Constitutional Law I than expand presidential powers, as a reaction to the excesses of
Article VII. Executive Department | Sayson, Rich
Section 1. The executive power shall be vested in the President of the
Philippines.
The Executive Power
● 1935 Constitution: vested executive power to the President
● 1973 Constitution: executive power was for the Prime Minister to exercise
and the President was reduced to a mere "symbolic head of the State."
● 1987 Constitution: vested executive power to the President
● In vesting executive power in one person rather than in a plural executive,
the evident intention was to invest the power holder with energy
● Specific powers given to the president:
○ to appoint
○ to ensure that the laws are faithfully executed,
○ to be Commander-in-Chief of the armed forces,
○ to grant clemency, and
○ to contract foreign loans
● The presidency that emerges from the 1987 text is still a potent institution
largely because the primary source of his political authority, election by the
people at large, is still there.
● The executive branch, said Clark Clifford, was a chameleon, taking its color
from the character and personality of the President.
● NOT ACCURATE: "executive power" is the power to enforce the laws, for
the President is head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the
Constitution itself withholds it
○ Executive power is just one of the powers of the President
● Justice Holmes [Personal Understanding: Presidential powers are not just
as what is enumerated in the Constitution; there are residual powers too]
○ It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires.
● Isagani Cruz
○ In holding that the President of the Philippines has residual
powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67
Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather
the past dictatorship.
● In a Per Curiam resolution:
○ The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in
scattered provisions of the Constitution.
● We cannot subscribe to the view that a recognition of the President's
implied or residual powers is tantamount to setting the stage for another
dictatorship
● There is no similarity between the residual powers of the President under
the 1987 Constitution and the power of the President under the 1973
Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6
refers to an express grant of power. It is not implied. Then, Amendment No.
6 refers to a grant to the President of the specific power of legislation.
Ceremonial Functions
● The presidency includes many other functions than just being chief
executive.
Immunity from suit
● 1973 Constitution: specific provision guaranteeing the President's
immunity and that of other executive officers.
● 1987 Constitution: No specific provision guaranteeing the President’s
immunity
○ Bernas: it was already understood in Philippine jurisprudence that
the President may not be sued during his tenure.
● Forbes, etc. v. Chuoco Tiaco and Crossfield',' a suit against the Governor
General. [Justice Johnson]
○ that the Governor-General, like the judges of the courts and the
members of the Legislature, may not be personally mulcted in civil
damages for the consequences of an act executed in the
performance of his official duties.
○ The thing which the judiciary can not do is to mulct the
Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of
the Philippine Commission or the Philippine Assembly. Public
policy forbids it
○ Governor-General [President] is liable when he acts in a case so
plainly outside of his power and authority that he can not be said
to have exercised discretion in determining whether or not he had
the right to act.
○ What is held here is that he will be protected from personal liability
for damages not only when he acts within his authority, but also
when he is without authority, provided he actually used discretion
 and judgment, that is, the judicial faculty, in determining whether
he had authority to act or not.
● Soliven v. Judge Makasiar
○ The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that,
aside from requiring all of the office-holder's time, also demands
undivided attention.
○ pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in
the President's behalf
○ The choice of whether to exercise the privilege or to waive it is
solely the President's prerogative.
● Estrada v. Desierto.
○ Cases filed are criminal in character: plunder, bribery, and graft and
corruption
○ The rule is that unlawful acts of public officials are not acts of the
State and the officer who acts illegally is not acting as such but
stands on the same footing as any other trespasser.
● US vs. Nixon
○ `"when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair
administration of criminal justice."
● Nixon v. Fitzgerald
○ immunity of the President from civil damages covers only "official
acts."
● In Re: Saturnino Bermudez'
○ "incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and
tenure" but not beyond.
Executive Privilege
● executive privilege is the power of the President to withhold certain types
of information from the courts, the Congress, and ultimately the public.
● Senate v. Ermita
○ "Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to
the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from
disclosure is necessary to the discharge of highly important
executive responsibilities. The doctrine of executive privilege is
thus premised on the fact that certain information must, as a
matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the
obligation to disclose information, the necessity must be of such
high degree as to outweigh the public interest in enforcing that
obligation in a particular case."
○ Put differently, the Court said that a claim of privilege may be valid
or not "depending on the ground invoked to justify it and the
context in which it is claimed. For in determining the validity of a
claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be
honored in a given procedural setting." From this the Court
concluded that it is not for one claiming executive privilege "to
unilaterally determine that respondents' duly issued Subpoena
should be totally disregarded."
○ a claim of privilege must be stated with sufficient particularity to
enable Congress or the court to determine its legitimacy
○ The lack of specificity renders an assessment of the potential harm
resulting from disclosure impossible. Congress must not require
the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the
privilege is meant to protect.
● Neri v. Senate
○ The type of executive privilege claimed here was "presidential
communication privilege."
○ Presidential communication is presumptively privileged; but the
presumption is subject to rebuttal. Thus, whoever challenges it,
must show good and valid reasons related to the public welfare.
The Court ruled that the Senate failed to controvert the
presumption.
The Cabinet
● an institution is extra-constitutionally created
● consists of the heads of departments who through usage have formed a
body of presidential advisers who meet regularly with the President.
● the President, through his power of control over them and his power to
remove them at will; President is still chief of administration
● Possess no authority over the President.
● They serve at the behest and pleasure of the President.
Q. What is the significance of being "Chief Executive?"
A. This means that he is the executive and no one else is. In the language of
Villena v. Secretary of Interior, 67 Phil. 451, 464 (1939), the President is "the
Executive of the Government of the Philippines, and no other. The heads
of the executive departments occupy political positions and hold office in
 an advisory capacity, and, in the language of Thomas Jefferson 'should be iii. an intention to abandon the old domicile, if he had one, or
of the President's bosom confidence,' and, in the language of Attorney animus non revertendi
General Cushing, 'are subject to the direction of the President.'" iv. Anywhere in the PH
v. bodily presence in the locality is required, the residency
Q. What types of information are covered by executive privilege? requirement allows for temporary physical absences
A. The types of information include those which are of a nature that provided that the animus revertendi to the domicile is
disclosure would subvert military or diplomatic objectives, or information never abandoned.
about the identity of persons who furnish information of violations of law,
or information about internal deliberations comprising the process by Section 3. There shall be a Vice-President who shall have the same
which government decisions are reached. qualifications and term of office and be elected with, and in the same manner,
as the President. He may be removed from office in the same manner as the
Section 2(a) of E.O. 464, upheld as valid by the Supreme Court in Ermita, President.
enumerated the following as privileged. These are taken from earlier
decisions: The Vice-President may be appointed as a Member of the Cabinet. Such
1. Conversations and correspondence between the President and the appointment requires no confirmation.
public official covered by this executive order;
2. Military, diplomatic and other national security matters which in the The Vice President
interest of national security should not be divulged; ● essentially a President in reserve
3. Information between inter-government agencies prior to the ● he has the same qualifications as a President, is elected with and to the
conclusion of treaties and executive agreements; same term as the President, and may be removed from office in the same
4. Discussion in close-door Cabinet meetings; manner as the President; but, unless he is appointed as a member of the
5. Matters affecting national security and public order. Cabinet or is given some executive function, as Vice-President Estrada was
who was made Chairman of the Presidential Anti-Crime Committee, he
Section 2. No person may be elected President unless he is a natural-born has no other function than to be prepared to assume the presidency
citizen of the Philippines, a registered voter, able to read and write, at least should a vacancy in the office arise.
forty years of age on the day of the election, and a resident of the Philippines ● an appointment as department head extended to him does not need the
for at least ten years immediately preceding such election. consent of the Commission on Appointments
○ BUT President is not obliged to give the VP a Cabinet position
Qualifications of the President. because the President must be free to choose for his Cabinet
1. natural-born citizen of the Philippines [Art IV, Sec 2]1 people who are his trusted personal choices
2. a registered voter, [Article V, Section 1]
3. able to read and write,
4. at least forty years of age on the day of election for President
a. Possessed on the day of the election for president
5. a resident of the Philippines for at least ten years immediately preceding
such election.
a. “Residence” in election law
b. One is a resident if one is “domiciled” there, there must concur:
i. bodily presence in the locality,
ii. an intention to remain there — animus manendi, and

1
"Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with
paragraph (3) Section 1 hereof shall be deemed natural-born citizens."
