B.

Executive Department

1. The President

a. Qualifications, Election, Term and Oath

Section 2. No person may be elected President unless he is a natural-born citizen

of the Philippines, a registered voter, able to read and write, at least forty years
immediately preceding such election. (Art VII)

Qualifications

1) Natural-born citizen
2) Registered voter
3) Able to read and write
4) 40 years of age on the day of election
5) Resident of the Philippines for at least 10 years immediately preceding the election

Section 4. The President and the Vice-President shall be elected by direct vote of
the people for a term of six years which shall begin at noon on the thirtieth day
of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election.
No person who has succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any time.

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

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

The returns of every election for President and Vice-President, duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the certificates
of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all the certificates in the presence of the Senate and the
House of Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but
in case two or more shall have an equal and highest number of votes, one of them
shall forthwith be chosen by the vote of a majority of all the Members of both
Houses of the Congress, voting separately.

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

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating
to the election, returns, and qualifications of the President or Vice-President, and
may promulgate its rules for the purpose.

TERM –A term of six years which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of the same date, six years
thereafter.
1

ELECTION: By direct vote of the people

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Political Law 1 2023 Atty. Edgar Pascua II

Regular - Unless otherwise provided by law, the regular election for President and
Vice-President shall be held on the second Monday of May.

Rule: For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino which
is in effective control of the entire country so that it is not merely a de facto government but in fact
and law a de jure government. Moreover, the community of nations has recognized the legitimacy
of the present government. All the eleven members of this Court, as reorganized, have sworn to
uphold the fundamental law of the Republic under her government.1G.R. No. 76180 October 24,
1986IN RE: SATURNINO BERMUDEZ

Special- When a vacancy occurs in the offices of President and Vice- President more
than eighteen months before the date of the next presidential election, a special
election to elect a President and a Vice-President shall be called (Art VII, 10.)

In PBA v COMELEC, 140 SCRA 455, Is the resignation submitted by Marcos, which
was conditioned on the election, proclamation and assumption into office by the
elected President, a valid resignation as to authorize the Batasan to pass a Snap
Election Law? The Court could have validly issued an injunction to stop the COMELEC
from proceeding with the preparations for the election. But it did not, citing its delay
in deciding the case and the sentiments of the people that developed in the meantime
as reason for its inaction. According to the court, what at first was a legal question
became a political question because it was overtaken by events.2

RE-ELECTION - The President shall not be eligible for any re-election. No person who
has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.

Read: G.R. No. 191988 August 31, 2010, ATTY. EVILLO C. PORMENTO, vs. JOSEPH
"ERAP" EJERCITO ESTRADA and COMMISSION ON ELECTIONS

ELECTORAL TRIBUNAL - The Supreme Court, sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and qualifications of the President or
Vice-President, and may promulgate its rules for the purpose.

Case: Santiago and Ramos were contenders to the Presidential Election on the year 1992.
Ramos emerged winner, hence the protest of Santiago. In the interim, Santiago ran and won as
senator in the 1995 elections.

Issue: Whether this case had been rendered moot by the election of the Protestant as a Senator
in the May 1995 election and her assumption of office as such on 30 June 1995

Rule: Indeed, it would be entirely different where the protestant pursued the new position through
a popular election, as in the case of Protestant Santiago who filed a certificate of candidacy for
Senator in the 8 May 1995 election, campaigned for such office, and submitted herself to be voted
upon. She knew that the term of office of the Senators who would then be elected would be six
years, to commence at noon on the thirtieth day of June next following their election and to end
at noon of 30 June 2001. Knowing her high sense of integrity and candor, it is most unlikely that
during her campaign, she promised to serve the electorate as Senator, subject to the outcome of
this protest. In short, she filed her certificate of candidacy for the Senate without any qualification,
condition, or reservation.
2
Page

1
Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon
C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.]
2
See BATAS PAMBANSA BLG. 883 - AN ACT CALLING A SPECIAL ELECTION FOR PRESIDENT AND VICE-PRESIDENT,
PROVIDING FOR THE MANNER OF THE HOLDING THEREOF, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
PURPOSES, in relation to G.R. No. 72915 (Philippine Bar Association, et. al. vs. The Commission on Elections, et. al.)

Political Law 1 2023 Atty. Edgar Pascua II

In so doing, she entered into a political contract with the electorate that if elected, she would
assume the office of Senator, discharge its functions and serve her constituency as such for the
term for which she was elected. These are givens which are in full accord with the principle
enshrined in the Constitution that, public office is a public trust, and public officers and employees
must at all times be accountable to the people and serve them with utmost responsibility, integrity,
loyalty and efficiency.

The term of office of the Senators elected in the 8 May 1995 election is six years, the first three
of which coincides with the last three years of the term of the President elected in the 11 May
1992 synchronized elections. The latter would be Protestant Santiago's term if she would succeed
in proving in the instant protest. that she was the true winner in the 1992 elections. In assuming
the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or
at the very least, in the language of Moraleja, abandoned her "determination to protect and pursue
the public interest involved in the matter of who is the real choice of the electorate." Such
abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal
of this protest would serve public interest as it would dissipate the aura of uncertainty as to the
results of the 1992 presidential election, thereby enhancing the all too crucial political stability of
the nation during this period of national recovery.

The Tribunal, nonetheless, confirmed its power to dismiss an electoral case on technical
grounds.… the Rules of the Tribunal allow summary dismissal of election protests even for less
important grounds, to repeat, such as the petition filed with the Tribunal or the annexes attached
thereto are not clearly legible, or the filing fees and cash deposits were not filed within the periods
fixed in the Rules, and the additional provision for dismissal under Rule 61.

WHEREFORE, the Tribunal hereby resolved to DISMISS the instant election protest, since it has
been rendered moot and academic by its abandonment or withdrawal by the Protestant as a
consequence of her election and assumption of office as Senator and her discharge of the duties
and functions thereof. Case No. 001 February 13, 1996 MIRIAM DEFENSOR- vs. FIDEL
VALDEZ RAMOS

Case: On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe,
Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President3 of the
Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the
forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a
natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan"
Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.

Petitioner in G.R. No. 161824, initiated, on 09 January 2004, a petition before the Commission on
Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of
candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of
candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan
Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject.

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional
provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
3

Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
Page

contests, has constrained this Court to declare, in Lopez vs. Roxas,as "not (being) justiciable"

3 Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-
born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten years immediately preceding such election”

Political Law 1 2023 Atty. Edgar Pascua II

controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal
to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-
President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic
Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the
members of the tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the
statutory set-up, nonetheless, would now be deemed revived under the present Section 4,
paragraph 7, of the 1987 Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support
this premise –

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or
a petition for quo warranto against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo warranto shall not include an election
protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified petition
with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the
election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office. In such context, the election contest can only contemplate a post-
election scenario. In Rule 14, only a registered candidate who would have received either the
second or third highest number of votes could file an election protest. This rule again presupposes
a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7,
of the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. G.R. No.
161434 March 3, 2004 TECSON vs. COMELEC

Case: Past midnight, in the early hours of June 24, 2004, the Congress as the representatives of
the sovereign people and acting as the National Board of Canvassers, in a near-unanimous roll-
call vote, proclaimed Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the
Philippines. She obtained 12,905,808 votes, as against 11,782,232 votes for the second-placer,
the movie actor Fernando Poe, Jr. (FPJ). She took her Oath of Office before the Chief Justice of
the Supreme Court on June 30, 2004. Refusing to concede defeat, the second-placer in the
elections, Mr. FPJ, filed seasonably an election protest before this Electoral Tribunal on July 23,
2004.

On December 14, 2004, the Protestant died in the course of his medical treatment at St. Luke’s
4

Hospital.
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Political Law 1 2023 Atty. Edgar Pascua II

However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a
fortuitous intervening event, appears to abate the present controversy in the public arena. Instead,
notice may be taken of periodic mass actions, demonstrations, and rallies raising an outcry for
this Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all. The
oracular function of this Tribunal, it would appear, needs to be fully exercised to make manifest
here and abroad who is the duly elected leader of the Filipino nation.

Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond
its mandate under the Constitution and the law. Further, this Tribunal is guided by its Rules, as
well as the Rules of Court in a suppletory manner. Considering the transcendental importance of
the electoral contest involving the Presidency, a rush to judgment is simply out of the question.
Yet decide the matter we must, without further delay, to prevent popular unrest and avoid further
destabilization of government at the highest level.

Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during
the pendency of the latter’s protest case?

It can be gleaned from the citation of this rule that movant / intervenor seeks to appear before this
Tribunal as the legal representative/substitute of the late protestant prescribed by said Section
16. However, in our application of this rule to an election contest, we have every time ruled that a
public office is personal to the public officer and not a property transmissible to the heirs upon
death. Thus, we consistently rejected substitution by the widow or the heirs in election contests
where the protestant dies during the pendency of the protest.

This is not to say that death of the protestant necessarily abates the pending action. We have
held as early as Vda. de De Mesa (1966) that while the right to a public office is personal and
exclusive to the public officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the court of all authority to
continue the protest proceedings. Hence, we have allowed substitution and intervention but only
by a real party in interest. A real party in interest is the party who would be benefited or injured by
the judgment, and the party who is entitled to the avails of the suit

We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit
of one’s right to a public office, and second, it is imbued with public interest.

But herein movant/intervenor, Mrs. FPJ, has overly stressed that it is with the "paramount public
interest" in mind that she desires "to pursue the process" commenced by her late husband. She
avers that she is "pursuing the process" to determine who truly won the election, as a service to
the Filipino people. We laud her noble intention and her interest to find out the true will of the
electorate. However, nobility of intention is not the point of reference in determining whether a
person may intervene in an election protest. Rule 19, Section 1 of the Rules of Court is the
applicable rule on intervention in the absence of such a rule in the PET Rules. In such intervention,
the interest which allows a person to intervene in a suit must be in the matter of litigation and of
such direct and immediate character that the intervenor will either gain or lose by the effect of the
judgment. In this protest, Mrs. FPJ will not immediately and directly benefit from the outcome
should it be determined that the declared president did not truly get the highest number of votes.
P.E.T. CASE No. 002March 29, 2005 RONALD ALLAN POE a.k.a. FERNANDO POE, JR., vs.
GLORIA MACAPAGAL-ARROYO

Oath or Affirmation:

Section 5. Before they enter on the execution of their office, the President, the Vice-President,
or the Acting President shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service
of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)

b. Privilege and salary

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Political Law 1 2023 Atty. Edgar Pascua II

 Section 6. The President shall have an official residence. The salaries of the President and
Vice-President shall be determined by law and shall not be decreased during their tenure.
No increase in said compensation shall take effect until after the expiration of the term of the
incumbent during which such increase was approved. They shall not receive during their
tenure any other emolument from the Government or any other source.

EXECUTIVE PRIVILEGE

The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution. Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the
United States.

Schwart defines executive privilege as "the power of the Government to withhold

information from the public, the courts, and the Congress. Similarly, Rozell defines it
as "the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public." x x x In this
jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject
of Nixon. It quoted the following portion of the Nixon decision which explains the
basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free to explore alternatives in
the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation
of powers under the Constitution4

Case: Petitioners, non-government organizations, Congresspersons, citizens and taxpayers,

seek via the present petition for mandamus and prohibition to obtain from respondents the full
text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine
and Japanese offers submitted during the negotiation process and all pertinent attachments and
annexes thereto.

Petitioners Congressmen Tañada and Aguja filed House Resolution No. 551 calling for an inquiry
into the bilateral trade agreements then being negotiated by the Philippine government,
particularly the JPEPA which became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization into the negotiations of the JPEPA.

In the course of its inquiry, the House Committee requested herein respondent to study and
negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request,

The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippines with another country in the event the Senate grants its consent to it, covers a broad
range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs
procedures, paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation, competition policy, mutual
recognition, dispute avoidance and settlement, improvement of the business environment, and
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general and final provisions

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Senate v. Ermita G.R. No. 169777 April 20, 2006

Political Law 1 2023 Atty. Edgar Pascua II

Rule: Privileged character of diplomatic negotiations - The privileged character of diplomatic
negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to
information, the Court in Chavez v. PCGG held that "information on inter-government exchanges
prior to the conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest." Even earlier, the same privilege was upheld
in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the
reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of speech or of the press nor of
the freedom of access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision which
are inherent in executive action. Another essential characteristic of diplomacy is its confidential
nature. Although much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed
and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through without many, many private talks
and discussion, man to man; many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their troubles at home and of their
differences with other countries and with other delegates; they tell you of what they would
do under certain circumstances and would not do under other circumstances… If these
reports… should become public… who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-
284)

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As
expressed by one writer, "It can be said that there is no more rigid system of silence anywhere
in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President
Wilson in starting his efforts for the conclusion of the World War declared that we must have
"open covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. In
the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is ample
opportunity for discussion before it is approved.(The New American Government and Its
Works, James T. Young, 4th Edition, p. 194)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,
viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its sole representative with
foreign nations." Annals, 6th Cong., col. 613… G.R. No. 170516 July 16, 2008 AKBAYAN
CITIZENS ACTION PARTY ("AKBAYAN"), vs. THOMAS G. AQUINO

Rule: The elements of presidential communications privilege, to wit:

1) The protected communication must relate to a "quintessential and non-delegable presidential

power."
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Political Law 1 2023 Atty. Edgar Pascua II

2) The communication must be authored or "solicited and received" by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in "operational
proximity" with the President.

3) The presidential communications privilege remains a qualified privilege that may be overcome
by a showing of adequate need, such that the information sought "likely contains important
evidence" and by the unavailability of the information elsewhere by an appropriate investigating
authority. G.R. No. 180643 March 25, 2008 NERI vs. SENATE COMMITTEE

c. Prohibitions

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct
of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries. (Art VII)

1. The President, Vice-President

i. Shall not hold any other office or employment during their tenure.

(This includes the Members of the Cabinet, and their deputies or assistants,
unless otherwise provided in this Constitution)

Rationale and “Ex Officio Posts

Case: EO 284, allowing Cabinet Officials from holding other offices, is here challenged.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet,
their undersecretaries and assistant secretaries to hold other government offices or positions in
addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution, which provides as follows:

"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office."

Issue: Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is
quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries."

Rule: We rule in the negative.

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Political Law 1 2023 Atty. Edgar Pascua II

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not more
than two (2) positions in the government and government corporations, Executive Order No. 284
actually allows them to hold multiple offices or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.

If maximum benefits are to be derived from a department head's ability and expertise, he should
be allowed to attend to his duties and responsibilities without the distraction of other governmental
offices or employment. He should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this concentration of attention, knowledge and
expertise, particularly at this stage of our national and economic development, far outweigh the
benefits, if any, that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly imposed on
other public officials or employees such as the Members of Congress, members of the civil service
in general and members of the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to impose upon said class stricter
prohibitions.

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a
blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should see
it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the Constitution itself.

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7,
Article IX-B of the 1987 Constitution. . . .

xxx xxx xxx

The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed as applying to posts occupied by the
Executive officials specified therein without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of said officials' office. The reason is
that these posts do no comprise "any other office" within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on said officials. …

[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the
primary functions of the concerned official's office. The term ex-officio means "from office; by
9

virtue of office." It refers to an "authority derived from official character merely, not expressly
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conferred upon the individual character, but rather annexed to the official position." Ex-officio

Political Law 1 2023 Atty. Edgar Pascua II

likewise denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office." An ex-officio member of a
board is one who is a member by virtue of his title to a certain office, and without further warrant
or appointment. To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the
Light Rail Transit Authority.

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

…[E]x-officio posts held by the executive official concerned without additional compensation as
provided by law and as required by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the constitutional prohibition... G.R. No.
83896 February 22, 1991 CIVIL LIBERTIES UNION vs. THE EXECUTIVE SECRETARY

Rule: We hold that the position of petitioner is against the law and jurisprudence. The COA is
correct that there is no legal basis to grant per diem, honoraria or any allowance whatsoever to
the NAC ex officio members' official representatives.

In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding
multiple positions in the government and receiving double compensation: (1) the blanket
prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding
multiple government offices, unless otherwise allowed by law or the primary functions of their
positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his
official family from holding any other office, profession, business or financial interest, whether
government or private, unless allowed by the Constitution.

The NAC ex officio members' representatives who were all appointive officials with ranks below
Assistant Secretary are covered by the two constitutional prohibitions.

The NAC ex officio members' representatives are not exempt from the general prohibition
because there is no law or administrative order creating a new office or position and authorizing
additional compensation therefor. G. R. No. 156982September 8, 2004 NATIONAL AMNESTY
COMMISSION, vs. COMMISSION ON AUDIT

Case: In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV of the
Bureau of Labor Relations in the Department of Labor and Employment.

In a Letter dated May 11, 1995, Acting Secretary Jose S. Brilliantes of the Department of Labor
and Employment designated the petitioner to be the DOLE representative to the Board of
Directors of PEZA in pursuance to Section 11 of Republic Act No. 7916, otherwise known as the
Special Economic Zone Act of 1995,

As representative of the Secretary of Labor to the PEZA, the petitioner was receiving a per
diem for every board meeting he attended during the years 1995 to 1997

After a post audit of the PEZA’s disbursement transactions, the COA disallowed the payment
of per diems to the petitioner

The uniform reason for the disallowance was stated in the Notices, as follows:

“Cabinet members, their deputies and assistants holding other offices in addition to their primary
office and to receive compensation therefore was declared unconstitutional by the Supreme Court
in the Civil Liberties Union vs. Executive Secretary. Disallowance is in pursuance to COA
Memorandum No. 97-038 dated September 19, 1997 implementing Senate Committee Report
No. 509”
10

Hence, this petition.

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Political Law 1 2023 Atty. Edgar Pascua II

The issue in this case is whether or not the COA correctly disallowed the per diems received by
the petitioner for his attendance in the PEZA Board of Directors’ meetings as representative of
the Secretary of Labor.

Rule: We rule in the affirmative.

The COA anchors the disallowance of per diems in the case of Civil Liberties Union v. Executive
Secretary where the Court declared Executive Order No. 284allowing government officials to hold
multiple positions in government, unconstitutional. Thus, Cabinet Secretaries, Undersecretaries,
and their Assistant Secretaries, are prohibited to hold other government offices or positions in
addition to their primary positions and to receive compensation therefor, except in cases where
the Constitution expressly provides

It must be noted that the petitioner’s presence in the PEZA Board meetings is solely by virtue of
his capacity as representative of the Secretary of Labor. As the petitioner himself admitted, there
was no separate or special appointment for such position. Since the Secretary of Labor is
prohibited from receiving compensation for his additional office or employment, such prohibition
likewise applies to the petitioner who sat in the Board only in behalf of the Secretary of Labor.

In Dela Cruz v. Commission on Audit., it was held that "The ex-officio position being actually and
in legal contemplation part of the principal office, it follows that the official concerned has no right
to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It
should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board
as an ex-officio member thereof, he is actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary banking matters, which come under
the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or
some other such euphemism. By whatever name it is designated, such additional compensation
is prohibited by the Constitution."

