Constitutional Law 1 (JD)
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EXECUTIVE DEPARTMENT
Sections 1 to 23 of Article VII of the 1987
Philippine Constitution
Romulo L. Neri vs. Senate Committee
on Accountability of Public Officers
and Investigations, et al., G.R. No.
180643, March 25, 2008
There are two (2) kinds of executive privilege;
one is the presidential communications
privilege and, the other is the deliberative
process privilege.
Presidential communications privilege applies
to decision-making of the President while, the
deliberative process privilege, to decision-
making of executive officials.
The first is rooted in the constitutional
principle of separation of power and the
President's unique constitutional role; the
second on common law privilege. Unlike the
deliberative process privilege, the presidential
communications privilege applies to
documents in their entirety, and covers final
and post-decisional materials as well as pre-
deliberative ones. As a consequence,
congressional or judicial negation of the
presidential communications privilege is
always subject to greater scrutiny than denial
of the deliberative process privilege.
The elements of presidential communications
privilege, to wit:
1) The protected communication must
relate to a "quintessential and non-
delegable presidential power."
2) The communication must be authored
or "solicited and received" by a close
advisor of the President or the President
himself. The judicial test is that an
advisor must be in "operational
proximity" with the President.
Atty. Madel P. Villaroman-Fiel
3) The presidential communications
privilege remains a qualified privilege
that may be overcome by a showing of
adequate need, such that the
information sought "likely contains
important evidence" and by the
unavailability of the information
elsewhere by an appropriate
investigating authority.
In the case at bar, Executive Secretary Ermita
premised his claim of executive privilege on the
ground that the communications elicited by the
three (3) questions "fall under conversation and
correspondence between the President and public
officials" necessary in "her executive and policy
decision-making process" and, that "the
information sought to be disclosed might impair
our diplomatic as well as economic relations with
the People's Republic of China." Simply put, the
bases are presidential communications privilege
and executive privilege on matters relating to
diplomacy or foreign relations.
Using the above elements, we are convinced that,
indeed, the communications elicited by the three
(3) questions are covered by the presidential
communications privilege.
First, the communications relate to a
"quintessential and non-delegable power" of the
President, i.e. the power to enter into an executive
agreement with other countries. This authority of
the President to enter into executive agreements
without the concurrence of the Legislature has
traditionally been recognized in Philippine
jurisprudence.
Second, the communications are "received" by a
close advisor of the President. Under the
"operational proximity" test, petitioner can be
considered a close advisor, being a member of
President Arroyo's cabinet.
Third, there is no adequate showing of a
compelling need that would justify the limitation of
the privilege and of the unavailability of the
information elsewhere by an appropriate
investigating authority.
Akbayan Citizens Action Party
1

(AKBAYAN), et al., vs. Thomas G.
Aquino, et al., G.R. No. 170516, July
16, 2008*
Privileged character of diplomatic
negotiations
In PMPF vs. Manglapus, the Court stressed the
“secrecy of negotiations” with foreign countries
is not violative of the constitutional provisions
of freedom of speech or of the press nor of the
freedom of access to information." The
Resolution went on to state, thus:
The nature of diplomacy requires
centralization of authority and expedition of
decision which are inherent in executive
action. Another essential characteristic of
diplomacy is its confidential nature.
Applying the principles adopted in PMPF vs.
Manglapus, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential –
since there should be "ample opportunity for
discussion before [a treaty] is approved" –
the offers exchanged by the parties during the
negotiations continue to be privileged even after
the JPEPA is published. It is reasonable to conclude
that the Japanese representatives submitted their
offers with the understanding that "historic
confidentiality" would govern the same. Disclosing
these offers could impair the ability of the
Philippines to deal not only with Japan but with
other foreign governments in future negotiations.
The earlier discussion on PMPF vs. Manglapus
shows that the privilege for diplomatic negotiations
is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties
by shielding such negotiations from public view.
Similar to the privilege for presidential
communications, the diplomatic negotiations
privilege seeks, through the same means, to protect
the independence in decision-making of the
President, particularly in its capacity as "the sole
organ of the nation in its external relations, and its
sole representative with foreign nations." And, as
with the deliberative process privilege, the privilege
accorded to diplomatic negotiations arises, not on
account of the content of the information per se,
but because the information is part of a process of
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Atty. Madel P. Villaroman-Fiel
deliberation which, in pursuit of the public interest,
must be presumed confidential.
