September 15, 2017

Topics covered:

 Prohibitions (starting in Public Interest v Elma)

 Succession
 Removal
 Powers and Function of the President (very brief lang nasabi niya about this)

In the case of Public Interest v. Elma, which involves the appointment of this appointee, dili siya
mahulog under Article 7 Section 13 pero mahulog siya sa general rule, being the Article 9B Section 7 for
all appointed officials. So here, Magdangal Emma was concurrently appointed as a Chairman of PCGG
(Philippine Commission on Good Government) and also CPLC (Chief Presidential Legal Counsel). So this
appointment was being challenged for being contrary provisions of the Constitution. The general rule
under Section 7 Article 9B and the stricter prohibition under Section 13 Article 7. So here, Elma took his
office first as the chairman of PCGG and during his tenure, he was also appointed as chief president
counsel in CPLC. When he took his office as the CPLC, giwaive daw niya. Now, gichallenge iyang
appointment because of the rulings of the Supreme Court as well as the Constitutional prohibitions,
prohibiting that type of appointment. They are arguing that there is a strict prohibition against holding
multiple offices positions in the government insofar as Elma is concern. He could either be prohibited
under Section 13 Article 7 or Section 7 Article 9B. Elma on the other hand argues that dili pwede ma-
apply sa akoa ang Article 7 Section 13 because my rank as CPLC and PCGG chairman ay dili siya Cabinet
member, it is lower than those ranks na gi-enumerate under Article 7 Section 13. So, is his current
appointment unconstitutional? The court said that yes, he cannot concurrently;y hold those offices,
dapat na siya'y bitawan.

To remind the class, Article 7 Section 13 is the exception to the general rule, because that rule is stricter
and only applies to the President, Vice-President, members of the Cabinet, deputies and assistants.
Mahulog ba diri si Elma, as the PCGG chairman and CPLC?

Now, if mahulog siya sa mao nga category, is that prohibition absolute? Of course we have exceptions;
1. If that is allowed by the Constitution that he can do that
2. If he is holding that office in a de facto capacity

In the second prohibition, the general rule under Article 9B Section 7 which according to the parties is
the more applicable rule. The general rule is, for appointed officials, the second paragraph of this
section, is that, allows or permits appointed officials to hold more than one office if it is allowed by law
or required as primary function of your office. So if kani ang applicable na provision, the court said that
there is no legal objection occupying two government offices, performing the functions of both as long
as there is no incompatibility. So kung dili siya ma cover atong exception, then allowed siya by law, then
dapat dili makita na incompatible ang iyahang offices.
Now let us go to the determination whether or not the appointment of Elma here is incompatible.
Paghold ba niya sa duha ka offices, pwede ba, because it is apparently allowed by law but granting that
it is allowed by law, is there no incompatibility? How do we determine if the two offices are
incompatible? So the court said here, cited a case, niingon daw na Test of Incompatibility, it is when one
office is subordinate to the other in a sense that one office has the right to interfere with the other. So
therefore, when is there no incompatibility? When one office is not subordinate to the other, nor the
relations of one to the other are not inconsistent or repugnant.

Is there an incompatibility between the position of PCGG chairman and chief of CPLC? The answer is yes,
there is an incompatibility. Why? What is the function anyway of PCGG chairman and chief of CPLC?
CPLC, it gives an independent and impartial legal advise of the functions of the heads of various
executive departments and agencies. And also, it reviews investigations involving the heads of executive
departments and agencies. PCGG, a separate office, is an agency under the executive department and
therefore, whatever the PCGG does will be subject to the review of the CPLC because of the job of CPLC.
Therefore, the actions of the PCGG chairman is subject to the review of the CPLC and as such, Elma will
required to give his legal opinion on his own actions as PCGG chairman and review any investigations
conducted. So he cannot hold both offices kay magka conflict, for he would then be reviewing himself.

Now is the stricter rule, the exception in Article 7 Section 13 applicable to the case here? It is not
because the PCGG chairman and chief of CPLC is not a secretary or assistant of the secretary or deputy.
Wala naka enumerate sa Constitution, maski parehas ug salary grade, you are not a secretary, assistant
secretary, deputy, then you will not fall under this stricter rule. But, again, the prohibition covering Elma
here is Article 9B Section 7, he is covered by the general prohibition because he an appointed official. He
cannot as a general rule hold two or more offices that is not allowed by law, plus dapat dili siya
incompatible. Now, are the appointments here, can they be allowed granting nga gi-allow as ex-officio
capacity? The court said that they cannot, because the appointment to the position of the PCGG
chairman is not required as the primary functions of the CPLC, and vice versa. The fact also that there
are separate appointments that had been to Elma here, meaning dili gyud related tung position ni Elma
as PCGG chairman and his office as CPLC, except as to the discussion here on review and investigation.

