Powers of the President - Handout

Powers of the PresidentSummarized Discussion and Cases

Submitted by:Megan ArenoLorelei Joselle BucuElisha Eloriaga

CONSTI1 Section 1C, 1st Semester, SY 2014-2015

Submitted to:Justice Francisco P. Acosta

Powers of the President

September 25, 2014

Table of Content


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I. Executive Power...................................................................1

II. Power of Administrative Reorganization..............................2

III. Power of Appointment.........................................................2

IV. Power of Removal...............................................................6

V. Power of Control and Supervision........................................6

VI. Military Power...................................................................13

VII. Pardoning Power..............................................................21

VIII. Borrowing Power..............................................................25

IX. Diplomatic Power..............................................................26

X. Budgetary Power................................................................29

XI. Informing Power................................................................30

XII. Residual Power.................................................................30

XIII. Other Powers...................................................................31



The President of the Republic of the Philippines is vested with plethora of powers, which allows him to diligently perform his duties and responsibilities. These powers are expressly stated in the Constitution and other statutes. A summary of concepts and discussion of the different powers of the President are provided as follows:

I. Executive Power

Const. Art. VII, Sec. 1:

“The executive power shall be vested in the President of the Philippines.”

Executive Power Defined

Enforcement and enactment of laws, conduct of foreign affairs, the command of the armed forces, the administration of the government and even the crystallization of public opinion on vital issues

Executive Ordinance Powers

Executive Orders –acts of the President providing for rules of a general or permanent character

Administrative Orders – acts of the President which relate to particular aspects of governmental operations

Proclamations – acts of the President fixing a date or declaring a status or condition of public moment or interest

Memorandum Orders – acts of the President on matters of administrative detail

Powers of the President 1

Memorandum Circular – acts of the President on matter relating to internal administration

General or Special Orders – acts and commands of the President in his capacity as Commander-in-Chief of the AFP

II. Power of Administrative Reorganization

The 1987 Administrative Code gives the President continuing authority to re-organize and redefine the functions of the Office of the President. To remain effective and efficient, the Office must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies including modification of functions of such executive agencies as the exigencies of the service may require.

Power to Reorganize the Office of the President Proper [Sec. 31 (1), EO 292]

By abolishing, consolidating or merging units, or by transferring functions from one unit to another

Power to Reorganize the Office of the President [Sec. 31 (2&3), EO 292]

Power to reorganize offices outside the Office of the President Proper but still within the Office of the President

Limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies and vise versa

III. Power of Appointment

Appointment Defined

The selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office

May be exercised by the legislature, by the judiciary and by the Constitutional Commissions, over their own respective personnel

May be made verbally but usually done in writing “The Commission” – written evidence of an appointment


Designation Defined

Simply means imposition of additional duties on a person already in the public service

Officials subject to the Appointment of the President

A. With Consent of the Commission on Appointments (Sec. 16, Article VII)

1. Heads of the Executive Department Except: Vice-President—may be appointed as a Member of the

Cabinet. Such appointment requires no confirmation. (Sec. 3, Article VII)

2. Ambassadors, other public ministers and consuls3. Officers of the Armed Forces from the rank of colonel or naval captain4. Other officers whose appointments are vested in him in the

Constitution Example: Judicial Bar Council, Constitutional Commissions

5. All other officers of the government whose appointments are not otherwise provided by law

6. Those whom he may be authorized by law to appoint

B. With Prior recommendation or nomination by the Judicial and Bar Council (JBC)

1. Members of the Supreme Court and all lower courts (Sec. 9, Article VIII)2. Ombudsman and his 5 Deputies (Sec. 9, Article XI)

C. Appointment of VP as Member of the Cabinet

D. Appointment solely by the President

1. Those vested by the Constitution on the President alone2. Those whose appointments are not otherwise provided for by law3. Those who may be authorized by law to appoint;4. Those other officers lower in rank whose appointment is vested by law

in the President alone (Sec. 16, Article VII)


Classification of Appointment

Permanent Appointments – those extended to persons possessing the requisite eligibility and are thus protected by the constitutional provision on security of tenure

Temporary Appointments – given to persons without such eligibility, are revocable at will and without the necessity of just cause or a valid investigation

