THE EXECUTIVE DEPARTMENT

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  A. The President

1.     Qualifications: “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” [Sec. 2, Art. VII].

 

2.     Election [Sec. 4, Art. VII].

 

a)           Regular Election: Second Monday of May.

b)           Congress as canvassing board. 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 Congress, directed to the Senate President who, upon receipt of the certificates of canvass, shall, not later than 30 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. Congress shall promulgate its rules for the canvassing of the certificates. In case two or more candidates shall have an equal and highest number of votes, one of them shall be chosen by a majority vote of all the members of Congress.

i)      Sec. 18.5 of R.A. 9189 (Overseas Absentee Voting Act of 2003), insofar as it grants sweeping authority to the Comelec to proclaim all winning candidates, is unconstitutional as it is repugnant to Sec. 4, Art. VII of the Constitution vesting in Congress the authority to proclaim the winning candidates for the positions of President and Vice-President [Makalintal v. Comelec, G.R. No. 157013, July 10, 2003].

 

ii)     In the exercise of this power, Congress may validly delegate the initial determination of the authenticity and due execution of the certificates of canvass to a Joint Congressional Committee, composed of members of the House of Representatives and of the Senate. The creation of the Joint Committee does not constitute grave abuse and cannot be said to have deprived petitioner and the other members of Congress of their congressional prerogatives, because under the very Rules under attack, the decisions and final report of the said Committee shall be subject to the approval of the joint session of both Houses of Congress, voting separately [Ruy Elias Lopez v. Senate of the Philippines, G.R. No. 163556, June 8, 2004]

 

iii)   Even after Congress has adjourned its regular session, it may continue to perform this constitutional duty of canvassing the presidential and vicepresidential election results without need of any call for a special session by the President. The joint public session of both Houses of Congress convened by express directive of Sec. 4, Art. VII of the Constitution to canvass the votes for and to proclaim the newly-elected President and Vice-President has not, and cannot, adjourn sine die until it has accomplished its constitutionally mandated tasks. For only when a board of canvassers has completed its functions is it rendered functus officio [Aquilino Pimentel, Jr. v. Joint Committee of Congress to Canvass the votes cast for President and Vice President, G R No 163783 June 22, 2004], ’

iv)   There is no constitutional or statutory basis for Comelec to undertake a separate and an “unofficial” tabulation of, results, whether manually or electronically. By conducting such “unofficial” tabulation, the Comelec descends to the level of a private organization, spending public funds for the purpose. This not only violates the exclusive prerogative of NAMFREL to conduct an “unofficial” count, but also taints the integrity of the envelopes containing the election returns and the election returns themselves. Thus, if the Comelec is proscribed from conducting an official canvass of the votes cast for the President and VicePresident, the Comelec is, with more reason, prohibited from making an “unofficial” canvass of said votes [Brillantes v. Comelec, G.R. No. 163193, June 15, 2004].

c)       Supreme Court as Presidential Electoral Tribunal. 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.

3.     Term of Office: six [6] years.

a)      No re-election: and 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.

 

b)      The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, extended to noon of June 30, 1992 [Sec. 5, Art. XVIII], See Osmena v. Comelec, 199 SCRA 750.

4.     Oath of Office [Sec. 5, Art. VII],

5.     Privileges [Sec. 6, Art. VII],

a)      Official residence.

 

b)      Salary. Determined by law; shall not be decreased during tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved.

 

c)      Immunity from suit. In Soliven v. Makasiar, 167 SCRA 393, it was held that while the President is immune from suit, she may not be prevented from instituting suit. See also In Re: Bermudez, 145 SCRA 160. In Forbes v. Chuoco Tiaco, 16 Phil 534, the Supreme Court said that the President is immune from civil liability.                                                                                ,

 

i)      After his tenure, the Chief Executive cannot invoke immunity

from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties [Estrada v. Desierto, G.R. Nos. 146710-15, March 02, 2001].

ii)     Even if the DECS Secretary is an alter ego of the President,

he cannot invoke the President’s immunity from suit in a case filed against him because the questioned acts are not the acts of the President but merely those of a department Secretary [Gloria v. Court of Appeals, G.R. No. 119903, August 15, 2000].                                                        -

 

d)      Executive Privilege. It has been defined as “the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and ultimately, the public”. Thus, presidential conversations, correspondences, or discussions during closed-door Cabinet meetings, like the internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government [Senate v. Ermita, G.R. No. 169777, April 20, 2006], The claim of executive privilege is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President, such as in the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others [Neri v.

Senate Committees, G.R. No. 180843, March 25, 2008], i)

 

i)      However, the privilege being, by definition, an exemption from the obligation to disclose information (in this case to Congress), the necessity for withholding the information must be of such a high degree as the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President (and to the Executive Secretary, by order of the President) the power to invoke the privilege [Senate v. Ermita, supra.].

ii) In Neri, a majority of the members of the Supreme Court upheld the refusal of the petitioner to answer the three questions asked during the Senate inquiry because the information sought by the three questions are properly covered by the presidential communications privilege, and executive privilege w,as validly claimed by the President, through the Executive Secretary. First, the communications relate to a “quintessential and non-delegable power” (the power to enter into an executive agreement with other countries) of the President; second, the communications were received by a close advisor of the President, Secretary Neri being a member of the Cabinet and by virtue of the “proximity test”, he is covered by executive privilege; and third, there was no adequate showing by the respondents of the compelling need for the information as to justify the limitation of the privilege, nor was there a showing of the unavailability of the information elsewhere by an appropriate investigating authority.