It was clarified here kung unsa man ang position nga appropriate na maretain, because he held those
two offices and the Supreme Court decision, following the common law rule, in incompatibility of
offices, Elma had in fact vacated his first office as PCGG chairman when he accepted the second office.
So ma retain siya as CPLC, and his first office is deemed vacated. So that is the effect if you violate the
Article 7 Section 13 or Article 9B Section 7.

Now in Funa v. Agra, here, Agra is also very smart because he was appointed as both acting Secretary of
Justice, that was his first appointment, and later on, he was also appointed as acting SolGen. President
GMA appointed Agra as the acting Secretary of Justice, following the resignation of DOJ secretary. And
then four days later, she designated Agra as acting Solicitor General in a concurrent capacity. So Agra is
now holding two offices, gichallenge ang iyahang concurrent holding of these two offices even in a
designated capacity because he is not allowed to do that daw under Article 7 Section 13, that is the
basis. Agra admitted to holding the two offices concurrently so there is no question, wala niya gina deny.
However, what he is trying to impress here is dili siya macover sa prohibition kay I am only holding these
offices in an acting or temporary capacity. FOr him, the rules is only applicable if permanent ang iyahang
paghold atong office. It is argued by those challenging his appointments, the provision does not
distinguish between an appointment or designation in an acting or temporary capacity. So did the
designation, designation meaning that you ___________ are as the acting secretary of justice
concurrently with his position as acting solicitor general violate the Constitution provision on the
prohibition against dual offices of the members of the Cabinet, secretary, deputies and their assistants?
The court said yes, so the court said that the designation of Agra as acting secretary of justice
concurrently with his position as acting solgen is unconstitutional. So what office does he retain? In the
dispositive portion, the court said here that what Agra was de facto officer during his tenure as acting
secretary of justice meaning, he remains as SolGen. What is the basis of the Supreme Court for the
holding of this case, it was Section 13 Article 7, because he was already a cabinet member, as Secretary
of Justice, so he cannot hold another office unless allowed by the Constitution or unless is a primary
function of his first office.

So to refresh us, the differentiation of the general rule and the exceptions. The exceptions is what is
applicable here. So why does the Constitution laid down this very strict rule? The purpose of the
Constitution is to impose a prohibition on these people (President, VP, members of the Cabinet and
assistants, and deputies) with respect to holding offices during their tenure so that power would not be
concentrated in the executive department. This is because of the experience of the framers of the
Constitution had in the Marcos administration. So they made it to the point na maghatag ug ani na
prohibition in so far to these very powerful individuals are concerned. So in this case, Agra is adeptly
covered by this prohibition. Is Agra correct in saying that even if that is the provision, it does not apply
to him because he was only designated in a temporary capacity. Naa ba'y distinction between
permanent appointments or acting temporarily, insofar as the prohibitions is concerned.

The court said that no, text of the Section 13 Article 7 indicates that the intent of the framers was to
strictly impose this prohibition. When do you hold an office? You hold it when you occupy or possess it,
you possess it and administer it, etc. The prohibition of holding multiple offices applies to all
appointments or designation, whether or not permanent or temporary. To hold the argument of Agra to
be true would open the floodgates of circumvention of important disqualifications of officials in the
executive department. That is what they will do na lang, gusto ni President nga isa lang ka tao
ang maghead ani tanan, iacting na lang niya tanan. So that is what the Supreme Court prevented from
happening here. It does not distinguish in the provision so why will we distinguish.

Now, even if we have that rule, we already know the two exceptions to the rule: (1) if allowed by the
Constitution, (2) if you hold an office in an ex officio capacity. Are these exceptions present in this case?
The court said no. What about the ex officio capacity? Was he holding the second position/designation
of SolGen in an ex-officio capacity? The court said that it was not appointed to that position in an ex
officio capacity. Had he been appointed in an ex officio capacity, the court said that he would have been
validly authorized to concurrently hold to the two positions due to the holding of one office being the
consequence of holding the other. So what should Agra do, so that his concurrent be valid? Well, it
could have been proper if he held the second office in an ex officio capacity, unfortunately, he did not
hold the other office in an ex officio capacity.

