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THIRD EXAM READER CONSTITUTIONAL LAW
1. May the President make temporary appointments involving the
members of the Cabinet while Congress in session or not in session?
Distinguish ad interim appointment and appointment in an acting
capacity.
Yes, provided the temporary appointments of cabinet members do not
exceed one (1) year. (SEN. AQUILINO PIMENTEL, et al., vs. EXEC.
SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587)
The temporary appointments are valid. The power to appoint is
essentially executive in nature and the legislature may not interfere
with the exercise of this executive power except in those instances
when the Constitution expressly allows it to interfere. The essence of
an appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office. In case of vacancy
in an office occupied by an alter ego of the President, such as the office
of a department secretary, the President must necessarily appoint an
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 of automatically
appointing the Undersecretary as her alter ego. He must be of the
President’s confidence and provided that the temporary appointment
does not exceed one (1) year.
There is a need to distinguish ad interim appointments and
appointments in an acting capacity. While both are effective upon
acceptance, ad interim appointments are extended only during the
recess of Congress, whereas acting appointments may be extended any
time that there is a vacancy. Moreover, ad interim appointments are
submitted to the Commission on Appointments for confirmation or
rejection; acting appointments are not submitted to the Commission on
appointments. Acting appointments are a way of temporarily
circumventing the need of confirmation by the Commission on
Appointments.
2. What is the “take care power” of the President of the Philippines?
It is the power of the President under Section 17, Art. VII which
provides that The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
3. What is the power of control of the President. Distinguish it from
power of supervision?
“Control” has been defined as “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 test of the latter.” “Supervision” on the other hand means
“overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. (MONDANO VS. SILVOSA)
4. May the President validly require all officers and employees under
the executive department to maintain ID systems and have ID cards?
Yes, in accordance with her power of control under Section 17, Art. VII
of the Constitution. (KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY
EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006) But not for a
national ID system which includes civilians as held in Ople vs. Torres,
supra.
5. What is the doctrine of qualified political agency?
It simply means that “the President is not expected to perform in
person the multifarious executive and administrative functions. The
Office of the Executive Secretary is an auxillary unit which assists the
President. Under our constitutional set-up, the Executive Secretary acts
for and in behalf of the President: and by authority of the President, he
has undisputed jurisdiction to affirm, modify, or even reverse any order
of the Secretary of Natural Resources and other Cabinet Secretaries.
Where the Executive Secretary acts “by authority of the President” his

decision is that of the President. (Lacson-Magallanes Co., Inc. vs. Pano,
21 SCRA 895).
6. What are the differences between the power of the President to
declare martial law or suspend the privilege of the writ of habeas
corpus under the 1987 Constitution and the previous Constitutions?
Under the 1987 Philippine Constitution, such acts of the President may
be reviewed not only by the Supreme Court but also the Congress of
the Philippines. Previously, such would be considered “political
question” which is beyond the review powers of the courts. Likewise,
there is a definite period for the said suspension unlike before and
more importantly, the grounds are only invasion and rebellion WHEN
THE PUBLIC SAFETY REQUIRES IT. 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 suspension of the
privilege of the writ or the extension thereof, and must promulgate its
decision thereon within 30 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 3 days,
otherwise, he shall be released.
7. May the President under the 1987 Constitution validly issue
decrees after declaring a state of national emergency. May she direct
the take-over of business affected with national interest by reason of
the “emergency” which she herself proclaimed?
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In the case of PROF. RANDOLF S. DAVID, et Al VS. GLORIA MACAPAGAL-
ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, et al., G.R. No.
171396, May 3, 2006, it was held that in declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII
of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on
Section 17, Article XII, a provision on the State’s extraordinary power to
take over privately-owned public utility and business affected with
public interest. The Supreme Court ruled that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the authority to
promulgate “decrees.” Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI 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 President Arroyo’s
exercise of legislative power by issuing decrees.
Likewise, the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest,
is also unconstitutional. This requires a delegation from Congress.
8. What are the requisites of judicial review?
Courts may exercise the power of judicial review only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
unconstitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself.
9. When may the courts still validly decide moot and academic cases?
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, [1] so that a declaration
thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case [2] or dismiss it on ground of mootness. The
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“moot and academic” principle is not a magical formula that can [2] Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos.
automatically dissuade the courts in resolving a case. Courts will decide 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of
cases, otherwise moot and academic, if: Appeals, supra.