Clearly, the privilege accorded to diplomatic
negotiations follows as a logical consequence
from the privileged character of the
deliberative process.
There being a public policy supporting a
privilege for diplomatic negotiations for the
reasons explained above, the Court sees no
reason to modify, much less abandon, the
doctrine in PMPF vs. Manglapus.
Whether there is sufficient public interest to
overcome the claim of privilege
It being established that diplomatic
negotiations enjoy a presumptive privilege
against disclosure, even against the demands of
members of Congress for information, the
Court shall now determine whether petitioners
have shown the existence of a public interest
sufficient to overcome the privilege in this
instance.
To clarify, there are at least two kinds of public
interest that must be taken into account. One is
the presumed public interest in favor of
keeping the subject information confidential,
which is the reason for the privilege in the first
place, and the other is the public interest in
favor of disclosure, the existence of which must
be shown by the party asking for information.
The deliberative process privilege is a qualified
privilege and can be overcome by a sufficient
showing of need. This need determination is to
be made flexibly on a case-by-case, ad hoc
basis – a balancing of competing interests
taking into account factors such as "the
relevance of the evidence," "the availability of
other evidence," "the seriousness of the
litigation," "the role of the government," and
the "possibility of future timidity by
government employees.
Petitioners have failed to present the strong and
"sufficient showing of need" referred to in the
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immediately cited cases. The arguments they
proffer to establish their entitlement to the subject
documents fall short of this standard.
SECTION 7 – Rules For Filling A Vacancy At
The Beginning Of The Term
The President-elect and the Vice President-elect
shall assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice
President-elect shall act as President until the
President-elect shall have qualified.
If a President shall not have been chosen, the Vice
President-elect shall act as President until a
President shall have been chosen and qualified.
If at the beginning of the term of the President, the
President-elect shall have died or shall have
become permanently disabled, the Vice President-
elect shall become President.
Where no President and Vice-President shall have
been chosen or shall have qualified, or where both
shall have died or become permanently disabled,
the President of the Senate or, in case of his
inability, the Speaker of the House of
Representatives, shall act as President until a
President or a Vice-President shall have been
chosen and qualified.
The Congress shall, by law, provide for the manner
in which one, who is to act as President shall be
selected until a President or a Vice-President shall
have qualified, in case of death, permanent
disability, or inability of the officials mentioned in
the next preceding paragraph.
Significance of the Provision
1. The President has no right to “hold
over.”
2. Death or permanent disability of the
President-elect: Vice President-elect
shall become President.
Failure of the President-elect to qualify:
Vice President-elect shall ACT as
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President UNTIL the President-elect
shall have qualified.
President shall not have been chosen:
Vice President-elect shall ACT as
President UNTIL a President shall have
been chosen and qualified.
In case of default of both President and
Vice President by any of the reason
provided: The President of the Senate or
the Speaker of the House of
Representatives, as the case may be,
shall ACT as President or Vice-
President.
In the event of inability of the officials
mentioned, Congress may, by law,
provide for the manner of selection of
the person who will act as President or
Vice President.
SECTION 8 – Rules For Filling A Vacancy
During The Term
1. Death, permanent disability, removal
from office or resignation of the
President: Vice President shall become
the President.
Constructive Resignation
Joseph E. Estrada vs. Aniano
Desierto, et al., G.R. No. 146710-15,
March 2, 2001 (supra.)
Joseph E. Estrada vs. Gloria
Macapagal-Arroyo, G.R. No. 146738,
March 2, 2001
FACTS
Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he
submits that the office of the President was not
vacant when respondent Arroyo took her oath as
President.
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The issue brings under the microscope the meaning
of section 8, Article VII of the Constitution, which
provides:
"Sec. 8. In case of death, permanent disability,
removal from office or resignation of the President,
the Vice President shall become the President to
serve the unexpired term. In case of death,
permanent disability, removal from office, or
resignation of both the President and Vice
President, the President of the Senate or, in case of
his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice President shall have been
elected and qualified."
ISSUE
The issue then is whether the petitioner
resigned as President or should be considered
resigned as of January 20, 2001 when
respondent took her oath as the 14th President
of the Public.
