~andout No.

6 - Executive Department
Constitutional Law 1- Atty. Rene Callanta, Jr. pt Semester, SY 2012-2013,P.U.P. College of Law
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EXECUTIVE DEPARTMENT (Art. VII)

1. THE PRESIDENT A. QUALIFICATIONS, ELECTION, TERM AND OATH

Art. VII, Sec. 2.. No person may be elected President unless he is 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. Qualifications of President 1) Natural-born citizen of the Philippines 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 Art. VII, Sec. 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 reelection. 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 ti"\e shall not 'be considered as an interruption in the continuity of the service for the full term for which he was elected.
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Unless otherwise provided by law,. the. regular election for President and' Vice-President shall be heid on the second Monday of May. The returns of every election fo"} President and Vice- President,' . duly certified by the board of canvassers of each provinces or city, shall be transmitted to the Congress, directed .to the President 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 election (which is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and. 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 (i.e., tally the certificates of canvass) the votes. The persons 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 (tie), one of them shall forth with be chosen by the vote of a majority of all the members of Congress, . voting separately. . The Congress shall promulgate its rules for the canvassing of the certificates.

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INTRODUCTION - CONSTITUTIONAL LAW I (PLIII)
Type of Teaching: Socratic Method Class Cards Name, Undergraduate College & Course, Working - Where Recitation Grades (30% of Grade) Attendance

GRADING SYSTEM: [Mid Term Grade = 20% (recitation) + 30% (Mid-Term Exam)] [Finals Grade = 20% (recitation) + 30% (Final exam)] [FINAL GRADE = Average of Both grades) RECITATION Shuffle Method (Students will be called randomly) At least 2 rounds per class session Absent - automatic grade of 65 Present but not able to answer - 70 Series of questions While reciting all notes & books should be closed . Any student caught glancing at his/her notes or that of their classmates shall automatically receive a grade of 60 for that particular recitation. .MID-TERM & FINAL EXAMINATIONS Multiple Choice Questions (MCQI Problems Enumerations & Defmition Differentiation True or False Use the prescribed booklet. No Permit, No Exam. No special exams. Time to take exams shall be strictly enforced. DRESS CODE: OptionalDean's office discretion

CLASS DECORUM: Any unruly or intolerable actuations while the class is ongoing shall not be tolerated and would be dealt with accordingly. Only the class beadle would communicate with the professor regarding any matters pertaining to class schedules and assignments. Turn Off or put in silent mode all cell phones while the class is ongoing.
ASSIGNMENT:

1) Hand Out # 1 2) Cases: Manila Prince vs. GSIS, GR No. 122156, February 3, 1997 (267 SCRA408) Bacani vs. NACOCO,GR No. L-9657, November 29, 1956 (100 PHIL468) U.S. vs. Dorr, GR No. 1051, May 19, 1903 (2 Phil 332) PVTA vs. CIR, GR No. L- 32052, July 25, 1975 (65 SCRA416) Tanada vs. Angara, GR No. 118295, May 2, 1997 (272 SCRA 18)

Handout No. 6 - Executive Department Constitutional Law 1- Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 2 of 73

The Supreme Court, sitting en bane, 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. Election and Term of President Regular Election and Term The President and Vice-President (who shall be elected with and in the same manner as the President) shall be elected by direct vote of the people for a term of 6 years, which shall begin on the noon of June 30 next following the day of election. The regular election for President and Vice-President shall be held on the 2nd Monday of May. (Art. VII, Sec~ 4 pars. 1 & 3). The six year term for the incumbent President and Vice- President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and ViCftPresident under this Constitution shall be held on the 2nd Monday of May, 1992. (Art. XVIII, Sec. 5.) In 111 re Saturn;lIo Bermudez, 145 SeRA 160 (1986), the SC held that the "incumbent President and Vice-President" referred to above are Pres. Corazon Aquino and VicePresident Salvador Laurel (even if they were not the ones declared by the Batasang Pambansa as the winners of the February 7, 1986 Snap Election). Special Election and Term If a vacancy occurs in the offices of before the date of the next regular President and Vice-President shall section 10. (See discussion under infra.) President and Vice- President more than 18 months presidential election, a special election to elect the be called by Congress, pursuant to article VII, Other Powers of Congress, supra and Succession,

The, Constitution is silent as to whether the persons elected in the special election shall serve only for the unexpired portion of the term, and whether the new President can run for re- election if he has not served more than 4 years, which depends on the construction of the phrase "has succeeded as the President," discussed in the next section. * Only unexpired portion. Re-election The President shall not be eligible for any re-election. Furthermore, no person who has "succeeded" as President and has served as such for more than 4 years, shall be qualified for any election to the same office (the Presidency) at any time. (Art. VII, Sec. 4, par. 1) The person who succeeds as President and not just in an acting capacity, could either be (i) the Vice-President, or (ii) one who was elected President in a special election. In both cases, if he has served for more than 4 years, he is ineligible for re-election as Pre!pident. If he served for 4 years or less, he can run for re- election, since (a) the term "succeeded" encompasses election and (b) the general rule prohibiting the President to run for re-election refers to the President elected during the regular election. The Vice-President on the other hand, shall not serve for more than 2 successive terms. And for this purpose, a voluntary (but not involuntary) renunciation of office for any

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length of time, shall not be considered an interruption in the continuity of the service for the full terms for which he was elected. (Art. VII, Sec. 4, par. 2). This is applicable, however, beginning 1992, because of the Transitory (This prohibition is similar to that applicable to Senators.) Canvassing of Election Returns As already noted in the Other Powers of the Legislature, supra, it is the Congress that acts as Board of Canvassers of every election for President and Vice-President. The provision reads: "The returns of every election for President and Vice-President duly certified by the Board of Canvassers of each province or city, shall be submitted to . the Congress, directed to the President of the Senate'. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 days after the date of the election, open all the certificates in the presence of the Senate and the House of Representatives in a 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 2 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 the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates." (Art. VII, Sec. 4, pars. 4 - 6). Electoral Tribunal for the Election of the President and Vice- President The Supreme Court, sitting en bane, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for that purpose. (Art. VII, Sec. 4, par. 7.) Note that while election controversies in the Congress are under the exclusive jurisdiction of their respective Electoral Tribunals, those in the Executive are under the Supreme Court itself. Oath of Office Art. VII, Sec. 5. Before they enter on the execution of their office, the President, the Vice-President or the Acting President shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as Presi~ent (or VicePresident or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.) Provisions.

B. PRIVILEGE

AND SALARY

Art. VII, Sec. 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

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said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not received during their tenure any other emolument from the Government or any other source. The salaries of the President and Vice-President shall be determined by law. Currently, the incumbent President receives a monthly salary of Php 95,000.00 or 1.14 Million a year excluding his 13th month pay.

C. PROHIBITIONS
Art. VII, 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. 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 governmentowned or controlled corporations and their subsidiaries.

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

(al! They shall not hold any other office or employment during their tenure, unless otherwise provided by this Constitution
In Civil Liberties Union vs. Executive Secretary, 194 SCRA 317(1991), the petitioner challenged EO No. 284 which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting the petitioners' argument that the measure was violative of Art. VII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions. In declaring the EO unconstitutional, the SC held that by ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOOCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Art. VII, Sec. 13 prohibiting them from doing so, !Jnless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 5 of 73 Civil Liberties Union (CLU) v. Executive secretary, 194 SCRA 317 (1991) FACTS: the petitioner challenged Ex. Order No. 284 which in effect allowed cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting the petitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the hoiding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions. HELD: By ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOOCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment. . The stricter prohibition applied to the President and his official family under Sec. 13, Art. VII as compared to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricter prohibitions. Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the govt during their tenure when such is allowed by law or by the primary functions of their positions, members of the cabinet, their deputies and assistants may do so only when expressly authorized by the Consti. itself. xxx However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not 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 official's office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials. The term ex-officio means 'from office; by virtue of office. It refers to' an authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position. Ex-officio 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 onte who is a member by virtue of his title to a certain office, and without further warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-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. De la Cruz v. COA, Nov. 21, 2001 HELD: Since the Executive Department Secretaries, as ex-officio 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 petitionerg 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.

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

r .

(ef They shall not participate in any business.

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

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CompareProhibitions against other officials Art. VI, Sec. 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. IX, A, Sec. 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, S, Sec. 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. VIII, Sec. 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 functions. Ex(eptions to rule prohibiting executive officials from holding additional positions: a. President (1) The President can assume a Cabinet post, (because the departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency, so no objection can be validly raised based on Art. VII, Sec. 13.) (2) The President is the Chairman of NEDA. (Art. XII, Sec. 9) b. Vice-President Art. VII, Sec. 3. xxx The Vice-President may be appointed as member of the Cabinet. Such appointment requires no confirmation.

c. Cabinet (1) The Secretary of Justice shall be an ex-officio member of the Judicial and Bar Council. (Art. VIII, Sec. 8[lJ) (2) Unless otherwise allowed by law or by the primary functions of his position, appointive officials shall not hold any other office or employment in the Government or

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

owned or

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

D. SUCCESSION
(1) At the beginning of term elect

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

This provision refers to the President and Vice-President elected in the regular election, and so the term referred to begins on June 30 next following the election on the 2nd Monday of 1992, and every 6 years thereafter. Vacancy in the Presidency There are two sets of rules on succession, depending on whether the vacancy took place before the beginning of the term on June 30, or during the pendency of the terms that commences on June 30. (The cut-off point is unsettled. One view is that the cutoff is noon of June 30, as expressed in Art. VII, Sec. 4, par. 1. The other view is that the cut-off is midnight of June 29 when June 30 begins.) A. Temporary or permanent vacancy in the Presidency before the term 1. If the President-elect cannot assume his post at the beginning of his term because i) he has not qualified as yet ( e.g. he had an operation and so he could not take his oath of dffice on June 30), ii) or a President has not been "chosen" and qualified as yet (e.g. there is a tie and Congress has not yet broken the tie), then the Vice-President shall act as President until the President-elect shall have qualified, or shall have been "chosen: and qualified, as the case may be. (Art. VII, Sec. 7,pars. 2 & 3). Art. VII, Sec. 7. xxx If the President-elect fails to qualify, the Vice-President-elect shall act as President until a President shall have been chosen and 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. xxx 2. If the President-elect i) dies, or ii) becomes permanently disabled "at the beginning of the term of the President" (i.e., before the term), then the Vice-President elect shall become the President. (Id.,par. 4) Art. VII, Sec. 7. xxx If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice-Preside nt-elect shall become President.

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3. rIf both President and Vice-President (i) have not been "chosen" or (ii) have not qualified, or (iii) die, or (iv) become permanently disabled, then the President of the Senate, or in case of his inability, the Speaker of the House, shall act as President until a President or a Vice-President shall have been "chosen" and qualified. (Id.,par. 5) Art. VII, Sec. 7. xxx 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. (par. 5 thereof.) 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 of Vice-President shall have (been either "chlilsen" or "elected" pursuant to the special election referred to in Art. VII, sec. 10, and qualified.

Art. VII, Sec. 7. xxx 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. (par. 6 thereof.) Art. VII, Sec. 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 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 paragraph 2, Section 26, Article VI of this Constitution and shall become law 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 VI 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. (2) During the term of office Art. VII, Sec. 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

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restrictions President.

of

powers

and

disqualifications

as

the

Acting

B. Permanent Vacancy in the Presidency during the term 1. In case of the President's (i) death (ii) permanent disability, (iii) removal from office (the only way is by impeachment), or (iv) resignation, the Vice-President shall become President for the unexpired portion of the term. (par. I)
2. In case of both the President's and Vice-President's death, permanent disability, removal from office (by impeachment), or resignation, then the Senate President or, in case of his inability, the Speaker of the House, shall act as .president until the President or Vice-President shall have been "elected" (pursuant to the special election in Art. VII, Sec. 10) and qualified. (par. 1.) Wh~n the Acting President (i.e., the Senate President, or Speaker of the House) dies, beebmes permanently disabled, or resigns (but is not removed, because there is no need to impeach him, his stay being temporary), then the Congress shall by law, provide "who" shall be Acting President until the President or Vice-President shall have been "elected" (pursuant to the special election in Art. VII, Sec. 10) and qualified. This Acting President shall be subject to the same restrictions of powers and disqualifications. (par. 2) Comparisons and distinctions between the two vacancies:

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

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

c) fhe Law on Succession must be passed by the Congress in both cases in the event
that the President, Vice-President, Senate President and the Speaker are all unable to act as President. But in the case of a vacancy occurring before the term, the law provides only for the "manner of selecting" the Acting President, while in the case of a vacancy occurring during the term, it provides for "the person" who shall act as President. In both cases, the stint of the Acting President is temporary. d) When the vacancy comes before the term, the Constitution talks of the successor acting as President until a President has been "chosen" and "qualified"; when it comes during, it talks of "elected" and qualified. The reason is that before the term, the vacancy in the Presidency need not be filled up by election, since it may be filled up by a vote of Congress in case of a tie (Art. VII, Sec. 4, par. 5); but during the term, the only way to fill up the vacancy is by specialelection. e) A special election in both cases is held, pursuant to Art. VII, Sec. 10, only when both offi<;es of President and Vice-President are vacant. However, if the vacancy occurs before the term, the grounds are limited to 2 (death and permanent disability or both), while if the vacancy occurs during the term, the grounds are 4 (death, permanent disability, removal, and resignation). f) The vacancy that occurs before the term of office may be temporary or permanent; the vacancy that occurs during the term of office can only be a permanent one. Thus, a different set of rules applies, to be discussed next following, in case of the temporary inability of the President during the term of office.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 10 of 73 Estrada v. Desierto, march 2, 2001 ISSUE: Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President.
HELD: The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which

provides: "SECTION8. 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.

xxx

xxx

xxx."

The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, L001 when respondent took her oath as the 14th President of the Republic. 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. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacaiiang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totalitv test, we hold that petitioner resigned as President. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaiiang. 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 leavirg 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 Palacedue to any kind of 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 this 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 the past tense.

(3) In case of temporary

disability

Art. VII, Sec. 11. 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. 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 VicePresident shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his

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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. C. Temporary Vacancy in the Presidency during the term (Art. VI, Sec. 11,supra) A vacancy in the Presidency arising from his disability can occur in any of the following ways: 1. A written declaration by the President

2. Written declaration by the Cabinet

3. Finding by Congress by 2/3 vote that the President is disabled. In ali these cases, the Vice-President temporarily acts as the President. Voll!lntary declaration of inability by President

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

b. The Vice-President shall so act until the President transmits to the Senate President and the Speaker a written declaration that he is no longer unable to discharge his office.
Contested inability of the President

a. When majority of all the members of the Cabinet transmit to the Senate President
and Speaker their written declaration that the President is unable to discharge his office, then the Vice-President shall immediately assume the Presidency in an acting capacity.
!

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

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

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

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

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

f. If the President, by a 2/3 vote of both houses voting separately, determined to be

"unable" to discharge his office, then the Vice-President shall act as President. If less than 2/3 find him unable, then the President shall continue exercising the powers and duties of his office. Serious Illness of the President Art. VII, Sec. 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.

