EXECUTIVE DEPARTMENT

Sec. 1. The executive power shall be vested in the President of the

Philippines.

Meaning of executive power: the POWER TO EXECUTE LAWS.

The power to execute laws.

Which power is deemed part of the executive power of the President

which may be exercised without any specific law conferring upon him
such authority?

a. the power to bar the return of a citizen- PART OF THE PRESIDENT’S

IMPLIED AND INHERENT POWER- Marcos Vs. Manglapus… When you speak
powers of the president, it it is not exclusive only to those enumerated and
listed in the constitution and by law but also include those not listed and
provided therein--- the implied, residual, inherent powers

b. the power to institute a national ID system with the use biometrics

technology

c. the power to sell real properties located in another country but owned
by the Philippine government

d. the power to order CHED to supervise and regulate the activities of all
review centers

Marcos v. Manglapus –

includes inherent, residual, implied or aggregate

or such powers which are not enumerated in the Constitution or conferred by
statutes.

David v. Macapagal – State of Emergency-( Can the President declare State

of Emergency without congressional authorization or without a law pass by
congress?- Held- Yes, constitution does not prohibit the exercise of the same…
meaning.. Not all powers of the president are enumerated in the constitution…)

Province of Cotabato v. GRP, 2008 [negotiate with rebels]- (has reference

with the power of the president to negotiate with rebels held-This is an implied
powers of the President as commander in chief… promoting peace in the
country through negotiation with rebels)

Gudane v. Senga(Held-the president can Bar a General from attending

legislative investigations!)

Exceptions: Laurel and Ople Cases- ( there is no law authorizing the

President to sell lands/properties of the National Government located
abroad-Laurel- Hence not allowed) (Ople- the President cannot make ID
System through Administrative Order without a law authorizing the same)

General Rule: The President has Implied, Residual, and Inherent Powers

1|P a g e EXECUTIVE DEPARTMENT

Also: Review Center v. Executive (2009) [degree granting and post-secondary
institutions [RA No. 7222]( existing law authorizes Ched to regulate degree
granting and post-secondary institution.. Now here comes the CPA Board
Examinations leakage scandal… the President authorized through EO to
regulate Review Centers Activities… Held: NO! there is no law granting the
CHED to regulate Review Centers. The Authorizing the Ched is limited only to
regulate degree granting…… it does not include the power to regulate operation
of Review Centers)

Immunity from Suit

What is the scope/basis- Based on jurisprudence on the basis of

Convenience- so that the President shall not be interrupted from discharging
her functions by suit, so that she will not end up defending herself… if she is
immune from suit in foreign countries, with more reason that she is given such
immunity in the Country)

Is the Vice President immune? (Not Immune.. Not provided by the

constitution.)

Does it extend to criminal acts? [Estrada]( yes it does extend to all types of
cases.. )

Does it apply after his term? [Estrada]( no More!.. Applies only during his
term)

Is it waivable? (yes, it can be waived but only by the person exercising the
right!)

What are the exceptions (when he can be sued)?

Impeachment
Presidential Election Protest

David v. GMA? Rubico v. Macapagal-Arroyo (David questioned the

declaration of the State of Emergency of GMA (DAVID).. Habeas Data
impleaded the GMA under the Principle of Commander in Chief (Rubirico)- Both
cannot be had as the President is immune from suit… The only way to question
the president under this circumstances, you must file a case against the
Executive Secretary, but do not implead the president)

Bar Question: 1997, No. 13:

Upon complaint of the incumbent President of the Republic, A was charged with
libel before the RTC. A moved to dismiss the information on the ground that
the Court had no jurisdiction over the offense charged because the President,
being immune from suit, should also be disqualified from filing a case against A
in court. Resolve. [Should the court dismiss the case?]

Held> while the President is immune from suit, the right to waive the suit
belongs to President Aquino…. By filing a case of libel, she vaived here
immunity.. By filing, you are submitting yourself to the jurisdiction of the court.

2011 Bar Exam

2|P a g e EXECUTIVE DEPARTMENT

43. During his incumbency, President Carlos shot to death one of his advisers
during a heated argument over a game of golf that they were playing. The
deceased adviser’s family filed a case of homicide against President Carlos
before the city prosecutor’s office. He moved to dismiss the case, invoking
presidential immunity from suit. Should the case be dismissed?

A. Yes, his immunity covers his interactions with his official family, including the
deceased adviser.

B. No, his immunity covers only work-related crimes.

C. Yes, his immunity holds for the whole duration of his tenure.

D. No, his immunity does not cover crimes involving moral turpitude.

89. When the President contracted a personal loan during his

incumbency, he may be sued for sum of money

A. during his term of office.

B. during his tenure of office.

C. after his term of office. (could also be an answer)

D. after his tenure of office. Note: (term is the period provided by law to hold
office while tenure is the actual period to hold office)

Section 2. No person may be elected President unless he is a

natural-born citizen of the Philippines, a registered voter, able to read
and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding
such election.

Section 3. There shall be a Vice-President who shall have the same

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 President.

The Vice-President may be appointed as a Member of the Cabinet.

Such appointment requires no confirmation.

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 reelection. 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.

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Unless otherwise provided by law, the regular election for President
and Vice-President shall be held on the second Monday of May.

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.

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.

Sec. 4: Ist. Elected directly, six years, only one term. VP who serves for more
that 4 years as President also disqualified.

(Note: Congress (SENATE) Manual Canvassing is expressly provided by the

constitution as to HOW IT SHOULD BE MADE BY MEMBERS THEREOF… hence,
PICOS machine canvassing of President and VP will be a direct violation of the
constitution.. PICOS Machine is applicable only in local canvassing: HENCE
MANUAL CANVASSING!

4th: Votes canvassed in joint public session. Note Pimentel and

Brilliantes(Pimentel-the congress can continue the canvassing of votes for the
PRES and VP even during the compulsory recess of Congress for the simple
reason that canvassing is not a legislative function.) (BRILLANTES- when
COMELEC decided to conduct a quick count for PRES and VP, SC held that only
the Senate acting as National board of canvassers is allowed by the
constitution to conduct canvassing. Hence Comelec is not allowed)

5th: Breaking the tie, non-legislative

7th: 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…

Election Contest

Jurisdiction: Tecson v. COMELEC-(2 cases for disqualification against FPJ were

filed before the COMELEC.. 2 cases for disqualification were also filed directly
before the SC.. Eventually, the Comelec decided to allow FPJ to run.. Held- Sc
dismissed the 2 cases filed before them saying that COMELEC has jurisdiction

4|P a g e EXECUTIVE DEPARTMENT

on the Qualification of a Presidential Candidate. SC has no Jurisdiction on
qualifications of candidates… the basis in resolving the same is that SC may
only review the decision on the qualifications via certiorari…

Note that when they dismissed the 2 cases, SC was not sitting as PET but as
Supreme Court with appelate jurisdiction on certiorari of the Comelec decision…
SC can only decide when it is acting as PET as there is already a proclamation
(election protest) and somebody is challenging the proclaimed.) review
recordings!