HELD
Resignation is not a high level legal
abstraction. It is a factual question and its
elements are beyond quibble: there must
be an intent to resign and the intent
must be coupled by acts of
relinquishment. The validity of a resignation
is not government by any formal requirement
as to form. It can be oral. It can be written. It
can be express. It can be implied. As long as the
resignation is clear, it must be given legal
effect.
In the cases at bar, the facts show that
petitioner did not write any formal letter of
resignation before he evacuated Malacañang
Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner
resigned has to be determined from his act and
omissions before, during and after January 20,
2001 or by the totality of prior,
contemporaneous and posterior facts
and circumstantial evidence bearing a
material relevance on the issue.
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Using this totality test, we hold that
petitioner resigned as President.
In sum, we hold that the resignation of the
petitioner cannot be doubted. It was confirmed by
his leaving Malacañang. In the press release
containing his final statement, (1) he acknowledged
the oath-taking of the respondent as President of
the Republic albeit with reservation about its
legality; (2) he emphasized he was leaving the
Palace, the seat of the presidency, for the sake of
peace and in order to begin the healing process of
our nation. He did not say he was leaving the
Palace due to any kind inability and that he was
going to re-assume the presidency as soon as the
disability disappears: (3) he expressed his gratitude
to the people for the opportunity to serve them.
Without doubt, he was referring to the past
opportunity given him to serve the people as
President (4) he assured that he will not shirk from
any future challenge that may come ahead in the
same service of our country. Petitioner's reference
is to a future challenge after occupying the office of
the president, which he has given up; and (5) he
called on his supporters to join him in the
promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national
spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The
press release was petitioner's valedictory, his final
act of farewell. His presidency is now in the part
tense.
The court declared that the elements of valid
resignation are (1) intent to resign; and (2) act
of relinquishment. Both were present when
President Estrada left the palace.
2. Death, permanent disability, removal
from office or resignation of the
President and Vice President: the Senate
President or, in case of his inability the
Speaker of the House of
Representatives, shall act as President
until a President or Vice President shall
be elected and qualified
Civil Liberties Union vs. The
Executive Secretary, G.R. No. 83896,
February 22, 1991
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The threshold question therefore is: Does the
prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned
admit of the broad exceptions made for
appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference
is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of
his position, no appointive official shall hold
any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including government-
owned or controlled corporation or their
subsidiaries?"
HELD
We rule in the negative.
It is quite notable that in all these provisions
on disqualifications to hold other office or
employment, the prohibition pertains to an
office or employment in the government and
government-owned or controlled corporations
or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states
that "The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided
in this Constitution, hold any other office or
employment during their tenure." In the latter
provision, the disqualification is absolute, not
being qualified by the phrase "in the
Government." The prohibition imposed on the
President and his official family is therefore all-
embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the
second sentence provides: "They shall not,
during said tenure, directly or indirectly,
practice any other profession, participate in
any business, or be financially interested in any
contract with, or in any franchise, or special
privilege granted by the Government or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries." These
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sweeping, all-embracing prohibitions imposed
on the President and his official family, which
prohibitions are not similarly imposed on other
public officials or employees such as the
Members of Congress, members of the civil
service in general and members of the armed
forces, are proof of the intent of the 1987
Constitution to treat the President and his
official family as a class by itself and to impose
upon said class stricter prohibitions.
Thus, while all other appointive officials in the
civil service are allowed to hold other office or
employment in the government during their
tenure when such is allowed by law or by the
primary functions of their positions, members
of the Cabinet, their deputies and assistants
may do so only when expressly authorized by
the Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the general
rule applicable to all elective and appointive
public officials and employees, while Section
13, Article VII is meant to be the exception
applicable only to the President, the Vice-
President, Members of the Cabinet, their
deputies and assistants.
This being the case, the qualifying phrase
"unless otherwise provided in this
Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided
under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying
phrase as respondents would have us do, would
render nugatory and meaningless the manifest
intent and purpose of the framers of the
Constitution to impose a stricter prohibition on
the President, Vice-President, Members of the
Cabinet, their deputies and assistants with
respect to holding other offices or employment
in the government during their tenure.