Regular (see succeeding table) Ad Interim (see succeeding table)

Regular Appointment Ad Interim Appointment

Made during the legislative session Made during the recess

Made only after the nomination is confirmed by the COA

Appointment is made before the confirmation

Once confirmed by the COA, continues until the end of the term of

the appointee

Appointment is deemed “by-passed”” through inaction of, and so

disapproved impliedly by the COA

Appointing Procedure

A. For Regular Appointment:

1. Nomination by the President2. Confirmation by the Commission on Appointments 3. Issuance of the Commission (also done by the President)4. Acceptance by the appointee

Note: Appointment is deemed complete upon acceptance. Pending such acceptance, which is optional to the appointee, the appointment may still be validly withdrawn. Appointment to a public office cannot be forced upon citizen except for purposes of defense of the State under Section 4, Article II of the Constitution, as an exception to the rule against involuntary servitude.


B. For Ad Interim Appointment:

1. Appointment (Same as steps 1, 3, 4 for regular appointment)2. Confirmation

Note: For appointments that do not require confirmation, step 2 is skipped.

Limitations on Appointing Power

1. Sec. 13 par. 1, Art. VII on Multiple Offices – The Members of the Cabinet and their deputies and assistants shall not, unless otherwise provided by Constitution hold any other office or employment during their tenure.

2. Sec. 13 par. 2, Art. VII on Anti-Nepotism – “The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

3. Sec. 14, Art. VII – “Appointments extended by an Acting President shall remain effective unless revoked by the elected President within 90 days from his assumption of office.”

4. Sec. 15, Art. VII on Midnight Appointments*– “Two months immediately before the net presidential elections and up to the end of his term, a President or Acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

*Midnight appointment – appointment made by the President after the election of his successor and up to the end of his term. This is generally prohibited by the Constitution.

5. Sec. 16 par. 2, Art. VII – 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 COA or until the next adjournment of the Congress.

Other Limitations:

The President’s power of appointment may also be limited by the Congress through its power to prescribe qualifications for public office.

The Judiciary may annul an appointment by the President if the appointee has not been validly confirmed or does not possess the required qualifications.

IV. Power of Removal

As a general rule, the appointing power impliedly carries with it the power to removal. However, as an exception, those appointed by him where the Constitution prescribes certain methods for separation from public service (e.g. impeachment) are not covered. Examples are as follows:

Members of Supreme Court, Ombudsman and Constitutional Commission - may only be removed by impeachment (Sec. 2, Article XI)

Judges of inferior courts – subject to disciplinary authority and may be removed only by the Supreme Court (Sec. 11, Article VIII)

The President is also without any power to remove elected officials, since the power is exclusively vested in the proper courts as provided by last paragraph of Section 60 of the Local Government Code.

In all other cases, the power of removal may be exercised only for cause as may be provided by law and in accordance with the prescribed administrative procedure. (Sec. 2 par. 3, Article IX-B)


Examples of appointees covered by the power of removal:

Members of career service of the Civil Service who are appointed by the President may be directly disciplined by him and removed provided that the same is for cause and in accordance with the procedure prescribe by the law

Members of the Cabinet whose continuity in office depends upon the President may be replaced at any time

V. Power of Control and Supervision


“The resident shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.”

Section 17 is a self-executing provision. The President derives his power of control directly from the Constitution and NOT from any implementing legislation.

This justifies an executive action to carry out reorganization measures under a broad authority of law.

Control vs. Supervision

Control Supervision

The power of an officer to alter or to modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute judgment of the former for that of the latter

Authority to order the doing of such an act by a subordinate

Overseeing or the power of the authority of an officer to see that the subordinate officers perform their duties.


or to undo such act or to assume a power directly vested in him by law

Stronger in power

Drilon vs. Lim (GR No. 112497, August 4, 1994)

Facts:

Pursuant to Section 187 of the Local Government Code, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy.

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary’s resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violation of the policy of local autonomy mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local governments. The court cited the familiar distinction between control and supervision, the first being “the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter,” while the second is “the power of a superior officer to see to it that lower officers perform their functions is accordance with law.”