6. Prohibitions/lnhibitions [Secs. 6 & 13, Art. V///. Paragraphs (a) to (d) apply to the Vice President; paragraphs (b) to (d) also apply to Members of the Cabinet, their deputies or assistants. During tenure:

a)    Shall not receive any other emoluments from the government or any other source.

i)              In Republic v. Sandiganbayan, G.R. No. 152154, July 15, 2003, the Court noted that the total accumulated salaries of the Marcos couple amounted to P2,319,583.33 which, when converted to dollars at the exchange rate then prevailing would have an equivalent value of $304,372.43. This sum should be held as the only known lawful income of the respondents Marcos since they did not file any Statement of Assets and Liabilities, as required by law, from which their net worth could be determined. Besides, under the 1935 Constitution, Ferdinand Marcos, as President, could not receive “any other emolument from the Government or any of its subdivisions and instrumentalities”, and under the 1973 Constitution, could not “receive during his tenure any other emolument from the Government or any other source”. In fact, his management of businesses, like the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution.

b)    Unless otherwise provided in this Constitution, shall not hold any other office or employment.

i)              Note, however that the Vice President may be appointed to the Cabinet, without need of confirmation by the Commission on Appointments; and the Secretary of Justice is an ex officio member of the Judicial and Bar Council.

ii)             In Civil Liberties Union v. Executive Secretary, 194 SCRA 317, the Supreme Court declared as unconstitutional Executive Order No. 284 which allowed Cabinet members to hold two other offices in government, in direct contravention of Sec. 13, Art. VII. The prohibition on the President and his official family is all-embracing and covers both public and private office employment, not being qualified by the phrase “in the Government” x x x This is proof of the intent of the Constitution to treat them as a class by itself and to impose upon said class stricter prohibitions.

iii)            This prohibition must not, however, be construed as applying to posts occupied by the Executive officials without additional compensation in an ex-officio capacity, as provided by law and as required by the primary functions of the said officials’ office. The reason is that these posts do not comprise “any other office” within the contemplation of the constitutional prohibition, but properly an imposition of additional duties and functions on said officials. To illustrate, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority and the Light Rail Transit Authority. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in said position. ' The reason is that these services are already paid for and covered by the compensation attached to the principal office [National Amnesty Commission v. CO A, G.R. No. 156982, September 8, 2004].

iv)            The Secretary of Labor, who sits in an ex officio capacity as member of the Board of Directors of the Philippine Export Processing Zone (PEZA), is prohibited from receiving any compensation for this additional office, because his services are already paid for and covered by the compensation attached to his principal office. It follows that the petitioner, who sits in the PEZA Board merely as representative of the Secretary of Labor, is likewise prohibited from receiving any compensation therefor. Otherwise, the representative would have a better right than his principal, and the fact that the petitioner’s position as Director IV of the Department of Labor and Employment (DOLE) is not covered by the ruling in the Civil Liberties Union case is of no moment. After all, the petitioner attended the PEZA Board meetings by authority given to him by the Secretary of Labor; without such designation or authority, petitioner would not have been in the Board at all [Bitonio v. Commission on Audit, G.R. No. 147392, March 12, 2004].

 

c)     Shall not 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.

 

d)     Strictly avoid conflict of interest in the conduct of their office.

 

e)     May not appoint spouse or relatives by consanguinity or affinity within the fourth civil degree as Members of Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Under Secretaries, chairmen or heads of bureaus or offices, including government-owned or -controlled corporations and their subsidiaries.,

7. Rules on Succession.

a)     Vacancy at the beginning of the term.

i)               Death or permanent disability of the President-elect: Vice President-elect shall become President.

ii)              President-elect fails to qualify: Vice President-elect shall act as President until the President-elect'shall have qualified.

iii)             President shall not have been chosen: Vice President-elect shall act as President until a President shall have been chosen and qualified.

iv)             No President and Vice President chosen nor shall have qualified, or 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. In the event of inability of the officials mentioned, 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.

 

b)     Vacancy during the term:

i)               Death, permanent disability, removal from office, or resignation of the President: Vice President shall become the President.

ia) In Joseph Ejercito Estrada v. Gloria Macapagal-Arroyo, G. R. No. 146738, March 2, 2001, the Supreme Court declared that the resignation of President Estrada could not be doubted as confirmed by his leaving Malacanang. In the press release containing his final statement, [i] he acknowledged the oath-taking of the respondent as President; [ii] he emphasized he was leaving the palace for the sake of peace and in order to begin the healing process (he did not say that he was leaving due to any kind of disability and that he was going to reassume the Presidency as soon as the disability disappears); [iii] he expressed his gratitude to the people for the opportunity to serve them as President (without doubt referring to the past opportunity); [iv] he assured that he will not shirk from any future challenge that may come in the same service of the country; and [v] he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. The Court declared that the elements of a valid resignation are: [1] intent to resign; and [2] act of relinquishment. Both were present when President Estrada left the Palace.

ii) Death, permanent disability, removal from office, or resignation of President and Vice President: Senate President or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or Vice President shall be elected and qualified. Congress, by law, shall provide for the manner in which one is to act as President in the event of inability of the officials mentioned above.

c) Temporary Disability.

i)   When President transmits to the Senate President and the Speaker of the House 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.

ii)  When a majority of all the Members of the Cabinet transmit to the Senate President and the Speaker 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, x x x Thereafter, when the President transmits to the Senate President and Speaker his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of the Members of the Cabinet transmit within 5 days to the Senate President and Speaker their written declaration that the President is unable to discharge the powers and duties of his office, Congress shall decide the issue. For this purpose, Congress shall convene, if not in session, within 48 hours. And if, within 10 days from receipt of the last written declaration or, if not in session, within 12 days after it is required to assemble, Congress determines by a 2/3 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.
 

d) Constitutional duty of Congress in case of vacancy in the offices of President and Vice President: At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress shall convene without need of a call, and within 7 days enact a law calling for a special election to elect a President and a Vice President to be held not earlier than 45 nor later than 60 days from the time of such call. The bill shall be deemed certified and shall become law upon its approval on third reading by Congress, x x x The convening of Congress cannot be suspended nor the special election postponed, x x x No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

 

8. Removal of the President. By impeachment [Secs. 2 & 3, Art. XI]. 

 

B. The Vice President.

 

1.   Qualifications, election, term of office and removal. The same as the President [Sec. 3, Art. VII], but no Vice President shall serve for more than 2 successive terms. The Vice President may be appointed as Member of the Cabinet. Such appointment requires no confirmation by the Commission on Appointments.

