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Article VII (Sections 17-23)

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

The President is authorized and empowered to:


 Nullify or modify acts of subordinates
 Act through agents and department heads, their acts are deemed acts of the President
 Re-organize all the executive departments, bureaus and offices
 Determine matters of policy in the executive department
Limitations:
The President must observe the limits imposed by the Constitution and Laws (Faithful
Execution Clause)
President cannot interfere with decisions of quasi-judicial bodies, even if they are
executive agencies
President merely has power of general supervision of local government units
Power of Executive Control
The President has power to reorganize executive departments, bureaus and offices
The transfer of functions of the Presidential Anti-Graft Commission (PAGC) by former President
Arroyo to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) under the
Investigative Adjudicatory Division under the Aquino Administration is not considered
unconstitutional but in accordance with the President’s authority to control all executive
departments, bureaus and offices, giving him the power to reorganize the Executive Office.
Such action by President Aquino was done in good faith for better supervision and removing the
need to set separate appropriation for another department since ODESLA is an already existing
department. (Pichay, Jr. vs Office of the Deputy Secretary for Legal Affairs)
Government-owned or controlled corporations are covered under the power of control
Joan T. Arive, Manager of Traffic-Storage Department of NAMARCO was found guilty and
dismissed from service for violation of Management Memorandum Order, directing that the
allocation and deliveries of merchandise imported under the so-called Trade Assistance Program
to its designated beneficiaries to be stopped. With an appeal to the president, NAMARCO was
petitioned to forward records of Administrative Case, eventually Arive was reinstated to office.
NAMARCO questions the president’s jurisdiction over the case of Arive which the court ruled as
valid.
GOCCs are covered under power of control; they partake of the nature of government
bureaus and offices. The President of the Philippines has authority to review and reverse the
decision of the NAMARCO Board of Directors dismissing Arive from position and to re-instate the
same falls within the constitutional power of the President over all executive departments, bureaus
and offices. (National Marketing Corporation vs ARCA)
The President must ensure that the laws be faithfully executed (Faithful Execution Clause)
The creation of the Philippine Truth Commission (EO 1) is being questioned for its constitutionality
on grounds that the President has no power to create another department or office, moreover
appropriate funds for the creation thereof. The court ruled that the creation of such Commission
is pursuant to the President’s power of control and to his obligation to ensure that laws be
faithfully executed, which is also in accordance with then President Aquino’s platform, Kung
Walang Corrupt, Walang Mahirap. The Truth Commission is an investigation panel created under
the exercise of the President’s power to conduct investigations to aid him in ensuring faithful
execution of laws. (Biraogo vs The Philippine Truth Commission)
Power to nullify or modify acts of all officers in the executive branch
The suspension of Ang-angco and eventually his relief from office by authority of the President
without going through the Civil Service Commission is ruled as invalid. The power of control is not
the source of the Executive’s disciplinary power over the person of his subordinates. Rather, his
disciplinary power flows from his power to appoint and this inherent disciplinary power has been
made subject to limitation by the legislature, providing for a civil service system whose main
feature is security of tenure. With this, no officer or employee in the Civil Service shall be
suspended or dismissed except for causes provided by law; hence the Executive has control
over the discretion of his subordinates but the legislature has control over their person.
(Ang-angco vs Castillo)
Section 187 of the Local Government Code provides for the procedure for approval and effectivity
of tax ordinances and revenue measures where the Secretary of Justice is authorized to review
the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both
of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also
permitted to substitute his own judgment for the judgment of the local government that enacted
the measure. Drilon may have set aside a tax ordinance but did not replace it with his own version.
Ruled by the Supreme Court, the act by Secretary Drilon was of mere supervision, which is to
see to it that lower officers perform their functions in accordance with law as opposed to
control, which is the power to alter, modify or set aside what a subordinate officer has done in the
performance of his duty. (Drilon vs Lim)
Power to delegate or act through agents (Doctrine of Qualified Political Agency)
Alter Ego of the President
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 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 by and
through the executive departments, and the acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the acts of the Chief Executive. The
investigation by the Secretary of Interior of the disorderly behavior of Mayor Villena is valid and
constitutional as the Secretary of Interior is considered the alter ego of the President. (Villena
vs Secretary of Interior)
The Executive Secretary is the alter ego of the President, acting by the authority of the
President, he may reverse a decision of a subordinate, in this case the Director of Lands. The
ruling, granting the sale of lot to Jose Magallanes granted by the Secretary of Agricultural and
Natural Resources is found to be valid and constitutional. (Lacson-Magallanes Co. Inc. vs Pano)
The Public Land Act, pursuant to Section 17, Article VII, states that the Director of Lands shall
have direct executive control of the survey, classification, lease, sale or any other form of
concession or disposition and management of the lands of the public domain and his decisions
as to questions of fact shall be conclusive when approved by the Secretary of Agriculture and
Natural Resources. The President has the authority to donate public land to a province,
municipality, branch or subdivision of the government, in such case the transfer or donation of
land (Camp Overton Military Reservation) to Iligan City by then President Marcos is ruled valid.
Unless the President ruled otherwise, the heads of Departments as alter ego of the
president is deemed to be the President’s own decision. (City of Iligan vs Director of Lands)
The Agreement to Arbitrate between the Republic of the Philippines through Executive Secretary
Arroyo and ABS-CBN’s Eugenio Lopez for the return of radio and television stations (Channel 2
and Channel 4) which were closed by military and taken over by Kanlaon Broadcasting System
during the Martial Law is ruled valid and constitutional. The Executive Secretary as alter ego of
the President has authority to enter into Agreement to Arbitrate. (Gascon vs Arroyo)
The Presidential Complaints and Action Committee received a case against Mondano, Mayor of
Mainit, Surigao where Governor Silvosa through Administrative Order No. 8 suspended the former
from office. The authority of the governor as well as the Provincial Board for suspending and
investigating on said complaints, being they are not of administrative nature. As ruled by the court,
cases and complaints not of administrative nature and not related to office, duties and
responsibilities are not within the scope of control of the Executive. (Mondano vs Silvosa)