Issues:

(1) Whether or not Section 187 of the Local Government Code is unconstitutional; and(2) Whether or not the Secretary of Justice can exercise control, rather than supervision, over the local government


Held:

The judgment of the lower court is reversed in so far as its declaration that Section 187 of the Local Government Code is unconstitutional but affirmed the said lower court’s finding that the procedural requirements in the enactment of the Manila Revenue Code have been observed.

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be.

An officer in control lays down the rules in the doing of an act. It they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision.

Regarding the issue on the non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code, the Court carefully examined every exhibit and agree with the trial court that the procedural requirements have indeed been observed. The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process.

Control Supervision

Officer: Lays down the rules in the

doing of an act. NOT followed, he may, in his

Supervisor/superintendent: Merely sees to it that the

rules are followed, but he himself does NOT lay down


discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.

such rules, nor does he have the discretion to modify or replace them.

CANNOT prescribe his own manner for the doing of the act.

No judgment on this matter except to see to it that the rules are followed.

Doctrine of Qualified Political Agency/Alter ego principle

President has full control of all the members of the Cabinet – subject at all times to the disposition of the President since they are merely his alter ego.

Heads of various departments and their personalities are, in reality, but the projection of that of the President. Acts performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively acts of the Chief Executive.

This is not applicable to acts of cabinet secretaries done in their capacity as ex officio board directors of a government-owned or controlled corporation of which they become members NOT by appointment of the President but by the authority of the law.

Villena vs. Secretary of the Interior (G.R. No. 46570, April 21, 1939)

Facts:

Jose Villena was the then mayor of Makati in the 1930s. After investigation, the Secretary of Interior recommended the suspension of Villena with the Office of the president who approved the same. The Secretary then suspended Villena. Villena averred claiming that the Secretary has no jurisdiction over the matter. The power or jurisdiction is lodged in the local government [the governor] pursuant to Section 2188 of the Administrative Code. Further, even if the respondent Secretary of the Interior has power of supervision over local governments, that power, according to the constitution, must be exercised in accordance with the provisions of law and


the provisions of law governing trials of charges against elective municipal officials are those contained in Section 2188 of the Administrative Code as amended. In other words, the Secretary of the Interior must exercise his supervision over local governments, if he has that power under existing law, in accordance with sec 2188 of the Administrative Code, as amended, as the latter provisions govern the procedure to be followed in suspending and punishing elective local officials while Section 79(c) of the Administrative Code is the genera law which must yield to the special law.

Issue:

Whether or not the Secretary of Interior can suspend an LGU official under investigation?

Held:

Yes. There is no clear and express grant of power to the secretary to suspend a mayor of a municipality who is under investigation. On the contrary, the power appears lodged in the provincial governor by sec 2188 of the Administrative Code which provides that “The provincial governor shall receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude“.

The fact, however, that the power of suspension is expressly granted by Section 2188 of the Administrative Code to the provincial governor does not mean that the grant is necessarily exclusive and precludes the Secretary of the Interior from exercising a similar power. For instance, Villena admitted in the oral argument that the President of the Philippines may himself suspend the petitioner from office in virtue of his greater power of removal (sec. 2191, as amended, Administrative Code) to be exercised conformably to law. Indeed, if the President could, in the manner prescribed by law, remove a municipal official; it would be a legal incongruity if he were to be devoid of the lesser power of suspension. And the incongruity would be more patent if, possessed of the power both to suspend and to remove a provincial official (sec. 2078, Administrative Code), the President were to be without the power to suspend a municipal official. The power to suspend a municipal official is


not exclusive. Preventive suspension may be issued to give way for an impartial investigation.

Heads of various departments and their personalities are, in reality, but the projection of that of the President. Acts performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively acts of the Chief Executive.

Doctrine of exhaustion of administrative remedies

It has been consistently held by the Supreme Court, in a long line of cases, that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought.