Effect of Running for another position: Santiago v. Ramos, Legarda v. de

Castro: (Santiago-Running and winning and assuming for another position
results in the abandonment of Protest!) … How about if one ran but lost or ran,
won but did not assume?-

Effect of Death of Protestant – Poe v. GMA- the protest is not purely

personal as it involves public interest.. Hence the death of protestant does not
render the protest moot and academic there is public interest involved. Had FPJ
won, VP de castro would have assumed or would have been the president as
the rule on succesion sets in.

Death of Protestee?

What render protest moot: (apply to local government)

Expiration of term

Running, winning and assuming in an elective office (Santiago/Legarda)

Acceptance of permanent appointment

Death, if no proper substitution is made (Poe v. GMA)

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.)

2007, VI. True or false. Briefly explain your answer.

(b) All public officers and employees shall take an oath to uphold and
defend the Constitution.

Answer. False because if you do not believe in God, you can use
affirmation instead of taking an oath.

5|P a g e EXECUTIVE DEPARTMENT

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.

Succession: Beginning of Term:

June 30, 2010 – 12:00 Noon- VP takes over-

1. When the President- elect fails to qualify

2. When the President shall not have been chosen
3.When at the beginning of the term, the President-elect shall have died, or
shall have become permanently disabled.

When Senate Pres./Speaker becomes President?

1. When no Pres. And V-Pres. Have been chosen

2. When the Pres. And V-Pres. Die or become permanently disabled at the
beginning of their term. (Sec. 7)

If all are unavailable? – Last Paragraph [not permanent] congress shall pass
a law

Section 8. In case of death, permanent disability, removal from office,

or resignation of the President, the Vice-President shall become the

6|P a g e EXECUTIVE DEPARTMENT

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.

SEC. 7-REFERS TO June 30

SEC. 8-REFERS when the president has already assumed office. Refers to
simultaneous vacancy of PRES and VP

Middle of Term

VP becomes Pres. Permanently-When incumbent Pres.:

1. Dies
2. Permanently disability (physical, mental or moral(estrada case)
3. Removal
4. Resignation

Sec. 8: Simultaneous Vacancy

What if the Pres. And VP both die, are permanently disabled,

impeached or resign?

The Senate President or in case of his disability, the Speaker shall take over

Shall he serve the unexpired term?

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

during his 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. (Guingona’s appointment as VP.. It must be confirmed by
both congress voting separately by ABSOLUTE MAJORITY VOTE)

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 V1 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

7|P a g e EXECUTIVE DEPARTMENT

paragraph 4, Section 25, Article V1 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.

Note: the constitution provides specific no. days within which it is required to
act immediately are as follows:

Vacancy in the Office of the PRES and VP (filling-in)

When the President declares Martial Law, the congress has to convene
immediately to evaluate it;

Impeachment: Congress has to meet immediately and evaluate the

impeachment complaint and file the same to Senate within a number of days

When is there special election?

1. Offices of Pres. and V-Pres become vacant; Note:

2. Vacancy occur prior to the 18 months before the next election-applies
also in the event of vacancy in the senate

A law calling for a special election:

1. Is deemed certified – so exempt from 3 separate readings on 3 separate days

(no need of printing of copies, no need of distribution of copies 3 days before
the 3rd reading

2. it Becomes law after approval on third reading – veto?

Note: What are the instances when a vetoed bill become a law without the
signature of the President

1. When the president did act the same within 30 days from
submission
2. When vetoed bill is overridden by congress by 2/3 vote:
3. a law calling for special elections for President and VP
4. Law pass through initiative and referendum… cannot be vetoed

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.

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.

Thereafter, when the President transmits to the President of the

Senate and to the Speaker of the House of Representatives his written

8|P a g e EXECUTIVE DEPARTMENT

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.

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.

Sec. 11: Who decides when Pres is disabled

1. He himself by written declaration

2. Majority of the cabinet members who shall make a written
declaration(example if President is mentally disable if he declares war
with China)- congress may consider the same
3. In case of disagreement, the Congress by 2/3 2/3 vote Estrada v.
Desierto- Estrada was considered resigned… Estrada petitioned that he
was not disabled and only Congress can decide the same under Sec. 11..
Held… SC dismissed it on the ground of political question

Sec. 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 Chair of the
Armed Forces of the Philippines, shall not be denied access to the
President during such illness.

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 a Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.

Prohibitions:

9|P a g e EXECUTIVE DEPARTMENT

 1. holding of incompatible office

2. appointment of presidential relatives

Officers covered by Sec. 13 on the issue of Holding Incompatible

Office:

1. President
2. Vice President
3. Members of the cabinet with rank of secretary
4. Their deputies and assistants

Extent of prohibition (Sec. 13)

A. Incompatible Office:

I. Cannot hold any other office or employment (lecturing in UP), unless

provided in the Constitution itself (not by law provided by congress)(CLU Case)

II. Cannot directly or indirectly

a. Practice any profession- note: Members of Congress can practice their

profession as lawyer provided they are not allowed to appear as lawyers before
a court

b. Participate in business- legislature are allowed..

c. Be interested in contracts with the government

III. Shall strictly avoid conflict of interest

2004, No. 3: JAR faces a dilemma: Should he accept a Cabinet appointment

now or run later for Senator? Having succeeded in law practice as well as
prospered in private business where he and his wife have substantial
investments, he now contemplates public service but without losing the
flexibility to engage in corporate affairs or participate in professional activities
within ethical bounds.

Taking into account the prohibitions and inhibitions of public office

whether as Senator or Secretary, he turns to you for advice to resolve his
dilemma. What is your advice? [If JAR accepts a cabinet post, which of the
following will not violate the Constitution?]

a. giving advice to corporate clients in his law firm, without appearing in

court-not allowed to practice profession

b. owning shares of stocks in San Miguel Corporation- (a secretary

prohibited in participating in business… but you are not prohibited to
own shares of stocks)

c. lecturing in Ateneo de Davao Bar Review Center

d. lecturing in UP Review Center

When “allowed by the Constitution”

10 | P a g e EXECUTIVE DEPARTMENT
Vice-Pres. As member of the Cabinet-provided by the constitution

Secretary of Justice as member of Judicial and Bar Council – provided by the

constitution

Others in an ex officio capacity- members of the Cabinet can hold other position
in an ex officio capacity despite of the prohibition in the constitution

Requisites for ex officio function-more function is added

1. In accordance with law

2. Without additional compensation

3. Related to primary function- ex. Secretary of finance as ex officio member of

the board of Central Bank.. Education Secretary as Board member of the Boys
Scouts of the Philippines

Questions

May a law be passed allowing them to hold 2 positions not in ex oficio

capacity? [CLU case) No! unless provided by the constitution itself….

If they hold another in ex oficio capacity can they receive compensation?

[Bitonio and NAC cases] “per diem, honorarium or allowance or some other
euphemism”….(NOT ALLOWED EVEN ALLOWANCE)

3. What about their representative attending meetings on their behalf? NO!..

If Cabinet secretaries are not allowed.. With more reason on their
representatives

2002, No. 6: M is the Secretary of Finance. He is also an ex oficio member of

the Monetary Board of the Bangko Sentral ng Pilipinas from which he receives
additional compensation for every Board meeting attended.