Similarly in the case at bar, we cannot allow the petitioner who sat as representative of the
Secretary of Labor in the PEZA Board to have a better right than his principal. As the
representative of the Secretary of Labor, the petitioner sat in the Board in the same capacity as
his principal. Whatever laws and rules the member in the Board is covered, so is the
representative; and whatever prohibitions or restrictions the member is subjected, the
representative is, likewise, not exempted. Thus, his position as Director IV of the DOLE which the
petitioner claims is not covered by the constitutional prohibition set by the Civil Liberties
Union case is of no moment. The petitioner attended the board meetings by the authority given
to him by the Secretary of Labor to sit as his representative. If it were not for such designation,
the petitioner would not have been in the Board at all. G.R. No. 147392March 12,
2004BENEDICTO ERNESTO R. BITONIO, JR., vs. COMMISSION ON AUDIT and CELSO D.
GANGAN, CHAIRMAN OF THE COMMISSION ON AUDIT

Case: This petition assails the Decision rendered by the Commission on Audit (petitioners' appeal
from the Notice disallowed payment to petitioners of their representation allowances and per
diems. Petitioners (alternates), numbering 20, were members of the Board of Directors of the
National Housing Authority.

Accordingly, NHA Resident Auditor Vasquez issued Notice of Disallowance disallowing in audit
the payment of representation allowances and per diems of "Cabinet members who were the ex-
officio members of the NHA Board of Directors and/or their respective alternates who actually
received the payments,"

Rule: Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are
prohibited from receiving "extra (additional) compensation, whether it be in the form of a per diem
or an honorarium or an allowance, or some other such euphemism," it follows that petitioners who
sit as their alternates cannot likewise be entitled to receive such compensation. A contrary rule
would give petitioners a better right than their principals. G.R. No. 138489 November 29, 2001
11

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR. et al.vs. COMMISSION ON AUDIT

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Political Law 1 2023 Atty. Edgar Pascua II

 ii. They shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

Note: Conflict of interest" arises when a public official or employee is a member of a

board, an officer, or a substantial stockholder of a private corporation or owner or
has a substantial interest in a business, and the interest of such corporation or
business, or his rights or duties therein, may be opposed to or affected by the faithful
performance of official duty.5

2. As to the spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President (during his tenure)

i. Shall not be appointed as

- Members of the Constitutional Commissions, or

- The Office of the Ombudsman, or
- As Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries

a. In comparison to the following;

Section 13. No Senator or Member of the House of Representatives may hold any other office
or employment in the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be appointed to any office which may have been
created or the emoluments thereof increased during the term for which he was elected. (Art
VI)

Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be affected by the functions
of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or
in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
(Art IX A)

Section 7. No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure (art IX B )

Section 12. The Members of the Supreme Court and of other courts established by law shall
not be designated to any agency performing quasi-judicial or administrative function. (Art VIII)

b. Exceptions to prohibitions on holding additional positions:

1. Section 3. xxx

The Vice-President may be appointed as a Member of the Cabinet. Such appointment

requires no confirmation. (Art VII)

2. Section 8.

A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
12

composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
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representative of the Congress as ex officio Members, a representative of the Integrated Bar,

5
Republic Act No. 6713 - Code of Conduct and Ethical Standards for Public Officials and Employees

Political Law 1 2023 Atty. Edgar Pascua II

 a professor of law, a retired Member of the Supreme Court, and a representative of the private
sector. Xxx (Art VIII)

3. Ex – Officio Positions

Section 7. No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including Government-owned or controlled corporations or
their subsidiaries. (Art IX B)

Any appointive official (including cabinet members) may hold any other office or
employment in the Government or any subdivision, agency or instrumentality
thereof, including Government-owned or controlled corporations or their subsidiaries
if allowed

 by law or
 by the primary functions of his position

d. Succession

1. At the BEGINNING of the Term

Section 7. The President-elect and the Vice President-elect shall assume office at
the beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President
until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act as
President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died
or shall have become permanently disabled, the Vice President-elect shall become
President.

Where no President and Vice-President shall have been chosen or shall have
qualified, or where both shall have died or become permanently disabled, the
President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall act as President until a President or a Vice-President shall
have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act as
President shall be selected until a President or a Vice-President shall have
qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.

Succession when the President and Vice-President are elected in the regular election;

a. If the President-elect fails to qualify, the Vice President-elect shall act as President
until the President-elect shall have qualified.

Here, the President was unable to take his oath of office on June 30

b. If a President shall not have been chosen, the Vice President-elect shall act as
13

President until a President shall have been chosen and qualified.

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Political Law 1 2023 Atty. Edgar Pascua II

 As in case of a tie which has yet to be broken by Congress

c. If at the beginning of the term of the President, the President-elect shall have died
or shall have become permanently disabled, the Vice President-elect shall become
President.

Death or permanent disability at the beginning of the term of the president will
result to the Vice –President as becoming the president

This results to the vacancy in the office of the Vice President hence, the successor
(then Vice President) shall nominate a Vice-President from among the Members
of the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all the Members of both Houses of the
Congress, voting separately.

d. Where no President and Vice-President shall have been chosen or shall have
qualified, or where both shall have died or become permanently disabled, the
President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall act as President until a President or a Vice-President shall
have been chosen and qualified.

This applies when both the president and the vice president shall have been
chosen or shall have qualified, or where both shall have died or become
permanently disabled.

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

“The Congress shall, by law, provide for the manner in which one who is to act
as President shall be selected until a President or a Vice-President shall have
qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.”

2. DURING the Term

Section 8. In case of death, permanent disability, removal from office, or

resignation of the President, the Vice-President shall become the President to
serve the unexpired term. In case of death, permanent disability, removal from
office, or resignation of both the President and Vice-President, the President of
the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice-President
shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of death,
permanent disability, or resignation of the Acting President. He shall serve until
the President or the Vice-President shall have been elected and qualified, and be
subject to the same restrictions of powers and disqualifications as the Acting
President. (Art VII)

Section 10. The Congress shall, at ten o'clock in the morning of the third day
after the vacancy in the offices of the President and Vice-President occurs,
convene in accordance with its rules without need of a call and within seven days,
enact a law calling for a special election to elect a President and a Vice-President
14

to be held not earlier than forty-five days nor later than sixty days from the time
of such call. The bill calling such special election shall be deemed certified under
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paragraph 2, Section 26, Article V1 of this Constitution and shall become law

Political Law 1 2023 Atty. Edgar Pascua II

 upon its approval on third reading by the Congress. Appropriations for the special
election shall be charged against any current appropriations and shall be exempt
from the requirements of paragraph 4, Section 25, Article V1 of this Constitution.
The convening of the Congress cannot be suspended nor the special election
postponed. No special election shall be called if the vacancy occurs within
eighteen months before the date of the next presidential election. (Art VII)

In case of the vacancy in the office of President, the Vice-President shall become the
President to serve the unexpired term.

As above, this results to the vacancy in the office of the Vice President hence, the
successor (then Vice President) shall nominate a Vice-President from among the
Members of the Senate and the House of Representatives who shall assume office
upon confirmation by a majority vote of all the Members of both Houses of the
Congress, voting separately.

In case of the vacancy in the offices of both the President and Vice-President, the
President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice-President shall
have been elected and qualified.

Effect on the term of the vice president as successor

The effect of such a term can be similar to what the case of Borja vs., COMELEC
provides (Only in comparison as to the points that may be similar)

Case: Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor
for another term of three years ending June 30, 1998.

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros
relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate
for mayor, sought Capco’s disqualification on the theory that the latter would have already served
as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve
for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner
and declared private respondent Capco disqualified from running for reelection as mayor of
Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed
the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x

Rule: This Court held that Capco’s assumption of the office of mayor upon the death of the
incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution and
Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from
September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not
elected to that position. Borja vs. COMELEC 329 Phil. 409 (1996) cited in G.R. No.
184836December 23, 2009 SIMON B. ALDOVINO, JR. vs. COMMISSION ON ELECTIONS

Further, the law provides that “No person who has succeeded as President and has
served as such for more than four years shall be qualified for election to the same
office at any time.”6

Bar Exam November 2018, item XIX

15

President Alfredo died during his third year in office. In accordance with the Constitution, Vice President Anastasia
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succeeded him. President Anastasia then nominated the late President Alfredo's Executive Secretary, Anna Maria,

6
Section 4, Art VII

Political Law 1 2023 Atty. Edgar Pascua II

 as her replacement as Vice President. The nomination was confirmed by a majority of all the Members of the House
of Representatives and the Senate, voting separately.

(a) Is Anna Maria's assumption as Vice President valid?

(b) Can Anastasia run as President in the next election?

3. Temporary Disability

Temporary Vacancy in the Presidency during the term

A vacancy in the Presidency arising from his disability can occur as follows;

1. A written declaration by the President

Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be discharged
by the Vice-President as Acting President. (Section 11, Ph 1, Art VII)

2. Written declaration by the Cabinet

Whenever a majority of all the Members of the Cabinet transmit to the President
of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President. (Section 11, Ph 2, Art VII)

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

Thereafter, when the President transmits to the President of the Senate and to
the Speaker of the House of Representatives his written declaration that no
inability exists, he shall reassume the powers and duties of his office. Meanwhile,
should a majority of all the Members of the Cabinet transmit within five days to
the President of the Senate and to the Speaker of the House of Representatives,
their written declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that purpose, the
Congress shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if
not in session, within twelve days after it is required to assemble, determines by
a two-thirds vote of both Houses, voting separately, that the President is unable
to discharge the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the powers and
duties of his office.(Section 11, Ph 3 -4, Art VII)

Case: In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President.

In the heat of people power, at about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines. At 2:30 p.m., petitioner and his family hurriedly
left Malacañang Palace. He issued the following press statement:

"20 January 2001

16

STATEMENT FROM
Page

PRESIDENT JOSEPH EJERCITO ESTRADA

Political Law 1 2023 Atty. Edgar Pascua II

 At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On February 6, respondent Arroyo nominated Senator
Teofisto Guingona, Jr., as her Vice President.

Despite all of these, Petitioner Joseph Ejercito Estrada alleges that he is the President on leave
while respondent Gloria Macapagal-Arroyo claims she is the President.

Issue: Assuming that the petitions present a justiciable controversy: whether petitioner Estrada
is a President on leave while respondent Arroyo is an Acting President

Rule: Resignation is not a high level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment. The validity of a resignation is not governed by any formal requirement as to form.
It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.

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

We hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement,

(1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with
reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace
and in order to begin the healing process of our nation. He did not say he was leaving the Palace
due to any kind inability and that he was going to re-assume the presidency as soon as the
disability disappears:
(3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he
was referring to the past opportunity given him to serve the people as President
(4) he assured that he will not shirk from any future challenge that may come ahead in the same
service of our country. Petitioner's reference is to a future challenge after occupying the office of
the president which he has given up; and
(5) he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not
be attained if he did not give up the presidency.

The press release was petitioner's valedictory, his final act of farewell. His presidency is now in
17

the part tense.

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Political Law 1 2023 Atty. Edgar Pascua II

It is, however, urged that the petitioner did not resign but only took a temporary leave dated
January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is
cited. Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery. The pleadings filed by the petitioner in
the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred
to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino
people in his press release that he was temporarily unable to govern and that he was leaving the
reins of government to respondent Arroyo for the time bearing. Under any circumstance, however,
the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the
press release of the petitioner clearly as a later act. If, however, it was prepared after the press
released, still, it commands scant legal significance. Petitioner's resignation from the presidency
cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is
the result of his reputation by the people.

Issue 2: Was Estrada merely temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that "Congress has the ultimate authority under the Constitution to determine whether
the President is incapable of performing his functions in the manner provided for in section 11 of
article VII.

Considering the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President
and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House
Resolution No. 175
4. Also, House of the Representatives passed House Resolution No. 176 stating that expressed
its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines,
5. Further, bills were already sent by the Congress to the Office of GMA as president.
6. Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his inability
to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise
that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected
petitioner's claim of inability.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim
that he is a President on leave on the ground that he is merely unable to govern temporarily. That
18

claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government cannot be reviewed by this Court. G.R. No.
Page

146710-15 March 2, 2001 JOSEPH E. ESTRADA, vs. ANIANO DESIERTO

Political Law 1 2023 Atty. Edgar Pascua II

4. Serious Illness of the President

Section 12. In case of serious illness of the President, the public shall be informed of the state
of his health. The members of the Cabinet in charge of national security and foreign relations
and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to
the President during such illness. (Art VII)

e. Removal

Section 2. The President, the Vice-President… may be removed from office on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not by impeachment. (Art XI)

Section 3.
1. The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.

2. A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and
by a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

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

4. In case the verified complaint or resolution of impeachment is filed by at least one-third of

all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.

5. No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

6. The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.

7. Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment,
according to law.

8. The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Art XI)

f. Powers and Functions of the President

(1) Executive Power

Section 1. The executive power shall be vested in the President of the Philippines. (Art VII)

Case: The Petitioners asks that the Respondents issue travel documentsin their favor and to
19

enjoin them from carrying out the President's decision barring their return to the Philippines.
Page

Political Law 1 2023 Atty. Edgar Pascua II

Issue: The issue is basically one of power: whether or not, in the exercise of the powers granted
by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law

Rule: The Constitution provides that "[t]he executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by “executive power"
although in the same article it touches on the exercise of certain powers by the President, i.e.,

a. the power of control over all executive departments, bureaus and offices,
b. the power to execute the laws,
c. the appointing power,
d. the powers under the commander-in-chief clause,
e. the power to grant reprieves, commutations and pardons,
f. the power to grant amnesty with the concurrence of Congress,
g. the power to contract or guarantee foreign loans,
h. the power to enter into treaties or international agreements,
i. the power to submit the budget to Congress, and
j. the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers and no
other? Are these enumerated powers the breadth and scope of "executive power"?

Although the 1987 Constitution imposes limitations on the exercise of specific powers of the
President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollary, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of
specific powers so enumerated,

The Constitution declares among the guiding principles that "[t]he prime duty of the Government
is to serve and protect the people" and that "[t]he maintenance of peace and order, the protection
of life, liberty, and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words. Thus,
in the exercise of presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles, among other things,
and adhere to them.

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's residual
power to protect the general welfare of the people. It is founded on the duty of the President, as
steward of the people. G.R. No. 88211 September 15, 1989 FERDINAND E. MARCOS, vs.
HONORABLE RAUL MANGLAPUS
20

Case: Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
Page

power is vested, has unstated residual powers which are implied from the grant of executive

Political Law 1 2023 Atty. Edgar Pascua II

power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific power of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power. G.R. No. 88211 October 27,
1989 FERDINAND E. MARCOS vs. HONORABLE RAUL MANGLAPUS

(2) Controlofexecutivedepartments

Section 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (Art VII)

The President has control over the executive department, bureaus and offices. This
means that he has the authority to assume directly the functions of the executive
department, bureau and office or interfere with the discretion of its officials.
However, this precludes such orders that effects to usurp the powers of the other two
co-equal branches.

Case: Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of
a National Computerized Identification Reference System" on two important constitutional
grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly
intrudes on our citizenry's protected zone of privacy. We grant the petition for the rights sought to
be vindicated by the petitioner need stronger barriers against further erosion.

Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond
the power of the President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen
and foreign resident, and more particularly, violates their right to privacy.

Rule: As head of the Executive Department, the President is the Chief Executive.

 He represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department.

 He has control over the executive department, bureaus and offices.

o This means that he has the authority to assume directly the functions of the executive
department, bureau and office or interfere with the discretion of its officials.

o Corollary to the power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order.

 Thus, he is granted administrative power over bureaus and offices under his control to
enable him to discharge his duties effectively.

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated
in administrative orders.
21

An administrative order is an ordinance issued by the President which relates to specific aspects
Page

in the administrative operation of government. It must be in harmony with the law and should be

Political Law 1 2023 Atty. Edgar Pascua II

for the sole purpose of implementing the law and carrying out the legislative policy. We reject the
argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987.

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code
of 1987. It establishes for the first time a National Computerized Identification Reference System.
Such a System requires a delicate adjustment of various contending state policies — the primacy
of national security, the extent of privacy interest against dossier-gathering by government, the
choice of policies, etc. G.R. No. 127685 July 23, 1998 BLAS F. OPLE vs. RUBEN D. TORRES

Rule: As head of the Executive Department, the President is the Chief Executive. He represents
the government as a whole and sees to it that all laws are enforced by the officials and employees
of his department. He has control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive department, bureau
and office, or interfere with the discretion of its officials. Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power over bureaus and offices under
his control to enable him to discharge his duties effectively.

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.

x x x. An administrative order is:

"Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated
in administrative orders."

An administrative order is an ordinance issued by the President which relates to specific aspects
in the administrative operation of government. It must be in harmony with the law and should be
for the sole purpose of implementing the law and carrying out the legislative policy. x x x.

Just like AO 308 in Ople v. Torres, EO 566 in this case is not supported by any enabling law. The
Court further stated in Ople.

Since EO 566 is an invalid exercise of legislative power, the RIRR is also an invalid exercise of
the CHED’s quasi-legislative power.

Administrative agencies exercise their quasi-legislative or rule-making power through the

promulgation of rules and regulations. The CHED may only exercise its rule-making power within
the confines of its jurisdiction under RA 7722. The RIRR covers review centers and similar entities
which are neither institutions of higher education nor institutions offering degree-granting
programs. G.R. No. 180046April 2, 2009 REVIEW CENTER ASSOCIATION OF THE
PHILIPPINES, vs. EXECUTIVE SECRETARY EDUARDO ERMITA7

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

This presidential power of control over the executive branch of government extends
22

over all executive officers from Cabinet Secretary to the lowliest clerk and has been
Page

held by us, in the landmark case of Mondono vs. Silvosa to mean "the power of [the

7
The President, as Chief Executive, has the power of control over all the executive departments, bureaus, and offices. The
power of control refers to the power of an officer to alter, modify, nullify, or set aside what a subordinate officer has
done in the performance of his duties, and to substitute the judgment of the former for that of the latter. Under this
power, the President may directly exercise a power statutorily given to any of his subordinates, as what happened in the
old case of Araneta v. Gatmaitan, where President Ramon Magsaysay himself directly exercised the authority granted by
Congress to the Secretary of Agriculture and Natural Resources to promulgate rules and regulations concerning trawl
fishing. We similarly ruled in Bermudez v. Torres when we said that the President, being the head of the Executive
Department, can very well disregard or do away with the action of the departments, bureaus or offices even in the
exercise of discretionary authority; in so opting, he cannot be said to be acting beyond the scope of his authority. -
SEPARATE CONCURRING OPINION , BRION, J.

Political Law 1 2023 Atty. Edgar Pascua II

President] to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former
with that of the latter." It is said to be at the very "heart of the meaning of Chief
Executive".