Section 4. The President and the Vice-President shall be elected by direct vote
of the people for a term of six years which shall begin at noon on the thirtieth
day of June next following the day of the election and shall end at noon of the
same date, six years thereafter. The President shall not be eligible for any
re-election. No person who has succeeded as President and has served as such
for more than four years shall be qualified for election to the same office at any
time.
No Vice-President shall serve for more than two successive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of the service for the full term for which he was
elected.
Unless otherwise provided by law, the regular election for President and
Vice-President shall be held on the second Monday of May.
The Congress as national board of canvassers.
The returns of every election for President and Vice-President, duly certified by
the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty
days after the day of the election, open all the certificates in the presence of
the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected,
but in case two or more shall have an equal and highest number of votes, one
of them shall forthwith be chosen by the vote of a majority of all the Members
of both Houses of the Congress, voting separately.
Breaking a presidential or vice-presidential tie.
The Congress shall promulgate its rules for the canvassing of the certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or
Vice-President, and may promulgate its rules for the purpose.
Presidential and Vice-Presidential election controversies.
Election of the President and Vice-President
● 1935 Constitution: President elected by direct vote of the people
● 1973 Constitution: Ceremonial President and Prime Minister elected by the
Legislature
● 1987 Constitution: President and Vice President elected by direct vote of
the people
Term of the President and Vice President
● President: fixed term of six years to begin at noon on June 30th following
the day of the election and to end at noon also on June 30th "six years
thereafter."
● A President is not eligible for any re-election for that office, that is, either
immediately after his term or even after an interval of one or more terms
● Prohibition applicable to anyone who has served as President
● Vice President: They may not serve for more than two successive terms.
● Voluntary renunciation not be considered as an interruption in the
continuity of a Vice-President's service.
● If the Vice-President succeeds to the presidency, if he serves for less than
four years, he may run for election as President since in his case it would
not be a re-election.
○ Ex: GMA
● Congress now is given authority to make a "determination of the
authenticity and due execution" of the returns coming from provincial and
city boards of canvassers in accordance with the manner to be provided by
law, that is, by Congress itself
● Limitation: that the extent to which Congress as a canvassing body may
determine "authenticity and due execution" must only be "in the manner
provided by law."
● When the time for final adjournment of Congress came , the canvassing
had not yet been completed. Could Congress continue the canvass? The
Court pointed out that the final adjournment terminated the law-making
function of Congress but that the non-law making functions, such as
canvassing, could continue until the term of the members ended
● Congress also has authority to break a tie in presidential and
vice-presidential elections.
● The tie is broken by "vote of a majority of all the Members of both Houses
of the Congress, voting separately."
● The last paragraph of Section 4 of Article VI now fills that void. What was
statutory law in R.A. No. 1793 has now become a constitutional provision.
● The Rule in presidential contests is that only two persons, the 2nd and 3rd
placers, may contest the election. The Rule effectively excludes the widow
of a losing candidate.
● The power of the Court as Tribunal includes the power to correct manifest
errors on the statements of votes (SOV) and certificates of canvass (COC).
Q. May Congress delegate the preliminary count of votes in a presidential
election to a Joint Committee?
A. Yes, provided that the Committee report be submitted for approval by the
Congress as a body.Lopez v. Senate and House, G.R. No. 163556, June
8,2004.

Q.May Congress continue the canvass even after the final adjournment of its
sessions?
A. Yes. The final adjournment of Congress does not terminate an unfinished
presidential canvass. Adjournment terminates legislation but not the
non-legislative functions of Congress such as canvassing of votes.
Pimentel v. Joint Canvassing Committee, June 22, 2004.

Q. In the event of a contest "relating to the election, returns, and qualifications

of the President or Vice-President," who shall judge?
A. The Supreme Court.
Section 5. Before they enter on the execution of their office, the President, the
Vice-President, or the Acting President shall take the following oath or
affirmation:
“I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill
my duties as President [or Vice-President or Acting President] of the
Philippines, preserve and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the Nation. So help me
God.” [In case of affirmation, last sentence will be omitted].
Section 6. The President shall have an official residence. The salaries of the
President and Vice-President shall be determined by law and shall not be
decreased during their tenure. No increase in said compensation shall take
effect until after the expiration of the term of the incumbent during which
such increase was approved. They shall not receive during their tenure any
other emolument from the Government or any other source.
Section 7. 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.
Section 8. In case of death, permanent disability, removal from office, or
resignation of the President, the Vice-President shall become the President to
serve the unexpired term. In case of death, permanent disability, removal from
office, or resignation of both the President and Vice-President, the President of
the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or
Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall
serve until the President or the Vice-President shall have been elected and
qualified, and be subject to the same restrictions of powers and
disqualifications as the Acting President.
Filling a vacancy in the presidency.
● Section 7: when the vacancy occurs at the start of the term
○ when a President has been chosen but he fails to qualify at the
beginning of his term
○ when no President has yet been chosen at the time he is supposed
to assume office. In both cases the Vice-President becomes
acting-President until a President qualifies.
○ when the President-elect dies or is permanently incapacitated
before the beginning of his term. In this case, the
Vice-President-elect becomes President.
○ when both the President and Vice-President have not yet been
chosen or have failed to qualify
○ when both shall have died or become permanently incapacitated
at the start of their term. In such situation, the Senate President or
the Speaker •- in that order —acts as President until a President or
Vice -President qualifies.
○ when the officials mentioned in situation (4) and (5) shall have
died, or shall have become permanently incapacitated, or are
unable to assume office. In such a situation, Congress will decide
by law who will act as President until a President or Vice-President
shall have been elected and qualified.
● Section 8: when a vacancy occurs in mid-term.
○ when the incumbent President dies, or is permanently disabled, is
removed, or resigns
○ when both the President and the Vice President die, or are
permanently disabled, are removed, or resign. In such a case, the
Senate President or the Speaker — in that order — shall act as
President until a President or Vice-President shall have been
elected and qualified.
 ○ when the Acting President dies, or is permanently incapacitated, is
removed, or resigns. For such situation, Congress will determine by
law who will act as President until a new President or
Vice-President shall have qualified
● President has no right to “hold-over”
From Joseph Estrada to Gloria Arroyo
● In sum, three justices (Puno, Vitug and Pardo) accepted some form of
resignation; two justices (Mendoza and Bellosillo) saw permanent
disability; three justices (Kapunan, Ynares-Santiago, and Sandoval
Gutierrez) accepted the presidency of Arroyo as an irreversible fact. Five
justices (Quisumbing, Melo, Buena, de Leon and Gonzaga-Reyes) signed
the decision without expressing any opinion. Davide and Panganiban
abstained. In the light of all this, it is not clear what doctrine was
established by the decision.
