MODULE #10

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.

This is a very long provision but the thing that we need to understand is this: the product of martial law of
Marcos.

Even the framers of the Constitution were so worried that the same thing might happen during the time of
Marcos because we know that when he declared Martial Law he continued running the country even if the
Constitution has already ended his term. To ensure that experience is avoided, they put a lot of safeguard when it
comes to the power to declare martial law. We will try to go over them very briefly.

The first is this: Commentators call this as a Commander-in-Chief Powers of the President. Section 18 deals
with the power to call out Armed Forces. Second is the power to suspend the privilege of the writ of habeas corpus.
Third is the power to declare Martial Law. Finally, emergency which we will discuss earlier when we studied the
legislature because you remember Congress grant emergency powers to the Pres.

The first one: relatively minor. That simply means that when there is a rebellion and there’s a disturbance.
For instance in Jolo, in Tawi-tawi, the President can call out the soldiers and army.

First question is this: Under our Constitution, can Congress review the power of the President to call out
Armed Forces? No, the Constitution does not say that it can be done when it comes to the power to call out armed
forces. Next question: What about the SC? If you look at the Constitution, does it say that the SC can review the
power of the President to call out armed forces? No, because if you look at the power of the Constitution itself, it
does not say that it can be done because it is saying only that what is subject to review by SC is the power to declare
martial law and to suspend the privilege of the writ of habeas corpus.
 Father Bernas said that this is not subject to review by the SC but the SC has come up with different
interpretation. What did the court say? If there is a grave abuse of discretion, we will review it. Meaning that if the
President sends soldiers to Jolo, the SC could say “Magsibalik kayo. Send back the soldiers”.

Regarding the power to call out Armed Forces what is the standard of review? When will the President call
out Armed Forces? What does the Constitution say? Take note that the Constitution allows him to do that under the
following situations: First, there must be invasion, rebellion or lawless violence. So you can’t call out the army
without these situations. But that is not there is all to it. The second qualification is when it becomes necessary. This
is very difficult to measure because it is always within the judgment of the President. The point is that not all
rebellions might require the calling out of the armed forces. The standard is when it becomes necessary,

Now we go to the suspension of the privilege of the writ of habeas corpus and the declaration of martial
law. You will study this more in the Bill of Rights, but this is the situation: When a policeman arrests somebody, you
know that under the Criminal Law, the policeman should file a case. If the policeman does not release him from jail
what will happen, the detention is illegal. What is the remedy of the person detained? He should file a petition for
issuance of the writ of habeas corpus.

The WRIT OF HABEAS CORPUS is an order directed to the policeman to produce the body and explain why
he is detained. If the explanation is not good, the judge will release, the police cannot argue. This one is very
important; it is based on the Constitution. That writ cannot be suspended because if this is suspended and the police
will bring you to jail you cannot be released anymore, there’s no other way. The only way under the Constitution is
you file a petition for issuance of the writ. If the President suspends the writ, you end up in jail, you have no recourse.
That is why during the time of Marcos, Ninoy Aquino was staying in jail for more than 10 years because he cannot
file a petition for the writ. The SC say, the writ is suspended, Diokno stayed in jail for so many years. That’s why you
must be very careful now when this can be suspended and for how long because this is very important for the liberty
of the individual. Only the writ of habeas corpus is found in the Constitution and it is not subject to repeal by Congress
and not subject to abolition by the SC unlike the writ of amparo and habeas data.

You can only suspend it for the grounds of invasion or rebellion. Take note that it is narrower, there is no
lawless violence. Second, when public safety requires it.

What will be the effect of suspension? First, it applies to persons judicially charged for rebellion or directly
connected with invasion. If they are charged of common crime, nothing to do with rebellion, the suspension will not
affect you. Second, it applies only to persons who are charged with national security offenses.

MARTIAL LAW is very difficult to define but when we speak of martial law this is an exercise actually of
some of the emergency power of the President. The President actually in a sense exercises some kind of emergency
powers in order to preserve law and order. Its so limited now under the new Constitution. We go back to basic
things, when the President suspends or declare martial law. For how long? The period given by the Constitution is
60 days. Take note however that it can be increased by Congress and it can also be decreased. That is what I mean
by subject to review. It can be increased or decreased. This was not so during the Marcos time, because what did
Marcos do. Congress is hereby abolished. Who can question it? No one because Congress has been abolished.

Next point is this, try to look at the Constitution, is there a distinction in the procedure regarding increasing
and decreasing the period. What’s the distinction? When it is for increasing, the increase can only be done upon the
initiative of the President. If there is no initiative from the President, Congress cannot increase. What about
decreasing the period? Congress can do it without any initiative from the President. So in the exercise, this is one
referred to as a legislative veto. The President declares martial law. Congress vetoes it by saying we annul it. So this
is the only time in the Constitution when you have a reverse exercise of power. It is the President that is proposing
and it is Congress exercising the veto. That is not however the only form of review. Why? The second form of review
is, it is by the SC. Who can file the petition? Take note here that it is saying, any citizen. Now, it appears that not all
persons of the Philippines can question it because definitely if you are an alien you are not qualified because it is
saying only citizens. Is this an improvement? This is an improvement actually because when martial law was declared
before, people will file a case before the SC. An argument of the soldier is “no you cannot file it unless you are a
taxpayer”.

Another one: The problem before during the time of Marcos was this, because we know that the Marcos
court was composed of his classmates, it’s very difficult to challenge the declaration of martial law. So what
happened was this: when people went to the SC and file the case, the SC would say, that’s a political question, it is
not for us to review. That is given to other departments. That has been a repeated doctrine. In order to avoid that
problem, they revise the Constitution. They stated that ok! The SC will not consider this a political question. It can
inquire whether there was a grave abuse of discretion on the part of the President in declaring martial law or
suspending the writ. Now, it is now subject to judicial review unlike during the time of Marcos.

There are other things for instance, when Congress revoked it, it’s saying you need absolute majority. Right!
The framers of the Constitution put this to ensure that it is easier to revoke the declaration. Another item is this,
regarding suspension of the writ what is the effect? One effect is in criminal law because in criminal law I think I told
you a while ago when you arrest somebody, you have to file a case against him within 12, 18, 26 hours. If the writ is
suspended how long must you file? If the writ is suspended the police has more time to detain you because it only
becomes illegal if it exceeds 72 hours or 3 days. It is saying also that suspension of the writ however will only apply
to people who are judicially charged with rebellion. The crime of invasion. Why it did not say invasion or charged
with invasion? Why is it that it stated people who are charged with rebellion but it did not say people who are charge
with invasion? Why? The reason is if you study the entire RPC, invasion is not a crime. Rebellion is a crime but
invasion is not. Why? Because actually that goes to international law. If you invade a country, you cannot be tried in
court. You will be treated as prisoner of war and you are subject to a penalty. That’s why there’s no such thing as
the crime of invasion.

