shall be appointed by and hold office
President to appoint one of them within the 90-day at the pleasure of the President of the Philippines.
period from the occurrence of the vacancy. The JBC Having been appointed and qualified, Alajar served as
has no discretion to submit the list to the President vice-mayor for more than a year until he was required by
after the vacancy occurs, because that shortens the the Office of the President to vacate his post in favor of
90-day period allowed by the Constitution for the Alba, a new appointee. Alajar invoked his constitutional
President to make the appointment. For the JBC to do security of tenure and claimed that he had been
so will be unconscionable on its part, considering that
unlawfully removed, no administrative charge having
it will thereby effectively and illegally deprive the
President of the ample time granted under the
been filed or proved against him. The Supreme Court
Constitution to reflect on the qualifications of the denied him relief, holding that there was no removal
nominees named in the list of the JBC before making here but a mere expiration of the term of office. Justice
the appointment.” Roberto Concepcion explained in his concurring
opinion:
(1) Appointing Power: The Removal Power
“In the case at bar, the term of respondent Alajar
From the express power of appointment, the President as Vice-Mayor of the City of Roxas is not fixed by
derives the implied power of removal. However, it is law. However, the latter, in effect, vests in the
not correct to say that all officials appointed by him are President the power to fix such term. When, in
also removable by him since the Constitution prescribes November 1955, petitioner Alba was designated as
certain methods for the separation from the public Acting Vice-Mayor of said City, the term of
service of some such officers. respondent Alba was thereby fixed implicitly by
the President, in the exercise of his aforementioned
authority. Thus, the term of office of Alajar
For example, the members of the Supreme Court and
expired and his right to hold office was
the Constitutional Commissions, although appointed
extinguished, with the same legal effect as if the
by the President, may be removed only by
term had been fixed by Congress it self. In other
impeachment in accordance with Article XI. Judges of words, Alajar was not removed from office, for ‘to
inferior courts, likewise appointed by the President, are remove an officer is to oust him from office before
subject to the disciplinary authority of, and may be the expiration of his term.’ (Manalang v.
removed only by, the Supreme Court. Moreover, the Quitoriano, et al., 50 Off. Gaz., 2515). Alajar
Ombudsman, who shall also be appointed by the merely lost the right to hold the office of Vice-
President under the Constitution, may be removed only Mayor of the City of Roxas by expiration of his
by impeachment.62 Insofar as the Deputy Ombudsmen term as such.”
are concerned though, the President’s authority to
appoint them63 includes, by necessary implication, the But it would be different if the law provided that a
authority to remove them, especially so since a law has member of the classified civil service could be “removed
at pleasure” as this would contravene the constitutional reality but the projection of that of the President.”
rule that “no officer or employee of the Civil Service Accordingly, their acts “performed and promulgated in
shall be removed or suspended except for cause the regular course of business, are, unless disapproved or
provided by law™ reprobated by the Chief Executive, presumptively the
acts of the Chief Executive.”
At any rate, a removal presupposes a forcible and
permanent separation of the incumbent from office This principle, generally known as the doctrine of
before the expiration of his term. qualified political agency, was acknowledged by the
Supreme Court in Manubay v. Garilao where it declared
The Control Power that a further appeal from a decision of a cabinet
secretary may be taken to the Office of the President
“The President shall have control of all the executive before resorting to judicial action, to be consistent with
departments, bureaus and offices. He shall ensure that the doctrine of exhaustion of administrative remedies.
the laws be faithfully executed.” Thus —

Control is defined as “the power of an officer to alter “Under the doctrine of qualified political agency,
or modify or nullify or set aside what a subordinate department secretaries are alter egos or assistants of the
officer had done in the performance of his duties and to President and their acts are presumed to be those of the
substitute the judgment of the former for that of the latter unless disapproved or reprobated by him. Thus, as
latter.” It includes the authority to order the doing of an a rule, an aggrieved party affected by the decision of a
act by a subordinate or to undo such act or to assume a cabinet secretary need not appeal to the OP and may file
power directly vested in him by law. Control is a a petition for certiorari directly in the Court of Appeals
stronger power than mere supervision, which means assailing the act of the said secretary. Needless to state,
“overseeing or the power or authority of an officer to see elevating the matter to the OP was consistent with the
that subordinate officers perform their duties. If the latter doctrine of exhaustion of administrative remedies. A
fail or neglect to fulfill them, then the former may take party aggrieved by an order of an administrative official
such action or steps as prescribed by law to make them should first appeal to the higher administrative authority
perform these duties.”72 In the case of Drilon v. Lim, before seeking judicial relief. Otherwise, as in this case
the Supreme Court elaborated on the distinction thus: the complaint will be dismissed for being premature or
for having no cause of action.’"
“An officer in control lays down the rules in the
doing of an act. If they are not followed, he may, in Such appeal to a “higher administrative authority”
his discretion, order the act undone or re-done by his pursuant to the doctrine of exhaustion of administrative
subordinate or he may even decide to do it himself. remedies would however not be necessary or required
Supervision does not cover such authority. The when there exists a special law that provides for a
supervisor or superintendent merely sees to it that the
different mode of appeal. Indeed, it has been ruled that
rules are followed, but he himself does not lay down
such rules, nor does he have the discretion to modify
“executive control” cannot be considered as
or replace them. If the rules are not observed, he may “absolute” and may be “effectively limited by the
order the work done or re done but only to conform Constitution, by law, or by judicial decisions.” It is
to the prescribed rules. He may not prescribe his own likewise subject to the rule-making authority of the
manner for the doing of the act. He has no judgment Supreme Court.
on this matter except to see to it that the rules are
followed.” It would appear though that the doctrine of qualified
political agency would not be applicable to acts of
Theoretically, the President has full control of all the cabinet secretaries done in their capacity as ex officio
members of this Cabinet. He may appoint them as he board directors of a government-owned or controlled
sees fit, shuffle them at pleasure, and replace them in his corporation of which they become members not by
discretion without any legal inhibition whatever. It is appointment of the President but by authority of law.
true that there are practical or political considerations Thus, in Trade and Investment Development
that may limit his freedom of control over them. From Corporation of the Philippines v. Manalang-
the purely legal standpoint, however, the members of the Demigilio, the petitioner sought to justify its
Cabinet are subject at all times to the disposition of the reorganization, as directed by its board of directors, by
President since they are merely his alter ego. invoking this doctrine, stating that since the members of
its board are cabinet secretaries, their act of providing
As the Supreme Court put it in Villena v. Secretary of for the reorganization should be considered as the act of
the Interior, “without minimizing the importance of the the President, who, under existing laws, possesses the
heads of various departments, their personality is in
continuing authority to reorganize the executive
department, including the petitioner. Although the In this connection, it has likewise been ruled that the
Supreme Court upheld the validity of the reorganization, Constitution’s express grant of the power of control
it did so on the basis of other grounds, and not the in the President justifies an executive action to carry out
doctrine of qualified political agency. It explained — reorganization measures under a broad authority of law.