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus 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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

POWERS OF THE PRESIDENT AS THE COMMANDER-IN-CHIEF OF THE ARMED FORCES


OF THE PHILIPPINES

1. HEAD OF ALL THE ARMED FORCES OF THE PHILIPPINES


BERNAS — The weight of authority favours the position that the President is NOT a member of
the armed forces but remains a civilian. The President’s duties as commander-in-chief represent
only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature.
He is elected as the highest civilian officer. This is in harmony with the principle that civilian
authority is, at all times, supreme over the military.

The President holds supreme military authority and is the ceremonial, legal and administrative
head of the armed forces.

The President has the power to direct military operations and to determine military strategy.
The President has the control and direction of the conduct of war, whether the war be declared
or undeclared.

The President of the Philippines, as the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters embraced therein and all other
territories over which it has sovereignty or jurisdiction. To carry out this important duty, the
President is equipped with authority over the Armed Forces of the Philippines (AFP), which is the
protector of the people and the state. The AFP's role is to secure the sovereignty of the State and
the integrity of the national territory.

2. CALLING-OUT POWER
The President may call out the armed forces whenever it becomes necessary to prevent or
suppress either:

a. Lawless violence(This is to be determined by the President as a matter of policy based on the


facts of each case)
b. Invasion
c. Rebellion

NACHURA — Under the calling-out power, the President may summon the armed forces to aid
her in suppressing lawless violence, invasion or rebellion; this involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of her powers. She cannot invoke a
greater power when she wishes to act under a lesser power.

Does the calling-out power extend to Officials other than the President?

No.
Kulayan, et. Al vs. Gov. Tan, et.al., GR No. 187298, July 3,2012
When the Provincial Governor of Sulu declared state of emergency in the province through
Proclamation and organized the Civilian Emergency Force (CEF), entered into by the Provincial
Government, Armed Forces and the PNP, because of kidnapping of the members of the
International Committee of the Red Cross by the Abu Sayyaf Group(ASG).

The court held that Provincial Governor does not possess the same calling-out powers as the
President and is not endowed with the power to call upon the Armed Forces at his own bidding.

In issuing the assailed Proclamation, the Governor exceeded his authority when he declared a
State of Emergency and called the Armed Forces, the police, and his own Civilian Emergency
Force. The calling-out powers contemplated in the Constitution is exclusive to the
President. An exercise by another official, even if he is the Local Chief Executive, is ultra vires
and may not be justified under Section 465 of LG Code.

