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Political Law (Constitutional Law) – ARTICLE VII.  THE EXECUTIVE DEPARTMENT

Political Law (Constitutional Law) – Article VII

ARTICLE VII.  THE EXECUTIVE DEPARTMENT

Section 1.  EXECUTIVE POWER

Scope:

1)    Executive power is vested in the President of the Philippines.

2)    The scope of this power is set forth in Art. VII of the Constitution.  But this power is not limited to those set forth therein.  The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution.  EXAMPLE:  The President is immune from suit and criminal prosecution while he is in office.

3)    Privilege of immunity from suit is personal to the President and may be invoked by him alone.  It may also be waived by the President, as when he himself files suit.

4)    BUT The President CANNOT dispose of state property unless authorized by law.

Section 2.  QUALIFICATIONS

1)    Natural-born citizen of the Philippines

2)    Registered voter;

3)    Able to read and write;

4)    At least 40 years old on the day of election

5)    Philippine resident for at least 10 years immediately preceding such election.

Note:  The Vice-President has the same qualifications & term of office as the President.  He is elected with & in the same manner as the President.  He may be removed from office in the same manner as the President.

Section 4.  MANNER OF ELECTION/ TERM OF OFFICE

Manner of Election

1)    The President and Vice-President shall be elected by direct vote of the people.

2)    Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President.

3)    Not later than 30 days after the day of the election, the certificates shall be opened in the presence of both houses of Congress, assembled in joint public session.

4)    The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes.

5)    The person receiving the highest number of votes shall be proclaimed elected.

6)    In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately.  In case this results in a deadlock, the Senate President shall be the acting President until the deadlock is broken.

7)    The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose.

Term of Office

1)    President

a)    6 years beginning at noon on 30 June immediately following the election and ending at noon on the same day 6 years later.

b)    Term limitation: Single term only; not eligible for any reelection.

c)    Any person who has succeeded as President, and served as such for more than 4 years shall NOT be qualified for election to the same office at any time.

2)    Vice-President:

a)    6 years, starting and ending the same time as the President.

b)    Term limitation: 2 successive terms.

c)    Voluntary renunciation of the office for any length of time is NOT an interruption in the continuity of service for the full term for which the Vice-President was elected.

Section 6.  SALARIES AND EMOLUMENTS

1)    Official salaries are determined by law.

2)    Salaries cannot be decreased during the TENURE of the President and the Vice-President.

3)    Increases take effect only after the expiration of the TERM of the incumbent during which the increase was approved.

4)    Prohibited from receiving any other emolument from the government or any other source during their TENURE

Sections 7-12, PRESIDENTIAL SUCCESSION

1. Vacancies at the beginning of the term

2.  Vacancies after the office is initially filled:

3)    Vacancy in office of Vice-President during the term for which he was elected:

a)    President will nominate new VP from any member of either House of Congress.

b)    Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately.  (Nominee forfeits seat in Congress)

4)    Election of President and Vice-President after vacancy during tem

a)     Congress shall convene 3 days after the vacancy in the office of both the President and the VP, without need of a call.  The convening of Congress cannot be suspended.

b)     Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP.  The special election cannot be postponed.

c)     The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law.

d)     The 3 readings for the special law need not be held on separate days.

e)     The law shall be deemed enacted upon its approval on third reading.

BUT:  No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

5)    Temporary disability of the President:

The temporary inability of the President to discharge his duties may be raised in either of two ways:

a)    By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House.  In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary.

b)    When a majority of the Cabinet members transmit to the Senate President and the Speaker their written declaration.

(i)            The VP will immediately be Acting President.

(ii)           BUT:  If the President transmits a written declaration that he is not disabled, he reassumes his position.

(iii)          If within 5 days after the President re-assumes his position, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue.  In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call.

(iv)         Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

6)    Presidential Illness:

a)    If the President is seriously ill, the public must be informed thereof.

b)    Even during such illness, the National Security Adviser, the Secretary of Foreign Affairs, and the Chief of Staff of the AFP are entitled to access to the President

Section 13.  DISQUALIFICATIONS

Sections 14-16.  POWER TO APPOINT

Principles:

1)     Since the power to appoint is executive in nature, Congress cannot usurp this function.

2)     While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative.

Scope:

The President shall appoint the following:

1)    Heads of executive departments (CA confirmation needed):

2)    Ambassadors, other public ministers, and consuls (CA confirmation needed).

3)    Officers of AFP from rank of colonel or naval captain (CA confirmation needed).

4)    Other officers whose appointment is vested in him by the Constitution (CA confirmation needed), such as:

a)    Chairmen and members of the COMELEC, COA and CSC.

b)    Regular members of the Judicial and Bar Council.

c)    The Ombudsman and his deputies;

d)    Sectoral representatives in Congress.

• B. President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation.

5)    All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint.

a)     This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution.

b)     Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions.

c)     BUT:  Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor).

d)      ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction.  The President cannot extend the scope of the CA’s power as provided for in the Constitution.

Procedure:

1)    CA confirmation needed:

a)    Nomination by President

b)    Confirmation by CA

c)    Appointment by President; and

d)    Acceptance by appointee.

Note:  At any time before all four steps have been complied with, the President can withdraw the nomination/appointment.

2)    No CA confirmation:

a)    Appointment; and

b)    Acceptance.

Note:  Once appointee accepts, President can no longer withdraw the appointment.

Ad-interim appointments:

1)    When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation.

2)    These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress.

3)    Appointments to fill an office in an ‘acting’ capacity are NOT ad-interim in nature and need no CA approval.

Appointments by an Acting President:

These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office.

Limitation

1)    2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments.  This is to prevent the practice of ‘midnight appointments.”