Finally, the court said here that there is incompatibility in the two offices of the DOJ and the SolGen. The
nature and the duties of the two offices are such as to render it proper reservations of the public policy.
So what is the effect of declaration of unconstitutionality of Agra's concurrent appointment. Kay dili
man niya pwede ihold ang two offices, so he has to give one. Katong office na iyang igive up, assuming
that he knew and did not know that he was holding it illegally, we apply the doctrine that he was a de
facto officer. Meaning, who is a de facto officer? Lahi pud tong ex officio officer, this is a de facto officer.
Who is, in good faith, possess the officer and discharge the duties pertaining thereto and is legally
entitled to the emoluments of that office and may in appropriate action recover the salary increases and
other compensation. In order words, whatever Agra did before na gideclare as uncostitutional ang
iyahang appointment as secretary of justice kay valid to siya, so naa siya'y mga gihire na tao, gidawat na
salary during that time, it is allowed.

So those are the prohibitions insofar as officers in the executive department are concerned. Again, as a
general rule under Article 9B Section 7 and exception under
Article 7 Section 13.

Now we compare that of division insofar as these officer are concerned with other officials as laid down
in the Constitution. Members of Congress, we recall the provision on incompatible office and forbidden
office. For senators and members of the HR, they may hold any other office as long as they forfeit their
seat. No senators or members of the HR may hold any other office or employment in the government
during his term in the congress. So if he wants to hold that government office, he has to forfeit his seat
as an elective official. But of course, we have prohibition against these members of the congress for
filling up a forbidden office during his term so that is another prohibition for them which is different
from appointive officials.

What about members of the Constitutional Commission? Now, in the Article 7, you are not allowed to
hold, if you a cabinet member, undersecretary, you are not even allowed to hold a private office. But for
members of the congress, there is no prohibition for you as long as it is not in conflict with your duties.

Now for the members of the Constitutional Commission, COA, CSC and COMELEC. What is the
prohibition against them? It is almost similar. No member of the Constitutional Commission no matter
shall during his tenure hold any other office or employment. Wala naka distinguish diri kung private or
government, so it is both. Neither shall engage in the practice of any profession or in an active
management or any business which in any way may be affected by functions of this office nor be
financially interested.

Now, for other appointive official that we have been discussing, as a general rule Article 9B Section 7, na
naga focus sa ta sa second paragraph. How about the first paragraph of this section? "No elective official
shall be eligible for appointment or designation to any capacity to any public office or position during
tenure" so this is the general rule for the elective official.

The second paragraph pertains to appointive officials, "No appointive officials shall hold another office
in the government not of the primary function of his position."

What about the members of the Supreme Court? Under Article 8 Section 12, walay prohibition insofar as
holding offices but they cannot, members of the SC and of the other courts established by law (lower
courts) shall not be designated in any agency in performing one's judicial or administrative function.

As we learn the strict rule, what are the exceptions. In the VP, it is allowed under our constitution, he or
she is allowed to be member of the cabinet under Article 7 Section 3. Who else? The Secretary of Justice
can be a member of the JBC, he is a member of the JBC in an ex officio capacity and the third is the ex
officio duties, which is part of your duty.

Now we go to the succession, who succeeds? Succession may either be during or at the beginning at the
time of the President, naa'y musucceed sa iyaha no. So, at the beginning of the term of the President
which is on June 30, noon of that day. In Article 7 Section 7, that is that they shall, the President elect
and the VP elect, shall assume office at the beginning of the terms and that is on the noon of June 30. If
the president elect is disqualified, the VP elect pending to the qualifications of the president shall act as
president until the president elect shall have qualified, so siya sa ang mag-act. Dili pa siya ang president
kay naa pa man ang president. If the president shall not have been chosen, the VP elect shall act as
president until the president shall have been chosen and elected, acting capacity sa si VP.

When does the VP become the president? If the beginning of the term of the president elect shall not
have died or shall not be unfit, shall not become permanently disable, in that case, the VP elect shall
become president.

Now, what happens if both the president and the VP do not qualify, not chosen, or both become
permanently disabled or had died. The president of the senate or in case of his inability, the speaker of
the house of representative is the next in line, shall act as the president until a president or VP be
chosen and qualified. So kaning duha ka tao, they can never be a president or VP, they can only hold
that office in an acting capacity. In the meantime na naga act sila as president, what happens? Well, the
provision provides that the Congress shall by law provide for a time in which one as a president be
selected, until the president or VP be qualified. We have this provision, under Section 8 of Article 7 or
under Section 10 Article 6. Congress shall, at 10 o'clock of the morning of the third day after the
vacancy of the office of the president and VP occurs, convene, meaning naga act na either si senate
president or speaker of the HR, convene in accordance with it rules without a need of a call, and within 7
days enact a law calling for a special election to elect a president and VP, so that what happens when
both the president and VP are death. There will have to be a special elections.
Now, the second type of succession occurs during the term of the president, katong naga serve na siya.
It is in Section 8 Article 7, in case of death, permanent disability, removal from office. How can a
president be removed? Only by way of impeachment. Or resignation of the president. The VP shall be
the president to serve the unexpired term. For the foregoing circumstances, permanent ang vacation sa
office that is why the VP becomes the president only to serve the unexpired term.