A. Can he hold both positions? Yes! It is ex officio

B. Is he entitled to compensation? No anymore allowed

1996, No. 7:

(1) Can the Judge Advocate General of the AFP be appointed as Trustee of the
GSIS? (prevailing law provides that all officials of the AFP in service are not
allowed to hold another positions which is in civilian in character)

(2) Can the Secretary of Finance be elected as Chairman of the Board of

Directors of San Miguel Corporation?

NO! you cannot participate in business!

What about other lesser officials?

Art. IX, B, Sec. 7: No elective official shall be eligible for appointment or

designation in any capacity to any public office or position during his tenure.
(ABSOLUTE PROHIBITION!)

11 | P a g e EXECUTIVE DEPARTMENT
 Unless otherwise provided by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
government or any subdivision, agency, or instrumentality thereof, including
government –owned or controlled corporations or their subsidiaries.

Public Interest Center v. Elma, 494 SCRA 53 (2006)

PCGG Chair and Presidential Legal Counsel

1. Which prohibition applies? No under Sec. 13! because he is not a

member of the cabinet! Yes under Art. 9- he cannot hold 2 positions at the
same time

2. Will he forfeit both? No! only 1.. Because once he accepted the another
position, he is deemed to have waived the other position!

Funa v. Ermita, (2010) Undersecretary of the DOTC designated as OIC

Administrator of MARINA (Maritime Industry Authority)-Held: Not allowed even
if it is only to a Temporary position or OIC capacity… need not be a permanent
one

Prohibitions on presidential appointments- SCOPE

-Spouse, relatives within the 4th civil degree by affinity or consanguinity

1. Members of the Constitutional Commissions

2. Ombudsman
3. Secretaries or undersecretaries
4. Chairmen or heads of bureaus or office including gov-owned or
controlled corporations

Other similar prohibitions:

1. Civil Service Law (nepotism)

2. Local Government Code

Bar Question, 2011

97. The Chief Justice appointed X, the President’s sister, as Assistant Court
Administrator in the Supreme Court during the President's tenure. Claiming
that the Constitution prohibits the appointment in government of a President’s
relative, a taxpayer asks for its nullification. Will the challenge prosper?

A. Yes, since the appointment essentially violates the law against nepotism.

B. Yes, because relatives of the President within the fourth civil degree cannot
be appointed as heads of offices in any department of government.

C. No, X's appointment, although in the government, is not in the

Executive Department that the President heads.

D. No, the position to which X was appointed is not among those prohibited
under the Constitution

Types of Appointments (Sec. 14-16)

12 | P a g e EXECUTIVE DEPARTMENT
 1. Those made by the acting President
2. Midnight appointments
3. Regular Appointments
4. Ad Interim Appointments
5. [Acting Appointments?] not in the constitution

Sec. 14. Appointments extended by an Acting President shall remain

effective, unless revoked by the elected President within ninety days
from his assumption of reassumption of office. (APPOINTMENT BY
ACTING PRESIDENT)-temporary in nature unless not revoked by the President

Sec. 15. Two months immediately before the next Presidential

elections and up to the end of his term. A President or acting President
shall not make appointments except temporary appointments to
executive positions when continued vacancy therein will prejudice
public service or endanger public safety. (MIDNIGHT APPOINTMENT)

Villanueva-Prohibitions on Midnight Appointment applies to Local Chief

Executives or local level

and De Rama Cases-Prohibitions on Midnight Appointment applies to Local

Chief Executives or local level

2. Midnight Appointments

How long is the prohibition? (almost 4 months)

What are the exceptions?

a. (1) Temporary appointments (2) executive positions (3) if continued

vacancy will prejudice public service or endanger public safety

b. Supreme Court Justices [De Castro v. JBC, 2010]

Villarama case- appointment of RTC judges within the midnight period. Held:
SC said that there will be no more appointment in the judiciary by the president
(appointment of judges) from the Supreme Court down to lower judges;

DE CASTRO- appointment of Corona during the midnight period….. Held: this is

an exception to the General Rule… Provisions of the Judiciary that VACANCY
IN THE SUPREME COURT SHALL BE FILLED IN WITHIN 90 DAYS FROM ITS
OCCURENCE,….there is no exception to that provision…… Hence, appointment
of Supreme Court justices is an exception

Does it apply to RTC judges- NO! take a look on the decision of Villarama
case which was unanimous……..

13 | P a g e EXECUTIVE DEPARTMENT
Bar Exam, 2011

68. Associate Justice A retires from the Supreme Court 90 days before the
forthcoming Presidential election. May the incumbent President still appoint
Justice A's successor?

A. No, it will violate the Constitutional prohibition against midnight

appointments.

B. Yes, vacancies in the Supreme Court should be filled within 90 days

from occurrence of the vacancy.

C. Yes, vacancies in the Supreme Court should be filled within 90 days from
submission of JBC nominees to the President. (applies only to lower court
judges)

D. No, the incumbent President must yield to the choice of the next President

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. (REGULAR APPOINTMENT)

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 disapproval by the
Commission on Appointments or until the next adjournment of the
Congress. (AD INTERIM APPOINTMENTS)

3. Regular Appointments (memo)

Mison Classification: Presidential Appointees

1. Heads of executive departments, ambassadors, other public ministers and

consuls, officers of the armed forces from the rank of naval captain, and other
officers whose appointments are vested in him by the Const. (requires the
confirmation of the Commission on Appointment)

2. All other officers whose appointments are not otherwise provided by law(this
happens when the congress creates an office without providing as to who shall
appoint or who shall fill in the position

3.Those whom the President may be authorized by law to appoint. (the law
creating the office expressly provides that the President shall appoint) applies
generally if the constitution creates the office but silent as to who shall appoint-
Appointment of CHR Commisssioner) President Aquino Appointed the CHR
pursuant to an EO

14 | P a g e EXECUTIVE DEPARTMENT
4. Officers lower in rank whose appointments the Congress may by law vest in
the President alone. (similar with no. 3)

1999 (1) ; What are the six categories of officials who are subject to the
appointing power of the President? Answer: (Mison Case)

[Who needs confirmation?]

Which appointment requires confirmation by the Commission on

Appointments?

a. Solicitor General
b. Consul General
c. Governor of the Bangko Sentral
d. Ombudsman

Or this: Whose appointment requires confirmation?

1. Director General of the PNP
2. Colonel of the Philippine Marines
3. Admiral of the Philippine Coast Guard
4. Captain of the Philippine Air Force

Bar Exam, 2011

65. Whose appointment is NOT subject to confirmation by the Commission on

Appointments?

A. Chairman of the Civil Service Commission

B. Chief Justice of the Supreme Court
C. Chief of Staff of the Armed Forces of the Philippines
D. Executive Secretary?

Bar Exam, 2011

96. Since the Constitution is silent as to who can appoint the Chairman of the

Commission on Human Rights, the President appointed W to that position

without submitting his appointment to the Commission on Appointments for

confirmation. Is W’s appointment by the President valid?

A. No, since the position of Chairman of the Commission was created by

statute, the appointment of its holder requires the consent of Congress.

B. Yes, since the power to appoint in the government, if not lodged

elsewhere, belongs to the President as Chief Executive. (fall within
appointments under NO. 3)(if the constitution creates the office but
silent as to who shall appoint)

C. Yes, since the power to fill up all government positions mentioned in the

Constitution has been lodged in the President.