E. REMOVAL
Art. XI, Sec. 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 or public trust. All other' public officers and employees may be removed from office as provided by law, but not by impeachment. Art. XI, Sec. 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 resolution of 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 ~orconsideration 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.

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(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. [A more detailed discussion on this topic can be found above under Other Powers of Con'gress: Impeachment.] Initiation Stage at the House of Representatives

a. Filing of verified complaint for impeachment of the President or Vice-President, on

the ground of culpable violation of the Constitution, corruption, other high crimes, or betrayal of public trust. treason, bribery, graft and

b. Inclusion of the complaint in the Order of Business within 10 session days. c. Referral of complaint to the Committee on Justice within 3 session days from its
inclusion.

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

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

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

g. If 1/3 vote to affirm a favorable resolution or override a contrary resolution, the case
is forwarded to the Senate for trial. Trial Stage at the Senate

a. The Senators take an oath or affirmation.

presides over the trial, but does not vote.

The Chief Justice of the Supreme Court

A vote of 16 (2/3 of all the members) is required to convict the President or Vice-President. Post-trial

b. After trial, the Senators vote to convict or acquit.

a. If the President is acquitted by the Senate, he shall continue in office.

"

No impeachment proceeding can again be initiated against him within a period of one year.

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

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F. POWERS AND FUNCTIONS

(1) Executive Power

OF THE PRESIDENT

Art. VII, Sec. 1. The executive President of the Philippines.

power shall be vested

in the

Id., Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. be faithfully executed. He shall ensure that the laws

The executive function is essentially the duty to implement the laws within the standards imposed by the legislature. Under the Constitution, this power is exercised by the President. Thus, when the Cabinet and other branches of the Executive Depar~ment implement the law, they are acting under the control of the President.
Villena v. sec. of Interior, 67 Phil. 451 (1939)

HELD: The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the 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" and, in the language of Attorney-General Cushing, "are subject to the direction of the President".
Marcos v. Manglapus, 177 SCRA 668, 178 SCRA 760
FACTS: This is a petition for mandamus asking the Court to order the respondents to issue travel documents to Mr. Marcos and his immediate family and to enjoin the implementation of the President's decision to bar their return to the Philippines. The issue is whether or not, in the exercise of executive power, the President may prohibit the Marcosesfrom returning to the Philippines.

HELl>: The Constitution provides that the executive power shall be vested in the President (Art. VII, Sec. 1).
However, it does not define what is meant by "executive power" although in the same article it touches on the exercise of certain powers by the President, i.e. the power of control over all executive depts., bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander in chief clause, the power to grant reprieves, commutations, pardons, the power to grant amnesty with the concurrence of Congress,the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to congress and the power to address Congress. (VII, Sec. 14-23) The inevitable question is whether by enumerating certain powers of the President, did the framers of the Constitution intend that the President shall exercise those specific powers and no other? According to the SC, that 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. Corollarily, the powers of the President cannot be said to be limited only to the specific power enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. In ttiis case, the President has the power to bar the Marcosesfrom returning to the Philippines. She has the obligation to protect the people, promote their welfare and advance the national interest. She has to balance 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.
Resolution on Motion for Reconsideration:

It cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive 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.

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"Faithful Execution clause" or "Take Care Clause" (Sec 17,Art. VII) The President shall ensure that laws are faithfully executed. It is not for him to determine the validity of a law since this is a question exclusively addressed to the judiciary. Thus, until and unless a law is declared unconstitutional, the President has the duty to execute it regardless of his doubts on its validity. A contrary opinion would allow him to negate the will of the legislature and to encroach upon the prerogative of the judiciary. (Nachara, pp 224-225)
David v. Macapagal-Arroyo, GR No. 171396, May 3, 2006 HELD: Asthe Executive in whomthe executive poweris vested, the primary functionof the President is to enforce the lawsas wellasto formulate policies to beembodied in existinglaws. Heseesto it that all laws areenforced by the officials andemployees of hisdepartment. Before assuming office, he is required to take an oathor affirmation to the effect that as President of the Philippines, he will, amongothers,"executeits laws!"In theexercise of suchfunction, the President, if needed, mayemploy the powers attached to hisoffice as the Commander-in-Chief of all the armedforcesof the country,including the Philippine National Police underthe Department of InteriorandLocal Government.

(2) Control of executive departments Art. VII, Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. "Control" is the power to substitute one's own judgment in that of a subordinate. Und!:r the qualified political agency doctrine, the different executive departments are mere adjuncts of the President. The secretaries are the alter ego of the President, men of his bosom confidence whom he designated to assist him in his otherwise physically impossible multifarious functions, the extension of the President in the particular field in which they act. Their acts are presumptively acts of the "President, until countermanded or reprobated by him". The President can substitute his will over those of the secretaries, and they cannot complain. Furthermore, they hold their office subject to the discretion of the President, who can replace them anytime once he loses his confidence in them. Thus, in Planas v. Gil, since the Civil Service Commissioner, then not an independent body, was the alter ego of the President, and the President could investigate local officials, the Commissioner could likewise investigate them. In Vil/ena v. Secretary of the Interior, the investigation of the Mayor of Makati by the Secretary of the Interior was deemed an investigation conducted by the President himself. The doctrine on the power of control remained unchanged in the jurisprudence under the 1973 Constitution. Free Telephone Workers Union v. Minister of Labor, 108 SeRA 757(1981) had! occasion to reemphasize its continuing validity. Here, the power given to the Minister of Labor to assume jurisdiction over a labor dispute affecting the national interest or to certify it for compulsory arbitration was challenged as an undue delegation of a power which properly belonged to the President. All that was needed to settle the case was to hark back to the Villena doctrine that the heads of ministries are alter egos of the President. Under the presidential system, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are 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.

II

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr Is'Semester, SY 2012-2013, P.U.P. College o/Law Page 160/73 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. The President has the constitutional power of control and direction over such dept. heads and cabinet secretaries.

(3) General supervision of local governments and autonomous regions

Art. X, Sec. 4.

The President shall exercise general supervision over local governments. xxx

X, Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Art. means the mere overseeing of a subordinate to make sure that they do their duties under the law. But this does not include the power to overrule their acts, if these acts are within their discretion. The grant of mere supervisory power over local governments and autonomous regions is in line with the policy of the State to promote the autonomy of local governments and autonomous regions. There can be no real local autonomy while the National Government controls the local governments. Ganzon v. CA, 200 SCRA 271 (1991) The petitioners question the power of the President, acting through the .Secretary of Local Government, to suspend and/or remove local officials.
HELD: It is the considered opinion of the Court that notwithstanding the change in the constitution, 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. The omission of "as may be provided by law" (Sec. 4, Art. Xl 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.

"General supervision"

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. This is a mistaken impression because legally "supervision" is not incompatible with disciplinary authority. "Contro/" has been defined as the power of an officer to alter, 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 for that 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. Bito-Onon v. Fernandez, 350 SCRA 732 (2001) Distinguish the President'spower of general supervision over local governments from his control power. HELb: On many occasions in the past, this Court has had the opportunity to distinguish the power of supervision from the power of control. In Taule v. santos, we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. SUPERVISORY POWER, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.

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(4) Power of appointment Art. VII, 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 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. CrllZ: Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. Nachllra: Appointment is the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. It is distinguished from designation in that the latter simply means the imposition of additional duties, usually by law, on a person already in the public service. It is also different from the commission in that the latter is the written evidence of the appointment. The power of appointment is, according to the SC in Concepcion v. Paredes, the most eminently executive power, because it is through his appointees that the President can execute laws. The power of appointment by the President under the 1987 Constitution has been sigl"}ificantly curbed. It can be classified as follows: i.) Permanent or temporary. Permanent appointments are those extended to persons possessing the requisite eligibility and are thus protected by the constitutional guarantee of security of tenure. Temporary appointments are given to persons without such eligibility, revocable at will and without the necessity of just cause or a valid investigation; made on the understanding that the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made. ia.) A temporary appointment and a designation are not subject to confirmation by the Commission on Appointments. Such confirmation, if given erroneously, will not make the incumbent a permanent appointee {Valencia v. Peralta, 8 SCRA 692J ib.) In Binamira v. Garrllcho, 188SCRA 154, it was held that where a person is merely designated and not appointed, the implication is that he shall hold the office only in ? temporary capacity and may be replaced at will by the appointing authority. In this sense, a designation is considered only an acting or temporary appointment which does not confer security of tenure on the person named. ii.) Regular or ad interim. A regular appointment is one made by the President while Congress is in session, takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee. An ad interim appointment is one made by the President while Congress is not in session, takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress. In the latter case, the ad interim appointment is deemed "by-passed" through inaction and deemed disapproved by the Commission on Appointments. The ad interim appointment is intended to prevent a hiatus in the discharge of official duties.

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iia.) An ad interim appointment is a permanent appointment (Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, 140 SCRA 22J. Steps in the appointing process: 1) Nomination by the President; 2) Confirmation by the Commission on Appointments; 3) Issuance of the commission; 4) Acceptance by the appointee. In Lllcson v. Romero, 84 Phil 740, the Supreme Court declared that an appointment is deemed complete only upon its acceptance. Pending such acceptance, which is optional to the appointee, the appointment may still be validly withdrawn. Appointment to a public office cannot be forced upon any citizen except for the purposes of defense of the ,State under Sec. 4, Art. II, as an exception to the rule of voluntary servitude. Discretion of Appointing Authority. Appointment is essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the minimum qualification requirements prescribed by law for the position. See Luego v. Civil Service Commission, 143 SCRA 327; Lapinid v. Civil Service Commission, 197 SCRA 106; Pobre v. Mendieta, 224 SCRA 738. With the consent of the Commission on Appointments

Q. Enumerate the groups of officers who are to be appointed by the President under Section 16, Article VII of the 1987 Constitution, and identify those officers whose
appointments shall require confirmation by the Commission on Appointments? HE'l-D: Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. COllstitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President: First, the heads of the executive departments, ambassadors, other public ministers arid 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; 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. It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312SCRA 239)

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

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

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Mison in which it was ratiocinated upon that Section 16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on Appointments of certain appointments issued by the President contemplates a system of checks and balances between the executive and legislative branches of government. Experience showed that when almost all presidential appointments required the consent of the Commission on Appointments, as was the case under the 1935 Constitution, the commission became a venue of "horse trading" and similar malpractices. On the other hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as what happened under the 1973 Constitution, leads to abuse of such power. Thus was perceived the need to establish a "middle ground" between the 1935 and 1973 Constitutions. The framers of the 1987 Constitution deemed it imperative to subject certain high positions in the government to the power of confirmation of the Commission on Appointments and to allow other positions within the exclusive appbinting power of the President. (Manalo v. Sistoza, 312SeRA 239) Do bureau directors need confirmation? In Sarmiento v. Mison (Dec. 1987),the SC held that no they did not need to be confirmed. The deliberations of the Con Con showed that a draft similar to Article VII, section 10 of the 1935 Constitution, which included bureau heads in the list of appointees requiring confirmation, was introduced, but upon motion, bureau directors were omitted expressly from the draft because they were considered of low rank, and so were thought to be better shielded from partisan politics. But the SC added that of the 4 categories of public officers requiring confirmation, the 4th must be given a restrictive construction because confirmation derogates the appointing power of the President. Indeed, it said, only a small class of officers needed confirmation.
Bautista v. salonga, 172 SCRA 160 (1989) FACrS: Petitioner was appointed Chairman of the Commission on Human Rights on December 17, 1988. She took' her oath of office on December 22, 1988 and thereafter entered into the discharge of her functions and duties. However, on January 9, 1989, she was asked by the Commission on Appointments (CA) to submit certain information and documents needed in the confirmation of her appointment. She refused to comply on the ground that her appointment was not subject to confirmation. On January 14, 1989, the President submitted petitioner's ad interim appointment to the CA, but, considering petitioner's refusal to submit to the jurisdiction of the CA, the CA disapproved her appointment on January 2S, 1989. Petitioner, anticipating the action of the CA, filed a petition for cettiorari with the Sc. ISSUE:
Whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR) is to be made with or without CA confirmation.

HELD: (1) Only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the CA, namely, "the heads of the executive departments, ambassadors, other public ministers and consuls, other 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." All other appointments by the President are to be made without the participation of the CA." Since the position of Chairman of the CHR, an independent office created by the Constitution, is not among the positions mentioned in the first sentence of Sec. 16, Art. VII, appdintments to which are to be made with the confirmation of the CA, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the CA. They are among the officers of the government "whom he (the President) may be authorized by law to appoint." And Sec. 2 (c) of EO 163, May 5, 1987, authorizes the President to appoint the Chairman and Members of the CHR.

Quintos-Deles v. Commission on Appointments, 177 SCRA 259 (1989) FACTS: Petitioner and 3 others were appointed Sectoral Representatives by the President pursuant to Article VII, Section 16, par. 2 and Article XVIII, Section 7 of the Constitution. However, petitioner and the 3 other sectoral representatives- appointees were not able to take their oaths and discharge their duties as members of Congress due to the opposition of some congressmen-members of the Commission on Appointments (CA), who insisted that sectoral representatives must first be confirmed by the CA before they can take their oaths and/or assume office as members of the House of Representatives.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 20 of 73 ISSUE: Whether the Constitution requires confirmation by the CA in the appointment of sectoral representatives to the House of Representatives.
HELD: YES, section 16, Article VII of the Constitution provides that: "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 x x x".

In SARMIENTO VS. MISON (1987), the SC construed Sec. 16, Art. VII of the Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section'16, Art. VII require confirmation by the CA. Since the seats reserved for sectoral representatives in par. 2, Sec. S, Art. VI may be filled by appointment by the President by express provision of Sec. 7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the House of Representativesare among the "other officers whose appointments are vested in th'e President in this Constitution", referred to in the first sentence of Sec. 16, Art. VII whose appointments are subject to confirmation by the CA.(SARMIENTOVS. MISON) Implicit in the invocation of par. 2, Section 16, Art. VII as authority for the appointment of petitioner is, the recognition by the President as appointing authority that petitioner's appointment requires confirmation by the CA. Under Par. 2, Sec. 16, Art VII, appointments made by the President pursuant thereto "shall be effective only until disapproval by the CA or until the next adjournment of the Congress." If indeed appointments of sectoral representatives need no confirmation, the President need not make any reference to the constitutional provisions above-quoted in appointing the petitioner. As a matter of fact, the President had expressly submitted petitioner's appointment for confirmation by the CA. Considering that Congress had adjourned without respondent CA having.acted on petitioner's appointment, said appointment/nomination had become moot and academic pursuant to Sec. 23 of the Rules of respondent CA and "unless resubmitted shall not again be considered by the Commission." . Calderon v. Carale, 208 SCRA 254 (1992)

FACTS: In March 1989, RA 671S (Herrera-Veloso Law), amending the Labor Code, was approved. It provides in Sec. 13 thereof as follows: "xxx The Chairman, the Division Presiding Commissioners and other Commissioners shall be appointed by the President, subject to confirmation by the CA. xxx" Pursuant to said law, President Aquino appointed the Chairman (B. CARALE)and Commissionersof the NLRC. The appointments stated that the appointees may qualify and enter upon the performances of the duties of the office. The present petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President to the respondents Chairman and Members of the NLRC,without submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by RA 6715. Petitioners insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715 is not, according to the petitioner, an encroachment on the appointing power of the executive contained in Sec. 16 of Art. VII of the Constitution.
I .