Manubay vs. Garilao (GR No. 140717, April 16, 2009)

Facts:

At the heart of this controversy is a 124-hectare land in Barrio Cadlan, Pili, Camarines Sur owned by petitioners Annie, Anne Marie, James John, James Francis and Anne Margareth (all surnamed Manubay) and Manubay Agro-Industrial Development Corporation. The Municipal Agrarian Reform placed a notice of coverage converting the property under the comprehensive agrarian reform program, which petitioners did not protest. Afterwards, an resolution was passed approving the CARP in the Municipality of Pili, Camarines Sur which reclassified the land from agricultural to highly urbanized intended for mixed residential and commercial use. Petitoners requested for this to be set aside and to be converted back but was denied by then DAR Regional Director and DAR Secretary Ernesto Garilao.


On April 28, 1998, petitioners filed a petition for certiorari in the Court of Appeals (CA) assailing the denial of their application for conversion. They averred that respondent acted with grave abuse of discretion when he denied their application. According to them, the issuance of a mere notice of coverage placing agricultural land under the CARP was not a ground for the denial of such application.

In a resolution dated June 1, 1999, the CA dismissed the petition. DAR-AO No. 7, s. 1997 provides that the decision of the DAR Secretary may be appealed either to the Office of the President (OP) or to the CA. Considering that the issue raised by petitioners involved the administrative implementation of the CARP, the OP was more competent to rule on the issue. Moreover, by failing to bring the matter to the said office, petitioner did not exhaust all available administrative remedies before resorting to a petition for certiorari.

Issue:

Whether or not the CA erred in dismissing the petition for certiorari?

Held:

Yes. Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him. Thus, as a rule, an aggrieved party affected by the decision of a cabinet secretary need not appeal to the OP and may file a petition for certiorari directly in the Court of Appeals assailing the act of the said secretary. Needless to state, elevating the matter to the OP was consistent with the doctrine of exhaustion of administrative remedies. A party aggrieved by an order of an administrative official should first appeal to the higher administrative authority before seeking judicial relief. Otherwise, as in this case, the complaint will be dismissed for being premature or for having no cause of action.

This is NOT necessary or required when there exists a special law that provides for a different mode of appeal.


The Take-Care Clause

The power to take care that the laws be faithfully executed makes the President a dominant figure in the administration of the government.

Until a law is declared unconstitutional, the President has the duty to execute it regardless of his doubts to its validity.

The power to conduct investigations to aid him in ensuring the faithful execution of laws is inherent in the President’s powers as the Chief Executive.

The obligation to see to it that laws are faithfully executed necessitates the corresponding power in the President to conduct investigations into the conduct of officials and employees in the executive department.

Biraogo vs. The Philippine Truth Commission (2010)

“Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land.”

Power of Supervision over LGUs

Const. Art. X, Sec. 4:

“The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.”


Const. Art. X, Sec. 16:

The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

The power of the President over local governments is only one of general supervision. The President can only interfere in the affairs and activities of a local government unit if he finds that the latter had acted contrary to law (Judge Dadole v. COA).

VI. Military Power


“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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

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

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

This section bolsters Article II, Sec. 3 that civilian authority is at all times supreme over the military by making the President commander-in-chief of all the armed forces, which lessens the danger of a military take-over of the government in violation of its republican nature.

The military power enables the President to:a. Command all the armed forces of the Philippinesb. Suspend the privilege of the writ of habeas corpusc. Declare martial law

G. Command of the Armed Forces

Power of the sword


Plans all campaigns, establishes all sieges and blockades, directs all marches, and fights all battles

To call out the Armed Forces to prevent or suppress lawless violence, invasion or rebellion

The factual determination to call out the Armed Forces is a political question which the President necessarily exercises as a discretionary power solely vested in his wisdom. However, the Court can examine whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. It is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis. If there is no such proof, the Court shall not interfere with the President’s judgment.

The calling out power involves ordinary police power.

Court Martials

Agencies of executive character which may be convened by the President independently of legislation and by virtue only of his constitutional function as commander-in-chief.

Do NOT pertain to the judiciary and are utilized by him in properly commanding and enforcing such discipline in the Armed Forces.

The power to confirm a sentence of the President, as Commander-in-Chief, includes the power to approve or disapprove the entire or any part of the sentence given by the court martial.

Olaguer vs. Miliatry Commission No. 34 (G.R. No. L-54558, May 22, 1987)

Facts:

In 1979, Olaguer and some others were detained by military personnel and they were placed in Camp Bagong Diwa. Logauer and his group are all civilians. They were charged with (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and


Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion. On August 19, 1980, the petitioners went to the SC and filed the instant Petition for prohibition and habeas corpus.

