Chapter 11 But these views have been reconsidered in favor of a
stricter interpretation of executive power. In Lacson v.
POWERS OF THE PRESIDENT
MENTION HAS ALREADY been made of the
profound influence exerted by the President as head of
State and chief executive of the Republic of the
Philippines. This influence derives from the vast powers
conferred on him that enable him to assume the
leadership in the conduct of public and governmental
affairs.
This leadership is displayed by him not only in the
enforcement of laws but also in their enactment, as well
as in the conduct of foreign affairs, the command of the
armed forces, the administration of the government and
even the crystallization of public opinion on vital issues.
Does the President enjoy the totality of executive
power? Is he authorized to exercise any power so long
as it is by nature executive? In other words, is every
power relating to the enforcement and administration of
laws to be regarded as belonging to the President by
virtue of his office?
The original view of our Supreme Court on these
questions as they applied to the President of the Philip
pines under the 1935 Constitution favored his complete
assumption of executive power. The Supreme Court
declared in Villena v. Secretary of the Interior1 that “the
President of the Philippines is the Executive of the
Government of the Philippines, and no other” and in
Planas v. Gil that “all executive authority is thus vested
in him.” These pronouncements were in keeping with
the rule announced in Myers v. United States,3 where
Chief Justice Taft held that “the words of Sec. 2
following the general grant of executive power under
Sec. 1 were either an enumeration and emphasis of
specific functions of the Executive, not all inclusive, or
were limitations upon the general grant of executive
power.” The U.S. Supreme Court cited with approval
Alexander Hamilton’s opinion that “the enumeration (of
specific executive powers) ought therefore to be
considered as in tended merely to specify the principal
articles implied in the definition of power, leaving the
rest to flow from the general grant of that power.”
Roque and Mondano v. Silvosa, for example, our
Supreme Court held that the President’s power of
general supervision over local governments could be
exercised by him only “as may be provided by law” in
accordance with the constitutional limitation.
In the famous Steel Seizure Case, President Truman’s
takeover of the steel mills to continue their operations
while the steel workers were on strike was declared
illegal in the absence of a specific constitutional or
statutory authority. The argument offered was that the
clause vesting in the President the executive power
“constitutes a grant of all executive power of which the
Government is capable.” The U.S. Supreme Court, by a
vote of 6 to 3, did not agree. “If that be true,” Justice
Black wryly commented, “it is difficult to see why our
forefathers bothered to add several specific items,
including some trifling ones ... I cannot accept the view
that this clause is a grant in bulk of all conceivable
executive power but regard it as an allocation to the
presidential office of the generic powers thereafter
stated.”
It must be noted, however, that in Marcos u.
Manglapus, the Supreme Court, declared through
Justice Irene R. Cortes:
“x x x we hold the view 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 powers enumerated in the
Constitution. In other words, executive power is
more than the sum of specific powers so
enumerated.”
This cannot be considered the last word on the matter,
though, considering the strong dissents registered in this
8-7 decision.
In fact, in the subsequent case of Laurel v. Garcia, the
Supreme Court prohibited the sale of the properties of
the Philippines at Roppongi, Japan, on the ground inter
alia that the President of the Philippines had no specific
statutory authority to sell them. This time the vote was
9-6.
It is significant though that, in the later case of
Philippine Coconut Producers Federation, Inc. v.
Republic, the Supreme Court declared that it is the
executive branch, “either pursuant to the residual power
of the President” or by force of his enumerated powers
under the laws, that has control over all matters
pertaining to the disposition of government property
including sequestered assets under the administration of
the Presidential Commission on Good Government.
“Surely,” said the Supreme Court, “such control is
neither legislative nor judicial.”
In Ople v. Torres, the Supreme Court declared “void, as
a usurpation of legislative power,” Administrative Order
No. 308, which provided for the adoption of a national
identification system “even in the absence of an enabling
legislation.”
It will be recalled that, in David v. Arroyo,“ the Court
pronounced that, although the President may call out the
armed forces and declare a state of emergency, he may
not, without a law authorizing him to do so, exercise
emergency powers under Article XII, Section 17, which
authorizes the State, during a national emergency and
under reasonable terms prescribed by it, to temporarily
take over or direct the operation of any privately owned
public utility or business affected with public interest.
That authorization was eventually conferred upon the
President when Republic Acts Nos. 3902, 7477 and 7582
were passed by Congress.
It has likewise been ruled that the President may not
amend by Executive Order the functions of the
Commission on Higher Education, as conferred upon it
by law, without prior legislative authority. Indeed, the
provision in the Administrative Code on the so-called
residual powers of the President declares that “unless
Congress provides otherwise, the President shall
exercise such other powers and functions vested in the
President which are provided for under the laws and
which are not specifically enumerated above, or which
are not delegated by the President in accordance with
law.”
In Banda v. Ermita, the Supreme Court acknowledged
that the President has the power to reorganize the offices
and agencies in the executive department in line with his
constitutionally granted power of control over executive
offices and by virtue of a previous delegation of the
legislative power to reorganize executive offices under
existing statutes.
The Administrative Code of 1987 gives the President
continuing authority to reorganize and redefine the
functions of the Office of the President. “Concomitant to
such power to abolish, merge or consolidate offices in
the Office of the President Proper and to transfer
functions/offices not only among the offices in the
Office of President Proper but also the rest of the Office
of the President and the Executive Branch, the President
implicitly has the power to effect less radical or less
substantive changes to the functional and internal
structure of the Office of the President, including the
modification of functions of such executive agencies as
the exigencies of the service may require.”
In Pichay v. Office of the Deputy Executive Secretary
for Legal Affairs Investigative and Adjudication
Division, the Court upheld the President’s abolition of
the Presidential Anti-Graft Commission (PAGC) and
his transfer of its functions to the Office of the Deputy
Executive Secretary For Legal Affairs (ODESLA)
under the Office of the President, stressing that the
President has continuing authority to reorganize the
Executive Department under Section 31, Chapter 10,
Book III of E.O. 292. “Clearly,” said the Court, “the
abolition of the PAGC and the transfer of its functions to
a division specially created within the ODESLA is
properly within the prerogative of the President under
his continuing ‘delegated legislative authority to
reorganize’ his own office pursuant to E.O. 292.”20
To stress that the President’s authority to reorganize his
office was subject to the strictures provided for under the
law, the Court even explained the distinctions between
his basic authority to reorganize the Office of the
President Proper, and his general power to reorganize
the Office of the President. Thus —
“However, the President’s power to reorganize the
Office of the President under Section 31 (2) and
(3) of EO 292 should be distinguished from his
power to reorganize the Office of the President
Proper. Under Section 31 (1) of EO 292, the
President can reorganize the Office of the
President Proper by abolishing, consolidating or
merging units, or by transferring functions from
one unit to another. In contrast, under Section 31
(2) and (3) of EO 292, the President’s power to
reorganize of ices outside the Office of the
President Proper but still within the Office of the
President is limited to merely transferring
functions or agencies from the Office of the
President to Departments or Agencies, and vice
versa.
“The distinction between the allowable
organizational actions under Section 31(1) on the
one hand and Section 31 (2) and (3) on the other is
crucial not only as it affects employees' tenurial
security but also insofar as it touches upon the
validity of the reorganization, that is, whether the
executive actions undertaken fall within the
limitations prescribed under E.O. 292 When the
PAGC was created under E.O. 12, it was
composed of a Chairman and two (2)
Commissioners who held the ranks of Presidential
Assistant II and I, respectively, and was placed
directly ‘under the Office of the President.’ On the
other hand, the ODESLA, to which the functions
 of the PAGC have now been transferred, is an
office within the Office of the President Proper.
Since both of these offices belong to the Office of
the President Proper, the reorganization by way of
abolishing the PAGC and transferring its functions
to the ODESLA is allowable under Section 31 (1)
of E.O. 292.”
In Galicto v. Aquino, the Supreme Court, while
providing for the dismissal on technical grounds of the
petition assailing the validity of an Executive Order
fixing the compensation and classification systems for
all government-owned or controlled corporations and
government financial institutions, nevertheless stressed
that the issuance of a new law vesting said power in the
President would mean that “the President can now reis
sue an EO containing these same provisions without any
legal constraints.”
On the other hand, it must be mentioned that certain
powers have been acknowledged as pertaining to the
President despite the absence of express conferments
upon him of the same. Thus, “that the authority of the
President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution
does not mean that she has no such authority. As Chief
Executive, the President has the general responsibility
to promote public peace, and as Commander-in-Chief,
she has the more specific duty to prevent and suppress
rebellion and lawless violence.”23 Moreover, it has also
been ruled that “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.”
Likewise, in Quarto v. The Honorable Ombudsman
Simeon Marcelo, it was pronounced that “while the
legislature is the source of the power to grant immunity,
the authority to implement is lodged elsewhere. The
authority to choose the individual to whom immunity
would be granted is a constituent part of the process and
is essentially an executive function.”
It is clear, however, that the President does not have
the authority to promulgate decrees. According to the
Supreme Court in David v. Arroyo, where it declared as
unconstitutional President Arroyo’s Proclamation 1017
which authorized her to issue decrees, “legislative power
is peculiarly within the province of the Legislature” and
“neither Martial Law nor a state of rebellion nor a state
of emergency can justify President Arroyo’s exercise of
legislative power by issuing decrees.”
It clarified, however, that the President is granted
Ordinance Powers under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987)
and may issue any of the following:
Executive Orders, which are acts of the President
providing for rules of a general or permanent character
in implementation or execution of constitutional or
statutory powers;
Administrative Orders, or acts of the President which
relate to particular aspects of governmental operations
in pursuance of his duties as administrative head,
Proclamations, which are acts of the President fixing a
date or declaring a status or condition of public
moment or interest, upon the existence of which the
operation of a specific law or regulation is made to
depend, and which shall have the force of an executive
order;
Memorandum Orders, defined as acts of the President
on matters of administrative detail or of subordinate or
temporary interest which only concern a particular
officer or office of the Government;
Memorandum Circulars, which refer to acts of the
President on matters relating to internal administration,
which the President desires to bring to the attention of all
or some of the departments, agencies, bureaus or offices
of the Government, for information or compliance; and
General or Special Orders, which refer to acts and
commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the
Philippines. The Court stressed that “President Arroyo’s
ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by
former President Marcos under PP 1081.”
Following is a discussion of the specific powers vested
in the President by the Constitution.
The Appointing Power
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. It has
likewise been defined as the “act of designation by the
appointing officer, body or board, to whom that power
has been delegated, of the individual who is to exercise
the functions of a given office.” Although intrinsically
executive and therefore pertaining mainly to the
President, the appointing power may be exercised by the
legislature and by the judiciary, as well as the
Constitutional Commissions, over their own respective
personnel.
An appointment may be made verbally but is usually
done in writing through what is called the commission.
The commission is the written evidence of an
appointment.
The Constitution vests the appointing power in the
President as follows:
“Sec. 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other
officers of the Government whose appointments
are not otherwise provided for by law, and those
whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment
of other officers lower in rank in the President
alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
“The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on Appointments
or until the next adjournment of the Congress.”
This provision has not done away with the distinction
between permanent and temporary or acting
appointments. Permanent appointments are those
extended to persons possessing the requisite eligibility
and are thus protected by the constitutional provision on
security of tenure. Temporary appointments, on the other
hand, which are given to persons without such
eligibility, are revocable at will and without the
necessity of just cause or a valid investigation. They are
ex tended upon 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 final choice shall have been made by the
President.
In General v. Urro, the Supreme Court explained further
the nature of temporary appointments, and declared that
acting appointments may be made even to offices with
staggered terms. Thus —
“Generally, the power to appoint vested in the
President includes the power to make temporary
appointments, unless he is otherwise specifically
prohibited by the Constitution or by the law, or
where an acting appointment is repugnant to the
nature of the office involved. The President’s
power to issue an acting appointment is
particularly authorized by the Administrative Code
of 1987 (Executive Order No. 292). x x x.