Is this power subject to judicial review?

YES. The courts may look into:


a. The factual basis to see compliance with the requirements imposed by the Constitution; and
b. Whether or not the power has been exercised in a manner constituting grave abuse of
discretion (arbitrary, whimsical or capricious manner) amounting to lack or excess of jurisdiction

David vs Arroyo, G.R. No. 171396, May 3, 2006


While the Court considered the Presidents "calling-out" power as a discretionary power solely
vested in his wisdom, it stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. "This ruling is mainly a result of the Courts 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 controversies
involving rights which are legally 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.

Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000
The power of the President to keep the peace is not limited merely to exercising the Commander-
in-Chief Powers in times of exigency or to keep loading the State against external and internal
threats to existence. The President is not only clothed with extraordinary powers in times of
emergency, but also tasked with attending to the day to day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign appears on the horizon. The
President is bestowed with full discretionary power to call out Armed Forces and to determine the
necessity for the exercise of such power, as provided in the Constitution.
Can the President declare a state of rebellion or state of national emergency? Is such act
valid? What are its effects?

YES. But it does not give the President additional powers.


Sanlakas vs Reyes, G.R. No. 159085, February 3, 2004

The President’s authority to declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers.
However, a mere declaration of a state of rebellion cannot diminish or violate constitutionally
protected rights. There is also no basis for the apprehensions that, because of the declaration,
military and police authorities may resort to warrantless arrests.

3. POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS


The President may, for a period not exceeding 60 days, suspend the privilege of the writ of
habeas corpus if the following requisites are present:

a. Invasion or Rebellion
The existence of a rebellion need not be widespread or attain the magnitude of a civil war. This
is apparent from the very provision of the Revised Penal Code defining the crime of rebellion,
which may be limited in its scope to "any part" of the Philippines. (Lansang vs Garcia 1971)

b. When the public safety requires it


This is to be determined by the President as a matter of policy based on the facts of each case.

What is the writ of habeas corpus?


It is a writ directed to the person detaining another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and cause of his caption and detention, to
do, submit to, and receive whatever the court or judge awarding the writ shall consider in that
behalf.

What is the privilege of the writ of habeas corpus?


It is the right to have an immediate determination of the legality of the deprivation of physical
liberty.

NOTE: The writ is never suspended. What is suspended is the privilege of the writ. When such
suspension occurs, once the officer making the return shows to the court that the person detained
is being detained for an offense covered by the suspension, the court may not enquire any further.

Does the suspension of the privilege of the writ of habeas corpus apply to all persons?

NO. The suspension of the privilege of the writ only applies to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

Duty of the State after arrests and detention on the basis of the suspension of the privilege

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within 3 days, otherwise he shall be released.

Is this power subject to judicial review?


YES. The courts may look into:
a. The factual basis to see compliance with the requirements imposed by the Constitution; and
b. Whether or not the power has been exercised in a manner constituting grave abuse of
discretion (arbitrary, whimsical or capricious manner) amounting to lack or excess of jurisdiction

Lansang vs Garcia, G.R. No. L-33964, December 11, 1971


Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However,
the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which the Executive is supreme, as regards
the suspension of the privilege, but only if and when he acts within the sphere allotted to him by
the Basic Law, 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 the exercise of such authority, the function of the Court is merely to check — not to supplant—
the Executive, or to ascertain merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be
sure, the power of the Court to determine the validity of the contested proclamation is far from
being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated
thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the
powers of the court of origin. Under the principle of separation of powers and the system of checks
and balances, the judicial authority to review decisions of administrative bodies or agencies is
much more limited, as regards findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary basis for the contested
administrative findings; no quantitative examination of the supporting evidence is undertaken. The
administrative findings can be interfered with only if there is no evidence whatsoever in support
thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. Other
cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been
construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable mind might
accept as adequate to support a conclusion, even if other minds equally reasonable might
conceivably opine otherwise.

4. POWER TO DECLARE MARTIAL LAW


The President may, for a period not exceeding 60 days, place the Philippines or any part thereof
under martial law if the following requisites are present:
a. Invasion or rebellion, and
b. When the public safety requires it

A state of martial law does NOT suspend the operation of the Constitution nor supplant the
functioning of the civil courts nor legislative assemblies, 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 of habeas corpus
NOTE — In view of these restrictions, martial law is now a toothless power.