Issue:

Whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning?

Held:

The SC nullified for lack of jurisdiction all decisions rendered by the military courts or tribunals during the period of martial law in all cases involving civilian defendants. A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned.

David vs. Arroyo (GR No. 171396, May 3, 2006)

Facts:

In February 2006, due to the escape of some Magdalo members and the discovery of a plan (Oplan Hackle I) to assassinate the president, then president Gloria Macapagal-Arroyo (GMA) issued Presidential Proclamation1017 (PP1017) and is to be implemented by General Order No. 5 (GO 5). The said law was aimed to suppress lawlessness and the connivance of extremists to bring down the government.

Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time revoked all permits issued for rallies and other public organization/meeting. Notwithstanding the cancellation of their rally permit, Kilusang Mayo Uno (KMU) head Randolf David proceeded to rally which led to his arrest.


Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by the CIDG and they seized and confiscated anti-GMA articles and write ups. Later still, another known anti-GMA news agency (Malaya) was raided and seized. On the same day, Beltran of Anakpawis, was also arrested. His arrest was however grounded on a warrant of arrest issued way back in 1985 for his actions against Marcos. His supporters cannot visit him in jail because of the current imposition of PP 1017 and GO 5.

In March, GMA issued PP 1021 which declared that the state of national emergency ceased to exist. David and some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be validly declared by the president for such power is reposed in Congress. Also such declaration is actually a declaration of martial law.

Olivares-Cacho also averred that the emergency contemplated in the Constitution are those of natural calamities and that such is an overbreadth. Petitioners claim that PP 1017 is an overbreadth because it encroaches upon protected and unprotected rights. The Sol-Gen argued that the issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the president’s calling out power, take care power and take over power.

Issue:

Whether or not PP 1017 and GO 5 is constitutional?

Held:

PP 1017 and its implementing GO are partly constitutional and partly unconstitutional. The issue cannot be considered as moot and academic by reason of the lifting of the questioned PP. It is still in fact operative because there are parties still affected due to the alleged violation of the said PP. Hence, the SC can take cognition of the case at bar. The SC ruled that PP 1017 is constitutional in part and at the same time some provisions of which are unconstitutional. The SC ruled in the following way:

Resolution by the SC on the Factual Basis of its declaration


The petitioners were not able to prove that GMA has no factual basis in issuing PP 1017 and GO 5. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, GMA was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

Resolution by the SC on the Overbreadth TheoryFirst and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes in free speech cases. The 7 consolidated cases at bar are not primarily ‘freedom of speech’ cases. Also, a plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. Moreover, the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered ‘harmful’ and ‘constitutionally unprotected conduct.’ Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that ‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.’ Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Resolution by the SC on the Calling Out Power Doctrine


On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC considered the President’s ‘calling-out’ power as a discretionary power solely vested in his wisdom, it stressed that ‘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. The SC ruled that GMA has validly declared PP 1017 for the Constitution grants the President, as Commander-in-Chief, a ‘sequence’ of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the calling-out power is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’ And such criterion has been met.

Resolution by the SC on the Take Care DoctrinePursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be faithfully executed.) the president declared PP 1017. David et al averred that PP 1017 however violated Sec 1, Art 6 of the Constitution for it arrogated legislative power to the President. Such power is vested in Congress. They assail the clause ‘to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.’ The SC noted that such provision is similar to the power that granted former President Marcos legislative powers (as provided in PP 1081). The SC ruled that the assailed PP 1017 is unconstitutional insofar as it grants GMA the authority to promulgate ‘decrees.’ Legislative power is peculiarly within the province of the Legislature. Sec 1, Article 6 categorically states that ‘[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.’ To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify GMA’[s exercise of legislative power by issuing decrees. The president can only “take care” of the carrying out of laws but cannot create or enact laws.