2.   Vacancy in the office of the Vice President [Sec. 9, Art. VII]: 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 Congress voting separately.

 

C. Powers of the President

 

1. The Executive Power [Secs. 1, Art. VII: “The executive power shall be vested in the President of the Philippines”. Sec. 17, Art. VII: “x x x He shall ensure that the laws be faithfully executed. ’] .

a)             The executive power is the power to enforce and administer the laws. In National Electrification Administration v. Court of Appeals, G.R. No. 143481, February 15, 2002, the Supreme Court said that as the administrative head of the government, the President is vested with the power to execute, administer and carry out laws into practical operation. Executive power, then, is the power of carrying out the laws into practical operation and enforcing their due observance.

 

b)             Authority to reorganize the Officeofthe President. TheAdministrative Code of 1987 (EO 292) expressly grants the President continuing authority to reorganize the Office of the President. The law grants the President this power in recognition of the recurring need of every President to reorganize his office “to achieve simplicity, economy and efficiency”. The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies. But the power to reorganize the Office of the President under Sec. 31 (2) and (3) of the Administrative Code should be distinguished from his power to reorganize the Office of the President Proper. Under Sec. 31 (1) of EO 292, the President can reorganize the Office of the President Proper by abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast, under Sec. 31 (2) and (3), the President’s power to reorganize offices outside the Office of the President Proper is limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies, and vice versa [Domingo v. Zamora, G.R. No. 142283, February 6, 2003].

c)             In Villena v. Secretary of the Interior, 67 Phil 451, and in Planas v. Gil, 67 Phil 62, the Supreme Court declared that the President of the Philippines is the Executive of the Government of the Philippines and no other, and that all executive authority is thus vested in him. [This is in keeping with the rule announced in Myers v. United States, 272 U.S. 52, that the specific grant of executive powers is not inclusive but is merely a limitation upon the general grant of executive power.] However, in Lacson v. Roque, 92 Phil 456, and in Mondano v. Silvosa, 97 Phil 143, the Supreme Court opted for a stricter interpretation of executive power, e.g., the President’s power of general supervision over local governments could be exercised by him only as may be provided by law. See Marcos v. Manglapus, 177 SCRA 668, on certain “residual powers” of the President of the Philippines.

 

d)             In Malaria Employees and Workers Association of the Philippines, Inc.(MEWAP) v. Romulo, G.R. No. 160093, July 31, 2007, it was held that the President has the authority to carry out a reorganization of the Department of Health under the Constitution and statutes. This authority is an adjunct of the President’s power of control under Art. VII, Secs. 1 and 17, and it is also an exercise of his “residual powers”. However, the President must exercise good faith in carrying out the reorganization of any branch or agency of the executive department.

 

e)             It is not for the President to determine the validity of a law since this is a question addressed to the judiciary. Thus, until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts on its validity. A contrary opinion would allow him to negate the will of the legislature and to encroach upon the prerogatives of the Judiciary.

2. The Power of Appointment [Sec. 16, Art. VII: “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.”].

a)     Appointment is the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. It is distinguished from designation in that the latter simply means the imposition of additional duties, usually by law, on a person already in the public service. It is also different from the commission in that the latter is the written evidence of the appointment.

 

b)     Appointments, classified.

                                       

i)        Permanent or temporary. Permanent appointments are those extended to persons possessing the qualifications and the requisite eligibility and are thus protected by the constitutional guarantee of security of tenure. Temporary appointments are given to persons without such eligibility, revocable at will and without the necessity of just cause or a valid investigation; made on the understanding that the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made.

ia) A temporary appointment and a designation are not subject to confirmation by the Commission on Appointments. Such confirmation, if given erroneously, will not make the incumbent a permanent appointee [Valencia v. Peralta, 8 SCRA 692].

ib) In Binamira v. Garrucho, 188 SCRA 154, it was held that where a person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, a designation is considered only an acting or temporary appointment which does not confer security of tenure on the person named.

ii) Regular or ad interm. A regular appointment is one made by the President while Congress is in session, takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee. An ad interim appointment is one made by the President while Congress is not in session, takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress. In the latter case, the ad interim appointment is deemed “by-passed” through inaction. The ad interim appointment is intended to prevent interruptions in vital government services that would otherwise result from prolonged vacancies in government offices.

iia) An ad interim appointment is a permanent appointment [Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, 140 SCRA 22]. It is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character [Matibag v. Benipayo, G.R. No. 149036, April 2, 2002].

iib) An ad interim appointment can be terminated for two causes specified in the Constitution: disapproval of the appointment by the Commission on Appointments, or adjournment by Congress without the Commission on Appointments acting on the appointment. There is no dispute that when the Commission on Appointments disapproves an ad interim appointment, the appointee can no longer be extended a new appointment, inasmuch as the disapproval is a final decision of the Commission in the exercise of its checking power on the appointing authority of the President. Such disapproval is final and binding on both the appointee and the appointing power. But when an ad interim appointment is by-passed because of lack of time or failure of the Commission on Appointments to organize, there is no final decision by the Commission to give or withhold its consent to the appointment. Absent such decision, the President is free to renew the ad interim appointment [Matibag v. Benipayo, supra.].