What is martial law?


Martial law is essentially police power. This is borne out by the constitutional text which sets down
"public safety"as the object of the exercise of martial law. Public safety is the concern of police
power. What is peculiar, however, about martial law as police power is that, whereas police power
is normally a function of the legislature executed by the civilian executive arm, under martial law,
police power is exercised by the executive with the aid of the military and in place of certain
governmental agencies which for the time being are unable to cope with existing conditions in a
locality which remains subject to the sovereignty.

It authorizes the military to act vigorously for the maintenance of an orderly civil government. The
exercise of the power which resides in the executive branch of the government to preserve order
and insure the public safety in times of emergency, when other branches of the government are
unable to function, or their functioning would itself threaten the public safety. It is the law of
necessity to be prescribed and administered by the executive power. Its object, the preservation
of the public safety and good order, defines the scope, which will vary with the circumstances and
necessities of the case. The exercise of the power may not extend beyond what is required by
the exigency which calls it forth.

Effects of martial law

It depends on the facts and circumstances of each case — with public necessity and safety as
the primary consideration.

BERNAS— What emerges from the observations on martial law as police power as well as from
the text of the Constitution is that martial law is a flexible concept. Necessity creates the conditions
for martial law and at the same time limits the scope of martial law. Certainly, the necessities
created by a state of invasion would be different from those created by rebellion. Necessarily,
therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and
degrees of emergency could not be identical under all conditions.

NOTE: Since the effectivity of the 1987 Constitution, the power to declare martial law and suspend
the privilege has been used only once. President Arroyo declared martial law in Maguindanao on
the occasion of the Ampatuan massacre but she lifted it within weeks. What Presidents have done
instead has been merely to make use of the power to call on the Armed Forces to help the police
maintain order. But this does not give them additional powers.

LIMITATIONS ON THE POWER TO SUSPEND OF THE PRIVILEGE OF HABEAS CORPUS


AND ON MARTIAL LAW
These are the limitations prescribed by the Constitution on the declaration of martial law or
suspension of the privilege of the writ of habeas corpus. It serves as a check on this broad power
of the President
1. GROUNDS —INVASION OR REBELLION, WHEN PUBLIC SAFETY REQUIRES IT
2. TIME LIMIT— 60 DAYS FROM DECLARATION
3. LEGISLATIVE REVIEW— REVIEW AND POSSIBLE REVOCATION BY CONGRESS
a) Within 48 hours from the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report in person or in writing to
the Congress.
b) The Congress, if not in session, shall, within 24 hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
c) c. 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.

NOTE: The Senate and the House of Representatives vote "jointly. "This is a departure from
the general rule that the two Houses vote separately when deciding an issue. The purpose of the
departure from the general rule is to facilitate the override of the suspension or the imposition.
d. Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

4. JUDICIAL REVIEW— REVIEW AND POSSIBLE NULLIFICATION BY THE SUPREME


COURT

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus or the extension thereof, and must promulgate its decision thereon within 30
days from its filing.

NOTE: The Supreme Court cannot act motu proprio. There must be a petition filed by any citizen.
All Filipino citizens are given legal standing to file the petition.

Power to Suspend the Privilege Writ of Habeas Corpus

Power subject to judicial review

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However,
the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which the Executive is supreme, as regards
the suspension of the privilege, but only if and when he acts within the sphere allotted to him by
the Basic Law, 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 the exercise of such authority, the function of the Court is merely to check — not to
supplant— the Executive, or to ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the validity
of the contested proclamation is far from being identical to, or even comparable with, its power
over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in
which cases the appellate court has all of the powers of the court of origin. Under the principle of
separation of powers and the system of checks and balances, the judicial authority to review
decisions of administrative bodies or agencies is much more limited, as regards findings of fact
made in said decisions.