Resolution by the SC on the Take Over Power DoctrineThe president cannot validly order the taking over of private corporations or institutions such as the Daily Tribune without any authority from Congress. On the other hand, the word emergency contemplated in the constitution is not limited to natural calamities but rather it also includes rebellion. The SC


made a distinction; the president can declare the state of national emergency but her exercise of emergency powers does not come automatically after it for such exercise needs authority from Congress. The authority from Congress must be based on the following:

(1) There must be a war or other emergency.(2) The delegation must be for a limited period only.(3) The delegation must be subject to such restrictions as the Congress may prescribe.(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Resolution by the SC on the Issue that PP 1017 is a Martial Law DeclarationThe SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a valid exercise of the calling out power of the president by the president.

H. Suspension of the Privilege of Writ of Habeas Corpus

Must be read in conjunction with Article III, Sec. 15 which states:o “The privilege of the writ of habeas corpus shall not be

suspended except in cases of invasion or rebellion, when the public safety requires it.”

Habeas Corpuso Writ directed to the person detaining another, commanding him

to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, to submit to, and receive whatever the court or judge awarding the writ shall consider in his behalf

o Suspension is NOT the writ itself but only its privilege.o Duration: not to exceed sixty (60) days, following which it shall

be lifted, unless extended by the Congress.

Effects of Suspension:o Proclamation does NOT affect the right to bailo Suspension applies only to persons facing charges of rebellion or

offenses inherent in or directly connected with invasion.o Persons arrested must be charged within 3 days: if not, they

must be released


o Proclamation does not supersede civilian authority

I. Martial Law

Martial Law Defined

In its strict sense, it refers to that law which has application when civil authority calls upon the military arm to aid it in its civil function. Military arm does not supersede civil authority.

A State of Martial Law DOES NOT:

Suspend the operation of the Constitution Supplant the functioning of the civil courts and the legislative

assemblies Confer jurisdiction upon the military courts and agencies over civilians,

where civil courts are able to functiono Open Court Doctrine – civilians cannot be tried by military courts

if the civil courts are open and functioning Automatically suspend the privilege of the writ of habeas corpus

Important Notes on Martial Law:

Grounds for declaration: existence of invasion or rebellion when the public safety requires it

Duration of such suspension or proclamation shall NOT exceed 60 days, following which it shall be automatically lifted

Within 48 hours after such suspension or proclamation, the President shall personally or in writing report his action to the Congress. If not in session, the Congress must convene within 24 hours without need of a call.

Congress may, by majority of all its members voting jointly, revoke his acion.

Revocation may not be set aside by the President By the same vote and in the same manner, the Congress may, upon

initiative of the President, extend his suspension or proclamation for a period to be determined by the Congress if the invasion or rebellion shall continue and the public safety requires the extension.


Action of President and Congress shall be subject to review by the Supreme Court which shall have the authority to determine the sufficiency of the factual basis of action. This matter is NO LONGER considered a political question and may be raised in an appropriate proceeding by ANY citizen. Moreover, the SC must decide the challenge within 30 days from the time it is filed.

VII. Pardoning Power


Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

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

Executive Clemency

Granted for the purpose of relieving the harshness of the law or correcting mistakes in the administration of justice

Exercise is discretionary upon the President and may not be controlled by the legislature or reversed by courts, save only when it contravenes the limitations discussed below.

It does NOT distinguish between criminal and administrative cases. The power of executive clemency is non-delegable power and must be

exercised by the President personally.

Forms of Executive Clemency

Pardon Commutation ReprieveRemission of

Fines and Forfeiture

Act of grace which exempts

Reduction or mitigation of the

Merely a postponement of

Merely prevents the collection of


the individual on whom it is bestowed from the punishment which the law inflicts for the crime he has committed

penalty a sentence to a date certain, or a stay of execution.

fines or the confiscation of forfeited propertyCANNOT have the effect of returning property which has been vested in third parties or money already in public treasury

Limitations of Executive Clemency

1. Cannot be granted in cases of impeachment.2. Cannot be granted in violation of any election law, rule or regulation

without the favorable recommendation of the Commission on Elections3. Can be granted only after conviction by final judgment (except

amnesty)4. Cannot be granted in cases of legislative contempt or civil contempt5. Cannot absolve convict of civil liability6. Cannot restore public officers forfeited

Monsanto vs. Factoran [170 SCRA 190 (1989)]