D. No, because absent any express authority under the Constitution, the
power to appoint does not exist.

Appointments requiring confirmation: (HAOO)

15 | P a g e EXECUTIVE DEPARTMENT
1.Heads of executive departments (Executive Secretary not included) (Also not
included are assistant secretaries and undersecretaries/deputies)

2.Ambassadors, other public ministers and consuls (apply to people in the

foreign services)(only those with diplomatic functions)(a consul with consul2
requires confirmation-it goes with the rank)(Public ministers are those
assigned not to the embassies but those to the ASEAN, UN and other
International Organizations)

3.Officers of the AFP from the rank of colonel and naval captain

[Manalo: Director General - PNP]

PNP Director General is not covered as officers of the AFP as his function is
civilian in character… Hence the law providing the confirmation of the
appointment of PNP Director General is unconstitutional

Soriano v. Lista: Commodore, Rear Admiral, Admiral of Phil Coast Guard-

NO need confirmation.. They are not members of the AFP. Hence, the law
requiring its confirmation is unconstitutional as their functions are civilian in
character)

Also a law providing the confirmation of the appointment of Members of the

NLRC and Governor of Central Bank was declared unconstitutional as they
are not among them provided for by the constitution

4. Other officers whose appointments are vested in him by the Constitution:

a. Chair and members of the CSC, COMELEC, COA [Bautista Case](the

appointment of CHR requires no confirmation)

b. Regular members of JBC-

JBC Members:

1. Representative of the IBP

2. Professor of law
3. Retired member of the SC
4. Representative of the private sector

c. Sectoral representative to Congress [Quintos-Deles]

Required to be confirmed before…

Appointments vested in the President by the Constitution, yet

requiring no confirmation-

1. Justices and judges of lower courts (JBC)

2. Ombudsman and his deputies (JBC)

Can Congress add to the list? No it cannot by means of a law.

Singson, Calderon, Manalo (Chief Superintendent, Director-PNP), Soriano II

[Admiral or Rear Admiral)

2. Can the President add to the list [Bautista]

16 | P a g e EXECUTIVE DEPARTMENT
3. 1991/No. 1: Name the categories of officials whose appointments require
confirmation by the CA?

2002, No. 5: On Dec. 13, 1990, the President signed into law RA 6975
creating the DILG. Sec. 26 of the law provides that senior officers of the PNP,
from Senior Superintendent to Director General or Chief of the PBP be
appointed by the President subject to confirmation by the CA.

In 1992, the President promoted Roberto Matapang to the position of Chief

Superintendent. Without undergoing confirmation by the Commission, he
took his oath of office.

Is the appointment valid? Yes! It is valid as the appointment of his

position is not among listed in the constitution. No need confirmation

Sec. 16. Last sentence, first paragraph:

“The Congress may by law vest the appointments of the other officers
lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.”

(appointment of prosecutor- appointed by SOJ, PAO lawyer- to be appointed by

the head of PAO.. Fiscal to be appointed by the president)

Rufino v. Endriga – CPP Board (the law provided that in case of vacancy in the
board, the board itself can appoint the same… Held.. The law is unconstitutional
in view of the provisions that boards can only appoint of other officers lower in
rank” they cannot appoint somebody in equal rank

equal in rank/power of Pres to appoint

4. Ad Interim

Sec. 16. 2nd Para: 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
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

Principles: ON AD INTERIM APPOINTMENT

1. It is permanent in nature (you cannot be removed unless for a legal

cause)

2. It is effective immediately (as distinguished from regular appointee

whose appointment is not effective only upon its confirmation)

How terminated:

1. Disapproval by the commission

2. Adjournment of the Congress

Can the President nominate someone to the same position if the COA
fails to confirm him?

17 | P a g e EXECUTIVE DEPARTMENT
It must be distinguished. If it is terminated by disapproval by the commission,
the president cannot someone to the same position. If congress adjourned
without acting on your appointment.. Renomination is valid.

Matibag v. Benipayo

(2.) In March 2001, while Congress was adjourned, the President appointed
Santos as Chairman of the Commission on Elections. Santos immediately took
his oath and assumed office. While his appointment was promptly submitted to
the Commission on Appointments for confirmation, it was not acted upon and
Congress again adjourned. In June 2001, the President extended a second ad
interim appointment to Santos for the same position with the same term, and
this appointment was again submitted to the Commission on Appointments for
confirmation. Santos took his oath anew and performed the functions of his
office. Reyes, a political rival, filed a suit assailing certain orders issued by
Santos. He also questioned the validity of Santos’ appointment. Resolve the
following issues:

(a) Does Santos’ assumption of office on the basis of the ad interim

appointments issued by the President amount to a temporary appointment
which is prohibited by Section 1(2), Article IX-C of the Constitution? (AD
INTERIM APPOINTMENT is considered a permanent appointment)

(b) Assuming the legality of the first ad interim appointment and assumption of
office by Santos, were his second ad interim appointment and subsequent
assumption of office to the same position violations of the prohibition ( No! he
can be re-nominated in view of the fact that his termination was by virtue of
adjournment of congress without acting hi appointment

[5. Temporary Appointment]

Pimentel v. Ermita: Can the President, while Congress is in session,

instead of issuing a regular appointment, issue an acting appointment, to a
cabinet member? “Alter ego/Admin Code authorizing temporary designation in
the executive branch?

(Facts: GMA appointed his cabinets while congress in session acting

appointments… can the president do that? Held: Yes, the President can make
temporary appointment even if congress is in session because:

This People are his alter-ego’s

Administrative Code authorizes him to make such appointment

General v. Urro, March 29, 2011:

What about temporary appointments to an office where the occupants are, by

law, given fixed but staggered terms –Yes!!!!!

(facts: Legal education board has staggered terms… can the president make
such temporary appointments-Yes because he allowed in the admin code)

18 | P a g e EXECUTIVE DEPARTMENT
1994/ No. IV.

Distinguish between an “appointment in an acting capacity” extended by

a Department Secretary from an ad interim appointment extended by the
President.

(First is temporary in nature while the latter is permanent)

Bar Exam, 2011

45. The President's appointment of an acting secretary although Congress is in

session is

A. voidable.

B. valid.

C. invalid.

D. unenforceable.

Bar questions

1994: No. 16: In December 1988, while Congress was in recess, A was
extended an ad interim appointment as Brigadier General of the Philippine
Army. In February 1989, when Congress was in recess, B was nominated as
Brigadier General of the Philippine Army. B’s nomination was confirmed on
Aug. 5, 1989, while A’s appointment was confirmed on Sept. 5, 1989.

1. Who is deemed more senior of the two, A or B? (A-because an ad

interim appointment is considered permanent… B’s appointment is effective
only upon confirmation… hence A is more senior than B.)

2. Suppose Congress adjourned without the Commission on

Appointments acting on both appointments, can A and B retain their
original ranks of colonel?