Under the English law, the reviewing court determines only whether there is some evidentiary
basis for the contested administrative findings; no quantitative examination of the supporting
evidence is undertaken. The administrative findings can be interfered with only if there is no
evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and
obviously unauthorized. Other cases, in both jurisdictions, have applied the "substantial evidence"
rule, which has been construed to mean "more than a mere scintilla" or "relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,"even if other minds equally
reasonable might conceivably opine otherwise. (Lansang VS Garcia)

Power to declare Martial Law


The President may, for a period not exceeding 60 days, place the Philippines or any part thereof
under martial law if the following requisites are present:
a. invasion or rebellion, and
b. when the public safety requires it

A state of martial law does NOT


a. Suspend the operation of the Constitution
b. Supplant the functioning of the civil courts or legislative assemblies
c. Authorize the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function
d. Automatically suspend the privilege of the writ of habeas corpus

Failure to show that the declaration of a state of emergency in the Provinces of Maguindanao,
Sultan Kudarat and Cotabato City, as well as the President’s exercise of the calling out power
had no factual basis. It was simply alleged that, since not all areas under the ARMM were placed
under a state of emergency, it follows that the takeover of the entire ARMM by the DILG Secretary
had no basis too.

The imminence of violence and anarchy at the time the President issued Proclamation 1946 was
too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places
mentioned. Progress reports also indicated that there was movement in these places of both
high-powered firearms and armed men sympathetic to the two clans. Thus, to pacify the people’s
fears and stabilize the situation, the President had to take preventive action. She called out the
armed forces to control the proliferation of loose firearms and dismantle the armed groups that
continuously threatened the peace and security in the affected places.
Since petitioners are not able to demonstrate that the proclamation of state of emergency in the
subject places and the calling out of the armed forces to prevent or suppress lawless violence
there have clearly no factual bases, the Court must respect the President’s actions.(Ampatuan vs
Puno)

President must first exercise emergency powers as may be provided by the legislature. When
it fails, it cannot be adequate when lawless violence becomes generalized and public safety is in
jeopardy, hence the need to call out the armed forces. And when such situation still
aggravates to the point of requiring the preventive incarceration or detention of certain
leaders or over active elements, it becomes inevitable to suspend the privilege of the writ of
habeas corpus. Should matters really go out of hand even after the putting into effect of the
measures aforementioned, under the constitution, without Amendment No. 6, the only recourse
would be to proclaim martial law. But inasmuch as martial law is an extreme measure that carries
with it repressive and restrictive elements unpopular to liberty loving and democratically minded
sectors of the country, it is but natural to think of it only as a very last resort. Again, this is to avoid
the necessity of resorting to the proclamation of martial law that Amendment No. 6 was conceived.
Paraphrasing President Marcos himself, martial law is the law of the gun, that implies coercion
and an active and direct role in the government by the military. Thus, the virtue of Amendment
No. 6 is that such undesirable features of martial law do not have to accompany the exercise of
the power thereby conferred on the Executive. To be sure, the calling out of the armed forces and
the suspension of the privilege of the writ of habeas corpus, which are concomitants of martial
law, may be left out or need not be resorted to when the President acts by virtue of such power.
It is, therefore, evident that it is grossly erroneous to say that Amendment No. 6 is in reality no
less than disguised martial law. ( Legaspi vs. Minister)

Power to Organize Court Martial for the Discipline of the Members of the Armed Forces,
Create Military Commissions
Courts martial are agencies of executive character, and one of the authorities "for the ordering
of courts martial has been held to be attached to the constitutional functions of the President
as Commander in Chief, independently of legislation. The Supreme Court of the United States
referring to the provisions of the Constitution authorizing Congress to provide for the government
of the army, excepting military offenses from the civil jurisdiction, and making the President
Commander in Chief, observes as follows: "These provisions show that Congress has the power
to provide for the trial and punishment of military and naval offenses in the manner then and now
practiced by civilized nations, and that the power to do so is given without any connection between
it and the 3d Article of the United States; indeed that the two powers are entirely independent of
each other."Not belonging to the judicial branch of the government, it follows that courts-martial
must pertain to the executive department; and they are in fact simply instrumentalities of the
executive power, provided by Congress for the President as Commander in Chief, to aid him in
properly commanding the army and navy and enforcing discipline therein, and utilized under his
orders or those of his authorized military representatives. (Ruffy vs. Chief of Staff)