The prohibition against holding dual or
multiple offices or employment under Section
13, Article VII of the Constitution must not,
however, be construed as applying to posts
occupied by the Executive officials specified
therein without additional compensation in an
5

ex-officio capacity as provided by law and as
required by the primary functions of said
officials' office. The reason is that these posts
do no comprise "any other office" within the
contemplation of the constitutional prohibition
but are properly an imposition of additional
duties and functions on said officials.
To reiterate, the prohibition under Section 13,
Article VII is not to be interpreted as covering
positions held without additional
compensation in ex-officio capacities as
provided by law and as required by the primary
functions of the concerned official's office. The
term ex-officio means "from office; by virtue of
office." It refers to an "authority derived from
official character merely, not expressly
conferred upon the individual character, but
rather annexed to the official position." Ex-
officio likewise denotes an "act done in an
official character, or as a consequence of office,
and without any other appointment or
authority than that conferred by the office." An
ex-officio member of a board is one who is a
member by virtue of his title to a certain office,
and without further warrant or appointment.
The term "primary" used to describe
"functions" refers to the order of importance
and thus means chief or principal function. The
term is not restricted to the singular but may
refer to the plural. The additional duties must
not only be closely related to, but must be
required by the official's primary functions.
The ex-officio position being actually and in
legal contemplation part of the principal office,
it follows that the official concerned has no
right to receive additional compensation for his
services in the said position. The reason is that
these services are already paid for and covered
by the compensation attached to his principal
office.
WHEREFORE, subject to the qualification
above-stated, the petitions are GRANTED.
Executive Order No. 284 is hereby declared
null and void and is accordingly set aside.
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POWERS OF THE PRESIDENT
A. Executive Power
Cases:
National Electrification
Administration vs. Court of Appeals,
G.R. No. 143481, February 15, 2002
Under our system of government all executive
departments, bureaus and offices are under the
control of the President of the
Philippines. This precept is embodied in
Article VII, Section 17 of the Constitution,
which provides as follows:
“Sec. 17. The President shall have control of all
the executive departments, bureaus and
offices. He shall ensure that the laws be
faithfully executed.”
The presidential power of control over the
executive branch of government extends to all
executive employees from Cabinet Secretary to
the lowliest clerk. The constitutional vesture of
this power in the President is self-executing
and does not require statutory
implementation, nor may its exercise be
limited, much less withdrawn, by the
legislature.
Executive officials who are subordinate to the
President should not trifle with the President’s
constitutional power of control over the
executive branch. There is only one Chief
Executive who directs and controls the entire
executive branch, and all other executive
officials must implement in good faith his
directives and orders. This is necessary to
provide order, efficiency and coherence in
carrying out the plans, policies and programs
of the executive branch.
B. Residual Power
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Ferdinand E. Marcos, et al. vs. to the early 1900's, and the swing from the
Honorable Raul Manglapus, et al., presidency by commission to Lincoln's
G.R. No. 88211, September 15, 1989 dictatorship, he concluded that "what the
(Decision) and October 27, 1989 presidency is at any particular moment
(Resolution) depends in important measure on who is
President."
The issue is basically one of power: whether or
not, in the exercise of the powers granted by The Power Involved
the Constitution, the President may prohibit
the Marcoses from returning to the The Constitution declares among the guiding
Philippines. principles that "the prime duty of the
Government is to serve and protect the people"
and that "the maintenance of peace and order,
Executive Power
the protection of life, liberty, and property, and
the promotion of the general welfare are
The Constitution provides that "the executive
essential for the enjoyment by all the people of
power shall be vested in the President of the
the blessings of democracy."
Philippines." However, it does not define what
is meant by executive power" although in the
Admittedly, service and protection of the
same article it touches on the exercise of
people, the maintenance of peace and order,
certain powers by the President, i.e., the power
the protection of life, liberty and property, and
of control over all executive departments,
the promotion of the general welfare are
bureaus and offices, the power to execute the
essentially ideals to guide governmental
laws, the appointing power, the powers under
action.
the commander-in-chief clause, the power to
grant reprieves, commutations and pardons,
To the President, the problem is one of
the power to grant amnesty with the
balancing the general welfare and the
concurrence of Congress, the power to
common good against the exercise of rights of
contract or guarantee foreign loans, the
certain individuals. The power involved is the
power to enter into treaties or international
President's residual power to protect the
agreements, the power to submit the budget to
general welfare of the people. It is founded on
Congress, and the power to address Congress.