The Solicitor General contends, on the other hand, that RA 6715 transgresses Sec. 16, Art. VII by expanding the confirmation powers of the Commissionon Appointments without constitutional basis. ISSUES: (1) WIN 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. (NO)
HELD: The controversy in the case is focused on Sec. 16, Art. VII of the 1987 Constitution which provides:

"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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College o/Law Page 210/73 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." xxx There are four groups of officers whom the President shall appoint. These four groups 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; 5econd, all other officers of the Government whose appointments are not otherwise provided for 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 NLRCChairman and Commissionersfall within the second sentence of Sec. 16, Art. VII, more specifically under "those whom he (the President) may be authorized by law to appoint." Undeniably, the Chairman and Members of the NLRCare not among the officers mentioned in the first sentence of Sec. 16 whose appointments requires confirmation by the CA.
To the extent that RA 6715 requires confirmation by the 01 of the appointments Members of the NLRC, it is unconstitutional because: of respondents Chairman and

1. it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the CA; and 2. it amends by legislation, the second sentence of Sec. 16, Art. VII, by imposing the confirmation of the CA on appointments w/c are otherwise entrusted only with the President. Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function.
I

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. No doctrine or principle of law laid down by the Court in a decision rendered en bane or in division may be modified or reversed except by the Court sitting en bane. Notes: From the rulings in sarmiento III v. Mison, 1565CRA 549, Bautista v. salonga, 1725CRA 160, and Deles v. Constitutional Commission, 1775CRA 259, these doctrines are deducible: 1. Confirmation by the CA is required only for presidential appointees as mentioned in the first sentence of Sec. 16, Art. VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election). 2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Com. on Human Rights). Also, as observed in sarmiento v. Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an uncorstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law. ISSUE: (2) WIN legislation can expand a constitutional provision after the Supreme Court has interpreted it.
HELD: In Endencia and Jugo v. David, 93 Phil. 699, the Court held:

"We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the Constitution, which is not within the sphere of the Legislative Department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under sych a system, a final court determination of a case based on judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 22 of 73 the Constitution by the Legislative Department. That would neither be wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers." The function of the Court in passing upon an act of Congress is to " lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to announce its considered judgment upon the question." It cannot be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately intended by the framers to be a departure from the system embodied in the 1935 Constitution where the CA exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation.

Manfllo v. Sistoza, 312 SCRA239 (1999)

FACTS: Under Republic Act 6975 (the DlLG Act of 1990), the Director General, Deputy Director General, and other top officials of the Philippine National Police (PNP) shall be appointed by the President and their appointments shall require confirmation by the Commission on Appointments. Respondent Sistoza was appointed Director General of the PNPbut he refused to submit his appointment papers to the Commission on Appointments for confirmation contending that his appointment shall no longer require confirmation despite the express provision of the law requiring such confirmation. Should his contention be upheld?
HELD: It is well-settled that only presidential appointees belonging to the first group (enumerated under the first sentence of Section 16, Article VII of the 1987 Constitution) require the confirmation by the Commission on Appointments. The appointments of respondent officers who are not within the first category, need not be confirmed by the Commission on Appointments. As held in the case of Tarrosa v. Singson, Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution.

Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. ISSUE: Will it be correct to argue that since the Philippine National Police is akin to the Armed Forces of the Philippines, therefore, the appointments of police officers whose rank is equal to that of colonel or naval captain will require confirmation by the Commissionon Appointments?
HELD: This contention is untenable. The Philippine National Police is separate and distinct from the Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4 of Article XVI of the 1987 Constitution, .

"The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law, It shall keep a regular force necessaryfor the security of the State," On the other hand, Section 6 of the same Article of the Constitution ordains that: "The State shall establish and maintain one police force, which shall be national in scope and civilian in character to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law." To so distinguish the police force from the armed forces, Congressenacted Republic Act 697S x x x. Thereunder, the police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the PNP x x x do not fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments.

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PRESIDENTIAL APPOINTEES UNDER THE CONSTITUTION (a) Heads of the executive departments (Art. VII, Sec. 16.) (b) Ambassadors. other public ministers and consuls (Id.) (c) Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain (because these are officers of a sizeable command enough to stage a coup)
(Id.)

(d) Other officers whose appointments are vested in the President in the Constitution: (i) Chairman and Commissioners of the Constitutional Commissions Art. IX, B, Sec. 1. (2) The Chairman and the Commissioners (of the Civil Service Commission) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. X x x Id.,C, Sec. 1. (2) The Chairman and the Commissioners (of the Commission on Elections) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. X x x The Chairman and the Commissioners (of the Commission on Audit) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. X x x (ii) Regular members of the Judicial and Bar Council (composed of the IBP representative, professor of law, retired SC justice, and representative of the private sector. Note the ex-officio members: Chief Justice, Secretary of Justice, and representative of Congress) Art. VII, Sec. 8. (2) The regular members of the (Judicial and Bar) Council shall appointed by the President for a term of four years with the consent of the Commission on Appointments. X x x (iii) Sectoral representatives (Now an obsolete provision)

Id., D, Sec. 1 (2)

Art. XVIII, Sec. 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) of Section 5 of Article VI of this Constitution. (iv) Regional Consultative Commission Art. X, Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. X x x Members of the Regional Consultative Council in Art. X, Sec. 18 are according to Sarmiento v. Mison, 156 seRA 547,supra. also subject to confirmation by the CA, because their appointment is vested in the President by the Constitution. But J. Mendoza disagrees. For unlike the Chairman and members of the Constitutional Commissions and the regular members of the JBC, the Constitution in Art. X, Sec. 18 does not say that the appointment is subject to confirmation. Also, the pattern in the Constitution

Handout No. 6 - Executive Liepartment Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 24 of 73

shows that where the nominees are already screened either by JBC (for justices and judges) or the multi-sectoral bodies (Regional Consultative Council), then there is no need for CA confirmation to prevent an overkill. It is enough that the President made the appointment on the basis of nominations. Otherwise, it would be too rigid, considering that the duty of the RCC is only to advise Congress on the autonomous act to be enacted.

Upon recommendation of the Judicial and Bar Council (a) Members of the Supreme Court and all other courts ! Art. VIII, Sec. 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 appointments within ninety days from the submission of the list. (b) Ombudsman and his 5 deputies (for Luzon, Visayas, Mindanao, Central Office and Military and Other Law Enforcements Office) Art. XI, Sec. 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. Appointment of Vice-President as Member of the Cabinet Art. VII, Sec. 3. xxx The Vice President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation Appointments solely by the President Art. VII, Sec. 16. The President shall xxx also appoint all 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 Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1. Those vested by the Constitution on the President alone (e.g. appointment of VicePresident to the Cabinet) [Art. VII, Sec. 3(2)] . 2. Those whose appointments are not otherwise provided by law. 3. Those whom he may be authorized by law to appoint.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.u.P. College of Law Page 25 of 73

4. Those other officers lower in rank whose appointment President (alone). The phraseology is muddled.

is vested by law in the

The meaning of #4 was touched upon in Sarmiento I'. Mison. In arguing that even bureau chiefs needed confirmation even if they are of inferior rank, the argument was the phrase, "The Congress may, by law, vest in the appointment of other officers lower in rank in the President alone" meant that until a law is passed giving such appointing power to the President alone, then such appointment has to be confirmed. Only after such law is passed does the necessity for confirmation no longer hold. The SC dismissed this view however, saying that the inclusion of the word "alone" was an oversight. Thus, the Constitution should read "The Congress may, by law, vest the appointment of other officers -lower in rank in the President."
Bermudez v. Executive secretary, G.R. No. 131429, Aug. 4, 1999, 3rd Div. [Vitug]) ISSUE: Is the prior recommendation of the Secretary of Justice a mandatory requirement before the President may validly appoint a provincial prosecutor?
HELD: This question would x x x pivot on the proper understanding of the provIsion of the Revised Administrative Codeof 1987 (Book 111, Title III, Chapter II, Section 9) to the effect that-

"All provincial and city prosecutors and their assistants shall be \lPpointed by the President upon the recommendation of the Secretary." Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior recommendation of the secretary of Justice endorsing the intended appointment x x x. 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:' CONTROLmeans 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. Expressedin 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. It is the considered view of the Court x x x that the phrase "upon recommendation of the Secretary, "found in Section 9, Chapter II, Title Ill, Book IV, of the RevisedAdministrative COde,should be interpreted x x x to be a mere advise, 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.
1 I

(5)

Limitations on appointing power of the President Art. VII, Sec. 13. xxx 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 governmentowned or controlled corporations and their subsidiaries. Id., Sec. 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.

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

B. Two months immediately before the next presidential. elections (2nd Monday of May), and up to the end of his "term" (June 30), a President (or Acting President) shall not make appointments.
Exception: Temporary appointments, to executive positions, when continued vacancies therein will (1) prejudice public service (e.g. Postmaster) or (ii) endanger public safety (e.g. Chief of Staff). This provision seems to have overruled previous pronouncements of the Supreme Court on the validity of "midnight appointments". (Ad interim appointments could either be "midnight", if made by the President before he steps down from office or recess, if made by the President when Congress is not in session.) In Aytona v. Castillo, 4 SCRA 1 (1962),the SC ruled that while "midnight appointments" are not illegal, they should be made in the capacity of a "car.e-taker" doubly careful and prudent in making the selection, so as not to 'defeat the policies of the incoming administration. Said the court: After the proclamation of an incoming President, the outgoing President is no more than a "caretaker" administrator duty bound to prepare for the orderly transition to the new President,and he should not do acts that would obstruct the .policiesof his successor. The filling up of vacancies in important posts, if few, and so spaced as to afford some assuranceof deliberate action and careful considerationof the need for the appointment and the appointeesqualifications, may be undoubtedly permitted. But the issuanceof 350 appointments in one night, and the planned induction of almost all of them a few hours before the inauguration of the new President may be regardedas abuse of presidential prerogatives. Where the President makes ad-interim (I.e., midnight) appointments, he is bound to be "prudent" to insure approval of his selection, either by previous consultation with the CA or by explaining his reason thereafter. Where the CA that will consider the appointees is different from that existing at the time of appointment, and where the names are to be submitted by his successor who may not wholly approve of his selections, the President should be "doubly careful in extending such appointment. In Jorge v. Mayer, 10 SCRA 331 (1964), the Court emphasized the rule in Aytona that a prudently made midnight appointment so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees' qualifications is not prohibited by law. The circumstances of Jorge's appointment as Director of Lands in this case, based on his 38 years of faithful service and confirmed by the CA before its adjournment, were found to be judicious. In Quisumbing v. Tajanglangit, 10 SCRA 446(1964),the SC emphasized that the Aytona ruling does not declare all midnight appointments as invalid, and that the ad interim appointment of the petitioner chief of police here, whose. qualification and regularity were not disputed, except for the fact that it was made during the last few days of the old administration, is thus not invalid.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 27of73

Q. To what types of appointments is Section 15, Article VII of the 1987 Constitution
(prohibiting the President from making appointments two months before the next presidential elections and up to the end of his term) directed against?
Held: Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within two months preceding the Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code; while the second consists of the so-called "midnight" appointments. The SC in In Re: Hon. Mateo A. Valenzuela and HOIl. Placido B. Vallarta, (298 SCRA 408) clarified this when it held: "Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only "midnight" appointments those made obviously for partisan reasons as shown by their number and the time of their making - but also appointments presumed made for the purpose of influencing the outcome of the Presidential election." De Rama v. Court of Appeals, 353 SCRA 94 (2001) FACTS: Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection but lost. Before she vacated her office, though, she extended permanent appointments to fourteen new employees of the municipal government. The incoming mayor, upon assuming office, recalled said appointments contending that these were "midnight appointments" and, therefore, prohibited under Sec. 15, Art. VII of the 1987 Constitution. Should the act of the new mayor of recalling said appointments on the aforestated ground be sustained?
HELD: The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC,the only reason he cited to justify his action was that these were "midnight appointments" that are forbidden under Article VII, section 15 of the Constitution. However, the C;:5C ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.

De Castro

VS.

Judicial Bar Council, GR No. 191002, March 17, 2010

ISSUE: WON the incumbent President can appoint the successorof Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary?
HELD: YES. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome

powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments. As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists 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 orohibition 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 easilvand surelv written the prohibition mad! explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the

1st

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Supreme Court in Article VIII itself, most likely in Section 4 (ll, 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.

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 1S as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. castillo (4 SeRA 1). In fact, in the Valenzuela case (298 SCRA408), the Court so observed, stating that: xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code,
viz.:

xxx The second type of appointments prohibited by Section 1S, Article VII consists of the so-called "midnight" appointments. In Aytona v. castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." Said the Court: "The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments." As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation or'the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only "midnight" appointments those made obviously for partisan reasons as shown by their number and the time of their making - but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be made during the period of the ban therein provided - is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 29 of 73 prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of el~ctions and, for that reason, their making is considered an election offense. Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framws did not need to extend the prohibition to appointments in the Judiciarv. 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 Judiciarv. 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.

Interim or recess appointments Art. VII, Sec. 16. xxx The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.
I

Regular and recess (ad-interim)

appointments Constitutional

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

Appointments requiring confirmation are of two kinds, (i) regular, if the CA, that is, Congress, is in session, or (ii) during the recess of Congress (because the Commission shall meet only while Congress is in session (Art. VI, Sec. I9j). Regular appointments require confirmation before the appointee can take his post. The President nominates, Congress receives the nomination and forwards this to the CA for confirmation, then the Office of the President issues a Commission, at which point the appointee can assume his office. Recess appointments, on the other hand, need no confirmation to be effective, albeit temporarily. The appointment is effective until it is disapproved by the Commission on Appointments, or until the next adjournment of Congress (unless meantime, it is confirmed by the Commission) (Art. VII, Sec. I6,par. 2) Q. Discuss the nature of an ad-interim appointment. Is it temporary and, therefore, can be withdrawn or revoked by the President at her pleasure? A. In the case of Matibag v. Benipayo (380 SCRA 49) the SC stated that an AD INTERIM
APPOINTMENT is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 30 of 73 effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reaSO{lan ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers v, Ozaeta, decided on October 25, 1948, we held that:
I

"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the 'President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued." The \:onstitution imposes no condition on the effectivity of an ad'interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete v, Secretary of the Commission on Appointments, this Court elaborated on the nature of an ad interim appointment as follows:

!
"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective 'until disapproval by the Commission on Appointments or until the next adjournment of the Congress.''' Petitioner cites Black's Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues tha,t an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pltl1lantasanng Lungsod ng Maynila v, Intermediate Appellate Court, where we explained that: "x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several 'ad interim' appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word 'ad interim' which creates such belief. The term is defined by Black to mean 'in the meantime' or 'for the time being'. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. X x x." Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that Can be withdrawn or revdked at any time. The term, although not found in the text of the Constitution, has acquired

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 31 of73 a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar v. Court of Appeals, where the Court stated: "We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private. respondent's appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner's submission that private respondent's ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent appointment but their terms are only until the Board disapproves them." An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional. protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law." (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the req~irements of due process.