Due process of law demands that in all criminal prosecutions, the accused shall be entitled to a
trial. The trial contemplated by the due process clause of the Constitution is a trial by
judicial process, not by executive or military process. Military commissions are not courts
within the Philippine judicial system. Under the principle of separation of powers, judicial power is
not, and cannot, be the function of the Executive Department through the military authorities.
Whether or not martial law has been proclaimed throughout the country or over a part thereof is
of no moment. The imprimatur for this observation is found in Art VII, Sec 18 of the Constitution.( 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 creation of Military Commission No. 34 to try
civilians is declared unconstitutional and all its proceedings null and void. (Olaguer vs. Military
Commission)

Although the PNP Law was not yet in effect when Quiloña was arraigned, nevertheless, the Court
Martial knew or should have known it had already been approved by the President, that it was
already published and that it would take effect on 1 Jan 1991. It is precisely for this reason that
the Court Martial decided to have the Quiloñas Motion to inhibit argued on 28 Dec 1990 and
thereafter arraigned him on the same day despite his vehement refusal to enter a plea. Clearly,
under the circumstances obtaining, the Court Martial acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in proceeding with the arraignment. Moreover, the
civilian character with which the PNP is expressly invested is declared by the PNP Law as
paramount, and thus it mandates the transfer of criminal cases against its members to civilian
courts. (Quilona vs. General Court Martial)

Power to prevent military officers from testifying at a legislative inquiry

President has constitutional authority to do so, by virtue of her power as commander-in-chief, and
that as a consequence a military officer who defies such injunction is liable under military justice.
At the same time, we also hold that any chamber of Congress which seeks the appearance before
it of a military officer against the consent of the President has adequate remedies under law to
compel such attendance.

Any military official whom Congress summons to testify before it may be compelled to do so by
the President. If the President is not so inclined, the President may be commanded by judicial
order to compel the attendance of the military officer. Final judicial orders have the force of the
law of the land which the President has the duty to faithfully execute.As earlier noted, we ruled in
Senate that the President may not issue a blanket requirement of prior consent on executive
officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed that the privilege must
be formally invoked on specified grounds. However, the ability of the President to prevent military
officers from testifying before Congress does not turn on executive privilege, but on the Chief
Executives power as commander-in-chief to control the actions and speech of members of the
armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same
limitations as in executive privilege.. (Gudani vs Senga)

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.

Power of Executive Clemency

The President may grant the following:

1. Reprieves, commutations, and pardons, and remit fines and forfeitures


The sole prerogative of the President and may not be limited by law, granted only to convicts by
final judgment.

2. Amnesty
Requires the concurrence of a majority of all the Members of the Congress and may be extended
even if there is no final judgment.

Power to Pardon

1. Reprieves
Postpone the execution of an offense to a day certain.

2. Commutations
A remission of a part of the punishment or a substitution of a less penalty for the one originally
imposed. The commutation of the original sentence for another of a different length and nature
shall have the legal effect of substituting the latter in the place of the former.
3. Pardons
Act of grace, proceeding from the power entrusted with the execution of the laws, which exempts
the individual on whom it is bestowed from the punishment the law inflicts for a crime he has
committed.

4. Remit fines and Forfeitures


Prevents the collection of fines or the confiscation of forfeited property but, cannot have the effect
of returning properties which has been vested in third parties or money in the public treasury.

Effects of Pardon
1. Restoration of the convicts civil and political rights
GENERALLY, a pardon shall not work the restoration of the right to hold public office, or the right
of suffrage. Except, if expressly restored by the terms of pardon.
2. Acquittal of the convict
The grant of pardon is not tantamount to acquittal from the crime of the pardonee. Since pardon
implies guilt, it does not erase the fact of the commission of the crime and the conviction thereof,
does not wash out the moral stain and involves forgiveness not forgetfulness.

Monsanto vs. Factoran Jr., GR No. 78239, February 9, 1989


Petitioner Monsanto was the former Asst. Treasurer of Calbayog City, and was convicted of the
crime of estafa thru falsification of public documents. She was extended with absolute pardon by
the President which she has accepted. She requested for the restoration of her former post which
was forfeited by reason of her conviction. The Court held that having accepted the pardon,
Monsanto is deemed to have abandoned her appeal and unreversed conviction by the
Sandiganbayan.