the duty of the President, as steward of the
people. It is a power borne by the President's
The inevitable question then arises: by
duty to preserve and defend the Constitution.
enumerating certain powers of the President
It also may be viewed as a power implicit in
did the framers of the Constitution intend that
the President's duty to take care that the laws
the President shall exercise those specific
are faithfully executed.
powers and no other? Are these enumerated
powers the breadth and scope of "executive
power"? Petitioners advance the view that the
President's powers are limited to those
specifically enumerated in the 1987
Constitution. Thus, they assert: "The President
has enumerated powers, and what is not SECTION 17 – Power of Control
enumerated is impliedly denied to her.
Lacson-Magallanes Co., Inc. vs. Jose
Reviewing how the powers of the U.S. Paño, G.R. No. L-27811, November 17,
President were exercised by the different 1967
persons who held the office from Washington
7

Control simply means "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."
The President is not expected to perform in
person all the multifarious executive and
administrative functions. The Office of the
Executive Secretary is an auxiliary unit which
assists the President. The rule which has thus
gained recognition is that "under our
constitutional setup the Executive Secretary
who acts for and in behalf and by authority of
the President has an undisputed jurisdiction to
affirm, modify, or even reverse any order" that
the Secretary of Agriculture and Natural
Resources, including the Director of Lands,
may issue.
SECTION 16 – Power of Appointment
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.
Cases:
Bruno Aparri vs. Court of Appeals, et
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al., G.R. No. L-30057, January 31,
1984
Meaning of Appointment
By "appointment" is meant the act of
designation by the executive officer, board or
body, to whom that power has been delegated,
of the individual who is to exercise the
functions of a given office.
Mary Concepcion Bautista vs.
Senator Jovito Salonga, et al., G.R.
No. 86439, April 13, 1989
Second Sentence of Section 16
The threshold question that has really come to
the fore is whether the President, subsequent
to her act of 17 December 1988, and after
petitioner Bautista had qualified for the office
to which she had been appointed, by taking the
oath of office and actually assuming and
discharging the functions and duties thereof,
could extend another appointment to the
petitioner on 14 January 1989, an "ad interim
appointment" as termed by the respondent
Commission on Appointments or any other
kind of appointment to the same office of
Chairman of the Commission on Human
Rights that called for confirmation by the
Commission on Appointments.
HELD
The Court, with all due respect to both the
Executive and Legislative Departments of
government, and after careful deliberation, is
constrained to hold and rule in the negative.
When Her Excellency, the President converted
petitioner Bautista's designation as Acting
Chairman to a permanent appointment as
Chairman of the Commission on Human
Rights on 17 December 1988, significantly she
advised Bautista (in the same appointment
letter) that, by virtue of such appointment, she
could qualify and enter upon the performance
of the duties of the office (of Chairman of the
Commission on Human Rights). All that
8

remained for Bautista to do was to reject or
accept the appointment. Obviously, she
accepted the appointment by taking her oath of
office before the Chief Justice of the Supreme
Court, Hon. Marcelo B. Fernan and assuming
immediately thereafter the functions and
duties of the Chairman of the Commission on
Human Rights. Bautista's appointment
therefore on 17 December 1988 as Chairman of
the Commission on Human Rights was a
completed act on the part of the President.
When the appointment is one that the
Constitution mandates is for the President to
make without the participation of the
Commission on Appointments, the executive's
voluntary act of submitting such appointment
to the Commission on Appointments and the
latter's act of confirming or rejecting the
same, are done without or in excess of
jurisdiction.
Under this heading, we will assume, ex gratia
argumenti, that the Executive may voluntarily
allow the Commission on Appointments to
exercise the power of review over an
appointment otherwise solely vested by the
Constitution in the President. Yet, as already
noted, when the President appointed petitioner
Bautista on 17 December 1988 to the position
of Chairman of the Commission on Human
Rights with the advice to her that by virtue of
such appointment (not, until confirmed by the
Commission on Appointments), she could
qualify and enter upon the performance of her
duties after taking her oath of office, the
presidential act of appointment to the subject
position which, under the Constitution, is to be
made, in the first place, without the
participation of the Commission on
Appointments, was then and there a complete
and finished act, which, upon the acceptance
by Bautista, as shown by her taking of the oath
of office and actual assumption of the duties of
said office, installed her, indubitably and
unequivocally, as the lawful Chairman of the
Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in
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the subject office on 14 January 1989 to which
an appointment could be validly made.