Equally well accepted, as a corollary rule to the control powers of the President, is
the "Doctrine of Qualified Political Agency." As the President cannot be expected to
exercise his control powers all the same time and in person, he will have to delegate
some of them to his Cabinet members

Under the doctrine of qualified political agency, department secretaries are alter egos
or assistants of the President and their acts are presumed to be those of the latter
unless disapproved or reprobated by him8

This doctrine, which recognizes the establishment of a single executive, "all executive
and administrative organizations are adjuncts of the Executive Department, the
heads of the various executives departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
Constitution or law to act in person o[r] the exigencies of the situation demand that
he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in the regular
course of business, are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive". . . .

The President of the Philippines is the Executive of the Government of the Philippines,
and no other. The heads of the executive departments occupy political positions and
hold office in an advisory capacity, and in the language of Thomas Jefferson, 'should
be of the President's bosom confidence' (7 Writings, Ford ed., 498), and, in the
language of Attorney-General Cushing (7 Op., Attorney-General, 453). 'are subject
to the direction of the President. Without minimizing the importance of the heads of
the various departments, their personality is in reality but the projection of that of
the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of
the Supreme Court of the United States, 'each head of a department is, and must be,
the President's alter ego in the matters of that department where the President is
required by law to exercise authority' (Myers vs. United States, 47 Sup. Ct. Rep., 21
at 30: 272 U.S., 52 at 133; 71 Law. ed., 160)."9

Thus, and in short, "the President's power of control is directly exercised by him over
the members of the Cabinet who, in turn, and by his authority, control the bureaus
and other offices under their respective jurisdictions in the executive department." 10

Rule: The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts. This doctrine is in recognition of the fact that in
our presidential form of government, all executive organizations are adjuncts of a single Chief
Executive; that the heads of the Executive Departments are assistants and agents of the Chief
Executive; and that the multiple executive functions of the President as the Chief Executive are
performed through the Executive Departments. The doctrine has been adopted here out of
practical necessity, considering that the President cannot be expected to personally perform the
23

multifarious functions of the executive office. G.R. No. 168613 March 5, 2013 ATTY. MA.
ROSARIO MANALANG-DEMIGILLO vs. RADE AND INVESTMENT DEVELOPMENT
Page

CORPORATION OF THE PHILIPPINES (TIDCORP), and its BOARD OF DIRECTORS

8
G.R. No. 140717 April 16, 2009 ANNIE L. MANUBAY,vs. HON. ERNESTO D. GARILAO,
9
G.R. No. L-27524 July 31, 1970 JOSE C. TECSON vs. HON. RAFAEL SALAS
10
Carpio v. Executive Secretary, 206 SCRA 290, 295-296 (1992), citing Mondano v. Silvosa, 97 Phil, 143 (1955); Villena v.
Secretary of Interior, 67 Phil. 451 (1939); Lacson-Magallanes Co., Inc. v. Pano, 21 SCRA 895 (1967); De Leon v. Carpio,
178 SCRA 457 (1989).

Political Law 1 2023 Atty. Edgar Pascua II

Cases: Examples of the extent of the power of control

Case: On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No.
127establishing the Economic Intelligence and Investigation Bureau (EIIB)

Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No.
191 entitled "Deactivation of the Economic Intelligence and Investigation Bureau."

Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued
Executive Order No. 223providing that all EIIB personnel occupying positions specified therein
shall be deemed separated from the service effective April 30, 2000, pursuant to a bona
fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of
positions.

Agonizing over the loss of their employment, petitioners now come before this Court invoking our
power of judicial review of Executive Order Nos. 191 and 223.

Rule: The general rule has always been that the power to abolish a public office is lodged with
the legislature. This proceeds from the legal precept that the power to create includes the power
to destroy. A public office is either created by the Constitution, by statute, or by authority of
law. Thus, except where the office was created by the Constitution itself, it may be abolished by
the same legislature that brought it into existence.

The exception, however, is that as far as bureaus, agencies or offices in the executive department
are concerned, the President's power of control may justify him to inactivate the functions of a
particular office, or certain laws may grant him the broad authority to carry out reorganization
measures. The case in point is Larin v. Executive Secretary In this case, it was argued that there
is no law which empowers the President to reorganize the BIR. In decreeing otherwise, this Court
sustained the following legal basis, thus:

"Initially, it is argued that there is no law yet which empowers the President to issue E.O. No.
132 or to reorganize the BIR.

We do not agree.

xxx xxx

Section 48 of R.A. 7645 provides that:

'Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch.
– The heads of departments, bureaus and offices and agencies are hereby directed to identify
their respective activities which are no longer essential in the delivery of public services and
which may be scaled down, phased out or abolished, subject to civil service rules and
regulations. X x x. Actual scaling down, phasing out or abolition of the activities shall be
effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.'

Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of
offices only and does not cover the creation of offices or transfer of functions. Nevertheless,
the act of creating and decentralizing is included in the subsequent provision of Section 62
which provides that:

'Sec. 62. Unauthorized organizational charges. - Unless otherwise created by law or directed
by the President of the Philippines, no organizational unit or changes in key positions in any
department or agency shall be authorized in their respective organization structures and be
funded from appropriations by this Act.'

The foregoing provision evidently shows that the President is authorized to effect
organizational changes including the creation of offices in the department or agency
24

concerned.
Page

xxx xxx

Political Law 1 2023 Atty. Edgar Pascua II

 Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

'Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President which are provided for under
the laws and which are not specifically enumerated above or which are not delegated by the
President in accordance with law.'

This provision speaks of such other powers vested in the President under the law. What law
then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines
the continuing authority to reorganize the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities and to standardize salaries and materials.

The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides
that "all laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed or revoked. So far, there is yet no law amending or repealing said
decrees."

WHEREFORE, the petition is hereby DENIED. No costs. G.R. Nos. 142801-802 July 10, 2001
BUKLOD NG KAWANING EIIB et al vs. HON. EXECUTIVE SECRETARY RONALDO B.
ZAMORA

Case: Pursuant to Executive Order No. 378, government agencies and instrumentalities are
allowed to source their printing services from the private sector through competitive bidding,
subject to the condition that the services offered by the private supplier be of superior quality and
lower in cost compared to what was offered by the NPO. Executive Order No. 378 also limited
NPO’s appropriation in the General Appropriations Act to its income

Perceiving Executive Order No. 378 as a threat to their security of tenure as employees of the
NPO, petitioners now challenge its constitutionality, contending that: (1) it is beyond the executive
powers of President Arroyo to amend or repeal Executive Order No. 285 issued by former
President Aquino when the latter still exercised legislative powers; and (2) Executive Order No.
378 violates petitioners’ security of tenure, because it paves the way for the gradual abolition of
the NPO.

Rule: We dismiss the petition. It is a well-settled principle in jurisprudence that the President has
the power to reorganize the offices and agencies in the executive department in line with the
President’s constitutionally granted power of control over executive offices and by virtue of
previous delegation of the legislative power to reorganize executive offices under existing
statutes.

It is undisputed that the NPO, as an agency that is part of the Office of the Press Secretary (which
in various times has been an agency directly attached to the Office of the Press Secretary or as
an agency under the Philippine Information Agency), is part of the Office of the President. G.R.
No. 166620 April 20, 2010 ATTY. SYLVIA BANDA VS .ERMITA

Rule: The President shall have control of all the executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed.

The obligation to see to it that laws are faithfully executed necessitates the corresponding power
in the President to conduct investigations into the conduct of officials and employees in the
executive department. Department of Health v. Camposano, G.R. No. 157684, April 27, 2005,
457 SCRA 438, 450; Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036,
December 7, 2010, 637 SCRA 78, 160.

Read:
25

- Angeles vs Gaite 646b SCRA 309

- Secretary vs. Mabalot 368 SCRA 128
Page

- DENR vs DENR Employees 409 SCRA 359

Political Law 1 2023 Atty. Edgar Pascua II

 - Constantino vs Cuisia 472 SCRA 505
- Rufino vs Endriga496 SCRA 13
- MMDA vs Viron 530 SCRA 341
- ANAK MINDANAO vs Executive 531 SCRA583

(3) General supervision of local governments and Autonomous Regions

Section 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions. (Art X)

Section 16. The President shall exercise general supervision over autonomous regions to
ensure that laws are faithfully executed. (Art X)

Case: Can the President, acting through the Secretary of LocaL Government, have the power to
suspend and/or remove local officials?

The 1987 Constitution provides;

Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions(Art X)

As compared to the 1935 Charter, to wit

Sec. 10. The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all Local governments as may be provided by
law, and take care that the laws be faithfully executed.

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law
may provide for it any longer.

Rule: It is the considered opinion of the Court that notwithstanding the change in the
constitutional language, the charter did not intend to divest the legislature of its right or the
President of her prerogative as conferred by existing legislation to provide administrative
sanctions against local officials. It is our opinion that the omission (of "as may be provided by
law") signifies nothing more than to underscore local governments' autonomy from congress and
to break Congress' "control" over local government affairs. The Constitution did not, however,
intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal
corporations, in particular, concerning discipline.

The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a mistaken impression because
legally, "supervision" is not incompatible with disciplinary authority.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in
the federal governments of the United States of America (or Brazil or Germany), although
Jefferson is said to have compared municipal corporations euphemistically to "small republics."
Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the
legislature, albeit the legislative responsibility under the Constitution and as the "supervision
clause" itself suggest-is to wean local government units from over-dependence on the central
government.

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what
a subordinate officer had done in the performance of his duties and to substitute the judgment of
26

the former for test of the latter. "Supervision" on the other hand means "overseeing or the power
or authority of an officer to see that subordinate officers perform their duties. As we
Page

held, however, "investigating" is not inconsistent with "overseeing", although it is a lesser power

Political Law 1 2023 Atty. Edgar Pascua II

than "altering". G.R. No. 93252 August 5, 1991 RODOLFO T. GANZON, vs. THE
HONORABLE COURT OF APPEALS and LUIS T. SANTOS

Rule: Does the President’s power of general supervision extend to the Liga ng mga Barangay,
which is not a local government unit?

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that
the liga ng mga barangay is a government organization, being an association, federation, league
or union created by law or by authority of law, whose members are either appointed or elected
government officials. The Local Government Code defines the liga ng mga barangay as an
organization of all barangays for the primary purpose of determining the representation of the liga
in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay
government administration and securing, through proper and legal means, solutions thereto.

The rationale for making the Liga subject to DILG supervision is quite evident, whether from the
perspectives of logic or of practicality. The Liga is an aggroupment of barangays which are in turn
represented therein by their respective punong barangays. The representatives of the Liga sit in
an ex officio capacity at the municipal, city and provincial sanggunians. As such, they enjoy all
the powers and discharge all the functions of regular municipal councilors, city councilors or
provincial board members, as the case may be. Thus, the Liga is the vehicle through which the
barangay participates in the enactment of ordinances and formulation of policies at all the
legislative local levels higher than the sangguniang barangay, at the same time serving as the
mechanism for the bottom-to-top approach of development.

As the entity exercising supervision over the Liga ng mga Barangay, the DILG’s authority over
the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules itself,
nor does it have the discretion to modify or replace them. In this particular case, the most that the
DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the
elections to determine if they committed any violation of theLiga’s Constitution and By-laws and
its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG
should have ordered the Liga to conduct another election in accordance with the Liga’s own rules,
but not in obeisance to DILG-dictated guidelines. Neither had the DILG the authority to remove
the incumbent officers of the Liga and replace them, even temporarily, with
unelected Liga officers.

Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief
Executive or his alter ego.G.R. No. 130775 September 27, 2004 THE NATIONAL LIGA NG
MGA BARANGAY vs. HON. VICTORIA ISABEL A. PAREDES

(4) Power of Appointment

Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproved by the Commission on Appointments or until the next adjournment of the
Congress. Art VII)

 The nature of the power of appointment - The power to appoint is, in essence,
discretionary. The appointing power has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. It is a prerogative of
27

the appointing power.

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Political Law 1 2023 Atty. Edgar Pascua II

Case: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases
Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of
Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary
injunction and temporary restraining order "to prevent useless and unnecessary expenditures of
public funds by way of salaries and other operational expenses attached to the office

Rule: Petitioners assail the legislative encroachment on the appointing authority of the President.
Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board
and the Chief Executive Officer of SBMA, although he really has no choice under the law but to
appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," or "[t]he selection or
designation of a person, by the person or persons having authority therefor, to fill an office or
public function and discharge the duties of the same. In his treatise, Philippine
Political Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection,
by the authority vested with the power, of an individual who is to exercise the functions of a given
office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person to fill an office constitutes the
essence of his appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." In Pamantasan ng Lungsod ng
Maynila v. Intermediate Appellate Court we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and eligibilities. It is a prerogative of the
appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise
of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a fundamental component of the
appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)
cannot at the same time limit the choice of the President to only one candidate. Once the power
of appointment is conferred on the President, such conferment necessarily carries the discretion
of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority, directly or indirectly, of his
discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress
can only be met by one individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on the power of appointment.

In the case at bar, while Congress willed that the subject posts be filled with a presidential
appointee for the first year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent
Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no power at all and goes against the very
nature itself of appointment. G.R. No. 104732 June 22, 1993ROBERTO A. FLORES, DANIEL
Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL
P. REYES, vs. HON. FRANKLIN M. DRILON

1. With the Consent of the Commission on Appointments

“The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
28

ambassadors, other public ministers and consuls, or officers of the armed

forces from the rank of colonel or naval captain,.”
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Political Law 1 2023 Atty. Edgar Pascua II

 a. Heads of the executive departments
b. Ambassadors, other public ministers, and consuls
c. Officers of the Armed Forces from the rank of colonel or naval captain

"other officers whose appointments are vested in the President in this

Constitution,"

a. Chairman and members of 3 Constitutional Commissions

Civil Service Commission

Art IX B Section 1. 2.The Chairman and the Commissioners shall be

appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.

COMELEC

Art IX C. Section 1.2 The Chairman and the Commissioners shall be

appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.

COMMISSION ON AUDIT.

Art IX D, Section 1.2The Chairman and the Commissioners shall be

appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment

b. Regular members of the Judicial and Bar Council

Art VIII, Section 8. 2 The regular members of the Council shall be

appointed by the President for a term of four years with the consent of the
Commission on Appointments.

c. Sectoral representatives

Section 7. Until a law is passed, the President may fill by appointment from
a list of nominees by the respective sectors, the seats reserved for sectoral
representation in paragraph (2), Section 5 of Article V1 of this Constitution.

Case: This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission, without submitting the same to the
Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as
amended by said RA 6715.

The only issue to be resolved by the Court in the present case is whether or not Congress may, by
law, require confirmation by the Commission on Appointments of appointments extended by the
president to government officers additional to those expressly mentioned in the first sentence of
Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the Commission
on Appointments.

Rule: There are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution; (Section 16, Article VII
29

these appointments require confirmation by the Commission on Appointments)

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Political Law 1 2023 Atty. Edgar Pascua II

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

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

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

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be
authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section
16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred
to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the
Chairman and Members of the NLRC are not among the officers mentioned in the first sentence
of Section 16, Article VII whose appointments requires confirmation by the Commission on
Appointments. To the extent that RA 6715 requires confirmation by the Commission on
Appointments of the appointments of respondents Chairman and Members of the National Labor
Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding
thereto appointments requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing
the confirmation of the Commission on Appointments on appointments which are otherwise
entrusted only with the President. G.R. No. 91636 April 23, 1992 PETER JOHN D.
CALDERON vs. BARTOLOME CARALE

Case: This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the
appointment of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for
not having been confirmed by the Commission on Appointments. The petition seeks to enjoin
respondent Singson from the performance of his functions as such official until his appointment
is confirmed by the Commission on Appointments and respondent Salvador M. Enriquez,
Secretary of Budget and Management, from disbursing public funds in payment of the salaries
and emoluments of respondent Singson.

Rule: We dismiss the petition. We call attention to our decision in Calderon v. Carale, 208 SCRA
254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that Congress cannot by law
expand the confirmation powers of the Commission on Appointments and require confirmation of
appointment of other government officials not expressly mentioned in the first sentence of Section
16 of Article VII of the Constitution. WHEREFORE, the petition is DENIED. G.R. No. 111243
May 25, 1994 JESUS ARMANDO A.R. TARROSA vs. GABRIEL C. SINGSON

Case: Due to the opposition of some congressmen-member of the Commission on Appointments,

the Petitioner and three others were unable to take their seats as Sectoral Representatives, as
appointed by the President.

Issue: The issue is, whether the Constitution requires the appointment of sectoral representatives
to the House of Representatives to be confirmed by the Commission on Appointments. Section
16, Article VII of the Constitution enumerates among others, the officers who may be appointed
by the President with the consent of the Commission on Appointments, as follows:

SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by
30

law, vest the appointment of other officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions, or boards.
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Political Law 1 2023 Atty. Edgar Pascua II

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

In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article VII of the
Constitution to mean that only appointments to offices mentioned in the first sentence of the said
Section 16, Article VII require confirmation by the Commission on Appointments,

Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be
filled by appointment by the President by express provision of Section 7, Art. XVIII of the
Constitution, it is indubitable that sectoral representatives to the House of Representatives are
among the "other officers whose appointments are vested in the President in this Constitution,"
referred to in the first sentence of Section 16, Art. VII whose appointments are subject to
confirmation by the Commission on Appointments G.R. No. 83216 September 4, 1989,
TERESITA QUINTOS-DELES, vs. THE COMMISSION ON CONSTITUTIONAL COMMISSIONS

Case: This is a petition for certiorari and prohibition with a prayer for the issuance of a writ of
preliminary injunction to declare unconstitutional the appointments issued by President Gloria
Macapagal-Arroyo of respondents as acting secretaries of their respective departments. This
questions the constitutionality of President’s appointment of respondents as acting secretaries
without the consent of the Commission on Appointments while Congress is in session.

Petitioners contend that President Arroyo should not have appointed respondents as acting
secretaries because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary
who can be designated as Acting Secretary."

Rule: In distinguishing ad interim appointments from appointments in an acting capacity, a noted

textbook writer11 on constitutional law has observed:

Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of

them are effective upon acceptance. But ad-interim appointments are extended only during a
recess of Congress, whereas acting appointments may be extended any time there is a vacancy.
Moreover ad-interim appointments are submitted to the Commission on Appointments for
confirmation or rejection; acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily filling important offices but, if abused,
they can also be a way of circumventing the need for confirmation by the Commission on
Appointments

However, we find no abuse in the present case. The absence of abuse is readily apparent from
President Arroyo’s issuance of ad interim appointments to respondents immediately upon the
recess of Congress, way before the lapse of one year. G.R. No. 164978 October 13, 2005
AQUILINO Q. PIMENTEL, et al vs. EXEC. SECRETARY EDUARDO R. ERMITA, et.al

2. Upon the Recommendation of the Judicial and Bar Council

a. Members of the Supreme Court and all the other courts

Section 9. The Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.

For the lower courts, the President shall issue the appointment within ninety
days from the submission of the list. (Art VIII)

b. Ombudsman and his Deputies

31
Page

11
Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 772 (1996).