Section 10. The Congress shall, at ten o’clock in the morning of the third day
after the vacancy in the offices of the President and Vice-President occurs,
convene in accordance with its rules without need of a call and within seven
days, enact a law calling for a special election to elect a President and a
Vice-President to be held not earlier than forty-five days nor later than sixty
days from the time of such call. The bill calling such special election shall be
deemed certified under paragraph 2, Section 26, Article VI of this Constitution
and shall become law upon its approval on third reading by the Congress.
Appropriations for the special election shall be charged against any current
appropriations and shall be exempt from the requirements of paragraph 4,
Section 25, Article VI of this Constitution. The convening of the Congress
cannot be suspended nor the special election postponed. No special election
shall be called if the vacancy occurs within eighteen months before the date of
the next presidential election.

Q. How can the assumption of the presidency by Vice President Gloria

Macapagal Arroyo in the middle of Joseph Estrada's term be justified.
A. In a divided opinion the Supreme Court held that Joseph Estrada had
resigned thereby leaving the office vacant. The judgment that Estrada
had resigned was based on two statements of Estrada just before he left
Malacanang and on the diary of Angara published in the Inquirer.
Estrada v. Arroyo, G.R. No. 146738, March 2, 2001; G.R. No. 146738, April 3,
2001.

Section 9. Whenever there is a vacancy in the Office of the Vice-President

during the term for which he was elected, the President shall nominate a
Vice-President from among the Members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote
of all the Members of both Houses of the Congress, voting separately.

Vacancy in the office of Vice-President.

● The President is authorized to nominate a member of Congress from
either the Senate or the House of Representatives to fill a vacated office of
the Vice-President
○ To be effective: must be confirmed by a majority vote of all the
members of both Houses voting separately

Note: by not limiting the choice to the Senate, the President is given a wider range
of choices
Section 11. Whenever the President transmits to the President of the Senate
and the Speaker of the House of Representatives his written declaration that
he is unable to discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such powers and
duties shall be discharged by the Vice-President as Acting President. [declared
by President]
Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers
and duties of his office, the Vice-President shall immediately assume the
powers and duties of the office as Acting President. [declared by the majority
of Cabinet]
Thereafter, when the President transmits to the President of the Senate and to
the Speaker of the House of Representatives his written declaration that no
inability exists, he shall reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members of the Cabinet transmit
within five days to the President of the Senate and to the Speaker of the House
of Representatives, their written declaration that the President is unable to
discharge the powers and duties of his office, the Congress shall decide the
issue. For that purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and without need of call.
[in conflict, Congress via ⅔ vote, voting separately steps in to make their own
declaration]
If the Congress, within ten days after receipt of the last written declaration, or,
if not in session, within twelve days after it is required to assemble, determines
by a two-thirds vote of both Houses, voting separately, that the President is
unable to discharge the powers and duties of his office, the Vice-President
shall act as President; otherwise, the President shall continue exercising the
powers and duties of his office.
Incapacity of the President.
● Section 11 deals with the thomy issue of deciding whether the President is
still able to perform his functions or not.
Q. The matter of deciding whether the President is so unable to discharge the
functions of his office that someone else must take over from him can create a
government crisis, especially if the President is unwilling to concede his
inability. How is a question of inability resolved?
A. See Section 11.
NOTE: IN Estrada v. Arroyo, G.R. No. 146738, March 2, 2001; G.R. No. 146738, April 3,
2001, the Court said that Estrada did not merely temporarily hand over the
exercise of presidential powers to Gloria Macapagal Arroyo but resigned from the
presidency
Section 12. In case of serious illness of the President, the public shall be
informed of the state of his health. The members of the Cabinet in charge of
national security and foreign relations and the Chief of Staff of the Armed
Forces of the Philippines, shall not be denied access to the President during
such illness.
Serious Illness of the President
● Section 11: Illness that result to incapacity to perform the functions of the
presidency
● Section 12: deals with serious illnesses not incapacitating because access
to him is kept open for Cabinet members in charge of the national security
and foreign relations
○ Purpose: allow the president to make important decisions in those
areas of government; which suggests that this contemplates a
situation where the President is still stable
● In case of serious illness of the President, the public shall be informed of
the state of his health.
○ Purpose: to guarantee the people’s right to know about the state
of the President’s health, contrary to secretive practice in
totalitarian governments
Q. Who has the duty of releasing the information?
A. The section does not specify the officer on whom the duty devolves. It is
understood that the Office of the President would be responsible for
making the disclosure.
Vice-President, temporarily incapacitated: it’s okay sizt since President that is
present in office.
Section 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not, during his tenure, be appointed as Members
of the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries.
Prohibition against holding another office or employment.
● the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned
● The prohibition imposed on the President and his official family is therefore
all-embracing and covers both public and private office or employment.
● 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
○ ex-officio means "from office; by virtue of office."
■ "authority derived from official character merely, not
expressly conferred upon the individual character, but
rather annexed to the official position."
■ "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.”
● except for the Vice-President who may be appointed to the Cabinet, and
the Secretary of Justice who is made ex officio member of the Judicial and
Bar Council, the officials enumerated in Section 13 may not hold another
office. But they may be given additional functions which are intimately
related to their primary office
○ Such conferment of additional functions does not constitute a new
appointment
● Vice-President as Chairman of the Presidential Anti-Crime Commission
○ not appointed to a Cabinet position nor to a position constituting
an intimate element of his duties as Vice-President.
○ it would seem to be covered by the prohibition of Section 13;
however, not challenged
○ The only possible explanation for the tolerance of the situation
must be the assumption that the prohibition is meant to prevent
the enhancement of the powers of one who is already powerful or
busy with other duties. The Vice-President, by the nature of his
office, is neither powerful nor busy.
Other Prohibitions
● Prohibited participation in a contract with the government can include
being a member of a family corporation which has dealings with the
government.
○ To avoid conflict of interest
○ To force officials to devote full time to their official duties
● 2nd Paragraph: The spouse and relatives by consanguinity or affinity within
the fourth civil degree of the President shall not, during his tenure, be
appointed as Members of the Constitutional Commissions, or the Office of
the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
○ Anti-nepotism provision
○ Goes up to the 4th degree of consanguinity
○ If fourth degree relatives, however, are already in office when a
President assumes office, the relatives are not thereby ousted from
their positions.
○ What is prohibited is appointment or reappointment and not
uninterrupted continuance in office.
● Incompatible offices
Q. President Aquino issued E.O. No 284 which read in part:
Sec. 1. Even if allowed by law or by ordinary functions of his position, a member
of the Cabinet, undersecretary or assistant secretary or other appointive
officials of the Executive Department may, in addition to his primary position,
hold not more than two positions in the government and government
corporations x x x
Valid?
A. Invalid. This in effect gives to the President and the rest of her official
family the broad exceptions found in Section 7, Par. 2, of Article IX-B which
is the general rule for public officials. Section 13, Art. VII, however, is the
exception. A [W]hile all other appointive officials in the civil service are
allowed to hold other office and 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." Civil
Liberties Union v. The Executive Secretary, G.R. No. 83896, 22 February 1991.
Section 14. Appointments extended by an Acting President shall remain
effective, unless revoked by the elected President, within ninety days from his
assumption or reassumption of office.
Section 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.
Midnight appointments.
● applies even to appointments to the judiciary
○ requires the President to make appointments to the judiciary
within ninety days applies only to the period not covered by Article
VII, Section 15.