Answer: (A cannot retain in view of the settled rule that when he accepted the
ad interim appointment which is permanent in nature, he is deemed to have
vacated his former post. However as to B, he can still retain his original ranks
as his appointment (regular appointment) becomes regular only upon
confirmation---refer this others)
nature date confirmed

A Ad int. Dec. 88 Sept. 5, 89

B Reg. Feb. 89 Aug. 5, 89

2009, No. XXIII. A was a career Ambassador when he accepted an ad

interim appointment as Cabinet Member. The Commission on Appointments
bypassed his ad interim appointment, however, and he was not re-appointed.
[Can he re-assume his position as career Ambassador? (5%)] [Which of the
following is proper? NO! he cannot re-assume as his appointment was

19 | P a g e EXECUTIVE DEPARTMENT
permanent(ad interim)… He is deemed to have abandoned his previous post
upon ACCEPTANCE OF THE AD INTERIM APPOINTMENT

A is an incumbent Senator. While Congress was not in session, the President

appointed him as Secretary of Education which he accepted. When Congress
resumed its session, the Commission on Appointment disapproved A’s
appointment. Which is proper?

a. A can be appointed again as Secretary of Education (it cannot be had as

his appointment was already disapproved)

b. A can re-occupy his seat in the Senate( it cannot be also because he is

deemed to have vacated his position upon acceptance of the appointment of
incompatible office)

c. A can be appointed as Secretary of Health

d. A can remain as Secretary of Education in a hold-over capacity until a

new Secretary is appointed (stupid answer)

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

Doctrine of Qualified Political Agency

All executive and administrative organizations are adjuncts of the executive

department. The heads of the various departments are assistants of the chief
executive, and the functions of the President are performed by and through
them. Their acts performed in the regular course of business, are unless
disapproved by the President, presumably the acts of the chief executive.
MEMO ( HEADS OF DEPARTMENTS ARE ALTER EGOS OF THE PRESIDENT)

Under the Doctrine of Qualified Political Agency, the President may delegate
executive power to his alter egos, that is, the Heads of Executive Departments.
As an exception, which power is NOT subject to delegation?

 The power to contract and guarantee foreign loans-

 The power to grant pardons and remit fines and forfeitures
 The power to transfer the seat of Regional Offices from one city or
province to another
 The power to fix tarrif rates for imports and exports

What cannot be delegated?

1. Declare martial law and suspend privilege of writ

2. Power to enter into treaties and executive agreements
3. Power to grant pardon

Cases:

20 | P a g e EXECUTIVE DEPARTMENT
Constantino case- power to contract foreign loans (can be delegated to Sec.
of Finance)

Southern Cross – power to fix tariff rates [can be delegated to Sec. of DTI]

DENR – ( can be delegated to a head of department-DENR)power to transfer of

regional office

Torres- appointment of prosecutors

(Facts: under the law, only the president has the power to appoint provincial
prosecutor.. Under the admin code, the president can only appoint upon the
recommendation of SOJ… what happened was that SOJ recommended A to the
President but the latter appointed B without SOJ recommendation- Issue: is the
appointment of the President valid? Held Yes… SOJ is only an alter ego of the
president.. He can be disregarded by the president..

Included in the Power of Control:

1. power to transfer and merge offices [PCUP and NCIP [Anak-Mindanao v.

Executive Secretary (2007) – transfer and merger by the president of
PCUP(created by its own law) and NCIP (by another law) under the DENR- Held-
the power of control of the president includes the power to transfer and merge
offices

2. Power to Reorganize [Malaria Employees v. Executive Secretary, 2007) if

you are removed as a consequence of reorganization made by the president,
you cannot complain

3. Power to Abolish [Buklod v. Zamora, 2001) it is well settled that the

power to create includes the power to abolish… the problem it is the congress
who creates an office, so it should be the one who should abolish?… Held: under
the administrative code, the president is empowered to abolished so long as the
office falls within the executive! it does not spring from the power to create or
power of control…. It is from the admin code

4. Power to Dismiss [???] inherent to the power of the president to

appoint- this is the basis

Rufino v. Endriga: Can Congress create an office independent of the

Executive, legislature and the Judiciary? /Independent Constitutional body,
quasi-judicial body/ local government

What of GOCC’s? can they be created independently by providing and

vesting the power to appoint member of the board of CCP to the board itself
through PD of marcos CCP CASE? Held: SC said you cannot create a body
independent from anybody! It has to be under the 3 separate and independent
branches of the government… Hence, gocc should be created under a law or
under the corporation code.. Not by a president providing its independence in
view of the abovementioned ruling.

21 | P a g e EXECUTIVE DEPARTMENT
2003, No. 6: The President abolished the office of the Presidential
Spokesman in Malacanang Palace and a long standing Bureau under the DILG.
The employees of both offices assailed the action of the President for being an
encroachment of legislative powers and thereby void. Was the contention of
the employees correct? Held: NO! the power of control of the President includes
the power to abolish as authorized by the admin code

Bar 2009, No.XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%)

© The President exercises the power of control over all executive departments
and agencies, including government-owned or controlled corporations. Held:
Sec. 17. The President shall have control of all the executive departments,
bureaus and offices--- it does not include GOCC!

Faithful Execution Clause

Biraogo v. Philippine Truth Commission, 637 SCRA 78 (2010)

The President on July 30, 2010, signed Executive Order No. 1 establishing the
Philippine Truth Commission of 2010. The ad hoc body formed under the
Office of the President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their
co-principals, accomplices and accessories during the previous administration,
and thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Since there was no law authorizing the
President to create the office, petitioners claimed that its creation violated the
Constitution. Does the creation of the commission have any basis in the
Constitution?

(Note: General rule is that the president cannot create an office because only
congress empowered to the same.. However justified the same in the following
so the SC allowed the creation of the same pursuant to the faithful execution
clause but n0t on the power to create and it is an adhoc body.. But the later it
PTC was declared unconsitutional on ground of Equal Protection
clause………………..

Held: Yes. The creation of the PTC finds justification under Section 17, Article
VII of the Constitution, imposing upon the President the duty to ensure that the
laws are faithfully executed. The allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The
President’s power to conduct investigations to aid him in ensuring the faithful
execution of laws – in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief Executive.
That the authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the Constitution or in
statutes does not mean that he is bereft of such authority. Indeed, the
Executive is given much leeway in ensuring that our laws are faithfully executed.
One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This
flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed.

22 | P a g e EXECUTIVE DEPARTMENT
Note: so the SC allowed the creation of the same pursuant to the faithful
execution clause but on the power to create

2011 Bar Exam

38. When the President orders the Chief of the Philippine National Police to
suspend the issuance of permits to carry firearms outside the residence, the
President exercises

A. the power of control. (control means you can substitute one thing
with another)

B. the Commander-in-Chief power.

C. the power of supervision. Supervisory power of the president over local

government units>>

D. the calling out power.

2011 Bar Question

2. Jax Liner applied for a public utility bus service from Bacolod to Dumaguete
from the Land Transportation Franchising and Regulatory Board (LTFRB). BB
Express opposed. LTFRB ruled in favor of Jax. BB appealed to the Secretary of
the Department of Transportation and Communication (DOTC), who reversed
the LTFRB decision. Jax appealed to the Office of the President which reinstated
the LTFRB’s ruling. BB Express went to the Court of Appeals on certiorari
questioning the decision of the Office of the President on the ground that Office
of the President has no jurisdiction over the case in the absence of any law
providing an appeal from DOTC to the Office of the President. Will the petition
prosper?