“The doctrine of qualified political agency essentially In Angeles v. Gaite, the Supreme Court upheld the
postulates that the heads of the various executive departments validity of a memorandum circular issued by the
are the alter egos of the President, and, thus, the actions taken President limiting his review of resolutions, orders or
by such heads in the performance of their official duties are adjudications of the Secretary of Justice to offenses
deemed the acts of the President unless the President himself
punishable by reclusion perpetua to death on the basis of
should disapprove such acts.
the doc trine of qualified political agency. Moreover, the
This doctrine is in recognition of the fact that in our Court said that the “President has not fully abdicated his
presidential form of government, all executive organizations power of control as Memorandum Circular No. 58
are adjuncts of a single Chief Executive; that the heads of allows an appeal if the imposable penalty is reclusion
the Executive Departments are assistants and agents of the perpetua or higher. Certainly, it would be unreasonable
Chief Executive; and that the multiple executive functions of to impose upon the President the task of reviewing all
the President as the Chief Executive are performed through the preliminary investigations decided by the Secretary of
Executive Departments. The doctrine has been adopted here Justice. To do so will unduly hamper the other important
out of practical necessity, considering that the President duties of the President by having to scrutinize each and
cannot be expected to personally perform the multifarious every decision of the Secretary of Justice
functions of the executive office.
notwithstanding the latter’s expertise in said matter.”
“But the doctrine of qualified political agency could not be
extended to the acts of the Board of Directors of TIDCORP Section 17 is a self-executing provision. The President
despite some of its members being themselves the appointees derives his power of control directly from the
of the President to the Cabinet. Under Section 10 of Constitution and not from any implementing legislation.
Presidential Decree No. 1080, as further amended by Section 6 Such a law would in fact be unnecessary and would even
of Republic Act No. 8494, the five ex officio members were be invalid if it limits the exercise of his power or
the Secretary of Finance, the Secretary of Trade and Industry, withdraws it altogether from the President.
the Governor of the Bangko Sentral ng Pilipinas, the Director-
General of the National Economic and Development In Araneta v. Gatmaitan for example, the Congress
Authority, and the Chairman of the Philippine Overseas
authorized the Secretary of Agriculture and Natural
Construction Board, while the four other members of the
Board were the three from the private sector (at least one of
Resources to promulgate rules and regulations
whom should come from the export community), who were concerning trawl fishing. When President Magsaysay
elected by the ex officio members of the Board for a term of directly exercised this authority, his act was challenged
not more than two consecutive years, and the President of on the ground that the power in question had been
TIDCORP who was concurrently the Vice-Chairman of the conferred not on him but on the aforementioned Cabinet
Board. Such Cabinet members sat on. the Board of Directors member. The Supreme Court did not agree, holding as
of TIDCORP ex officio, or by reason of their office or follows:
function, not because of their direct appointment to the Board
by the President. Evidently, it was the law, not the President, “If under the law the Secretary of Agriculture and Natural
that sat them in the Board. Resources has authority to regulate or ban fishing by trawl,
then the President of the Philippines may exercise the same
“Under the circumstances, when the members of the Board of power and authority because of the following:
Directors effected the assailed 2002 reorganization, they were
acting as the responsible members of the Board of Directors of (a) The President shall have control of all the executive
TIDCORP constituted pursuant to Presidential Decree No. departments, bureaus or offices, pursuant to Section 10(1),
1080, as amended by Republic Act No. 8494, not as the alter Article VII, of the Constitution;
egos of the President. "We cannot stretch the application of a
doctrine that already delegates an enormous amount of power. (b) Executive Orders may be issued by the President under
Also, it is settled that the delegation of power is not to be Section 63 of the Revised Administrative Code ‘governing the
lightly inferred.” general performance of duties by public employees or
disposing of issues of general concern’; and

(c) Under Section 74 of the Revised Administrative Code, ‘All

executive functions of the Government of the Republic of the
Philippines shall be directly under the Executive Department,
subject to the supervision and control of the President of the In this case, the President of the Philippines had assumed
Philippines in matters of general policy.” direct jurisdiction over a member of the classified Civil
Service against whom administrative charges had been
In Gascon v. Arroyo, the Supreme Court held that the filed by the Commissioner of Customs. In holding this
Executive Secretary had the authority to enter into the act of the President to be unlawful, the Supreme Court
“Agreement to Arbitrate” with the ABS-CBN Broad declared:
casting Corporation as he was acting on behalf of the
President of the Philippines who had the power to “Let us now take up the power of control given to the
negotiate such agreement. The agreement was therefore President by the Constitution over all officers and
binding on the Republic of the Philippines. employees in the executive department which is now
invoked by respondents as justification to override
It has also been ruled that the Secretary of the the specific provisions of the Civil Service Act. This
Department of Labor and Employment, as the officer power of control is couched in general terms for it
does not set in specific manner its extent and scope.
exercising the power of supervision and control over the
Yet, this Court in the case of Hebron v. Reyes, supra,
Bureau of Labor Relations, has the authority to directly had already occasion to interpret the extent of such
exercise the quasi-judicial functions entrusted by law to power to mean ‘the power of an officer to alter or
the Director of said Bureau. He likewise possesses modify or nullify or set aside what a subordinate
appellate jurisdiction over cases decided by the officer had done in the performance of his duties and
Philippine Overseas Employment Administration, to substitute the judgment of the former for that of
consistent with his power of supervision and control the latter,’ to distinguish it from the power of
under Section 38(1), Chapter 7, Title II, Book III of the supervision over municipal governments, but the
Revised Administrative Code of 1987. decision does not go to the ex tent of including the
power to remove an officer or employee in the
In Lacson-Magallanes Co., Inc. us. Pano, a law executive department. Apparently, the power merely
applies to the exercise of control over the acts of the
provided that decisions rendered by the Director of
subordinate and not over the actor or agent himself of
Lands on questions of fact shall be conclusive when the act. It only means that the President may set aside
affirmed by the Secretary of Agriculture and Natural the judgment or action taken by a subordinate in the
Resources. Nevertheless, one such decision was performance of his duties.”
appealed to the Office of the President and was
subsequently reviewed and reversed by the Executive In Noblejas u. Salas, a provincial fiscal directed by the
Secretary. On the basic issue of whether or not the Secretary of Justice to file informations against five
administrative decision could still be appealed to the persons added a sixth accused on his own authority. The
President of the Philippines, the Supreme Court held as Supreme Court reversed his action, holding that he could
follows: not contravene the directive. The reason was that he was
under the constitutional power of control of the
“Plaintiffs position is incorrect. The President’s duty President, exercised in this case through the Secretary of
to execute the law is of constitutional origin. So, too, Justice.
is his control of all executive departments. His is the
power to appoint them; his, too, is the privilege to
dismiss them at pleasure. Naturally, he controls and
This ruling was reiterated in Jacob v. Puno, where the
directs their acts. Implicit then is his authority to go Minister of Justice was sustained by the Supreme Court
over, confirm, modify or reverse the action taken by when, pursuant to his authority under P.D. 916, he
his department secretaries. In this context, it may not ordered a fiscal to withdraw certain informations.
be said that the President cannot rule on the
correctness of a decision of a department secretary.” In De Leon v. Carpio, the respondent refused to obey the
orders of the Secretary of Justice to reinstate the agents
of the National Bureau of Investigation found by the
Civil Service Commission to have been illegally
dismissed. The Supreme Court declared:
“In the case at bar, there is no question that when he
directed the respondent to reinstate the petitioners,
Secretary Ordonez was acting in the regular
It should be noted, however, that the power of control is discharge of his functions as an alter ego of the
exercisable by the President over the acts of his President. His acts should therefore have been
respected by the respondent Director of the National
subordinates and not necessarily over the subordinate
Bureau of Investigation, which is in the Department
himself or, as the Supreme Court put it in Ang-Angco v. of Justice under the direct control of its Secretary. As
Castillo, not “over the actor or agent himself of the act.” a subordinate in this department, the respondent was
 (and is) bound to obey the Secretary’s directives, transparency — is inherent in the President’s powers as
which are presumptively the acts of the President of the Chief Executive.” Thus —
the Philippines.
“That the authority of the President to conduct
In Orosa v. Roa, the Court affirmed that the Department investigations and to create bodies to execute this
of Justice is under the President’s control. Accordingly, power is not explicitly mentioned in the Constitution
the decisions of the Secretary of Justice are subject to or in statutes does not mean that he is bereft of such
his review. Incidentally, it has been repeatedly ruled by authority. Indeed, the Executive is given much
the Court that the Department of Justice, as the leeway in ensuring that our laws are faithfully
primary prosecution arm of the Government, is not a executed. As stated above, the powers of the
President are not limited to those specific powers
quasi-judicial body. Its preliminary investigation of a
under the Constitution. One of the recognized powers
case is therefore not a quasi-judicial proceeding. of the President granted pursuant to this
constitutionally-mandated duty is the power to create
In Kulayan v. Tan, the Supreme Court affirmed that, “as ad hoc committees. This flows from the obvious need
a civilian agency of the government, the police, through to ascertain facts and determine if laws have been
the NAPOLCOM, properly comes within, and is subject faithfully executed. Thus, in Department of Health v.
to, the exercise by the President of the power of Camposano, the authority of the President to issue
executive control.” Administrative Order No. 298, creating an
investigative committee to look into the
The “Take-Care” Clause administrative charges filed against the employees of
the Department of Health for the anomalous purchase
of medicines was upheld. It should be stressed that
The power to take care that the laws be faithfully the purpose of allowing ad hoc investigating bodies
executed makes the President a dominant figure in the to exist is to allow an inquiry into matters which the
administration of the government. The energy or President is entitled to know so that he can be
indifference with which he discharges this power will properly advised and guided in the performance of
determine the measure of his success as Law Enforcer. his duties relative to the execution and enforcement
of the laws of the land.”
The law he is supposed to enforce includes the
Constitution itself, statutes, judicial decisions, The Court added —
administrative rules and regulations and municipal
ordinances, as well as treaties entered into by our “The President’s power to conduct investigations to
government. en sure that laws are faithfully executed is well
recognized. It flows from the faithful execution
clause of the Constitution under Article VII, Section
It has been suggested that the President is not under
17 thereof. As the Chief Executive, the president
obligation to enforce a law which in his belief is represents the government as a whole and sees to it
unconstitutional because it would create no rights and that all laws are enforced by the officials and
confer no duties, being totally null and void. The better employees of his department. He has the authority to
view is that it is not for him to determine the validity directly assume the functions of the executive
of a law since this is a question exclusively addressed department. Invoking this authority, the President
to the judiciary. Hence, until and unless a law is constituted the PTC to primarily investigate reports
declared unconstitutional, the President has a duty to of graft and corruption and to recommend the
execute it regardless of his doubts on its validity. A appropriate action.”
contrary opinion would allow him not only to negate the
will of the legislature but also to encroach upon the This ruling has since been affirmed in Pichay v. Office
prerogatives of the judiciary. of the Deputy Executive Secretary for Legal Affairs
In any event, this duty of the President to ensure that the Investigative and Adjudication Division, where the
laws are faithfully executed was cited by the Supreme Court stressed that the “obligation to see to it that laws
Court as justification for the validity of his creation of an are faithfully executed necessitates the corresponding
investigative body in Biraogo u. The Philippine Truth power in the President to conduct investigations into the
Commission of 2010. Although the Court declared as conduct of officials and employees in the executive
unconstitutional the Executive Order issued by the department.”
President for the purpose for being violative of the equal
protection clause, it nevertheless declared that his In PCGG Chairman v. Jacobi, the Court further
“power to conduct investigations to aid him in ensuring stressed that a “necessary component of the Executive’s
the faithful execution of laws — in this case, power to faithfully execute the laws of the land is the
fundamental laws on public accountability and State’s self-preserving power to prosecute violators of its
penal laws.” This responsibility, according to the Court,
is primarily lodged with the Department of Justice, as Within 48 forty-eight hours from the proclamation of
the principal law agency of the government. martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report
in person or in writing to the Congress.