Q. How is an ad interim appointment

terminated?

HELD: An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. (Matibag v. Benipayo,380 SCRA 49,April 2, 2002,En Bane[Carpio])

Q. How is an ad interim appointment

in an acting or temporary capacity?

distinguished

from an appointment

or designation

HEL!D: While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,En Bane[Carpio])

Q. Discuss the reason why the framers

reinstate the President.

1935 Constitution

of the 1987 Constitution thought it wise to provision on a.d interim appointments of the

A. In the case of Matibag v. Benipayo (380 SCRA 49) The SC stated that the original draft of
Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 3D-day compulsory recess. However, because of the need to avoid disruptions in essential govEfrnment services, the framers of the Constitution thought it wise to reinstate the provisions of ti:\e 1935 Constitution on ad interim appointments. X x x

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Clearly,the reinstatementin the presentConstitutionof the ad interim appointing powerof the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolongedvacanciesin government offices, including the three constitutionalcommissions. In his concurringopinion in Guevarra v. Inocentes, decidedunder the 1935Constitution,JusticeRobertoConcepcion, Jr. explainedthe rationalebehind ad interim appointmentsin this manner: "Now, why is the lifetime of ad interim appointmentsso limited? Because,if they expired before the session of Congress, the evil sought to be avoided interruption in the discharge of essential functions - may take place. Because the same evil would result if the appointmentsceased to be effective during the sessionof Congressand before its adjournment. Upon the other hand, once Congresshas adjourned, the evil aforementionedmay easily be conjured by the issuanceof other ad interim appointmentsor reappointments." Temporary Designations: Administrative Code of 1987, Book III Sec. 17 The President may designate an officer already in the government service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when: (a) The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b)TThere exists a vacancy; In no case shall a temporary designation exceed one (1) year. (6) Limitations on the appointing power of the Acting President

Art. VII, Sec. 14. Appointments extended by an Acting President shall remain effective unless revoked by the elected President within ninety days from his assumption or reassumption of office. Art. VII, Sec. 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. (7)1 Executive clemencies Art. VII, Sec. 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. It shall also have the power to grant amnesty with concurrence of a majority of all the Members of the Congress. the

The President may grant (i)reprieves, (ii) commutations, and (iii) pardons, and (iv) remit fines and forfeitures, after conviction by final judgment, except: (a) In cases of impeachment, and (b) As otherwise provided in this Constitution, viz.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College o/Law Page 33 0/73

Art. IX, C, Sec. 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 by the Commission (on Elections.) Definitions Reprieve is a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution. It does not more than stay the execution of a sen:tence extended to a prisoner to afford him an opportunity to procure some amelioration of the sentence imposed. (Black.) It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution.
(People vs. Vera, in/ra.)

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

Pardon is a permanent cancellation of sentence. (Black) It is an act of 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 the crime he has committed. It is a remission of guilt, a forgiveness of the offense. (People v Vera,
infra.) Cruz: Kinds of Pardon.-Pardon may be classified into absolute or conditional and pletJary or partial. An absolute pardon is one extended without any strings attached, so to speak, whereas a conditional pardon is one under which the convict is required to comply with certain requirements. A plenary pardon extinguishes all the penalties imposed upon the offender, including accessory disabilities, whereas partial pardon does not.

Where the pardon is conditional, the offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. But in the case of an absolute pardon, the pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, which is also not subject to acceptance by the offender. 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.
(Blahk: Brown v Walker, 161 US 602).

Probation is 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. {Sec. 3 (a), PD 968.) 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. (a) Pardon distinguished from probation
People v. Vera, 65 Phil. 56 (1937)
HELD: Probation and Pardon are not coterminous; nor are they the same. They are actually distinct and different from each other, both in origin and 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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law , Page 34 of 73
mere fact that he is placed on probation. The probationer,' during the period of probation, remains in legal custody-- subject to the control of the probation officer and of the court, he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him.

Notes: In both cases, there must be a final judgment of conviction, and the convict must be exempted from service of sentence. But pardon is granted by the Chief Executive for any crime, while probation is granted by the court after investigation by a probation officer only for cases where the penalty imposed does not exceed 6 years and 1 dby (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 effects, including the accessory penalties, are abolished upon the grant of pardon. In probation, the restoration of the probationer to his civil rights takes places only after his final discharge after the period of his probation. (Sees. 14 & 16)

(b) Pardon distinguished from Parole

Pardon may be granted by the Chief Executive under the Constitution and formerly the Administrative Code, at any time after final judgment of conviction, even before service; while parole is granted by the Board of Pardons and Parole under the Indeterminate Sentence Law only after the convict has served the minimum term of his sentence.
T

In pardon, the convict becomes a free man; in parole, he is not really free because although he his released from the custody of the law, he must submit to periodic examination by the Board of Parole. In Tesoro v. Director of Prisons, 68 Phil 154 (1939), the SC dismissed the contention that .because parole is not mentioned in the Constitution, then the power to grant parole is also deemed repealed. The Court said that parole is part of the pardoning power of the President. Justice Fernando points out, however, that this is not accurate. If ever the President has the power to grant parole, it is because the law grants him that power, and not because parole is part of pardon.
Tesoro v.Director of Prisons,

68 Phil 154

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

On Nov. 14, 1935, the Gov. Gen. granted the petitioner a parole, which the latter accepted, subject to certain conditions. One of the conditions was that he will not commit any other crime and will conduct himself in an orderly manner. Dec. 3, 1937, the petitioner was charged with the crime of adultery. non-appearance of the complainant, Jose Nagar. However, the case was dismissed for

Feb. 1938, Nagar lodged a complaint with the 80ard of Indeterminate Sentence, and upon the same facts supporting the criminal action, charged petitioner with violation of the conditions of his parole. . Later, by virtue of an order from the President, the petitioner was arrested and recommitted the Dir. of Prisons. to the custody of

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

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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 35 of 73 'To grant to convicted persons reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences without pardon, 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 re-incarceration of any such person who, in his judgment shall fail to comply with the condition, or conditions, of his pardon, parole, or suspensionof sentence." The aforementioned Constitutional provision provides: 'The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the National Assembly." ISSUE NO.1: WIN there has been a repeal.
HELD: NONE.The power to pardon given the President by the Constitution, "upon such conditions and with such restrictions and limitations as he may deem proper to impose," includes the power to grant and revoke paroles. If the omission of the power of parole in the Constitution is to be construed as a denial thereof to the President, the effect would be to discharge unconditionally parolees, who, before the adoption .of the Constitution, have been released conditionally by the Chief Executive.

ISSUE NO.2: WIN the Board has legal authority to investigate the conduct of the petitioner.
HELD: YES. By the terms of his parole, petitioner agreed to report to the executive secretary of the Board once a month during the first year of his parole, and thereafter, once every 3 months. By his consent to this 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. 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, the President is not precluded by law or by the Constitution from making use of any agency of the govt, or even of any individual, to secure the necessaryassistance.

ISSUE NO.3: WIN 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.
HELD: NO. As one of the conditions of his parole, petitioner agreed that he will not commit any other crime and will conduct himself in an orderly manner. Thus, the mere commission, not his conviction by court, of any other crime, that was necessary in order that petitioner may be deemed to have violated his parole. And under Sec. 64 (0, 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 conditionls of his pardon, parole, or suspension of sentence.

ISSljIE NO.4: WIN the courts can review the findings of the Pres. regarding the violation of the conditional parole.
HELD: NO. Where 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.

ISSUE NO.5: expires.

WIN upon the expiration of his maximum term of imprisonment, his conditional parole also

HELD: NO. 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 prison. xxx The rule is wellsettled 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. (Pp. v. Tape/) This rule applies by analogy to conditional parole.

Torres v. Gonzales, 152 SCRA 272 (1987) FActS: Before 1979, Torres was convicted of the crime of estafa (2 counts) and was sentenced to imprisonment and to pay an indemnity. The maximum sentence would expire on Nov. 2, 2000.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.u.P. College of Law Page 36 of 73 On April 18, 1979, a conditional pardon was granted the petitioner by the President on condition that petitioner would "not again violate any of the penal laws of the Philippines Should this condition be violated, he will be proceeded against in the manner prescribed by law. Petitioner accepted the conditional pardon and was released. On Sept. 8, 1986, the President cancelled the conditional pardon of the petitioner upon recommendation of the Board of Pardons. The record before the Board showed that petitioner had been charged with 20 counts of estafa, convicted of sedition which is the subject of an appeal, and a letter report from the NBI showing a long Ilist of charges brought against the petitioner. The petitioner was subsequently arrested and confined in Muntinlupa to serve the unexpired portion of his sentence. Petitioner claims he did not violate his conditional pardon since he has not been convicted by final judgment of the 20 counts of estafa nor of the crime of sedition. He also contends that he was not given an opportunity to be heard before he was arrested and recommitted to prison and thus deprived of due process. ISSUE: WIN conviction of a crime by final judgment of a court is necessary before the petitioner can be validly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to serve the balanceof his original sentence.
HELD: NO. The Court cited 3 cases: Espuelas v. Prov'l Warden of Sohal; Tesorov. v. Oir. of Prisons. Oir. of Prisons and sales

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. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of suchlbreach, may be either a purely executive act, not subject to judicial scrutiny under sec. 64 (i) of the Rev. Adm. Code; or it may be a judicial act consisting of trial for and conviction of violation of a conditional pardon under Art. 159 of the RPC. Where the President opts to proceed under Sec. 64 (i), RAC, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefore by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. Becausedue process is not semper et ubique judicial process, and 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, sec. 64 (I), RAC,is not afflicted with a constitutional vice. In short, in proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed against'him under Sec. 64 (i), RAC; or (ii) to proceed against him under Art. 159, RPC which imposes the penalty of prision corre{;cional minimum period, upon a. convict who having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceed against the petitioner under the RAe. That choice is an exercise of the executive prerogative and not subject to judicial scrutiny.

(e) Pardon distinguished from Amnesty 1. Pardon is usually granted for common crimes; amnesty, for political crimes. 2. Pardon is granted to individuals; amnesty, to a group, class, or community generally. 3. Pardon can only be granted after conviction; amnesty may be granted even before trial. 4. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment; amnesty looks backward and abolishes and puts into oblivion the offense itself, that is, it overlooks and obliterates the offense with which the convict is charged that the person released stands precisely as though he had committed no offense. (Barrioquinto v
Fernandez, infra.)

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

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6. Pardon does not require the concurrence of the Congress; amnesty requires such concurrence. (id.)
Barrioquinto et al v. Fernandez, 82 Phil 642
FACTS: Petitioners Jimenez and Barrioquinto were charged with murder. Jimenez was Sentenced to life

imprisonment. Before the period for perfecting an appeal had expired, Jimenez became aware of Procl. NO.8 whicjl grants amnesty in favor of all persons who may be charged with an act penalized under the RPC in furtherance of resistance to the enemy or against persons aiding in the war efforts of the enemy, and committed during the period Dec. 8, 1941 to the date when each particular area of the Philippines where the offense was actually committed was liberated from enemy control and occupation. The petitioners submitted their casesto the Guerrilla Amnesty Commission(GAC). The GAC returned their cases to the CFI-zamboanga without deciding whether or not they are entitled to the benefits of the Amnesty Proclamation, on the ground that inasmuch as neither of the petitioners have admitted to committing the offense, they cannot invoke the benefits of the amnesty.
HELD: Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while Amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. . Pardon is granted to one after conviction; while Amnesty is granted to classesof persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.

r
i

!
Pardon looks forward and relieves the offender from the consequences of an offense of which he has been

convicted, that is, it abolishes or forgives the punishment, and for that reason it does "not work the restoration of the rights to hold public office, or the right of suffrage, unless such 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" (Art 36 RPC).While 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. ISSUE: WIN in order to entitle a person to the benefits of the Amnesty Proclamation of Sept. 7, 1946, it is necessary as a condition precedent that he should admit having committed the criminal act with wlc he is charged and allege the amnesty as a defense.
HELD: NO. It is sufficient that the evidence, either of the complainant or of the accused, shows that the offense committed comes within the terms of said Amnesty Proclamation.

It is not correct to say that "invocation of the benefits of the amnesty is in the nature of a plea of confession and ~voidance. Although the accused does not confess the imputation against him, he may be declared by the courts or the Amnesty Commissions entitled to the benefits of the amnesty. For, whether or not he admits or confesses having committed the offense with which he is charged, the Commissions should, if necessary or requested by the interested party, conduct summary hearing of the witnesses both for the complainants and the accused, on whether he has committed the offense in furtherance of the resistance to the enemy, or against persons aiding in the war efforts of the enemy, and decide whether he is entitled to the benefits of amnesty and to be "regarded as a patriot or hero who has rendered invaluable services to the nation," or not, in accordance with the terms of the Amnesty Proclamation. ISSUE: WIN the benefits of amnesty may be waived.
HELD: The right to the benefits of amnesty, once established by the evidence presented, either by the

prosecution or the defense, cannot be waived, because it is of public interest that a person who is regarded by the Amnesty Proclamation, which has the force of law, not only as innocent, for he stands in the eyes of the law as if he had never committed any punishable offense because of the amnesty, but as a patriot or hero, cannot be punished as a criminal.
. n Dissenting Opinion:

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

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A petitionfor amnestyis in the natureof a pleaof confession andavoidance. The pleaderhasto confess the allegations againsthimbeforehe isallowed to setout suchfactsas,if true, woulddefeatthe action.
---- 0 ----

The4th distinction (pardonis forwardlookingwhileamnesty is backward looking)is not accurate on the basis of decided cases. It canbe seenfromseveral cases, thereforethat the effect of pardonretroacts to the dayof the crime. It is not simpiyforward-looking. Pardonis still useful,then, evenif the convicthasalreadyseniedhis full sentence, because there may be accessory penalties that are perpetual in extent. Notes: The fifth distinction bet. pardon and amnesty is that pardon is a private act of the President, and so must be impleaded in court; amnesty is a public act by the President and Congress, and so the court is enjoined to take judicial notice of it. The 5th distinction (pardon is a private act while amnesty is a public act) is not true in Philippine law. The case holds that pardon must be raised as a i:lefense, otherwise the court cannot take judicial notice of such pardon. But under' Art. 89 of the RPC, absolute pardon extinguishes criminal liability. And under the Constitution, pardon can only be granted after final conviction. If so, once, a convict has been granted pardon, this implies that he has already been convicted, and that precisely he has been exempted frorp the penalty arising from conviction. Why would he still have to invoke it? This seems to contemplate a situation where he is being charged again of the same crime, and that he needs to invoke the pardon as a defense, which is impossible because of double jeopardy. The error in the Barrioquinto ruling is that it borrowed this distinction from American law, which allows the President the power to grant pardon even before conviction (thus, Ford was able to pardon Nixon even without a trial.) Such was our law under the Jones Law of 1916. But under the 1935 Constitution, this rule was changed: pardon could only be granted after conviction, In 1973, it was made stricter: pardon could be granted only after "final" conviction. Then, in 1981, the phrase "after final conviction" was dropped, thus going baCKto the rule under the Jones Law and the President could grant pardon anytime. In 1987, the phrase reads: "after conviction by final judgment." Asicje from extinguishing criminal liability, forfeitures paid in favor of the Government. pardon also works to remit fines and

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

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

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Cristobal v. Labrador, 71 Phil 34 (1940)

FACTS: On March 15, 1930, Teofilo santos was found guilty of estafa and sentenced to 6 months of arresto mayor. Upon appeal, his conviction was affirmed. He was confined in jail'from March 19, 1932 to August 18,

1932. Notwithstanding his conviction, Santos continued to be a registered elector in Malabon, Rizal and was municipal president from 1934 to 1937. Subsequently, The Election Code was approved. sec. 94, par. (b) of said law disqualifies the respondent from voting for having been declared by final judgment guilty of any crime against property" Becauseof this provision, Santos petitioned the Chief Executive for absolute pardon. The Presi1dent granted his petition restoring him to his "full civil and political rights, except that with respect to the right to hold public office or employment, he will be appointed for appointments only to positions which are clerical or manual in nature and involving no money or property responsibility. On November 1940, Cristobal filed a petition for the exclusion of Santos' name in from the list of voters in Malabon on the ground that the latter is disqualified under par. (b), Sec. 94 of CA 357. The Lower Court denied Cristobal's petition holding that Santos' pardon had the effect of excluding him from the disqualification created by par. (b) of sec. 94. Hence, this petition for ceritorari.
HELD: There are 2 limitations upon the exercise of the constitutional prerogative of the Pres. to grant pardon: (1) that the power be exercised after conviction; (2) that such power does not extend to cases of impeachment. An absolute pardon not only blots out the crime committed but it also removes all disabilities resulting from conviction. In the present case, the disability is the result of conviction without which there would be no basis for the disqualification from voting.