 

c) Officials who are to be appointed bv the President.

i)        The first sentence of Sec. 16, Art. VII, says that the President shall nominate, and with the consent of the Commission on Appointments, appoint the following: {a] Heads of executive departments; [b] Ambassadors, other public ministers and consuls; [c] Officers of the armed forces from the rank of colonel or naval captain; and [dj Those other officers whose appointments are vested in him in the Constitution.

ia) In Sarmiento v. Mison, 156 SCRA 549, the Supreme Court declared that the foregoing are the only categories of appointments which require confirmation by the Commission on Elections. In this case, it was held that the appointment of Salvador Mison as Commissioner of Customs needs no confirmation by the Commission on Appointments, because the Commissioner of the Customs is not among the officers mentioned in the first sentence, Sec. 16, Art. VII. On the other hand, in Quintos-Deles v. Committee on Constitutional Commissions, Commission on Appointments, 177 SCRA 259, the appointment of a sectoral representative by the President of the Philippines is specifically provided for in Sec. 7, Art. XVIII of the Constitution. Thus, the appointment of a sectoral representative falls under category [d] above.

ib) In Soriano v. Lista, G.R. No. 153881, March 24, 2003, the Supreme Court said that because the Philippine Coast Guard (PCG) is no longer part of the Philippine Navy or the Armed Forces of the Philippines, but is now under the Department of Transporation and Communications (DOTC), a civilian agency, the promotion and appointment of respondent officers of the PCG will not require confirmation by the Commission on Appointments. Obviously, the clause “officers of the armed forces from the rank of colonel or naval captain” refers to military officers alone.

ii)     The second sentence of Sec. 16, VII, states that he shall also appoint [a] All other officers of the Government whose appointments are not otherwise provided by law; and [b] Those whom he may be authorized by law to appoint.

iia) In Mary Concepcion Bautista v. Salonga, 172 SCRA 16, the Supreme Court held that the appointment of the Chairman of the Commission on Human Rights is not otherwise provided for in the Constitution or in the law. Thus, there is no necessity for such appointment to be passed upon by the Commission on Appointments. In Calderon v. Carale, 208 SCRA 254, Article 215 of the Labor Code, as amended by R.A. 6715, insofar as it requires confirmation by the Commission on Appointments of the appointment of the NLRC Chairman and commissioners, is unconstitutional, because it violates Sec. 16,Art. VII. Infact, inManalov. Sistoza, G.R. No. 107369,August 11,1999, the Supreme Court said that Congress cannot, by law, require the confirmation of appointments of government officials other than those enumerated in the first sentence of Sec. 16, Art. VII.

iib) In Tarrosa v. Singson, supra., the Court denied the petition for prohibition filed by the petitioner as a “taxpayer” questioning the appointment of Gabriel Singson as Governor of the Bangko Sentral ng Pilipinas for not having been confirmed by the Commission on Appointments as provided in RA 7653, calling attention to its ruling in Calderon v. Carale. The petition was dismissed, however, primarily on the ground that it was in the nature of a quo warranto proceeding, which can be commenced only by the Solicitor General or by “a person claiming to be entitled to a public office or position unlawfully held or exercised by another”.

 iic) In Rufino v. Endriga, G.R. No. 113956, July 21, 2006, the Supreme Court declared that a statute cannot circumvent the constitutional provisions on the power of appointment by filling vacancies in a public office through election by the co-workers in that office. This manner of filling vacancies in public office has no constitutional basis. Thus, because the challenged section of the law is unconstitutional, it is the President who shall appoint the trustees, by virtue of Sec. 16, Art. VII of the Constitution which provides that the President has the power to appoint officers whose appointments are not otherwise provided by law.

 

d)  Steps in the appointing process:

i)      Nomination by the President;

ii)     Confirmation by the Commission on Appointments;

iii)    Issuance of the commission;

iv)    Acceptance by the appointee. In Lacson v. Romero, 84 Phil 740,, the Supreme Court declared that an appointment is deemed complete only upon its 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 any citizen except for purposes of defense of the State under Sec. 4, Art. II, as an exception to the rule against involuntary servitude.

 

e)   Discretion of Appointing Authority. Appointment is essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee, if issued a permanent appointment, should possess the minimum qualification requirements, including the Civil Service eligibility prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment, i.e., whether the appointment is temporary or permanent. See Luego v. Civil Service Commission, 143 SCRA 327; Lapinid v. Civil Service Commission, 197 SCRA 106; Pobre v. Mendieta, 224 SCRA 738.

                      

i)      In Pimentel v. Ermita, G.R. No. 164978, October 13, 2005, several Senators, including members of the Commission on Appointments, questioned the constitutionality of the appointments issued by the President to respondents as Acting Secretaries of their respective departments, and to prohibit them from performing the duties of Department Secretaries. In denying the petition, the Supreme Court said that the essence of an appointment in an acting capacity is its temporary nature. In case of a vacancy in an office occupied by an alter ego of the President, such as the office of Department Secretary, the President must necessarily appoint the alter ego of her choice as Acting Secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments. However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyo’s issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year.