The Congress, voting jointly, by a vote of at least a

majority of all its Members in regular or special
session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President.

Upon the initiative of the President, the Congress may,

in the same manner, extend such proclamation or
suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and
public safety requires it.

“The Congress, if not in session, shall, within twenty-

four hours following such proclamation or suspension,
convene in accordance with its rules without need of a
call.

“The Supreme Court may review, in an appropriate

proceeding filed by any citizen, the sufficiency o f the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.

“A state of martial law does not suspend the operation of

the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the
writ.

“The suspension of the privilege of the writ shall

apply only to persons judicially charged for
The Military Power rebellion or offenses inherent in or directly
connected with invasion.
Tremendous and extraordinary authority is reposed in
the President by the following provision in Article VII: “During the suspension of the privilege of the
writ, any person thus arrested or detained shall
“Sec. 18. The President shall be the Commander-in- be judicially charged within three days,
Chief of all armed forces of the Philippines and otherwise he shall be released.”
whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, To begin with, this section bolsters the principle
invasion or rebellion. announced in Article II, Section 3, that “civilian
authority is, at all times, supreme over the military.” By
In case of invasion or rebellion, when the public safety making the President the commander-in-chief of all the
requires it, he may, for a period not exceeding 60 sixty armed forces, the Constitution lessens the danger of a
days, suspend the privilege of the writ of habeas military take-over of the government in violation of its
corpus or place the Philippines or any part thereof republican nature.
under martial law.
The military establishment is the strongest single and resolution that the President is given vast powers in
institution in the country and could easily employ its the making and carrying out of military decisions.
physical force to wrest power from the civilian
authorities. The threat of such domination would be Accordingly, it has been held that he can determine
present in fact even if the civil and military authorities what degree of force a particular crisis demands, as
were made only equal. It is important that the military be when President Lincoln declared a blockade of the Con
subordinated to the President so he can keep it in check federate ports during the American civil war; organize
when ever it is tempted to impose its will upon the courts martial for the discipline of the members of the
government. armed forces violating military law; create military
commissions for the punishment of war criminals; and
There is some hazard, to be sure, in entrusting final call out the armed forces to prevent or suppress lawless
military decisions to a civilian President without much violence, invasion, or rebellion.
background in military matters. The danger becomes
especially marked in times of war or when the President Courts martial were described in Ruffy u. Chief of Staff
happens to be opinionated or is unwilling to defer to the as agencies of executive character which may be
recommendations of his more knowledgeable military convened by the President independently of legislation
advisers. The counter-argument is that such a situation, and by virtue only of his constitutional function as
although not impossible, would be unlikely, given the commander-in-chief. These courts do not pertain to the
sense of responsibility that can be expected from any judiciary and are utilized by him in properly
person elevated to the position of President. More commanding and enforcing discipline in the armed
importantly, it was felt that the need for preserving our forces. Thus —
democratic institutions against a military coup d’etat was
worth the calculated risk the Constitution was taking. “Courts martial are agencies of executive character,
and one of the authorities ‘for the ordering of courts
It should be noted that although the President is made martial has been held to be attached to the
the commander-in-chief of all the armed forces, he will constitutional functions of the President as
Commander in Chief, independently of legislation.’
be so only if there are armed forces to command. These
(Winthrop's Military Law and Precedents, 2d Edition,
forces will be raised by the Congress in the exercise of p. 49.) Unlike courts of law, they are not a portion of
its general legislative power, and particularly under the judiciary. The Supreme Court of the United States
Article II, Section 4, providing that the Government referring to the provisions of the Constitution
may call upon the people to defend the State and in the authorizing Congress to provide for the government
fulfillment thereof all citizens may be required, under of the army, excepting military offenses from the
conditions provided by law, to render personal military civil jurisdiction, and making the President
or civil service. Commander in Chief, observes as follows: ‘These
provisions show that Congress has the power to
The military power enables the President to: provide for the trial and punishment of military and
naval offenses in the manner then and now practiced
by civilized nations, and that the power to do so is
I. command all the armed forces of the
given without any connection between it and the 3d
Philippines; Article of the United States; indeed that the two
powers are entirely independent of each other.’
II. suspend the privilege of the writ of habeas
corpus; and “Not belonging to the judicial branch of the
government, it follows that courts-martial must
III. declare martial law. pertain to the executive department; and they are in
fact simply instrumentalities of the executive power,
provided by Congress for the President as
(1) Command of the Armed Forces Commander in Chief, to aid him in properly
commanding the army and navy and enforcing
discipline therein, and utilized under his orders or
The “power of the sword” makes the President the most those of his authorized military representatives.”
important figure in the country in times of war or other
similar emergency. In theory, he plans all campaigns, However, in Garcia v. Executive Secretary, the
establishes all sieges and blockades, directs all marches, Supreme Court clarified that the “general court martial is
fights all battles. His leadership, if bold and decisive, can a court within the strictest sense of the word and acts as
galvanize people to gallantry or, if vacillating and a criminal court.” Thus —
timorous, can enfeeble them to defeatism and surrender.
It is because the sword must be wielded with courage
“In Marcos v. Chief of Staff, Armed Forces of the “Due process of law demands that in all criminal
Philippines [89 Phil, 246 (1951)], this Court ruled that a prosecutions (where the accused stands to lose either his
court-martial case is a criminal case and the General Court life or his liberty), the accused shall be entitled to,
Martial is a ‘court’ akin to any other courts. In the case of among others, a trial. (In re Oliver, 333 U.S. 257 [1948];
Ramon Ruffy vs. Chief of Staff of the Philippine Army, 43
Sections 1 and 14[2], Article III, 1987 Constitution.)
Off. Gaz., 855, we did not hold that the word ‘court’ in
general used in our Constitution does not include a Court-
There appears to be no substantial change from the
Martial; what we held is that the words ‘inferior courts’ used corresponding provisions of the 1973 Constitution. The
in connection with the appel late jurisdiction of the Supreme trial contemplated by the due process clause of the
Court to ‘review on appeal certiorari or writ of error, as the Constitution, in relation to the Charter as a whole, is a
law or rules of court may provide, final judgments of inferior trial by judicial process, not by executive or military
courts in all criminal cases in which the penalty imposed is process. A military commission or tribunal, by whatever
death or life imprisonment,’ as provided for in section 2, name they are called, are not courts within the Philippine
Article VIII, of the Constitution, do not refer to Courts-Martial judicial system. As explained by Justice Teehankee in
or Military Courts. his separate dissenting opinion —
“The fact that a judgment of conviction, not of acquittal,
(Page 428 - 429) Skipped
rendered by a court-martial must be approved by the
reviewing authority before it can be executed (Article of War
46), does not change or affect the character of a court-martial In the Garcia case, the Court emphasized that the
as a court. A judgment of the Court of First Instance imposing “courts” referred to in Olaguer were military
death penalty must also be approved by the Supreme Court commissions created during martial law while the
before it can be executed.” General Court Martial was created under
Commonwealth Act No. 408, “and remains a valid
As previously observed, the Court added that “the power entity.”
to confirm a sentence of the President, as Commander-
in-Chief, includes the power to approve or dis approve In Integrated Bar of the Philippines v. Zamora the
the entire or any part of the sentence given by the court petitioner questioned the command of President Estrada
martial.” deploying the Philippine Marines to join the Philippine
National Police in visibility patrols around Metro Manila
for the purpose of crime prevention. The order was
obviously based on the deteriorating peace and order in
the metropolis. The IBP contended that there was no
emergency or a state of “lawless violence” to warrant the
In Kuroda u. Jalandoni, a former commanding general calling of the Armed Forces, which would have the
of the Japanese forces in the Philippines charged with effect of militarizing the government to the prejudice of
having permitted his troops to commit atrocities against individual liberties and the supremacy of civilian
civilians and prisoners of war, questioned inter alia authority.
Executive Order No. 68, establishing a national war
crimes office, under which he was being tried. The The Supreme Court dismissed the petition, holding that
Supreme Court, citing the earlier case of Yamashita v. inasmuch as the IBP had not shown that the President
Styer which upheld the jurisdiction of military had committed grave abuse of discretion in issuing his
commissions over war criminals, declared that the command, it was not inclined to overrule the President’s
promulgation of the challenged order was “an exercise determination of the factual basis for the calling of the
by the President of his powers as commander-in-chief of Marines. Moreover, it ruled that the IBP was not a
all our armed forces.” proper party to raise the challenge.