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and
restores him to all his civil rights, but it cannot bring back lost reputation for integrity. Thus, we
hold that pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores
her eligibility for appointment to that office. She may apply for reappointment, but a pardon, albeit
full and plenary, cannot preclude the appointing power from refusing appointment to anyone
deemed to be of bad character.

3. Imposed conditions
The President has the prerogative to impose conditions on the pardon, the violation of which
results in the revocation of the pardon.

4. Administrative Cases
The Constitution provides no distinction with regard to the extent of the pardoning power except
with respect to impeachment.

Llamas vs. Orbos, GR No. 99031, October 1991


Petitioner Llamas, who was the Vice Governor of Tarlac, filed an administrative case against his
Governor for violating the Local Government Code and other laws including the Anti-graft and
Corruption Practices Act with the DILG. The Governor was found guilty and suspended for 90
days and filed for executive clemency, which was extended by the President. Petitioner contends
that the President acted with grave abuse of discretion in granting the clemency. The Court held
that the President may extend clemency in administrative cases since the Constitution did not
distinguish. If the President may grant executive clemency in criminal cases, with much more
reason can she grant the same in administrative cases, which were less serious than criminal
offenses. It is also evident from the intent of the Constitutional Commission that the President’s
executive clemency powers may not be limited in terms of coverage, except already provided in
the Constitution.

Judicial Review
Not subject to judicial review because it is the discretionary power of the Executive and it may not
be controlled by legislative or reversed by the Courts UNLESS, there is a constitutional violation.

Power to grant Amnesty

Amnesty is an act of grace concurred by the concurrence of the majority of all the Members of
the Congress, usually extended to groups of persons who committed political offenses.

Section 21. No treaty or international agreements which have not been ratified shall not be
valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

In the case of Commissioner of Customs vs. Eastern Sea Trading (EST),a shipping company
which imports from Japan onion and garlic, the Commissioner of Customs ordered the seizure
and forfeiture of the import goods because EST was not able to comply with the Central Bank
Circulars 44 and 45 requiring a license and a certificate authorizing the importation and release
of goods. Circulars 44 and 45 were in pursuant to EO 328, an implementing law of the Trades
and Financial Agreements, an executive agreement entered into between the Philippines and
Japan. EST questioned the validity of the said Executive Order.

The court ruled that executive agreements are not like treaties which are subject to the
concurrence of at least two thirds of the members of the Senate. Thus, Senate concurrence is not
required.

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments-treaties and conventions. Thus, Senate concurrence is not required. They
sometimes take the form of "exchange of notes" and at other times that of more formal documents,
denominated "agreements" or protocols.

In Bayan Muna vs. Romulo, the Republic of the Philippines through DFA Secretary Ople, and the
United States had a non-surrender agreement via E/N BFO-028-03, a recognized mode of
concluding a legally binding international written contract among nations. However, Bayan Muna
parlays the notion that the agreement is of dubious validity, partaking as it does of the nature of
a treaty, hence it must be duly concurred in by the Senate.

The court ruled otherwise. Under Article 2 of the Vienna Convention on the Law of Treaties, a
treaty is an international agreement concluded between states in written form and
governed by international law whether embodied in a single instrument or in two or more
related instruments and whatever is particular designation.

International Agreements may be in the form of treaties that require legislative concurrence
after executive ratification and executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal and deal with a narrower range
of subject matters than treaties.

The RP and the US entered into an executive agreement via E/O BFO-028-03. "Exchange of
notes" is a record of a routine agreement, that has many similarities with the private law contract.
The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent.

Signatories maybe government Ministries, diplomats or departmental heads. The technique of


"exchange of notes" Is frequently resorted to ,either because of jts speedy procedure or
sometimes to avoid the process of legislation.

The right of the executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage.

May the President be compelled to submit a treaty to the Senate for concurrence?
(Pimentel, Jr. vs Executive Secretary; )

NO. In said case, the Philippines signed the Rome Statute which established the International
Criminal Court which "shall have the power to exercise its jurisdiction over persons for the most
serious crimes of international concern and shall be complementary to the national criminal
jurisdictions." Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes
and the crime of aggression as defined in the Statute. The Statute was opened for signature by
all states in Rome on July 17, 1998 and had remained open for signature until December 31,
2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on
December 28, 2000 through Charge d’Affairs Enrique A. Manalo of the Philippine Mission to the
United Nations. Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.