Political Law 1 2023 Atty. Edgar Pascua II

 Section 9. The Ombudsman and his Deputies shall be appointed by the
President from a list of at least six nominees prepared by the Judicial and Bar
Council, and from a list of three nominees for every vacancy thereafter. Such
appointments shall require no confirmation. All vacancies shall be filled within
three months after they occur. (Art XI)

3. Appointment of the Vice President as member of the cabinet

Section 3. …...The Vice-President may be appointed as a Member of the

Cabinet. Such appointment requires no confirmation (Art VII)

4. Appointment Solely by the President

Section 16. …. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may
be authorized by law to appoint. (Art VII)

o Those appointments not otherwise provided for by law, and

o those whom he may be authorized by law to appoint

More Cases: On the nature of the power to appoint

Case: The validity and legality of the appointment of respondent Conrado Quiaoit to the post of
Provincial Prosecutor of Tarlac by then President Fidel V. Ramos is assailed in this petition on
the ground that the appointment lacks the recommendation of the Secretary of Justice prescribed
under the Revised Administrative Code of 1987.

Issue: Whether or not the absence of a recommendation of the Secretary of Justice to the
President can be held fatal to the appointment of respondent Conrado Quiaoit.

Rule: An "appointment" to a public office is the unequivocal act of designating or selecting by one
having the authority therefor of an individual to discharge and perform the duties and functions of
an office or trust. The appointment is deemed complete once the last act required of the
appointing authority has been complied with and its acceptance thereafter by the appointee in
order to render it effective. Appointment necessarily calls for an exercise of discretion on the part
of the appointing authority. In Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court, reiterated in Flores vs. Drilon, this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power.

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the
exercise of the power of appointment, discretion is an integral part thereof.

When the Constitution or the law clothes the President with the power to appoint a subordinate
officer, such conferment must be understood as necessarily carrying with it an ample discretion
of whom to appoint. It should be here pertinent to state that the President is the head of
government whose authority includes the power of control over all "executive departments,
bureaus and offices." Control means the authority of an empowered officer to alter or modify, or
even nullify or set aside, what a subordinate officer has done in the performance of his duties, as
well as to substitute the judgment of the latter, as and when the former deems it to be appropriate.
Expressed in another way, the President has the power to assume directly the functions of an
executive department, bureau and office. It can accordingly be inferred therefrom that the
President can interfere in the exercise of discretion of officials under him or altogether ignore their
recommendations.
32

It is the considered view of the Court, given the above disquisition, that the phrase "upon
recommendation of the Secretary," found in Section 9, Chapter II, Title III, Book IV, of the Revised
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Administrative Code, should be interpreted, as it is normally so understood, to be a mere advise,

Political Law 1 2023 Atty. Edgar Pascua II

exhortation or indorsement, which is essentially persuasive in character and not binding or
obligatory upon the party to whom it is made. The recommendation is here nothing really more
than advisory in nature. The President, being the head of the Executive Department, could very
well disregard or do away with the action of the departments, bureaus or offices even in the
exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond
the scope of his authority. G.R. No. 131429 , August 4, 1999 OSCAR BERMUDEZ vs.
EXECUTIVE SECRETARY RUBEN TORRES

Rule: The source of the President's power to appoint, as well as the Legislature's authority to
delegate the power to appoint, is found in Section 16, Article VII of the 1987 Constitution

The power to appoint is the prerogative of the President, except in those instances when the
Constitution provides otherwise. Usurpation of this fundamentally Executive power by the
Legislative and Judicial branches violates the system of separation of powers that inheres in our
democratic republican government.

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers.

The first group refers to the heads of the Executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in the President by the Constitution.

The second group refers to those whom the President may be authorized by law to appoint.

The third group refers to all other officers of the Government whose appointments are not
otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. The
present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with
respect to the appointment of this fourth group of officers.

The President appoints the first group of officers with the consent of the Commission on
Appointments. The President appoints the second and third groups of officers without the consent
of the Commission on Appointments. The President appoints the third group of officers if the law
is silent on who is the appointing power, or if the law authorizing the head of a department, agency,
commission, or board to appoint is declared unconstitutional. G.R. No. 139554, July 21, 2006
ARMITA B. RUFINO, vs. BALTAZAR N. ENDRIGA

5. Power to remove by the President

General Rule: Under the doctrine of implication, the power to appoint carries with it
the power to remove. As a general rule, therefore, all officers appointed by the
President are also removable by him.

Except:When the law expressly provides otherwise - that is, when the power to
remove is expressly vested in an office or authority other than the appointing power

Rule: The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is
implied from his Power to Appoint. - Under the doctrine of implication, the power to appoint carries
with it the power to remove. As a general rule, therefore, all officers appointed by the President
are also removable by him. The exception to this is when the law expressly provides otherwise -
that is, when the power to remove is expressly vested in an office or authority other than the
appointing power. In some cases, the Constitution expressly separates the power to remove from
the President's power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the
Members of the Supreme Court and judges of lower courts shall be appointed by the President.
However, Members of the Supreme Court may be removed after impeachment proceedings
initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only
33

by the Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6
Page

and 11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission
Section 1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the

Political Law 1 2023 Atty. Edgar Pascua II

Commission on Audit Section 1(2), Article IX(D) shall likewise be appointed by the President, but
they may be removed only by impeachment (Section 2, Article XI). As priorly stated, the
Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be
removed only by impeachment (Section 2, Article XI).

In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the
President's constitutional authority to appoint the aforesaid officials in the Office of the
Ombudsman. G.R. No. 196231 September 4, 2012 EMILIO A. GONZALES III vs. OFFICE OF
THE PRESIDENT OF THE PHILIPPINES

6. Limitations on the Appointing power of the President

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries. (Art VII)

Section 15. Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety. (Art VII)

Case: The question presented for resolution in the administrative matter at bar is whether, during
the period of the ban on appointments imposed by Section 15, Article VII of the, Constitution, the
President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9
of Article VIII. A corollary question is whether he can make appointments to the judiciary during
the period of the ban in the interest of public service.

Rule: The relevant Constitutional provisions being

Sec. 15, Article VII: Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.

The Court's view is that during the period stated in Section 15. Article VII of the Constitution —
"(t)wo months immediately before the next presidential elections and up to the end his term" —
the President is neither required to make appointments to the courts nor allowed to do so.

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

The second type of appointments prohibited by Section 15, Article VII consist of the so-called
"midnight" appointments

As indicated, the Court recognized that there may well be appointments to important positions
34

which have to be made even after the proclamations of a new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and careful
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Political Law 1 2023 Atty. Edgar Pascua II

consideration of the need for the appointment and the appointee's qualifications," can be made
by the outgoing President.

The appointments of Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of the
Chief Justice on May 14, 998) were unquestionably made during the period of the ban.
Consequently, they come within the operation of the first prohibition relating to appointments
which are considered to be for the purpose of buying votes or influencing the election. While the
filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this
case of any compelling reason to justify the making of the appointments during the period of the
ban. On the other hand, as already discussed, there is a strong public policy for the prohibition
against appointments made within the period of the ban.

In view of the foregoing considerations, the Court Resolved to DECLARE VOID the appointments
signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela
and Hon. Placido B. Vallarta. A.M. No. 98-5-01-SC November 9, 1998 In Re Appointments
dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabananatuan City,
respectively

Case: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just
days after the coming presidential elections on May 10, 2010.. May the incumbent President
appoint his successor, considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments within two
months immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety?

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

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of
Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the
provisions specifically providing for the appointment of Supreme Court Justices. In particular,
Section 9 states that the appointment of Supreme Court Justices can only be made by the
President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the occurrence of the
vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could
not have ignored the meticulous ordering of the provisions. They would have easily and surely
written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the next presidential
elections and up to the end of the President's or Acting President's term does not refer to the
Members of the Supreme Court.

In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to
have Section 4 (1), Article VIII stand independently of any other provision, least of all one found
in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret,
and should not accept an interpretation that defeats the intent of the framers.

Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise
that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A
misinterpretation like Valenzuela should not be allowed to last after its false premises have been
35

exposed. It will not do to merely distinguish Valenzuela from these cases, for the result to be
reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela
Page

now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

Political Law 1 2023 Atty. Edgar Pascua II

We reverse Valenzuela.. Section 15, Article VII does not apply as well to all other appointments
in the Judiciary. There is no question that one of the reasons underlying the adoption of Section
15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing
Chief Executive

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt
that the Constitutional Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and deliberate prior process of the
JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or made by an
outgoing Chief Executive in the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship, the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects because of the JBC's
prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent
or meaning of the enactment, because the reason for the enactment must necessarily shed
considerable light on "the law of the statute," i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek to carry
out this purpose rather than to defeat it.

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be
made for the purpose of buying votes in a coming presidential election, or of satisfying partisan
considerations. The experience from the time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people influential with the President could
not always be assured of being recommended for the consideration of the President, because
they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the
JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of
the Commission on Appointments. This insulating process was absent from the Aytona midnight
appointment.

As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary
was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March
9, 1998 to discuss the question raised by some sectors about the "constitutionality of xxx
appointments" to the Court of Appeals in light of the forthcoming presidential elections. He
assured that "on the basis of the (Constitutional) Commission's records, the election ban had no
application to appointments to the Court of Appeals

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation
of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the
intent of the framers rather than on the deliberations of the Constitutional Commission.

To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary
further undermines the intent of the Constitution of ensuring the independence of the Judicial
Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary
and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency
in a presidential election. Consequently, the wisdom of having the new President, instead of the
current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also become beholden to the appointing
authority. In contrast, the appointment by the incumbent President does not run the same risk of
compromising judicial independence, precisely because her term will end by June 30, 2010. G.R.
No. 191002March 17, 2010 ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL
(JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO

Bar Exam 2014 Item No VII

Margie has been in the judiciary for a long time, starting from the lowest court. Twenty (20) years from her first year
36

in the judiciary, she was nominated as a Justice in the Court of Appeals. Margie also happens to be a first-degree
cousin of the President. The Judicial and Bar Council included her in the short-list submitted to the President whose
Page

Political Law 1 2023 Atty. Edgar Pascua II

 term of office was about to end – it was a month before the next presidential elections. Can the President still make
appointments to the judiciary during the so-called midnight appointment ban period?

Case (Motions for Reconsideration) Judicial decisions assume the same authority as a statute
itself and, until authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those called upon to abide by
them, but also of those duty-bound to enforce obedience to them.3 In a hierarchical judicial system
like ours, the decisions of the higher courts bind the lower courts, but the courts of co-ordinate
authority do not bind each other. The one highest court does not bind itself, being invested with
the innate authority to rule according to its best lights. The Court, as the highest court of the land,
may be guided but is not controlled by precedent. Thus, the Court, especially with a new
membership, is not obliged to follow blindly a particular decision that it determines, after re-
examination, to call for a rectification.

It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring Chief
Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the issues.
Any claim to the contrary proceeds from malice and condescension. Neither the outgoing
President nor the present Members of the Court had arranged the current situation to happen and
to evolve as it has. None of the Members of the Court could have prevented the Members
composing the Court when she assumed the Presidency about a decade ago from retiring during
her prolonged term and tenure, for their retirements were mandatory. Yet, she is now left with an
imperative duty under the Constitution to fill up the vacancies created by such inexorable
retirements within 90 days from their occurrence. Her official duty she must comply with. So must
we ours who are tasked by the Constitution to settle the controversy. G.R. No. 191002April 20,
2010 ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL - ARROYO

Case: Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari filed with this
Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate.
Petitioners are officers of the Board of Directors of the Quezon City Red Cross Chapter while
respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors.
Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors,
respondent has ceased to be a member of the Senate as provided in Section 13, Article VI of the
Constitution, which reads:

Rule: PNRC is a Private Organization Performing Public Functions. The Republic of the
Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary
organization for the purpose contemplated in the Geneva Convention of 27 July 1929. in order to
be recognized as a National Society, the PNRC has to be autonomous and must operate in
conformity with the Fundamental Principles of the National Society of the Movement. The reason
for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers
during international or internal armed conflicts, the PNRC volunteers must not be seen as
belonging to any side of the armed conflict.. To ensure and maintain its autonomy, neutrality, and
independence, the PNRC cannot be owned or controlled by the government. Indeed, the
Philippine government does not own the PNRC. The PNRC Chairman is not appointed by the
President or by any subordinate government official. Neither does the head of any department,
agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an
official or employee of the Executive branch since his appointment does not fall under Section 16,
Article VII of the Constitution. Certainly, the PNRC Chairman is not an official or employee of the
Judiciary or Legislature. This leads us to the obvious conclusion that the PNRC Chairman is not
an official or employee of the Philippine Government. Not being a government official or
employee, the PNRC Chairman, as such, does not hold a government office or employment.
37

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross
Page

is not a government office or an office in a government-owned or controlled corporation for

Political Law 1 2023 Atty. Edgar Pascua II

purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. G.R. No. 175352
DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, vs. RICHARD J.
GORDON

7. Interim or Recess Appointment

Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted
within thirty days after the Senate and the House of Representatives shall have been
organized with the election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at the call of its Chairman or
a majority of all its Members, to discharge such powers and functions as are herein conferred
upon it. (Art VI)

Section 16. xxx The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproved by the Commission on Appointments or until the next adjournment of
the Congress. (VII)

Appointments requiring confirmation are

(i) Regular12, when Commission on Appointments / Congress, is in session, or

(ii) During Recess13

Case: Petitioner was appointed Chairman of the Commission on Human Rights on December
17, 1988. She took her oath of office and entered into the discharge of her functions and duties.
On the same month. However, on January 9, 1989, she was required by the Commission on
Appointments to submit documents needed for the confirmation of her appointment. Alleging that
appointment was not subject to confirmation, she refused compliance therewith. On January 14,
1989, the President submitted petitioner's ad interim appointment to the CA.However,
considering petitioner's refusal to submit to the jurisdiction of the CA, it disapproved her
appointment. Hence, this Petition

Issue 1. Whether or not the appointment by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made
with or without the confirmation of the Commission on Appointments (CA, for brevity)

Rule: Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on Appointments,
it follows that the appointment by the President of the Chairman of the (CHR), is to be made
without the review or participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and Members of the Commission on Human
Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members
of the Civil Service Commission, the Commission on Elections and the Commission on Audit,
whose appointments are expressly vested by the Constitution in the President with the consent
of the Commission on Appointments.

The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he (the
President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5
May 1987, authorizes the President to appoint the Chairman and Members of the Commission on
Human Rights. It provides:
38
Page

12
CA Confirmation is required before post is assumed
13
Or ad-interim. Need no confirmation to be effective and is effective until it is disapproved by the Commission or until
the next adjournment of Congress

Political Law 1 2023 Atty. Edgar Pascua II

 “(c)The Chairman and the Members of the Commission on Human Rights shall be appointed
by the President for a term of seven years without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor.”

Issue 2.Whether the President, subsequent to her act of 17 December 1988, and after petitioner
Bautista had qualified for the office to which she had been appointed, by taking the oath of office
and actually assuming and discharging the functions and duties thereof, could extend another
appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the
respondent Commission on Appointments or any other kind of appointment to the same office of
Chairman of the Commission on Human Rights that called for confirmation by the Commission
on Appointments.

Rule: The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative. When
Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to
a permanent appointment as Chairman of the Commission on Human Rights on 17 December
1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such
appointment, she could qualify and enter upon the performance of the duties of the office (of
Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject
or accept the appointment. Obviously, she accepted the appointment by taking her oath of office
before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming
immediately thereafter the functions and duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission
on Human Rights was a completed act on the part of the President.

Ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments
to exercise the power of review over an appointment otherwise solely vested by the Constitution
in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17
December 1988 to the position of Chairman of the Commission on Human Rights with the advice
to her that by virtue of such appointment (not, until confirmed by the Commission on
Appointments), she could qualify and enter upon the performance of her duties after taking her
oath of office, the presidential act of appointment to the subject position which, under the
Constitution, is to be made, in the first place, without the participation of the Commission on
Appointments, was then and there a complete and finished act, which, upon the acceptance by
Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said
office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on
Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on
14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in
said office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without
the participation of the Commission on Appointments. Ad interim appointments, by their very
nature under the 1987 Constitution, extend only to appointments where the review of the
Commission on Appointments is needed. That is why ad interim appointments are to remain valid
until disapproval by the Commission on Appointments or until the next adjournment of Congress;
but appointments that are for the President solely to make, that is, without the participation of the
Commission on Appointments, can not be ad interim appointments. G.R. No. 86439 April 13,
1989 MARY CONCEPCION BAUTISTA, vs. SENATOR JOVITO R. SALONGA

8. Temporary Designations

Sec. 17. Power to Issue Temporary Designation. - (1) The President may temporarily
designate an officer already in the government service or any other competent person to
perform the functions of an office in the executive branch, appointment to which is vested in
him by law, when:

(a) the officer regularly appointed to the office is unable to perform his duties by reason of
39

illness, absence or any other cause; or

Page

(b) there exists a vacancy;

Political Law 1 2023 Atty. Edgar Pascua II

 xxx

In no case shall a temporary designation exceed one (1) year.14

9. Limitations of the Appointing power of the ACTING President

Section 14. Appointments extended by an Acting President shall remain effective, unless
revoked by the elected President, within ninety days from his assumption or re-assumption of
office.

Section 15. Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

Section 16. xxx The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproved by the Commission on Appointments or until the next adjournment of
the Congress. (Art VII)

Bar Exam 2017, item VI

The President appoints the Vice President as his Administration's Housing Czar, a position that requires the
appointee to sit in the Cabinet. Although the appointment of the members of the Cabinet requires confirmation by
the Commission on Appointment (CA), the Office of the President does not submit the appointment to the CA. May
the Vice President validly sit in the Cabinet?

(5) Executive Clemencies

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution,

the President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. (Art VII)

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election

laws, rules, and regulations shall be granted by the President without the favorable
recommendation of the Commission (COMELEC). (Art IX, C.)

General Rule: The President may grant clemency:

 Except in cases of impeachment, or as otherwise provided in this Constitution.

 Amnesty may be granted by the President with the concurrence of a majority

of all the Members of the Congress.

 For violation of election laws, rules, and regulations, clemency may be granted
by after a favorable recommendation of the COMELEC

A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4

Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People,
1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State,
97 Ind., 373).
40
Page

14
Administrative Code of 1987, Book III

Political Law 1 2023 Atty. Edgar Pascua II

"Commutation" is a remission of a part of the punishment; a substitution of a less
penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am.
Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235).

A "Pardon" is an act of grace, proceeding from the power entrusted with the
execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed (United States vs. Wilson,
7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt. (State vs. Lewis, 111 La.,
693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J.
Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).

Amnesty commonly denotes the "general pardon to rebels for their treason and
other high political offenses, or the forgiveness which one sovereign grants to the
subjects of another, who have offended by some breach of the law of nations." (1
Bish. Cr. L., sec. 898.)