● limitation on the President's power of appointment
Q. Does an Acting President possess powers to appoint?
A. Yes, but his appointments may be revoked by the elected President
within ninety days from his assumption or reassumption of office.
Q. Petitioners seek the recall of the appointments of the fourteen (14) private
respondents before the CSC on the ground that these were "midnight
appointments" by the Mayor forbidden under Article VII, Section 15 of the
Constitution. Decide.
A. The prohibition applies only to presidential appointments. There is no law
that prohibits local elective officials from making appointments during
the last days of his or her tenure. De la Rama v. Court of Appeals,G.R. No.
131136, February 28, 2001.
Section 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.
Nature of the appointing power.
● Since the power to appoint is neither legislative nor judicial, it must be
executive. (Government v. Springer)
○ whatever power is not properly legislative or judicial must be
attributed to the executive
● The legislature may create an office and prescribe the qualifications of the
person who may hold the office, but it may neither specify the person who
shall be appointed to such office nor actually appoint him
● The "appointing power is the exclusive prerogative of the President, upon
which no limitations may be imposed by Congress except those resulting
from the need of securing the concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to
prescribe the qualifications to a given appointive office."
● Of essence to the appointing authority is the power to choose who among
the various qualified choices is the best suited
● Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego to fill
a vacancy in the office of a Department Secretary
● Congress, in the guise of prescribing qualifications to an office, cannot
impose on the President who her alter ego should be.
Kinds of presidential appointments.
● Section 14: made by an Acting President. When the elected President
assumes or reassumes office, he is given ninety days within which to
revoke appointments made by the Acting-President. If he does not revoke
them, they remain as if they had been made by an elected President.
● Section 15: appointments made by a President within two months before
the next presidential elections and up to the end of his term. In order not
to tie the hands of the incoming President through midnight
 appointments, appointments made during that period can only be
temporary and therefore revocable by the next President.
● Section 16: deals with regular presidential appointments, with or without
confirmation by the Commission on Appointments, and with "recess" or
"ad interim" appointments.
Scope of the power of the Commission on Appointments.
● 1973 Constitution: no other entity could check the President
● 1987 Constitution: restored the Commission on Appointments as a check
on the President's appointing authority
● 1935 Constitution: general rule was that all presidential appointments
needed the consent of the Commission on Appointments.
● Congress can create the exception by vesting in the President alone, in the
courts, or in the heads of departments the power to appoint "inferior
officers."
● Section 16, 1st sentence: nomination, consent, and appointment
● Section 16, 2nd sentence: speaks only of appointments
● whereas under the 1935 text the general rule was that all presidential
appointments needed the consent of the Commission on Appointment,
under the 1987 text only those coming under the first sentence of Section
16 needed the consent of the Commission on Appointments.
○ 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,
○ other officers whose appointments are vested in him in this
Constitution."
■ refers to those specifically mentioned by the Constitution
as officers to be appointed by the President with the
consent of the Commission
■ Quintos-Deles case
● It should be noted that not every officer of Cabinet rank comes under the
three step appointment rule. Only heads of executive departments do
● Vice President appointment does not need confirmation
● power to appoint Justices and judges as well as the appointment of the
Ombudsman and his Deputies is vested in the President
○ The Constitution limits the President's choice to those
recommended by the Judicial and Bar Council.
● "all other officers of the government whose appointments are not
otherwise provided for by law"
○ when a law creating an office does not specify who shall appoint
the officer, the appointment must be made by the President
Appointment of officers "lower in rank."
● 1987 Constitution: in order to eschew any pejorative connotation, avoids
the phrase "inferior officers" and translates it instead into "officers lower in
rank," that is, lower in rank than the courts or the heads of departments,
agencies, commissions, or boards.
● “Alone”
○ exclusion the courts, the heads of departments, agencies,
commissions or boards.
○ it emphasizes the authority of Congress to decide whether the
appointment of "officers lower in rank" should be preserved for the
"President alone" or may be shared with courts, the heads of
departments, agencies, commissions or boards.
May Congress require other appointments to be confirmed by the Commission on
Appointments?
● General Rule: there is a limited number of officials whose appointments
under the Constitution require the consent of the Commission on
Appointments
○ Q: may Congress pass a law requiring that other appointments
should pass through the Commission on Appointments?
○ A: No, because the power to appoint is executive in nature thus,
Congress passing a law requiring that other appointments should
pass through the Commission on Appointments would amount to
a breach of the separation of powers
"Recess" or "ad-interim" appointments and "temporary appointments."
● For a recess or ad-interim appointment to be effective, it does not have to
wait for action by the Commission on Appointments.
● effective once it is delivered to and accepted by the appointee.
● if they are of the type which require Commission concurrence, they are
"effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress."
● TWO MODES OF TERMINATING AD INTERIM APPOINTMENTS
○ disapproval by the Commission
○ adjournment of Congress prior to Commission action on the
appointment.
● Ad Interim - not temporary appointment; permanent
○ no condition on the effectivity of an ad interim appointment thus,
takes effect immediately
○ "A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the Commission
on Appointments when Congress is in session and when it is in
recess. In the former, the President nominates, and only upon the
consent of the Commission on Appointments may the person thus
named assume office. It is not so with reference to ad interim
 appointments. It takes effect at once. The individual chosen may
thus qualify and perform his function without loss of time. His title
to such an office is complete. In the language of the Constitution,
the appointment is effective 'until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.'"
○ cannot be withdrawn or revoked at the President's pleasure. It is
permanent and can be terminated only by disapproval by the
Commission on Appointments or when bypassed by Congress.
○ made only when congress is not in session
● “Adjournment”
○ Pertains to regular session, not special session
● if a special session is called and that session continues until the day before
the start of the regular session, Guevara again says that there must be a
"constructive recess” between the sessions and thus appointments not
acted upon during the special session lapse before the start of the regular
session.
● TWO ENTITIES WHICH CAN TERMINATE A RECESS APPOINTMENT
○ Congress, by adjournment
○ Commission on Appointments, by disapproval
AD-INTERIM APPOINTMENTS APPOINTMENTS IN AN ACTING CAPACITY
effective upon acceptance
extended only during a recess may be extended any time
of Congress there is a vacancy
submitted to the Commission on not submitted to the Commission on
Appointments for confirmation or Appointments
rejection
Note: Acting appointments are a way of temporarily filling important offices but, if
abused, they can also be a way of circumventing the need for confirmation by the
Commission on Appointments.
Aquino appointments made between February 2 , 1987 and July 27,1987 .
● Did the appointments extended by President Aquino from February 2,198 7
to July 26,198 7 require consent of the Commission on Appointments?
○ if they were extended from February 2, 1987 to noon of June 30,
1987, the officers holding such appointments would be at worst de
facto officers.
○ At best, and by analogy with the power given by Section 15, they
would be temporary appointees
● Section 16 presupposes the existence of a Congress either in session or in
recess.
● appointments delivered and accepted from noon of June 30, 1987 to July
26,1987
○ they would be "recess" or "ad-interim" appointments under Article
VII, Section 16, second paragraph. Congress was in existence during
that period, because the term of the Members began at noon on
June 30,1987, but it was not allowed to convene by Article VI,
Section 15 until the fourth Monday of July or July 27, 1987.
■ "compulsory recess" appointments.
Q. May Congress expand the list of those whose appointment needs
confirmation by the Commission on Appointments? confirmation by the
Commission on Appointments?