Facts:Monsanto was the Asst Treasurer of Calbayug City. She was charged for thecrime of Estafa through Falsification of Public Documents. She was found guilty and was sentenced to jail. She was however granted pardon by Marcos. She then wrote a letter to the Minister of Finance for her to be reinstated to her former position since it was still vacant. She was also requesting for back pays. The Minister of Finance referred the issue to the Office of the President and Factoran denied Monsanto’s request averring that Monsanto must first seek appointment and that the pardon does not reinstate her former position. Also, Monsanto avers that by reason of the pardon,


she should no longer be compelled to answer for the civil liabilities brought about by her acts.Issue: Whether or not Monsanto should be reinstated to her former post.Held:A pardon looks to the future. It is not retrospective. 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.” This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. On the other hand, civil liability arising from crime is governed by the RPC. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner’s civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation.

7. A grant of amnesty must be with the concurrence of a majority of all the Members of the Congress

Classifications as to Effect

1. Plenary – extinguishes all the penalties imposed including accessory disabilities

2. Partial – does not extinguish all

Classification as to Presence of Condition

1. Conditional Pardon – in the nature of a contract between the Chief Executive and the convicted criminal; by the pardonee’s consent to the terms stipulated in the contract, the pardonee has placed himself under the supervision of the Chief Executive or his delegate who is duty bound to see to it that the pardonee complies with the conditions of the pardon.


o Offender has the right to reject it

2. Absolute Pardon – does not impose any condition upon the pardonee and is complete even without the necessity of acceptance.

Effects: Legal effect of a pardon is to restore not only the offender’s liberty but

also his civil and political rights.

Pardon Parole

Pardonee whose sentence is condoned, is subject only to reinstatement in cases of violation of the condition that may have been attaced to the pardon.

Release of the convict from imprisonment but not a restoration of his liberty

Parolee is still in the custody of the law although no longer under confinement

Parole Probation

Executive Presupposes the prior service

of the part of the sentence

Judicial May be granted even before

actual service of sentence

Amnesty

Granted by the President only with the concurrence by a majority of all the members of the Congress

Requires a previous admission of guilt since a person would not need the benefit of amnesty unless he were, to begin with, guilty of the offense covered by the proclamation.

Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged,


that the person released by amnesty stands before the law precisely as though he had committed no offense.

Amnesty Pardon

Extent Political OffensesInfraction of peace/common

crimes

CoverageGranted to classes of

personsGranted to individuals

Approval of Congress

Requires concurrence of Congress

Does not require concurrence of Congress

NaturePublic act to which court may take judicial notice

Private act which must be pleaded and proved

EffectivityLooks backward and puts into oblivion the offense

itself

Looks forward and relieves the pardonee of the

consequence of the offense

LimitationMay be granted even

BEFORE trialCan be granted only AFTER

conviction

VIII. Borrowing Power


“The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations


which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.”

Power to contract or guarantee foreign loans

The following are the requirements for the President may contract or guarantee foreign loans on behalf of the Republic of the Philippines:

1. With prior concurrence of the Monetary Board Reason for concurrence: The President may be tempted to

contract or guarantee loans to subsidize his program of government and leave it to succeeding administration. Also, it will enable foreign lending institutions (e.g. World Bank, International Monetary Fund) to impose conditions on loans that might impair economic and political independence.

Why the Monetary Board (MB)? Because the MB has expertise and consistency to perform the mandate since such expertise or consistency may be absent among the Members of Congress.

Concurrence of MB does not diminish the executive nature of the power

2. Subject to such limitations as may be provided by law

Monetary Board

Per R.A. No. 7653 or The New Central Bank Act, the Monetary Board exercises the powers and functions of the Bangko Sentral. It is composed of seven (7) members appointed by the President of the Philippines for a term of six (6) years.

Duty: It shall submit to Congress a complete report on loans within 30 days from the end of every quarter to allow the Congress to act on whatever legislation may be needed to protect public interest.

IX. Diplomatic Power

The President, as Head of State, is supposed to be the spokesman of the nation on external affairs. The conduct of external affairs is executive altogether. The foreign relations powers include:


1. Power to negotiate treaties and international agreements2. Power to appoint ambassadors and other public ministers and consuls3. Power to receive ambassadors and other public ministers accredited to

the Philippines4. Power to contract or guarantee foreign loans on behalf of the Republic5. Power to deport aliens6. Power to decide that a diplomatic officer who has become persona non

grata be recalled7. Power to recognize government and withdraw recognition

When Concurrence of Senate Needed


“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.”