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

72 Phil 441

FACTS: Pelobello alleges that Palatino is disqualified from voting and being voted upon. It appears that Palatino was convicted by final judgment in 1912 of atentado contra la autoridad y sus agentes and sentenced

to imprisonment. He was later elected mayor of Torrijos, Marinduque in 1940. It is admitted that Palatino was granted by the Gov. Gen. a conditional pardon in 1915. It is also proven that on Dec. 25, 1940, the President granted him absolute pardon and restored him to the enjoyment of full civil and political rights. . ISSUE: WIN the absolute pardon had the effect of removing the disqualification incident to criminal conviction under the then Election Code, the pardon having been granted after the election but before the date fixed by law for assuming office.
HELD: YES.The SC adopts the broad view in Cristobal v. Labrador that s~bject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislation; 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. Thus the better view 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 law to the extent of relieving completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction.

Under the circumstances of the case, 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 after the election but before the date fixed by the Election Code for assuming office. In Lacuna v. Ahes, 24 SeRA 780, the petitioner was convicted of counterfeiting, and so was disqualified from the right of suffrage. As a result, he was not allowed to file his candidacy, even if he was already granted pardon, because one of the requirements for the office was that the candidate be a qualified voter. The SC, after pointing out that the law did not require that he be a registered voter but only a qualified voter at the day of election, pointed out that, granting arguendo, pardon retroacted to the day of the crime. Thus, on the day of the election, "it is as though he was a registered voter even if on that day, he was not yet pardoned." Lacllna v. Abes, 24 SCRA 780 (1968)
FACTS: Mayor-elect Abes had been convicted of the crime of counterfeiting treasury warrants and sentenced to prision mayor and a fine. After he had partially served his sentence, he was released on April 7, 1959 by

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.u.P. College of Law Page 40 of 73 virtue of a conditional pardon granted by the President, remitting only the unexpired portion of the prison terrI; and fine. Without the pardon, his maximum sentence would have been served on Oct. 13, 1961. With the approach of the 1967 elections, Abes applied for registration as a voter but said application was denied. Despite this, Abes filed his certificate of candidacy for the office of mayor and later won. On Nov. 16, 1967, he was proclaimed the fully elected mayor. Lacuna placed second. Lacura filed his petition for quo warranto with prelim. injunction in CA-Nueva Ecija. On the same day that the hearing was held on the application for prelim. injunction, the President granted Abes an absolute and unconditional pardon and restored to him full civil and political rights. CFI dismissed the petition, declaring Abes' eligibility to the position of mayor. Lacuna contends that the restoration of Abes' civil and pol. rights did not retroact to remove the disqualification existing anterior to the grant of the pardon. ISSUE: WIN a plenary pardon, granted after election but before the date fixed by law for assuming office, had the effect of removing the disqualifications prescribed by both the criminal and electoral codes.
HELD: YES. The view consistently adopted in this jurisdiction is that the pardon's effects should not be

unnecessarily limited as it would lead to the impairment of the pardoning power, which was not contemplated in the Constitution (Cristobal v. Labrador; Pelobello v. Palatino; Mijares v. Custorio). As laid down in the Pelobello case, "xxx subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crim'i! 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 qf conviction. Thus the better view is not to unnecessarily restrict or impair the power of the Chief Executivel\tho, 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 disabilities of criminal conviction.

In Monsanto v. Factoran, 170 SCRA 190, where a woman who was convicted of estafa through falsification of public documents was granted an absolute pardon, and thereafter claimed she was entitled as a consequence to reinstatement as assistant city treasurer, the SC held that a 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 penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind, lest we lose track of the true character and purpose of the privilege. Thus, pardon 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. Monsanto v. Factoran, 170 SCRA 190 (1989)
A Pardoned Convict is not Entitled to Reinstatement to a Public Office.

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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College o/Law Page 410/73 HELD: (1) Petitioner was granted pardon under the 1973 Constitution, as amended,which, by deleting the requirement that pardon could be granted only after final conviction, impliedly authorized it to be granted even before conviction. The 1987 Constitution reverted to the former rule, requiring final conviction as a condition for the grant by the Presidentof pardon. However, it is immaterial when the pardon was granted, for the result would be the same. By acceptingthe pardon, the petitioner is deemedto have abondoned her appeal, with the result that the judgment of conviction of the 5B (which entailed her temporary absolute disqualificationfrom holding public office) becamefinal. (2)IThe modern trend of authorities rejects the unduly broad language of Ex Parte Garland, 4 Wall. 333 (1867) to the effect that in.the eyes of the law, the offender who is pardonedis as innocentas if he had never committed the offense. While we are preparedto concedethat 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 circumscribedby legislativeaction, we do not subscribeto the view 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 pardonedconvict in characterand conduct wI one who has constantly maintainedthe mark of a good, law-abidingcitizen. Accordingly,pardon does not ipso facto restore him to public office may have been forfeited by reason of the conviction, although such pardon undoubtedly restores his eligibility for appointment to that office. Petitioner may apply for reappointmentbut, in consideringher qualifications,the facts constituting her conviction should be taken into account to determine whether she can again be entrusted wI public funds. (3) Nor can petitioner be exempted from the payment of the civil indemnity. It subsists notwithstanding service of sentence, if for any reason the sentence is not served by pardon, amnesty or commutation of sentence.

Notes on the case: "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 (w/c is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. xxx"

(e) Sanctions for violations of conditional pardon Q. Discuss the nature of a conditional pardon.
President subject to judicial review?
HELD: A CONDITIONAL PARDON is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee's consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Section 64(i) of the Revised Administrative Code, the Chief Executive is authorized to order "the arrest 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." It is now a well-entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial scrutiny. The determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive, and the pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered. Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive author of the conditional pardon and of its revocation, is the corollary prerogative to reinstate the pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed against him, warrants the same. Courts have no authority to interfere with the grant by the President of a pardon to a convicted criminal. It has been our fortified ruling that a final judicial pronouncement as to the guilt of a pardonee is not a requirement for the President to determine whether or not there has been a breach of the terms of a conditional pardon. There is likewise nil a basis for the courts to effectuate the reinstatement of a conditional pardon revoked by the President in the exercise of powers undisputably solely and absolutely in his office. (In Re: Wilfredo Sumulong Torres, 251 SeRA 709, Dec. 29, 1995 [HermosisimaJJ

Is its grant or revocation by the

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Torresv. Gonzales, 152 SCRA 272 (1987) HELD:In proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed against him under Sec. 64(i), RAC; or (ii) to proceed against him under Art. 159, RPC which imposes the penalty of prision correccional minimum period, upon a convict who having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceed against the petitioner under the RAe. That choice is an exercise of the executive prerogative and not subject to jutficial scrutiny.

(f) Does pardoning power apply to administrative cases?

Llamasv. Executive Secretary,202 SCRA 844 (1991)
"Conviction" may be used in either a criminal case or in an administrative case.

FACTS: Petitioner Llamas was Vice-Governor of Tarlac who assumed the position of governor when Governor Ocampo was found guilty by DILG of a violation of RA 3019 and meted a penalty of 90 days suspension. Administrative conviction was based on complaint filed by petitioners and others charging Ocampo with executing loan agreement with Lingkod Tarlac Foundation for the amount of P20M, which is a non-stock and non-profit organization headed by the governor as chairman and his brother-in-law as executive director, trustee and secretary. Loan was claimed to be disadvantageous to the government. The MFRby Ocampo was denied by DILG. On March 19, 1991, Ocampo issued an "administrative order" wherein he signified intention to continue in office at his residence in the belief that pendency of appeal to the Executive Secretary precluded finality as executory of the DILG order. Without ruling on the MFR, the Executive secretary issued a reSolution granting executive clemency to Ocampo. Llamas filed petition claiming that executive clemency could only be granted by the President in criminal cases, not in administrative cases. HELD: According to petitioner, "after conviction by final judgment" applies solely to criminal cases." But, he himself describes the governor as one "convicted in an administrative case" and thus actually concedes that "conviction" may be used either in a criminal or administrative case. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases.
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. However, the power of the President to grant executive clemency in administrative cases refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the government . 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. In this case, the President in the exercise of her power of supervision and control over all executive depcirtments, may substitute her decision for that of her subordinate. 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.

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

Code of 1987

Sec. 53. Removal of Administrative Penalties or Disabilities.-In meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service .

(g) Who may avail of amnesty?

Handout No. 6 - Executive Department Constitutional Law 1- Atty. Rene Callanta, Jr Is'Semester, SY 2012-2013, P.U.P. College of Law Page 43 of 73 Tolentino v. Catoy, 82 Phil 300 (1948) FACTS: Petitioner was a Hukbalahap who was found guilty of illegal assembly in furtherance of the Hukbalahap designs. After the judgment was promulgated, the President issued Proclamation No. 76 granting amnesty to leaders and members of the Hukbalahap. Petitioner who was already serving his sentence, sent a petition to the President for his release under the provisions of the proclamation. No action was taken on his petition. He then went to court and filed an application for a writ of habeas corpus.
I

HELl': Though some members of the Court question the applicability of Amnesty Proclamation No. 76 to
Hukbalahapsalready undergoing sentence upon the date of its promulgation, the majority of the Court believe that by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. It makes no exception when it announces that the amnesty is proclaimed in favor of the leaders and members of the associations known as the Hukbalahap and Pambansang Kaisahan ng Magbubukid (PKM). No compelling reason is apparent for excluding Hukbalahaps of any class or condition from its object which is "to forgive and forego the prosecution of the crimes of rebellion, sedition, etc." If total punishment is foregone in favor of Hukbalahaps who succeeded in evading arrest, it stands to reason that those who fell into the clutches of the law have a better claim to clemency for the remaining portion of a punishment fixed for the same offense. The avowed practical objective of the amnesty is to secure pledge of loyalty and obedience to the constituted authorities and encourage resumption of lawful pursuits and occupation. This objective cannot be expected to meet with full success without the goodwill and cooperation of the HuRbalahapswho have become more embittered by their capture, prosecution and incarceration. Fundamentally and in their utmost effect, pardon and amnesty are synonymous. Pardon includes amnesty. Pardon and amnesty are both construed most strictly against the state.
r

Macaga-an v. People, 152 SCRA 430 (1987) FACTS: Petitioners were charged and convicted of estafa through falsification of public and commercial documents by the Sandiganbayan. They claimed that they had been granted amnesty by President Marcos. The Sandiganbayanclaimed that the benefits of amnesty were never available to petitioners under PD 1182. HELD: The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified from amnesty. The acts for which they were convicted were ordinary crimes without any political complexion and consisting only of diversion of public funds to private profit. The amnesty proclamation covered only acts in the furtherance of resistance to duly constituted authorities of the Republic. Vera v. People, 7 SCRA 1S2 (1963)
Amnesty cannot be invoked, where the accused actually denies the commission of the offense charged.

FACTS: In the CFI-Quezon, petitioners Vera, among others, were charged wi the complex crime of kidnapping with murder of Amadeo Lozanes. Upon petitioners' motion, invoking the benefits of Amnesty Proclamation of the President in 1946, the case was referred to the Eight Guerrilla Amnesty Commission, which actually tried it. During the hearing, none of the petitioners admitted having committed the crime charged. In fact, Vera, the only defendant who took the witness stand, instead of admitting the killing of the deceased Lozanes, categorically denied it. Hence, the Commission, in its decision held that it could not take cognizance of the case, on the ground that the benefits of the Amnesty Proclamation, could be invoked only by defedants in a criminal case who, admitting the commission of the crime, plead that said commission was in pursuance of the resistance movement and perpetrated against persons who aided the enemy during the Japanese occupation. Consequently, the Commission ordered that the case be remanded to the court of origin for trial. A MFRwas filed by petitioners but was denied. From this order of the Commission, petitioners appealed to the CA which certified the appeal to us, in view of the legal issue involved. ISSUE: Win persons invoking the benefit of amnesty should first admit having committed the crime of which they are accused. Petitioners contend that to be entitled to the benefits of Amnesty Procl. No.8, it is not necessary for them to admit the commission of the crime charged, citing in support of their submission, among others, the case of Barrioquinto, et. al vs. Fernandez, et, al (82 Phil 642.) to the effect that "in order to entitle a person to the benefits of Amnesty Proclamation, it is not necessary that he should, as a condition precedent, admit having committed the criminal act or offense with which he is charged, and allege the amnesty as a defense; it is sufficient that the evidence, either of the complainant or the accused, shows that the offense committed comes within the terms of said Amnesty Proclamation.

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 44 of 73
HELD: But said caseshave been supersededand deemedoverruled by the subsequentcasesof People vs.

L1amta,et. al. (86 Phil. 219), etc. whereinwe held that-"It is rank inconsistencyfor appellant to justify an act or seek forgiveness for an act, accordingto him, he has not committed. Amnesty presupposes the commission of a crime, and when an accused maintains that he has not committed a crime, he cannot have any use for amnesty. Where an amnesty prod. imposes certain conditions, as in this case, it is incumbent upon the accusedto prove the existenceof such conditions. The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation." At any rate, the facts establishedbef. the Commission do not bring the casewithin the terms of the Amnesty Proclamation. As found by the Commission, the killing of the deceased(Lozanes)was not in furtheranceof the resistancemovement, but due to the rivalry bet. the Hunter's Guerrilla,to w/c he belonged,and the Vera's Guerrillaof petitioners.