A. No. Calderon v. Carale, 208 SCRA 254 (1992), although still with some
dissents, definitively ruled that Congress may not expand the list of
appointments needing confirmation. The case involved R.A. 6715 which
required that the Chairman and Commissioners of the National Labor
Relations Commission be appointed by the President with the
confirmation of the Commission on Appointments. The Court reiterated its
ruling in Mison and Bautista saying that the list in the first sentence of
Section 16 of those whose appointment requires confirmation by the
Commission on Appointments is exclusive, adding that the list may not be
expanded by statutory legislation. The same doctrine was followed in
Tarrosa v. Singson, 232 SCRA 553 (1994), with reference to the appointment
of the Central Bank Governor and also in Manalo v. Sistoza, et al., G.R. No.
107369, August 11, 1999, with reference to the appointment of the head of
the Philippine National Police.
Q. Is the promotion of senior officers of the PNP subject to confirmation by the
Commission on Appointment as required by the PNP law?
A. No. Congress may not expand the list of those needing CA confirmation.
Besides, PNP officers are not members of the Armed Forces but are
civilians. Manalo v. Sistoza, et al., G.R. No. 107369, August 11,1999.
Q. What are "ad-interim appointments?"
A. They are appointments made by the President during the recess of
Congress (during which the Commission on Appointments does not
meet).
Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
Power of control.
● President is given control "of all the executive departments, bureaus, and
offices."
● not just over the department head but also over all the subordinate officers
of the department
● Power of Control - "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 heads of the executive departments occupy political positions and
hold office in an advisory capacity
○ Thomas Jefferson: 'should be of the President's bosom confidence
○ Attorney General Cushing: 'are subject to the direction of the
President
● the express grant of the power of control to the President justifies an
executive action to carry out the reorganization of an executive office
under a broad authority of law
● While the power to abolish an office is generally lodged with the
legislature, the authority of the President to reorganize the executive
branch, which may include such abolition, is permissible under the present
laws
● Doctrine of Qualified Political Agency - “all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the
various executive departments are the assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive."
● Free Telephone Workers Union v. Minister of Labor
○ Here, the power given to the Minister of Labor to assume
jurisdiction over a labor dispute affecting the national interest or to
certify it for compulsory arbitration was challenged as an undue
delegation of a power which properly belonged to the President.
All that was needed to settle the case was to hark back to the
doctrine long established in Villena that the heads of ministries are
alter egos of the President.
● Blaquera, et al. v. Alcala
○ Fixing the amount of the incentives was not the duty of the Civil
Service Commission but belonged to the President.
● Since the Constitution has given the President the power of control, with
all its awesome implications, it is the Constitution alone which can curtail
such power
● "merely applies to the exercise of control over the acts of the subordinate
in the performance of his duties. It only means that the President may set
aside the judgment or action taken by a subordinate in the performance of
his duties."
● The power of control, therefore, is not the source of the Executive's
disciplinary power over the person of his subordinates. Rather, his
disciplinary power flows from his power to appoint: "the power to remove is
inherent in the power to appoint
● while the Executive has control over the "judgment" or "discretion" of his
subordinates, when it comes to the disposition and movement of
"persons," the President must obey legislative prescriptions on the subject.
● whether power of control extends over government-owned corporations
○ NAMARCO v. Arca
■ the Executive's power of control over government-owned
corporations, which in legal category are not on the same
level as executive departments, bureaus, or offices, is not
purely constitutional but largely statutory. The legislature
may place them under the control of the Executive when
their functions "partake of the nature of government
bureaus or offices.
■ government-owned corporations may be removed by the
legislature from the Executive's control when the nature of
their functions is changed.
Q. Compare the power of control with the disciplinary power of the President.
A. From cases decided so far, the following synthesis of the power of control
may be made. As defined in Mondanov.Silvosa,it is "the power of an officer
to alter or modify or nullify or set aside what a subordinate had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter." This power, however, "merely applies to the
exercise of control over the acts of the subordinate in the performance of
his duties. It only means that the President may set aside the judgment or
action taken by a subordinate in performance duties." Ang-Angco v.
Castillo, 9 SCRA 619, 629 (1963). The power of control, therefore, is not the
source of the Executive's disciplinary power over the person of his
subordinates. Rather, his disciplinary power flows from his power to
appoint: "The power to remove is inherent in the power to appoint." Id. at
630. Moreover, this inherent disciplinary power has been made subject to
limitation by the legislature through the tatter's power to provide for a civil
service system one of whose main features is security of tenure: "No officer
or employee in the Civil Service shall be suspended or dismissed except for
causes provided by law. "ArticleIX, B, Section 2(3). Hence, it can be said
that while the Executive has control over the "judgment" or "discretion" of
his subordinates, it is the legislature which has control over their "person."
Faithful execution clause
● “shall ensure that the laws be faithfully executed”
 ○ The President's power includes "the rights and obligations growing
out of the Constitution itself, our international relations, and all the
protection implied by the nature of the government under the
Constitution.
● The reverse side of the power to execute the law is the duty to carry it out.
● The President cannot refuse to carry out a law for the simple reason that in
his judgment it will not be beneficial to the people.
● As the Supreme Court pointed out, "after all we still live under a rule of law.
Q. What is the power of supervision?
A. It is the power of a superior officer to "ensure that the laws are faithfully
executed "by inferiors. The Power of supervision does not include the
power control; but the power of control necessarily includes the power of
supervision. (The power of the President over local governments is only
one of general supervision. See Article X, Sections 4 and 16.)
Section 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public
safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to
persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person
thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Military Powers given to the President
1. Commander in chiefship
2. power to suspend the privilege of the writ of habeas corpus
3. power to impose martial law
Commander-in-chiefship.
● The weight of authority favors the position that the President is not a
member of the armed forces but remains a civilian
● This position is the only one compatible with Article II, Section 3, which
says: "Civilian authority is, at all times, supreme over the military."
● Article II, Section 3, when read with Article VII, Section 18: a civilian
President holds supreme military authority and is the ceremonial, legal,
and administrative head of the armed forces.
● No need to possess military training and talents, but as
commander-in-chief he has the power to direct military operations and to
determine military strategy
● he is authorized to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the manner he may
deem most effectual to harass and conquer and subdue the enemy
● the President has control and direction of the conduct of war, whether the
war be declared or undeclared
○ When he calls out the armed forces for this purpose, unlike in his
suspension of the privilege of the writ of habeas corpus, his action
is not subject to judicial review
○ "The authority to decide whether the exigency has risen," declared
the American Court, "belongs exclusively to the President, and ...
his decision is conclusive upon all other persons."
○ conclusive on the courts; to hold otherwise "is a guarantee of
anarchy, and not of order
○ Conclusive on the military; "while subordinate officers or soldiers
are pausing to consider whether they ought to obey, or are
scrupulously weighing the evidence of the facts upon which the
commander-in-chief exercises the right to demand their services,
the hostile enterprise may be accomplished without the means of
resistance
Three types of "martial law."
● Chief Justice Chase, Ex parte Milligan
○ [Jurisdiction under martial law] exercised both in peace and war
■ found in acts of Congress prescribing rules and articles of
war, or otherwise providing for the government of national
forces
○ [military government] exercised in time of foreign war without
the boundaries of the United States, or in time of rebellion and civil
war within the States or districts occupied by rebels treated as
belligerents
■ superseding, as far as may be deemed expedient, the local
law, and exercised by the military commander, under the
direction of the President, with the express or implied
sanction of Congress
○ [martial law proper] exercised in time of invasion or insurrection
within the limits of the United States, or during rebellion within the
limits of States maintaining adhesion to the National Government,
when the public danger requires its exercise
■ called into action by Congress, or temporarily, when the
action of Congress cannot be invited, in the case of
justifying or excusing peril, by the President, in times of
insurrection or invasion, or of civil or foreign war, within
districts or localities whose ordinary law no longer
adequately secures public safety and private rights.