The other question is this: when martial law is declared, will people be tried by military tribunal or court
martial? This one was a bit problematic because during the time of Marcos he created a military tribunal and
thousands of people, were sentenced to death. But the problem is if you have military tribunal usually it’s a “
kangaroo” court because it is under the military. So that’s why they are saying now that civilians will not be under
the jurisdiction of military courts even during martial law. There is an exception however, that is where civilian courts
are no longer open or functioning. The only situation I can imagine is in the battlefield. There’s actual fighting. You
cannot go to a civilian judge. So that’s the only time when the civilian is caught committing a crime you might be
sentenced in the military court. But in other instances, that cannot happen.

In fact Ninoy Aquino was sentenced to death in military court. Another one is this, if martial law is declared,
can the President issue Presidential Decree in the place of Congress because we know that during martial law,
Marcos exercise legislative power. Take note here what does it say? It’s very clear now; a state of martial law does
not suspend the operation of the Constitution nor supplant the functioning of the civil courts or legislative
assemblies. Meaning, Congress can still continue to function and operate. The result is no longer the same as during
the time of Marcos. The President can no longer issue Presidential Decrees which will have the force of law. So, it
will be entirely different. That would be a new kind of martial law now.

Right now, the provision will tell us what will not happen during martial law to ensure that martial law will
not be abused.

1. The operation of the Constitution will not be suspended.

People cannot be arrested now without warrant. They cannot raid houses. Take note that the
Constitution will not be abolished. It will continue to exercise its right.

2. The functioning of civil courts will not be affected.

Courts can continue to function so it will not be abolished. Meaning, you can still file cases until such time.

3. The operation of the legislative assemblies will continue to function.

We use the terms legislative assemblies so it will not apply only to Congress because Congress is a legislative
body but we also have the city council, municipal council… so they will continue to work. In the time of Marcos, he
abolished Congress so they cannot pass laws so he issued Presidential Decrees. But right now., because Congress
can continue to function, the President cannot issue laws.

4. Military courts will have no jurisdiction over civilians.

During the time of Marcos, civilians were tries by the military courts. They have no lawyers there. Generals
are the one presiding. In the end, you go to jail most certainly. If you go to the barracks, you will be arrested also. In
the end, if you commit crimes you will be tried by the civilian courts which are more objective except when civilian
courts are no longer functioning.

Bar Questions
1997
What will be the effect of the suspension of the privilege of the writ of habeas corpus?
2000
The President decided to place Basilan under martial law. Is it permissible? Yes, it is saying that the
Philippines or any part thereof. So there can be partial declaration of martial law. That’s allowed.

IBP vs ZAMORA
G.R. No. 141284 (August 15, 2000)

FACTS: National Police (the “PNP”) in visibility patrols around the metropolis. In view of the alarming
increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols
for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief
of Staff of the Armed Forces of the Philippines (the “AFP”), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/2000 (the “LOI”) which detailed the manner
by which the joint visibility patrols, called Task Force Tulungan, would be conducted. Task Force
Tulungan was placed under the leadership of the Police Chief of Metro Manila.
The Integrated Bar of the Philippines (the “IBP”) filed the instant petition to annul LOI 02/2000 and
to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing
that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
CONSTITUTION, IN THAT SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY
BE UNDER THE CONSTITUTION.

ISSUE: WON the President’s deployment of the Marines in Metropolitan Manila to aid in civilian law
enforcement is unconstitutional.

HELD: When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot
be called upon to overrule the President’s wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of
 the constitutional intent to give the President full discretionary power to determine the necessity
of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s
decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exists no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this Court’s
duty of “purposeful hesitation” before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the President’s
judgment. To doubt is to sustain.

GUDANI VS SENGA
G.R. No. 170165 (August 15, 2006)

FACTS: On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the
AFP to appear at a public hearing before the Senate Committee on National Defense and Security
(Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the Commission on
Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano.

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga)
were among the several AFP officers who received a letter invitation from Sen. Biazon to attend
the 28 September 2005 hearing. Because of the invitation, the Office of the Chief of Staff of the
AFP issued a Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing
(Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.[5][5] Noting
that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee hearing on
28 September 2005, the Memorandum directed the two officers to attend the hearing.

However, on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted
to the PMA Superintendent from the office of Gen. Senga, stating as follows: PER INSTRUCTION
OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR
SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC
ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator
that “no approval has been granted by the President to any AFP officer to appear” before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as
the hearing started, and they both testified as to the conduct of the 2004 elections. Because they
testified in the Senate against the President’s instruction, Gen. Gudani and Col. Balutan were
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline.

ISSUE: WON the President can prohibit military officers from appearing and testifying in legislative
inquiries.

HELD: We hold that the President has constitutional authority to prevent a member of the armed forces
from testifying before a legislative inquiry by virtue of her power as commander-in-chief, and that
as a consequence a military officer who defies such injunction is liable under military justice. At
the same time, we also hold that any chamber of Congress which seeks the appearance before it
of a military officer against the consent of the President has adequate remedies under law to
compel such attendance. Any military official whom Congress summons to testify before it may be
 compelled to do so by the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer. Final judicial orders
have the force of the law of the land which the President has the duty to faithfully execute.

The ability of the President to prevent military officers from testifying before Congress does not
turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to control
the actions and speech of members of the armed forces. The President’s prerogatives as
commander-in-chief are not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the
approval of higher-rank promotions, yet it is on the President that the Constitution vests the title
as commander-in-chief and all the prerogatives and functions appertaining to the position. Again,
the exigencies of military discipline and the chain of command mandate that the President’s ability
to control the individual members of the armed forces be accorded the utmost respect. Where a
military officer is torn between obeying the President and obeying the Senate, the Court will
without hesitation affirm that the officer has to choose the President. After all, the Constitution
prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed
forces.

David vs. Macapagal-Arroyo

489 SCRA 160 (2006)

FACTS: On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President
Arroyo issued PP 1017 declaring a state of national emergency, thus:

I…do hereby command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection
or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of
the Constitution do hereby declare a State of National Emergency.

ISSUE: Whether Proclamation No. 1017 a declaration of Martial Law?