The term "amnesty" belongs to international law, and is applied to rebellions which
by their magnitude are properly within international law, but has no technical
meaning in the common law. It is a synonym of oblivion, which in the English law is
the synonym of pardon. (Bouvier, "Amnesty.")

Amnesty is a sovereign act of oblivion for past acts, granted by government

generally to a class of persons who have been guilty usually of political offenses
(treason, sedition, rebellion), and who are subject to trial but have not yet been
convicted, and often conditioned upon their return to obedience and duty within
a prescribed time. (Black; Brown v Walker, 161 US 602).

Distinguished with tax amnesty

A tax amnesty is a general pardon or the intentional overlooking by the State of

its authority to impose penalties on persons otherwise guilty of violating a tax law.
It partakes of an absolute waiver by the government of its right to collect what is
due it and to give tax evaders who wish to relent a chance to start with a clean
slate.15Tax amnesty refers to the articulation of the absolute waiver by a sovereign
of its right to collect taxes and power to impose penalties on persons or entities
guilty of violating a tax law.16

Probation is defined by Section 3 of Presidential Decree No. 968, the Probation Law17
as "a disposition under which a defendant, after conviction and sentence, is released
subject to conditions imposed by the court and to the supervision of a probation
officer."

”Parole” is a conditional release of a prisoner with an unexpired sentence, or

suspension of his sentence, without remitting the penalty imposed upon him.

Parole is the suspension of the sentence of a convict granted by a Parole Board after
serving the minimum term of the indeterminate sentence penalty, without granting
a pardon, prescribing the terms upon which the sentence shall be suspended.
41
Page

15
Bañas, Jr. v. Court of Appeals, G.R. No. 102967, February 10, 2000, 325 SCRA 259, 273-274,citing Republic v.
Intermediate Appellate Court, 196 SCRA 335, 339 (1991); People v. Judge Castañeda, 165 SCRA 327, 338-339
(1988);Nepomuceno v. Montecillo, 118 SCRA 254, 259 (1982).
16
Metropolitan Bank and Trust Co. v. Commissioner of Internal Revenue, G.R. No. 178797, 4 August 2009, 595 SCRA 234;
and Philippine Banking Corporation (Now: Global Business Bank, Inc.) v. Commissioner of Internal Revenue, G.R. No.
170574, 30 January 2009, 577 SCRA 366.
17
PRESIDENTIAL DECREE No. 968 July 24, 1976 ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES

Political Law 1 2023 Atty. Edgar Pascua II

Its purpose is "to uplift and redeem valuable human material, and prevent
unnecessary and excessive deprivation of personal liberty and economic usefulness"
(Message of the Governor-General, Official Gazette No. 92, vol. XXXI, August 3,
1933)

a. Pardon distinguished from Probation

Case: Probation and pardon are not coterminous; nor are they the same. They are actually
district and different from each other, both in origin and in nature. In probation, the probationer is
in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of
the Act provides that the probation may be definitely terminated and the probationer finally
discharged from supervision only after the period of probation shall have been terminated and the
probation officer shall have submitted a report, and the court shall have found that the probationer
has complied with the conditions of probation. The probationer, then, during the period of
probation, remains in legal custody — subject to the control of the probation officer and of the
court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when
rearrested, may be committed to prison to serve the sentence originally imposed upon him. G.R.
No. L-45685 November 16, 1937 THE PEOPLE OF THE PHILIPPINE ISLANDS vs. JOSE O.
VERA

Pardon Probation
There must be a final judgment of conviction
Is granted by the Chief Executive for any Is granted by the court after investigation
crime by a probation officer only for cases
where the penalty imposed does not
exceed 6 years and 1 day(prision
mayor),where the crime is not against
the security of the State, where there
was no previous conviction for an
offense punished by arresto mayor, and
where there was no previous availment
of probation.

In absolute pardon, the sentence and its In probation, the restoration of the
effects, including the accessory penalties, probationer to his civil rights takes place
are abolished upon the grant of pardon. only after his final discharge after the
period of his probation.

Note:

“SEC. 16. Termination of Probation. — “The final discharge of the probationer shall operate
to restore to him all civil rights lost or suspended as a result of his conviction and to totally
extinguish his criminal liability as to the offense for which probation was granted. SECTION 3.
REPUBLIC ACT No. 10707, AN ACT AMENDING PRESIDENTIAL DECREE NO. 968,
OTHERWISE KNOWN AS THE “PROBATION LAW OF 1976”, AS AMENDED

b. Pardon distinguished from Parole

Case: Tesoro, a convict of the crime of Falsification of Public Documents, accepted the parole
granted by the governor general. The same included the condition that he shall not commit any
crime and will conduct himself in an orderly manner. Subsequently, he was charged with adultery.
He was arrested and recommitted to prison.

Rule: 1. Appellant contends that the Board of Indeterminate Sentence has no legal authority to
42

investigate the conduct of the petitioner, and recommend the revocation of his parole. By the
terms of his parole, petitioner agreed to report the executive secretary of the board once a month
Page

during the first year of his parole, and, thereafter, once every three months. By his consent to this

Political Law 1 2023 Atty. Edgar Pascua II

condition, petitioner has placed himself under the supervision of the board. The duty to report on
the part of the petitioner implies a corresponding power on the part of the board to inquire into his
conduct, and a fortiori to make recommendations to the President by whose authority it was
acting. Besides, the power to revoke paroles necessarily carries with it the power to investigate
and to inquire into the conduct of the parolees, if such power of revocation is to be rational and
intelligent. In the exercise of this incidental power of inquiry and investigation, the President of the
Philippines is not precluded by law or by the Constitution from making use of any agency of the
government, or even of any individual, to secure the necessary assistance.

2. Appellant further contends that judicial pronouncement to the effect that he has committed a
crime is necessary before he can be properly adjudged as having violated his conditional parole.
Under condition No. 2 of his parole, petitioner agreed that he "will not commit any other crime and
will conduct himself in an orderly manner." It was, therefore, the mere commission, not his
conviction by court, of any other crime, that was necessary in order that the petitioner may be
deemed to have violated his parole. And under section 64 (i) of the Administrative Code, the Chief
Executive is authorized to order "the arrest and re-incarceration of any such person who, in his
judgment, shall fail to comply with the condition, or conditions, of his pardon, parole, or suspension
of sentence."

3. Appellant impugns the findings of the President regarding the violation of the conditional parole.
He claims that, according to the weight of the evidence, the violation took place, not "in the latter
part of September, 1937," as found by the President, but after October 28, 1937, the date when
the parole was supposed to expire. But that as it may, where, as in the instant case, the
determination of the violation of the conditional parole rests exclusively in the sound judgment of
the Chief Executive, the courts will not interfere, by way of review, with any of his findings. The
petitioner herein having consented to place his liberty on parole upon the judgment of the power
that has granted it, he cannot invoke the aid of the courts, however erroneous the findings may
be upon which his recommitment was ordered.

4. When a conditional pardon is violated, the prisoner is placed in the same state in which he was
at the time the pardon was granted. He may be rearrested and recommitted to prisons (See U.S.
vs. Ignacio [1916}, 33 Phil., 202, 204; U.S. vs. Villalon [1917], 37 Phil., 322.) And the rule is well-
settled that, in requiring the convict to undergo so much of the punishment imposed by his original
sentence as he had not suffered at the time of his release, the court should not consider the time
during which the convict was at large by virtue of the pardon as time served on the original
sentence. (20 R.C.L., p. 570; State vs. Horne [1906], 52 Fla., 125; 42 So., 388; 7 L.R.A. [N.S.},
719, 725. Vide, also, Ex parte Bell [1879], Miss., 282.) G.R. No. L-46437 May 23, 1939
EUFEMIO P. TESORO vs. THE DIRECTOR OF PRISONS

Case: 1. The grant of pardon and the determination of the terms and conditions of a conditional
pardon are purely executive acts which are not subject to judicial scrutiny.

2. The determination of the occurrence of a breach of a condition of a pardon, and the proper
consequences of such breach, may be either a purely executive act, not subject to judicial scrutiny
under Section 64 (i) of the Revised Administrative Code; or it may be a judicial act consisting of
trial for and conviction of violation of a conditional pardon under Article 159 of the Revised Penal
Code. Where the President opts to proceed under Section 64 (i) of the Revised Administrative
Code, no judicial pronouncement of guilt of a subsequent crime is necessary, much less
conviction therefor by final judgment of a court, in order that a convict may be recommended for
the violation of his conditional pardon.

3. Because due process is not semper et unique judicial process, and because the conditionally
pardoned convict had already been accorded judicial due process in his trial and conviction for
the offense for which he was conditionally pardoned, Section 64 (i) of the Revised Administrative
Code is not afflicted with a constitutional vice. G.R. No. 76872 July 23, 1987 WILFREDO
TORRES Y SUMULONG, vs. HON. NEPTALI A. GONZALES

Pardon Parole
Only the President can grant a pardon with or It is granted by the recommendation of the Board of
43

without any condition. Exempts the individual on Pardons and Parole, It does not result in full
whom it is bestowed from punishment which the restoration of liberty as the parolee is still in the
Page

law inflicts on the crime committed custody of the law

Political Law 1 2023 Atty. Edgar Pascua II

 It can be granted at any time after final judgment There must be a final judgment of conviction. The
of conviction without any condition (absolute release from imprisonment after serving the minimum
pardon) or subject to some requirements or penalty imposed under the Indeterminate Sentence
qualifications as the President may see fit Law (Act. No. 4103)

c. Pardon distinguished Amnesty

Amnesty must be distinguished from pardon.

Pardon Amnesty
Pardon is granted by the Chief Executive and as While amnesty by Proclamation of the Chief
such it is a private act which must be pleaded and Executive with the concurrence of Congress, and it is
proved by the person pardoned, because the a public act of which the courts should take judicial
courts take no notice thereof; notice18.

Pardon is granted to one after conviction While amnesty is granted to classes of persons or
communities who may be guilty of political offenses,
generally before or after the institution of the criminal
prosecution and sometimes after conviction.

Pardon looks forward and relieves the offender Amnesty looks backward and abolishes and puts into
from the consequences of an offense of which he oblivion the offense itself, it so overlooks and
has been convicted, that is, it abolished or obliterates the offense with which he is charged that
forgives the punishment, and for that reason it the person released by amnesty stands before the
does "nor work the restoration of the rights to hold law precisely as though he had committed no
public office, or the right of suffrage, unless such offense. (Barrioquinto et al v. Fernandez 82 Phil 642)
rights be expressly restored by the terms of the
pardon," and it "in no case exempts the culprit
from the payment of the civil indemnity imposed
upon him by the sentence" article 36, Revised
Penal Code).

d. Effects of Pardon

Issue: Is Santos disqualified for his elective public office despite having been pardoned?

Rule: It should be observed that there are two limitations upon the exercise of this constitutional
prerogative by the Chief Executive, namely: (a) that the power be exercised after convictions; and
(b) that such power does not extend to cases of impeachment. Subject to the limitations imposed
by the Constitution, the pardoning power does not extend to cases of impeachment. Subject to
the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled
by legislative action. It must remain where the sovereign authority has placed it and must be
exercised by the highest authority to whom it is entrusted. An absolute pardon not only blots
out the crime committed, but removes all disabilities resulting from the convictions. In the
present case, the disability is the result of conviction without which there would no basis for
disqualification from voting. Imprisonment is not the only punishment which the law imposes upon
those who violate its command. There are accessory and resultant disabilities, and the pardoning
power likewise extends to such disabilities. When granted after the term of imprisonment has
expired, absolute pardon removes all that is left of the consequences of conviction. In the present
case, while the pardon extended to respondent Santos is conditional in the sense that "he will be
eligible for appointment only to positions which are clerical or manual in nature involving no money
44

or property responsibility," it is absolute insofar as it "restores the respondent to full civil and
Page

18
"Pardon 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. x x x G.R. No. 137891 July 11,
2001 PEOPLE OF THE PHILIPPINES vs. JESUS PATRIARCA

Political Law 1 2023 Atty. Edgar Pascua II

political rights." G.R. No. L-47941 December 7, 1940 MIGUEL CRISTOBAL vs. ALEJO
LABRADOR, ET AL

Issue: Is Palatino disqualified from the elective position as Mayor despite having been formerly
pardoned and have been restored of his enjoyment of full civil and political rights., the criminal
conviction having been made under the then Election Code, and the pardon having been granted
after the election but before the date fixed by law for assuming office?

Rule: We adopt the broad view expressed in Cristobal vs. Labrador, G. R. No. 47941,
promulgated December 7, 1940, that subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon
not only blots out the crime committed but removes all disabilities resulting from the conviction,
and that when granted after the term of imprisonment has expired, absolute pardon removes all
that is left of the consequences of conviction, While there may be force in the argument which
finds support in well considered cases that the effect of absolute pardon should not be extended
to cases of this kind, we are of the opinion that the better view in the light of the constitutional
grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive
who, after inquiry into the environmental facts, should be at liberty to atone the rigidity of the law
to the extent of relieving completely the party or parties concerned from the accessory and
resultant disabilities of criminal conviction. In the case at bar, it is admitted that the respondent
mayor-elect committed the offense more than 25 years ago; that he had already merited
conditional pardon from the Governor-General in 1915; that thereafter he had exercised the right
of suffrage, was elected councilor of Torrijos, Marinduque, for the period 1918 to 1921; was
elected municipal president of that municipality three times in succession (1922-1931); and finally
elected mayor of the municipality in the election for local officials in December, 1940. Under these
circumstances, it is evident that the purpose in granting him absolute pardon was to enable him
to assume the position in deference to the popular will; and the pardon was thus extended on the
date mentioned hereinabove and before the date fixed in section 4 of the Election Code for
assuming office. We see no reason for defeating this wholesome purpose by a restrictive judicial
interpretation of the constitutional grant to the Chief Executive. We, therefore, give efficacy to
executive action and disregard what at bottom is a technical objection. G.R. No. L-48100 June
20, 1941 Florencio Pelobello vs. Gregorio Palatino

Case: Despite the interim grant of pardon, Petitioner was disqualified to file his candidacy on the
ground of a former conviction for the offense of counterfeiting, and thus the consequent
disqualification from suffrage.

Issue: Whether or not a plenary pardon, granted after election but before the date fixed by law
for assuming office, had the effect of removing the disqualifications prescribed by both the criminal
and electoral codes.

Rule: Certain authorities (67 C.J.S. 578) do hold that a pardon is not retrospective. But the view
consistently adopted in this jurisdiction is that the pardon's effects should not be unnecessarily
limited as it would lead to the impairment of the pardoning power, which was not contemplated in
the Constitution (Cristobal vs. Labrador, 71 Phil. 34, 39; Pelobello vs. Palatino, 72 Phil. 4,11;
Mijares vs. Custorio, 73 Phil. 507).

More specifically, this Court, in Pelobello vs. Palatino, 72 Phil. 441, through Justice Laurel, stated:

“... Without the necessity of inquiring into the historical background of the benign prerogative of
mercy, we adopt the broad view expressed in Cristobal vs. Labrador, G.R. No. 47941,
promulgated December 7, 1940 that subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon
not only blots out the crime committed but removes all disabilities resulting from conviction; and
that when granted after the term of imprisonment has expired, absolute pardon removes all that
is left of the consequences of conviction. While there may be force in the argument which finds
support in well considered cases that the effect of absolute pardon should not be extended to
cases of this kind, we are of the opinion that the better view in the light of the constitutional grant
in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who,
45

after inquiry into the environmental facts, should be at liberty to atone the rigidity of law to the
extent of relieving completely the party or parties concerned from the accessory and resultant
Page

disabilities of criminal conviction. …. Under these circumstances, it is evident that the purpose in

Political Law 1 2023 Atty. Edgar Pascua II

granting him absolute pardon was to enable him to assume the position in deference to the
popular will; and the pardon was thus extended on the date mentioned herein above and before
the date fixed … for assuming office. We see no reason for defeating this wholesome purpose by
a restrictive judicial interpretation of the constitutional grant to the Chief Executive. We, therefore,
give efficacy to executive action and disregard that at bottom is a technical objection”

Upon the, authority of the three cases previously cited, we conclude that the pardon granted to
appellee Abes has removed his disqualification, and his election and assumption of office must
be sustained. G.R. No. L-28613 August 27, 1968 AMBROCIO LACUNA vs. BENJAMIN H.
ABES

Case: Was Petitioner entitled as a consequence of Pardon to reinstatement as assistant city

treasurer.

Rule: While we are prepared to concede that pardon may remit all the penal consequences of a
criminal indictment if only to give meaning to the fiat that a pardon, being a presidential
prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he is absolved, he should be
treated as if he were innocent. For whatever may have been the judicial dicta in the past, we
cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict
in character and conduct with one who has constantly maintained the mark of a good, law-abiding
citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite
the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will
take into account in their subsequent dealings with the actor."

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and
restores him to all his civil rights. But unless expressly grounded on the person's innocence (which
is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing

We are in full agreement with the commonly-held opinion that pardon does not ipso facto restore
a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction
although such pardon undoubtedly restores his eligibility for appointment to that office.

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon
her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by
the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the
sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability
may only be extinguished by the same causes recognized in the Civil Code, namely: payment,
loss of the thing due, remission of the debt, merger of the rights of creditor and debtor,
compensation and novation. G.R. No. 78239 February 9, 1989 Salvacion A. Monsanto vs.
Fulgencio S. Factoran, Jr.

e. Sanctions for Violations

In proceeding against a convict who has been conditionally pardoned and who is
alleged to have breached the conditions of his pardon, the Executive Department has
two options:

(i) to proceed against him under Section 64 (i)19 of the Revised Administrative Code;
or

(ii) to proceed against him under Article 159 of the Revised Penal Code which imposes
46

the penalty of prision correccional, minimum period, upon a convict who "having
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19
to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend
sentences without parole, remit fines, and order the discharge of any convicted person upon parole, subject to such
conditions as he may impose; and to authorize the arrest and recommitment of any such person who, in his judgment,
shall fail to comply with the condition or conditions, of his pardon, parole or suspension of sentence.

Political Law 1 2023 Atty. Edgar Pascua II

been granted conditional pardon by the Chief Executive, shall violate any of the
conditions of such pardon.

f. Pardon and Administrative cases

Issues: 1.Can pardon be allowed for convictions in Administrative cases? 2. May the Executive
Secretary grant clemencies?

Rule:: We do not clearly see any valid and convincing reason why the President cannot grant
executive clemency in administrative cases. It is Our considered view that if the President can
grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with
much more reason can she grant executive clemency in administrative cases, which are clearly
less serious than criminal offenses.