● Willoughby, 1929
○ Military Law Proper
■ the body of administrative laws created by Congress for
the government of the army and navy as an organized
force
○ the principles governing the conduct of military forces in time of
war, and in the government of occupied territory
○ Martial Law in sensu strictiore, or 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 functions
● martial law in the Constitution can mean military government over
domestic territory. But martial law in this sense can come about only
when an insurrection has assumed the status of a public war and a
territorial war. And it can be imposed only on the belligerent territory.
● distinction between the second type of martial law as military government
and martial law in the third or proper sense:
○ "A military government takes the place of a suspended or
destroyed sovereignty, while martial law, or, more properly, martial
rule, takes the place of certain governmental agencies which for
the time being are unable to cope with existing conditions in a
locality which remains subject to the sovereignty. The occasion of
military government is the expulsion of the sovereignty there to
fore existing, which is usually accomplished by a successful military
invasion. The occasion of martial rule is simply public exigency
which may rise in time of war or peace. A military government
since it takes the place of a deposed sovereignty, of necessity
continues until a permanent sovereignty is again established in
the territory. Martial rule ceases when the district is sufficiently
tranquil to permit the ordinary agencies of government to cope
with existing conditions."
● Does martial law in the Constitution mean martial law in the third and
proper sense?
○ Yes; however, a modification has to be made of Chief Justice Chase'
definition in Milligan: Martial law in the Philippines jurisdiction is
 imposed not by or through an authorization from Congress but by
the Executive as specifically authorized and within the limits set by
the Constitution
Martial law proper is essentially police power.
● borne out by the constitutional text which sets down "public safety" as the
object of the exercise of martial law.
● What is peculiar about martial law as police power is that, whereas police
power is normally a function of the legislature executed by the civilian
executive arm, under martial law, police power is exercised by the
executive with the aid of the military and in place of "certain governmental
agencies which for the time being are unable to cope with existing
conditions in a locality which remains subject to the sovereignty
● Martial law depends on two factual bases:
○ (1) the existence of invasion or rebellion, and
○ (2) the requirements of public safety.
● The common denominator of all exercises of martial law powers is the
exercise by an executive officer of the discretion and judgment normally
exercised by a legislative or judicial body. The variable in the various
forms of martial law powers is the extent to which the executive assumes
legislative and judicial functions. This variable is determined by the
necessities of the moment. The extreme case is the investment of one man
with the power of life and death over citizens and soldiers alike in a given
area of actual war. In this extreme case, the executive officer is fully a
lawmaker, judge, and executive all rolled into one.
The 1972 Martial Law.
● Proclamation - see page 904-906, Bernas
Jurisprudential legacy of martial law.
● (1) the martial law proclamation of 1972 was validly made on the basis of an
existing rebellion;
● (2) the imposition of martial law carried with it the suspension of the
privilege of the writ of habeas corpus;
● (3) the martial law administrator could legislate on any matter related to
the welfare of the nation;
● (4) he could create military tribunals and confer on them jurisdiction to try
civilians for crimes related to the purpose of martial rule;
● (5) in the absence of any other operative constituent body he could even
propose amendments to the constitution.
● The Supreme Court was to add later that, under martial law, claims of
denial of a speedy trial were unavailing,2 06 and that the suspension of the
privilege of the writ of habeas corpus also suspends the right to bail
The new martial law doctrine: when, by whom, and how imposed?
● 1987 Constitution
○ (1) narrowed the grounds for the imposition of martial law and
suspension of the privilege of the writ of habeas corpus,
○ (2) limited the discretion of the President and put it under review
powers of Congress and of the Supreme Court, and (3) rejected the
bulk of the martial law jurisprudence that had developed under
President Marcos.
● The 1987 Constitution has narrowed the grounds to "[actual] invasion or
rebellion, when the public safety requires it."
● 1987 Constitution, the initial suspension of the privilege and the imposition
of martial law is still for the President to decide but they can only be "for a
period not exceeding sixty days."
● 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
The new martial law doctrine: role of Congress and Court.
● The 1987 Constitution, however, has placed the power to determine the
duration of the suspension of the privilege and of the effectivity of martial
law in the hands of Congress.
● Congress may revoke such proclamation
● "revocation shall not be set aside by the President."
○ "to put a cap on the presidential prerogatives in the exercise of
martial law powers.
● "The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing."
The new martial law doctrine: effects of imposition
● “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.”
○ general principle that martial law does not suspend the operation
of the Constitution and therefore does not suppress the powers of
the various branches of government.
● martial law does not "supplant the functioning of ... legislative assemblies":
ordinary legislation continues to belong to the legislative bodies even
during martial law.
● 1987 provision rejects Aquino, Jr. v. COMELEC which gave plenary
legislative power to the President as martial law administrator.
The May 2001 "state of rebellion" or "state of emergency
Q. When the President exercises the option to call on the armed forces does he
thereby acquire new powers including emergency powers?
A. No. It simply means that he is calling on the Armed Forces to assist the
police. But this does not give her additional powers. Certainly,for
instance,it does not authorize warrantless arrests.
Q. What specific military powers are given to the President by the
Constitution?
A. The President, as Commander-in-Chief, is authorized by Section 18 under
specified conditions, (1) to call out such armed forces to prevent or
suppress lawless violence, invasion, or rebellion, (2) to suspend the
privilege of the writ of habeas corpus, and (3) to place the Philippines or
any part thereof under martial law.
Q. What is a writ of habeas corpus? the privilege of the writ of habeas corpus?
What is suspended by the President, the writ or the privilege?
A. The answer to these questions are discussed under Article III, Section 15.
Section 15. 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.
Q. To whom does the suspension of the privilege apply?
A. "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."
Q. What is the duty of the State after arrests and detention on the basis of
the suspension of the privilege?
A. "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."
Q. Is the scope of "martial law" powers a fixed concept?
A. What emerges from the above observations on martial law as police
power as well as from the text of the Constitution is that martial law is a
flexible concept. Martial law depends on two factual bases: (1) the
existence of actual invasion or rebellion, and (2) the requirements of public
safety. Necessity creates the conditions for martial law and at the same
time limits the scope of martial law. Certainly, the necessities created by a
state of invasion would be different from those created by rebellion.
Necessarily, therefore, the degree and kind of vigorous executive action
needed to meet the varying kinds and degrees of emergency could not be
identical under all conditions.
Q. What limitations on the power to suspend the privilege and the power to
impose martial law have been formulated in the new Constitution?
A. In general, the limits that have been imposed are: (1) a time limit of sixty
days; (2) review and possible revocation by Congress; (3) review and
possible nullification by the Supreme Court
Q. Specifically, what are these limits?
A. "In case of invasion or rebellion, when the public safely requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus,the President shall
submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof
and must promulgate its decision thereon within thirty days from its
filing."
Q. When the President exercises the option to call on the armed forces does he
thereby acquire new powers including emergency powers?
A. No. It simply means that he is calling on the Armed Forces to assist the
police. But this does not give her additional powers. Lacson v. Secretary
Perez,G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary, G.R.
No. 159085, February 3, 2004. Certainly, for instance, it does not authorize
warrantless arrests. David v. Ermita, G.R. No. 171409, May 3, 2006. And a
President can claim emergency powers only when these are granted to
her by Congress under Article VI, Section 23.