HELD: No. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence.
As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done.
Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires. Specifically, (a) arrests and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only
where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

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

Everybody has heard about pardon or amnesty. I will just go over them one by one. The literal equivalent
of pardon as used in ordinary language means forgiveness. It is an act of grace which extends to the offender from
punishment which the law inflicts. You will not suffer the consequences. Why is pardon allowed? The reason is
practical because sometimes the law is too harsh. Sometimes you cannot avoid also committing errors. So you
cannot reverse a decision that is already final. So the only remedy is just a pardon from the President. So that is to
mitigate the harsh consequences of the law and the errors of judges. That is the main reason.

True or False
Can the President pardon a close relative? No problem. If you look at the appointing power, the President
cannot appoint relatives within the fourth civil degree. But when it comes to pardon, the Constitution does not say
that he cannot pardon a relative.

True or False
Can you pardon a rebel? Yes.
Can you grant pardon to a rapist? Yes.
Can you grant amnesty to people who commit rape? No. it cannot be subject to amnesty because it is a
common crime.

According to Justice Cruz, pardon can be absolute or conditional. Absolute pardon cannot be refused. You
are given pardon subject to no condition. Conditional pardon can be refused because the condition will not be to
the liking of the person.

Take note of the Constitutional limitations of the President. Justice Cruz here emphasized the limitations in
the Constitution because there are other limitations found in statute.

1. Not allowed in impeachment.

This is an absolute rule. What is impeachment? It is the proceeding of removing high officials in the
government – president, vice president, members of the commission, and justices of the SC. The main penalty is
removal. The President cannot pardon you so that you cannot be restored to be qualified again.

Q: Suppose Estrada is convicted of plunder. He is on trial now before the Sandiganbayan. Can he be granted pardon?
A: Yes (he was in fact been pardoned) why? You have to distinguish impeachment from plunder because
impeachment is only the proceeding to remove you. If he is removed he cannot be pardoned in a sense that he will
be restored from the office. But if prosecuted criminally for other crime, if he is convicted of other offenses aside
from impeachment, he can be pardoned because the limitation only is on impeachment.

2. Election offenses need COMELEC recommendation.

It is saying that the President can exercise her power for executive clemency on election offenses like vote
buying. It can be done by the concurrence of the COMELEC. Otherwise, it will be null and void.

If you go to Article 9 section 5, it says no pardon, amnesty, parole or suspension of sentence for violation
of election laws and also regulation…

If we try to analyze it, it is not pardon that is only limited. It included in the provision – pardon, also amnesty
for election offenses will not be allowed without the recommendation from the President. So amnesty, paroles, and
suspension of sentence. Take note here that parole and suspension of sentence are not among the powers given by
the Constitution to the President. But the President exercises not because of the Constitution but because of the
statutes. Actually, every now and then, parole will be granted but that is usually done in the form of pardon. I think
you studies parole in the criminal law. For instance, your sentence is 5-10 years. When you reach 5 years, you are
entitled for parole. Meaning you can go. The second sentence applies to minors only because you cannot be jailed
unless you acted with discernment. It is given to lesser officials, not anymore to the President.

3. Pardon, reprieve, commutation and remission of fines/ forfeitures cannot be availed of before final judgment.
It’s not only pardon. No pardon, no reprieve, no commutation and no remission of fines/ forfeitures unless
there is final judgment.
Q: When is the judgment become final?
A: When there is no appeal and the period of 15 days has lapsed. So you were convicted by the MTC, you did not
appeal. After the lapse of 15 days, the judgment becomes final. You are now eligible for pardon.

Q: Suppose it is decided by the Supreme Court, when will it become final?

A: If you don’t file a motion for reconsideration within 15 days also.

Tricky Question: Can Congress grant reprieve, commutation, forfeiture of fines when it comes to election offenses
without the recommendation of the COMELEC?
A: Yes, because the language only covers pardon, parole, suspension and amnesty. So that’s it!

What about reprieve? It is the postponement of an execution to another day. Sometimes the President is
allowed to postpone it. Instead of death penalty tomorrow, it will be next week, 2 weeks away or 1 month away.

Q: Can the President grant mass reprieve? A: Right now it’s going on. The President issues a Moratorium for the
death penalty, meaning no execution.

Q: What is COMMUTATION?
A: Limitation but more ordinary term is reduction of sentence. You have studied fines, remission of fines. That
includes fine: BP 22. By the way, to whom is fine given? Who receives the fine? It goes to the government.

Q: What is FORFEITURE?
A: If you kill somebody, bang bang bang! with a 45 caliber, what will happen to the gun? Forfeited. So that’s it!

Amnesty. I think you’ve heard amnesty so many times before.

Q: Can you grant amnesty to people not paying taxes? Why?

A: Yes, tax amnesty. Because tax evasion is an offense against the state so it’s possible that you can grant tax
amnesty.

Can you grant pardon in civil cases? Because when it comes to civil cases people are quarrelling, that has
nothing to do with the State. I borrowed 1M from you then you lost the case, the court stated you pay 1M. The
President cannot say I will not repay your 1M that I borrow from you. If you try to look at it, usually these are
penalties good for imposition in favor of the state.

Q: How do we distinguish pardon from amnesty?

A: PARDON is a private act and AMNESTY is public act. Why is it a private act? Generally pardon is an act of the
President, while amnesty requires the concurrence of Congress. What do you mean by courts do not take judicial
notice in pardon while in amnesty the court takes judicial notice? What do you mean by judicial notice? When we
say judicial notice that means that you need not present evidence anymore because the courts know it. It is assumed
conclusively that the Court knows it. So for instance, when you claim on the law of gravity or I will just demonstrate
that this is the law of gravity. No need! Because when it comes to the laws of nature, courts take judicial notice. You
need not present evidence anymore. So that is the same with the amnesty. Courts are assumed to know that. But
when it comes to pardon, if you claimed that you have been pardoned, you need to present evidence because that
is not within the judicial notice of courts. There’s a requirement in pardon that you can do it after final judgment but
there is no requirement when it comes to amnesty before or after. In pardon it is individual while the other is in the
class of offender.

We normally say that AMNESTY is granted to a class of people, a group of offenders. But the actual practice
is this; the President will say I hereby grant amnesty to all army rebels. Then the 2 houses will pass resolution not
laws. They issue resolution. We concur with the amnesty granted by the President. If you are a rebel does that mean
you now go down from the mountain and avail amnesty? How do you avail amnesty? When you avail the amnesty
you apply separately. While it is granted to a class of offenders, you avail of it individually. That’s why if you study
cases about amnesty, still granted to individuals one by one. We just cannot say that all rebels are granted amnesty.
You cannot go out from the mountains carrying your firearms, you are free. That’s not the case. So that’s it.