Pimentel ,Jr. filed the petition for mandamus to compel the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the
Philippines for ratification. The petition was dismissed. The petitioners equate the signing of the
treaty with ratification, which are two different and distinct steps in the treaty-making process.

The signing of the treaty is primarily intended as a means of authenticating the instrument as a
symbol of good faith of the parties. The signature does not signify the final consent of the state to
the treaty. It is ratification that binds the state to the provisions thereof.

Ratification is a formal act, executive by nature, undertaken by the head of state or of the
government. The power to ratify is vested in the President, subject to the concurrence of
the Senate. The role of the Senate is limited to giving its consent or concurrence to the
ratification.

In Vinuya vs. Romulo ( G.R. No. 162230, April 28, 2010) the court decided that in the conduct of
foreign relations, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.

In the case at bar, a petition for certiorari was filed by the Malaya Lolas Organizations, a non-
stock, non-profit organization, acting on behalf of the so-called comfort women. The question
whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches.

The Executive Department in the case at bar, has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners
herein assail the said determination by the Executive Department via the instant petition for
certiorari.

The President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations. It is quite apparent that if, in the maintenance of our
international relations, embarrassment -- perhaps serious embarrassment — is to be avoided and
success for our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a degree
of discretion and freedom from statutory restriction which would not be admissible where domestic
affairs alone involved.

Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials. It is also the
President who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine,
the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs.

The Philippines is not under any intended obligation to espouse petitioners' claims. In the
international sphere, traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade a government to
bring a claim on the individual's behalf. Even then, it is not the individual rights that are being
asserted but rather, the state's own rights. Even in the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal
term describing obligations owed by States towards the community of states as a whole. The term
is closely connected with the international law concept of jus cogens. In international law, the
term jus cogens (literally, compelling law) refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the
sense that they are mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.

The Executive Department has determined that taking up petitioner’s cause would be inimical to
our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For us to overturn the Executive Departments
determination would mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally committed.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best available information and can
decide with decisiveness. (Justice Luno Reynato S. Puno's dissent in Secretary of Justice
vs.Lantion)
Section 23. The President shall address the Congress at the opening of its regular
session. He may also appear before it at any other time.

In the consolidated cases of Soliven vs. Makasiar, President Cory Aquino filed a libel suit against
Luis Beltran. However, Beltran argues that "the reasons which necessitate presidential immunity
from suit impose a correlative disability to file suit." He contends 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 trial court’s jurisdiction. This would, in an
indirect way, defeat her privilege of immunity from suit, as by testifying on the witness stand, she
would be exposing herself to possible contempt of court or perjury.

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 Presidents behalf. The
choice of whether to exercise the privilege or to waive is solely the President’s prerogative. It is a
decision that cannot be assumed and imposed by any other person.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded 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 any other person.

In Hidalgo vs Marcos, the court decided that the President cannot be compelled by mandamus or
otherwise to convene the "interim National Assembly" because inter alia, this body was abrogated
and supplanted by the interim Batasang Pambansa by virtue of the 1976 amendments to the
Constitution, particularly Amendment No. I which partly provides- that "There shall be, in lieu of
the interim National Assembly. an Interim Batasang Pambansa."

Teehankee,J. in his dissent states that the petition basically questions the validity of the October
1976 Amendments to the 1973 Constitution for not having been proposed nor adopted in
accordance with the mandatory provisions of Article XVI thereof (granting the constituent power
to the regular National Assembly) or of Transitory Article XVII, section 15 thereof (granting the
constituent power to the interim National Assembly). The petition should be granted, for as stated
in my dissenting opinion in Sanidad vs. Comelec 1, "(T)he transcendental constituent power to
propose and approve amendments to the Constitution as well as set up the machinery and
prescribe the procedure for the ratification of his proposals has been withheld from the President
(Prime Minister) as sole repository of the Executive Power, presumably in view of the immense
powers already vested in him by the Constitution but just as importantly, because by the very
nature of the constituent power, such amendments proposals have to be prepared, deliberated
and matured by a deliberative assembly of representatives such as the interim National Assembly
and hence may not be antithetically entrusted to one man."