SECTION 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations and pardons, Amnesty
and remit fines and forfeitures, after conviction by final judgment. ● "Pardon includes amnesty” [United States v. Klein.]
● the distinction between pardon and amnesty was "one rather of
He shall also have the power to grant amnesty with the concurrence of a philological interest than of legal importance” [Knote v. United States]
majority of all the Members of the Congress.
PARDON AMNESTY
Purpose of executive clemency.
● The power therefore exists as an instrument for correcting these infirmities
granted by the Chief Executive and as granted by Proclamation of the Chief
and for mitigating whatever harshness might be generated by a too strict such it is a private act which must be Executive with the concurrence of
application of the law. pleaded and proved by the person par- Congress, is a public act of which the
● The power of executive clemency is a non-delegable power and must be doned, because the courts take no courts should take judicial notice
exercised by the President personally notice thereof

Constitutional limits on executive clemency granted to one after conviction granted to classes of person or
1. it cannot be exercised over cases of impeachment; communities who may be guilty of
2. reprieves, commutations, and pardons, and remission of fines and political offenses, generally before or
forfeitures can be given only "after conviction by final judgment;" after the institution of the criminal
3. a grant of amnesty must be with the concurrence of "a majority of all the prosecution and sometimes after
Members of Congress." conviction
4. No pardon, amnesty, parole, or suspension of sentence for vio- lation of
looks forward and relieves the offender looks backward and abolishes and
election laws, rules, and regulations shall be granted by the President
from the consequences of an offense puts into oblivion the offense itself, it
without the favorable recommendation of the Commission [on Elections]
of which he has been convicted, that so overlooks and obliterates the
is, it abolishes or forgives the offense with which he is charged that
Pardon: nature and legal effects. punishment, and for that reason it the person released by amnesty stands
[total remission] does "not work the restoration of the before the law precisely as though he
● United States v. Wilson, Marshall: A pardon is an act of grace, proceeding rights to hold public office, or the right had committed no offense
from the power entrusted with the execution of the laws, which exempts of suf- frage, unless such rights be
the individual on whom it is bestowed, from the punishment the law expressly restored by the terms of the
inflicts for a crime he has committed. It is the private, though official act of pardon," and it "in no case exempts the
the executive magistrate, delivered to the individual for whose benefit it is culprit from the payment of the civil
intended, and not communicated officially to the Court. ... A pardon is a indemnity imposed upon him by the
deed, to the validity of which delivery is essential, and delivery is not sentence"
complete without acceptance. It may then be rejected by the person to
whom it is tendered; and if it is rejected we have discovered no power in a ● what distinguish the two forms of executive clemency are both the
court to force it on him. number of recipients of the acts of clemency and the nature of the offense
● no legal power can compel the executive to give it. It is an act of pure which is their object
generosity of the executive and it is his to give or to withdraw before it is ● Amnesty - the grant of general pardon to a class of political offenders
completed. either after conviction or even before the charges are filed
● conditional pardon has no force until accepted by the condemned ○ may be granted by the executive only with the concurrence of the
● The better rule is that acceptance by the condemned is required only legislature
when the offer of clemency is not without encumbrance. ○ "so overlooks and obliterates the offense with which he is charged
● The rule that is followed is that the ac- ceptance of the conditions of the that the person released by amnesty stands before the law
pardon imports the acceptance of the condition that the President will precisely as though he had committed no offense."
also determine whether the condition has been violated ○
● Tax amnesty - "general pardon or intentional overlooking of its authority to
impose penalties on persons otherwise guilty of evasion or violation of
revenue or tax law, [and as such] partakes of an absolute forgiveness or
waiver by the Government of its right to collect what otherwise would be
due it.. .
○ tax amnesty can be a delegated administrative act when
authorized by law
○ not an
○ act of executive clemency but a legislative act which the President
had the power to do under Amendment 6 of the 1973 Constitution
(Legaspi vs. Minister of Finance)
● Villa v. Allen
○ "Where the pardoning power is vested in the legislature and is
exercised by legislative grant, and is in the nature of a general
amnesty for strictly political offenses, it has been considered in the
nature of a public law, thus having the same effect on the case as if
the general law punishing the offense had been repealed or
annulled."
● Ex parte Garland, Justice Field
○ "A pardon reaches both the punishment prescribed for the offense
and the guilt of the offender; and when the pardon is full, it
releases the punishment and blots out of existence the guilt, so
that in the eye of the law the offender is as innocent as if he had
never committed the offense ... it makes him, as it were, a new
man, and gives him a new credit and capacity."
● Justice Laurel in Cristobal v. Labrador
○ "The better view in the light of the constitutional grant in this
jurisdiction is not to unnecessarily restrict or impair the power of
the Chief Executive who, after enquiry into the environmental
facts, should be at liberty to atone the rigidity of the law to the
extent of relieving completely the party or parties concerned from
the accessory and resultant disabilities of criminal conviction.”
● Monsanto v. Factoran, Jr.,
○ Monsanto does not consider a person who has been pardoned as
innocent. While pardon indeed erases the penalty and the legal
disabilities consequent on the penalty, where, upon a valid
conviction, a person was dismissed from office, the pardon does
not entitle the person to reinstatement by right. He may, however,
be reappointed.
○ however, a person was pardoned because he been acquitted on
grounds that he had not committed the crime, reinstatement and
back wages are due by right
● how does one avail of the defense of amnesty?
○ There is no necessity for an accused to admit his responsibility for
the commission of a criminal act before a court or Amnesty
Commission may investigate and extend or not to him the benefits
of amnesty. The fact that he pleads not guilty or that he has not
committed the act with which he is charged, does not necessarily
prove that he is not guilty thereof.
○ amnesty presupposes the commission of a crime and that when
an accused says he has not committed a crime he cannot have any
use for amnesty
○ a petition for amnesty is in the nature of a plea of confession and
avoidance, under which principle the pleader has to confess the
allegations against him before he can be allowed to set out
matters which, if true, would defeat the action.
○ It has also been held that when a detained convict claims to be
covered by a general amnesty, his proper remedy is not a habeas
corpus petition. Instead, he should submit his case to the proper
amnesty board
Other forms of executive clemency.
● President may also grant reprieves, commutations, and remission of fines
and forfeitures.
○ implicit in the pardoning power: but they have been made explicit
by the Constitution.
● Reprieve - "postpones the execution of an offense to a day certain"
● Commutation - "is a remission of a part of the punishment; a substitution
of a less penalty for the one originally imposed."
● Remission of fines and forfeitures - merely prevents the collection of fines
or the confiscation of forfeited property; it cannot have the effect of
returning property which has been vested in third parties or money
already in the public treasury
● Villena v. Secretary of Interior
○ The grant of executive clemency must be personally done by the
Chief Executive, the constitutionality of statutes delegating the
power to remit fines and forfeitures to subordinate executive
officers has never been challenged
Q. What is the purpose of the grant of the power of executive clemency?
A. That Section 19 gives to the President the power of executive clemency is
a tacit admission that human institutions are imperfect and that there
are infirmities in the administration of justice. The power therefore exists
as an instrument for correcting these infirmities and for mitigating
whatever harshness might be generated by a too strict application of the
law.
Q. What are the forms of executive clemency?
A. They are: reprieves, commutations, pardons, remission of fines and
forfeitures, amnesty.
Q. May the president extend executive clemency for administrative penalties?
A. Yes. The Constitution makes no distinction with regard to the extent of
the pardoning power except with respect to impeachment. Llamas v.
Orbos,G.R. No. 99031, October 15, 1991.