In Aquino v. Military Commission No. 2,100 the According to the Supreme Court, this so-called “calling-
Supreme Court upheld the power of the President to out power” of the President involves “ordinary police
create military tribunals authorized to try not only action,” which would ordinarily not entitle him to
military personnel but also civilians even if at that time “invoke a greater power when he wishes to act under a
civil courts were open and functioning, thus rejecting the lesser power.” Thus, the Supreme Court nullified in
“open court” theory observed in the United States. In the David v. Arroyo. President Arroyo’s Presidential
case of Olaguer v. Military Commission No. 34,101 Proclamation No. 1017, under which she commanded
however, the Aquino decision was reversed and it was “the Armed Forces of the Philippines, to maintain law
held in part, through Justice Gancayco: and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce obedience to
all the laws and to all decrees, orders and regulations President has the general responsibility to promote
promulgated by me personally or upon my direction” public peace, and as Commander-in-Chief, she has the
and “as provided in Section 17, Article 12 of the more specific duty to prevent and suppress rebellion and
Constitution” declared a “National Emergency.” The lawless violence.”
Court ruled that, while the call made by her upon the
Armed Forces to suppress lawful violence, as well as her Moreover, as previously observed, the President, as
proclamation of a state of national emergency, can be Commander-in-Chief, may validly prohibit a military
considered as valid, her reliance on the provisions of officer from testifying in a legislative inquiry, without
Section 17 of Article XII of the Constitution, which prejudice though to the right of the legislative body
allows the State, during times of national emergency, to seeking such testimony to obtain judicial relief to
temporarily take over or direct the operation of any compel the attendance of said officer. “Such judicial
privately owned public utility or business affected with action should be directed at the heads of the executive
public interest for purposes of her proclamation of a branch or the armed forces, the persons who wield
state of national emergency was misplaced. The Court authority and control over the actions of the officers
declared — concerned. The legislative purpose of such testimony, as
well as any defenses against the same — whether
“Let it be emphasized that while the President alone can grounded on executive privilege, national security or
declare a state of national emergency, however, without similar concerns — would be accorded due judicial
legislation, he has no power to take over privately-owned evaluation. All the constitutional considerations
public utility or business affected with public interest. The pertinent to either branch of government may be raised,
President cannot decide whether exceptional circumstances
assessed, and ultimately weighed against each other.
exist war ranting the take over of privately-owned public
utility or business affected with public interest. Nor can he
And once the courts speak with finality, both branches of
determine when such exceptional circumstances have ceased. government have no option but to comply with the
Likewise, without legislation, the President has no power to decision of the courts, whether the effect of the decision
point out the types of businesses affected with public interest is to their liking or disfavor.”
that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under In Rodriguez v. Macapagal Arroyo, the Supreme
Section 17, Article VII in the absence of an emergency powers Court, citing Gonzales v. Abaya, declared that the
act passed by Congress.” President, as Commander-in-Chief, can be held
responsible or accountable for extrajudicial killings
Incidentally, the Court clarified in David that the and enforced disappearances in the context of
President “cannot call the military to enforce or amparo proceedings on the basis of the doctrine of
implement certain laws, such as customs laws, laws command responsibility, the requisites of which are
governing family and property relations, laws on
obligations and contracts and the like.” He can only a. the existence of a superior-subordinate relationship
order the military to enforce laws pertinent to its duty to between the accused as superior and the perpetrator of
suppress lawless violence. the crime as his subordinate;

It has further been ruled that it is only the President b. the superior knew or had reason to know that the
who is authorized to exercise the calling-out power. crime was about to be or had been committed; and
Accordingly, a provincial governor may not validly
issue a proclamation calling upon the Philippine c. the superior failed to take the necessary and
National Police and the Civil Emergency Force to “set reasonable measures to prevent the criminal acts or
up check points and choke points, conduct general punish the perpetrators thereof.”
search and seizures including arrests, and other actions
necessary to ensure public safety,” by reason of a According to the Court, the President, being the
kidnapping incident in his area, and on the basis merely commander-in-chief of all the armed forces, is to be
of a general provision in the Local Government Code considered as necessarily possessing control over the
entitling him “to carry out emergency measures during military that qualifies him as a superior within the
man-made and natural disasters and calamities, and to purview of the doctrine.
call upon the appropriate national law enforcement
agencies to suppress disorder and lawless violence. Moreover, he can, according to the Court, be presumed
to have knowledge of the commission of irregularities,
The Supreme Court has likewise declared that “the crimes or offenses pertinent to said extrajudicial killings
President’s power to conduct peace negotiations is and enforced disappearances. “Meanwhile, as to the
implicitly included in her powers as Chief Executive issue of failure to prevent or punish, it is important to
and Commander-in-Chief. As Chief Executive, the
note that as the commander-in-chief of the armed forces, stated in the Constitution, to wit, “invasion or rebellion,
the president has the power to effectively command, when the public safety requires it.”
control and discipline the military.”
In 1951, President Quirino based his suspension of the
In Balao v. Macapagal-Arroyo, the Court clarified that, privilege of the writ o f habeas corpus on “sedition” and
in amparo proceedings, “commanders may therefore “imminent danger of insurrection or rebellion.” If he had
be impleaded— not actually on the basis of command not added the latter ground, which was listed in the 1935
responsibility— but rather on the ground of their charter, the Supreme Court would have, in Montenegro
responsibility, or at least accountability.” v. Castaneda, invalidated his proclamation.