Under the doctrine of Qualified Political Agency, the different executive departments are mere
adjuncts of the President. Their acts are presumptively the acts of the President until
countermanded or reprobated by her. (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers
Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it
is urged by the Solicitor General that in the present case, the President, in the exercise of her
power of supervision and control over all executive departments, may substitute her decision for
that of her subordinate, most especially where the basis therefor would be to serve the greater
public interest. It is clearly within the power of the President not only to grant "executive clemency"
but also to reverse or modify a ruling issued by a subordinate against an erring public official,
where a reconsideration of the facts alleged would support the same. It is in this sense that the
alleged executive clemency was granted, after adducing reasons that subserve the public interest.
G.R. No. 99031 October 15, 1991 RODOLFO D. LLAMAS, vs EXECUTIVE SECRETARY
OSCAR ORBOS

g. Who may avail of amnesty?

Case: Amnesty commonly denotes a general pardon to rebels for their treason or other high
political offenses, or the forgiveness which one sovereign grants to the subjects of another, who
have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and
puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is
charged, that the person released by amnesty stands before the law precisely as though he had
committed no offense. (395 Phil.690 (2000), citing People v. Casido, 336 Phil. 344 (1997). G.R.
No. 137891 July 11, 2001 PEOPLE OF THE PHILIPPINES vs. JESUS PATRIARCA

Cases:

Rule: The reduction of a prisoner's sentence is a partial pardon, and our Constitution reposes in
the President the power and the exclusive prerogative to extend the same. The 1987 Constitution,
specifically under Section 19, Article VII thereof, provides that the President possesses the power
to grant pardons, along with other acts of executive clemency, which petitioner explicitly
recognized by applying for commutation of sentence even during the pendency of his request for
the implementation of the conditional pardon. Section 19, Article VII of the 1987 Constitution
reads:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution,

the President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.

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

It has long been recognized that the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, demands the exclusive exercise by the President of the
constitutionally vested power. Stated otherwise, since the Chief Executive is required by the
Constitution to act in person, he may not delegate the authority to pardon prisoners under the
47

doctrine of qualified political agency, which "essentially postulates that the heads of the various
Page

executive departments are the alter egos of the President, and, thus, the actions taken by such

Political Law 1 2023 Atty. Edgar Pascua II

heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts." June 15, 2016 G.R. No. 211269 RUBEN E. TIU,
vs. HON. NATIVIDAD G. DIZON

Bar Exam November 2017, item IV.

A. What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution? Is the exercise of the
power absolute? (4%)

B. Distinguish pardon from amnesty. (4%)

(6) Powers of the Commander in Chief

Section 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippinesand whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege
of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of 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 of 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
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released. (Art VII)

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required. (Art III)

Section 1. xxx
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. (Art VIII)

“Commander in Chief Powers”

48

The commander in chief powers of the president include the power to;
Page

Political Law 1 2023 Atty. Edgar Pascua II

 CALL OUT SUCH ARMED SUSPEND THE PROCLAIM MARTIAL
FORCES PRIVILEGE OF THE LAWOVER THE ENTIRE
WRIT OF HABEAS PHILIPPINES OR ANY PART
CORPUS THEREOF
to prevent or suppress lawless rebellion or invasion, when public safety requires
violence, invasion or
rebellion.

"STATE OF REBELLION"- In the exercise of this calling out power as Commander-in-

Chief of the armed forces, the Constitution does not require the President to make a
declaration of a "state of rebellion" (or, for that matter, of lawless violence or
invasion). The term "state of rebellion" has no legal significance. It is vague and
amorphous and does not give the President more power than what the Constitution
says, i.e, whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion.

As Justice Mendoza observed, such a declaration is "legal surplusage." But whatever

the term means, it cannot diminish or violate constitutionally-protected rights, such
as the right to due process, the rights to free speech and peaceful assembly to
petition the government for redress of grievances, and the right against unreasonable
searches and seizures, among others.20

“EXERCISED BY ONE PRESIDENT”-The exceptional character of Commander-in-Chief

powers dictate that they are exercised by one president

Springing from the well-entrenched constitutional precept of One President is the

notion that there are certain acts which, by their very nature, may only be performed
by the president as the Head of the State. One of these acts or prerogatives is the
bundle of Commander-in-Chief powers to which the "calling-out" powers constitutes
a portion. The President’s Emergency Powers, on the other hand, is balanced only by
the legislative act of Congress, as embodied in the second paragraph of Section 23,
Article 6 of the Constitution:

Article 6, Sec 23(2). In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry
out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.

The power to declare a state of martial law is subject to the Supreme Court’s authority
to review the 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 President alone. As noted in Villena,
"(t)here are certain constitutional powers and prerogatives of the Chief Executive of
the Nation which must be exercised by him in person and no amount of approval or
ratification will validate the exercise of any of those powers by any other person.
49
Page

20
Facts: President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang, issued
Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued
General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the
rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion"
were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which
allegedly gave a semblance of legality to the arrests, the petitions were filed before the Court. - G.R. No. 147780 May
10, 2001 PANFILO LACSON, vs. SECRETARY - On May 1, 2001,

Political Law 1 2023 Atty. Edgar Pascua II

Such, for instance, is his power to suspend the writ of habeas corpus and proclaim
martial law x x x. 21

THE LIMITATIONS AND CONDITIONS FOR THE COMMANDER IN CHIEF IN

THE 1987 CONSTITUTION IS COMPELLED BY HISTORY:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President

Ferdinand Marcos to impose authoritarian rule on the Philippines from 1972 to 1986.
Supreme Court decisions during that period upholding the actions taken by Mr. Marcos
made authoritarian rule part of Philippine constitutional jurisprudence. The members of
the Constitutional Commission, very much aware of these facts, went about reformulating
the Commander-in-Chief powers with a view to dismantling what had been constructed
during the authoritarian years. The new formula included revised grounds for the activation
of emergency powers, the manner of activating them, the scope of the powers, and review
of presidential action. Bernas, Joaquin, G . The Intent of the 1986 Constitution
Writers, I 995 ed., p. 456.

During the closing session of the Constitutional Commission's deliberations, President

Cecilia Muñoz Palma expressed her sentiments on the 1987 Constitution. She said:

The executive power is vested in the President of the Philippines elected by the
people for a six-year term with no reelection for the duration of his/her life. While
traditional powers inherent in the office of the President are granted, nonetheless
for the first time, there are specific provisions which curtail the extent of such
powers. Most significant is the power of the Chief Executive to suspend the
privilege of the writ of habeas corpus or proclaim martial law.

The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused
the imposition of martial law for more than eight years and the suspension of the
privilege of the writ even after the lifting of martial law in 1981. The new
Constitution now provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a period not
exceeding 60 days, and reserving to Congress the power to revoke such
suspension or proclamation of martial law which congressional action may not be
revoked by the President. More importantly, the action of the President is made
subject to judicial review, thereby again discarding jurisprudence which render[s]
the executive action a political question and beyond the jurisdiction of the courts
to adjudicate.

For the first time, there is a provision that the state of martial law does not
suspend the operation of the Constitution nor abolish civil courts or legislative
assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the
privilege of the writ. Please forgive me if, at this point, I state that this
constitutional provision vindicates the dissenting opinions I have written during
my tenure in the Supreme Court in the martial law cases. 22

A. Call out such armed forces to prevent or suppress lawless

violence, invasion or rebellion

This is intended to suppress disorder.

In the case of Integrated Bar of the Philippines v. Zamora, (392 Phil. 618.) the Court
had occasion to rule that the calling-out powers belong solely to the President as
50

commander-in-chief:
Page

21
67 Phil. 451 (1939).G.R. No. 187298 July 03, 2012 JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI,
JULHAJAN AWADI, and SPO1 SATTAL H. JADJULI, vs. GOV. ABDUSAKUR M. TAN,
22
V RECORD, CONSTITUTIONAL COMMISSION 1009-10 10 (October 15, 1986). Emphasis supplied

Political Law 1 2023 Atty. Edgar Pascua II

 “When the President calls the armed forces to prevent or suppress lawless violence, invasion
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This
is clear from the intent of the framers and from the text of the Constitution itself. The Court,
thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However,
this does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis”

There is a clear textual commitment under the Constitution to bestow on the

President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. 23

B. Suspend the privilege of the writ of habeas corpus, or

proclaim martial law over the entire Philippines or any part
thereof.

Common grounds:

1. There must be an (actual) invasion or rebellion, and

2. Public safety requires the suspension.

Limitations:

1. Effective only for 60 days

2. Within forty-eight hours from the proclamation of 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.
3. 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.
4. Revocation shall not be set aside by the President.
5. Upon the initiative of the President, the Congress may extend such proclamation
or suspension

SUSPEND THE PRIVILEGE

OF THE WRIT OF HABEAS CORPUS

A "writ of habeas corpus" is an order from the court commanding a detaining

officer to inform the court

1. If he has the person in custody,

2. Of his basis in detaining that person.

The herein suspension applies only in cases of rebellion or offenses directly or

inherently related with invasion. Such persons suspected of the above crimes can be
arrested and detained without a warrant of arrest. Further, anyone arrested during
the suspension must be charged within three days, otherwise, release must be made.
Further detention without the charges made shall hold the detaining person liable
under the Revised penal code under Art. 125 or for "delay in the delivery of detained
persons.

The suspension of the privilege does not make the arrest without warrant legal. But
the military is, in effect, enabled to make the arrest, anyway since, with the
suspension of the privilege, there is no remedy available against such unlawful arrest
51

(arbitrary detention). The arrest without warrant is justified by the emergency

Page

situation and the difficulty in applying for a warrant considering the time and the

23G.R. No. 187298 July 03, 2012 JAMAR M. KULAYAN vs. GOV. ABDUSAKUR M. TAN

Political Law 1 2023 Atty. Edgar Pascua II

number of persons to be arrested. But the crime for which he is arrested must be
one related to rebellion or the invasion. As to other crimes, the suspension of the
privilege does not apply. The effect of the suspension of the privilege, therefore, is
only to extend the periods during which he can be detained without a warrant.24

The right to bail shall not be impaired during the suspension.

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required. (Art. III.)

In case of imprisonment or restraint by an officer, the writ shall be directed to him,

and shall command him to have the body of the person restrained of his liberty before
the court or judge designated in the writ at the time and place therein specified. In
case of imprisonment or restraint by a person not an officer, the writ shall be directed
to an officer, and shall command him to take and have the body of the person
restrained of his liberty before the court or judge designated in the writ at the time
and place therein specified, and to summon the person by whom he is restrained
then and there to appear before said court or judge to show the cause of the
imprisonment or restraint.

The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief is illegally deprived of his freedom of movement or placed under
some form of illegal restraint. If an individual’s liberty is restrained via some legal
process, the writ of habeas corpus is unavailing. Fundamentally, in order to justify
the grant of the writ of habeas corpus, the restraint of liberty must be in the nature
of an illegal and involuntary deprivation of freedom of action.

In general, the purpose of the writ of habeas corpus is to determine whether or not
a particular person is legally held. A prime specification of an application for a writ of
habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty. The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. xxx The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient.

In passing upon a petition for habeas corpus, a court or judge must first inquire into
whether the petitioner is being restrained of his liberty. If he is not, the writ will be
refused. Inquiry into the cause of detention will proceed only where such restraint
exists. If the alleged cause is thereafter found to be unlawful, then the writ should
be granted and the petitioner discharged. Needless to state, if otherwise, again the
writ will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a
mere perfunctory operation on the filing of the petition. Judicial discretion is called
for in its issuance and it must be clear to the judge to whom the petition is presented
that, prima facie, the petitioner is entitled to the writ. It is only if the court is satisfied
that a person is being unlawfully restrained of his liberty will the petition for habeas
corpus be granted. If the respondents are not detaining or restraining the applicant
of the person in whose behalf the petition is filed, the petition should be dismissed25.
52
Page

PROCLAIM MARTIAL LAW

24
Adopted (Mendoza)
25
G.R. No. 190108 October 19, 2010 DAVID E. SO vs. HON. ESTEBAN A. TACLA, JR.

Political Law 1 2023 Atty. Edgar Pascua II

OVER THE ENTIRE PHILIPPINES
OR ANY PART THEREOF.

 Effects of the proclamation of martial law

The President can:

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

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

1. Suspend the operation of the Constitution. (The President’s power here in fact
emanates from the constitution)
2. Supplant the functioning of the civil courts and the legislative assemblies.
3. Confer jurisdiction upon military courts and agencies over civilians, where civil
courts are unable to function.
4. Automatically suspend the privilege of the writ of habeas corpus.

HOW IS THE PROCLAMATION OR SUSPENSION LIFTED:

1) By the President himself

2) Revocation by Congress
3) Nullification by the Supreme Court
4) Operation of law, after 60 days

THE ROLE OF CONGRESS.

Congressional ratification or approval of the proclamation or suspension is not

necessary. However, 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 ROLE OF THE COURT

The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of 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.26

Some Cases: (Commander in Chief Powers)

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Page

26
Using the test of arbitrariness which seeks to determine the sufficiency of the factual basis of the measure. The
question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had
no basis in fact. i.e. ... that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy
the Court not that tile President's decision is correct and that public safety was endangered by the rebellion and justified
the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.

Political Law 1 2023 Atty. Edgar Pascua II

In the case of Lansang vs. Garcia the Court held unanimously that it has the
authority to inquire into the existence of the factual basis in order to determine the
constitutional sufficiency thereof.

Rule: In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively
arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual
bases for the issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine
the constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1,
par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation,
the members of the Court are now unanimous in the conviction that it has the authority to inquire
into the existence of said factual bases in order to determine the constitutional sufficiency thereof.

The issue there raised was whether in suspending the privilege of the writ in 1971, Marcos had a
basis for doing so. The Court, in considering the fact that the President based his decision on (a)
the Senate report on the condition in Central Luzon and (b) a closed door briefing by the military
showing the extent of subversion, concluded that the President did not act arbitrarily. One may
disagree with his appreciation of the facts, but one cannot say that it is without basis.G.R. No. L-
33964 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA vs. BRIGADIER-
GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary (and accompanying
cases).27

This holding is now found in Art. VII, Sec. 18, par. 3

“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of 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.”

Other Cases:

Case: Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa
Duterte issued Proclamation No. 216 declaring a state of martial law and suspending the
privilege of the writ of habeas corpus in the whole of Mindanao.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to
Congress on May 25, 2017, a written Report on the factual basis of Proclamation No. 216. The
Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless
violence which only escalated and worsened with the passing of time. The Report also highlighted
the strategic location of Marawi City and the crucial and significant role it plays in Mindanao, and
the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions
once Marawi City falls under the control of the lawless groups.

Issue1. In declaring martial law and suspending the privilege of the writ of habeas corpus,

a. Is the President required to be factually correct or only not arbitrary in his appreciation
of facts;

NO. In determining the sufficiency of the factual basis of the declaration and/or the suspension,
the Court should look into the full complement or totality of the factual basis, and not piecemeal
or individually. Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the urgency of the situation.
54

To require precision in the President's appreciation of facts would unduly burden him and
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therefore impede the process of his decision-making. Such a requirement will practically

27
The noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, the Court said: "We entertain, therefore, no doubts about the existence of a sizeable
group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in
rebellion against the Government of the Philippines.

Political Law 1 2023 Atty. Edgar Pascua II

necessitate the President to be on the ground to confirm the correctness of the reports submitted
to him within a period that only the circumstances obtaining would be able to dictate.

b. Is the President required to obtain the favorable recommendation thereon of the

Secretary of National Defense; or

NO. Even the recommendation of, or consultation with, the Secretary of National Defense, or
other high-ranking military officials, is not a condition for the President to declare martial law.

A plain reading of Section 18, Article VII of the Constitution shows that the President's power to
declare martial law is not subject to any condition except for the requirements of actual invasion
or rebellion and that public safety requires it. Besides, it would be contrary to common sense if
the decision of the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.

c. Is the President required to take into account only the situation at the time of the
proclamation, even if subsequent events prove the situation to have not been accurately
reported?

YES. Since the exercise of these powers is a judgment call of the President, the determination of
the Court as to whether there is sufficient factual basis for the exercise of the power to declare
martial law and/or suspend the privilege of the writ of habeas corpus, must be based only on facts
or information known by or available to the President at the time he made the declaration or
suspension which facts or information are found in the proclamation as well as the written Report
submitted by him to Congress. These may be based on the situation existing at the time the
declaration was made or past events. As to how far the past events should be from the present
depends on the President.

Similarly, events that happened after the issuance of the proclamation, which are included in the
written report, cannot be considered in determining the sufficiency of the factual basis of the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus since
these happened after the President had already issued the proclamation. If at all, they may be
used only as tools, guides or reference in the Court's determination of the sufficiency of factual
basis, but not as part or component of the portfolio of the factual basis itself.

Issue 2. Are the armed hostilities mentioned in Proclamation No. 216 and in the Report of
the President to Congress sufficient bases; a. for the existence of actual rebellion; or b.
for a declaration of martial law or the suspension of the privilege of the writ of habeas
corpus in the entire Mindanao region?

YES. A review of the facts available to the President that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to the Philippine Government a
portion of its territory and to deprive the Chief Executive of any of his power and prerogatives
leading to President to believe that there was probable cause that the crime of rebellion was and
is being committed and that public safety requires the imposition of martial law and suspension
of the privilege of the writ of habeas corpus. The President, in issuing Proclamation No. 216, had
sufficient factual bases tending to show that actual rebellion exists. The President’s conclusion
was reached after a tactical consideration of the facts. In fine, the President satisfactorily
discharged his burden of proof. After all, what the President needs to satisfy is only the standard
of probable cause for a valid declaration of martial law and suspension of the privilege of the writ
of habeas corpus. Lagman vs. Ho. Salvador Medialdea GR 231658, July 4, 201728

Obedience to the Commander in chief

Case: Petitioners seek the annulment of a directive from President Gloria Macapagal-
Arroyo enjoining them and other military officers from testifying before Congress without the
55

President’s consent. Petitioners also pray for injunctive relief against a pending preliminary
investigation against them, in preparation for possible court-martial proceedings, initiated within
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the military justice system in connection with petitioners’ violation of the aforementioned directive.

28
UST Law Review 2017-18

Political Law 1 2023 Atty. Edgar Pascua II

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen.
Senga issued a statement which noted that the two had appeared before the Senate Committee
"in spite of the fact that a guidance has been given that a Presidential approval should be sought
prior to such an appearance;" that such directive was "in keeping with the time[-]honored principle
of the Chain of Command;" and that the two officers "disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to
General Court Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise
relieved of their assignments then.

In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline

It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be declared
unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and
(3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for
and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005

Rule: The vitality of the tenet that the President is the commander-in-chief of the Armed Forces
is most crucial to the democratic way of life, to civilian supremacy over the military, and to the
general stability of our representative system of government. The Constitution reposes final
authority, control and supervision of the AFP to the President, a civilian who is not a member of
the armed forces, and whose duties as commander-in-chief represent only a part of the organic
duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy
over the military also countermands the notion that the military may bypass civilian authorities,
such as civil courts, on matters such as conducting warrantless searches and seizures.