first, there is a grave violation of the Constitution (Province of Batangas [3] Black’s Law Dictionary, 6th Ed. 1991, p. 941.
vs. Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736).
[4] Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
second, the exceptional character of the situation and the paramount
public interest is involved (Lacson vs. Perez, G.R. No. 147780, May 10,
2001, 357 SCRA 756); POWER TO APPOINT

third, when constitutional issue raised requires formulation of The POWER of appointment is vested in the President by the
controlling principles to guide the bench, the bar, and the public Constitution. Under this provision, there are two kinds of presidential
(Province of Batangas vs. Romulo); and appointments:

fourth, the case is capable of repetition yet evading review (Albaña v.
Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98,
Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577,
Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421
SCRA 656.)
appointments made during the session of Congress or the so-called
regular appointments or nominations, and
appointments made during the recess of Congress which are also
known as ad interim appointments

10. Define locus standi. APPOINTMENT PROCESS

Locus standi is defined as “a right of appearance in a court of justice on
a given question.” [3] In private suits, standing is governed by the
“real-parties-in interest” rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that “every
action must be prosecuted or defended in the name of the real party in
interest.” Accordingly, the “real-party-in interest” is “the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit.” [4] Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
[1] Province of Batangas v. Romulo, G.R. No. 152774, May 27,
2004, 429 SCRA 736.
The regular appointments which are contemplated under the first
paragraph of Article VII, Section 16 of the 1987 Constitution go through
the following stages:
nomination
consent
appointment
acceptance by the nominee
What the President sends to the Commission is just a nomination. After
the Commission has given its consent, the President issues the
appointment. It is only when the last stage has been completed may
the officer concerned take his oath of office.
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The second paragraph of Article VII, Sec. 16, of the 1987 Constitution
also empowers the President to issue appointments while Congress is
not in session. Such appointments are called ad interim appointments,
and it goes through the following stages:

appointment
confirmation

An ad interim appointment is permanent in nature and takes effect

immediately. Thus, one who was issued an ad interim appointment may
immediately enter upon the discharge of his functions.

An ad interim appointment ceases to be valid upon disapproval by the

Commission on Appointments or, if not confirmed, until the next
adjournment of Congress.

OFFICERS SUBJECT TO CONFIRMATION

Under Section 16, Article VII of the 1987 Constitution, there are two
classes of public officers whose appointments need confirmation. These
are:

The heads of the executive departments, ambassadors, other public

ministers and consuls, officers of the armed forces from the rank of
colonel or naval captain; and other officers whose appointments are
vested in the President under the 1987 Constitution. The officers
referred to under these provisions are: The Chairman and Members of
Constitutional Commission such as the Commission on Elections, the
Commission on Audit and the Civil Service Commission; the regular
members of the Judicial and Bar Council.

Ad interim appointment. - "Ad interim appointments do not apply to

appointments solely for the President to make, i.e., without the
participation of the Commission on Appointments."

MARY CONCEPCION BAUTISTA vs. SENATOR JOVITO R. SALONGA,
COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL
AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, EN BANC, G.R. No. 86439 April 13, 1989.
“x x x.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE
COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE
CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14
JANUARY 1989
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without the participation of the Commission on Appointments. Ad
interim appointments, by their very nature under the 1987
Constitution, extend only to appointments where the review of the
Commission on Appointments is needed. That is why ad interim
appointments are to remain valid until disapproval by the Commission
on Appointments or until the next adjournment of Congress; but
appointments that are for the President solely to make, that is, without
the participation of the Commission on Appointments, cannot be ad
interim appointments.
x x x.”

Under this heading, we will assume, ex gratia argumenti, that the

Executive may voluntarily allow the Commission on Appointments to
exercise the power of review over an appointment otherwise solely
vested by the Constitution in the President. Yet, as already noted, when
the President appointed petitioner Bautista on 17 December 1988 to
the position of Chairman of the Commission on Human Rights with the
advice to her that by virtue of such appointment (not, until confirmed
by the Commission on Appointments), she could qualify and enter upon
the performance of her duties after taking her oath of office, the
presidential act of appointment to the subject position which, under
the Constitution, is to be made, in the first place, without the
participation of the Commission on Appointments, was then and there
a complete and finished act, which, upon the acceptance by Bautista, as
shown by her taking of the oath of office and actual assumption of the
duties of said office, installed her, indubitably and unequivocally, as the
lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14
January 1989 to which an appointment could be validly made. In fact,
there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment

or re-appointment on 14 January 1989 was an ad interim appointment,
because, under the Constitutional design, ad interim appointments do
not apply to appointments solely for the President to make, i.e.,