You need to understand, the reason requirement that you can be granted amnesty, you have to admit first
– guilt. So if you are a rebel and you apply for amnesty you will be asked to execute an affidavit admitting all the
crimes that you have done. There will be now an admission because if you will not do that, according to the Court
you are being inconsistent. You are asking for amnesty, you need to admit your guilt. But that does not apply to
pardon. In pardon, you are convicted by final judgment so there is no point anymore for admission. Pardon does not
result to automatic reinstatement, it needs deliberation of innocence.

You are convicted and you served the sentence. If you served the sentence, you are automatically dismissed
from service because you cannot go one place anymore while you are on jail. Suppose you have pardon. What will
happen? Your guilt has been wiped out. You can now apply for a job in the government. You can apply for the same
job. You might be accepted or not. But the point is you are now eligible to rejoin the public service but you will not
be automatically reinstated for the reason of that pardon. However, there are instances that you actually did not
commit the crime. Sometimes when the judgment has become final, the only way to be released is he will get pardon
from the executive. After the deliberation of innocence, you get back to your job immediately. You are automatically
reinstated. In fact, you can get back your wages during the time you did not work. Why? Because you will be restored
to your former status and would be given recognition of the injustice that has been to you. You get back your wages
and also get back your job without applying for it anymore. That is really a rare situation.

SC told us in the case of Garcia that there can be executive clemency in administrative cases. Remember
that Garcia was a governor and was ordered to be suspended for 90 days. But the President stated that after 30 days
you go back. We will pardon you.

What is an administrative case? It is a case decided not by court, not by SC. It is by administrative bodies.
According to the court, the President can pardon you also even in administrative offenses. Say you are a government
employee; you will be removed by the ombudsman. That is an administrative case. You might be removed by the
Civil Service. That is subject to pardon. Where the President can pardon people in administrative cases, he cannot
do it for the employees of the judiciary. Reason is that you violate separation of powers. Meaning that you are a
court employee and you have been removed by the judiciary, you cannot be pardoned by the executive. So pardon
in administrative cases can apply only to those of the executive and other departments but not to the employees of
the judiciary because of separation of powers.

Another principle - the determination whether you have violated the terms of pardon. The one who pardons
you is the executive. You are pardoned provided you do not commit any other crime. Once you commit another
crime, you will be arrested and you will continue serving the sentence. Many instances people violated their pardon
and they are arrested by the executive. According to the SC, the power to determine whether you have violated the
condition will belong to the executive, the pardoning authority. So courts will have no business whether you have
violated your pardon.

In criminal law, there is a crime for violation of the terms of pardon. It is another offense. So if you are
charged under the RPC, it shall be determined by the judiciary because it will now be a separate crime. Example -
You are pardoned for the crime of robbery. One condition is do not commit any other crime. Later on you committed
estafa. The executive will arrest you. You will continue serving your sentence. Meaning, instead of 15, it will be 20
years. However, they can also charge you with violation of the terms of pardon because that is a crime under RPC.
You will be tried for violation of the terms of pardon and if you are convicted, you will suffer the sentence for the
new crime. But you also committed estafa. They will try you for that. There are now 2 violations. The pardon here is
conditional.
Bar question 1995
Lucas, a ranking member of the NDF was captured by policemen while about to board a passenger bus
bound to Sorsogon; charge with rebellion, he pleaded not guilty. Before trial he was granted absolute pardon by the
President to allow him to participate in the peace talks between the government and communist rebel. Is the pardon
valid? No, because it is before trial. Assuming that the pardon is valid, can Lucas reject an absolute pardon? This one
is covered by American cases that there are two kinds of pardon. One is absolute and the other one is conditional.

When you say absolute, there is nothing for the person pardoned to do. So when you are pardoned, you
cannot say, “ Ayoko nga! I do not want to be pardoned I just want to stay in jail forever! “. If it is conditional you can
refuse. So for instance there’s a condition that you should not go to the cockpit anymore. So some people likes going
to cockpit, so they would rather stay in jail. So he say,” Gusto ko sa cockpit ang saya-saya. I will not accept the
pardon. angal?” So if it will be possible that you do not like the condition so you can refuse it.

Q: Instead of pardon, may the President grant the accused amnesty if favorably recommended by the National
Amnesty Commission. Can he be granted amnesty instead of pardon if recommended by the National Amnesty
Commission?
A: No, take note that he is a rebel. That is a political offense but the problem is who recommends when it comes to
amnesty? Congress, not the National Amnesty Commission. So that is the effect. While it can be given before or after
conviction the problem is, the concurrence is from Congress.

Q: May the accuse avail of amnesty despite the fact that he continue to profess innocence?
A: No, if you want to avail of amnesty you must actually admit the offense.

Q: Can you avail of pardon despite the fact that you continue to say that you admit it?
A: Yes, it is a requirement that you admit the crime.

Bar Question, 1991

In connection with the 1997 Election, Luis Millanes was prosecuted for and convicted of an election offense
and was sentenced to suffer imprisonment for 6 years. In April 1991, the President granted him absolute pardon on
the basis of strong recommendation from the Board of Pardon and Parole. Is the pardon valid? No, it will be the
COMELEC who will recommend.

A City Assistant Treasurer was convicted for Estafa through falsification of public document. While serving
sentence she was granted absolute pardon by the President. Assuming that the position of Asst. City Treasurer has
remained vacant, will he be entitled to a reinstatement without the need of appointment? No. If later the same
position becomes vacant could he reapply and may be appointed? Yes, what the principle here? While you are not
automatically reinstated to the position, that you lost because of conviction, you can restore to your qualification.
You become qualified again.

In what situation will pardon result to automatic reinstatement? When there is an express declaration.

MONSANTO VS FACTORAN
G.R. No. 78239 (February 9, 1989)

FACTS: In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A.
Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex
crime of estafa thru falsification of public documents and sentenced them to imprisonment of four
(4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and
one (1) day of prision mayor as maximum, and to pay a fine of P3,500. Subsequently, she was
extended on December 17, 1984 by then President Marcos absolute pardon which she accepted
on December 21, 1984.
 By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's
letter-request was referred to the Ministry of Finance for resolution in which the Finance Ministry
ruled that petitioner may be reinstated to her position without the necessity of a new appointment
not earlier than the date she was extended the absolute pardon. It also directed the city treasurer
to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified
in favor of the government as well as the costs of the litigation, be satisfied.

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985
stressing that the full pardon bestowed on her has wiped out the crime which implies that her
service in the government has never been interrupted and therefore the date of her reinstatement
should correspond to the date of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension; and that she should not be required to
pay the proportionate share of the amount of P4,892.50.

ISSUE: WON petitioner can be ipso facto reinstated in office by virtue of the absolute pardon granted her
by the President of the Philippines.