 

f)  Special Constitutional Limitations on the President’s appointing power:

 

i) The President may not appoint his spouse and relatives by consanguinity or affinity within the fourth civil degree as Members of the Constitutional Commissions, as Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or -controlled corporations [Sec. 13, Art. VII].

ii)     Appointments extended by an acting President shall remain effective unless revoked by the elected President within ninety days from his assumption of office [Sec. 14, Art. VII].

iii)    Two months immediately before the next presidential elections and up to the end of his term, a President or acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety [Sec. 15, Art. VII].

iiia) In De Rama v. Court of Appeals, G.R. No. 131136, February 28, 2001, the Supreme Court ruled that this provision applies only to presidential appointments. There is no law that prohibits local executive officials from making appointments during the last days of their tenure.

iiib) During this period, the President is neither required to make appointments to the courts nor allowed to do so. Secs. 4 (1) and 9 of Article VIII simply mean that the President is required by law to fill up vacancies in the courts within the time frames provided therein, unless prohibited by Sec. 15 of Article VII. While the filling up of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban [In Re: Mateo Valenzuela, A.M. No. 98-5-01-SC, November 9, 1998].

[Note: The presidential power of appointment may also be limited by Congress through its power to prescribe qualifications for public office; and the judiciary may annul an appointment made by the President if the appointee is not qualified or has not been validly confirmed.]

 

g) The Power of Removal. As a general rule, the power of removal may be implied from the power of appointment. However, the President cannot remove officials appointed by him where the Constitution prescribes certain methods for separation of such officers from public service, e.g., Chairmen and Commissioners of Constitutional Commissions who can be removed only by impeachment, or judges who are subject to the disciplinary authority of the Supreme Court. In the cases where the power of removal is lodged in the Presfdent, the same may be exercised only for cause as may be provided by law, and in accordance with the prescribed administrative procedure.

 

i)      Members of the career service of the Civil Service who are appointed by the President may be directly disciplined by him [Villaluz v. Zaldivar, 15 SCRA 710], provided that the same is for cause and in accordance with the procedure prescribed by law.

ii)     Members of the Cabinet and such officers whose continuity in office depends upon the pleasure of the President may be replaced at any time, but legally speaking, their separation is effected not by removal but by expiration of their term. See Alajar v. Alba, 100 Phil 683; Aparri v. Court of Appeals, 127 SCRA 231.

3. The Power of Control [Sec. 17, Art. VII: "The President shall have control of all the executive departments, bureaus, and offices, x x x’].

a)            Control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter [Mondano v. Silvosa, supra.]. It is distinguished from supervision in that the latter means overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties.

 

i)     The President has the authority to carry out a reorganization of the Department of Health under the Constitution and statutes. This authority is an adjunct of his power of control under Art. VII, Sections 1 and 17, of the Constitution. While the power to abolish an office is generally lodged in the legislature, the authority of the President to reorganize the executive branch, which may incidentally include such abolition, is permissible under present laws [Malaria Employees and Workers Association of the Philippines (MEWAP) v. Romulo, G.R. No. 160093, July 31, 2007].

ii)    The President’s power to reorganize the executive branch is also an exercise of his residual powers under Section 20, Title I, Book II, Executive Order No. 292 (Administrative Code of the Philippines), which grants the President broad organization powers to implement reorganization measures. Further, Presidential Decree No. 1772, which amended P.D. 1416, grants the President the continuing authority to reorganize the national government which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, and to standardize salaries and materials [MEWAP v. Romulo, supra.].

iii)   Be that as it may, the President must exercise good faith in carrying out the reorganization of any branch or agency of the executive department if it is for the purpose of economy or to make bureaucracy more efficient. R.A, 6656 enumerates the circumstances which may be considered as evidence of bad faith in the removal of civil service employees as a result of reorganization: (a) where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished and another performing substantially the same functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; and (e) where the removal violates the order of separation [MEWAP v. Romulo, supra.].

 

b)            The alter ego principle. Also known as the “doctrine of qualified political agency”. Under this doctrine which recognizes the establishment of a single executive, all executives and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive [DENR v. DENR Region XII Employees. G.R. No. 149724, August 19, 2003].

 

i)     The President may exercise powers conferred by law upon Cabinet members or other subordinate executive officers [City of lligan v. Director of Lands, 158 SCRA 158; Araneta v. Gatmaitan, 101 Phil 328], Even where the law provides that the decision of the Director of Lands on questions of fact shall be conclusive when affirmed by the Secretary of Agriculture and Natural Resources, the same may, on appeal to the President, be reviewed and reversed by the Executive Secretary [Lacson-Magallanes v. Pano, 21 SCRA 895]. Thus, in Gascon v. Arroyo, 178 SCRA 582, it was held that the Executive Secretary had the authority to enter into the “Agreement to Arbitrate” with ABS-CBN, since he was acting on behalf of the President who had the power to negotiate such agreement.

ii)    Applying this doctrine, the power of the President to reorganize the National Government may validly be delegated to his Cabinet Members exercising control over a particular executive department. Accordingly, in this case, the DENR Secretary can validly reorganize the DENR by ordering the transfer of the DENR XII Regional Offices from Cotabato City to Koronadal, South Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego of the President, is presumed to be the act of the President because the latter had not expressly repudiated the same [DENR v. DENR Region XII Employees, supra.].

iii)   But even if he is an alter-ego of the President, the DECS Secretary cannot invoke the President’s immunity from suit in a case filed against him, inasmuch as the questioned acts are not those of the President [Gloria v. Court of Appeals, G.R. No. 119903, August 15, 2000].

 

c)            Appeal to the President from decisions of subordinate executive officers, including Cabinet members, completes exhaustion of administrative remedies [Tan v. Director of Forestry, 125 SCRA 302], except in the instances when the doctrine of qualified political agency applies, in which case the decision of the Cabinet Secretary carries the presumptive approval of the President, and there is no need to appeal the decision to the President in order to complete exhaustion of administrative remedies [Kilusang Bayan, etc., v. Dominguez, 205 SCRA 92],

 

d)            But the power of control may be exercised by the President only over the acts, not over the actor [Angangco v. Castillo, 9 SCRA 619].