(h) Who has the power to grant reprieve

Q. By issuing a TRO on the date convicted rapist Leo Echegaray is to be executed by

lethal injection, the Supreme Court was criticized on the ground, among others, that it encroached on the power of the President to grant reprieve under Section 19, Article VII, 1987 Constitution. Justify the SC's act. r
Section 19, Article VII of the 1987 Constitution is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. This provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after the finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who becomes insane after his final conviction cannot be executed while in a state of insanity (See Article 79 of the Revised Penal Code). The suspension of such a death sentence is undisputably an exercise of judicial power. It is not usurpation of the presidential power of reprieve though its effect is the same - the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the President's power to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. (Echegaray v. Secretary of Justice, 301 SeRA 96, Jan. 19,1999, En Balle /PunoJ)
HELD:

(8)

Powers as commander-in-chief

Art. VII, Sec. 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. 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 fro'm 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

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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 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. III, Sec. 13. All persons, except those charged with offenses
punishable by reclusion perpetua when the 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 n9t be required.

Art. VIII, Sec, 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. As Commander-in-Chief following powers: of all armed forces of the Philippines. the President has the

a. He may callout or rebellion.

such armed forces to prevent

or suppress lawless violence,

invasion

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

c.

He may proclaim

martial

law over the entire Philippines

Of"

any part thereof.

Subject to: Art. VIII, Sec. 1 par. 2. Judicial power includes the duty of the courts 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 disdretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Govt.

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Call out the AFP to prevent lawless violence This is merely a police measure meant to quell disorder. As such, the ConstitiJtion does not regulate its exercise radically
David v. Macapagal-Arroyo, GR No. 171396, May 3, 2006 ISSUE: WIN PP No. 1017 is a declaration of martial law or the exercise of the President of her "calling out" powers? section 18, Article VII grants the President, as Commander-in-Chief, a "sequence" of graduated powers. 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. Citing Integrated Bar of the Philippines v. Zamora, the Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it becomes necessary", the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in the Instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Office's vast intelligence network, she is in the best position to determine the actual condition of ~~~
HELD:

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 tpat 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. 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 AFPto 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 privatelyowned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. 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 orper and the enforcement of law." In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V. Mendoza, an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. . In fact, Section 18, Art. VII, provides: .
.

A state of martial law does not suspend the operation of the Constitution, .nor 'supplant the functioning of 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. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.
I

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

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Basedon the above disquisition,it is clearthat PP1017 is not a declarationof 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 lawlessviolence. The rourt finds and so holds that PP 1017 is constitutional insofar as it constitutesa call by the President for the AFPto prevent or suppresslawlessviolence. The proclamationis sustainedby Section18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017's extraneous provisionsgiving the Presidentexpressor implied power (1) to issuedecrees;(2) to direct the AFPto enforce obedienceto all laws even those not related to lawlessviolence as well as decrees promulgated by the President;and (3) to imposestandardson media or any form of prior restraint on the press,are ultra vires and unconstitutional. On the basis of the relevant and uncontestedfacts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantlessarrest of the KMUand NAFLU-KMU members; (3) the imposition of standardson media or any prior restraint on the press; and (4) the warrantlesssearchof the Tribune offices and the whimsicalseizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisionsof PP1017and G.O.NO.5.

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

are.
HELD: 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. Section 18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: 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. 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. The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII x x x.! Under the foregoing provIsions, Congress may revoke such proclamations (of martial law) or suspension (of the privilege of the writ of habeas corpus) and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unios est exclusio alterius. X x x That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission x x x. The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to sus~end the privilege of the writ of habeas corpus and the power to impose martial law, both of which Involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.u.P. College of Law Page 48 of 73 only criterion is that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forc~s may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in. emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spillover the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commanderin-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unl~ss the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to be accorded respect from this Court. (Integrated Bar o{the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 14/284, Aug. 15, 2000, En Bane IKapunanlJ David v. Macapagal-Arroyo, GR No. 171396, May 3,2006
HELD: The issue of whether the Court may review the factual bases of the President'sexercise of his Commander-in-Chief power has reachedits distilled point - from the indulgent days of Barcelon v. Baker and Montenegro v. castaneda to the volatile era of Lansang v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla v. Enn/e. The tug-of-war alwayscuts acrossthe line defining "political questions",particularlythose questions"in regard to which full discretionaryauthority has been delegatedto the legislativeor executive branch of the government". Barcelon and Montenegro were in unison in declaringthat the authority to decide whether an exigency has arisen belongsto the Presidentand his decisionis final and conclusiveon the courts. Lansang took the oppositeview. There, the membersof the Court were unanimous in the convictionthat the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances,"under which the Presidentis supreme,x x x only ifand when he acts within the sphereallotted to him by the BasicLaw, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally supreme." In 1973, the unanimousCourt of Lansang was divided in Aquino v. Enrile. There, the Court was almost evenly divided on the issueof whether the validity of the impositionof Martial Law is a political or justiciable question. Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinatingthat "in times of war or nationalemergency,the Presidentmust be given absolutecontrol for the very life of the nation and the governmentis in great peril. The President,it intoned, is answerableonly to his conscience,the People,and God".

The Integrated Bar of the Philippines v. Zamora -- a recent case most pertinent to these cases at bar -echoed a principle similar to Lansang. While the Court consideredthe President's"calling-out" power as a discretionary power solely vested in his wisdom, it stressedthat "this does not prevent an examination of whether such power was exercisedwithin permissibleconstitutional limits or whether it was exercised in a manner constituting grave abuse of discretion". This ruling is mainly.a result of the Court's reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversiesinvolving rights which are legally

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demandable and enforceable", but also "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". The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government. It speaks of judicial prerogative not only in terms of power but also of duty. As to how the Court may inquire into the President's exercise of power, Lansang adopted the test that 'judicial inquiry can go no fUlther than to satisfy the Court notthat the President's decision is correct; but that 'the President did not act arbitrarilye Thus, the standard laid down is not .correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings".
I

Petitioners. failed to show that President Arroyo's exercise of the calling-out power, by issuing PP 1017, is totaily bereft of factual basis. A reading of the Solicitor General's Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

Suspend the privilege of the writ of habeas corpus A "writ of habeas corpus" is an order from the court commanding a detaining officer to infat-m the court (i) if he has the person in custody, and (Ii) what his basis in detaining that person. The "privilege of the writ" is that portion of the writ requiring the detaining officer to show cause why he should not be tested. Note that it is the privilege that is suspended, not the writ itself. Requisites: 1. There must be an invasion or rebellion, and 2. The public safety requires the suspension. Effects of the suspension of the privilege 1. The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion (Art. VII, ,Sec. 18, par. 5). Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest. "Judicially charged" as used in the Constitution is imprecise. For if one were already judicially charged, his detention would be legal and so he could no longer petition for habeas corpus. Habeas corpus precisely contemplates a situation in which a person is being detained without being charged in court. Thus, the provision should read "one who is suspected of complicity in" the two crimes above. As a general rule, no person could be arrested without a warrant of arrest (validly issued upon probable cause to be determined personally by the judge after examination under oath or affirm'ation of the complainant and the witnesses, (cf. Art. III, Sec. 2), unle.ss(i) the arrest was made in connection with a crime CQmmitted in the presence of the detaining officer, or (Ii) the privilege of the writ was suspended. If the public officer

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arrests him without a warrant, the officer becomes liable for "arbitrary detention" under Art, 124 of the RPC,and a petition for habeas corpus can be filed to seek his release. The suspension of the privilege does not make the arrest without warrant legal. 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 (arbitrary detention). The arrest without warrant is justified by the emergency situation and the difficulty in applying for a warrant considering the time and the number of persons to be a'rrested. But the crime for which he is arrested must be one related to rebellion or the invasion. As to other crimes, the suspension of the privilege does not apply.
I

2.. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released. (Art. VII, Sec. 18, par. 6).
In other words, the public officer can detain a person without warrant of arrest, but he can only do so for 72 hours. Before the lapse of 72 hours, an information must have been filed in the proper court charging him of the offense for which he was arrested. Under the Rules of Criminal Procedure, if the detainee wants a preliminary investigation to be first conducted by the fiscal, he must sign a waiver of the effects of Art. 125. (delay in the delivery of detained persons) The' effect of the suspension of during which he can be detained 272, the public officer can only gravity of the offense of which charged, otherwise, he must be is extended to 72 hours. the privilege, therefore, is only to extend the periods without a warrant. Under Art. 125, as amended by EO detain him for 12, 18 or 36 hours depending on the he is charged; within this time, he must be judicially released. When the privilege is suspended, the period

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

3. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Art. III, Sec. 13)
Art. III, Sec. 13. xxx The right to bail shall not be impaired even when the privilege of the writ of HC is suspended. Excessive bail shall not be required. This new provision abrogates the ruling in Morales v Ponce- Enrile which held the contrary. PROCLAIM MARTIAL LAW Requisites: 1. There must be an invasion or rebellion, and 2. Public safety requires the proclamation of martial law allover the Philippines or any part thereof. Effects of the proclamation of martial law The President can: 1. Legislate 2. Order the arrest of people who obstruct the war effort.
'.

";1
(I

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But the following cannot be done (Art. VII, Sec. 18, par. 4) 1. Suspend the operation of the Constitution.

2. Supplant the functioning of the civil courts and the legislative assemblies.
The principle is that martial law is proclaimed only because the courts and other civil institutions like Congress have been shut down. It should not happen that martial law is declared in order to shut down the civil institutions. 3. Confer jurisdiction upon military courts and agencies over civilians, where civil courts bre unable to function. . This is the "open court" doctrine which holds that civilians cannot be tried by military courts if the civil courts are open and functioning. But if the civil courts are not functioning, then civilians can be tried by the military courts. Martial laws usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, that is a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect. 4. Automatically suspend the privilege of the writ of habeas corpus. This overrules the holding in Aquino v. Ponce-Enrile, 59 SeRA 183 (1974), that when the President proclaims martial law, he also impliedly suspends the privilege of the writ. Under the present rule, the President can still suspend the privilege even as he proclaim martial law, but he must so suspend expressly. The Role of Congress

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

b. Upon such proclamation or suspension, Congress shall convene at once. If it is not

in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.

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

d. The Congress shall then vote jointly, by an absolute majority.

(i) To revoke such proclamation or suspension.

It has two options:

When it so revokes, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills. If Congress does not do anything, the measure will. expire anyway in 60 days. So the revocation must be made before the lapse of 60 days from the date the measure was taken. (ii) To extend it beyond the 60-day period of its validity. Congress can only so extend the proclamation or suspension upon the initiative of the President. The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency. If Congress fails to act before

'r

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the measure expires, it can no longer extend it until the President again redeclares the measure, for how do one extend something that has already lapsed? Note that Congress cannot "validate" the proclamation or suspension, because it is already valid. It is thus restricted to the 2 measures above. If Congress extends the measure, but before the perio.d of extension lapses, the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back. If Congress does not review or lift the order, this can be reviewed by the Supreme Court pursuant to the next section.
1

The Role of the Supreme Court The Supreme Court may review, in an appropriate proceeding filled by any citizen, the sufficiency of the factual basis of (a) the proclamation of martial law or the suspension of the privilege of the writ, or (b) the extension thereof. It must promulgate its decision thereon within 30 days from its filing. (Art. VII, Sec. 18 par. 3) This is because judicial power includes the duty 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, Sec. l,par. 2) The jurisdiction of the SC may be invoked in a proper case. A petition for habeas corpus is one such case. When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension. But before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension. The test to be used by the Supreme Court in so reviewing the act of the President in proclaiming or suspending, or the act of Congress in extending, is 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. Deciding on whether the act was arbitrary amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction, which is now made part of judicial power by Art. VIII, Sec. 1, par. 2. This curbs radically the application of the political question doctrine. This test was taken from the case of Lansang v. Garcia, 42 SCRA 446 (1971). The issue there raised was whether in suspending the privilege of the writ in 1971, Marcos had a basis for tiDing so. The SC, in considering the fact that the President based his decision on (a) the Senate report on the condition in Central Luzon and (b) a closed door 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. In this case of Lansang vs. Garcia, the SC held unanimously that it has the authority to inquire into the existence of the factual basis in order to determine the constitutional sufficiency thereof. This holding of the SC is now found in Art. VII, Sec. 18, par. 3. With this test and the new provisions in the 1987 Constitution, the case of Garcia-Padilla v. POlice Emile, 121 SCRA 472 (1983), is, at last, overruled, and l)1ay it be so always. In that case, the SC held that the President's proclamation of martial law is beyond judicial review, and that the citizen can only trust that the President acts in good faith. The cases of Barcelon v. Baker and Montenegro v. Castaneda, which ruled that the validity of the

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suspension of the privilege was a political question, are likewise buried in the grave of judicial history. There are 4 wavs, then, for the proclamation or suspension to be lifted: 1) Lifting by the President himself 2) Revocation by Congress 3) Nullification by the Supreme Court 4) Operation of law after 60 days Military Trial of Civilians Void Even Under Martial Law, If Civil Courts Are Open. (Art. VII, Sec.lS, par. 5.). In AI/llino v. Military Commission No.2, 63SCRA 546,the SC upheld the power of the President to create military tribunals authorized to try not only military personnel but also civilians even if at that time civil courts were open and functioning, thus rejecting the "open court" theory. The SC there held: "Martial law creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable by military tribunals. Public danger warrants the substitution of executive process for judicial process. The immunity of civilians from military jurisdiction, must, however, give way in areas governed by martial law. In the case of Olaguer vs Military Commission No. 34, 150 SCRA'144, the Aquino vs. Militarv Commission NO.2 decision was reversed. According to the SC, civilians who are placed on trial for civil offenses under general law are entitled to trial by judicial process. Since we are not enemy-occupied territory nor are we under a military govt. and even on ~he premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. "The presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminshed salary and nurtured by the judicial tradition, but is a military officer. Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct cOlT)mandand authority over its members is a pervasive one in military laws, despite strenuous efforts to eliminate the danger. (9) Emergency powers Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, 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. This grant of emergency power to the President is different from the Commander-inChief clause. When the President acts under the Commander-in-Chief clause, he acts under a constitutional grant of military power, which may include the law-making

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power. But when the President acts under the emergency power, he acts under a Congressional delegation of law-making power. The scope of the grant is such "powers necessary and proper to carry out a declared national policy." Under the 1935 Constitution, this was construed the power to issue rules and regulations to carry out the declared policy. The 1987 Constitution, it is submitted, does not change the scope. "Power necessary and proper" should mean legislative power, because Congress is only allowed to delegate legislative power, being its only inherent power. Its other powers are only granted to it by the Constitution, andrso it cannot delegate what has only been delegated to it. This power is (1) for a limited period, and (2) subject to such restrictions as Congress may provide. The power ceases (a) upon being withdrawn by resolution of the Congress, or, if Congress fails to adopt such resolution, (b) upon the next (voluntary) adjournment of Congress. For the fact that Congress is able to meet in session uninterruptedly and adjourn of its own will proves that the emergency no longer exists is to justify the delegation. This rule or the termination of the grant of emergency powers is based on decided cases, which in turn became Art. VII, Sec. 15 of the 1973 Constitution. In Araneta v. Dinglasan, 84 Phil 368 (1949), the Congress granted the President emergency powers to fix rentals of houses. After the war, Congress held a special session. The SC held that the emergency power lasted only until Congress held its regular session. The fact that Congress could now meet meant that there was no emergency anymore tha~ would justify the delegation.