(2) Habeas Corpus

To the President is entrusted the power to suspend the

privilege of the writ of habeas corpus. However, this
power is not without limitations and may be revoked by
the Congress or the Supreme Court in proper cases.
Supposing, however, that the suspension is based on the
The. aforecited provision must be read with Article III, grounds prescribed by the Constitution, will the Supreme
Section 15, stating as follows: Court have the competence to ascertain the existence of
such grounds for the purpose of determining the validity
“The privilege of the writ of habeas corpus shall not of the suspension?
be suspended except in cases of invasion or
rebellion, when the public safety requires it.” The Montenegro Case affirmed the doctrine announced
in Barcelon v. Baker and held that the de termination by
The writ of habeas corpus “is a writ directed to the the President of the Philippines of the existence of any of
person detaining another, commanding him to produce the grounds prescribed by the Constitution for the
the body of the prisoner at a designated time and place, suspension of the privilege of the writ of habeas corpus
with the day and cause of his caption and detention, to should be conclusive upon the courts. The justification
do, to submit to, and receive whatever the court or judge was that the President, with all the intelligence sources
awarding the writ shall consider in his behalf. It is a high available to him as commander-in-chief, was in a better
prerogative common law writ of ancient origin the great position than the Supreme Court to as certain the real
object of which is the liberation of those who may be in state of peace and order in the country.
prison without sufficient cause.”
The doctrine in the above case was subsequently
It should be stressed that what is permitted to be abandoned in Lansang u. Garcia, where the Supreme
suspended by the President is not the writ itself but its Court declared that it had the power to inquire into the
privilege. factual basis of the suspension of the privilege of the
writ of habeas corpus by President Marcos in August
“Suspension of the privilege of the writ of habeas 1971 and to annul the same if no legal ground could be
corpus does not suspend the writ itself, but only its established. Accordingly, hearings were conducted to
privilege. This means that when the court receives an receive evidence on this matter, including two closed-
application for the writ, and it finds the petition in proper door sessions in which relevant classified information
form, it will issue the writ as a matter of course, i.e., the was divulged by the government to the members of the
court will issue an order commanding the production Court and three selected lawyers of the petitioners. In the
before the court of the person allegedly detained, at a end, a unanimous Court, after satisfying itself that there
time and place stated in the order, and requiring the true was actually a massive and systematic Communist-
cause of his detention to be shown to the court. If the oriented campaign to overthrow the Republic of the
return to the writ shows that the person in custody was Philippines by force, as claimed by the President,
apprehended and detained in areas where the privilege of decided to uphold the suspension.
the writ has been suspended or for crimes mentioned in
the executive proclamation, the court will suspend In Garcia-Padilla v. Enrile, however, the Supreme
further proceedings in the action.” Court reversed^ the Lansang decision and revived the
Montenegro doctrine, reiterating that the suspension of
The Supreme Court decidedly has the power to annul the the privilege of the writ of habeas corpus was a political
suspension of the privilege of the writ of habeas corpus question to be resolved solely by the President.
if the same is not based on either of the two grounds
Fortunately, though, this ruling has been abrogated by may be with their personal freedom or property rights
Section 18, which has expressly constitutionalized the must be justified, as in the case of the police power, by
Lansang doctrine. necessity actually existing or reasonably presumed.

It should also be noted that under Article III, Section 13, During times of disorder as will lead to a call upon the
“the right to bail shall not be impaired even if the military for assistance, necessity naturally demands the
privilege of the writ of habeas corpus is suspended.” commission of acts which in more tranquil times are not
demanded and thus in fact those in authority may control
“The high prerogative writ of habeas corpus, whose the individual in his property in ways which they could
origin is traced to antiquity, was devised and exists as a not legally do at other times. But the principle still holds
speedy and effectual remedy to relieve persons from good that necessity, and necessity alone, will justify an
unlawful restraint and as the best and efficient defense of infringement upon private rights of persons and
personal freedom.”122 It may therefore not be availed of property.”
by police officers under investigation and subjected to a
“restrictive custody order” issued by their superiors, It is significant that while the Supreme Court
limiting their physical movements and liberty to leave acknowledged in David statements made before the
their camps. According to the Supreme Court, Senate Committee on Justice to the effect that
considering that they are not, by reason of their
restrictive custody status, actually detained or (a) arrests and seizures without judicial warrants;
imprisoned, their “minimal restraint” is “beyond the
ambit of habeas corpus (b) ban on public assemblies;

(c) take-over of news media and agencies and press

censorship; and
(3) Martial Law
(d) issuance of Presidential Decrees, are powers which
In the case of Aquino v. Enrile, the Supreme Court, by
can be exercised by the President as Commander-in-
unanimous vote of its members then, sustained the
Chief only where there is a valid declaration of Martial
proclamation of martial law by President Marcos on
Law or suspension of the writ of habeas corpus,” it
September 21, 1972, but no clear consensus was reached
nevertheless ruled that “to be sure, neither Martial Law
on the justification for the common conclusion. For this
nor a state of rebellion nor a state of emergency can
reason, each of the justices submitted his own opinion of
justify President Arroyo’s exercise of legislative power
the rationale for such proclamation. The case has now
by issuing decrees.”
only historic interest, however, because of the new
provisions in the 1987 Constitution, quoted above, on
the scope and effects of martial law.

In light of the re-definition of martial law and the (4) Limitations on the Military Powers
delimitation of its duration and consequences, we may
now say again with Willoughby that martial law in its To settle once and for all the extent of the President’s
strict sense refers to that law which has application military powers, the new Constitution has provided for
when the military arm does not supersede civil the following significant changes in the original
authority but is called upon to aid it in the execution authority of the commander-in-chief.
of its civil function.
(1) He may call out the armed forces when it becomes
The declaration of martial law, he continues, has no necessary to prevent or suppress lawless violence,
further legal effect than to warn the citizens “that the invasion or rebellion only.
military powers have been called upon by the executive
to assist him in the maintenance of law and order and (2) The grounds for the suspension of the privilege of
that while the emergency lasts, they must, upon pain of the writ of habeas corpus and the proclamation of
arrest and punishment, not commit any act which will in martial law are now limited only to invasion or
any way render difficult the restoration of order and the rebellion, when the public safely requires it.
enforcement of law. When martial law is declared, no
new powers are given to the executive; no extension of (3) The duration of such suspension or proclamation
arbitrary authority is recognized; no civil rights of the shall not exceed sixty days, following which it shall be
individuals are suspended. The relation of the citizens to automatically lifted.
their State is unchanged. Whatever interference there
(4) Within forty-eight hours after such suspension or generally defer to her judgment on the matter. Unless it
proclamation, the President shall personally or in is shown that such determination was attended by grave
writing report his action to the Congress. If not in abuse of discretion, the Court will accord respect to the
session, Congress must convene within 24 hours without President’s judgment.”
need of a call.

(5) The Congress may then, by a majority vote of all its

members voting jointly, revoke his action.

(6) The revocation may not be set aside by the President.

(7) By the same vote and in the same manner, the It is significant that, in Kulayan v. Tan, the Supreme
Congress may, upon initiative of the President, extend Court clarified as follows —
his suspension or proclamation for a period to be
determined by the Congress if the invasion or “The power to declare a state of martial law is subject
rebellion shall continue and the public safety requires to the Supreme Court’s authority to review the
the extension. factual basis thereof. By constitutional fiat, the
calling-out powers, which is of lesser gravity than the
power to declare martial law, is bestowed upon the
(8) The action of the President and the Congress shall be
President alone, xxx. Congress may revoke such
subject to review by the Supreme Court which shall proclamation or suspension and the Court may
have the authority to determine the sufficiency of the review the sufficiency of the factual basis thereof.
factual basis of such action. This matter is no longer However, there is no such equivalent provision
considered a political question and may be raised in an dealing with the revocation or review of the
appropriate proceeding by any citizen. Moreover, the President’s action to call out the armed forces. The
Supreme Court must decide the challenge within thirty distinction places the calling out power in a different
days from the time it is filed. category from the power to declare martial law and
the power to suspend the privilege of the writ of
According to the Supreme Court, "it is evident that under habeas corpus, otherwise, the framers of the
the 1987 Constitution the President and the Congress act Constitution would have simply lumped together the
three powers and provided for their revocation and
in tandem in exercising the power to proclaim martial
review without any qualification.”
law or suspend the privilege of the writ of habeas
corpus. (9) Martial law does not automatically suspend the
privilege of the writ of habeas corpus or the operation
They exercise the power, not only sequentially, but in a of the Constitution. The civil courts and the legislative
sense jointly since, after the President has initiated the bodies shall remain open. Military courts and agencies
proclamation or the suspension, only the Congress can are not conferred jurisdiction over civilians where the
maintain the same based on its own evaluation of the civil courts are functioning.
situation on the ground, a power that the President does
not have. (10) The suspension of the privilege of the writ of
habeas corpus shall apply only to persons facing
Consequently, although the Constitution reserves to the charges of rebellion or offenses inherent in or directly
Supreme Court the power to review the sufficiency of connected with invasion.
the factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow Any person arrested for such offenses must be
Congress to exercise its own review powers, which is judicially charged therewith within three days.
automatic rather than initiated. Only when Congress Otherwise he shall be released.
defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as
its final rampart.

The constitutional validity of the President’s

proclamation of martial law or suspension of the writ of
habeas corpus is first a political question in the hands
of Congress before it becomes a justiciable one in the
hands of the Court.” Moreover, “while it is true that the
Court may inquire into the factual bases for the
President’s exercise of (these powers), it would
 ascertain the guilt of the convict or, in the case of the
execution of the death sentence upon a pregnant woman,
to prevent the killing of her unborn child.