“The purpose of an acting or temporary
appointment is to prevent a hiatus in the discharge
of official functions by authorizing a person to
discharge those functions pending the selection of
a permanent or another appointee. An acting
appointee accepts the position on the condition that
he shall surrender the office once he is called to do
so by the appointing authority. Therefore, his term
of office is not fixed but endures at the pleasure of
the appointing authority. His separation from the
service does not import removal but merely the
expiration of his term — a mode of termination of
official relations that falls outside the coverage of
the constitutional provision on security of tenure
since no removal from office is involved, x x x.
“Generally, the purpose for staggering the term of
office is to minimize the appointing authority’s
opportunity to appoint a majority of the members
of a collegial body. It is also intended to ensure the
continuity of the body and its policies. A staggered
term of office, however, is not a statutory
prohibition, direct or indirect, against the issuance
of an acting or temporary appointment. It does not
negate the authority to is sue acting or temporary
appointments that the Administrative Code grants.
“Ramon P. Binamira v. Peter D. Garrucho, Jr.,
involving the Philippine Tourism Authority (PTA),
is an example of how this Court has recognized the
validity of temporary appointments in vacancies in
offices whose holders are appointed on staggered
basis. Under Presidential Decree (P.D.) No. 189,
(the charter of the PTA, as amended by P.D. No.
564 and P.D. No. 1400), the members of the
PTA’s governing body are all presidential
appointees whose terms of office are also
staggered. This notwithstanding, the Court
sustained the temporary character of the
appointment extended by the President in favor of
the PTA General Manager, even if the law also
fixes his term of office at six years unless sooner
removed for cause. Interestingly, even a staggered
term of office does not ensure that at no instance
will the appointing authority appoint all the
members of a body whose members are appointed
on staggered basis, x x x.
“Given the wide latitude of the President’s
appointing authority (and the strict construction
against any limitation on or qualification of this
 power), the prohibition on the President from
issuing an acting appointment must either be
specific, or there must be a clear repugnancy
between the nature of the office and the temporary
appointment. No such limitation on the President’s
appointing power appears to be clearly deducible
from the text of R.A. No. 6975 in the manner we
ruled in Nacionalista Party v. Bautista. In that case,
we nullified the acting appointment issued by the
President to fill the office of a Commissioner of
the Commission on Elections (COMELEC) on the
ground that it would undermine the independence
of the COMELEC. We ruled that given the
specific nature of the functions performed by
COMELEC Commissioners, only a permanent
appointment to the office of a COMELEC
Commissioner can be made, x x x.
“Since the petitioner merely holds an acting
appointment (and an expired one at that), he
clearly does not have a cause of action to maintain
the present petition. The essence of an acting
appointment is its temporariness and its
consequent revocability at any time by the
appointing authority. The petitioner in a quo
warranto proceeding who seeks reinstatement to an
office, on the ground of usurpation or illegal
deprivation, must prove his clear right to the office
for his suit to succeed; otherwise, his petition must
fail.”
Appointments, whether permanent or temporary, are
distinguished from designation in that the latter means
simply the imposition of additional duties, usually by
law, on a person already in the public service. For
example, the chairman of the Board of Investments is,
by designation, a member of the National Economic and
Development Authority.
In Binamira v. Garrucho, the Court observed:
“Designation may also be loosely defined as an
appointment because it likewise involves the naming of
a particular person to a specified public office. That is
the common understanding of the term. However, where
the person is merely designated and not appointed, the
implication is that he shall hold the office only in a
temporary capacity and may be replaced at will by
the appointing authority. In this sense, the designation
is considered only an acting or temporary appointment,
which does not confer security of tenure on the person
named.”
A designation connotes an imposition of additional
duties, usually by law, upon a person already in the
public service by virtue of an earlier appointment.- It
does not entail payment of additional benefits or grant
upon the person so designated the right to claim the
salary attached to the position. Without an appointment,
a designation does not entitle the officer to receive the
salary of the position. The legal basis of an employee’s
right to claim the salary attached thereto is a duly issued
and approved appointment to the position, and not a
mere designation.
Both the temporary appointment and the designation
are not subject to confirmation by the Commission on
Appointments. Such confirmation, if given erroneously,
will not make the incumbent a permanent appointee.
The Supreme Court discussed the nature of an acting
appointment in Pimentel v. Ermita. Thus —
“The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited
time until the appointment of a permanent
occupant to the office. In case of vacancy in an
office occupied by an alter ego of the President,
such as the office of a department secretary, the
President must necessarily appoint an alter ego of
her choice as acting secretary before the
permanent appointee of her choice could assume
office.
“Congress, through a law, cannot impose on the
President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An
alter ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in
the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego
should be.
“The office of a department secretary may become
vacant while Congress is in session. Since a
department secretary is the alter ego of the
President, the acting appointee to the office must
necessarily have the President’s confidence. Thus,
by the very nature of the office of a department
secretary, the President must appoint in an acting
capacity a person of her choice even while
Congress is in session. That person may or may
not be the permanent appointee, but practical
reasons may make it expedient that the acting
appointee will also be the permanent appointee.
“The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that ‘[t]he
President may temporarily designate an officer
already in the government service or any other
competent person to perform the functions of an
office in the executive branch.’ Thus, the President
may even appoint in an acting capacity a person
 not yet in the government service, as long as the
President deems that person competent.”
The Court went on to say that the President may not be
compelled to submit his acting appointments to the
Commission on Appointments for confirmation. Thus —
“The power to appoint is essentially executive in
nature, and the legislature may not interfere with
the exercise of this executive power except in
those instances when the Constitution expressly
allows it to interfere. Limitations on the executive
power to appoint are construed strictly against the
legislature. The scope of the legislature’s
interference in the executive’s power to appoint is
limited to the power to prescribe the
qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise of
prescribing qualifications to that office. Neither
may Congress impose on the President the duty to
appoint any particular person to an office.”
There are now six categories of officials who are subject
to the appointing power of the President, viz.:
(1) The heads of the executive departments.
(2) Ambassadors, other public ministers and consuls.
(3) Officers of the armed forces from the rank of colonel
or naval captain.
(4) Those other officers whose appointments are vested in
him by the Constitution.
(5) All other officers of the government whose
appointments are not provided for by law.
(6) Those whom he may be authorized by law to appoint.
The President of the Philippines under the 1935
Constitution was empowered to appoint “officers of the
army from the rank of colonel and of the navy and air force
from the rank of captain or commander.” The rank was
raised to brigadier-general or commodore in the 1973
charter.
It must be pointed out though that appointments and
promotions from the rank of captain and higher in the
Philippine Coast Guard no longer require confirmation by
the Commission on Appointments in view of its transfer
from the Department of National Defense to, eventually,
the Department of Transportation and Communication, for
which reason, it is now to be considered a civilian
agency,37 although, for purposes of disciplining its officers
and personnel, it remains a component of the Armed Forces
of the Philippines. Therefore, said officers and personnel
shall still be subject to the primary disciplinary jurisdiction
of its Efficiency and Separation Board, and not the Civil
Service Commission.
Some officers whom the President is authorized by law to
appoint are the members of the various statutory
administrative agencies. Also included in this class would
be the Officers-in-Charge of the Autonomous Region of
Muslim Mindanao authorized to be appointed by the
President under the provisions of Republic Act No. 10153.
An example of an officer whose appointment is not
otherwise provided for in the Constitution is the Chairman
of the Commission on Human Rights. Accordingly, his
appointment would not require confirmation by the
Commission on Appointments. On the other hand, there is
express constitutional authority given to the President in the
appointment of the Ombudsman,41 although such
appointment, including the appointment by the President of
his deputies, would require no confirmation as well by the
Commission on Appointments.
In Sarmiento v. Mison, the Commissioner of Customs
was held to be not subject to confirmation, being of the
rank of the bureau director, who was purposely deleted
from the listing of those whose appointments had to be
approved by the Commission on Appointments.
As pointed out by Justice Teodoro Padilla:
“In the 1987 Constitution, however, as already
pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments
from confirmation by the Commission on
Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use
in the third sentence of Sec. 16, Article VII the word
‘alone’ after the word ‘President’ in providing that
Congress may by law vest the appointment of lower-
ranked officers in the President alone, or in the
courts, or in the heads of departments, because the
power to appoint officers whom he (the President)
may be authorized by law to appoint is already vested
in the President, without need of confirmation by the
Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII.
“Therefore, the third sentence of Sec. 16, Article VII
could have stated merely that, in the case of lower-
ranked officers, the Congress may by law vest their
appointment in the President, in the courts, or in the
 heads of various departments of the government. In
short, the word ‘alone’ in the third sentence of Sec.
16, Article VII of the 1987 Constitution, as a literal
import from the last part of par. 3, section 10, Article
VII of the 1935 Constitution, appears to be redundant
in the light of the second sentence of Sec. 16, Article
VII. And this redundancy cannot prevail over the
clear and positive intent of the framers of the 1987
Constitution that presidential appointments, except
those mentioned in the first sentence of Sec. 16,
Article VII, are not subject to confirmation by the
Commission on Appointments.
“Coming now to the immediate question before the
Court, it is evident that the position of Commissioner
of the Bureau of Customs (a bureau head) is not one
of those within the first group of appointments where
the consent of the Commission on Appointments is
required. As a matter of fact, as already pointed out,
while the 1935 Constitution includes ‘heads of
bureaus’ among those officers whose appointments,
need the con sent of the Commission on
Appointments, the 1987 Constitution, on the other
hand, deliberately excluded the position of ‘heads of
bureaus’ from appointments that need the consent
(confirmation) of the Commission on Appointments.”
Chief Justice Teehankee and Justices Herrera and
Sarmiento filed separate concurring opinions. Justices
Gutierrez and Cruz dissented.
The Chairman and members of the National Labor
Relations Commission have likewise been declared as
not subject to confirmation by the Commission on
Appointments, as they are not among the officers
included in the first sentence of Section 16.44
On the other hand, the sectoral representatives appointed
by the President to the House of Representatives
pursuant to the provisions of Section 5 (2) of Article VI,
in relation to Section 7 of Article XVIII of the
Constitution, required confirmation by the Commission
on Appointments, according to the Supreme Court in the
case of Quintos-Deles v. Commission on Appointments.
Under the Constitution, confirmation would also be
required with respect to the appointments of the
Chairmen and Members of the Constitutional
Commissions and the regular members of the Judicial
and Bar Council. 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. Such
appointments need no confirmation. Neither shall the
appointment of the Vice-President as a member of the
Cabinet require confirmation by the Commission on
Appointments.
As to officers lower in rank, the Congress may allow
their appointments to be made by the President alone,
the courts, and the heads of departments, agencies,
commissions and boards. “Officers lower in rank” as
here used, should not be understood as referring to petty
or unimportant officers but those below the rank of or
subordinate to those in whom the power of appointment
is vested.
As under the Commonwealth Constitution, the
President’s appointing power is once again subject to
check by the Commission on Appointments, which was
abolished by the 1973 charter. Consequently, the
distinctions between the regular and ad interim
appointments, and the applicable jurisprudence thereon,
have also been revived.
The usual steps in the appointing process are the
nomination, which is made by the President; the
confirmation, which is the prerogative of the
Commission on Appointments; and the issuance of the
commission, also done by the President. This is where
the appointment is regular. On the other hand, in the
case of the ad interim appointment, the appointment
comes before the confirmation, which is made by the
Commission when it reconvenes following the legislative
recess.
The nomination of the regular appointee is made and
approved during the session, when the Commission on
Appointments is authorized to meet. But the ad interim
appointment is made during the recess and becomes
effective then, subject to confirmation or rejection later,
during the next legislative session.
The distinction between the regular and ad interim
appointments are the following:
(1) The regular appointment is made during the
legislative session; the ad interim appointment is
made during the recess.