In the cases of Rodriguez v. Treasurero, involving the law made by Pres. Quirino appropriating the sum of money for the operation of the government; Barreda v. COMELEC, involving another law made by Pres. Quirino appropriating an amount to defray the expenses for an election, and Guevarra v. Col/ector of Customs, involving a regulation of export, the SC held that the emergency power that enabled the President to legislate ceased the moment Congress could meet in regular session. At the very least, said the SC in Rodriguez v. Gel/a, 92 Phil 603 (1953), it should cease upon the approval of a resolution by Congress terminating such grant. In this case, the Congress enacted a bill precisely terminating the grant of emergency power, but this was vetoed by the President. The SC ruled that the vetoed bill should be deemed a resolution that terminates the grant.
Araneta v. Dinglasan, 84 Phil 368 (1949) FActS: The petitions challenge the validity of EOsof the Pres. avowedly issued in virtue of CA 671. They rest their case chiefly on the proposition that the Emergency Powers Act (CA 671) has ceased to have any force and effect. CA 671 became inoperative when Congress met in regular session on 5/25/46, and the Executive Orders were issued without authority of law.
HELD:

CA 671 does not in term fix the duration of its effectiveness. The intention of the Act has to be sought for in its nature, the object to be accomplished, the purpose to be subserved, and its relation to the Constitution. Art. VI of the 1935 Constitution provides that any law passed by virtue thereof should be "for a limited period." The words "limited period" are beyond question intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency powers, "must. be temporary or it can not be said to be'an emergency." It is to be presumed that CA 671 was approved with this limitation in view. The opposite theory would make the law repugnant to the Constitution, and is contrary to the principle that the legislature is deemed to have full kf10wledgeof the constitutional scope of its powers. The assertion that new legislation is needed to repeal the act would not be in harmony with the Constitution either. If a new and different law were necessary to

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 55 of 73 terminate the delegation, the period for the delegation would be unlimited, indefinite, negative and uncertain; "that which was intended to meet a temporary emergency may become permanent law," for Congress might not enact the repeal, and even if it would, the repeal might not meet with the approval of the President, and the Congress might not be able to override the veto. Further, this would create the anomaly that, while Congress might delegate its powers by simple majority, it might not be able to recall them except by a 2/3 vote; . Rodriguez v. Gella, 92 Phil 603 (1953) FACTS: On 12/16/41, CA 671 was approved declaring a state of total emergency as a result of war involving the Philippines and authorizing the President to promulgate rules and regulations to meet such'emergency." In 1949, the SC decided that said emergency powers ceased as early as 1945. Here, the issue again is whether or not CA 671 is still effective. It appears that in 1952, the President issued EOs 545 and 546 (for appropriation of funds for public works and for relief in the provinces and cities visited by typhoons, floods, etc.) The Congress passed House Bill 727 declaring that "was has long ended" and that the "need for the grant of such unusual powers to the President has disappeared," and for that reason, Congress repealed all the Emergency PowersActs of the President. However, this was vetoed by the President. Petitioners seek to invalidate said EOs. HELD: Although House Bill 727, has been vetoed by the President and. did not thereby become a regular statute, it may at least be considered as a concurrent resolution of the Congress formally declaring the termination of the emergency powers. To contend that the Bill needed presidential acquiescence to produce effect, would lead to the anomalous, if not absurd situation that, "while Congresswhile delegate its powers by a simple majority, it might not be able to recall them except by 2/3 vote.

Notice the apparent inconsistency between the Constitution and the cases. The Constitution [Art. VI, Sec. 23 (2)] states that the emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress whereas the cases tell us that the emergency powers shall cease upon resumption of session. To reconcile the two, I believe that it would not be enough for Congress to just resume session in order that the emergency powers shall cease. It has to pass a resolution withdrawing such emergency powers, otherwise such powers shall cease upon the next adjournment of Congress.
Bariol/gay: David v. Macapagal-Arroyo, GR No. 171396, May 3, 2006

HELD: The pertinent provision of PP 1017 states: x x x 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 XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads: sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. What could be the reason of PresidentArroyo in invoking the above provision when she issued PP 1017? The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress, to take over or direct the operation privately-owned public utility or business affected with public interest of any

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional Convention. In effect at the time of its approval was Preside~t Marcos' Letter of Insti'uction NO.2 dated September 22, 1972 instructing the Secretary of National Defense to take over "the
management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone

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

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's emergency powers. This is an area that needs delineation. A di~tinction must be drawn between the President'sauthority 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 issuesarise. Section 23, Article VI of the Constitution reads: SEC. 23. (l) The Congress, by a vote of two-thirds of both Houses in joint 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 necessaryand 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 cif the above provision refers not only to war but also to "other national emergency." If the intention of the Framers of our Constitution was to withhold from the Presildentthe authority to declare a "state of national emergency" pursuant to Section 18, Article VII (callingout 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 privqtely owned public utility or business. affected with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. 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 SectiQn 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 ieposed 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 Congressto grant emergency powers to the President. subject to certain conditions, thus:

(l) There must be a war or other emergency. (2) (3) The delegation must be for a limited period only. The delegation must be subject prescribe. to such restrictions as the Congress may

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

policy declared by

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 und~r 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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College of Law Page 57of73 Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Sheet & Tube Co. et at. v. sawyer, held:
Youngstown

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. This is evident in the Recordsof the Constitutional Commission,thus: MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears in section 13, page 5? It reads: When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities

or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots? MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency:' MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. xxx xxx MR.TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic emergency?

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MR. VILLEGAS. Yes, it could refer to bothmilitaryor economic dislocations. MR.TINGSON. Thank you very much. It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the Presidentthe power to take over privately-owned public utility or business affected with public interest.
./

In Araneta v. Ding/asan, this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congresseven in times of crisis. After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the Constitution has set up this form of government, with (III its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to another department, unless we regard as legislating the carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances the various branches, executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and discharge the responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this

Courtrulesthat suchProclamation doesnot authorizeher duringthe emergency to temporarily take overor directthe operationof any privatelyownedpublicutility or business affectedwith publicinterestwithoutauthorityfrom Congress.
Let it be emphasized that while the Presidentalone can declarea state of national emergency,

however,without legislation,he has no power to take over privately-ownedpublicutility or business affectedwith publicinterest.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 businessesaffected 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.

(10') Contracting and guaranteeing

foreign loans

Art. VII, Sec. 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 Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government, or government-owned or controlled corporations, which would have the effect of increasing the foreign debt, and containing other matters provided by law. Art. XII, Sec. 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.

1st

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Republic Act 4860

AN ACT AUTHORIZING THE PRESIDENT OF THE PHILIPPINES TO OBTAIN SUCH FOREIGN LOANS AND CREDITS, OR TO INCUR SUCH FOREIGN INDEBTEDNESS, AS MAY BE NECESSARY TO FINANCE APPROVED ECONOMIC DEVELOPMENT PURPOSES OR PROJECTS, AND TO GUARANTEE, IN BEHALF OF THE REPUBLIC OF THE PHILIPPINES, FOREIGN LOANS OBTAINED OR BONDS ISSUED BY CORPORATIONS OWNED OR CONTROLLED BY THE GOVERNMENT OF THE PHILIPPINES FOR ECONOMIC DEVELOPMENT PURPOSES INCLUDING THOSE INCURRED FOR PURPOSES OF RELENDING TO THE PRIVATE SECTOR, APPROPRIATING THE NECESSARY FUNDS THEREFORE, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Sec. 1. The President of the Philippines is hereby authorized in behalf of the Republic of the Philippines to contract such loans, credits and indebtedness with foreign governments, agencies or instrumentalities of such foreign governments, foreign financial institutions, or other international organizations,- with whom, or belonging to countries with which, the Philippines has diplomatic relations, as may be necessary and upon such terms and conditions as may be agreed upon, to enable the Government of the Republic of the Philippines to finance, either direGtly or through any government office, agency or instrumentality or any government-owned or controlled corporation, industrial, agricultural or other economic development purposes or projects authorized by law: Provided, That at least seventy-five per cent shall be spent for purposes of projects which are revenue-producing and self-liquidating, such as electrification, irrigation, river control and drainage, telecommunication, housing, construction and impl-ovement of highways and bridges, airports, ports and harbors, school buildings, water works and artesian wells, air navigation facilities, development of fishing industry, and other: Provided, That such foreign loans shall be used to meet the foreign exchange requirements or liabilities incurred in connection with said development projects to cover the cost of equipment, related technical services and supplies, where the same are not obtainable within the Philippines at competitive prices as well as part of the peso costs, other than working capital and operational expenses not exceeding twenty per cent of the loan: Provided, further, That in the case of roads, bridges, irrigation, portworks, river controls, airports and power, the amount shall not exceed seventy per cent of the loan. The authority of the President of the Philippines as herein provided shall include the power to issue, for the purposes hereinbefore stated, bonds for sale in the international markets the income from which shall be fully tax exempt in the Philippines. Sec. 2. The total amount of loans, credits and indebtedness, excluding interests, which the President of the Philippines is authorized to incur under this Act shall not exceed one billion United States dollars or its equivalent in other foreign currencies at the exchange rate prevailing at tlile time the loans, credits and indebtedness are incurred: Provided, however, That the total loans, credits and indebtedness incurred under this Act shall not exceed two hundred fifty million in the fiscal year of the approval of this Act, and two hundred fifty million every fiscal year thereafter, all in United States dollars or its equivalent in other currencies. All loans, credits and indebtedness under the preceding section shall be incurred only for particular projects in accordance with the approved economic program of the Government and after the plans for such projects shall have been prepared by the offices or agencies concerned, recommended by the National Economic Council and the Monetary Board of the Central Bank of the Philippines, and approved by the President of the Philippines. Sec. 3. The President of the Philippines is, likewise, hereby authorized, in behalf of the Republic of the Philippines, to guarantee, upon such terms and conditions as may be agreed upon, foreign loans extended directly to, or bonds for sale in international markets issued by, corporations owned or controlled by the Government of the Philippines for industrial, agricultural or other economic development purposes or projects authorized by law, such as those mentioned in Section one of this Act, including the rehabilitation and modernization of the Philippine National Railways, the cash capital requirements of the Land Bank, electrification, irrigation, river control and drainage, telecommunication, housing, construction and/or improvement of highways, housing, construction and/ or improvement of highways, airports, ports and harbors, school buildings, waterworks and artesian wells, air navigation, development of the fishing industry, iron and nickel exploitation and development, and others: Provided,

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, PU.P. College of Law Page 60 of 73 That at least seventy five per cent shall be spent for purposes or projects which are revenueproducing and self-liquidating. The loans/ or bonded indebted[less of government-owned or controlled corporations which may be guaranteed by the President under this Act shall include those incurred by government-owned or controlled financial institutions for the purpose of relending to the private sector and the total amount thereof shall not be more than five hundred million United States dollars or its equivalent in other foreign currencies at the exchange rate pre'lailing at the time the guarantee is made: Provided, That the government-owned or controlled financial institutions shall re-Iend the proceeds of such loans and/ or bonded indebtedness to Filipinos or to Filipino-owned or controlled corporations and partnerships, at least sixty-six and two-thirds per centum of the outstanding and paid-up capital of which is held by Filipinos at the time the loan is incurred, such proportion to be maintained until such time as the loan is fully paid: Provided, however, That during anytime that any amount of the loan remains outstanding, failure to meet with the capital ownership requirement shall make the entire ioan immediately due and demandable, together with all penalties and interests, plus an additional special penalty of two per centum on the total amount due.

Sec. 4. The implementation of this Act shall be subject to, and governed by, the provisions of Executive Order 236, dated February 13, 1957, prescribing procedures for the planning of development finances, the issuance of government securities, and the disbursement of proceeds and creating the Fiscal Policy Council and the Technical Committee on Development Finance, as amended by Executive Order No. 236, dated May 26, 1966, not inconsistent with this Act, which are hereby adopted by reference and made an integral part of this Act. Sec. 5. It shall be the duty of the President, within thirty days after the opening of every regular session, to report to the Congress the amount of loans, credits and indebtedness contracted, as well as the guarantees extended, and the purposes and projects for which the loans, credits and indebtedness were incurred, and the guarantees extended, as well as such loans which may be reloaned to Filipino-owned or controlled corporations and similar purposes. Sec. 6. The Congress shall appropriate the necessary amount of any funds in the National Treasury not otherwise appropriated, to cover the payment of the principal and interest on such loans, credits or indebtedness as and when they shall become due. Sec. 7. This Act shall take effect upon its approval.
Approved, September 8, 1966.

Does Congress have to be consulted by the President when he contracts or guarantees foreign loans that increase the foreign debt of the country?
The affirmative view cites Art. VI, Sec. 24 which holds that all bills authorizing increase of ~he public debt must originate exclusively from the House of Representatives, altHough the Senate may propose or concur with amendments. The negative, and stronger view, is that the President does not need prior approval by Congress because the Constitution places the power to check the President's power on the Monetary Board and not on Congress. Congress may, of course, provide guidelines for contracting or guaranteeing foreign loans, and have these rules enforced through the Monetary Board. But that Congress has prior approval is a totally different issue. At any rate, the present power, which was first introduced in the 1973 Constitution, was based on RA 4860 or the Foreign Loan Act. What used to be a statutory grant of power is now a constitutional grant which Congress c,!nnot take away, but only regulate.

(11)

Powers over foreign affairs (a) Treaty-making

Art. VII, Sec. 21. power

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.

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Q. Who has the power to ratify a treaty? A. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or \I)Iithholding its consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makahayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Bane [Buena]) By reason of the President's unique position as head of state, he is the logical choice as the nation's spokesman in foreign relations. The Senate, on the other hand, is granted the right to share in the treaty-making power of the President by concurring with him with the right to amend. Treaty distinguished from executive agreements Executive agreements entered into by the President need no concurrence. The reason is that although executive agreements are a kind of international agreements, when the Constitution intends to include executive agreements, it says so specifically, as in Art. VIII, Sec. 5, par. 2, when it speaks of the power of the SC to review final judgments of lower courts in cases in which the constitutionality or validity of any treaty, international or executive agreement, is in question.
I

In holding that treaties are formal documents which require ratification with approval of the Senate, while executive agreements become binding through executive action without need of a vote by the Senate, the SC in Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), said that the difference between a treaty and an executive agreement is that a treaty is an international agreement involving political issues or changes of national policy and those involving international arrangements of a permanent character, while an executive agreement is an international agreement embodying adjustments of detail carrying out well-established national policies and traditions; and those involving arrangements of a more or less temporary nature. Examples of treaties are an agreement on tax, extradition, alliance. Examples of executive agreements are agreements relating to postal conventions, tariff rates, copyright, most-favored nation clause.
Commissioner
I

of Customs v. Eastern Sea Trading,

3 SCRA 351 {1961}

FACTS: Respondent Eastern was the consignee of several shipment of onion and garlic which arrived at the port of Manila from 8/5 to 9/7/54. Some shipments came from Japan and others from HK. Inasmuch as none of the shipments had the certificate required by CB Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of Sec. 1363 (f) of the Rev. Adm. Code, in relation to the said circulars. said goods were then declared forfeited in favor of the govt by.the Commissioner of Customs-- the goods having been, in the meantime, released to the consignees on surety bonds. On review, the Court of Tax Appeals reversed the Commissioner of Customs and ordered the aforementioned bonds to be cancelled and withdrawn. According to the erA, the seizure and forfeiture of the goods imported from Japan cannot be justified under EO 238, not only because the same seeks to implement an Executive Agreement-extending the effectivity of our Trade and Financial Agreements w/ Japan-- which agreement, is of dubious validity xxx owing to the fact that our senate had not concurred in the making of said Executive Agreement. HELD: The concurrence of said House of Congress is required by the Constitution in the making of "treaties", which are, however, distinct and different from "executive agreements," which may be validly entered into w/o such concurrence. [Thercourt went on to distinguish a treaty from an executive agreement.] The agreement in question, being merely an executive agreement, there is no requirement of concurrence.