2)    EXCEPTION:

a)    Can make TEMPORARY APPOINTMENTS

b)    To fill EXECUTIVE POSITIONS;

c)    If continued vacancies therein will prejudice public service or endanger public safety.

Section 17.  Power of Control and Supervision

Power of Control:

The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate.  Thus, the President exercises control over all the executive departments, bureaus, and offices.

The President’s power over government-owned corporations comes not from the Constitution but from statute.  Hence, it may be taken away by statute.

Qualified Political Agency:

1)    Since all executive and administrative organizations are adjuncts of the Executive Department, the heads of such departments, etc. are assistants and agents of the President.

2)    Thus, generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President.

3)    Exception:  If the acts are disapproved or reprobated by the President.

4)    Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies.

5)    Qualified political agency does NOT apply if the President is required to act in person by law or by the Constitution.  Example:  The power to grant pardons must be exercised personally by the President.

Disciplinary Powers:

1)    The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control.

2)    BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.

Power of Supervision:

1)    This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates.

2)    The power of the president over local government units is only of general supervision.  Thus, he can only interfere with the actions of their executive heads if these are contrary to law.

3)    The execution of laws is an OBLIGATION of the President.  He cannot suspend the operation of laws.

4)    The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision.

Section 18.  COMMANDER-IN-CHIEF POWERS

Scope:

1)    The President is the Commander-in-Chief of the Armed Forces.

2)    Whenever necessary, the President may call out the AFP to PREVENT or SUPPRESS:

a)    Lawless violence;

b)    Invasion; or

c)    Rebellion.

3)    The President may also:

a)    Suspend the privilege of the writ of habeas corpus; and

b)    Proclaim a state of martial law.

Suspension of the privilege of the writ of habeas corpus and declaring martial law;

1. Grounds
2. Invasion or
3. Rebellion; and
4. Public safety requires it.
5. The invasion or rebellion must be ACTUAL and not merely imminent.
6. Limitations:
7. Suspension or proclamation is effective for only 60 days.
8. Within 48 hours from the declaration or suspension, the President must submit a report to Congress.
9. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation.
10. In the same manner, at the President’s initiative, Congress can extend the same for a period determined by Congress if:

i.  Invasion or rebellion persist and

ii.  Public safety requires it.

NOTE:  Congress CANNOT extend the period motu propio.

1. Supreme Court review:

i.  The appropriate proceeding can be filed by any citizen.

ii.  The SC can review the FACTUAL BASIS of the proclamation or suspension.

iii.  Decision is promulgated within 30 days from filing.

1. Martial Law does NOT:

i.  Suspend the operation of the Constitution.

ii.  Supplant the functioning of the civil courts or legislative assemblies.

iii.  Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and

iv.  Automatically suspend the privilege of the writ.

1. Suspension of privilege of the writ:

i.  Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ii.  Anyone arrested or detained during suspension must be charged within 3 days.  Otherwise he should be released.

Note:  While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not.  Thus, troop deployments in times of war is subject to the President’s judgment and discretion.

Section 19: EXECUTIVE CLEMENCY

Scope:

1.)    The President may grant the following: [ Pa R C Re]

1. Pardons (conditional or plenary)
2. Reprieves
3. Commutations
4. Remittance of fines and forfeitures

2.)    These may only be granted AFTER conviction by final judgment.

3.)    ALSO: The power to grant clemency includes cases involving administrative penalties.

4.)    Where a conditional pardon is granted, the determination of whether it has been violated rests with the President.

Limitations:

1.)    As to scope:

Cannot be granted:

a.)    Before conviction

b.)    In cases of impeachment

c.)    For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC

d.)    In cases of civil or legislative contempt

2.)    As to effect:

a.)    Does not absolve civil liabilities for an offense.

b.)    Does not restore public offices already forfeited, although eligibility for the same may be restored.

Amnesty:

1.)    An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

2.)    President alone CANNOT grant amnesty.  Amnesty needs concurrence by a majority of all the members of Congress.

3.)    When a person applies for amnesty, he must admit his guilt of the offense which is subject to such amnesty.  If his application is denied, he can be convicted based on this admission of guilt.

4.)    Amnesty V. Pardon

Section 20. Power to Contract or Guarantee Foreign Loans

Limitations:

(1) 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

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

Section 21. Foreign Relations Powers include:

(1)  Power to negotiate treaties and other international agreements

(a)  BUT: Such treaty of international agreement must be concurred in by at least 2/3 of all Senators in order to be valid and effective in our country.

(b)  Options of Senate when a treaty is submitted for its approval:

(i)                 Approve with 2/3 majority;

(ii)               Disapprove outright; or

(iii)             Approve conditionally, with suggested amendments.

(c)  If treaty is not re-negotiated, no treaty

(d)  If treaty is re-negotiated and the Senate’s suggestions are incorporated, the treaty will go into effect without need of further Senate approval.

Note:  While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

Note: The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition.

(e)  Conflict between treaty and municipal law.

(i)  Philippine court:

The later enactment will prevail, be it treaty or law, as it is the latest expression of the State’s will.

(ii)  International tribunal

Treaty will always prevail.  A State cannot plead its municipal law to justify noncompliance with an international obligation.

(2)  Power to appoint ambassadors, other public ministers, and consuls.

(3) Power to receive ambassadors and other public ministers accredited to the Philippines.

(4)  Power to contract and guarantee foreign loans on behalf of the Republic

(5)  Power to deport aliens

(a)    This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards the grounds for deportation.

(b)   In the absence of any legislative restriction to authority, the President may still exercise this power.

(c)    The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing.

BUT:    The alien is not entitled to bail as a matter of right.

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations

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