Jesulito Manalo vs. Pedro Sistoza, et
al., G.R. No. 107369, August 11, 1999
Under Section 16, Article VII, of the
Constitution, there are four groups of officers
of the government to be appointed by the
President:
First, the heads of the executive departments,
ambassadors, other public ministers and
consuls, officers of the armed forces from the
rank of colonel or naval captain, and other
officers whose appointments are vested in him
in this Constitution;
Second, all other officers of the Government
whose appointments are not otherwise
provided for by law;
Third, those whom the President may be
authorized by law to appoint;
Fourth, officers lower in rank whose
appointments the Congress may by law vest in
the President alone.
It is well-settled that only presidential
appointments belonging to the first group
require the confirmation by the Commission on
Appointments.
Congress cannot by law expand the power of
confirmation of the Commission on
Appointments and require confirmation of
appointments of other government officials not
mentioned in the first sentence of Section 16 of
Article VII of the 1987 Constitution.
STEPS IN THE APPOINTING PROCESS
1. Nomination by the President;
2. Confirmation by the Commission on
Appointments;
3. Issuance of the Commission; and
4. Acceptance by the Appointee
9

The Supreme Court declared that an appointment
is deemed complete only upon acceptance.
Pending such acceptance, which is optional to the
appointee, the appointment may still be withdrawn.
Appointment to a public office cannot be forced
upon any citizen except for purposes of defense of
the State under Section 4, Article I, as an exception
to the rule against involuntary servitude. (Lacson
vs. Romero 84 Phil. 740)
SECTION 15 – Midnight Appointments
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.
Conrado De Rama vs. Court of
Appeals, G.R. No. 131136, February
28, 2001
The records reveal that when the petitioner
brought the matter of recalling the
appointments of the fourteen (14) private
respondents before the CSC, the only reason he
cited to justify his action was that these were
"midnight appointments" that are forbidden
under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and
correctly so, that the said prohibition applies
only to presidential appointments. In truth
and in fact, there is no law that prohibits local
elective officials from making appointments
during the last days of his or her tenure.
Power of Removal
As the general rule, the power of removal may
be implied from the power of appointment.
However, the President cannot remove officials
appointed by him where the Constitution
prescribes certain methods for separation of
such officers from public service.
Constitutional Law 1 (JD)
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In the cases where the power of removal is
lodged in the President, the same may be
exercised only for cause as may be provided by
law, and in accordance with the prescribed
administrative procedure.
Alba vs. Evangelista, et al., G.R. Nos.
L-10360 and L-10433, January 17,
1957
A public office is the right, authority and duty,
created and conferred by law, by which for a
given period, either fixed by law or enduring at
the pleasure of the creating power, an
individual is invested with some portion of the
sovereign function of government, to be
exercised by him for the benefit of the public.
It is an established rule that when the law
authorizes a superior officer to remove a
subordinate at pleasure his discretion in the
exercise of the power of removal is absolute. As
long as the removal is effected in accordance
with the procedure prescribed by law, it may
not be declared invalid by the courts, no matter
how reprehensible and unjust the motives of
the removal might be.
SECTION 18 – Military Powers
SANLAKAS, et al. vs. Executive
Secretary, et al., G.R. No. 159085,
February 23, 2004
It is true that for the purpose of exercising the
calling out power the Constitution does not
require the President to make a declaration of a
state of rebellion.
It is equally true that Section 18, Article VII
does not expressly prohibit the President from
declaring a state of rebellion. Note that the
Constitution vests the President not only
with Commander-in-Chief powers but, first
and foremost, with Executive powers.
Thus, the President's authority to declare a
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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.
It is not disputed that the President has full
discretionary power to call out the armed
forces and to determine the necessity for the
exercise of such power. While the Court may
examine whether the power was exercised
within constitutional limits or in a manner
constituting grave abuse of discretion, none of
the petitioners here have, by way of proof,
supported their assertion that the President
acted without factual basis.