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USAFFEVeterans Assn. v. Treasurer, 105 Phil 1030 FACTS: The central issue in this case concerns the validity of the Romulo-Snyder Agreement (1950) whereby the Philippine Government undertook to return to the US Government in ten annual installments, a total of $35 M dollars advanced by the US to, but unexpended by, the National Defense Forces of the Philippines. The USA~FEVeterans contended that the money delivered by the US were straight payments for military services and that therefore there was nothing to return to the US and nothing to consider as a loan. They also contended that the Romulo-SynderAgreement was void for lack of authority of the officers who concluded the same.
HELD: The funds involved have been consistently regarded as funds advanced and to be subsequently accounted for. Such arrangement therefore includes the obligation to return the unexpended amounts.

In this case, President Quirino approved the negotiations. He had power to contract loans under RA 213 amending RA 16. As to the contention that the agreement lacks ratification by the Senate, it was held that the yearly appropriations by Congressof funds as compliance with the agreement constituted ratification. But even if there was no ratification, the agreement would still be valid. The agreement is not a "treaty" as the term is used in the Constitution. The agreement was never submitted to the Senate for concurrence. It must be nQted that a treaty is not the only form that an international agreement may assume. For the grant of treaty making power to the Executive and the Senate does not exhaust the power of the govt. over international relations. Consequently, executive agreements may be entered into with other states and are effective even without the concurrence of the Senate. From the point of view of international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the hegotiating functionaries have remained within their powers. The distinction between an executive agreement and a treaty is purely a constitutional one and has no international legal significance. In the case of Altman vs Us, it was held that an international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty internationally although as an executive agreement, it is not technically a treaty requiring the advice and consent of the Senate. Nature of Executive Agreements: There are 2 classes : (1) agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements, and (2) agreements entered into in pursuance of acts of Congress, or CongressionalExecutive Agreements. The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on Sept. 18, 1946, Congress specifically authorized the President to obtain such indebtedness wi the Govt of the US, its agencies or instrumentalities. Even assuming, arguendo, that there was no legislative authorization, it is hereby maintained that the Romulo-Snyder Agreement was legally and validly entered into to conform to the second category. This 2nd category usually includes money agreements relating to the settlement of pecuniary claims of citizens. CIRv. Gotamco, 148 SCRA 36 (1987) FACTS: The World Health Organization (WHO) is an international organization which has a regional office in Manila. It enjoys privileges and immunities which are defined in the Host Agreement entered into between the Philippines and the said organization. One of the provisions is that WHO shall be exempt from all direct and indirect taxes. When it decided to construct a building to house its own offices, it entered into a further agreement with the govt. exempting it from paying duties on any importation of materials and fixtures required for the construction. WHO informed the bidders that it was exempt from the payment of all fees, licenses and taxes and that their bids should not include such items. However, the CIR demanded from its contractor, Gotamco, the payment of 3% contractor's tax. The CIR questions the entitlement of the WHO to tax exemption, contending that the Host Agreement is null and void, not having been ratified by the Philippine Senate.
HELD: While treaties are required to be ratified by the Senate, less formal types of international agreements
I

may be entered into by the Chief Executive and become binding without the concurrence of the legislative body. The Host Agreement comes within the latter category. It is a valid and binding international agreement even without the concurrence of the Philippine Senate.
I

BAYAN v. Exec. sec. zamora, 342 SeRA 449 (2000) ISSUE: Which provision of the Constitution applies with regard to the exercise by the Senate of its constitutional power to concur with the Visiting ForcesAgreement (VFA)?

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

Section 21, Article VII x x x reads: "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:' Section 2S, Article XVIII, provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." Section 21, Article VII deals with treaties or international agreement? in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All trea~es or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be vali~ and effective. In contrast, Section 2S, Article XVIII is a special provision that applies to treaties which involve the presence . of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 2S, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippinesonly by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting State. It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 2S contains the phrase "shall not be allowed:' Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 2S, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, section 2S, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat general;'

(b) Deportation

of undesirable

aliens

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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Col/onto, Jr 1" Semester, SY 2012-2013, P.U.P. Col/ege of Law Page 64 of 73

In Go Tek v. Deportation Board, 79 SeRA 17 (1976),the SC upheld the President's power to order the deportation of an alien under Sec. 69 of the Revised Administrative Code. He need not wait for the pending case to end in conviction. He may, even during the pentJency of the case, order the deportation if he thinks he is undesirable to national interest. This decision to deport, said the Court, is an act of State.
Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1963)

FACTS: On 5/12/52, Special Prosecutor Galang charged petitioners before the Deportation Board with having purchased dollars in the total sum of $130,000, without having the necessary license from the CB, and of having clandestinely remitted the same to HK; and petitioners with having attempted to bribe officers of the Philippine and US Governments in order to evade prosecution for said unauthorized purchase of US dollars. Following the filing of said deportation charges, a warrant for the arrest of said aliens was issued by the presiding officers of the Deportation Board. Petitioners contest the power of the President to deport aliens and, consequently, the delegation to the Deportation Board of the ancillary power to investigate, on the ground that such power is vested in the Legislature. It is claimed that for the power to deport aliens be exercised, there must be a legislation authorizing the same. HELp: Under CA 613, the Commissionerof Immigration was empowered to effect the arrest and expulsion of an alien, after previous determination by the Board of the existence of ground or grounds therefore. 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 Commissioneralone. While it may really be contended that Sec. 52 of CA 613 did not expressly confer on the President the authority to deport undesirable aliens, 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 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. Under the present and existing laws, therefore, deportation of an undesirable alien may be effected in 2 ways: (1) by order of the President, after due investigation, pursuant to. Sec. 69 of RAC, and (2) by the Commissioner of Immigration, upon recommendation of the Bd. of Commissioners, under Sec. 37 of CA 613.
may be delegated to the Deportation Board -- The President's power ,of investigation may be delegated. This is clear from a reading of Sec. 69 of the RACwhich provides for "a prior investigation, conducted by said Executive or his authorized agent xxx the Deportation Board has been conducting the investigation as the authorized agent of the Pres. xxx President's power of investigation
J

PoWer to arrest aliens. -- Sec. 69 of the RACdoes not provide for the exercise of the power to arrest. The

contention xxx that the arrest of a foreigner is necessaryto carry into effect the power of deportation is valid only when there is already an order of deportation. To carry out the order of deportation, the President obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensablethat the alien be arrested.
Power to order arrest of alien may not be delegated to Deportation Board by President. -- Conceding without deciding that the President can personally order the arrest of alien, yet such power cannot be delegated by him to the Deportation Board. 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. xxx And authorities are to the effect that while ministerial duties may be delegated, official functions requiring the exercised of discretion and judgement may

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

FACTS: Petitioner was arrested for possession of fake dollars and prosecuted under Art. 168 RPC. At the sam~ time, deportation proceedings were brought against him. He filed a petition for prohibition against the Deportation Board, contending that he could only be deported on grounds enumerated in Sec. 37 (3) of the Immigration Law (of which possession of fake dollars is not) and only after conviction. The CFI-Manila sustained his contention. HELD: The President's power to deport aliens derives from Sec. 69 of the Rev. Adm. Code w/c does not specify the grounds for deportation of aliens but only provides that it be ordered after due investigation. The

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1sf Semester, SY 2012-2013, P.V.P. College of Law Page 65 of 73
intention is to give the Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to affect or inure the security, welfare, or interest of the State. The Chief Executive is the sole and exclusive judge of the existence of facts w/c warrant the deportation of aliens as disclosed in an investigation.
I

(12) Power over legislation

(a) Message to Congress

Art. VII, Sec. 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. Every 4th Monday of July, the President delivers the State of the Nation Address (SONA), which contains his proposals for legislation. Through this speech, he can influence the course of legislation that Congress can take d~ring the regular session. (b) Prepare and submit the budget Art. VII, Sec. 22. The President shall submit to Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. The budget is the plan indicating the (a) expenditures of the government, (b) sources of financing, and (c) receipts from revenue-raising measures. This budget is the upper limit of the appropriations bill to be passed by Congress. Through the budget, therefore, the President reveals the priorities of the government.

(c) Veto power

Art. VI, Sec. 27 (1) Every bill passed by the Cong'ress 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 objection 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 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. ! As a general rule, all bills must be approved by the President before they become law, except when (i) the veto of the President is overridden by 2/3 vote, and (ii) the bill passed is the special law to elect the President and Vice-President. This gives the President an actual hand in legislation. However, his course of action is only to approve it or veto it as a whole. (See Legislative Power of Congress)

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(d) Emergency Power

Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, 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. (See Previous Notes) (e) Fixing of tariff rates

Art. VI, Sec. 28. xxx . 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. The reason for the delegation is the highly technical nature of international commerce, and the need to constantly and with relative ease adapt the rates to prevailing commercial standards. (13) Immunity from suit

The SC has affirmed time and again the doctrine of the President's immunity from suit. In a resolution in Carillo v. Marcos, (April 1981) and in the later case of In re Bermudez (October 1986), the Court said that it is "elementary that incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure."
Estrada v. Desierto, G.R. Nos. 146710-15, DiSQUSS our legal history on executive March 2, 2001, en Bane [Puno]}

immunity.

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

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

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1st Semester, SY 2012-2013, P.U.P. College o/Law Page 670/73 official duty, any more than it can a member of the Philippine Commission or the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the GovernorGeneral, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as Governor-General but as a private individual, and, as such, must answer for the consequencesof his act." Mr. Justice Johnson underscored the consequencesif the Chief Executive was not granted immunity from suit, viz: "x x x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself." . Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution." In his second Vicente G. Sinco Professorial Chair Lecture entitled, "Presidential Immunity And All The King's Men: The Law Of Privilege As A Defense To Actions For Damages," (62 Phil. L.J. 113 [1987]) petitioner's learried counsel, former Dean of the UP.College of Law, Atty. Pacifico Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines though, we sought to do the American one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only from civil claims but also from criminal cases and other claims. second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasang Pambansa sought the repeal of tlJis Marcosian concept of executive immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong." The effort failed. The .1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution.
I

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 68 of 73 David v. Macapagal-Arroyo, GR No. 171396, May 3,2006
HELD: Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine 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.

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

1. 1ihe singular importance of the Presidency and his high visibility.

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

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

peril

In Harlow v. Fitzgerald, however, the SC ruled that Cabinet members and senior aides sued for the same act as in Nixon v Fitzgerald only enjoy "qualified immunity." This immunity is less than absolute, and yet it would enable them to defeat unsubstantiated claims without resorting to trial. They are allowed to show i11a preliminary manner that the claim is unsubstantial. Q: Does the President's immunity from suit extend to his alter egos? A:

f'J0'

Carillo v. Marcos, Res. of April 4, 1981

HELD: The President as such cannot be sued, enjoying as he does immunity from suit, but the validity of his acts can be tested by an action against the other executive officials or such independent constitutional agencies as the Commission on Elections and the COmmissionon Audit.

In re: Saturnino V. Bermudez, 145 SCRA 160 (1986) FACTS: In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first par. of Sec. 5 of Art. VIII of the proposed 1986 COnsti.,wlc provides: "Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election, is for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. Claiming that the said provision is not clear as to whom it refers, he then asks the Court "to declare and ansWer the question of the construction and definiteness as to who, among the present incumbent Pres. Aquino and Vice-Pres. Laurel and elected Pres. Marcos and Vice-Pres. Tolentino being referred to under the said provision.
HELD:

This petition is dismissed outright for lack of jurisdiction and lack of cause of action.

Prescinding from the petitioner's lack of capacity ,to sue, it is elementary that this COurt assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit

Handout No. 6 - Executive Department Constitutional Law 1 - Atty. Rene Callanta, Jr 1" Semester, SY 2012-2013, P.U.P. College of Law Page 69 of 73 against the incumbent Pres. Aquino and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. Soliyen v. Makasiar; Beltran v. Makasiar, 167 SCRA 393 (1988) FACTS: This is the libel case involving Beltran's allegations that President Aquino was hiding under her bed. One of the issues was whether the President may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. According to Beltran, the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit. He contended that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the TC's jurisdiction. This would be an indirect way of defeating her privilege of immunity from suit, since by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. . HELD: The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a crim!'nal case where the President is a complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against the accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. The President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by another person.

Q: Does the President's immunity from suit extend even beyond A: Yes. So long as the act was done during his term.
Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, En Bane [Puno]

his term?

Can former President Estrada still be prosecuted criminally considering that he was not convicted in the impeachment proceedings against him?
HELD: 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." 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. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him x x x. This is in accord with our ruling in In Re: saturnino Bermudez that "incumbent Presidents are immune 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.

(14/) Executive Privilege

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

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calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arise. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, it is difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for inspection with all the protection that the court will be obliged to provide. 2. VICE PRESIDENT A. QUALIFICATIONS, ELECTION, TERM AND OATH Art. VII, Sec. 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.

Id., Sec. 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. X x x 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 provinces 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 election (w/c is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and 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 (i.e., tally. the certificates of canvass) the votes. The persons 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 (tie), one of them shall forth with be chosen by the vote of a majority of all the members of Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates.

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The Supreme Court, sitting en bane, 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.

Id., Sec. 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 VicePresident or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So help me God." (In case of 'affirmation, last sentence will be omitted.) B. PRIVILEGE AND SALARY Art. VII, Sec. 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 increased was approved. They shall not received during their tenure any other emolument from the Government or any other source. C. PROHIBITIONS Art. VII, 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. X x x D. SUCCESSION Art. VI, Sec. 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, voting separately. Note that in case the vacancy occurs in both the offices of President and Vice-President, there is no Acting Vice-President spoken of. The reason is that the Vice-President does not have real functions when the President is around. When a vacancy occurs in both offices, the Vice-President is elected in a special election. If the vacancy occurs only in the Vice-Presidency, the successor is not elected anymore, but merely chosen from the Congress.

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E. REMOVAL
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Art. XI, Sec. 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 or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Art. XI, Sec. 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeach,:",ent. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of 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 rElcorded. (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. F. FUNCTIONS (1) Right of succession

Art. VII, Sec. 8.

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President

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1 ,

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, Sec. 11. 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. 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 VicePresident shall immediately assume the powers and duties of the office as Acting President.
"

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. (2) Membership in Cabinet Art. VII, Sec.3. xxx The Vice-President may be appointed as member of the Cabinet. Such appointment requires no co'nfirmation.