 

e)            The Subic Bay Metropolitan Authority (SBMA) is under the control of the Office of the President. All projects undertaken by SBMA involving P2- million or above require the approval of the President of the Philippines under LOI 620 [Hutchinson Ports Phils, Ltd. V. SBMA, G.R. No. 131367, August 31,2000]         .

f)      Power of control of Justice Secretary over prosecutors. In Ledesma v. Court of Appeals, supra., it was reiterated that decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who exercises the power of direct control and supervision over prosecutors. Review, as an act of supervision and control by the Justice Secretary, finds basis in the doctrine of exhaustion of administrative remedies. This power may still be availed of despite the filing of a criminal information in Court, and in his discretion, the Secretary may affirm, modify or reverse the resolutions of his subordinates. The Crespo ruling did not foreclose the Justice Secretary’s power of review. Thus, where the Secretary of Justice exercises his power of review only after an information is filed, trial courts should defer or suspend arraignment and other proceedings until the appeal is resolved. Such deferment, however, does not mean that the trial court is ipso facto bound by the resolution of the Secretary of Justice, because jurisdiction, once acquired by the trial court, is not lost despite the resolution of the Secretary of Justice to withdraw the information or to dismiss the case. See also Solar Team Entertainment v. Judge How, G.R. No. 140863, August 22, 2000; Noblejas v. Salas, 67 SCRA 47; Villegas v. Enrile, 50 SCRA 11; David v. Villegas, 81 SCRA 842.

g) The President exercises only the power of general supervision over local governments [Sec. 4, Art. X], i)

 

i)      On the President’s power of general supervision, however, the President can only interfere in the affairs and activities of a local government unit if he or she finds that the latter had acted contrary to law. The President or any of his alter egos, cannot interfere in local affairs as long as the concerned local government unit acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a local government unit is a patent nullity, autonomy, as well as the doctrine of separation of powers of the executive and the legislative departments in governing municipal corporations [Judge Dadole v. Commission on Audit, G.R. No. 125350. December 3, 2002].

ii)     Sec. 187, R.A. 7160, which authorizes the Secretary of Justice to review the constitutionality or legality of a tax ordinance — and, if warranted, to revoke it on either or both grounds — is valid, and does not confer the power of control over local government units in the Secretary of Justice, as even if the latter can set aside a tax ordinance, he cannot substitute his own judgment for that of the local government unit [Drilon v. Lim, 235 SCRA 135],

 

iii)    In Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, the Supreme Court held that Sec. 4, Administrative Order No. 327, which withholds 5% of the Internal Revenue Allotment (IRA) of local government units, is unconstitutional, because the President’s power over local governments is only one of general supervision, and not one of control. A basic feature of local fiscal autonomy is the automatic release of LGU shares in the national internal revenue. This is mandated by no less than the Constitution.

        

4.        The Military Powers [Sec. 18, Art. VII: “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 cases 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. x x x”]

a)   The Commander-in-Chief clause.

i)      “The President shall be the Commander-in-Chief of all armed

forces of the Philippines...” In Gudaniv. Senga, G.R. No. 170165, August 15, 2006, the Senate Committee on National Defense invited several senior AFP officers to testify on matters related to the conduct of the 2004 elections. AFP Chief of Staff General Senga wrote Senator Biazon, chairman of the Senate Committee, that “no approval has been granted by the President to any AFP officer to appear” at the Senate hearing. This notwithstanding, General Gudani and Col. Balutan attended and both testified atthe hearing. On recommendation of the Office of the Provost Marshal General, Gen. Gudani and Col. Balutan were charged with violation of Articles of War 65, on will fully disobeying a superior officer, in relation to Articles of War 97, on conduct prejudicial to good order and military discipline. Gudani and Balutan filed a petition for certiorari and prohibition, asking that the order of PGMA preventing petitioners from testifying be declared unconstitutional, the charges for violation of the Articles of War be quashed, and the respondents be permanently enjoined from proceeding against the petitioners. The Supreme Court dismissed the petition.

ia) The ability of the President to require a military official to secure prior consent before appearing in Congress pertains to a wholly different and independent specie of presidential authority — the Commander-in-Chief powers of the President. By tradition and jurisprudence, these commander- inchief powers are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control.

ib) The vitality, of the tenet that the President is the commander-in-chief of the AFP is most crucial to the democratic way of life, to civil supremacy over the military, and to the general stability of our representative system of government. The Court quoted Kapunan v. De Villa: “The Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier’s personal view on the matter.”

  

ii)      To call out (such) armed forces to prevent or suppress lawless violence, invasion or rebellion.

iia) In David v. Macapagal-Arroyo, supra., the Supreme Court said that the petitioners failed to prove that President Arroyo’s exercise of the calling-out power, by issuing Presidential Proclamation No. 1017, is totally bereft of factual basis. The Court noted the Solicitor General’s Consolidated Comment and Memorandum showing a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the record. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017, calling for military aid. Indeed, judging from the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion.

iia1) Under the calling-out power, the President may summon the armed forces to aid her in suppressing lawless violence, invasion or rebellion; this involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of her powers. She cannot invoke a greater power when she wishes to act under a lesser power.

iia2) General Order No. 5, issued to implement PP 1017, is valid. It is an order issued by the President, acting as commander- in-chief, addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it provides a valid standard — that the military and the police should take only the “necessary and appropriate actions and measures to suppress and prevent acts of lawless violence”. But the words “acts of terrorism” found in the GO, had not been legally defined and made punishable by Congress, and thus, should be deemed deleted from the GO.