(2) Limitations

The Pardoning Power The following are the constitutional limitations on the
pardoning power of the President:
The pardoning power is provided for in Article VII as
follows: (1) Pardon cannot be granted in cases of
impeachment. Strictly speaking, an
“Sec. 19. Except in cases of impeachment, or as otherwise impeachment proceeding is not a judicial, much less a
provided in this Constitution, the President may grant criminal, prosecution and therefore does not
reprieves, commutations, and pardons, and remit fines and essentially come under the pardoning power.
forfeitures, after conviction by final judgment. However, the party convicted in an impeachment
proceeding is subject to prosecution, trial and
“He shall also have the power to grant amnesty with the punishment in an ordinary criminal action and in
concurrence of a majority of all the Members of the this case can be extended a pardon.
Congress.”
(2) No pardon can be granted for the
Executive clemency is granted for the purpose of violation of any election law, rule or regulation
relieving the harshness of the law or correcting without the favorable recommendation of the
mistakes in the administration of justice. For example, Commission on Elections. But it is to be noted in this
a person already serving sentence by virtue of a final connection that not every offense committed on
judgment may be extended a pardon if it is subsequently election day is to be considered an election
discovered that he is innocent. Under our Revised Penal offense. Hence, several persons convicted of
Code, the judge may in his decision make a having committed on that day the crime of, say,
recommendation for the pardon of the convict if qualified theft as punished under the Revised
warranted by the circumstances of the commission of the Penal Code could be validly pardoned without
offense, as where the accused is found guilty of killing the necessity of a favorable recommendation from
her father for raping her. the Commission on Elections.
The exercise of the pardoning power is discretionary (3) Pardon can be granted only after
in the President and may not be controlled by the conviction by final judgment.
legislature or reversed by the courts, save only when it
contravenes the limitations discussed below. Thus, it is In People v. Salle, a conditional pardon
incompetent for the Congress to condition the grant of a extended to the prisoner while his appeal was still
pardon by the President upon a previous clearance or pending before the Supreme Court was held to be
approval by a board of pardons. Neither would it be invalid but, in view of the special circumstances of the
justified for the judiciary to order the grant of a pardon case, he was given 30 days to withdraw his
in favor, say, of a reformed criminal. appeal to make his conviction final and the pardon
effective.
(1) Definitions
In addition to the foregoing constitutional limitations, a
A pardon is an act of grace which exempts the individual pardon cannot be extended to a person convicted of
on whom it is bestowed from the punishment which the legislative contempt, as this would violate the doctrine
law inflicts for the crime he has committed. of separation of powers, or of civil contempt since this
would involve the benefit not of the State itself but of
A commutation is a reduction or mitigation of the the private litigant whose rights have been violated by
penalty, e.g., when the death sentence is reduced to life the contemner.
imprisonment.
Pardon cannot also be extended for the purpose of
A reprieve is merely a postponement of a sentence to a absolving the pardonee of civil liability, including
date certain, or a stay of execution. It may be ordered to judicial costs, since, again, the interest that is remitted
enable the government to secure additional evidence to
does not belong to the State but to the private litigant. The Supreme Court denied it, holding that “mere
Pardon also will not restore offices forfeited. commission, not necessarily conviction by the court, of
any other crime, is enough in order that the petitioner
(3) Kinds of Pardon may be deemed to have violated the condition of his
parole or pardon. Determination of violation of such
Pardon may be classified into absolute or conditional condition rests exclusively in the sound judgment of the
and plenary or partial. An absolute pardon is one Chief Executive and the courts will not interfere by way
extended without any strings attached, so to speak, of review with any of his findings.”
whereas a conditional pardon is one under which the
convict is required to comply with certain requirements. The Supreme Court did not consider in this case that the
A plenary pardon extinguishes all the penalties ascertainment of whether or not an offense has been
imposed upon the offender, including accessory committed is not an executive but a judicial function and
disabilities, whereas a partial pardon does not. that a person cannot be deemed to have committed a
criminal offense unless he is convicted thereof by a court
Where the pardon is conditional, the offender has the of justice. The executive can only allege the commission
right to reject it since he may feel that the condition of an offense; it is for the judiciary to declare such
imposed is more onerous than the penalty sought to be commission in the form of a conviction.
remitted. But in the case of an absolute pardon, the
pardonee has no option at all and must accept it Espuelas was nevertheless later affirmed in Sumolong v.
whether he likes it or not. In this sense, an absolute Gonzales, with Justices Cruz and Paras dissenting.
pardon is similar to commutation, which is also not
subject to acceptance by the offender. A convict who has already served his prison term may
still be extended a pardon for the purpose of relieving
The condition of the pardon shall be co-extensive with him of whatever accessory liabilities have attached to
the penalty remitted unless otherwise indicated. Hence, his offense. For example, under Section 118 of the
if the condition is violated after the expiration of the Omnibus Election Code, a person who has been
remitted penalty, there can no longer be any violation sentenced to imprisonment for not less than one year
of the conditional pardon. But if the violation takes shall be disqualified from the exercise of the right of
place before the expiration of the remitted penalty, the suffrage for a period of five years from service of the
pardon itself is deemed invalidated and the pardonee sentence unless this disability is removed earlier by the
may be either recommitted by the President under the grant of pardon.
Administrative Code or prosecuted for violation of
conditional pardon under Article 159 of the Revised (4) Effects of Pardon
Penal Code. In the latter case, the penalty of prision
correctional in its minimum period shall be imposed The legal effect of a pardon is to restore not only the
upon the convict, except when the penalty remitted is offender’s liberty but also his civil and political
higher than six years, in which event he shall serve the rights. In Pelobello u. Palatino, a municipal mayor’s
unexpired portion of his original sentence. election was contested on the ground that he was
disqualified from public office because of a prior
It was held in Culanag v. Director of Prisons that the conviction and imprisonment. It was shown, however,
criminal and administrative remedies above-mentioned that before assuming office following his election he
are not mutually exclusive and may be successively was granted an absolute pardon by President
availed of by the President for the punishment of the Quezon. As a result, the Supreme Court held his former
violator of the conditional pardon. disabilities had been removed, and he was therefore
eligible for the public office in question.

In Espuelas v. Provincial Warden of Bohol,, the But the ruling in this case was modified in Monsanto v.
petitioner accepted a pardon subject to the condition that Factoran where a woman convicted of estafa through
he would not thereafter commit a violation of the penal falsification of public documents was granted an
laws of the Philippines. He was later convicted by the absolute pardon and thereafter claimed she was entitled
municipal court of* the crime of usurpation of public as a consequence to reinstatement as assistant city
functions but the case was provisionally dismissed for treasurer. Through Chief Justice Marcelo B. Fernan, the
lack of witnesses when he appealed it to the court of first Supreme Court held: (page 449)
instance. Ordered administratively reincarcerated by the
President of the Philippines for violation of his
conditional pardon, he filed a petition for habeas corpus.
The subject of Garcia v. Chairman, Commission on However, he was later acquitted by the trial court of the
Audit was an executive clemency or pardon granted to a charge of qualified theft based on the very same acts for which
public officer. He was dismissed from the service for he was dismissed. The acquittal of petitioner by the trial court
dishonesty and later charged with qualified theft for the was founded not on lack of proof beyond reasonable doubt but
on the fact that petitioner did not commit the offense imputed
same act, but was acquitted by the trial court which
to him. Aside from finding him innocent of the charge, the
found that “petitioner did not commit the offense trial court commended petitioner for his concern and
imputed to him. Aside from finding him innocent of the dedication as a public servant. Verily, petitioner's innocence is
charge, the trial court commended petitioner for his the primary reason behind the grant of executive clemency to
concern and dedication as a public servant.” Armed with him, bolstered by the favorable recommendations for his
said acquittal, he sought reinstatement but was initially reinstatement by the Ministry of Transportation and
rejected by his former employer. He appealed to the Communications and the Civil Service Commission.
President, who eventually granted him executive
clemency, on the basis of which he filed with the “The bestowal of executive clemency on petitioner in effect
Commission on Appointments a claim for back salaries completely obliterated the adverse effects of the administrative
from the date of his dismissal. The Commission denied decision which found him guilty of dishonesty and ordered his
separation from the service. This can be inferred from the
his request stating that “that the executive clemency
executive clemency itself exculpating petitioner from the
granted to him did not provide for the payment of back administrative charge and thereby directing his reinstatement,
salaries and that he has not been reinstated in the which is rendered automatic by the grant of the pardon. This
service.” He renewed his claim after he was eventually signifies that petitioner need no longer apply to be rein stated
reinstated. Again, the Commission rejected the same, to his former employment; he is restored to his office ipso
this time, explaining that “the executive clemency was facto upon the issuance of the clemency.
silent on the payment of back wages and that he had not
rendered service during the period of his claim.” He “Petitioner's automatic reinstatement to the government
eventually sought relief from the Supreme Court, which service entitles him to back wages. This is meant to afford
ordered the payment of his back salaries from the date of relief to petitioner who is innocent from the start and to make
reparation for what he has suffered as a result of his unjust
his dismissal. The Court said —
dismissal from the service. To rule otherwise would defeat the
very intention of the executive clemency, i.e., to give justice to
petitioner. Moreover, the right to back wages is afforded to
“Time and again this Court has unfolded the effects of a those with have been illegally dismissed and were thus
pardon upon the individual to whom it is granted. In Monsanto ordered reinstated or to those otherwise acquitted of the
v. Factoran, we have firmly established the general rule that charges against them. There is no doubt that petitioner's case
while a pardon has generally been regarded as blotting out the falls within the situations aforementioned to entitle him to
existence of guilt so that in the eyes of the law the offender is back wages.
as innocent as though he never committed the offense, it does
not operate for all purposes. The very essence of a pardon is “Further, it is worthy to note that the dismissal of petitioner
forgiveness or remission of guilt and not forgetfulness. It does was not the result of any criminal conviction that carried with
not erase the fact of the commission of the crime and the it forfeiture of the right to hold public office, but is the direct
conviction thereof. Pardon frees the individual from all the consequence of an administrative decision of a branch of the
penalties and legal disabilities and restores to him all his civil Executive Department over which the President, as its head,
rights. Unless expressly grounded on the person's innocence, it has the power of control. The President's control has been
cannot bring back lost reputation for honesty, integrity and fair defined to mean ‘the power of an officer to alter or modify or
dealing. The pardoned offender regains his eligibility for nullify or set aside what a subordinate officer had done in the
appointment to public office which was forfeited by reason of performance of his duties and to the judgment of the former
the conviction of the offense. But since pardon does not for the latter.’ In pardoning petitioner and ordering his
generally result in automatic reinstatement because the reinstatement, the Chief Executive exercised his power of
offender has to apply for reappointment, he is not entitled to control and set aside the decision of the Ministry of
back wages. Transportation and Communications. The clemency nullified
the dismissal of petitioner and relieved him from
“But, stated otherwise, if the pardon is based on the innocence administrative liability. The separation of the petitioner from
of the individual, it affirms this innocence and makes him a the service being null and void, he is thus entitled to back
new man and as innocent, as if he had not been found guilty of wages.”
the offense charged. When a person is given pardon because
he did not truly commit the offense, the pardon relieves the
party from all punitive consequences of his criminal act,
thereby restoring to him his clean name, good reputation and While, as earlier stated, a pardon will not relieve the
unstained character prior to the finding of guilt.
pardonee of the civil liability or such other claims as
“In the case at bar, petitioner was found administratively liable may pertain to private litigants, it will, however, have
for dishonesty and consequently dismissed from the service. the effect of remitting fines and forfeitures which
otherwise will inure to the interests of the government forgiveness being deemed more expedient for the public
itself. welfare than prosecution and punishment; pardon
condones infractions of the peace of the State.