This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of at least 2/3 of all the Members of Senate to be valid and effective.

When Concurrence of Senate Not Needed

Less formal types of international agreements; Agreements which are temporary or are mere implementations of treaties and statutes do not need concurrence.

Scope of Power to Concur

“It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate 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.” (Pimentel vs. Executive Secretary, GR No. 158088, July 16, 2008)

Treaty vs. Executive Agreements

Treaty Executive Agreement International agreements which

involve political issues or changes of national policy and those of permanent character

International agreements involving adjustment of details carrying out well established national policies and traditions and involving arrangements of a more or less temporary nature

In treaties, formal documents require ratification

Binding through executive action (can be concluded by the President alone without the necessity of Senate concurrence)

Pimentel v. Executive Secretary (GR No. 158088, July 6, 2005)

Facts:

The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court (ICC) to the Senate of the Philippines for its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution. The Rome Statute established the ICC will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties.


Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.

Issue:

Whether or not the Executive Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President

Held:

No. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations. As the chief architect of foreign policy, he is the mouthpiece with respect to the country's foreign affairs. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid (Sec. 21, Art VII). Furthermore, the legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's pursuit of political maturity and growth.

Petitioners’ further arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. Note that the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative.


It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate 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.

X. Budgetary Power


“The President shall submit to the Congress within 30 days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.”

The President, as chief administrator and enforcer of laws, is properly entrusted with such power because he is in the best position to determine the needs of the government and propose the corresponding appropriations on the basis of existing or expected revenues.

Budget and Budgetary Process

The budget of receipts and expenditures prepared by the Department of Budget and Management and approved by the President is the basis for the general appropriation bill passed by the Congress. The budgetary process consists of four (4) major phases namely:

1. Budget Preparation2. Legislative Authorization*3. Budget Execution4. Budget Accountability


*Note: The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget (Sec. 25 par. 1, Article VI).

XI. Informing Power


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

Although couched in mandatory language, the first sentence of the provision does not as a rule impose a compellable duty on the President.

Such information may be needed as basis of legislation. The informing power is usually discharged through State of the Nation

Address (SONA) of the President which is delivered at the opening of the regular session of the legislature.

XII. Residual Power

Executive Order No. 292, Book III, Section 20:

“Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.”

Whatever power inherent in the government that is neither legislative nor judicial has to be executive (Marcos vs. Manglapus, GR No. 88211, September 15, 1989). Thus, whatever is not judicial, whatever is not executive is the residual power exercised by the President.

The powers of the President are more than the sum of the enumerated executive powers. The duty of the government to serve and protect the people as well as to see the maintenance of peace and order, the protection of life, liberty and property and the promotion of general welfare is the basis of the existence of “residual unstated power” (Marcos vs. Manglapus, GR No. 88211, October 27, 1989).


XIII. Other Powers

A. Call Congress to a special session (Art. VI, Sec. 15)B. Approve or veto bills (Art. VI, Sec. 27)C. Deport aliensD. Consent to deputization of government personnel by COMELEC

[Art. IX-C, Sec. 2(8)]E. Discipline such deputies [Art. IX-C, Sec. 2 (8)]F. By delegation from Congress, exercise emergency* [Art. VI, Sec. 23

(2)], and tariff powers [Art. VI, Sec. 28 (2)]

*Conditions for the exercise of emergency powers: There must be a war or national emergency There must be a law authorizing the President to exercise such

emergency powers Exercise must be for a limited period Must be subject to restrictions that Congress may provide Exercise must be necessary and proper to carry out a declared

national policy

G. Power to classify or reclassify lands


References

Bernas, Joaquin. (2003). The 1987 Philippine Constitution: A Commentary, 2003 ed. Manila: Rex Bookstore Inc.

Cruz, Isagani & Cruz, Carlo. (2014). Philippine Political Law, 2014 ed. Quezon City: Central Book Supply Inc.

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