As earlier noted, we ruled that the President may not issue a blanket requirement of prior consent
on executive officials summoned by the legislature to attend a congressional hearing. In doing so,
the Court recognized the considerable limitations on executive privilege, and affirmed that the
privilege must be formally invoked on specified grounds. However, the ability of the President to
prevent military officers from testifying before Congress does not turn on executive privilege, but
on the Chief Executive’s power as commander-in-chief to control the actions and speech of
members of the armed forces. The President’s prerogatives as commander-in-chief are not
hampered by the same limitations as in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the
approval of higher-rank promotions, yet it is on the President that the Constitution vests the title
as commander-in-chief and all the prerogatives and functions appertaining to the position. Again,
the exigencies of military discipline and the chain of command mandate that the President’s ability
to control the individual members of the armed forces be accorded the utmost respect. Where a
military officer is torn between obeying the President and obeying the Senate, the Court will
without hesitation affirm that the officer has to choose the President. After all, the Constitution
prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed
forces. G.R. No. 170165 August 15, 2006 B/GEN. (RET.) FRANCISCO V. GUDANI vs.
LT./GEN. GENEROSO S. SENGA

State of rebellion – National Emergency – Calling out Power

Case: On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
56

“NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines

and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers
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vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The

Political Law 1 2023 Atty. Edgar Pascua II

 President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent
or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law 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
promulgated by me personally or upon my direction; and as provided in Section 17, Article 12
of the Constitution do hereby declare a State of National Emergency.”

Allegedly, elements in the political opposition have conspired with authoritarians of the extreme
Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;

Rule: Calling-out Power- Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the President’s calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom
of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion and the authority to proclaim a state of national emergency. While
President Arroyo’s authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the
Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling
on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on
Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law.
It is not so. What defines the character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.

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

It is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless
violence.

"Take Care" Power - As the Executive in whom the executive power is vested, the primary
function of the President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of his
57

department. Before assuming office, he is required to take an oath or affirmation to the effect that
as President of the Philippines, he will, among others, "execute its laws." In the exercise of such
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function, the President, if needed, may employ the powers attached to his office as the

Political Law 1 2023 Atty. Edgar Pascua II

Commander-in-Chief of all the armed forces of the country, including the Philippine National
Police under the Department of Interior and Local Government.

The enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction."

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo
the authority to promulgate "decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be vested
in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing decrees.

President Arroyo has no authority to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and property relations, laws
on obligations and contracts and the like. She can only order the military, under PP 1017, to
enforce laws pertinent to its duty to suppress lawless violence.. G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID vs. GLORIA MACAPAGAL-ARROYO

Case: In the wake of the Oakwood occupation, the President issued later in the day Proclamation
No. 427 and General Order No. 4, both declaring "a state of rebellion" and calling out the Armed
Forces to suppress the rebellion

Rule: It is true that for the purpose of exercising the calling out power the Constitution does not
require the President to make a declaration of a state of rebellion.

The above provision grants the President, as Commander-in-Chief, a "sequence" of "graduated

power[s]." From the most to the least benign, these are:

 the calling out power,

 the power to suspend the privilege of the writ of habeas corpus, and
 the power to declare martial law.

In the exercise of the latter two powers, the Constitution requires the concurrence of two
conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of
such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, "[t]hese
conditions are not required in the exercise of the calling out power. The only criterion is that
'whenever it becomes necessary,' the President may call the armed forces 'to prevent or suppress
lawless violence, invasion or rebellion.'"

Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the
President from declaring a state of rebellion. Note that the Constitution vests the President not
only with Commander-in-Chief powers but, first and foremost, with Executive powers.

In calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most,
it only gives notice to the nation that such a state exists and that the armed forces may be called
to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the
perceived enemies of the State, even on the entire nation. But this Court's mandate is to probe
only into the legal consequences of the declaration. This Court finds that such a declaration is
devoid of any legal significance. For all legal intents, the declaration is deemed not written.

Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General
Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere
declaration of a state of rebellion cannot diminish or violate constitutionally protected
rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that
a simple declaration of a state of rebellion could not bring about these conditions. At any rate, the
58

presidential issuances themselves call for the suppression of the rebellion "with due regard to
constitutional rights."
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Political Law 1 2023 Atty. Edgar Pascua II

For the same reasons, apprehensions that the military and police authorities may resort to
warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court held
that "[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of
Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not
based on the declaration of a “state of rebellion”. In other words, a person may be subjected to a
warrantless arrest for the crime of rebellion whether or not the President has declared a state of
rebellion, so long as the requisites for a valid warrantless arrest are present.

It is not disputed that the President has full discretionary power to call out the armed forces and
to determine the necessity for the exercise of such power. While the Court may examine whether
the power was exercised within constitutional limits or in a manner constituting grave abuse of
discretion, none of the petitioners here have, by way of proof, supported their assertion that the
President acted without factual basis.

The argument that the declaration of a state of rebellion amounts to a declaration of martial law
and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no
indication that military tribunals have replaced civil courts in the "theater of war" or that military
authorities have taken over the functions of civil government. There is no allegation of curtailment
of civil or political rights. There is no indication that the President has exercised judicial and
legislative powers. In short, there is no illustration that the President has attempted to exercise or
has exercised martial law powers. G.R. No. 159085 February 3, 2004 SANLAKAS vs
EXECUTIVE SECRETARY

Is Civilian Authority supplanted when the president acts as commander in chief?

According to the Constitution;

Section 3. Civilian authority is, at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the
national territory. (Article II)

When the President acts as Commander in Chief, he acts to represent Civilian

Authority. His Control over the Military emphasizes the supremacy of Civilian
Authority.

(7) “Emergency Powers” (In times of war or other national emergency)

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

Distinction between the “Commander in Chief” and “Emergency Powers” (In times of
war or other national emergency)

The emergency powers of the President is distinct from the Commander-in-Chief

clause.

- Under the Commander-in-Chief clause, the President acts under a Constitutional

grant of military power, (including the law-making power).

- Under the Emergency Power, the President acts under a Congressional delegation
of lawmaking power.

Distinction between the “declaration of a State of National Emergency” and

“Emergency Powers”
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Political Law 1 2023 Atty. Edgar Pascua II

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

The President could validly declare the existence of a state of national emergency
even in the absence of a Congressional enactment.

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

Rule: Power to Take Over - Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or business
affected with public interest. (Nat’l Economy and Patrimony (Art.XII)

A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection can
be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

“SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.”

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

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

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

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other. Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section
23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:
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(1) There must be a war or other emergency.

Page

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

Political Law 1 2023 Atty. Edgar Pascua II

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

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

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected with public interest," it refers
to Congress, not the President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer, held:

“It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the
Army and Navy of the United States.”

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

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President’s power to
see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The first section of the first article
says that "All legislative Powers herein granted shall be vested in a Congress of the United
States."

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

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

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
61

affected with public interest without authority from Congress.

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Political Law 1 2023 Atty. Edgar Pascua II

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business affected
with public interest. Nor can he determine when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no power to point out the types of businesses
affected with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress. G.R. No. 171396 May 3, 2006 PROF. RANDOLF
S. DAVID vs. GLORIA MACAPAGAL-ARROYO

For emphasis: While the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public
utility or business affected with public interest. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.29

Case: On November 24, 2009, the day after the gruesome massacre of 57 men and women,
including some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation
1946,placing "the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under
a state of emergency." She directed the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP) "to undertake such measures as may be allowed by the Constitution and
by law to prevent and suppress all incidents of lawless violence" in the named places.,

Rule: Petitioners contend that the President unlawfully exercised emergency powers when she
ordered the deployment of AFP and PNP personnel in the places mentioned in the
proclamation. But such deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution, which provides:

“SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.”

The President did not proclaim a national emergency, only a state of emergency in the three
places mentioned. And she did not act pursuant to any law enacted by Congress that authorized
her to exercise extraordinary powers. The calling out of the armed forces to prevent or suppress
lawless violence in such places is a power that the Constitution directly vests in the President.
She did not need a congressional authority to exercise the same.

The President’s call on the armed forces to prevent or suppress lawless violence springs from
the power vested in her under Section 18, Article VII of the Constitution, which provides.

“SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. x x x”

While it is true that the Court may inquire into the factual bases for the President’s exercise of the
above power it would generally defer to her judgment on the matter. As the Court acknowledged
in Integrated Bar of the Philippines v. Hon. Zamora, it is clearly to the President that the
Constitution entrusts the determination of the need for calling out the armed forces to prevent and
suppress lawless violence. Unless it is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the President’s judgment. G.R. No.
190259 June 7, 2011 DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE
SAHALI-GENERALE vs. HON. RONALDO PUNO
62

(8) Contracting and guaranteeing foreign loans

Page

29
G.R. No. 171396 May 3, 2006 PROF. RANDOLF S. DAVID vs. GLORIA MACAPAGAL-ARROYO

Political Law 1 2023 Atty. Edgar Pascua II

 Section 20. The President may contract or guarantee foreign loans on behalf of the Republic
of the Philippines with the prior concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall, within thirty days from the
end of every quarter of the calendar year, submit to the Congress a complete report of its
decision on applications for loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would have the effect of increasing the
foreign debt, and containing other matters as may be provided by law. (Art VII)

Section 21. Foreign loans may only be incurred in accordance with law and the regulation of
the monetary authority. Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public. Art. XII

Case: This Petition for Certiorari, Prohibition and Mandamus assails said contracts which were
entered into pursuant to the Philippine Comprehensive Financing Program for 1992 ("Financing
Program" or "Program"). It seeks to enjoin respondents from executing additional debt-relief
contracts pursuant thereto. It also urges the Court to issue an order compelling the Secretary of
Justice to institute criminal and administrative cases against respondents for acts which
circumvent or negate the provisions Art. XII of the Constitution.

Issues: Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the Financing Program as
beyond the powers granted to the President under Section 20,

Second, according to petitioners even assuming that the contracts under the Financing Program
are constitutionally permissible, yet it is only the President who may exercise the power to enter
into these contracts and such power may not be delegated to respondents.

Rule: 1. For their first constitutional argument, petitioners submit that the buyback and bond-
conversion schemes do not constitute the loan "contract" or "guarantee" contemplated in the
Constitution and are consequently prohibited.

The language of the Constitution is simple and clear as it is broad. It allows the President to
contract and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of
loans or distinctions as to which kinds of debt instruments are more onerous than others. This
Court may not ascribe to the Constitution meanings and restrictions that would unduly burden the
powers of the President. The plain, clear and unambiguous language of the Constitution should
be construed in a sense that will allow the full exercise of the power provided therein. It would be
the worst kind of judicial legislation if the courts were to misconstrue and change the meaning of
the organic act.

2. Petitioners assert that the power to pay public debts lies with Congress and was deliberately
withheld by the Constitution from the President. It is true that in the balance of power between the
three branches of government, it is Congress that manages the country’s coffers by virtue of its
taxing and spending powers. However, the law-making authority has promulgated a law ordaining
an automatic appropriations provision for debt servicing by virtue of which the President is
empowered to execute debt payments without the need for further appropriations. Regarding
these legislative enactments, this Court has held, viz:

“Congress … deliberates or acts on the budget proposals of the President, and Congress in
the exercise of its own judgment and wisdom formulates an appropriation act precisely
following the process established by the Constitution, which specifies that no money may be
paid from the Treasury except in accordance with an appropriation made by law.”

Specific legal authority for the buyback of loans is established under Section 2 of Republic Act
(R.A.) No. 240, The afore-quoted provisions of law specifically allow the President to pre-
terminate debts without further action from Congress. More fundamentally, when taken in the
context of sovereign debts, a buyback is simply the purchase by the sovereign issuer of its own
debts at a discount. Clearly then, the objection to the validity of the buyback scheme is without
63

basis.
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Political Law 1 2023 Atty. Edgar Pascua II

3. Petitioners’ position is negated both by explicit constitutional and legal imprimaturs, as well as
the doctrine of qualified political agency.

The evident exigency of having the Secretary of Finance implement the decision of the President
to execute the debt-relief contracts is made manifest by the fact that the process of establishing
and executing a strategy for managing the government’s debt is deep within the realm of the
expertise of the Department of Finance, primed as it is to raise the required amount of funding,
achieve its risk and cost objectives, and meet any other sovereign debt management goals.

If, as petitioners would have it, the President were to personally exercise every aspect of the
foreign borrowing power, he/she would have to pause from running the country long enough to
focus on a welter of time-consuming detailed activities–the propriety of incurring/guaranteeing
loans, studying and choosing among the many methods that may be taken toward this end,
meeting countless times with creditor representatives to negotiate, obtaining the concurrence of
the Monetary Board, explaining and defending the negotiated deal to the public, and more often
than not, flying to the agreed place of execution to sign the documents. This sort of constitutional
interpretation would negate the very existence of cabinet positions and the respective expertise
which the holders thereof are accorded and would unduly hamper the President’s effectivity in
running the government. Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005

(9) Powers over foreign affairs

Treaty-making power

Section 21. No treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate. (Art VII)

Treaties or International Agreements vs. Executive Agreements

Unlike treaties or international agreements, executive agreements entered into by

the President need no concurrence of Legislature. The same is by the fact that
Executive agreements are not among those expressly mentioned in Section 21.

Distinctions

1. Treaties are formal documents which require ratification with the approval of two
thirds of the Senate. (Sec 21 Art VII)

Executive agreements become binding through executive action without the need
of a vote by the Senate or by Congress.

2. International agreements involving political issues or changes of national policy

and those involving international arrangements of a permanent character usually
take the form of treaties.

But international agreements embodying adjustments of detail, carrying out well-

established national policies and traditions and those involving arrangements of a
more or less temporary nature usually take the form of executive agreements.30

Case: This is a petition for mandamus filed by petitioners to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute
of the International Criminal Court to the Senate of the Philippines for its concurrence in
accordance with Section 21, Article VII of the 1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
64

international law, is a function of the Senate. Hence, it is the duty of the executive department to
transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion
Page

with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a

30
(Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351)

Political Law 1 2023 Atty. Edgar Pascua II

ministerial duty to ratify the Rome Statute under treaty law and customary international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain
from acts which would defeat the object and purpose of a treaty when they have signed the treaty
prior to ratification unless they have made their intention clear not to become parties to the treaty

The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.

Rule: In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country’s sole representative with foreign
nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece
with respect to international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of
the 1987 Constitution provides that "no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate."

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations. By requiring the concurrence of
the legislature in the treaties entered into by the President, the Constitution ensures a healthy
system of checks and balance necessary in the nation’s pursuit of political maturity and growth

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this
wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task
to his authorized representatives. These representatives are provided with credentials known as
full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the proposed treaty which, together
with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations
may be brief or protracted, depending on the issues involved, and may even "collapse" in case
the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened
for signature. This step is primarily intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of the treaty is required. The document is
ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed
to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse to
be bound by it should they find it inimical to their interests. It is for this reason that most treaties
are made subject to the scrutiny and consent of a department of the government other than that
which negotiated them.
65

The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by
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Political Law 1 2023 Atty. Edgar Pascua II

the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty,
the instrument is deemed effective upon its signature.

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a symbol of the good faith
of the parties. It is usually performed by the state’s authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representative. It is generally held to be an executive
act, undertaken by the head of the state or of the government.

Petitioners’ submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof.
In fact, the Rome Statute itself requires that the signature of the representatives of the states be
subject to ratification, acceptance or approval of the signatory states. Ratification is the act by
which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a
treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the state’s representative, the President, being accountable to
the people, is burdened with the responsibility and the duty to carefully study the contents of the
treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the
President has the discretion even after the signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held that a state
has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.
There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be
based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other
state would be justified in taking offense.

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving
or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of
the President to refuse to submit a treaty to the Senate or, having secured its consent for its
ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been
signed in its behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via a writ of
mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed
for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the
government to transmit the signed text of Rome Statute to the Senate. G.R. No. 158088 July 6,
2005 Senator Aquilino Pimentel, Jr., et al. vs. Office of the Executive Secretary

In case of Conflict, which prevails, a Treaty or a Statute?

A treaty cannot amend a statute. When the president enters into a treaty that is
inconsistent with a prior statute, the president may unilaterally withdraw from it,
unless the prior statute is amended to be consistent with the treaty.

 A statute enjoys primacy over a treaty. It is passed by both the House of

Representatives and the Senate, and is ultimately signed into law by the
president.

 In contrast, a treaty is negotiated by the president, and legislative participation

is limited to Senate concurrence.

Thus, there is greater participation by the sovereign's democratically elected

66

representatives in the enactment of statutes. Pangilinan vs. Cayetano. G.R.

No. 238875 March 16, 2021
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Political Law 1 2023 Atty. Edgar Pascua II

Can the President unilaterally withdraw from a treaty?

Rule: The President's discretion on unilaterally withdrawing from any treaty or international
agreement is not absolute. As primary architect of foreign policy, the president enjoys a degree
of leeway to withdraw from treaties. However, this leeway cannot go beyond the president's
authority under the Constitution and the laws. In appropriate cases, legislative involvement is
imperative. The president cannot unilaterally withdraw from a treaty if there is subsequent
legislation which affirms and implements it.

The extent of legislative involvement in withdrawing from treaties is further determined by

circumstances attendant to how the treaty was entered into or came into effect. Where legislative
imprimatur impelled the president's action to enter into a treaty, a withdrawal cannot be effected
without concomitant legislative sanction. Similarly, where the Senate's concurrence imposes as
a condition the same concurrence for withdrawal, the president enjoys no unilateral authority to
withdraw, and must then secure Senate concurrence.

Thus, the president can withdraw from a treaty as a matter of policy in keeping with our legal
system, if a treaty is unconstitutional or contrary to provisions of an existing prior statute.
However, the president may not unilaterally withdraw from a treaty: (a) when the Senate
conditionally concurs, such that it requires concurrence also to withdraw; or (b) when the
withdrawal itself will be contrary to a statute, or to a legislative authority to negotiate and enter
into a treaty, or an existing law which implements a treaty. - Pangilinan vs. Cayetano. G.R.
No. 238875 March 16, 2021

(10) Deportation of undesirable aliens

Case: Spouses Galang were charged of having purchased and remitted abroad some
$130,000.00 US Dollars without the necessary permit from the Central Bank. Warrants of Arrest
were issued following the charges. They question the authority of the President and the
Deportation Board.

Rule: Under Commonwealth Act No. 613 (Immigration Act of 1940), the Commissioner of
Immigration was empowered to effect the arrest and expulsion of an alien, after previous
determination by the Board of Commissioners of the existence of ground or grounds therefor
(Sec- 37). With the enactment of this law, however, the legislature did not intend to delimit or
concentrate the exercise of the power to deport on the Immigration Commissioner alone

While it may really be contended that the aforequoted provision did not expressly confer on the
President the authority to deport undesirable aliens, unlike the express grant to the Commissioner
of Immigration under Commonwealth Act No. 613, but merely lays down the procedure to be
observed should there be deportation proceedings, the fact that such a procedure was provided
for before the President can deport an alien-which provision was expressly declared exempted
from the repealing effect of the Immigration Act of 1940-is a clear indication of the recognition,
and inferentially a ratification, by the legislature of the existence of such power in the Executive.
And the, exercise of this power by the chief Executive has been sanctioned by this Court in several
decisions

Under the present and existing laws, therefore, deportation of an undesirable alien may be
effected in two ways: by order of the President, after due investigation, pursuant to Section 69 of
the Revised Administrative Code, and by the Commissioner of Immigration, upon
recommendation by the Board of Commissioners, under Section 37 of Commonwealth Act No.
613.