(5) Distinctions (2) Amnesty is usually generally addressed to classes

or even communities of persons; pardon is usually
Pardon must be distinguished from parole in that the addressed to an individual.
latter involves only a release of the convict from
imprisonment but not a restoration of his liberty. (3) In amnesty, there may or may not be distinct acts
or acceptance, so that if other rights are dependent upon
The parolee is still in the custody of the law although no it and are asserted, there is affirmative evidence of
longer under confinement, unlike the pardonee whose acceptance; in pardon, there must be distinct acts of
sentence is condoned, subject only to reinstatement in acceptance.
case of violation of the condition that may have been
attached to the pardon. (4) Pardon does not require the concurrence of the
Congress; amnesty requires such concurrence.
A parole must also be distinguished from probation
in that the former is executive whereas the latter is (5) Pardon is a private act of the President which
judicial. Moreover, parole presupposes the prior service must be pleaded and proved by the person pardoned
of part of the sentence whereas probation may be because the courts do not take judicial notice of it;
granted before actual service of sentence. amnesty is a public act of which the courts take
judicial notice.

(6) Amnesty (6) Pardon looks forward and relieves the offender
from the consequences of an offense of which he has
As previously observed, the pardoning power may not been convicted; while amnesty looks backward and
be limited by the legislature nor may the President’s abolishes and puts into oblivion the offense itself; it so
discretion in its exercise be reviewed by the judiciary. overlooks and obliterates the offense with which he is
charged that the person released by amnesty stands
But when it comes to amnesty, the Constitution itself before the law precisely as though he had committed no
provides that it can be granted by the President only offense.
with the concurrence of the Congress. This
concurrence must be given by a majority of all the Accordingly, it has been ruled that “amnesty commonly
members of the Congress. denotes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which
It was the rule before that admission of guilt was not one sovereign grants to the subjects of another, who
necessary to the enjoyment of amnesty, upon the theory have offended, by some breach, the law of nations.
that amnesty looks backward and obliterates not only the
penalty but the offense itself. In the case of Vera v. Amnesty looks backward, and abolishes and puts into
People of the Philippines140 however, this doctrine was oblivion, the offense itself; it so overlooks and
reversed. The present rule requires a previous admission obliterates the offense with which he is charged, that the
of guilt since a person would not need the bene fit of person released by amnesty stands before the law
amnesty unless he were, to begin with, guilty of the precisely as though he had committed.no offense.”
offense covered by the proclamation.
“Pardon,” on the other hand, “is granted by the Chief
Executive and as such it is a private act which must be
pleaded and proved by the person pardoned, because the
courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the
courts should take judicial notice.”
The distinctions between amnesty and pardon are as
follows: A grant of amnesty shall cover only such offenses as
may be specified in the proclamation providing for the
(1) Amnesty is usually addressed to crimes against same.
the sovereignty of the State, to political offenses,
 The Diplomatic Power
The Borrowing Power
As head of State, the President is supposed to be the
spokesman of the nation on external affairs. In this
“Sec. 20. The President may contract or guarantee
capacity, he may deal with foreign states and
foreign loans on behalf of the Republic of the
governments, extend or withhold recognition, maintain
Philippines with the prior concurrence of the Monetary
diplomatic relations, enter into treaties, and otherwise
Board, and subject to such limitations as may be
transact the business of foreign relations.
provided by law. The Monetary Board shall, within
thirty days from the end of every quarter of the calendar
The conduct of external affairs, according to Jefferson,
year, submit to the Congress a complete report of its
“is executive altogether.” Chief Justice Marshall
decisions on applications for loans to be contracted or
described the President of the United States as “the sole
guaranteed by the Government or government-owned
organ of the nation in its external relations and its sole
and controlled corporations which would have the effect
representative with foreign nations.”
of increasing the foreign debt, and containing other
matters as may be provided by law.”
It has already been noted that the President of the
Philippines is empowered to appoint ambassadors, other
This provision reverses the extraordinary authority
public ministers and consuls. No less important, he is
granted by the 1973 charter to the President, who grossly
also vested with the power to conclude treaties, except
abused it to the prejudice of the national economy.
that, conformably to the usual rule:
Doubtless, a President concerned only with the
prosperity or success of his own administration may be
“Sec. 21. No treaty or international agreement
tempted to contract or guarantee loans to subsidize his
shall be valid and effective unless concurred in
program of government and leave it to succeeding
by at least two-thirds of all the Members of the
administrations to pay off the obligations he has incurred
Senate.”
on behalf of the Republic of the Philippines.
Interestingly, the records of the Constitutional
Apart from being unfair to the future generations of
Commission show that the phrase “international
taxpayers who will inherit the burden but not the
agreement” was not intended to include the executive
benefits of these debts, such a policy could also enable
agreement, which apparently can still be concluded by
foreign lending institutions, like the World Bank and the
the President alone without the necessity of Senate
International Monetary Fund, to impose conditions on
concurrence. This is a rather strange decision in the light
these loans that might impair our economic and even
of the general intention to limit the President’s powers as
political independence. It is fitting, therefore, that the
a hedge against the resurgence of another dictatorship.
power is now made subject to the limitations provided
for in the above section.
An executive agreement, according to the Supreme
Court, is a treaty within the meaning of that word in
According to the Supreme Court, “the fact that this
international law and constitutes enforceable
power is subject to the concurrence of another entity
domestic law.
does not make such power less executive.”
Unlike a treaty though, an executive agreement does
“‘Quintessential’ is defined as the most perfect
not require legislative concurrence, is usually less
embodiment of something, the concentrated essence of
formal and deals with a narrower range of subjects.
substance. On the other hand, ‘non-delegable’ means
All that would be required for its efficacy would be the
that a power or duty cannot be delegated to another or,
agreement must be between states; it must be written;
even if delegated, the responsibility remains with the
and it must be governed by international law.
obligor. The power to enter into an executive agreement
is in essence an executive power. This authority of the
A “Contract Agreement” entered into by a Philippine
President to enter into executive agreements without the
government-owned or controlled corporation and a
concurrence of the Legislature has traditionally been
“state” corporation “duly organized and created under
recognized in Philippine jurisprudence. Now, the fact
the laws of the People’s Republic of China,” which was
that the President has to secure the prior concurrence of
executed by them “as entities with personalities distinct
the Monetary Board, which shall submit to Congress a
and separate from the Philippine and Chinese
complete report of its decision before contracting or
governments, respectively” was considered not as an
guaranteeing foreign loans, does not diminish the
executive agreement but as “an ordinary commercial
executive nature of the power.”
contract that can be questioned before the local courts.”
 “An executive agreement that does not require the
In Bay an Muna u. Romulo, the Court further clarified concurrence of the Senate for its ratification may not
that the “terms ‘exchange of notes’ and ‘executive be used to amend a treaty that, under the
agreements’ have been used interchangeably, exchange Constitution, is the product of the ratifying acts of
of notes being considered a form of executive agreement the Executive and the Senate.
that becomes binding through executive action. On the
other hand, executive agreements concluded by the In Pimentel u. Executive Secretary, the petitioner
President ‘sometimes take the form of exchange of notes sought to compel the Office of the Executive Secretary
and at other times that of more for mal documents and the Department of Foreign Affairs to transmit the
denominated ‘agreements’ or ‘protocols.’” Moreover — signed copy of the Rome Statute of the International
Criminal Court to the Senate of the Philippines for its
“Under international law, there is no difference between concurrence in accordance with Section 21, Article VII