In case of death, permanent disability, removal to office, or resignation of both the president and VP,
the senate president or the speaker of the HR shall then act as president until the president and the VP
shall be elected and qualified. So even if the vacancy occurs during the term of the president, the same
provision applies insofar as the speaker of the HR and senate president is concern. They can never be
the president, acting lang gyud ilahang kutob. There has to be a law demanding for a special elections
for the president and the VP.

The Congress by law shall provide who shall serve as president in case of death, permanent disability,
removal to office of the acting president. The acting president karun, either of the speaker of the HR and
senate president, there shall be a law to remedy the vacancy.

Now in the case of Estrada v Desierto, here we have a fallout of our former president because of his
corrupt activities, there was an impeachment case filed against. As you know, there was a People Power
2. Gloria then took her oath as the president of the Philippines, when Erap daw, resigned. Now, in the
eve of the People Power 2, Estrada left the Malacanang Palace and there was a statement from him that
he was leaving the palace and the seat of the presidency, for sake of peace and in order to begin the
healing of the nation.

So, Arroyo then discharged the duties and functions of a president and even nominated senator
Guingona as the new VP. Now, Estrada argued that he was still the president. He is now challenging the
presidency of Arroyo because according to him, he is only on leave, he did not resign and he did not
incapacitated, nagleave lang siya. And so therefore, kung nagleave lang siya, dapat president lang daw
gihapon siya. The VP cannot succeed since there is no vacancy on the office. GMA on the other hand
claims that she is correctly the president. So who is the president? Did Estrada here vacate his office?
The court said here that Estrada resigned. Resignation is when you permanently vacate your office.

What then are the elements of resignation? There are two, (1) an intent to resign and (2) acts of
relinquishment. Is there a form required when he resigns? The court said here that there is no formal
requirement, it can be oral, written or even expressed or implied as long as the resignation is clear, it
must be given effect. What test was used by the SC to determine if Estrada here resigned? It applied the
totality test, the totality of prior, contemporaneous and posterior facts and circumstances carry
material relevance on the issue. Using the test, the SC concluded that Estrada resigned as president.

What was the main piece of evidence presented here? That he had the intent to resign, and these acts
indicate that intent. There is this Angara diary, submitted by Senator Angara. What did that diary reveal?
It revealed that Estrada wanted a snap elections, and stressed that he would not be a candidate. By
proposing to hold a snap elections, he is already thinking na, "I am no longer the president" kay magpa
snap elections gud ka for the seat of the president.

Also, naa pud statement ang diary na, he was advised (Estrada) to avail a dignified exit or resignation,
and which Estrada did not resisted the idea. He expressed no objection to the suggestion of his office,
and said that he would never leave the country. He also revealed he only had 5 days left to leave the
palace. The court said that these are proof that he had reconciled with himself that he had resigned.

Now, there was letter here that surfaced. Remember that provision in which when the president writes,
to the speaker of HR or senate president, his inability. Here, there is a letter na nigawas na he is saying
that he is only on a temporary leave. "I am transmitting this declaration that I am unable to exercise the
powers and duties of my office, under Section 2 Article VII of the Constitution." So he took a temporary
leave in that sense.

Did this letter showed that what he did was a temporary leave? The court said no, first of all, the letter
daw is wrapped with mystery for it was not authenticated. Also, the mysterious letter cannot be negate
the resignation of Estrada here.

Again, in the face of that letter no na temporary leave lang siya, the operative facts are against it. Plus,
gi-confirm na pud sa lower house, support the assumption of office of Arroyo. They even confirmed that
GMA had validly nominated Guingona, and the senate as well had granted the nomination of Guingona
as the VP. So meaning kaning mga acts, show that Estrada indeed vacated his office permanently by way
of resignation.