(2) The regular appointment is made only after the
nomination is confirmed by the Commission on
Appointments; the ad interim appointment is made
before such confirmation.
(3) The regular appointment, once confirmed by the
Commission on Appointments, continues until the end of
the term of the appointee; the ad interim appointment
shall cease to be valid if disapproved by the
Commission on Appointments or upon the next
adjournment of the Congress. In the latter case, the
appointment is deemed “by-passed” through inaction of,
and so disapproved impliedly by, the Commission on
Appointments.
 In any event, the power of appointment, as explained by
As clarified by the Supreme Court in Guevara v. the Supreme Court in Lusgo v. Civil Service
Inocentes, the phrase “next adjournment” refers to the Commission, “is an essentially discretionary power and
termination of the next regular or special session of must be performed by the officer in which it is vested
Congress. Thus — according to his best lights, the only condition being that
the appointee should possess the qualifications
“It is true that the provision of the Constitution we required by law. If he does, then the appointment
are now considering in speaking of the mode of cannot be faulted on the ground that there are others
termination epitomized in the phrase ‘until the next better qualified who should have been preferred.”
adjournment of the Congress’ does not make any
reference to any specific session of the Congress, —
Accordingly, the Civil Service Commission, which
whether regular or special, — but such silence is of
no moment, for it is a well-known maxim in statutory
approved as “temporary” a permanent appointment
construction that when the law does not distinguish otherwise duly made, was, in this case, declared by the
we should not distinguish. UBI LEX NON Supreme Court as not being “empowered to determine
DISTINGUIT NEC NOS DISTIN-GUERE the kind or nature of the appointment extended by the
DEBEMUS (Robles vs. Zambales Chromite Mining appointing officer, its authority being limited to
Company, et al., G.R. No. L-12560, September 30, approving or reviewing the appointment in the light of
1958). Consequently, it is safe to conclude that the the requirements of the Civil Service Law.” All that the
framers of our Constitution in employing merely the Civil Service Commission may do is determine whether
word adjournment as a mode of terminating an or not the appointee possesses the qualifications and
appointment made during the recess of Congress had requisite or appropriate eligibility. “If he does, his
in mind either the regular or special session, and not
appointment is approved; if not, it is disapproved.”
simply the regular one as contended by petitioner.”
In Matibag v. Benipayo, the Supreme Court clarified
As held in Lacson v. Romero, an appointment is deemed
that “an ad interim appointment is a permanent
complete only upon its acceptance. Pending such
appointment because it takes effect immediately and can
acceptance, which is optional to the appointee, the
no longer be withdrawn by the President once the
appointment may still be validly withdrawn.
appointee has qualified into office. The fact that it is
Appointment to a public office cannot be forced upon
subject to confirmation by the Commission on
any citizen except for purposes of the defense of the
Appointments does not alter its permanent character.
State under Article II.
The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
As earlier noted, the Supreme Court upheld in Datu
disapproved by the Commission on Appointments or
Michael Abas Kida v. Senate of the Philippines the
until the next adjournment of Congress.” However,
authority of the President to appoint officers-in-charge
when the ad interim appointment lapses by inaction of
for elective positions for purposes of temporarily filling
the Commission on Appointments, as when it fails or
the posts left vacant by said elective officials from the
refuses to act on the same until the next adjournment of
expiration of their terms up to the conduct of the regular
Congress, it would not constitute a term of office. The
elections. The basis for said authority was Republic Act
period from the time the ad interim appointment is made
No. 10153, the law which provided for the
to the time it lapses is neither a fixed term nor an expired
synchronization of the elections for the regional
term.
government of the Autonomous Region of Muslim
Mindanao with the regular elections.
The ad interim appointment is intended to prevent a
hiatus in the discharge of official duties. Obviously,
The Court stated that, even if said law had not expressly
the public office would be immobilized to the prejudice
provided for the President’s authority to appoint said
of the people if the President had to wait for the
officers-in-charge, he would still nevertheless possess
Congress and the Commission on Appointments to
the power to appoint them as Section 16 vests in him as
reconvene before he could fill a vacancy occurring
well the power to appoint officials whose appointments
during the recess.
are not otherwise provided for by law. “In other words,
where there are offices which have to be filled, but the
The President’s power of appointment may also be
law does not provide the process for filling them, the
limited by the Congress through its power to prescribe
Constitution recognizes the power of the President to fill
qualifications for public office. The judiciary for its part
the office by appointment. Any limitation on or
may annul an appointment made by the President if the
qualification to the exercise of the President’s
appointee has not been validly confirmed or does not
appointment power should be strictly construed and
possess the required qualifications.
must be clearly stated in order to be recognized.”
Against the contention that this power of the President to
appoint said officers-in-charge, who would be occupying
elective offices, breaches Section 16 of Article X of the
Constitution, which grants the President the mere power
of general supervision over autonomous regions, the
Court explained that it saw “no incompatibility between
the President’s power of supervision over local
governments and autonomous regions, and the power
granted to the President, within the specific confines of
RA No. 10153, to appoint OICs.”
“The petitioners’ apprehension regarding the President’s
alleged power of control over the OICs is rooted in their
belief that the President’s appointment power includes
the power to remove these officials at will, xxx The
-wording of the law [Section 3, RA 10153] is clear.
Once the President has appointed the OICs for the
offices of the Governor, Vice Governor and members of
the Regional Legislative Assembly, these same officials
will remain in office until they are replaced by the duly
elected officials in the May 2013 elections. Nothing in
this pro vision even hints that the President has the
power to recall the appointments he already made.
Clearly, the petitioners’ fears in this regard are more
apparent than real.”
The Court further noted that the “grant to the President
of the power to appoint OICs in place of the elective
members of the Regional Legislative Assembly is
neither novel nor innovative. The power granted to the
President, via RA No. 10153, to appoint members of the
Regional Legislative Assembly is comparable to the
power granted by BP 881 (the Omnibus Election Code)
to the President to fill any vacancy for any cause in the
Regional Legislative Assembly.”
Two special limitations on the appointing power
should be noted in Article VII, thus:
“Sec. 14. Appointments extended by an acting
President shall remain effective unless revoked by the
elected President within ninety days from his
assumption of office.”
This emphasizes the caretaker capacity of the Acting
President but at the same time allows the elected
President to ratify his appointments by mere inaction
during the specified ninety days.
“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.”
The obvious purpose of the above is to prevent the use,
or abuse, of the appointing power for the purpose of
enlisting political support in exchange for some
appointive office in the government.
This will also prevent the “midnight appointments” that
may otherwise be issued by an outgoing President, as
happened in the case of Aytona v. Castillo, which
involved the validity of President Diosdado Macapagal’s
Administrative Order No. 2, issued on December 31,
1961, recalling, withdrawing, and cancelling all (350) ad
interim appointments made by President Garcia after
December 13, 1961, (the date when Macapagal was
proclaimed elected by the Congress), including several
ad interim appointments made by outgoing President
Carlos P. Garcia on December 29, 1961, or one day
before the expiration of his term. In providing for the
dismissal of the petition, the Court declared that “under
the circumstances above described, what with the
separation of powers, this Court resolves that it must
decline to disregard the Presidential Administrative
Order No. 2, cancelling such ‘midnight’ or “last-minute’
appointments.” It did point out though that
“Of course, nobody will assert that President Garcia
ceased to be such earlier than at noon of December
30, 1961. But it is common sense to believe that after
the proclamation of the election of President
Macapagal, his was no more than a ‘care-taker’
administration. He was duty bound to prepare for the
orderly transfer of authority to the incoming
President, and he should not do acts which he ought
to know, would embarrass or obstruct the policies of
his successor. The time for debate had passed; the
electorate had spoken. It was not for him to use
powers as incumbent President to continue the
political warfare that had ended or to avail himself of
presidential prerogatives to serve partisan purposes.
The filling up of vacancies in important positions, if
few, and so spaced to afford some assurance of
deliberate action and careful consideration of the
need for the appointment and the appointee’s
qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and
planned induction of almost all of them a few hours
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 deprive the new
administration of an opportunity to make the
corresponding appointments.”
In De Castro v. Judicial and Bar Council, the Supreme
Court declared that the prohibited appointments under
Section 15 do not cover appointments to the Supreme
Court.
“There is no question that one of the reasons
underlying the adoption of Section 15 as part of
Article VII was to eliminate midnight appointments
from being made by an outgoing Chief Executive in
the mold of the appointments dealt with in the
leading case of Aytona v. Castillo. Given the
background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition
to appointments made in the Executive Department.
The framers did not need to extend the prohibition to
appointments in the Judiciary, because their
establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial
positions to the unhurried and deliberate prior process
of the JBC ensured that there would no longer be
midnight appointments to the Judiciary.
“Under the Constitution, it is mandatory for the JBC
to submit to the President the list of nominees to fill a
vacancy in the Supreme Court in order to enable the
President to appoint one of them within the 90-day
period from the occurrence of the vacancy. The JBC
has no discretion to submit the list to the President
after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the
President to make the appointment. For the JBC to do
so will be unconscionable on its part, considering that
it will thereby effectively and illegally deprive the
President of the ample time granted under the
Constitution to reflect on the qualifications of the
nominees named in the list of the JBC before making
the appointment.”
(1) Appointing Power: The Removal Power
From the express power of appointment, the President
derives the implied power of removal. However, it is
not correct to say that all officials appointed by him are
also removable by him since the Constitution prescribes
certain methods for the separation from the public
service of some such officers.
For example, the members of the Supreme Court and
the Constitutional Commissions, although appointed
by the President, may be removed only by
impeachment in accordance with Article XI. Judges of
inferior courts, likewise appointed by the President, are
subject to the disciplinary authority of, and may be
removed only by, the Supreme Court. Moreover, the
Ombudsman, who shall also be appointed by the
President under the Constitution, may be removed only
by impeachment.62 Insofar as the Deputy Ombudsmen
are concerned though, the President’s authority to
appoint them63 includes, by necessary implication, the
authority to remove them, especially so since a law has
expressly conferred upon him said power, which he
shares with the Ombudsman.
The President is without any power to remove elected
local officials, since the power is exclusively vested in
the proper courts as expressly provided for in the last
paragraph of Section 60 of the Local Government Code.
In all other cases where the power of removal is lodged
in the President, the same may be exercised by him only
for cause as may be provided by law and in accordance
with the prescribed administrative procedure. The
exception only is with respect to the members of the
Cabinet or to other executive officials whose term of
office is determined at the pleasure of the President.
Legally speaking, their separation is effected not by the
process of removal but by the expiration of their term.
Thus, in Alajar v. Alba, the charter of a city provided
that its vice-mayor shall be appointed by and hold office
at the pleasure of the President of the Philippines.
Having been appointed and qualified, Alajar served as
vice-mayor for more than a year until he was required by
the Office of the President to vacate his post in favor of
Alba, a new appointee. Alajar invoked his constitutional
security of tenure and claimed that he had been
unlawfully removed, no administrative charge having
been filed or proved against him. The Supreme Court
denied him relief, holding that there was no removal
here but a mere expiration of the term of office. Justice
Roberto Concepcion explained in his concurring
opinion:
“In the case at bar, the term of respondent Alajar
as Vice-Mayor of the City of Roxas is not fixed by
law. However, the latter, in effect, vests in the
President the power to fix such term. When, in
November 1955, petitioner Alba was designated as
Acting Vice-Mayor of said City, the term of
respondent Alba was thereby fixed implicitly by
the President, in the exercise of his aforementioned
authority. Thus, the term of office of Alajar
expired and his right to hold office was
extinguished, with the same legal effect as if the
term had been fixed by Congress it self. In other
words, Alajar was not removed from office, for ‘to
remove an officer is to oust him from office before
the expiration of his term.’ (Manalang v.
Quitoriano, et al., 50 Off. Gaz., 2515). Alajar
merely lost the right to hold the office of Vice-
Mayor of the City of Roxas by expiration of his
term as such.”