HELD: The better considered cases regard full pardon (at least one not based on the offender's innocence)
as relieving the party from all the punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing
more. "To say, however, that the offender is a "new man", and "as innocent as if he had never
committed the offense;" is to ignore the difference between the crime and the criminal. A person
adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of
punishment, though left unpunished; and the law may regard him as more dangerous to society
than one never found guilty of crime, though it places no restraints upon him following his
conviction."

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords
no relief for what has been suffered by the offender. It does not impose upon the government any
obligation to make reparation for what has been suffered. "Since the offense has been established
by judicial proceedings, that which has been done or suffered while they were in force is presumed
to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This
would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost
earnings and benefits.
Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or
forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.

People v. Patriarca
341 SCRA 464 (2000)

FACTS: Accused, a member of the New People’s Army, was convicted of murder and sentenced to reclusion
perpetua. He appealed to the Supreme Court. While his appeal was pending, he applied for amnesty
under Proclamation No. 347 of March 25, 1992. His application was favorably granted by the National
Amnesty Board. What happens to his appeal?

HELD: The approval of his application for amnesty serves to put an end to his appeal. Amnesty
commonly denotes a general pardon to rebels for their treason or other high political offenses.
Amnesty looks backward, and abolishes and puts into oblivion the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person released by amnesty stands before
 the law precisely as though he had committed no offense. The conviction of accused is therefore
reversed, and he is acquitted of the crime of murder.

Echegaray v. Secretary
301 SCRA 96 (1999)

FACTS: After the death sentence on accused was affirmed by the Supreme Court and the schedule of execution
set by the trial court, accused petitioned the Supreme Court for issuance of a temporary restraining order.
Pointing to the possibility of the repeal of the Death Penalty Law, the Court restrained the execution until
June 15, 1999, unless it became sooner apparent that no repeal was to be made. Did the Supreme Court
intrude into the authority of the President to grant reprieves?

HELD: No. While Sec. 19, Art. VIII of the Constitution bestows on the President the power to grant reprieves,
pardons and commutations, this provision is simply the source of power. It cannot be interpreted as
denying the power of courts to control the enforcement of their decisions after their finality. In truth, an
accused who had been convicted by final judgment still possesses collateral rights and these rights can be
claimed in the appropriate court. For instance, a death convict who becomes insane after his final
conviction cannot be executed while in a state of insanity. The suspension of such a death sentence is
indisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effect is the same. In the same vein, it cannot be denied that the Congress can amend the law
by reducing the death penalty to life imprisonment. But by not stretch of the imagination can the
exercise by the Congress of its plenary power to amend laws be considered as a violation of the power of
the President to commute final sentences of conviction.

People v. Casido
269 SCRA 360 (1997)

FACTS: Accused applied for and was granted conditional pardon by the President while their appeals were
pending before the Supreme Court. After release, they filed a Motion to Withdraw Appeal before the
Supreme Court which the latter denied. Meanwhile, their applications for amnesty were also favorably
acted on by the National Amnesty Commission.

ISSUE: What is the status of their pardon?

HELD: The pardon was void for having been extended during the pendency of the appeal or before conviction
by final judgment, and therefore, in violation of the first paragraph of Sec. 19, Art. VII of the Constitution.
Any application for pardon should not be acted upon or the process towards its grant should not be begun
unless the appeal is withdrawn. The pronouncement in Monsanto v. Factoran that the acceptance of a
pardon amounts to an abandonment of the appeal rendering the conviction final is an obiter dictum. The
members of the Presidential Committee for the Grant of Bail, Release or Pardon are admonished to
exercise utmost care and diligence in the performance of their duty to save the President from
embarrassment. However, since amnesty, unlike pardon, may be granted before or after the institution
of the criminal prosecution and even after conviction, the release of accused was valid on the ground of
the amnesty extended to them.

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.
 Regarding the power to contract and guarantee foreign loans just take note of what are the requisites.
There are two.
One is prior concurrence of the Monetary Board and the second one is any subject to limitation as may be
provided by law.

Two things: contracting and guaranteeing. When we say contracting, the Republic is borrowing the money.
Guarantee – usually a private entity. A private business group. They can borrow money but sometimes the foreign
bank will not allow it. Sometimes the President will allow it. He is allowed to do that. In that instance, what is required
only is the concurrence of the monetary board. Take note also that SC stated in Constantino that it is not just a
matter of guarantee, not just a matter of borrowing money but in includes… buying-back scheme – if you cannot pay
immediately, they will restructure it. SC stated that other concepts related to the loan are also covered under the
authority of the President.

Since it is not a treaty, section 20 tells us that it needs no Senate concurrence. But you must have prior
concurrence from the Monetary Board. Monetary Board is composed of Sec. of Finance, some other officials of the
government. But the point simply is that it still needs prior concurrence.

Section 20 is not self-executing. Congress will still provide, pass a law, providing for the limitation. Without
that law, it cannot be done because we keep on borrowing a lot of money, we assume that Congress put a limitation
on the borrowing power of the President. This provision is new. They put this provision so that people will know
compared to what happened during the Marcos regime.

It was asked in 1999 in the Bar # 1. The question was that: What is the restriction in the President in
obtaining foreign loans? How much do we owe now in foreign countries? It was too much. I think it follows during
the time of Marcos, and in order to save that he put restriction but it is still the same, nobody can stop that anymore,
so a big problem, but we are not the only country having that problem.

Constantino, Jr. v. Cuisia

472 SCRA 505 (2005)

FACTS: Saddled with foreign debts, the Aquino Administration decided to enter into a Financing Program aimed
at extinguishing portions of the country’s pre-existing loans through either debt buyback or bond-
conversion. The buyback approach essentially pre-terminated portions of public debts while the bond-
conversion scheme extinguished public debts through the obtention of a new loan by virtue of a sovereign
bond issuance, the proceeds of which in turn were used for terminating the original loan.

ISSUE: Whether the schemes constitute the loan “contract” or “guarantee” contemplated by Sec. 20, Art. VII, as
among the powers of the President?

HELD: Yes. Loans are transactions wherein the owner of a property allows another party to use the property
and where customarily, the latter promises to return the property after a specified period with payment
for its use, called interest.[ On the other hand, bonds are interest-bearing or discounted government or
corporate securities that obligate the issuer to pay the bondholder a specified sum of money, usually at
specific intervals, and to repay the principal amount of the loan at maturity. The language of the
Constitution is simple and clear as it is broad. It allows the President to contract and guarantee foreign
loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as to which kinds of
debt instruments are more onerous than others. This Court may not ascribe to the Constitution
meanings and restrictions that would unduly burden the powers of the President. It would be the
worst kind of judicial legislation if the courts were to misconstrue and change the meaning of the organic
act.
 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.