treaties and executive agreements in terms of their binding of the 1987 Constitution. The Supreme Court dismissed
effects on the contracting states concerned, as long as the the petition, stating —
negotiating functionaries have remained within their powers.
Neither, on the domestic sphere, can one be held valid if it
“In filing this petition, the petitioners interpret Section
violates the Constitution. Authorities are, however, agreed that
one is distinct from another for accepted reasons apart from
21, Article VII of the 1987 Constitution to mean that the
the concurrence-requirement aspect. As has been observed by power to ratify treaties belongs to the Senate. It should
US constitutional scholars, a treaty has greater ‘dignity" than be emphasized that under our Constitution, the power to
an executive agreement, because its constitutional efficacy is ratify is vested in the President, subject to the
beyond doubt, a treaty having behind it the authority of the concurrence of the Senate. The role of the Senate,
President, the Senate, and the people; a ratified treaty, unlike however, is limited only to giving or withholding its
an executive agreement, takes precedence over any prior consent, or concurrence, to the ratification.
statutory enactment.”
Hence, it is within the authority of the President to
It is significant that the Court further declared in said refuse to submit a treaty to the Senate , having secured
case that “treaties and international agreements actually its consent for its ratification, refuse to ratify it.
have a limiting effect on the otherwise encompassing Although the refusal of a state to ratify a treaty which
and absolute nature of sovereignty.” Thus — has been signed in its behalf is a serious step that should
not be taken lightly, such decision is within the
“To be sure, the nullity of the subject non-surrender agreement competence of the President alone, which cannot be
cannot be predicated on the postulate that some of its encroached by this Court via a writ of mandamus. This
provisions constitute a virtual abdication of its sovereignty.
Court has no jurisdiction over actions seeking to enjoin
Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty. The the President in the performance of his official duties.
Constitution, as drafted, did not envision a reclusive The Court, therefore, cannot issue the writ of mandamus
Philippines isolated from the rest of the world. It even adheres, prayed for by the petitioners as it is beyond its
as earlier stated, to the policy of cooperation and amity with jurisdiction to compel the executive branch of the
all nations. By their nature, treaties and international government to transmit the signed text of Rome Statute
agreements actually have a limiting effect on the otherwise to the Senate.”
encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some Indeed, the treaty-making power is exclusive to the
aspects of their state power or agree to limit the exercise of President. Congress, while possessing vast legislative
their otherwise exclusive and absolute jurisdiction. The usual
powers, may not interfere in the field of treaty
underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal
negotiations. While Article VII, Section 21 provides for
undertaking of one contracting party to grant the same Senate concurrence, such pertains only to the validity of
privileges or immunities to the other. On the rationale that the the treaty under consideration, not to the conduct of
Philippines has adopted the generally accepted principles of negotiations attendant to its conclusion. Moreover, it is
international law as part of the law of the land, a portion of not even Congress as a whole that has been given the
sovereignty may be waived without violating the Constitution. authority to concur as a means of checking the treaty-
Such waiver does not amount to an unconstitutional making power of the President, but only the Senate.
diminution or deprivation of jurisdiction of Philippine courts.”
Treaties and other international agreements concluded
However, an executive agreement cannot be used to by the President are also subject to check by the
amend a duly ratified and existing treaty, such as the Supreme Court, which has the power to declare them
RP-US Bases Treaty. unconstitutional
The Budgetary Power When President Washington withheld from the U.S.
Congress requested information relating to the
Originally vested in the President by the Commonwealth negotiation of a treaty, the legislators did not press the
Constitution but thereafter transferred to the Prime issue. But when President Nixon refused to release
Minister by the 1973 Charter, the budgetary power is information concerning the Watergate scandal, claiming
once again conferred on the President by the following what he called “executive privilege,” the U.S. Supreme
provision: Court held his refusal invalid, declaring in part as
follows:
“Sec. 22. The President shall submit to the
Congress within thirty days from the opening of “x x x neither the doctrine of separation of powers, nor
every regular session, as the basis of the general the need for confidentiality of high-level
appropriations bill, a budget of expenditures and communications, without more, can sustain an absolute,
sources of financing, including receipts existing unqualified Presidential privilege of immunity from
and proposed revenue measures.” judicial process under all circumstances. The President’s
need for complete candor and objectivity from advisers
This power is properly entrusted to the executive calls for great deference from the courts. However, when
department as it is the President who, as chief the privilege depends solely on the broad, un
administrator and enforcer of the laws, is in the best differentiated claim of public interest in the
position to determine the needs of the government and confidentiality of such conversations, a confrontation
propose the corresponding appropriations therefor on the with other values arises. Absent a claim of need to
basis of existing or expected sources of revenue. “In the protect military, diplomatic, or sensitive national
chief executive dwell the powers to run government. security secrets, we find it difficult to accept the
Placed upon him is the power to recommend the budget argument that even the very important interest in
necessary for the operation of the Government, which confidentiality of Presidential communications is
implies that he has the necessary authority to evaluate significantly diminished by production of such material
and determine the structure that each government agency for in-camera inspection with all the protection that a
in the executive department would need to operate in the district court will be obliged to provide.”
most economical and efficient manner.”

In this connection, it is reminded that “the Congress

may not increase the appropriations recommended
by the President for the operation of the Government
as specified in the budget.

The President usually discharges the informing power

The Informing Power through what is known as the state-of-the-nation
address, which is delivered at the opening of the
“Sec. 23. The President shall address the Congress at the regular session of the legislature. He may also appear
opening of its regular session. He may also appear before it at before it at any other time for the same purpose.
any other time.”
Other Powers
Although couched in mandatory language, the first
sentence of this provision does not as a rule impose a Elsewhere in the Constitution, the President is vested
compellable duty on the President. In his discretion, he with the power to call the Congress to special
may or may not give information to the legislature, al session,160 to approve or veto bills,161 to consent to the
though he will usually choose to do so for practical rea deputization of government personnel by the
sons. For one thing, he will want to maintain the good Commission on Elections,162 to discipline its
will of the Congress and so will not deny its request for deputies,163 and by delegation, to exercise
information if its release will not in his belief prejudice emergency164 and tariff powers.165
the public interest. For another, the requested
information may be needed as the basis of the legislation Resume
he is recommending and he knows that lacking such
basis the legislature would be justified in not acting on
his proposals.
The following eloquent observations of Prof. Clinton
Rossiter are a fitting resume of the foregoing study of
the powers of the President and their limitations:

“xxx the President is not a Gulliver immobilized by ten

thousand tiny cords, nor even a Prometheus chained to a
rock of frustration. He is, rather, a kind of magnificent lion
who can roam widely and do great deeds so long as he does
not try to break loose from his broad reservation. Our
pluralistic system of restraints is designed to keep him from
going out of bounds, not to paralyze him in the field that
has been reserved for his use. He will feel few checks upon
his power if he uses that power as he should. This may well
be the final definition of the strong and successful
President: the one who knows just far as he can go in the
direction he wants to go. If he cannot judge the limits of his
power, he cannot call upon its strength. If he can not sense
the possible, he will exhaust himself attempting the
impossible. The power of the Presidency moves as a
mighty host only with the grain of morality and liberty.”