iia3) However, PP 1017 is unconstitutional insofar as it grants the President the authority to promulgate “decrees”, because legislative power is peculiarly within the province of Congress. Likewise, the inclusion in PP 1017 of Sec. 17, Art. XII of the Constitution is an encroachment on the legislature’s emergency powers. Sec. 17, Art. XII, must be understood as an aspect of the emergency powers clause, and thus, requires a delegation from Congress.

iib) In Guanzort v. de Villa, 181 SCRA 623, the Supreme Court recognized, as part of the military powers of the President, the conduct of “saturation drives” or “areal target zoning” by members of the Armed Forces of the Philippines.

iic) In Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, the Supreme Court said that when the President calls out the armed forces to suppress lawless violence, rebellion or invasion, he necessarily exercises a discretionary power solely vested in his wisdom. The Court cannot overrule the President’s discretion or substitute its own. The only criterion is that “whenever it becomes necessary”, the President may call out the armed forces. In the exercise of the power, on-the-spot decisions may be necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the armed forces must be done swiftly and decisively if it were to have any effect at all.

iid) In Lacson v. Perez, G.R. No. 147780. May 10, 2001, the Supreme Court said that the President has discretionary authority to declare a “state of rebellion”. The Court may only look into the sufficiency of the factual basis for the exercise of the power.

iie) In Sanlakas v. Reyes, supra., it was held that the President’s authority to declare a “state of rebellion” springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. However, a mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. There is also no basis for the apprehensions that, because of the declaration, military and police authorities may resort to warrantless arrests. As held in Lacson v. Perez, supra., the authorities may only resort to warrantless arrests of persons suspected of rebellion as provided under Sec. 5, Rule 113 of the Rules of Court. Be that as it may, the Court said that, in calling out the armed forces, a declaration of a state of rebellion is an “utter superfluity”. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. “The Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written.”

iie1) It is pertinent to state that there is a distinction between the President’s authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a state of national emergency. While the authority to declare a state of rebellion emanates from her powers as Chief Executive (the statutory authority being Sec. 4, Chapter 2, Book II, Administrative Code of 1997), and the declaration was deemed harmless and without legal significance, in declaring a state of national emergency in PP1017, President Arroyo did not only rely on Sec. 18, Art. VII of the Constitution, but also on Sec. 17, Art. XII of the Constitution, calling for the exercise of awesome powers which cannot be deemed as harmless or without legal significance [David v. Macapagal-Arroyo, supra.].

iii)        The power to organize courts martial for the discipline of the members of the armed forces, create military commissions for the punishment of war criminals. See Ruffy v. Chief of Staff, 75 Phil 875; Kuroda v. Jalandoni 42 0.G.4282.

iiia) But see Olaguer v. Military Commission No. 34, 150 SCRA 144, where it was held that military tribunals cannot try civilians when civil courts are open and functioning. In Quilona v. General Court Martial, 206 SCRA 821, the Supreme Court held that pursuant to R.A. 6975, members of the Philippine National Police are not within the jurisdiction of a military court.

iiib) This is made clear in Navales v. General Abaya, G.R. No. 162318. October 25, 2004, where the Supreme Court said that in enacting R.A. 7055, the lawmakers merely intended to return to the civilian courts jurisdiction over those offenses that have been traditionally within their jurisdiction, but did not divest the military courts jurisdiction over cases mandated by the Articles of War. Thus, the RTC cannot divest the General Court Martial of jurisdiction over those charged with violations of Art. 63 (Disrespect Toward the President, etc.), 64 (Disrespect Toward Superior Officer), 67 (Mutiny or Sedition). 96 (Conduct Unbecoming an Officer and a Gentleman) and 97 (General Articles) of the Articles of War, as these are specifically included as “service-connected offenses or crimes” under Sec. 1, R.A. 7055.

iiic) In Gudani v. Senga, supra., on the issue of whether the court martial could still assume jurisdiction over General Gudani who had been compulsorily retired from the service, the Court quoted from Abadilla v. Ramos, where it was held that an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated.

 

b)     Suspension of the privilege of the writ of habeas corpus.

 

i)             Grounds: Invasion or rebellion, when public safety requires it.         

ii)            Duration: Not to exceed sixty days, following which it shall be lifted, unless extended by Congress.

iii)           Duty of President to report action to Congress: within 48 hours, personally or in writing. 

iv)           Congress may revoke [or extend on request of the President] the effectivity of proclamation byy a majority vote of all its members, voting jointly.

v)            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 [Sec. 18, Art. VII]. See Lartsang v. Garcia, 42 SCRA 448.

vi)           The suspension of the privilege of the writ does not impair the right to bail [Sec. 13, Art. III].

vii)          The suspension applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

viii)         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.

 

c)     Martial Law. “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” [Sec. 18, Art. VII].

 

i)   The constitutional limitations for the suspension of the privilege of the writ are likewise imposed on the proclamation of martial law.

5. The Pardoning Power [Sec. 19, Art. VII: “Except in cases of impeachment, or as otherwise provided in the 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”.]

a)     Definitions:

i)      Pardon. An act of grace which exempts the individual on whom it is bestowed from the punishment that the law inflicts for the crime he has committed.

ii)     Commutation. Reduction or mitigation of the penalty. iii)     Reprieve. Postponement of a sentence or stay of execution.

iv)    Parole. Release from imprisonment, but without full restoration of liberty, as parolee is still in the custody of the law although not in confinement.

v)     Amnesty. Act of grace, concurred in by the legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

b)     Exercise bv the President. Discretionary; may not be controlled by the legislature or reversed by the courts, unless there is a constitutional violation. Thus, it was a legal malapropism for the trial court to interject par. 2, Art. 135, Revised Penal Code, recommending the grant of pardon after the convict shall have served a jail term of 5 years, considering that this was a prosecution under a special law, and that the matter of a pardon is within the President’s exclusive prerogative [People v. de Gracia, supra.].