The argument that the declaration of a state of
rebellion amounts to a declaration of martial law
and, therefore, is a circumvention of the report
requirement, is a leap of logic. There is no
indication that military tribunals have replaced civil
courts in the "theater of war" or that military
authorities have taken over the functions of civil
government. There is no allegation of curtailment
of civil or political rights. There is no indication
that the President has exercised judicial and
legislative powers. In short, there is no illustration
that the President has attempted to exercise or has
exercised martial law powers.
Nor by any stretch of the imagination can the
declaration constitute an indirect exercise of
emergency powers, which exercise depends upon a
grant of Congress pursuant to Section 23 (2),
Article VI of the Constitution.
The petitions do not cite a specific instance
where the President has attempted to or has
exercised powers beyond her powers as Chief
Executive or as Commander-in-Chief. The
President, in declaring a state of rebellion and
in calling out the armed forces, was merely
exercising a wedding of her Chief Executive
and Commander-in-Chief powers. These are
purely executive powers, vested on the
President by Sections 1 and 18, Article VII, as
opposed to the delegated legislative powers
contemplated by Section 23 (2), Article VI.
Constitutional Law 1 (JD)
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Prof. Randolf David, et al. vs. Gloria
Macapagal-Arroyo, G.R. No. 171396,
May 3, 2006 (supra.)
Petitioners, particularly the members of the House
of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislature’s emergency
powers.
This is an area that needs delineation.
A distinction must be drawn between the
President’s authority to declare "a state of
national emergency" and to exercise
emergency powers. To the first, as elucidated
by the Court, Section 18, Article VII grants the
President such power, hence, no legitimate
constitutional objection can be raised. But to
the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds
of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the
existence of a state of war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and
proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second
paragraph of the above provision refers not
only to war but also to "other national
emergency." If the intention of the Framers of
our Constitution was to withhold from the
President the authority to declare a "state of
national emergency" pursuant to Section 18,
Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence
of a state of war), then the Framers could have
provided so. Clearly, they did not intend that
Congress should first authorize the President
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before he can declare a "state of national
emergency." The logical conclusion then is that
President Arroyo could validly declare the
existence of a state of national emergency even
in the absence of a Congressional enactment.
But the exercise of emergency powers, such as
the taking over of privately owned public utility
or business affected with public interest, is a
different matter. This requires a delegation
from Congress.
Courts have often said that constitutional
provisions in pari materia are to be construed
together. Otherwise stated, different clauses,
sections, and provisions of a constitution,
which relate to the same subject matter will be
construed together and considered in the light
of each other. Considering that Section 17 of
Article XII and Section 23 of Article VI,
previously quoted, relate to national
emergencies, they must be read together to
determine the limitation of the exercise of
emergency powers.
Generally, Congress is the repository of
emergency powers. This is evident in the tenor
of Section 23 (2), Article VI authorizing it to
delegate such powers to the President.
Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during
grave emergencies, it may not be possible or
practicable for Congress to meet and exercise
its powers, the Framers of our Constitution
deemed it wise to allow Congress to grant
emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period
only.
(3) The delegation must be subject to such
restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to
carry out a national policy declared by
Constitutional Law 1 (JD)
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Atty. Madel P. Villaroman-Fiel
Congress.
Section 17, Article XII must be understood as
an aspect of the emergency powers clause. The
taking over of private business affected with
public interest is just another facet of the
emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the
"the State may, during the emergency and
under reasonable terms prescribed by it,
temporarily take over or direct the operation of
any privately owned public utility or business
affected with public interest," it refers to
Congress, not the President.
The order cannot properly be sustained as an
exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a
number of cases upholding broad powers in
military commanders engaged in day-to-day
fighting in a theater of war. Such cases need
not concern us here. Even though "theater of
war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold
that the Commander-in-Chief of the Armed
Forces has the ultimate power as such to take
possession of private property in order to keep
labor disputes from stopping production. This
is a job for the nation’s lawmakers, not for its
military authorities.
It may be argued that when there is national
emergency, Congress may not be able to
convene and, therefore, unable to delegate to
the President the power to take over privately-
owned public utility or business affected with
public interest.
In Araneta vs. Dinglasan, this Court
emphasized that legislative power, through
which extraordinary measures are exercised,
remains in Congress even in times of crisis.