But it would be different if the law provided that a
member of the classified civil service could be “removed
at pleasure” as this would contravene the constitutional
rule that “no officer or employee of the Civil Service
shall be removed or suspended except for cause
provided by law™
At any rate, a removal presupposes a forcible and
permanent separation of the incumbent from office
before the expiration of his term.
The Control Power
“The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that
the laws be faithfully executed.”
Control is defined as “the power of an officer to alter
or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to
substitute the judgment of the former for that of the
latter.” It includes the authority to order the doing of an
act by a subordinate or to undo such act or to assume a
power directly vested in him by law. Control is a
stronger power than mere supervision, which means
“overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them, then the former may take
such action or steps as prescribed by law to make them
perform these duties.”72 In the case of Drilon v. Lim,
the Supreme Court elaborated on the distinction thus:
“An officer in control lays down the rules in the
doing of an act. If they are not followed, he may, in
his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself.
Supervision does not cover such authority. The
supervisor or superintendent merely sees 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 but only to conform
to the prescribed rules. He may not prescribe his own
manner for the doing of the act. He has no judgment
on this matter except to see to it that the rules are
followed.”
Theoretically, the President has full control of all the
members of this Cabinet. He may appoint them as he
sees fit, shuffle them at pleasure, and replace them in his
discretion without any legal inhibition whatever. It is
true that there are practical or political considerations
that may limit his freedom of control over them. From
the purely legal standpoint, however, the members of the
Cabinet are subject at all times to the disposition of the
President since they are merely his alter ego.
As the Supreme Court put it in Villena v. Secretary of
the Interior, “without minimizing the importance of the
heads of various departments, their personality is in
reality but the projection of that of the President.”
Accordingly, their acts “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.”
This principle, generally known as the doctrine of
qualified political agency, was acknowledged by the
Supreme Court in Manubay v. Garilao where it declared
that a further appeal from a decision of a cabinet
secretary may be taken to the Office of the President
before resorting to judicial action, to be consistent with
the doctrine of exhaustion of administrative remedies.
Thus —
“Under the doctrine of qualified political agency,
department secretaries are alter egos or assistants of the
President and their acts are presumed to be those of the
latter unless disapproved or reprobated by him. Thus, as
a rule, an aggrieved party affected by the decision of a
cabinet secretary need not appeal to the OP and may file
a petition for certiorari directly in the Court of Appeals
assailing the act of the said secretary. Needless to state,
elevating the matter to the OP was consistent with the
doctrine of exhaustion of administrative remedies. A
party aggrieved by an order of an administrative official
should first appeal to the higher administrative authority
before seeking judicial relief. Otherwise, as in this case
the complaint will be dismissed for being premature or
for having no cause of action.’"
Such appeal to a “higher administrative authority”
pursuant to the doctrine of exhaustion of administrative
remedies would however not be necessary or required
when there exists a special law that provides for a
different mode of appeal. Indeed, it has been ruled that
“executive control” cannot be considered as
“absolute” and may be “effectively limited by the
Constitution, by law, or by judicial decisions.” It is
likewise subject to the rule-making authority of the
Supreme Court.
It would appear though that the doctrine of qualified
political agency would not be applicable to acts of
cabinet secretaries done in their capacity as ex officio
board directors of a government-owned or controlled
corporation of which they become members not by
appointment of the President but by authority of law.
Thus, in Trade and Investment Development
Corporation of the Philippines v. Manalang-
Demigilio, the petitioner sought to justify its
reorganization, as directed by its board of directors, by
invoking this doctrine, stating that since the members of
its board are cabinet secretaries, their act of providing
for the reorganization should be considered as the act of
the President, who, under existing laws, possesses the
continuing authority to reorganize the executive
department, including the petitioner. Although the
Supreme Court upheld the validity of the reorganization,
it did so on the basis of other grounds, and not the
doctrine of qualified political agency. It explained —
“The doctrine of qualified political agency essentially
postulates that the heads of the various executive departments
are the alter egos of the President, and, thus, the actions taken
by such heads in the performance of their official duties are
deemed the acts of the President unless the President himself
should disapprove such acts.
This doctrine is in recognition of the fact that in our
presidential form of government, all executive organizations
are adjuncts of a single Chief Executive; that the heads of
the Executive Departments are assistants and agents of the
Chief Executive; and that the multiple executive functions of
the President as the Chief Executive are performed through the
Executive Departments. The doctrine has been adopted here
out of practical necessity, considering that the President
cannot be expected to personally perform the multifarious
functions of the executive office.
“But the doctrine of qualified political agency could not be
extended to the acts of the Board of Directors of TIDCORP
despite some of its members being themselves the appointees
of the President to the Cabinet. Under Section 10 of
Presidential Decree No. 1080, as further amended by Section 6
of Republic Act No. 8494, the five ex officio members were
the Secretary of Finance, the Secretary of Trade and Industry,
the Governor of the Bangko Sentral ng Pilipinas, the Director-
General of the National Economic and Development
Authority, and the Chairman of the Philippine Overseas
Construction Board, while the four other members of the
Board were the three from the private sector (at least one of
whom should come from the export community), who were
elected by the ex officio members of the Board for a term of
not more than two consecutive years, and the President of
TIDCORP who was concurrently the Vice-Chairman of the
Board. Such Cabinet members sat on. the Board of Directors
of TIDCORP ex officio, or by reason of their office or
function, not because of their direct appointment to the Board
by the President. Evidently, it was the law, not the President,
that sat them in the Board.
“Under the circumstances, when the members of the Board of
Directors effected the assailed 2002 reorganization, they were
acting as the responsible members of the Board of Directors of
TIDCORP constituted pursuant to Presidential Decree No.
1080, as amended by Republic Act No. 8494, not as the alter
egos of the President. "We cannot stretch the application of a
doctrine that already delegates an enormous amount of power.
Also, it is settled that the delegation of power is not to be
lightly inferred.”
In this connection, it has likewise been ruled that the
Constitution’s express grant of the power of control
in the President justifies an executive action to carry out
reorganization measures under a broad authority of law.
In Angeles v. Gaite, the Supreme Court upheld the
validity of a memorandum circular issued by the
President limiting his review of resolutions, orders or
adjudications of the Secretary of Justice to offenses
punishable by reclusion perpetua to death on the basis of
the doc trine of qualified political agency. Moreover, the
Court said that the “President has not fully abdicated his
power of control as Memorandum Circular No. 58
allows an appeal if the imposable penalty is reclusion
perpetua or higher. Certainly, it would be unreasonable
to impose upon the President the task of reviewing all
preliminary investigations decided by the Secretary of
Justice. To do so will unduly hamper the other important
duties of the President by having to scrutinize each and
every decision of the Secretary of Justice
notwithstanding the latter’s expertise in said matter.”
Section 17 is a self-executing provision. The President
derives his power of control directly from the
Constitution and not from any implementing legislation.
Such a law would in fact be unnecessary and would even
be invalid if it limits the exercise of his power or
withdraws it altogether from the President.
In Araneta v. Gatmaitan for example, the Congress
authorized the Secretary of Agriculture and Natural
Resources to promulgate rules and regulations
concerning trawl fishing. When President Magsaysay
directly exercised this authority, his act was challenged
on the ground that the power in question had been
conferred not on him but on the aforementioned Cabinet
member. The Supreme Court did not agree, holding as
follows:
“If under the law the Secretary of Agriculture and Natural
Resources has authority to regulate or ban fishing by trawl,
then the President of the Philippines may exercise the same
power and authority because of the following:
(a) The President shall have control of all the executive
departments, bureaus or offices, pursuant to Section 10(1),
Article VII, of the Constitution;
(b) Executive Orders may be issued by the President under
Section 63 of the Revised Administrative Code ‘governing the
general performance of duties by public employees or
disposing of issues of general concern’; and
(c) Under Section 74 of the Revised Administrative Code, ‘All
executive functions of the Government of the Republic of the
Philippines shall be directly under the Executive Department,
subject to the supervision and control of the President of the
Philippines in matters of general policy.”
In Gascon v. Arroyo, the Supreme Court held that the
Executive Secretary had the authority to enter into the
“Agreement to Arbitrate” with the ABS-CBN Broad
casting Corporation as he was acting on behalf of the
President of the Philippines who had the power to
negotiate such agreement. The agreement was therefore
binding on the Republic of the Philippines.
It has also been ruled that the Secretary of the
Department of Labor and Employment, as the officer
exercising the power of supervision and control over the
Bureau of Labor Relations, has the authority to directly
exercise the quasi-judicial functions entrusted by law to
the Director of said Bureau. He likewise possesses
appellate jurisdiction over cases decided by the
Philippine Overseas Employment Administration,
consistent with his power of supervision and control
under Section 38(1), Chapter 7, Title II, Book III of the
Revised Administrative Code of 1987.
In Lacson-Magallanes Co., Inc. us. Pano, a law
provided that decisions rendered by the Director of
Lands on questions of fact shall be conclusive when
affirmed by the Secretary of Agriculture and Natural
Resources. Nevertheless, one such decision was
appealed to the Office of the President and was
subsequently reviewed and reversed by the Executive
Secretary. On the basic issue of whether or not the
administrative decision could still be appealed to the
President of the Philippines, the Supreme Court held as
follows:
“Plaintiffs position is incorrect. The President’s duty
to execute the law is of constitutional origin. So, too,
is his control of all executive departments. His is the
power to appoint them; his, too, is the privilege to
dismiss them at pleasure. Naturally, he controls and
directs their acts. Implicit then is his authority to go
over, confirm, modify or reverse the action taken by
his department secretaries. In this context, it may not
be said that the President cannot rule on the
correctness of a decision of a department secretary.”
It should be noted, however, that the power of control is
exercisable by the President over the acts of his
subordinates and not necessarily over the subordinate
himself or, as the Supreme Court put it in Ang-Angco v.
Castillo, not “over the actor or agent himself of the act.”
In this case, the President of the Philippines had assumed
direct jurisdiction over a member of the classified Civil
Service against whom administrative charges had been
filed by the Commissioner of Customs. In holding this
act of the President to be unlawful, the Supreme Court
declared:
“Let us now take up the power of control given to the
President by the Constitution over all officers and
employees in the executive department which is now
invoked by respondents as justification to override
the specific provisions of the Civil Service Act. This
power of control is couched in general terms for it
does not set in specific manner its extent and scope.
Yet, this Court in the case of Hebron v. Reyes, supra,
had already occasion to interpret the extent of such
power to mean ‘the power of an officer to alter or
modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and
to substitute the judgment of the former for that of
the latter,’ to distinguish it from the power of
supervision over municipal governments, but the
decision does not go to the ex tent of including the
power to remove an officer or employee in the
executive department. Apparently, the power merely
applies to the exercise of control over the acts of the
subordinate and not over the actor or agent himself of
the act. It only means that the President may set aside
the judgment or action taken by a subordinate in the
performance of his duties.”
In Noblejas u. Salas, a provincial fiscal directed by the
Secretary of Justice to file informations against five
persons added a sixth accused on his own authority. The
Supreme Court reversed his action, holding that he could
not contravene the directive. The reason was that he was
under the constitutional power of control of the
President, exercised in this case through the Secretary of
Justice.
This ruling was reiterated in Jacob v. Puno, where the
Minister of Justice was sustained by the Supreme Court
when, pursuant to his authority under P.D. 916, he
ordered a fiscal to withdraw certain informations.
In De Leon v. Carpio, the respondent refused to obey the
orders of the Secretary of Justice to reinstate the agents
of the National Bureau of Investigation found by the
Civil Service Commission to have been illegally
dismissed. The Supreme Court declared:
“In the case at bar, there is no question that when he
directed the respondent to reinstate the petitioners,
Secretary Ordonez was acting in the regular
discharge of his functions as an alter ego of the
President. His acts should therefore have been
respected by the respondent Director of the National
Bureau of Investigation, which is in the Department
of Justice under the direct control of its Secretary. As
a subordinate in this department, the respondent was
 (and is) bound to obey the Secretary’s directives,
which are presumptively the acts of the President of
the Philippines.