The first thing that we need to understand is, when it comes to foreign affairs, we follow the same statute
in US. I will say that the sole organ of foreign relation is the executive. The SC has no participation; Congress has
verbally no participation except only under #2. But take note here that is into Congress itself who participates. Its
only Senate and the participation of the Senate is also very limited. It comes only when you enter into treaties. I
think I ask in T or F. Suppose the Pres wants to terminate a treaty, will he need Senate concurrence? No, because
that power is not given by the Constitution to the Senate. The power is very specific, it is saying only if you want to
enter into treaties you need Senate concurrence. It does not say that if you want to terminate a treaty you need
Senate concurrence. Its only one sided.

Under the Constitution, the president is given the power:

1. To negotiate treatise and international agreements
2. To appoint ambassadors, public ministers and consuls
3. To receive ambassadors – this is not listed in the Constitution but it is agreed that the President has the power.
Actually it is more symbolic because it seems that if you are an ambassador from a foreign country, before you can
discharge your functions you have to go to the Malacañang and the President will receive you. So it is more
ceremonial and symbolic than actual.
4. To contract and guarantee foreign loans
5. Deport aliens – not in the Constitution but given by law. it is an issue of foreign affairs for the reason that if you
deport aliens, the other country may get angry. So it is the President.

The other problem is this: In the old Constitution of 1935 it was very specific that only treaties need Senate
concurrence but it become a problem in actual practice. Why it becomes a problem? Because usually the President
will enter into a treaty and say that this is only an executive agreement, it need not need your consent. How did that
happen because that is the practice in the US. The practice in the US is that if it is agreement you do not need Senate
consent. If it is a treaty you need Senate consent. Now, to do away with the acts of President by passing the Senate,
they decided to put everything together saying that treaties, international agreements need Senate concurrence.
But the problem is it does not involve anything.

What does that mean? If you look at the case (CIR vs. GOTAMCO 148 SCRA36 (1987) case), it is saying that
not all international agreement or international executive agreements need Senate concurrence. We have to
distinguish. What’s the distinction? Those which are permanent in nature or which establish policy require Senate
concurrence. Those which are transitory in nature need no Senate concurrence. This one is very important. So even
now, despite of the wordings of the Constitution, the actual practice done by the President is if the international
agreement is permanent in nature, when it established policy it gets Senate concurrence. However if the agreement
is only transitory in nature, maybe it’s only the implementation of a treaty, you need no Senate concurrence. There
is still a dispute sometimes between the Senate and the President.

The best example is the one I assigned. What happened there was, the President entered into an executive
agreement with World Health Organization exempting him from treaties, tax. Where will that fall #1 or #2? What
did the court say? It falls only under #2. Take note here that the WHO is considered to be an international entity.
WHO is only an organ of the United Nation? Now we have treaty with UN. We call it a UN chapter. They sign it. Under
that UN Chapter they are suppose to grant privileges to organizations under it. So that they will perform their
function. So the court, say, WHO is only a part and organ of the UN. So when the Pres give tax exemption, he is only
implementing the terms of the original treaty, treaty with UN. So there is no need of Senate concurrence. Ok!

CIR vs. GOTAMCO & SONS

148 SCRA 36 (1987)
FACTS: The World Health Organization (WHO) is an international organization which has a regional office
in Manila. As such, it enjoys privileges and immunities which are defined more specifically in the
HOST Agreement entered into between the Republic and the said Organization on July 22, 1951.
Section 11 of the Agreement provides, among others, that "the Organization, its assets, income
and other properties shall be: (a) exempt from all direct and indirect taxes xxx." The WHO decided
to construct a building to house its own offices stationed in Manila. The construction contract was
awarded to respondent Gotamco. Subsequently the WHO issued a certification stating that the bid
of respondent should be exempted from any taxes in connection with the construction of the WHO
building in accordance with the HOST Agreement. The Commissioner of Internal Revenue,
however, demanded from respondent the payment of P16,970.40, representing the 3%
contractor's tax plus surcharges on the gross receipts it received from the WHO in the construction
of the latter's building. Respondent Gotamco appealed the decision to the CTA which reversed
the Commissioner's decision. The CTA decision is now before the SC for review on certiorari. In his
petition, petitioner questioned the entitlement of the WHO to the exemption, contending that the
HOST Agreement is null and void, not having been ratified by the Philippine Senate as required by
the Constitution.

ISSUE: Whether or not the HOST Agreement is validly concluded between the Philippine Government and
the WHO.

HELD: We find no merit in the contention. While treaties are required to be ratified by the Senate under
the Constitution, less formal types of International Agreements may be entered into by the Chief
Executive and become binding without the concurrence of the legislative body. The Host
Agreement comes within the latter category; it is valid and binding international agreement even
without the concurrence of the Philippine Senate. The privileges and immunities granted to the
WHO under the Host Agreement have been recognized by this Court as legally binding on
Philippine Authorities.

GO TEK VS DEPORTATION
G.R. No. L-23846 (September 9, 1977)

FACTS: In December, 1963 certain agents of the National Bureau of Investigation (NBI) searched an office
located at 1439 O'Donnel Street, Sta. Cruz, Manila believed to be the headquarters of a guerilla
unit of the "Emergency Intelligence Section, Army of the United States" and that among those
arrested thereat was Go Tek an alleged sector commander and intelligence and record officer of
that guerilla unit.
It was further alleged that fake dollar checks were found in Go Tek's possession and that, therefore,
he had violated article 168 of the Revised Penal Code and rendered himself an undesirable alien.
The prosecutor prayed that after trial the Board should recommend to the President of the
Philippines the immediate deportation of Go Tek as an undesirable alien, "his presence in this
country having been, and will always be and a menace to the peace , welfare, and security of the
community". Go Tek filed a motion to dismiss on the ground that the complaint was premature
bemuse them was a pending case against him in the city fiscal's office of Manila for violation of
Article 168, RPC. He contended that the board had no jurisdiction to try the case

ISSUE: WON the State as the power to deport undesirable aliens.

HELD: The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S.
549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercise by the Chief Executive "when
he deems such action necessary for the peace and domestic tranquility of the nation Justice
Johnson's is that there the Chief Executive rinds that there are aliens whose continued in the
 country is injurious to the public interest he may, even in the absence of express law, deport them
(Forbes vs. Chuoco Tiaco and Crossfield 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The Deportation Board is an agent of the President of the Philippines charged with the
investigation of undesirable aliens and to report and recommend proper action on the basis of its
findings therein." The Board has jurisdiction to investigate Go Tek for illegal possession of fake
dollar checks (as well as his alleged "guerilla" activities) in spite of the fact that he has not yet been
convicted of illegal possession thereof under article 168 of the Revised Penal Code and
notwithstanding that act is not the grounds for the deportation of undesirable aliens as
enumerated in section 37 of the Immigration Law. The charge against Go Tek before- the Board
was not premature.