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SECTION 19 – Power to Grant Executive
Clemencies
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.
DEFINITIONS:
1. Pardon – is an act of grace, which
exempts the individual on whom it is
bestowed from the punishment that the
law inflicts for the crime he has
committed.
2. Commutation – refers to reduction or
commutation of penalty.
3. Reprieve – pertains to postponement of
sentence or stay of execution.
4. Parole – release from imprisonment,
but without full restoration of liberty, as
parolee is still in the custody of the law
although not in confinement.
5. Amnesty – is an act of grace, concurred
in by the legislature, usually extended to
groups of persons who committed
political offenses, which puts into
oblivion the offense itself.
People of the Philippines vs. Rolando
De Gracia, G.R. Nos. 102009-10, July
6, 1994
The grant of pardon is discretionary upon the
President. It may not be controlled by the
Legislature or reversed by the courts, unless
there is a constitutional violation.
People of the Philippines vs. Hon.
Francisco Salle, et al., G.R. No.
103567, December 4, 1995
Constitutional Law 1 (JD)
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Atty. Madel P. Villaroman-Fiel
Where the pardoning power is subject to the
limitation of conviction, it may be exercised at
any time after conviction even if the judgment
is on appeal. It is, of course, entirely different
where the requirement is " final conviction, "
as was mandated in the original provision of
Section 14, Article IX of the 1973 Constitution,
or "conviction by final judgment," as presently
prescribed in Section 19, Article VII of the 1987
Constitution. In such a case, no pardon may be
extended before a judgment of conviction
becomes final.
A judgment of conviction becomes final (a)
when no appeal is seasonably perfected, (b)
when the accused commences to serve the
sentence, (c) when the right to appeal is
expressly waived in writing, except where the
death penalty was imposed by the trial court,
and (d) when the accused applies for
probation, thereby waiving his right to appeal.
Where the judgment of conviction is still
pending appeal and has not yet therefore
attained finality, as in the instant case,
executive clemency may not yet be granted to
the appellant.
The 1981 amendments had deleted the earlier
rule that clemency could be extended only
upon final conviction, implying that clemency
could be given even before conviction.
The reason the Constitutional Commission
adopted the "conviction by final judgment"
requirement, reviving in effect the original
provision of the 1973 Constitution on the
pardoning power, was, as expounded by
Commissioner Napoleon Rama, to prevent the
President from exercising executive power in
derogation of the judicial power.
CLASSES OF PARDON (Plenary or Partial;
Absolute or Conditional)
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LIMITATIONS: been convicted, that is, obliterates the offense
it abolishes or forgives with which he is charged
1. Pardon cannot be granted in cases of the punishment, and for that the person released
impeachment; that reason it does not by amnesty stands
2. In cases involving election offenses, work the restoration of before the law precisely
pardon cannot be given without the the rights to hold public as though he had
favorable recommendation of the office, or the right of committed no offense.
Commission on Elections; (Section 5, suffrage, unless such
Art. IX-C) rights be expressly
3. It can be granted only upon conviction restored by the terms of
by final judgment; the pardon,' and it 'in no
4. It cannot be granted in cases of case exempts the culprit
legislative contempt (violation of from the payment of the
civil indemnity imposed
separation of powers) or civil contempt;
upon him by the
5. It cannot absolve the convict-pardonee
sentence'.
of civil liability; (People vs. Nacional,
G.R. No. 111294, September 7, 1995) and
6. It cannot restore public offices forfeited.

DISTINCTIONS BETWEEN PARDON AND

AMNESTY

PARDON AMNESTY
It is granted by the Chief It is given by
Executive and as such it Proclamation of the
is a private act which Chief Executive with the
must be pleaded and concurrence of
proved by the person Congress, is a public act
pardoned, because the of which the courts
courts take no notice should take judicial
thereof. notice.

It is granted to one after It is granted to classes

conviction. of persons or
communities who may
be guilty of political
offenses, generally
before or after the
institution of the criminal
prosecution and
sometimes after
conviction.

Pardon looks forward Amnesty looks

and relieves the backward and abolishes
offender from the and puts into oblivion
consequences of an the offense itself, it so
offense of which he has overlooks and
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