In Orosa v. Roa, the Court affirmed that the Department
of Justice is under the President’s control. Accordingly,
the decisions of the Secretary of Justice are subject to
his review. Incidentally, it has been repeatedly ruled by
the Court that the Department of Justice, as the
primary prosecution arm of the Government, is not a
quasi-judicial body. Its preliminary investigation of a
case is therefore not a quasi-judicial proceeding.
In Kulayan v. Tan, the Supreme Court affirmed that, “as
a civilian agency of the government, the police, through
the NAPOLCOM, properly comes within, and is subject
to, the exercise by the President of the power of
executive control.”
The “Take-Care” Clause
The power to take care that the laws be faithfully
executed makes the President a dominant figure in the
administration of the government. The energy or
indifference with which he discharges this power will
determine the measure of his success as Law Enforcer.
The law he is supposed to enforce includes the
Constitution itself, statutes, judicial decisions,
administrative rules and regulations and municipal
ordinances, as well as treaties entered into by our
government.
It has been suggested that the President is not under
obligation to enforce a law which in his belief is
unconstitutional because it would create no rights and
confer no duties, being totally null and void. The better
view is that it is not for him to determine the validity
of a law since this is a question exclusively addressed
to the judiciary. Hence, until and unless a law is
declared unconstitutional, the President has a duty to
execute it regardless of his doubts on its validity. A
contrary opinion would allow him not only to negate the
will of the legislature but also to encroach upon the
prerogatives of the judiciary.
In any event, this duty of the President to ensure that the
laws are faithfully executed was cited by the Supreme
Court as justification for the validity of his creation of an
investigative body in Biraogo u. The Philippine Truth
Commission of 2010. Although the Court declared as
unconstitutional the Executive Order issued by the
President for the purpose for being violative of the equal
protection clause, it nevertheless declared that his
“power to conduct investigations to aid him in ensuring
the faithful execution of laws — in this case,
fundamental laws on public accountability and
transparency — is inherent in the President’s powers as
the Chief Executive.” Thus —
“That the authority of the President to conduct
investigations and to create bodies to execute this
power is not explicitly mentioned in the Constitution
or in statutes does not mean that he is bereft of such
authority. Indeed, the Executive is given much
leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the
President are not limited to those specific powers
under the Constitution. One of the recognized powers
of the President granted pursuant to this
constitutionally-mandated duty is the power to create
ad hoc committees. This flows from the obvious need
to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v.
Camposano, the authority of the President to issue
Administrative Order No. 298, creating an
investigative committee to look into the
administrative charges filed against the employees of
the Department of Health for the anomalous purchase
of medicines was upheld. It should be stressed that
the purpose of allowing ad hoc investigating bodies
to exist is to allow an inquiry into matters which the
President is entitled to know so that he can be
properly advised and guided in the performance of
his duties relative to the execution and enforcement
of the laws of the land.”
The Court added —
“The President’s power to conduct investigations to
en sure that laws are faithfully executed is well
recognized. It flows from the faithful execution
clause of the Constitution under Article VII, Section
17 thereof. As the Chief Executive, the president
represents the government as a whole and sees to it
that all laws are enforced by the officials and
employees of his department. He has the authority to
directly assume the functions of the executive
department. Invoking this authority, the President
constituted the PTC to primarily investigate reports
of graft and corruption and to recommend the
appropriate action.”
This ruling has since been affirmed in Pichay v. Office
of the Deputy Executive Secretary for Legal Affairs
Investigative and Adjudication Division, where the
Court stressed that the “obligation to see to it that laws
are faithfully executed necessitates the corresponding
power in the President to conduct investigations into the
conduct of officials and employees in the executive
department.”
In PCGG Chairman v. Jacobi, the Court further
stressed that a “necessary component of the Executive’s
power to faithfully execute the laws of the land is the
State’s self-preserving power to prosecute violators of its
penal laws.” This responsibility, according to the Court,
is primarily lodged with the Department of Justice, as
the principal law agency of the government.
The Military Power
Tremendous and extraordinary authority is reposed in
the President by the following provision in Article 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 60 sixty
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof
under martial law.
Within 48 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 o f the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
“A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the
writ.
“The suspension of the privilege of the writ shall
apply only to persons judicially charged for
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.”
To begin with, this section bolsters the principle
announced in Article II, Section 3, that “civilian
authority is, at all times, supreme over the military.” By
making the President the commander-in-chief of all the
armed forces, the Constitution lessens the danger of a
military take-over of the government in violation of its
republican nature.
The military establishment is the strongest single
institution in the country and could easily employ its
physical force to wrest power from the civilian
authorities. The threat of such domination would be
present in fact even if the civil and military authorities
were made only equal. It is important that the military be
subordinated to the President so he can keep it in check
when ever it is tempted to impose its will upon the
government.
There is some hazard, to be sure, in entrusting final
military decisions to a civilian President without much
background in military matters. The danger becomes
especially marked in times of war or when the President
happens to be opinionated or is unwilling to defer to the
recommendations of his more knowledgeable military
advisers. The counter-argument is that such a situation,
although not impossible, would be unlikely, given the
sense of responsibility that can be expected from any
person elevated to the position of President. More
importantly, it was felt that the need for preserving our
democratic institutions against a military coup d’etat was
worth the calculated risk the Constitution was taking.
It should be noted that although the President is made
the commander-in-chief of all the armed forces, he will
be so only if there are armed forces to command. These
forces will be raised by the Congress in the exercise of
its general legislative power, and particularly under
Article II, Section 4, providing that the Government
may call upon the people to defend the State and in the
fulfillment thereof all citizens may be required, under
conditions provided by law, to render personal military
or civil service.
The military power enables the President to:
I. command all the armed forces of the
Philippines;
II. suspend the privilege of the writ of habeas
corpus; and
III. declare martial law.
(1) Command of the Armed Forces
The “power of the sword” makes the President the most
important figure in the country in times of war or other
similar emergency. In theory, he plans all campaigns,
establishes all sieges and blockades, directs all marches,
fights all battles. His leadership, if bold and decisive, can
galvanize people to gallantry or, if vacillating and
timorous, can enfeeble them to defeatism and surrender.
It is because the sword must be wielded with courage
and resolution that the President is given vast powers in
the making and carrying out of military decisions.
Accordingly, it has been held that he can determine
what degree of force a particular crisis demands, as
when President Lincoln declared a blockade of the Con
federate ports during the American civil war; organize
courts martial for the discipline of the members of the
armed forces violating military law; create military
commissions for the punishment of war criminals; and
call out the armed forces to prevent or suppress lawless
violence, invasion, or rebellion.
Courts martial were described in Ruffy u. Chief of Staff
as agencies of executive character which may be
convened by the President independently of legislation
and by virtue only of his constitutional function as
commander-in-chief. These courts do not pertain to the
judiciary and are utilized by him in properly
commanding and enforcing discipline in the armed
forces. Thus —
“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.’
(Winthrop's Military Law and Precedents, 2d Edition,
p. 49.) Unlike courts of law, they are not a portion of
the judiciary. 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.”
However, in Garcia v. Executive Secretary, the
Supreme Court clarified that the “general court martial is
a court within the strictest sense of the word and acts as
a criminal court.” Thus —
“In Marcos v. Chief of Staff, Armed Forces of the
Philippines [89 Phil, 246 (1951)], this Court ruled that a
court-martial case is a criminal case and the General Court
Martial is a ‘court’ akin to any other courts. In the case of
Ramon Ruffy vs. Chief of Staff of the Philippine Army, 43
Off. Gaz., 855, we did not hold that the word ‘court’ in
general used in our Constitution does not include a Court-
Martial; what we held is that the words ‘inferior courts’ used
in connection with the appel late jurisdiction of the Supreme
Court to ‘review on appeal certiorari or writ of error, as the
law or rules of court may provide, final judgments of inferior
courts in all criminal cases in which the penalty imposed is
death or life imprisonment,’ as provided for in section 2,
Article VIII, of the Constitution, do not refer to Courts-Martial
or Military Courts.
“The fact that a judgment of conviction, not of acquittal,
rendered by a court-martial must be approved by the
reviewing authority before it can be executed (Article of War
46), does not change or affect the character of a court-martial
as a court. A judgment of the Court of First Instance imposing
death penalty must also be approved by the Supreme Court
before it can be executed.”
As previously observed, the Court added that “the power
to confirm a sentence of the President, as Commander-
in-Chief, includes the power to approve or dis approve
the entire or any part of the sentence given by the court
martial.”
In Kuroda u. Jalandoni, a former commanding general
of the Japanese forces in the Philippines charged with
having permitted his troops to commit atrocities against
civilians and prisoners of war, questioned inter alia
Executive Order No. 68, establishing a national war
crimes office, under which he was being tried. The
Supreme Court, citing the earlier case of Yamashita v.
Styer which upheld the jurisdiction of military
commissions over war criminals, declared that the
promulgation of the challenged order was “an exercise
by the President of his powers as commander-in-chief of
all our armed forces.”
In Aquino v. Military Commission No. 2,100 the
Supreme Court 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 observed in the United States. In the
case of Olaguer v. Military Commission No. 34,101
however, the Aquino decision was reversed and it was
held in part, through Justice Gancayco:
“Due process of law demands that in all criminal
prosecutions (where the accused stands to lose either his
life or his liberty), the accused shall be entitled to,
among others, a trial. (In re Oliver, 333 U.S. 257 [1948];
Sections 1 and 14[2], Article III, 1987 Constitution.)
There appears to be no substantial change from the
corresponding provisions of the 1973 Constitution. The
trial contemplated by the due process clause of the
Constitution, in relation to the Charter as a whole, is a
trial by judicial process, not by executive or military
process. A military commission or tribunal, by whatever
name they are called, are not courts within the Philippine
judicial system. As explained by Justice Teehankee in
his separate dissenting opinion —
(Page 428 - 429) Skipped
In the Garcia case, the Court emphasized that the
“courts” referred to in Olaguer were military
commissions created during martial law while the
General Court Martial was created under
Commonwealth Act No. 408, “and remains a valid
entity.”
In Integrated Bar of the Philippines v. Zamora the
petitioner questioned the command of President Estrada
deploying the Philippine Marines to join the Philippine
National Police in visibility patrols around Metro Manila
for the purpose of crime prevention. The order was
obviously based on the deteriorating peace and order in
the metropolis. The IBP contended that there was no
emergency or a state of “lawless violence” to warrant the
calling of the Armed Forces, which would have the
effect of militarizing the government to the prejudice of
individual liberties and the supremacy of civilian
authority.
The Supreme Court dismissed the petition, holding that
inasmuch as the IBP had not shown that the President
had committed grave abuse of discretion in issuing his
command, it was not inclined to overrule the President’s
determination of the factual basis for the calling of the
Marines. Moreover, it ruled that the IBP was not a
proper party to raise the challenge.
According to the Supreme Court, this so-called “calling-
out power” of the President involves “ordinary police
action,” which would ordinarily not entitle him to
“invoke a greater power when he wishes to act under a
lesser power.” Thus, the Supreme Court nullified in
David v. Arroyo. President Arroyo’s Presidential
Proclamation No. 1017, under which she commanded
“the Armed Forces of the Philippines, to maintain law
and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce obedience to
all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction”
and “as provided in Section 17, Article 12 of the
Constitution” declared a “National Emergency.” The
Court ruled that, while the call made by her upon the
Armed Forces to suppress lawful violence, as well as her
proclamation of a state of national emergency, can be
considered as valid, her reliance on the provisions of
Section 17 of Article XII of the Constitution, which
allows the State, during times of national emergency, to
temporarily take over or direct the operation of any
privately owned public utility or business affected with
public interest for purposes of her proclamation of a
state of national emergency was misplaced. The Court
declared —
“Let it be emphasized that while the President alone can
declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances
exist war ranting the take over of privately-owned public
utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no power to
point out the types of businesses affected with public interest
that should be taken over. In short, the President has no
absolute authority to exercise all the powers of the State under
Section 17, Article VII in the absence of an emergency powers
act passed by Congress.”