c)     Limitations on exercise:

i)      Cannot be granted in cases of impeachment [Sec. 19, Art. VII].

ii)     Cannot be granted in cases of violation of election laws without the favorable recommendation of the Commission on Elections [Sec. 5, Art. IX-C].

iii)    Can be granted only after conviction by final judgment. In People v. Salle, 250 SCRA 581, reiterated in People v. Bacang, 260 SCRA 44, the Court declared that the 1987 Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from the judgment of conviction by the trial court. Any application for a pardon should not be acted upon, or the process toward its grant should not begin, unless the appeal is withdrawn. The ruling in Monsanto v. Factoran, 170 SCRA 190, which was laid down under the 1973 Constitution, is now changed by virtue of the explicit requirement under the 1987 Constitution. In People v. Catido, G.R. No. 116512, March 7, 1997, it was held that while the pardon was void for having been extended during the pendency of the appeal, or before conviction by final judgment, and therefore a violation of Sec. 19, Art. VII, the grant of amnesty, applied for by the accused-appellants under Proclamation No. 347, was valid.

iv)    Cannot be granted in cases of legislative contempt (as it would violate separation of powers), or civil contempt (as the State is without interest in the same)                                                                    ,

v)     Cannot absolve the convict of civil liability. See People v. Nacional, G.R. No. 11294, September 7, 1995, where the Court said that the grant of conditional pardon and the subsequent dismissal of the appeal did not relieve the accused of civil liability.

vi)    Cannot restore public offices forfeited [Monsanto v. Factoran, supra.]. But see Sabello v. DECS, 180 SCRA 623, where a pardoned elementary school principal, on considerations of justice and equity, was deemed eligible for reinstatement to the same position of principal and not to the lower position of classroom teacher. On executive clemency re: administrative decisions, see Garcia v. Chairman, Commission on Audit, 226 SCRA 356.

d)     Pardon Classified.

i)      Plenary or partial.

ii) Absolute or conditional.

iia) On conditional pardon, see Torres v. Gonzales, 152 SCRA 273. The rule is reiterated in In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong, supra., that a conditional pardon is 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. Sec. 64 (i), Revised Administrative Code, authorizes the President to order the arrest and reincarceration of such person who, in his judgment, shall fail to comply with the conditions of the pardon. And the exercise of this Presidential judgment is beyond judicial scrutiny.

e) Amnesty.

i)          In People v. Patriarca, G,R. No. 135457, September 29, 2000, it was held that the person released under an amnesty proclamation stands before the law precisely as though he had committed no offense. Par. 3, Art. 89, Revised Penal Code, provides that criminal liability is totally extinguished by amnesty; the penalty and all its effects are thus extinguished.

ii)         In Vera v. People of the Philippines, 7 SCRA 152, it was held that to avail of the benefits of an amnesty proclamation, one must admit his guilt of the offense covered by the proclamation.

iii)        Distinguished from pardon: A - addressed to political offenses, P - infractions of peace of the state; A - classes of persons, P - individuals; A - no need for distinct acts of acceptance, P - acceptance necessary; A - requires concurrence of Congress, P - does not; A - a public act which the courts may take judicial notice of, P - private act which must be pleaded and proved; A - looks backward and puts into oblivion the offense itself, P - looks forward and relieves the pardonee of the consequences of the offense. See People v. Casido, supra.. 6

 

6.    The Borrowing Power. Sec. 20, Art. VII:    “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 limitations as may be provided by law. The Monetary Board shall, within 30 days from the end of every quarter, submit to the Congress a complete report of its decisions 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. ”

 

7.    The Diplomatic Power. Sec. 21, Art. VII: “No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the members of the Senate. ”

a)            In Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351, the Supreme Court distinguished treaties from executive agreements, thus: (i) international agreements which involve political issues or changes of national policy and those involving international arrangements of a permanent character take the form of a treaty; while international agreements involving adjustment of details carrying out well established national policies and traditions and involving arrangements of a more or less temporary nature take the form of executive agreements; and (ii) in treaties, formal documents require ratification, while executive agreements become binding through executive action.

b)            But see Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000, where the Supreme Court said that the Philippine government had complied with the Constitution in that the Visiting Forces Agreement (VFA) was concurred in by the Philippine Senate, thus complying with Sec.-21, Art. VII. The Republic of the Philippines cannot require the United States to submit the agreement to the US Senate for concurrence, for that would be giving a strict construction to the phrase, “recognized as a treaty”. Moreover, it is inconsequential whether the US treats the VFA as merely an executive agreement because, under international law, an executive agreement is just as binding as a treaty.

 

8.    Budgetary Power. Sec. 22, Art. VII: “The President shall submit to Congress within 30 days from the opening of every regular session, as the basis of the general appropriations act, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. ”

                                                                                          ,

9.    The Informing Power. Sec. 23, Art. VII: “The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.”

 

10.  Other powers:

a)            Call Congress to a special session [Sec. 15, Art. VI: “x x x The President may call a special session at any time ],

b)            Power to approve or veto bills [Sec. 27, Art. VI].

c)            To consent to deputation of government personnel by the Commission on Elections [Sec. 2(4), Art. IX-C].

d)            To discipline such deputies [Sec. 2(8), Art. IX-C].

e)            By delegation from Congress, emergency powers [Sec. 23(2), Art. VI], and tariff powers [Sec. 28(2), Art. VI].

f)             General supervision over local governments and autonomous regional governments [Art. X].

i) See Judge Dadole v. Commission on Audit, G.R. No. 125350, December 2, 2002.