What are things which are considered to be permanent in nature or which established policy? For instance
the President would want to enter into a defense treaty with China. That is something new. For the last 100 years,
we never had a defense treaty with China. Another one for instance, the President goes to other countries from time
to time. He goes to Moscow. Then sometimes he enters into a cultural agreement. We will send Filipino folks
dancers. Cultural exchange maybe a Russian will come to the Philippines. Now that is not really considered to be a
policy making matter because when it is transitory that is a one shot bill. So that needs no Senate concurrence. That’s
not political in nature.

OK! I think another illustration is the Balikatan. What only needs concurrence is only the VFA. But Balikatan
only implements VFA. Balikatan will be on how they conduct military exercise here because this is a treaty. You can
say that is only implementing the treaty. So that will be how it should come into play. It’s not that very clear because
until now sometimes the two will still quarrel. The Senate and the President will still quarrel or what needs Senate
concurrence.

First you have to understand that when you deport an alien. Sometimes the state where he comes from
will react. It might also end up deporting Filipinos back in to the Philippines. So that it’s a matter of foreign relations.
That is why even if the Constitution does not mention this is accepted that it belong to the Pres, ok! So he is the one
who deport aliens. The requirement now when you deport alien is they are saying that there must be a valid ground
and a requirement also of due process. You need hearing, notifying.

Q: Who does the President deport?

A: Usually it will come under the term undesirable aliens. They have committed crimes in the Philippines, suspected
of being phidophiles, etc.
Just remember that deportation is not much in the news because when we deport people nobody thinks
much on them but the one that is in the news usually is the other power. That is of extradition.

Q: How do you distinguish deportation from extradition?

A: In EXTRADITION, usually, there is a treaty. When do we extradite an alien? If another state asks for him. The usual
practice is he commits crime, if he is an American, he commits it is the US. He stays in the Philippines. The US actually
cannot send the marines to capture here in the Philippines. They will invoke a treaty. What do we do? We catch him
and send him back to his own country to face in his country. That is what happens in Jimenez. He committed crime
in the US. Now they are facing an issue about Garcillano. What we need to do is we file a case against him in the
Philippines, then issue a warrant then after that extend the copy of the warrant and he will be arrested and send
back to the Philippines for trial. That is how it works.

The President of the Philippines authorizing the Secretary of Public Works and Highways to negotiate and
sign a loan agreement with the German government for construction of a dam. The resolution asks that the
agreement is submitted to him for a declaration. The Secretary of Foreign Affairs advises the Secretary of DPWH not
to comply with the request. Must the President submit the agreement for ratification by the Senate? No, it is under
contracting loan agreements with a German government. What you need is the monetary board concurrence not
the Senate.
 Bayan v. Executive
342 SCRA 449 (2000)

FACTS: On Oct. 5, 1998, President Estrada ratified the Visiting Forces Agreement (VFA) between the Philippines and
the United States of America. The VFA provides for regulating the circumstances and conditions under
which US Armed Forces and defense personnel may be present in the Philippines. The President submitted
the Agreement for concurrence by the Senate under Sec. 21, Art. VI instead of Sec. 25. Art XVIII, of the 1987
Constitution.

ISSUE: Considering that the agreement is not a basing agreement but covers only temporary presence of troops
and facilities, is the President correct?

HELD: No. Sec. 21, Art. VII, applies to treaties in general regardless of the subject matter or coverage. In contrast,
Sec. 25, Art. XVIII is a special provision that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. It is not right to argue that the latter section is
inapplicable to mere transient agreements for the reason that there is no permanent placing of structures
for the establishment of a military bases, troops or facilities. “The conjunction is “or”. Stated otherwise,
the provision applies to entry of troops without any foreign bases being established.

Pimentel, Jr. v. Office

462 SCRA 265 (2005)

FACTS: The Rome Statute established the International Criminal Court with power to exercise jurisdiction over
persons for the crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
While the Philippines signed the Statute on Dec. 28, 2000, the Office of the President did not ratify it in
accordance with its terms and did not transmit it to the Senate for its concurrence.

ISSUE: May a petition for mandamus lie to compel the Office of the Executive Secretary and the DFA to bring the
signed copy to the Senate for its concurrence?

HELD: No. The President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign nations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states. Nonetheless, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the
validity of the treaty entered into by him. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a
serious step that should not be taken lightly, such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus.

Abaya v. Ebdane
515 SCRA 720 (2007)

FACTS: Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines
entered into a Loan Agreement whereby the former lent Y79,861,000,000 to the latter for various
infrastructure projects throughout the country. The agreement was reached after negotiations between
diplomatic representatives of the two countries, and was later formalized into the Exchange of Notes
dated Dec. 27, 1999.
ISSUE: Whether a petition for mandamus lies to compel the Office of the Executive Secretary and the DFA to
bring the signed copy to the Senate for its concurrence?

HELD: The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an executive
agreement. The Exchange of Notes expressed that the two governments have reached an understanding
concerning Japanese loans to be extended to the Philippines and that these loans were aimed at
promoting our country’s economic stabilization and development efforts. Under the circumstances, the
JBIC may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-
P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such
that it cannot be properly taken independent thereof.

Akbayan v. Aquino
558 SCRA 468 (2008)
FACTS: Petitioners sought to obtain from the government the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto. During the pendency of the
petition, the agreement was made public, signed by the President and forwarded to the Senate for its
ratification.

ISSUE: Whether the documents pertaining to the offers and counter-offers during negotiations exempted
from public disclosure on the ground of executive privilege

HELD: Yes. While the final text of the JPEPA may not be kept perpetually confidential – since there should be
“ample opportunity for discussion before [a treaty] is approved” – the offers exchanged by the parties
during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to
conclude that the Japanese representatives submitted their offers with the understanding that “historic
confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines
to deal not only with Japan but with other foreign governments in future negotiations. A ruling that
Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro
quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in
order to obtain more favorable terms in an area of greater national interest.

Secretary v. Kuroga
586 SCRA 513 (2009)

FACTS: Kuroga was an American citizen who was convicted of attempted possession of illegal drugs. The Board of
Commissioners (BOC) of the Bureau of Imigration (BI) ordered him deported, which order was affirmed by the Secretary
of Justice. The Court of Appeals, however, reversed the order, reasoning, among others that while conviction is a ground
for deportation, Kuroga was convicted in the United States, not in the Philippines.