A. No, exhaustion of administrative remedies up to the level of the President is

a pre-requisite to judicial recourse.

B. No, the action of the DOTC Secretary bears only the implied approval of the
President who is not precluded from reviewing the decision of the former.

C. Yes, when there is no law providing an appeal to the Office of the President,
no such appeal may be pursued.

D. Yes, the doctrine of qualified political agency renders unnecessary a further

appeal to the Office of the President.

[But see, Angeles v.Gaite, 646 SCRA 309 (2011)

(Decision of the SOJ dismissing a complaint filed can be appealed only to the
president if the penalty involve is reclusion perpetua or death… lower than this
by the SOJ must be appealed directly to the CA)

Section 18. The President shall be the Commander-in-Chief of all

armed he may call out such armed forces forces of the Philippines and
whenever it becomes necessary, to prevent or suppress lawless

23 | P a g e EXECUTIVE DEPARTMENT
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 or the extension
thereof, and must 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 where civil courts are able to function, nor automatically
suspend the privilege of the writ.

 The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

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

Commander-in Chief Powers

1. To call out AF to suppress violence

2. To suspend privilege of writ of habeas corpus

3. To place the Philippine or any part under Martial Law

4. Emergency powers granted by Congress for specific purpose

Questions

1. Can the President declare a state of rebellion? [Sanlakas]

24 | P a g e EXECUTIVE DEPARTMENT
(Yes!)-pursuant admin code.. But it does not add to his powers unless
provided by the congress

2. State of emergency? [David]yes

3. What is the effect of both? [Lacson, Lim, David]-it does not add to his powers

4. Can the SC look at the factual basis for the exercise of the power of the
President to call out the armed forces? {Lacson] “grave abuse of discretion”:
Yes if there is GAD and SC can reversed it…..

‘when it becomes necessary”-SC can take cognizance as to what constitute

“necessary”

Ampatuan v. Puno, 651 SCRA 228 (2011) –w/o congressional

authorization?

Bar Exam 2011

75. The President CANNOT call out the military

A. to enforce customs laws. Because it is a police matter

B. to secure shopping malls against terrorists.

C. to arrest persons committing rebellion.

D. to raid a suspected haven of lawless elements.

A state of Martial Law does NOT:

1. Suspend the operation of the Constitution.

2. Supplant functioning of civil courts nor confer jurisdiction on military

tribunals over civilians

3. Supplant functioning of legislative assemblies

4. Suspend the privilege of the writ of habeas corpus

What are the restrictions on the power of the President to declare martial law or
suspend…?

2006, No. 1 (a) What do you mean by the "Calling-out Power" of the President
under Section 18, Article VII of the Constitution? 5%

It is the power of the president to call out the armed forces to suppress violence,
rebellion….

(b) On February 24, 2006, President Gloria Macapagal-Arroyo issued

Proclamation No.1017 declaring a state of national emergency. Is this
Proclamation constitutional? Explain. 2.5% Yes!!!!

© During the effectivity of this Proclamation, Gener, Lito, and Bong were
arrested by the police for acts of terrorism. Is the arrest legal? Explain.
2.5% ……. Remember that the power of the courts are not affected by the

25 | P a g e EXECUTIVE DEPARTMENT
declarations-meaning that you cannot be arrested without warrant unless
caught in flagrante delicto.

Bar 2000, No. 17:What are the constitutional safeguards on the exercise of
the President’s power to proclaim martial alaw

1. Not to exceed 60 days

2. Must submit a report to Congress

3. Congress can annul proclamation

4. The Supreme Court can review

5. Does not suspend Constitution

1997 Bar Q, No 14

(a) When may the privilege of the writ of habeas corpus be suspended?
Rebellion or invasion, when public safety requires it… it does not include
sedition..

(b) If validly declared, what would be the full consequence of suspension? 1. It

will apply only to people judicially charged with rebellion or offenses connected
with rebellion 2. police are given 72 hours or 3 days to deliver the suspected
persons to nearest authorities

Bar 2000, No. 17. Declaring a rebellion, hostile groups have opened and
maintained armed conflicts on the islands of Sulu and Basilan. Can the
President place the two islands under martial law? Yes! .. Need not necessarily
the entire country

The suspension of the privilege of the writ of habeas corpus would-

a. render inoperative the right to bail

b. Allow the indefinite detention of rebels without charge
c. Suspend the right of all detainees to challenge the legality of their
detention in court
d. Permit the police to detain a rebel suspect for 72 hours without charge

Bar Exam 2011

42.The President may proclaim martial law over a particular province subject to
revocation or extension

A. by Congress, subject to ratification by the Supreme Court.

B. by the Supreme Court- the congress may revoke it but cannot extend

C. by Congress alone-

D. by Congress, upon recommendation of the respective Sangguniang

Panlalawigan.

VERY IMPORTANT PROVISIONS!

Sec. 19. Except in cases of impeachment, or as otherwise provided in

this Constitution, the President may grant reprieves, commutations,

26 | P a g e EXECUTIVE DEPARTMENT
and pardons, and remit fines and forfeitures, after conviction by final
judgment.

He shall also have the power to grant amnesty with the concurrence
of a majority of all the members of the Congress.

Executive Clemency

1. Pardon – exempts offender from punishment

2. Commutation- reduction or mitigation of penalty
3. Reprieve –postponement of execution to another date
4. Remission of Fines and Forfeitures
5. Amnesty – given to class of persons for political offenses, with the
concurrence of Congress

Limitations on Pardon / EXECUTIVE CLEMENCY

1. Cannot be granted in impeachment

2. Not for election offenses, unless COMELEC recommends
3. There must be final judgment

[COMELEC: “pardon, parol, amnesty, suspension of sentence” IT CANNOT BE

GRANTED WITHOUT THE FAVORABLE RECOMMENDATION OF THE COMELEC

1. COMMUTATION can be granted without comelec recommendation!

2. Remember that In amnesty, the grantee must admit his guilt before it
can be granted
3. Pardon does not result to automatic reinstatement

Other principles: memo

1. In amnesty, the person must first admit guilt.

2. Pardon does not result to automatic reinstatement, except… when it is

premised on the persons complete innocence/ express innocence in the
pardon .. He is in fact entitled to back wages

3. There can be executive clemency in administrative cases, except… ex…

commutation of suspension from 6 months to 3 months was allowed except
that such clemency cannot be had if the sentence is issued by the judiciary to its
employees (separation of powers)… but the SC gives now give clemency to its
employees

4. Determination whether you violated terms of your pardon lies with the
pardoning authority.

Pardon v. Amnesty:

1. Pardon is a private act which courts take no judicial notice;

2. Pardon can be granted only after conviction by final judgment;

3. Pardon is generally granted individually for common crimes;

Bar Questions

1988/N0. 24: Define reprieve, commutation and pardon?

27 | P a g e EXECUTIVE DEPARTMENT
1995/No. 5: An NDF member was captured. Before trial, he was granted
pardon by the President. Is it valid? No! because there is no conviction by final
judgment

If instead of pardon, he was granted amnesty by the President upon

recommendation of the national Amnesty Board. no, he can be given amnesty
only with the concurrence of the congress (by a resolution concurring)

1993/No. 20: Must a rebel admit the charges against him before he can avail
of amnesty? Yes! That is a pre-requisite.. Admisision can be used against u….