Incidentally, the Court clarified in David that the
President “cannot call the military to enforce or
implement certain laws, such as customs laws, laws
governing family and property relations, laws on
obligations and contracts and the like.” He can only
order the military to enforce laws pertinent to its duty to
suppress lawless violence.
It has further been ruled that it is only the President
who is authorized to exercise the calling-out power.
Accordingly, a provincial governor may not validly
issue a proclamation calling upon the Philippine
National Police and the Civil Emergency Force to “set
up check points and choke points, conduct general
search and seizures including arrests, and other actions
necessary to ensure public safety,” by reason of a
kidnapping incident in his area, and on the basis merely
of a general provision in the Local Government Code
entitling him “to carry out emergency measures during
man-made and natural disasters and calamities, and to
call upon the appropriate national law enforcement
agencies to suppress disorder and lawless violence.
The Supreme Court has likewise declared that “the
President’s power to conduct peace negotiations is
implicitly included in her powers as Chief Executive
and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the
more specific duty to prevent and suppress rebellion and
lawless violence.”
Moreover, as previously observed, the President, as
Commander-in-Chief, may validly prohibit a military
officer from testifying in a legislative inquiry, without
prejudice though to the right of the legislative body
seeking such testimony to obtain judicial relief to
compel the attendance of said officer. “Such judicial
action should be directed at the heads of the executive
branch or the armed forces, the persons who wield
authority and control over the actions of the officers
concerned. The legislative purpose of such testimony, as
well as any defenses against the same — whether
grounded on executive privilege, national security or
similar concerns — would be accorded due judicial
evaluation. All the constitutional considerations
pertinent to either branch of government may be raised,
assessed, and ultimately weighed against each other.
And once the courts speak with finality, both branches of
government have no option but to comply with the
decision of the courts, whether the effect of the decision
is to their liking or disfavor.”
In Rodriguez v. Macapagal Arroyo, the Supreme
Court, citing Gonzales v. Abaya, declared that the
President, as Commander-in-Chief, can be held
responsible or accountable for extrajudicial killings
and enforced disappearances in the context of
amparo proceedings on the basis of the doctrine of
command responsibility, the requisites of which are
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of
the crime as his subordinate;
b. the superior knew or had reason to know that the
crime was about to be or had been committed; and
c. the superior failed to take the necessary and
reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.”
According to the Court, the President, being the
commander-in-chief of all the armed forces, is to be
considered as necessarily possessing control over the
military that qualifies him as a superior within the
purview of the doctrine.
Moreover, he can, according to the Court, be presumed
to have knowledge of the commission of irregularities,
crimes or offenses pertinent to said extrajudicial killings
and enforced disappearances. “Meanwhile, as to the
issue of failure to prevent or punish, it is important to
note that as the commander-in-chief of the armed forces,
the president has the power to effectively command,
control and discipline the military.”
In Balao v. Macapagal-Arroyo, the Court clarified that,
in amparo proceedings, “commanders may therefore
be impleaded— not actually on the basis of command
responsibility— but rather on the ground of their
responsibility, or at least accountability.”
(2) Habeas Corpus
To the President is entrusted the power to suspend the
privilege of the writ of habeas corpus. However, this
power is not without limitations and may be revoked by
the Congress or the Supreme Court in proper cases.
The. aforecited provision must be read with Article III,
Section 15, stating as follows:
“The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or
rebellion, when the public safety requires it.”
The writ of habeas corpus “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, to submit to, and receive whatever the court or judge
awarding the writ shall consider in his behalf. It is a high
prerogative common law writ of ancient origin the great
object of which is the liberation of those who may be in
prison without sufficient cause.”
It should be stressed that what is permitted to be
suspended by the President is not the writ itself but its
privilege.
“Suspension of the privilege of the writ of habeas
corpus does not suspend the writ itself, but only its
privilege. This means that when the court receives an
application for the writ, and it finds the petition in proper
form, it will issue the writ as a matter of course, i.e., the
court will issue an order commanding the production
before the court of the person allegedly detained, at a
time and place stated in the order, and requiring the true
cause of his detention to be shown to the court. If the
return to the writ shows that the person in custody was
apprehended and detained in areas where the privilege of
the writ has been suspended or for crimes mentioned in
the executive proclamation, the court will suspend
further proceedings in the action.”
The Supreme Court decidedly has the power to annul the
suspension of the privilege of the writ of habeas corpus
if the same is not based on either of the two grounds
stated in the Constitution, to wit, “invasion or rebellion,
when the public safety requires it.”
In 1951, President Quirino based his suspension of the
privilege of the writ o f habeas corpus on “sedition” and
“imminent danger of insurrection or rebellion.” If he had
not added the latter ground, which was listed in the 1935
charter, the Supreme Court would have, in Montenegro
v. Castaneda, invalidated his proclamation.
Supposing, however, that the suspension is based on the
grounds prescribed by the Constitution, will the Supreme
Court have the competence to ascertain the existence of
such grounds for the purpose of determining the validity
of the suspension?
The Montenegro Case affirmed the doctrine announced
in Barcelon v. Baker and held that the de termination by
the President of the Philippines of the existence of any of
the grounds prescribed by the Constitution for the
suspension of the privilege of the writ of habeas corpus
should be conclusive upon the courts. The justification
was that the President, with all the intelligence sources
available to him as commander-in-chief, was in a better
position than the Supreme Court to as certain the real
state of peace and order in the country.
The doctrine in the above case was subsequently
abandoned in Lansang u. Garcia, where the Supreme
Court declared that it had the power to inquire into the
factual basis of the suspension of the privilege of the
writ of habeas corpus by President Marcos in August
1971 and to annul the same if no legal ground could be
established. Accordingly, hearings were conducted to
receive evidence on this matter, including two closed-
door sessions in which relevant classified information
was divulged by the government to the members of the
Court and three selected lawyers of the petitioners. In the
end, a unanimous Court, after satisfying itself that there
was actually a massive and systematic Communist-
oriented campaign to overthrow the Republic of the
Philippines by force, as claimed by the President,
decided to uphold the suspension.
In Garcia-Padilla v. Enrile, however, the Supreme
Court reversed^ the Lansang decision and revived the
Montenegro doctrine, reiterating that the suspension of
the privilege of the writ of habeas corpus was a political
question to be resolved solely by the President.
Fortunately, though, this ruling has been abrogated by
Section 18, which has expressly constitutionalized the
Lansang doctrine.
It should also be noted that under Article III, Section 13,
“the right to bail shall not be impaired even if the
privilege of the writ of habeas corpus is suspended.”
“The high prerogative writ of habeas corpus, whose
origin is traced to antiquity, was devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint and as the best and efficient defense of
personal freedom.”122 It may therefore not be availed of
by police officers under investigation and subjected to a
“restrictive custody order” issued by their superiors,
limiting their physical movements and liberty to leave
their camps. According to the Supreme Court,
considering that they are not, by reason of their
restrictive custody status, actually detained or
imprisoned, their “minimal restraint” is “beyond the
ambit of habeas corpus
(3) Martial Law
In the case of Aquino v. Enrile, the Supreme Court, by
unanimous vote of its members then, sustained the
proclamation of martial law by President Marcos on
September 21, 1972, but no clear consensus was reached
on the justification for the common conclusion. For this
reason, each of the justices submitted his own opinion of
the rationale for such proclamation. The case has now
only historic interest, however, because of the new
provisions in the 1987 Constitution, quoted above, on
the scope and effects of martial law.
In light of the re-definition of martial law and the
delimitation of its duration and consequences, we may
now say again with Willoughby that martial law in its
strict sense refers to that law which has application
when the military arm does not supersede civil
authority but is called upon to aid it in the execution
of its civil function.
The declaration of martial law, he continues, has no
further legal effect than to warn the citizens “that the
military powers have been called upon by the executive
to assist him in the maintenance of law and order and
that while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any act which will in
any way render difficult the restoration of order and the
enforcement of law. When martial law is declared, no
new powers are given to the executive; no extension of
arbitrary authority is recognized; no civil rights of the
individuals are suspended. The relation of the citizens to
their State is unchanged. Whatever interference there
may be with their personal freedom or property rights
must be justified, as in the case of the police power, by
necessity actually existing or reasonably presumed.
During times of disorder as will lead to a call upon the
military for assistance, necessity naturally demands the
commission of acts which in more tranquil times are not
demanded and thus in fact those in authority may control
the individual in his property in ways which they could
not legally do at other times. But the principle still holds
good that necessity, and necessity alone, will justify an
infringement upon private rights of persons and
property.”
It is significant that while the Supreme Court
acknowledged in David statements made before the
Senate Committee on Justice to the effect that
(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,” it
nevertheless ruled that “to be sure, neither Martial Law
nor a state of rebellion nor a state of emergency can
justify President Arroyo’s exercise of legislative power
by issuing decrees.”
(4) Limitations on the Military Powers
To settle once and for all the extent of the President’s
military powers, the new Constitution has provided for
the following significant changes in the original
authority of the commander-in-chief.
(1) He may call out the armed forces when it becomes
necessary to prevent or suppress lawless violence,
invasion or rebellion only.
(2) The grounds for the suspension of the privilege of
the writ of habeas corpus and the proclamation of
martial law are now limited only to invasion or
rebellion, when the public safely requires it.
(3) The duration of such suspension or proclamation
shall not exceed sixty days, following which it shall be
automatically lifted.
(4) Within forty-eight hours after such suspension or
proclamation, the President shall personally or in
writing report his action to the Congress. If not in
session, Congress must convene within 24 hours without
need of a call.
(5) The Congress may then, by a majority vote of all its
members voting jointly, revoke his action.
(6) The revocation may not be set aside by the President.
(7) By the same vote and in the same manner, the
Congress may, upon initiative of the President, extend
his suspension or proclamation for a period to be
determined by the Congress if the invasion or
rebellion shall continue and the public safety requires
the extension.
(8) The action of the President and the Congress shall be
subject to review by the Supreme Court which shall
have the authority to determine the sufficiency of the
factual basis of such action. This matter is no longer
considered a political question and may be raised in an
appropriate proceeding by any citizen. Moreover, the
Supreme Court must decide the challenge within thirty
days from the time it is filed.
According to the Supreme Court, "it is evident that under
the 1987 Constitution the President and the Congress act
in tandem in exercising the power to proclaim martial
law or suspend the privilege of the writ of habeas
corpus.
They exercise the power, not only sequentially, but in a
sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can
maintain the same based on its own evaluation of the
situation on the ground, a power that the President does
not have.
Consequently, although the Constitution reserves to the
Supreme Court the power to review the sufficiency of
the factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as
its final rampart.
The constitutional validity of the President’s
proclamation of martial law or suspension of the writ of
habeas corpus is first a political question in the hands
of Congress before it becomes a justiciable one in the
hands of the Court.” Moreover, “while it is true that the
Court may inquire into the factual bases for the
President’s exercise of (these powers), it would
generally defer to her judgment on the matter. Unless it
is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the
President’s judgment.”
It is significant that, in Kulayan v. Tan, the Supreme
Court clarified as follows —
“The power to declare a state of martial law is subject
to the Supreme Court’s authority to review the
factual basis thereof. By constitutional fiat, the
calling-out powers, which is of lesser gravity than the
power to declare martial law, is bestowed upon the
President alone, xxx. Congress may revoke such
proclamation or suspension 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.”