What about the case of Borja v COMELEC. Here, there was an issue in the three term limit. But is a
broad discussion here regarding the office of the VP to that of vice mayor. Here, Capco was elected as
vice mayor of Pateros in 1988. But then, by the death of the mayor, he succeed in the office so he
became the mayor for the limited period. And then he ran two times as a mayor. Now, he sought to run
for the third time as mayor and now, his kalaban in the position argued that he already reached the
three time limit, because nagserve na siya as mayor when he succeeded Is Capco here, eligible to run as
a mayor for the third time? The court said that yes. We already discuss the concept of the three term
limit.

Now, the kalaban here, Borga argued that by analogy there is a provision in the Constitution insofar as
the VP is concerned. It says that no person was succeeded as president and had served as such for more
than 4 years shall be qualified to run in the election of the same office. Meaning, so kung more than 4
years kana as president, you cannot be reelected as president. You succeeded to that office, dili naka
pwede mareelect as president.

According to Borja here is that provision is applicable by analogy to vice mayor. The court said that there
is a difference between the succession of the VP and by the vice mayor.So what is the purpose of that
provision for the VP. The court said that it was included in the Constitution because without it, the VP
who simply steps in the presidency shall not be qualified to run for president in the event if he had
occupied that office for more than 4 years. So this is a prohibition for the VP, to run to that office. The
absence of a similar provision for local officers means that there is such distinction for those holding in
the local government. Dili sila pareho, walay same prohibition like the VP. It underscores the
Constitution intent, to cover only the terms of office in which one may have been elected for the
purpose of three term limit in the local elective officials. It cannot apply by analogy the prohibition
against the VP. It is shown by the lack of such prohibition insofar that local officers is concern.

Now, what it is that the VP who succeeded the president is ineligible for election, aside to the fact that it
was already stated in the Constitution. The court said here that, the VP in running for that position, he is
said to also seek the presidency and the electors likewise chose the VP, a candidate who they think can
fill the presidency in the event of such vacancy. So when elect the VP, we have the intention na siya ang
mupuli sa president, that he is capable of holding the office of the president. His service as a president
for more than 4 years may rightly be considered as service for the full term, because that is what we
envisioning when we voted for him.

What about the vice mayor, do we have the same intent? The court said that is not the case in vice
mayor, for such has the power and functions aside from that of the mayor. And his succession to the
mayorship in the event of vacancy is only one of his functions, it cannot be said that in running for vice
mayor, he seeks the mayorship. His assumption of the mayorship is more of a matter of chance than of
what he intended, so the service of that office shall not be applied to the application of the three term
limit.

Now, so kung naa na kay president then you are not satisfied with his performance. How can he or she
be removed? That is only by way of impeachment, under Article XI section II. The president and the VP
may be removed from office on impeachment for and conviction of the following grounds: culpable
violations of the Constitution, treason, bribery, graft and corruption, other high crimes, betrayal of
public trust. Filed in the proper committee in the lower house. Who initiates no? It is the house of
representatives, it has the exclusive power to initiate all cases of impeachment. It by way of verified
complaint. A vote of at least 1/3 of all members of the house shall be necessary to affirm a favorable
resolution of the articles of impeachment. There will be a resolution and that resolution will be affirmed,
and must be affirmed of at least 1/3 vote para mahimu siyang case na ihear sa senate.

How do you skip that endorsement? It can be done nga dili na muagi of committee, etc if that verified
complaint was filed already, na sila na mismo ang ni pirma by at least 1/3 of all the members of the
house. That complaint shall constitute as the articles of the impeachment, tried by the senate. There is
also a bar that there shall be no impeachment proceedings be initiated for the same official more than
once in a period of one year. The senate shall have the sole power to try and decide the case of
impeachment.

What is the effect if you are impeached? It will not extend further that removal from office and
disqualification of holding any office of the Republic of the Philippines. It is only after your impeachment
that you can be filed against with criminal and civil actions.

Now we go to the functions and powers of the president. In Article 7 Section 1, the executive power
shall be vested in the President of the Philippines. What is this power? It is the legal and political
functions of the president involving the exercise discretion. The power to executive, enforce, and
administer laws. That power is bestowed to the power. Are the powers of the president enumerated in
the Constitution, so much so na kung wala didto ang power, he could not exercise that? In the case of
Marcos and Manglapus, the powers of the president includes inherent, residual, and implied aggregate
powers, or such powers which are not enumerated in the Constitution or conferred by statutes. So the
general rule is that the president has the implied or residual powers.

What else does the president have aside from those powers? You are the president, you shall have
control to all the executive departments, bureaus, and offices. And incumbent upon him that he shall
ensure that the laws are faithfully executed, under Section 17.