1996/No. 10. Can the President commute the dismissal of a court employee
dismissed by the Supreme Court? No! Separation of powers!

1991/ No. 11. [Also 2010, No. 17] Millanes was convicted of an election
offense. Due to the recommendation of the Board of Pardons and Parole, he
was pardoned by the President. NO! it should be the comelec who should give
favorable recommendations

1995 (5): Lucas, a ranking member of the NDF, was captured by policemen
while aboard a passenger bus bound for Sorsogon. Charged with rebellion he
pleaded not guilty when arraigned. He was convicted by the RTC, but he
appealed. While the case was on appeal, he was granted absolute pardon by
the President to allow him to participate in the peace talks between the
government and communist rebels. Is the pardon valid?

No, because since he is a political offender, he should have been granted

amnesty

No, because he did not admit guilt before he was pardoned

No, because the case is still on appeal when pardon was granted

Yes, because there was already a conviction by the RTC

1999, No. 4: What are the constitutional limitations on the pardoning power of
the President?

Cannot be granted in impeachment

Not for election offenses, unless COMELEC recommends

There must be final judgment

Distinguish between pardon and amnesty. Pardon v. Amnesty:

1. Pardon is a private act which courts take no judicial notice;

2. Pardon can be granted only after conviction by final judgment;

3. Pardon is generally granted individually for common crimes;

2005, No. 5: When a person pardoned conditionally breaks the term of his
pardon, must there be a judicial determination before the President arrests him?

28 | P a g e EXECUTIVE DEPARTMENT
Determination whether you violated terms of your pardon lies with the
pardoning authority.

1997, 15/Can there be pardon in administrative cases?/Gov suspended for 90

days, but reduced…

There can be executive clemency in administrative cases

2008, No. 8: ST, a Regional Trial Court judge who falsified his Certificate of
Service was found liable by the Supreme Court for serious misconduct and
inefficiency, and meted the penalty of suspension from office for 6 months.
Subsequently, ST filed a petition for executive clemency with the Office of the
President. The Executive Secretary, acting on said petition issued a resolution
granting ST executive clemency. Is the grant of executive clemency valid?

a. yes, because there is nothing in the Constitution that prohibits the President
from pardoning judges

b. yes, because the act of the President is covered by the Doctrine of Qualified
Political Agency

c. no, because pardon does not apply to administrative cases

d. no, because the pardon violates the separation of powers doctrine

1999, No. 4: A, a City Treasurer was convicted of Estafa through falsification

of public document. While serving sentence, he was granted absolute pardon
by the President. Which statement is correct?

a. A is automatically reinstated to his position

b. A must reapply for the position if he wants the job
c. A is disqualified to hold any public office
d. A is entitled to back wages during the period of his detention

2005, No. 5: Bruno still had several years to serve on his sentence when he
was conditionally pardoned by the President. Among the conditions imposed
was that he would not commit another offense. Bruno accepted all of the
conditions. Shortly thereafter, Bruno was charged with estafa. He was
incarcerated to serve the unexpired portion of his sentence following the
revocation of the pardon by the president. Claiming that the estafa charge
was false, Bruno filed a petition for habeas corpus. As Judge, will you release
him?

a. yes, because there was no conviction for estafa which would prove that
he violated the terms of the pardon
b. yes, because the determination whether he violated the terms of the
pardon is a judicial question
c. Yes, because no person can be deprived of liberty without due process of
law
d. no, because the executive is the proper authority determine
violation of the terms of the pardon

29 | P a g e EXECUTIVE DEPARTMENT
2011 Bar Exam

66. The system of checks and balances operates when

A. the President nullifies a conviction in a criminal case by

pardoning the offender.?

B. Congress increases the budget proposal of the President.

C. the President does not release the countryside development funds to

members of Congress.

D. Congress expands the appellate jurisdiction of the Supreme Court, as

defined by the Constitution.

2011 Bar Exam

58. Following COMELEC Chairman Bocay's conviction for acts of corruption in

the impeachment proceedings, he was indicted for plunder before the
Sandiganbayan and found guilty, as charged. Can he get Presidential pardon on
the plunder case?

A. No, plunder is not a pardonable offense.

B. No, conviction in a criminal case for the same acts charged in the
impeachment proceedings is not pardonable.

C. Yes, convictions in two different fora for the same acts, are too harsh that
they are not beyond the reach of the President’s pardoning power.

D. Yes, conviction in court in a criminal action is subject to the

President's pardoning power.

Sec. 20. The President may contract or guarantee foreign loans on

behalf of the Republic with the prior concurrence of the monetary
board, and subject to such restrictions as may be provided by law.

Requisites: 1999, No. 1: Restrictions:

1. Concurrence of the Monetary Board

2. Subject to limitations by law-Hence, the power of the president to

contract loan is not self executing:

Constantino v. Cuisia – Can this be delegated? Yes.. Under the doctrine of

qualified agency to the Secretary of Finance

Does it include buy back? Yes it includes buy back… (restructuring of loan)

Sec. 21: No treaty or international agreement shall be valid and

effective unless concurred in by at least 2/3 of the members of the
Senate.

(transformation)

Foreign Affairs Power NARDC

1. Negotiate treaties

30 | P a g e EXECUTIVE DEPARTMENT
 2. Appoint ambassadors, consuls
3. Receive foreign ambassadors (MORE CEREMONIAL
4. Contract guarantee loans
5. Deport aliens

Sole organ of foreign relations. [Vinuya – claims of comfort women

–”political question”]- (Facts: legislative department sought to compel the
president to advance and settle the claims of comfort women with the Japanese
government.. But the president ignored the same.. Can the President be
compelled? Held : No! the President is the sole organ of foreign relations. That
is a political question…

-This means the court has no participation therein

-Congress (Senate and not house) participation is only limited to concurrence

Pimentel Vs. Secretary: the Philippines participate in the Statute of Rome for
the Creation of ICC.. Representative of the Philippines signed the same the
Statute… But the president did not sign it and submitted the same to the
Senate.. Pimentel sought to compel the president to submit the same for
ratification… Can the president be compelled to submit the treaty to the senate?
Held: SC said it cannot be done.. the president is the SOLE ORGAN OF FOREIGN
RELATIONS. He cannot be compelled as it is POLITICAL question…

Senate concurrence?