(9) Martial law does not automatically suspend the
privilege of the writ of habeas corpus or the operation
of the Constitution. The civil courts and the legislative
bodies shall remain open. Military courts and agencies
are not conferred jurisdiction over civilians where the
civil courts are functioning.
(10) The suspension of the privilege of the writ of
habeas corpus shall apply only to persons facing
charges of rebellion or offenses inherent in or directly
connected with invasion.
Any person arrested for such offenses must be
judicially charged therewith within three days.
Otherwise he shall be released.

The Pardoning Power
The pardoning power is provided for in Article VII as
follows:
“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.
“He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.”
Executive clemency is granted for the purpose of
relieving the harshness of the law or correcting
mistakes in the administration of justice. For example,
a person already serving sentence by virtue of a final
judgment may be extended a pardon if it is subsequently
discovered that he is innocent. Under our Revised Penal
Code, the judge may in his decision make a
recommendation for the pardon of the convict if
warranted by the circumstances of the commission of the
offense, as where the accused is found guilty of killing
her father for raping her.
The exercise of the pardoning power is discretionary
in the President and may not be controlled by the
legislature or reversed by the courts, save only when it
contravenes the limitations discussed below. Thus, it is
incompetent for the Congress to condition the grant of a
pardon by the President upon a previous clearance or
approval by a board of pardons. Neither would it be
justified for the judiciary to order the grant of a pardon
in favor, say, of a reformed criminal.
(1) Definitions
A pardon is an act of grace which exempts the individual
on whom it is bestowed from the punishment which the
law inflicts for the crime he has committed.
A commutation is a reduction or mitigation of the
penalty, e.g., when the death sentence is reduced to life
imprisonment.
A reprieve is merely a postponement of a sentence to a
date certain, or a stay of execution. It may be ordered to
enable the government to secure additional evidence to
ascertain the guilt of the convict or, in the case of the
execution of the death sentence upon a pregnant woman,
to prevent the killing of her unborn child.
(2) Limitations
The following are the constitutional limitations on the
pardoning power of the President:
(1) Pardon cannot be granted in cases of
impeachment. Strictly speaking, an
impeachment proceeding is not a judicial, much less a
criminal, prosecution and therefore does not
essentially come under the pardoning power.
However, the party convicted in an impeachment
proceeding is subject to prosecution, trial and
punishment in an ordinary criminal action and in
this case can be extended a pardon.
(2) No pardon can be granted for the
violation of any election law, rule or regulation
without the favorable recommendation of the
Commission on Elections. But it is to be noted in this
connection that not every offense committed on
election day is to be considered an election
offense. Hence, several persons convicted of
having committed on that day the crime of, say,
qualified theft as punished under the Revised
Penal Code could be validly pardoned without
the necessity of a favorable recommendation from
the Commission on Elections.
(3) Pardon can be granted only after
conviction by final judgment.
In People v. Salle, a conditional pardon
extended to the prisoner while his appeal was still
pending before the Supreme Court was held to be
invalid but, in view of the special circumstances of the
case, he was given 30 days to withdraw his
appeal to make his conviction final and the pardon
effective.
In addition to the foregoing constitutional limitations, a
pardon cannot be extended to a person convicted of
legislative contempt, as this would violate the doctrine
of separation of powers, or of civil contempt since this
would involve the benefit not of the State itself but of
the private litigant whose rights have been violated by
the contemner.
Pardon cannot also be extended for the purpose of
absolving the pardonee of civil liability, including
judicial costs, since, again, the interest that is remitted
does not belong to the State but to the private litigant.
Pardon also will not restore offices forfeited.
(3) Kinds of Pardon
Pardon may be classified into absolute or conditional
and plenary 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 a partial pardon does not.
Where the pardon is conditional, the offender has the
right to reject it 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.
The condition of the pardon shall be co-extensive with
the penalty remitted unless otherwise indicated. Hence,
if the condition is violated after the expiration of the
remitted penalty, there can no longer be any violation
of the conditional pardon. But if the violation takes
place before the expiration of the remitted penalty, the
pardon itself is deemed invalidated and the pardonee
may be either recommitted by the President under the
Administrative Code or prosecuted for violation of
conditional pardon under Article 159 of the Revised
Penal Code. In the latter case, the penalty of prision
correctional in its minimum period shall be imposed
upon the convict, except when the penalty remitted is
higher than six years, in which event he shall serve the
unexpired portion of his original sentence.
It was held in Culanag v. Director of Prisons that the
criminal and administrative remedies above-mentioned
are not mutually exclusive and may be successively
availed of by the President for the punishment of the
violator of the conditional pardon.
In Espuelas v. Provincial Warden of Bohol,, the
petitioner accepted a pardon subject to the condition that
he would not thereafter commit a violation of the penal
laws of the Philippines. He was later convicted by the
municipal court of* the crime of usurpation of public
functions but the case was provisionally dismissed for
lack of witnesses when he appealed it to the court of first
instance. Ordered administratively reincarcerated by the
President of the Philippines for violation of his
conditional pardon, he filed a petition for habeas corpus.
The Supreme Court denied it, holding that “mere
commission, not necessarily conviction by the court, of
any other crime, is enough in order that the petitioner
may be deemed to have violated the condition of his
parole or pardon. Determination of violation of such
condition rests exclusively in the sound judgment of the
Chief Executive and the courts will not interfere by way
of review with any of his findings.”
The Supreme Court did not consider in this case that the
ascertainment of whether or not an offense has been
committed is not an executive but a judicial function and
that a person cannot be deemed to have committed a
criminal offense unless he is convicted thereof by a court
of justice. The executive can only allege the commission
of an offense; it is for the judiciary to declare such
commission in the form of a conviction.
Espuelas was nevertheless later affirmed in Sumolong v.
Gonzales, with Justices Cruz and Paras dissenting.
A convict who has already served his prison term may
still be extended a pardon for the purpose of relieving
him of whatever accessory liabilities have attached to
his offense. For example, under Section 118 of the
Omnibus Election Code, a person who has been
sentenced to imprisonment for not less than one year
shall be disqualified from the exercise of the right of
suffrage for a period of five years from service of the
sentence unless this disability is removed earlier by the
grant of pardon.
(4) Effects of Pardon
The legal effect of a pardon is to restore not only the
offender’s liberty but also his civil and political
rights. In Pelobello u. Palatino, a municipal mayor’s
election was contested on the ground that he was
disqualified from public office because of a prior
conviction and imprisonment. It was shown, however,
that before assuming office following his election he
was granted an absolute pardon by President
Quezon. As a result, the Supreme Court held his former
disabilities had been removed, and he was therefore
eligible for the public office in question.
But the ruling in this case was modified in Monsanto v.
Factoran where a woman 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. Through Chief Justice Marcelo B. Fernan, the
Supreme Court held: (page 449)
The subject of Garcia v. Chairman, Commission on
Audit was an executive clemency or pardon granted to a
public officer. He was dismissed from the service for
dishonesty and later charged with qualified theft for the
same act, but was acquitted by the trial court which
found that “petitioner did not commit the offense
imputed to him. Aside from finding him innocent of the
charge, the trial court commended petitioner for his
concern and dedication as a public servant.” Armed with
said acquittal, he sought reinstatement but was initially
rejected by his former employer. He appealed to the
President, who eventually granted him executive
clemency, on the basis of which he filed with the
Commission on Appointments a claim for back salaries
from the date of his dismissal. The Commission denied
his request stating that “that the executive clemency
granted to him did not provide for the payment of back
salaries and that he has not been reinstated in the
service.” He renewed his claim after he was eventually
reinstated. Again, the Commission rejected the same,
this time, explaining that “the executive clemency was
silent on the payment of back wages and that he had not
rendered service during the period of his claim.” He
eventually sought relief from the Supreme Court, which
ordered the payment of his back salaries from the date of
his dismissal. The Court said —
“Time and again this Court has unfolded the effects of a
pardon upon the individual to whom it is granted. In Monsanto
v. Factoran, we have firmly established the general rule that
while a pardon has generally been regarded as blotting out the
existence of guilt so that in the eyes of the law the offender is
as innocent as though he never committed the offense, it does
not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt and not forgetfulness. It does
not erase the fact of the commission of the crime and the
conviction thereof. Pardon frees the individual from all the
penalties and legal disabilities and restores to him all his civil
rights. Unless expressly grounded on the person's innocence, it
cannot bring back lost reputation for honesty, integrity and fair
dealing. The pardoned offender regains his eligibility for
appointment to public office which was forfeited by reason of
the conviction of the offense. But since pardon does not
generally result in automatic reinstatement because the
offender has to apply for reappointment, he is not entitled to
back wages.
“But, stated otherwise, if the pardon is based on the innocence
of the individual, it affirms this innocence and makes him a
new man and as innocent, as if he had not been found guilty of
the offense charged. When a person is given pardon because
he did not truly commit the offense, the pardon relieves the
party from all punitive consequences of his criminal act,
thereby restoring to him his clean name, good reputation and
unstained character prior to the finding of guilt.
“In the case at bar, petitioner was found administratively liable
for dishonesty and consequently dismissed from the service.
However, he was later acquitted by the trial court of the
charge of qualified theft based on the very same acts for which
he was dismissed. The acquittal of petitioner by the trial court
was founded not on lack of proof beyond reasonable doubt but
on the fact that petitioner did not commit the offense imputed
to him. Aside from finding him innocent of the charge, the
trial court commended petitioner for his concern and
dedication as a public servant. Verily, petitioner's innocence is
the primary reason behind the grant of executive clemency to
him, bolstered by the favorable recommendations for his
reinstatement by the Ministry of Transportation and
Communications and the Civil Service Commission.
“The bestowal of executive clemency on petitioner in effect
completely obliterated the adverse effects of the administrative
decision which found him guilty of dishonesty and ordered his
separation from the service. This can be inferred from the
executive clemency itself exculpating petitioner from the
administrative charge and thereby directing his reinstatement,
which is rendered automatic by the grant of the pardon. This
signifies that petitioner need no longer apply to be rein stated
to his former employment; he is restored to his office ipso
facto upon the issuance of the clemency.
“Petitioner's automatic reinstatement to the government
service entitles him to back wages. This is meant to afford
relief to petitioner who is innocent from the start and to make
reparation for what he has suffered as a result of his unjust
dismissal from the service. To rule otherwise would defeat the
very intention of the executive clemency, i.e., to give justice to
petitioner. Moreover, the right to back wages is afforded to
those with have been illegally dismissed and were thus
ordered reinstated or to those otherwise acquitted of the
charges against them. There is no doubt that petitioner's case
falls within the situations aforementioned to entitle him to
back wages.
“Further, it is worthy to note that the dismissal of petitioner
was not the result of any criminal conviction that carried with
it forfeiture of the right to hold public office, but is the direct
consequence of an administrative decision of a branch of the
Executive Department over which the President, as its head,
has the power of control. The President's control has been
defined to mean ‘the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the
performance of his duties and to the judgment of the former
for the latter.’ In pardoning petitioner and ordering his
reinstatement, the Chief Executive exercised his power of
control and set aside the decision of the Ministry of
Transportation and Communications. The clemency nullified
the dismissal of petitioner and relieved him from
administrative liability. The separation of the petitioner from
the service being null and void, he is thus entitled to back
wages.”
While, as earlier stated, a pardon will not relieve the
pardonee of the civil liability or such other claims as
may pertain to private litigants, it will, however, have
the effect of remitting fines and forfeitures which
otherwise will inure to the interests of the government
itself.
(5) Distinctions
Pardon must be distinguished from parole in that the
latter involves only a release of the convict from
imprisonment but not a restoration of his liberty.
The parolee is still in the custody of the law although no
longer under confinement, unlike the pardonee whose
sentence is condoned, subject only to reinstatement in
case of violation of the condition that may have been
attached to the pardon.
A parole must also be distinguished from probation
in that the former is executive whereas the latter is
judicial. Moreover, parole presupposes the prior service
of part of the sentence whereas probation may be
granted before actual service of sentence.