There seems to be no doubt that the President's power of investigation may be delegated. This
is clear from a reading of Section 69 of the Revised Administrative Code which provides for a
"prior investigation, conducted by said Executive (the President) or his authorized agent." The
first executive order on the subject was that of Governor General Frank Murphy (No. 494, July
26, 1934), constituting a board to take action on complaints against foreigners, to conduct
67

investigations and thereafter make recommendations. By virtue of Executive Order No. 33 dated
May 29, 1936, President Quezon created the Deportation Board primarily to receive complaints
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against aliens charged to be undesirable, to conduct investigation pursuant to Section 69 of the

Political Law 1 2023 Atty. Edgar Pascua II

Revised Administrative Code and the rules and regulations therein provided, and make the
corresponding recommendation. Since then, the Deportation Board has been conducting the
investigation as the authorized agent of the President.

The exercise of the power to order the arrest of an individual demands the exercise of discretion
by the one issuing the same, to determine whether under specific circumstances, the curtailment
of the liberty of such person is warranted. The fact that the Constitution itself, as well as the statute
relied upon, prescribe the manner by which the warrant may be issued, conveys the intent to
make the issuance of such warrant dependent upon conditions the determination of the existence
of which requires the use of discretion by the person issuing the same. In other words, the
discretion of whether a warrant of arrest shall issue or not is personal to the one upon whom the
authority devolves. And authorities are to the effect that while ministerial duties may be delegated,
official functions requiring the exercise of discretion and judgment, may not be so delegated.
Indeed, an implied grant of power, considering that no express authority was granted by the law
on the matter under discussion, that would serve the curtailment or limitation on the fundamental
right of a person, such as his security to life and liberty, must be viewed with caution, if we are to
give meaning to the guarantee contained in the Constitution. If this is so, then guarantee a
delegation of that implied power, nebulous as it is, must be rejected as inimical to the liberty of
the people. The guarantees of human rights and freedom cannot be made to rest precariously on
such a shaky foundation. Qua Chee Gan vs. Deportation Board, 9 SCRA 27 (1963)

Case: It was alleged in the complaint that in December, 1963 certain agents of the National
Bureau of Investigation (NBI) searched an office located at 1439 O'Donnel Street, Sta. Cruz,
Manila believed to be the headquarters of a guerilla unit of the "Emergency Intelligence Section,
Army of the United States" and that among those arrested thereat was Go Tek an alleged sector
commander and intelligence and record officer of that guerilla unit.

It was further alleged that fake dollar checks were found in Go Tek's possession and that,
therefore, he had violated article 168 of the Revised Penal Code and rendered himself an
undesirable alien.

As deportation proceedings were underway, he filed for the prohibition of the same against the
Deportation Board.

Issue: The issue is whether the Deportation Board can entertain a deportation proceeding based
on a ground which is not specified in section 37 of the Immigration Law and although the aliens
has not yet been convicted of the offense imputed to him.

Rule: We hold that the Board has jurisdiction to investigate Go Tek for illegal possession of fake
dollar checks (as well as his alleged "guerilla" activities) in spite of the fact that he has not yet
been convicted of illegal possession thereof under article 168 of the Revised Penal Code and
notwithstanding that act is not the grounds for the deportation of undesirable aliens as
enumerated in section 37 of the Immigration Law. The charge against Go Tek before- the Board
was not premature.

The aforementioned obiter dictum the Qua Chee Gan case invoked by Go Tek and relied upon
by the trial court, is not of this case. In the Qua Chee Gan case the aliens were with economic
sabotage which is a ground for deportation under Republic Act No. 503.

Under existing law; the deportation of an undesirable alien may be effected (1) by order of the
President, after due investigation, pursuant to section 69 of the Revised Administrative Code and
(2) by the Commissioner of Immigration upon recommendation of the Board of Commissioners
under section 37 of the immigration Law (Qua Chee Gan vs- Deportation Board,).

The President's power to deport aliens derives from Sec. 69 of the Rev. Adm. Code which does
not specify the grounds for deportation of aliens but only provides that it be ordered after due
investigation.

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228
68

U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercise by the Chief Executive
"when he deems such action necessary for the peace and domestic tranquility of the nation
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Justice Johnson's is that there the Chief Executive rinds that there are aliens whose continued in

Political Law 1 2023 Atty. Edgar Pascua II

the country is injurious to the public interest he may, even in the absence of express law, deport
them (Forbes vs. Chuoco Tiaco and Crossfield 16 Phil. 534, 568, 569; In re McCulloch Dick, 38
Phil. 41).G.R. No. L-23846 September 9, 1977 GO TEK vs. DEPORTATION BOARD

Case: The Department of Foreign Affairs received from the German Embassy in Manila Note
Verbale No. 369/95 dated July 26, 1995, informing it that the respondent was wanted by the
German Federal Police; that a warrant of arrest had been issued against him; and that the
respondent will be served with an official document requesting him to turn over his German
passport to the Embassy which was invalidated on July 2, 1995.The Embassy requested the
Department of Foreign Affairs to inform the competent Philippine authorities of the matter. The
Board of Commissioners thereafter issued a Summary Deportation Order dated September 27,
1997.

Meanwhile, on February 15, 1996, the District Court of Straubing rendered a Decision dismissing
the criminal case against the respondent for physical injuries. The German Embassy in Manila,
thereafter, issued a temporary passport to the respondent. In a Letter dated March 1, 1996, the
respondent informed Commissioner Verceles that his passport had been renewed following the
dismissal of the said criminal case. He reiterated his request for the cancellation of the Summary
Deportation Order dated September 27, 1995 and the restoration of his permanent resident
status.

At about midnight on June 6, 2002, Marine operatives and BID agents apprehended the
respondent in his residence on orders of the petitioner.

Rule: In this case, the BOC ordered the private respondent’s deportation on September 27, 1995
without even conducting summary deportation proceedings. The BOC merely relied on the June
29, 1995 Letter of the German Vice Consul and of the German Embassy’s Note Verbale No.
369/95 dated July 26, 1995. It issued the Summary Deportation Order on September 27, 1995

However, as gleaned from the Summary Deportation Order, the respondent was ordered
deported not only because his passport had already expired; the BOC speculated that the
respondent committed insurance fraud and illegal activities in the Philippines and would not, thus,
be issued a new passport. This, in turn, caused the BOC to conclude that the respondent was an
undesirable alien.

The respondent was not afforded any hearing at all. The BOC simply concluded that the
respondent committed insurance fraud and illegal activities in Palawan without any evidence. The
respondent was not afforded a chance to refute the charges. He cannot, thus, be arrested and
deported without due process of law as required by the Bill of Rights of the Constitution. In Lao
Gi v. Court of Appeals, we held that:

Although a deportation proceeding does not partake of the nature of a criminal action, however,
considering that it is a harsh and extraordinary administrative proceeding affecting the freedom
and liberty of a person, the constitutional right of such person to due process should not be denied.
Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are
applicable to deportation proceedings. G.R. No. 154745 January 29, 2004 COMMISSIONER
ANDREA D. DOMINGO vs. HERBERT MARKUS EMIL SCHEER

(11) Power over/of legislation

(a) Message to Congress

Section 23. The President shall address the Congress at the opening of its regular session.
He may also appear before it at any other time. (Art VII)

(b) Prepare and submit the budget

Section 22. The President shall submit to the Congress, within thirty days from the opening of
every regular session as the basis of the general appropriations bill, a budget of expenditures
69

and sources of financing, including receipts from existing and proposed revenue measures.
(Art VII)
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 (c) Veto power

Section 27.
1. Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same he shall sign it; otherwise, he shall veto it and return
the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be reconsidered,
and if approved by two-thirds of all the Members of that House, it shall become a law. In
all such cases, the votes of each House shall be determined by yeas or nays, and the
names of the Members voting for or against shall be entered in its Journal. The President
shall communicate his veto of any bill to the House where it originated within thirty days
after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

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

Case: The issue in this petition is the constitutionality of the veto by the President of certain
provisions in the General Appropriations Act for the Fiscal Year 1992 relating to the payment of
the adjusted pensions of retired Justices of the Supreme Court and the Court of Appeals.

Hence, the instant petition filed by the petitioners with the assertions that:

1) The subject veto is not an item veto;

2) The veto by the Executive is violative of the doctrine of separation of powers;
3) The veto deprives the retired Justices of their rights to the pensions due them;
4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution.

Rule: The petitioners' contentions are well-taken.

The Constitution expressly confers or the judiciary the power to maintain inviolate what it decrees.
As the guardian of the Constitution we cannot shirk the duty of seeing to it that the officers in each
branch of government do not go beyond their constitutionally allocated boundaries and that the
entire Government itself or any of its branches does not violate the basic liberties of the people.
The essence of this judicial duty was emphatically explained by Justice Laurel in the leading case
of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to wit:

“The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries it does not assert any superiority over the other department, it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. “

The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally
vested power. But even as the Constitution grants the power, it also provides limitations to its
exercise. The veto power is not absolute.

The pertinent provision of the Constitution reads:

“The President shall have the power to veto any particular item or items in an appropriation,
revenue or tariff bill but the veto shall not affect the item or items to which he does not object.
(Section 27(2), Article VI, Constitution)”

The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He
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or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that
he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when
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it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the

Political Law 1 2023 Atty. Edgar Pascua II

machinery of government and it can not veto the entire bill even if it may contain objectionable
features. The President is, therefore, compelled to approve into law the entire bill, including its
undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto
power" to avoid inexpedient riders being attached to an indispensable appropriation or revenue
measure.

The Constitution provides that only a particular item or items may be vetoed. The power to
disapprove any item or items in an appropriate bill does not grant the authority to veto a part of
an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191
SCRA 452, 464 [1990])

We distinguish an item from a provision in the following manner:

“The terms item and provision in budgetary legislation and practice are concededly different.
An item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill.
It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11
S.E. 2d 120, 124, 125, etc., 176 Va. 281) The United States Supreme Court, in the case of
Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct. 252, 81 L. Ed, 312) declared "that an
item" of an appropriation bill obviously means an item which in itself is a specific appropriation of
money, not some general provision of law, which happens to be put into an appropriation bill." ”

The President did not veto this item. What were vetoed were methods or systems placed by
Congress to insure that permanent and continuing obligations to certain officials would be paid
when they fell due.

An examination of the entire sections and the underlined portions of the law which were vetoed
will readily show that portions of the item have been chopped up into vetoed and unvetoed parts.
Less than all of an item has been vetoed. Moreover, the vetoed portions are not items. They
are provisions. G.R. No. 103524 April 15, 1992 CESAR BENGZON, QUERUBE MAKALINTAL,
LINO M. PATAJO, JOSE LEUTERIO, ET AL.vs HON. FRANKLIN N. DRILON

(d) Emergency Power

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

(e) Fixing of tariff rates

Section 28. The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government. (Art VI)

(13) Immunity from suits

Under the 1973 Constitution, the President is immune from suit. Article VII provided
in Section 7 that “the President shall be immune from suit during his tenure.” No
such provision appears in the 1987 Constitution. Does it mean that he is now
susceptible to law suits?

Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law.

Case: Petitioners here question the validity of the Social Security System premium hike, which
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took effect in January 2014. Maintaining that a majority of them are Social Security System
members directly affected by the premium hike, petitioners assert having the requisite locus standi
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to file the Petition. They maintain that the hike do not characterize as a valid delegation of powers

Political Law 1 2023 Atty. Edgar Pascua II

(see discussion on the legislative powers, refer to the course syllabus) and exercise of police
power.

Rule: Procedural infirmities attend the filing of this Petition. To begin with, former President
Benigno Simeon C. Aquino III, as President of the Philippines, is improperly impleaded here.

The president is the head of the executive branch, a co-equal of the judiciary under the
Constitution. His or her prerogative is entitled to respect from other branches of government. Inter-
branch courtesy is but a consequence of the doctrine of separation of powers.

As such, the president cannot be charged with any suit, civil or criminal in nature, during his or
her incumbency in office. This is in line with the doctrine of the president's immunity from suit.

In David, this Court explained why it is improper to implead the incumbent President of the
Philippines. The doctrine has both policy and practical considerations:

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may
not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution
or law. It will degrade the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness in the discharge of
the many great and important duties imposed upon him by the Constitution necessarily impairs
the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people but he may
be removed from office only in the mode provided by law and that is by impeachment. April 2,
2019, G.R. No. 210500, KILUSANG MAYO UNO, vs. Hon. BENIGNO SIMEON C. AQUINO III

Case: On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron
(AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico After
Lourdes’ release, the harassment, coming in the form of being tailed on at least two occasions at
different places, i.e., Dasmariñas, Cavite and Baclaran in Pasay City, by motorcycle-riding men
in bonnets, continued.

The petition for the writ of amparo dated October 25, 2007 was originally filed before the Supreme
Court. After issuing the desired writ and directing the respondents to file a verified written return,
the Court referred the petition to the CA for summary hearing and appropriate action.

Rule: In Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ
of amparo, the Court held;

“The presidential immunity from suit remains preserved under our system of government, albeit
not expressly reserved in the present constitution. Addressing a concern of his co-members in
the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr.
Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President
may not be sued during his or her tenure. The Court subsequently made it abundantly clear
in David v. Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987
Constitution, that indeed the President enjoys immunity during her incumbency, and why this must
be so:

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may
not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution
or law. It will degrade the dignity of the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness in the discharge of
the many great and important duties imposed upon him by the Constitution necessarily impairs
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the operation of the Government. x x x

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And lest it be overlooked, the petition is simply bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners’ protected rights. G.R. No.
183871 February 18, 2010 LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO vs. GLORIA
MACAPAGAL-ARROYO

Case: On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency,

Allegedly, elements in the political opposition have conspired with authoritarians of the extreme
Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;

Rule: This Court holds that all the petitioners herein have locus standi.

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

From the deliberations of the Constitutional Commission, the intent of the framers is clear that the
immunity of the President from suit is concurrent only with his tenure and not his term. (De
Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302). G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID vs. GLORIA MACAPAGAL-ARROYO

Case: Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.

Issues: Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity,
the extent of the immunity

Rule: We reject his argument that he cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."1 Since, the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he should first be impeached and then convicted before
he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution.
Such a submission has nothing to commend itself for it will place him in a better situation than a
non-sitting President who has not been subjected to impeachment proceedings and yet can be
the object of a criminal prosecution.

This is in accord with our ruling In Re: Saturnino Bermudez that 'INCUMBENT Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he
be convicted in the impeachment proceedings.
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We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
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President. The cases filed against petitioner Estrada are criminal in character. They involve

Political Law 1 2023 Atty. Edgar Pascua II

plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the alleged mantle of immunity
of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President
to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions.
The rule is that unlawful acts of public officials are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same footing as any trespasser. G.R. No. 146710-
15 March 2, 2001 JOSEPH E. ESTRADA vs. ANIANO DESIERTO

Rule: It is settled in jurisprudence that the President enjoys immunity from suit during his or her
tenure of office or actual incumbency. Conversely, this presidential privilege of immunity cannot
be invoked by a non-sitting president even for acts committed during his or her tenure.

In the case at bar, the events that gave rise to the present action, as well as the filing of the original
Petition and the issuance of the CA Decision, occurred during the incumbency of former President
Arroyo. In that respect, it was proper for the court a quo to have dropped her as a respondent on
account of her presidential immunity from suit.

It must be underscored, however, that since her tenure of office has already ended, former
President Arroyo can no longer invoke the privilege of presidential immunity as a defense to evade
judicial determination of her responsibility or accountability for the alleged violation or threatened
violation of the right to life, liberty and security of Lozada. G.R. Nos. 184379-80 April 24, 2012
RODOLFO NOEL LOZADA vs. PRESIDENT GLORIA MACAPAGAL ARROYO

HOWEVER

In determining liability under the Rome Statute31, a person's official capacity is

irrelevant:

1. This Statute shall apply equally to all persons without any distinction based
on official capacity. In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself, constitute
a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official

capacity of a person, whether under national or international law, shall not bar
the Court from exercising its jurisdiction over such a person.

2. The Vice- President

a. Qualifications, election, term and oath

Section 3. There shall be a Vice-President who shall have the same qualifications and term of
office and be elected with, and in the same manner, as the President. He may be removed from
office in the same manner as the President.

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

Section 4. The President and the Vice-President shall be elected by direct vote of the people for
a term of six years which shall begin at noon on the thirtieth day of June next following the day of
the election and shall end at noon of the same date, six years thereafter. The President shall not
be eligible for any re-election. No person who has succeeded as President and has served as
such for more than four years shall be qualified for election to the same office at any time.
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31
Rome Statute of the International Criminal Court, Art 27

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

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

The returns of every election for President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the President
of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not
later than thirty days after the day of the election, open all the certificates in the presence of the
Senate and the House of Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner provided by law,
canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or
more shall have an equal and highest number of votes, one of them shall forthwith be chosen by
the vote of a majority of all the Members of both Houses of the Congress, voting separately.

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

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for
the purpose. (Art VII)

Section 5. Before they enter on the execution of their office, the President, the Vice-President, or
the Acting President shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So
help me God." (In case of affirmation, last sentence will be omitted.) (Art VII)

b. Privilege and salary

Section 6. The President shall have an official residence. The salaries of the President and Vice-
President shall be determined by law and shall not be decreased during their tenure. No increase
in said compensation shall take effect until after the expiration of the term of the incumbent during
which such increase was approved. They shall not receive during their tenure any other
emolument from the Government or any other source. (Art VII)

c. Prohibitions

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly, practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

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

Section 3. xxx The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation. (Art VII)
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d. Succession
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Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for
which he was elected, the President shall nominate a Vice-President from among the Members
of the Senate and the House of Representatives who shall assume office upon confirmation by a
majority vote of all the Members of both Houses of the Congress, voting separately. (Art VII)

Note here that there is no acting vice president to speak of.

e. Removal

Section 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment. (Art XI)

Section 3.
1. The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.
2. A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
3. A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
4. In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.
5. No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
6. The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.
7. Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and punishment, according to
law.
8. The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Art XI)

f. Functions

(1) Right of succession

Section 8. In case of death, permanent disability, removal from office, or resignation of the
President, the Vice-President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice-President
shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of death, permanent
disability, or resignation of the Acting President. He shall serve until the President or the Vice-
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President shall have been elected and qualified, and be subject to the same restrictions of
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powers and disqualifications as the Acting President.

Political Law 1 2023 Atty. Edgar Pascua II

 (2) Membership in Cabinet

Section 3 The Vice-President may be appointed as a Member of the Cabinet. Such

appointment requires no confirmation (Art VII)

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