Q. May political offenders be given executive clemency without the
concurrence of Congress?
A. Yes. They may be given individual pardon after conviction.
Q. Must an accused confess guilt of the crime charged in order to avail of
amnesty as a defense?
A. Yes. Vera v. People, 7 SCRA 152 (1963); People v. Pasilan, 14 SCRA 694 (1965).
Section 20. The President may contract or guarantee foreign loans on behalf of
the Republic of the Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided by law. The
Monetary Board shall, within thirty days from the end of every quarter of the
calendar year, submit to the Congress a complete report of its decision on
applications for loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would have the effect
of increasing the foreign debt, and containing other matters as may be
provided by law.
Power to contract or guarantee foreign loans.
● 1973 Constitution: merely made "subject to such limitations as may be
provided by law."
○ With Amendment 6, limitation was meaningless
● 1987 Constitution: He can no longer contract or guarantee foreign loans
without the concurrence of the Monetary Board
● Article XII, Section 21
○ "Foreign loans may only be incurred in accordance with law and
the regulation of the monetary authority. Information on foreign
loans obtained or guaranteed by the Government shall be made
available to the public."
Q. May the President contract or guarantee foreign loans?
A. Yes, but only with the "prior concurrence of the Monetary Board, and
subject to such limitations as may be provided by law."
Q. What is the responsibility for approving foreign loans and for guaranteeing
loans given to the Monetary Board?
A. Because it has expertise and consistency to perform the mandate and
since such expertise or consistency may be absent among the Members
of Congress.
Q. Why is the Monetary Board required to give a report of action taken on
loans and guarantees?
A. In order to allow Congress to act on whatever legislation may be needed
to protect public interest.
Section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.
Senate concurrence in international agreements.
● 1935 and 1973 Constitutions: legislative concurrence was needed only in
treaties
● 1987 Constitution: treaties and "international agreements."
● The authority of the Executive to enter into executive agreements without
concurrence of the legislature has traditionally been recognized in
Philippine jurisprudence
● The practice in fact was that agreements which were deemed to require
concurrence were embodied in treaties whereas those which were
deemed as not requiring concurrence were embodied in executive
agreements.
● International agreements involving political issues or changes of national
policy and those involving international arrangements of a permanent
character usually take the form of treaties.
● But international agreements embodying adjustments of detail carrying
out well-established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form of
executive agreements.
● executive agreements covering trademarks, postal regulations, tariffs and
most favored treatment in customs and related matters were undertaken
by the executive pursuant to an act of Congress
○ no need for subsequent congressional ratification
● "ensure that the laws be faithfully executed."
○ What the President does in such situations would not be unlike
the formulation of administrative regulations by administrative
agencies pursuant to a delegating law
■ Administrative regulations do not need confirmation by
Congress but draw their strength from the delegating law
● Treaty’s two distinct phases:
○ Negotiation phase
■ the power of the President excludes the legislature
[President alone negotiates, Justice Sutherland]
■ Into the field of negotiation, the Senate cannot intrude;
and Congress itself is powerless to invade it."
■ However, the fruit of the executive's negotiation cannot
bind as law unless it has the concurrence of the Senate.
 ■ At least two thirds of all the members of the Senate.
■ the decision to enter or not to enter into a treaty is a
■ prerogative solely of the President. Thus, unless the
President submits a treaty to the Senate there is nothing
for the Senate to concur in.
○ actual making of the treaty
The Visiting Forces Agreement.
● whether the Agreement was governed by Article VII, Section 21 or by
Article XVIII, Section 25
○ the Agreement came under both provisions.
○ Because the Agreement involved presence of US armed troops, it
had to come under the Article XVIII requiring a formal treaty.
○ Because it was a treaty, the manner of its approval had to follow
Article VII, Section 21 .
● Oppositors said: the treaty must be recognized as such by the United
States, it would be effective only if given the advice and consent of the
United States Senate
○ "Recognized as a treaty" means that the other contracting party
accepts or acknowledges the agreement as a treaty.
○ it is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an
executive agreement is as binding as a treaty. To be sure, as long as
the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a
treaty.
○ [Vienna Convention] treaty - "an international instrument
concluded between States in written form and governed by
international law, whether embodied in a single instrument or in
two or more related instruments, and whatever its particular
designation."
○ International law continues to make no distinction between
treaties and executive agreements: they are equally binding
obligations upon nations.
Termination of treaty.
● may be arrived at by formal agreement of the parties
● rebus sic stantibus - right of one party to terminate a treaty for breach by
the other party or when the fundamental circumstances for which the
treaty was entered into have changed
● Congress can pass a law effectively negating the terms of a treaty
● But since a statute is only municipal law whereas treaties are international
law, under the theory of "dualism" the congressional act would only affect
the domestic force of the treaty.
Other foreign affairs powers.
● three distinct foreign affairs powers
○ power to make treaties [found in Article VII, Section 21]
○ power to appoint ambassadors, other public ministers, and consuls
[covered by Article VII, Section 16]
■ decide whether a prospective ambassador from a foreign
country is acceptable
■ includes the prerogative to decide that a diplomatic officer
who has become persona non grata be recalled.
■ power to recognize governments and to withdraw
recognition
○ power to receive ambassadors and other public ministers duly
accredited to the Philippines. [part of statutory law]
○ deportation power
■ it is vested in the Executive by virtue of his office, subject
only to the regulations prescribed in Section 69 of the
Revised Administrative Code or to such future legislation
as may be promulgated on the subject.
■ no provision in the Constitution nor act of the legislature
defining the power, as it is evident that it is the intention of
the law to grant to the Chief Executive full discretion to
determine whether an alien's residence in the country is so
undesirable as to affect or injure the security, welfare or
interest of the state
● the President is the "sole organ" of the state for foreign relations
○ Draws the power to declare war in defense of the state from his
position as Commander-in -Chief
○ Congress may delegate to him the power to make rules and
regulations on matters touching foreign relations and even to
legislate on matters touching trade relations with other countries
Section 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 from
existing and proposed revenue measures.
The Budget.
● becomes the basis of the general appropriations bill, is prepared by the
President and submitted to Congress within thirty days from the opening
of every regular session thirty days from the opening of every regular
session
● Congress may not increase the appropriation recommended by the
President for the operation of the Government as specified in the budget
 ● "sources of financing" has reference to sources other than taxation foreign
aid

Budgetary process
1. Budget preparation.
a. covers the estimation of government revenues, the determination
of budgetary priorities and activities within the constraints
imposed by available revenues and by borrowing limits, and the
translation of desired priorities and activities into expenditure
levels
b. starts with the budget call issued by the Department of Budget
and Management. Each agency is required to submit agency
budget estimates in line with the requirements consistent with
the general ceilings set by the Development Budget Coordinating
Council (DBCC).
2. Legislative authorization
a. Congress enters the picture and deliberates or acts on the budget
proposals of the President, and Congress in the exercise of its own
judgment and wisdom formulates an appropriation act precisely
following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law
3. Budget Execution [Tasked on the Executive]
a. covers the various operational aspects of budgeting
b. The establishment of obligation authority ceilings, the evaluation
of work and financial plans for individual activities, the continuing
review of government fiscal position, the regulation of fund
releases, the implementation of cash payment schedules, and
other related activities comprise this phase of the budget cycle.
4. Budget accountability
a. evaluation of actual performance and initially approved work
targets, obligations incurred, personnel hired and work
accomplished are compared with the targets set at time the
agency budgets were approved.

Section 23. The President shall address the Congress at the opening of its
regular session. He may also appear before it at any other time.