(6) Amnesty
As previously observed, the pardoning power may not
be limited by the legislature nor may the President’s
discretion in its exercise be reviewed by the judiciary.
But when it comes to amnesty, the Constitution itself
provides that it can be granted by the President only
with the concurrence of the Congress. This
concurrence must be given by a majority of all the
members of the Congress.
It was the rule before that admission of guilt was not
necessary to the enjoyment of amnesty, upon the theory
that amnesty looks backward and obliterates not only the
penalty but the offense itself. In the case of Vera v.
People of the Philippines140 however, this doctrine was
reversed. The present rule requires a previous admission
of guilt since a person would not need the bene fit of
amnesty unless he were, to begin with, guilty of the
offense covered by the proclamation.
The distinctions between amnesty and pardon are as
follows:
(1) Amnesty is usually addressed to crimes against
the sovereignty of the State, to political offenses,
forgiveness being deemed more expedient for the public
welfare than prosecution and punishment; pardon
condones infractions of the peace of the State.
(2) Amnesty is usually generally addressed to classes
or even communities of persons; pardon is usually
addressed to an individual.
(3) In amnesty, there may or may not be distinct acts
or acceptance, so that if other rights are dependent upon
it and are asserted, there is affirmative evidence of
acceptance; in pardon, there must be distinct acts of
acceptance.
(4) Pardon does not require the concurrence of the
Congress; amnesty requires such concurrence.
(5) Pardon is a private act of the President which
must be pleaded and proved by the person pardoned
because the courts do not take judicial notice of it;
amnesty is a public act of which the courts take
judicial notice.
(6) Pardon looks forward and relieves the offender
from the consequences of an offense of which he has
been convicted; 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.
Accordingly, it has been ruled that “amnesty commonly
denotes a general pardon to rebels for their treason or
other high political offenses, or the forgiveness which
one sovereign grants to the subjects of another, who
have offended, by some breach, the law of nations.
Amnesty looks backward, and abolishes and puts into
oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the
person released by amnesty stands before the law
precisely as though he had committed.no offense.”
“Pardon,” on the other hand, “is granted by the Chief
Executive and as such it is a private act which must be
pleaded and proved by the person pardoned, because the
courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the
courts should take judicial notice.”
A grant of amnesty shall cover only such offenses as
may be specified in the proclamation providing for the
same.
 The Diplomatic Power
The Borrowing Power
As head of State, the President is supposed to be the
spokesman of the nation on external affairs. In this
“Sec. 20. The President may contract or guarantee
capacity, he may deal with foreign states and
foreign loans on behalf of the Republic of the
governments, extend or withhold recognition, maintain
Philippines with the prior concurrence of the Monetary
diplomatic relations, enter into treaties, and otherwise
Board, and subject to such limitations as may be
transact the business of foreign relations.
provided by law. The Monetary Board shall, within
thirty days from the end of every quarter of the calendar
The conduct of external affairs, according to Jefferson,
year, submit to the Congress a complete report of its
“is executive altogether.” Chief Justice Marshall
decisions on applications for loans to be contracted or
described the President of the United States as “the sole
guaranteed by the Government or government-owned
organ of the nation in its external relations and its sole
and controlled corporations which would have the effect
representative with foreign nations.”
of increasing the foreign debt, and containing other
matters as may be provided by law.”
It has already been noted that the President of the
Philippines is empowered to appoint ambassadors, other
This provision reverses the extraordinary authority
public ministers and consuls. No less important, he is
granted by the 1973 charter to the President, who grossly
also vested with the power to conclude treaties, except
abused it to the prejudice of the national economy.
that, conformably to the usual rule:
Doubtless, a President concerned only with the
prosperity or success of his own administration may be
“Sec. 21. No treaty or international agreement
tempted to contract or guarantee loans to subsidize his
shall be valid and effective unless concurred in
program of government and leave it to succeeding
by at least two-thirds of all the Members of the
administrations to pay off the obligations he has incurred
Senate.”
on behalf of the Republic of the Philippines.
Interestingly, the records of the Constitutional
Apart from being unfair to the future generations of
Commission show that the phrase “international
taxpayers who will inherit the burden but not the
agreement” was not intended to include the executive
benefits of these debts, such a policy could also enable
agreement, which apparently can still be concluded by
foreign lending institutions, like the World Bank and the
the President alone without the necessity of Senate
International Monetary Fund, to impose conditions on
concurrence. This is a rather strange decision in the light
these loans that might impair our economic and even
of the general intention to limit the President’s powers as
political independence. It is fitting, therefore, that the
a hedge against the resurgence of another dictatorship.
power is now made subject to the limitations provided
for in the above section.
An executive agreement, according to the Supreme
Court, is a treaty within the meaning of that word in
According to the Supreme Court, “the fact that this
international law and constitutes enforceable
power is subject to the concurrence of another entity
domestic law.
does not make such power less executive.”
Unlike a treaty though, an executive agreement does
“‘Quintessential’ is defined as the most perfect
not require legislative concurrence, is usually less
embodiment of something, the concentrated essence of
formal and deals with a narrower range of subjects.
substance. On the other hand, ‘non-delegable’ means
All that would be required for its efficacy would be the
that a power or duty cannot be delegated to another or,
agreement must be between states; it must be written;
even if delegated, the responsibility remains with the
and it must be governed by international law.
obligor. The power to enter into an executive agreement
is in essence an executive power. This authority of the
A “Contract Agreement” entered into by a Philippine
President to enter into executive agreements without the
government-owned or controlled corporation and a
concurrence of the Legislature has traditionally been
“state” corporation “duly organized and created under
recognized in Philippine jurisprudence. Now, the fact
the laws of the People’s Republic of China,” which was
that the President has to secure the prior concurrence of
executed by them “as entities with personalities distinct
the Monetary Board, which shall submit to Congress a
and separate from the Philippine and Chinese
complete report of its decision before contracting or
governments, respectively” was considered not as an
guaranteeing foreign loans, does not diminish the
executive agreement but as “an ordinary commercial
executive nature of the power.”
contract that can be questioned before the local courts.”

In Bay an Muna u. Romulo, the Court further clarified
that the “terms ‘exchange of notes’ and ‘executive
agreements’ have been used interchangeably, exchange
of notes being considered a form of executive agreement
that becomes binding through executive action. On the
other hand, executive agreements concluded by the
President ‘sometimes take the form of exchange of notes
and at other times that of more for mal documents
denominated ‘agreements’ or ‘protocols.’” Moreover —
“Under international law, there is no difference between
treaties and executive agreements in terms of their binding
effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their powers.
Neither, on the domestic sphere, can one be held valid if it
violates the Constitution. Authorities are, however, agreed that
one is distinct from another for accepted reasons apart from
the concurrence-requirement aspect. As has been observed by
US constitutional scholars, a treaty has greater ‘dignity" than
an executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people; a ratified treaty, unlike
an executive agreement, takes precedence over any prior
statutory enactment.”
It is significant that the Court further declared in said
case that “treaties and international agreements actually
have a limiting effect on the otherwise encompassing
and absolute nature of sovereignty.” Thus —
“To be sure, the nullity of the subject non-surrender agreement
cannot be predicated on the postulate that some of its
provisions constitute a virtual abdication of its sovereignty.
Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive
Philippines isolated from the rest of the world. It even adheres,
as earlier stated, to the policy of cooperation and amity with
all nations. By their nature, treaties and international
agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some
aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual
underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the same
privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of
international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.
Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.”
However, an executive agreement cannot be used to
amend a duly ratified and existing treaty, such as the
RP-US Bases Treaty.
“An executive agreement that does not require the
concurrence of the Senate for its ratification may not
be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of
the Executive and the Senate.
In Pimentel u. Executive Secretary, the petitioner
sought to compel the Office of the Executive Secretary
and the Department of Foreign Affairs to transmit the
signed copy of the Rome Statute of the International
Criminal Court to the Senate of the Philippines for its
concurrence in accordance with Section 21, Article VII
of the 1987 Constitution. The Supreme Court dismissed
the petition, stating —
“In filing this petition, the petitioners interpret Section
21, Article VII of the 1987 Constitution to mean that the
power to ratify treaties belongs to the Senate. It should
be emphasized that under our Constitution, the power to
ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its
consent, or concurrence, to the ratification.
Hence, it is within the authority of the President to
refuse to submit a treaty to the Senate , having secured
its consent for its ratification, refuse to ratify it.
Although the refusal of a state to ratify a treaty which
has been signed in its behalf is a serious step that should
not be taken lightly, such decision is within the
competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking to enjoin
the President in the performance of his official duties.
The Court, therefore, cannot issue the writ of mandamus
prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the
government to transmit the signed text of Rome Statute
to the Senate.”
Indeed, the treaty-making power is exclusive to the
President. Congress, while possessing vast legislative
powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for
Senate concurrence, such pertains only to the validity of
the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is
not even Congress as a whole that has been given the
authority to concur as a means of checking the treaty-
making power of the President, but only the Senate.
Treaties and other international agreements concluded
by the President are also subject to check by the
Supreme Court, which has the power to declare them
unconstitutional
The Budgetary Power
Originally vested in the President by the Commonwealth
Constitution but thereafter transferred to the Prime
Minister by the 1973 Charter, the budgetary power is
once again conferred on the President by the following
provision:
“Sec. 22. The President shall submit to the
Congress within thirty days from the opening of
every regular session, as the basis of the general
appropriations bill, a budget of expenditures and
sources of financing, including receipts existing
and proposed revenue measures.”
This power is properly entrusted to the executive
department as it is the President who, as chief
administrator and enforcer of the laws, is in the best
position to determine the needs of the government and
propose the corresponding appropriations therefor on the
basis of existing or expected sources of revenue. “In the
chief executive dwell the powers to run government.
Placed upon him is the power to recommend the budget
necessary for the operation of the Government, which
implies that he has the necessary authority to evaluate
and determine the structure that each government agency
in the executive department would need to operate in the
most economical and efficient manner.”
In this connection, it is reminded that “the Congress
may not increase the appropriations recommended
by the President for the operation of the Government
as specified in the budget.
The Informing Power
“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.”
Although couched in mandatory language, the first
sentence of this provision does not as a rule impose a
compellable duty on the President. In his discretion, he
may or may not give information to the legislature, al
though he will usually choose to do so for practical rea
sons. For one thing, he will want to maintain the good
will of the Congress and so will not deny its request for
information if its release will not in his belief prejudice
the public interest. For another, the requested
information may be needed as the basis of the legislation
he is recommending and he knows that lacking such
basis the legislature would be justified in not acting on
his proposals.
When President Washington withheld from the U.S.
Congress requested information relating to the
negotiation of a treaty, the legislators did not press the
issue. But when President Nixon refused to release
information concerning the Watergate scandal, claiming
what he called “executive privilege,” the U.S. Supreme
Court held his refusal invalid, declaring in part as
follows:
“x x x 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
calls for great deference from the courts. However, when
the privilege depends solely on the broad, un
differentiated claim of public interest in the
confidentiality of such conversations, a confrontation
with other values arises. Absent a claim of need to
protect military, diplomatic, or sensitive national
security secrets, we find it 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 in-camera inspection with all the protection that a
district court will be obliged to provide.”
The President usually discharges the informing power
through what is known as the state-of-the-nation
address, which is delivered at the opening of the
regular session of the legislature. He may also appear
before it at any other time for the same purpose.
Other Powers
Elsewhere in the Constitution, the President is vested
with the power to call the Congress to special
session,160 to approve or veto bills,161 to consent to the
deputization of government personnel by the
Commission on Elections,162 to discipline its
deputies,163 and by delegation, to exercise
emergency164 and tariff powers.165
Resume
The following eloquent observations of Prof. Clinton
Rossiter are a fitting resume of the foregoing study of
the powers of the President and their limitations:

“xxx the President is not a Gulliver immobilized by ten

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