1. Treaties - all require the concurrence of the Senate

2. Executive Agreement all treaties and international executive agreement
requirements – it must be distinguished

a. original agreements, establish national policy, permanent in nature –

yes

b. transitory/adjustment of details, -no

DOJ Opinion No. 73, S. 2009: establishment of Grand Mosque in Kalangalan

II, Cotabato City- no need of senate concurrence as the executive agreement
on donations with Sultan of Brunei is only transitory

DOJ Opinion, No. 38, S. 2008- import of 1.5 M tons of rice from Vietnam,
2008-2010- this only a one shot deal.. This is not a permanent in nature…
importation agreement need no concurrence of the senate

Adjustment of details… agreement on Balikatan with US requires no

concurrence of the senate as the same is only AN AJUSTMENT OF DETAILS of
the VFA(concurrence was had on this)

Akbayan v. Aquino (2008) – House Committee demanding (copies)

diplomatic notes on JPEPA (between the PH and Japanese Ambassadors)?
Treaty itself? Is it conclusive?- it cannot be done… diplomatic negotiations
pursuant to a treaty are presumably privilege (covered by executive privilege).
That applies even after the treaty has long been ratified or approved. In fact,
House does not have any participation in foreign relations.. Hence no standing

31 | P a g e EXECUTIVE DEPARTMENT
British Tobacco v. Camacho (2008)

In case of a conflict between a treaty and a law, which will prevail? “the latter
in time rule” lex posterior derogat priori” –If the treaty comes first and the law
comes later- the latter prevail….. If otherwise, the treaty shall prevail

Bayan Muna v. Romulo, 641 SCRA 244 (2011)

What about executive agreements entered without the concurrence of

Congress?

The latter in time rule applies only on executive agreements concurred by the
senate… hence.. Executive agreement without concurrence cannot never
prevail a law in all cases… if with concurrence, it has the force of law since
senate concurred with it..

Bayan Muna v. Romulo, 641 SCRA 244 (2011)

On December 28, 2000, the Philippines, through Charge d’Affaires Enrique A.

Manalo, signed the Rome Statute which, by its terms, is “subject to ratification,
acceptance or approval” by the signatory states. The Statute created the
International Criminal Court with jurisdiction to try grave crimes under
international law, such as genocide, crimes against humanity, war crimes, and
crimes of aggression. On May 13, 2003, via Exchange of Notes No.
BFO-028-03, the Philippines, represented by then DFA Secretary Ople, agreed
with and accepted the US proposals embodied under the US Embassy Note
0470 to put in effect the Non-Surrender Agreement with the US government.

Among others, it provided that persons of one Party present in the territory of
the other shall not, absent the express consent of the first Party, “be
surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council.”

(1) Does the Non-Surrender Agreement require Senate concurrence?

IT DOES NOT REQUIRE CONCURRENCE….

(2) Does the Non-Surrender Agreement violate the obligations of the

Philippines under the Statute of Rome? SINCE THE STATUTE OF WAS NOT
YET RATIFIED BY THE CONGRESS, IT DOES NOT VIOLATE AS THE PHILIPPINES
IS ONLY A SIGNATORY STATE TO THE SAME AND NOT STATE PARTY.. IT IS
ONLY REQUIRED TO REFRAIN FROM ACTS WHICH WOULD VIOLATE OR DEFEAT
THE PURPOSE OF THE STATUTE

(3) Does the Non-Surrender Agreement constitute a violation of

Philippine sovereignty? NO! WHEN A COUNTRY SIGNS TO A TREATY, IT
AGREES TO LIMIT ITS SOVEREIGNTY

Distinction between signatory state and state party to a treaty:

Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a
treaty; whereas a State-Party, on the other hand, is legally obliged to follow all
the provisions of a treaty in good faith.

2008. III,

32 | P a g e EXECUTIVE DEPARTMENT
 The President alone without the concurrence of the Senate abrogated a
treaty. Assume that the other country-party to the treaty is agreeable to the
abrogation provided I complies with the Philippine Constitution. If a case
involving the validity of the treaty abrogation is brought to the Supreme Court,
how should it be resolved?

THE SUPREME COURT ONLY PROVIDES THAT CAN ENTER A TREATY WITH
CONCURRENCE WITH SENATE, IT DOES NOT PROVIDE THAT IT CANNOT
ABROGATE A TREATY WITHOUT THE CONCURRENCE OF THE SENATE

1994, No. 13. Under the Constitution, what is the role of the Senate in the
conduct of foreign affairs? TO CONCUR TREATIES ENTERED BY THE PRESIDENT
BY 2/3 VOTE

-Pimentel v. Office- Can the President be compelled to forward the signed copy
of a treaty for Senate the Senate’s consent? NO! IT IS COVERED BY EXECUTIVE
PRIVILEGE

1996, No. VII. Can the House of Representatives take active part in the
conduct of foreign relations, particularly in entering into treaties and
international agreements? NO! IT HAS NOT PARTICIPATION

1996, No. V. A bill creating a joint legislative-executive commission to give, on

behalf of the Senate, its advice, consent and concurrence to treaties entered
into by the President. The bill contains the guidelines to be followed. Explain.
ONLY SENATE CAN CONCUR THE TREATIES ENTERED BY THE PRESIDENT

1994, No. XIII.

The President authorized the Secretary of the DPWH to negotiate and sign a
loan agreement with the German Government for the construction of a dam.
The senate by a resolution asked that the agreement be submitted to it for
ratification. The Secretary of Foreign Affairs advised DPWH not to comply. Is
the President bound to submit the agreement?

a. Yes, because all treaties and international agreements need Senate

concurrence
b. Yes, because while it is an executive agreement it is not transitory in
character or a mere adjustment of details of an existing treaty
c. No, because the loan agreement is not covered by the treaty
clause of Art. VII ONLY REQUIRED IS RECOMMENDATION OF
MONETARY BOARD AND LAW
d. No, because what is required is ratification by the people in a referendum
under Art. XVIII, Sec. 25 of the Constitution

2008, No. 2:

May a treaty violate international law? If your answer is in the affirmative,

explain when such may happen. If your answer is in the negative, explain
why?

A TREATY WHILE IT IS AN INTERNATIONAL LAW, IT MAY VIOLATE

INTERNATIONAL LAW.. EXAMPLE: INTERNATIONAL LAW ON SLAVERY.. WE
CANNOT ENTER INTO A TREATY WITH OTHER COUNTRIES VIOLATING THE

33 | P a g e EXECUTIVE DEPARTMENT
SAME.. 2. NO SURRENDER AGREEMENT WITH US MAY BE A VIOLATION TO
STATUTE OF ROME

Bar Exam 2011

12. The President forged an executive agreement with Vietnam for a year
supply of animal feeds to the Philippines not to exceed 40,000 tons. The
Association of Animal Feed Sellers of the Philippines questioned the executive
agreement for being contrary to R.A. 462 which prohibits the importation of
animal feeds from Asian countries. Is the challenge correct?

A. Yes, the executive agreement is contrary to our existing

domestic law. (IF EXECUTIVE AGREEMENT IS MADE WITHOUT
NEED OF SENATE CONCURRENCE, OR WHICH IS TRANSITORY,
“THE LATTER IN TIME RULE” DOES NOT APPLY.. HENCE LAWS
PREVAIL OVER THE AGREEMENT. HENCE CONTRATY TO RA 462

B. No, the President is the sole organ of the government in external

relations and all his actions as such form part of the law of the land.

C. No, international agreements are sui generis which must stand

independently of our domestic laws.

D. Yes, the executive agreement is actually a treaty which does not take
effect without ratification by the Senate.

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. (NOTE: CONGRESS CANNOT INCREASE THE PROPOSED BUDGET
OF THE PRESIDENT)

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.

HE MAY APPEAR ANYTIME

34 | P a g e EXECUTIVE DEPARTMENT