ISSUE: Whether courts review the decisions of the BOC?

HELD Yes. It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alien, and
that the BOC has jurisdiction over deportation proceedings. Nonetheless, Article VIII, Section 1 of the Constitution has
vested the power of judicial review in the Supreme Court and the lower courts, as established by law. Although the
courts are without power to directly decide matters over which full discretionary authority has been delegated to the
legislative or executive branch of the government and are not empowered to execute absolutely their own judgment
from that of Congress or of the President, the Court may look into and resolve questions of whether or not such
 judgment has been made with grave abuse of discretion, when the act of the legislative or executive department is
contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or arbitrarily out of
malice, ill will or personal bias.

Domingo v. Sheer
421 SCRA 470 (2004)

FACTS: Herbert Scheer, a German national, was granted a permanent resident status by the Bureau of
Immigration and Deportation in 1986. In 1995, however, it was discovered that he had police records and
financial liabilities, as well as a pending arrest warrant in Germany so that he was ordered deported from
the Philippines.

ISSUE: Is the power of the President to determine whether an alien may be deported from the Philippines
subject to judicial review?

HELD: The authority to exclude or expel aliens by a power affecting international relation is vested in the
political department of the government, and is to be regulated by treaty or by an act of Congress, and to
be executed by executive authority, except insofar as the judicial department has been authorized by
treaty or by statute, or is required by the Constitution to intervene. Although the courts are without
power to directly decide matters over which full discretionary authority has been delegated to the
legislative or executive branch, the court may resolve questions of whether or not such judgment has
been made with grave abuse of discretion, when the act violates the law or the Constitution. In this case,
it is alleged that the Board of Commissioners acted with grave abuse of discretion in causing Scheer’s
arrest and detention. Indeed, it deprived him of due process in issuing the order of deportation without
even conducting a summary hearing. The BOC merely concluded that Scheer was involved in “illegal
activities in Palawan” without affording him the right to be heard.

Bar questions
1996
Can the HR take active part in the conduct of foreign relations particularly in entering into treaties and
international agreement? Absolutely HR has no participation at all in foreign affairs.

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.

Congress opens 4th Monday of July. Right! So within 1 month the President shall give the appropriation bill.
Remember, we discuss that 2 months ago. There is a statement in the Constitution saying that Congress cannot
increase the appropriation recommended by the President but it can decrease. So the President submits it. It is not
subject to increase.

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.

That is the famous SONA. In the US they call the State of the Union Address.
There’s nothing in the executive anymore and I will discuss some questions in a few minutes. First, we know
that they are proposing a change of the Constitution. If that happens all that you learned tonight will be useless. In
fact I will also be jobless.☺

If you try to look at it now, the most popularly proposed will be for a federal parliamentary system. What
do you mean by that? Basic things only. First is, we know that we are not parliamentary form of government. What
are we? We are Presidential. You also know that we are not federal. What are we? We call ourselves unitary govt.
 There are two items here. Federal-Unitary and Presidential- Unitary. When we speak of a unitary
government that means actually that there is only one central authority. When we speak of federal government,
power is divided among various states under the federal government. The example is the US. You have the federal
government plus various states. Now they are proposing that we follow this in the Philippines. In fact if you try to
look at the proposal they want to divide the Philippines into 13 states. That might not be good for us. One day some
of you will become Chief Justice of the one State.

If you look at the federal government we can say that you have several central authorities. Each state will
be in a sense an independent entity. Then we have the central government, what we are trying to tell you is, powers
are divided between the State and the federal authority.

What about in a unitary system? There is a prohibition of power. All powers belong to the central
government. If you look at the power in the unitary government. The power enjoyed LGU are so limited and there
is really no division of power. They are only delegated.

Do barrios and cities and municipalities pass laws? In a sense, yes but it is limited. Ordinances only. The
reason why they can pass ordinances is because powers are delegated to them. What is the problem with
delegation? If it is delegation it is very restricted. You can only exercise the powers delegated to you. Can the City of
Davao pass a law allowing divorce? No, because the central government will not allow it. Suppose the central
government is saying that gambling is allowed. Can DC say that we will not allow gambling here? No, not allowed
because it only exercise delegate power. But in a federal government, each state will have a law on person and
family law. I am sure that some states will allow divorce. How do we divide the power? The normal practice is usually
Foreign Affairs is always given to the general govt. Defense in most cases is also given to the Central authority.

In the US, they have only had one US army. The issue on peace and order is usually given to various states.
So you have local police forces. When we speak of federal government, we only mean the vertical relationship
between the national authority and the component state. When we speak of a parliamentary system we mean
actually the horizontal relationship among branches. So there is no problem actually, for instance you can have
Federal- Presidential. The best example is the US. You can have Federal-Parliamentary. England is one of federal-
parliamentary. You can have parliamentary-unitary. The best example is Singapore because it is very small. It has a
parliament but it is too much to divide Singapore into several states. Because it might happen that there will be 10
people for every state there.

You can also have unitary-presidential. The best example is Philippines.

What about the debate regarding parliamentary and presidential system.
Q: What is the essence of a presidential system?
A: There is a separation of powers. Powers are divided into executive, legislative and judiciary.

Q: What about parliamentary system?

A: This would be the structure. You have the executive, legislative, and judiciary. Executive and legislative are used
together; they are exercised by the parliament who is headed by the prime minister. Why do I say that they are now?
This is what will happen. Who will elect the prime minister? In all cases actually it is the parliament. In a parliament
system, if the parliament does not want the President, no confidence. What will happen is they put another guy. So
in the end, it is unstable because you can have several prime minister for one year. What is the other side? It is
possible that the prime minister does not like the parliament. What does he do? Dissolved.

About 2 weeks ago, what happened was that Prime Minister of Japan disclosed the parliament calling for
an election. What was the issue? He wanted to privatize the postal service. Parliament does not want it. But he is
thinking that if he dissolves the parliament and the new election will be held the new people elected will be
supportive of him. In the Presidential, is very stable but the problem is if you have a bad president, very difficult to
remove because that would go to the process of impeachment. So it will take time. Right now that is what's
happening. In the parliamentary it is easy to remove but the problem is it might be not so stable.
 We go now to what system will be the best. In all of them, nobody conquers the judiciary. The judiciary is
always independent even if you are a parliamentary system.
I am thinking that I am more of the presidential system. Maybe there are many problems but we know the
problems. Then we go to something which we are not familiar with. So we have to start from the bottom again.
-oOo-