BAR 2021

POLITICAL LAW

EXECUTIVE
Handout No. 003


REMINDERS IN EXECUTIVE

VI. Executive Department

A. Qualifications, Election, Term of Office and Succession of the President and

VP

Q: Nadine Lustre laments using Filipino resilience to ‘hide the real problem.’
Thinking that our country deserves so much better, she wants to run as a
President in the next elections. You are a new lawyer and her neighbor, so
she approaches you and asks you the following:

(a) What are the qualifications to become a President?

(b) Assuming she has all the qualifications and she wins the elections, how
long is her term of office? Can she be reelected?
(c) Suppose, previously she has succeeded the previous president for five
years, is she qualified for the election to the same office at any time?
(d) In relation to the previous question, would your answer be still the same
if she succeeded the previous president for only a year?
(e) Nadine also wants to know what happens in case two or more shall
have an equal number of votes, how will the proclamation be made?
(f) Nadine is also curious as to what happens in case of death, permanent
disability, removal of office, or resignation of the President/Vice
President/President of the Senate/Speaker of the House. Explain briefly.
A: (a) Under Section 2 of Article VII of the Constitution, the following are the
qualifications to become a President:
(1) a natural-born citizen of the Philippines,
(2) a registered voter,
(3) able to read and write,
(4) at least forty years of age on the day of the election, and
(5) a resident of the Philippines for at least ten years immediately preceding such
election.

(b) Assuming she wins, Nadine has six years as term of office and no eligibility of
any reelection. Section 4 of Article VII of the Constitution provides that the duly
elected and proclaimed President shall have a term of six years which shall begin
at noon on the thirtieth day of June next following the day of the election and
shall end at noon of the same date six years thereafter. The President shall not
be eligible for any reelection.

(c) In the event that Nadine succeeds the previous president for five years, she is
not qualified for the election of such office. According to Section 4 of Article VII of
the Constitution, it states that 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. Since she has already served as President by
succession for five years, she will be disqualified for election to the same office.

(d) No, my answer will be different since in this instance, she is now qualified for
election to the office she served by succession. No less than the Constitution
provides that 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


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any time. Here, she would have only served being as a President for only a year
making her qualified for election to the same office.

(e) In the event that there would be two or more shall have an equal number of
votes, the person who shall be proclaimed as elected shall be chosen by the vote
of a majority of all the Members of both Houses of the Congress, voting
separately in accordance to Section 4 of Article VII of the Constitution.

(f) The Constitution under Section 8 of Article VII provides that in case of death,
permanent disability, removal from office, or resignation of the President, the
Vice-President shall become the President to serve the unexpired term. In case
of death, permanent disability, removal from office, or resignation of both the
President and Vice-President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice-President shall have been elected and
qualified.

The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have been elected and qualified,
and be subject to the same restrictions of powers and disqualifications as the
Acting President.

B. Privileges, Inhibitions and Disqualifications

Q: What are the rules on executive immunity?

A: A. (Rules on immunity during tenure)

(1) The President is immune from suit during his tenure. (In re: Bermudez, G.R.
No. 76180, Oct. 24, 1986)

(2) An impeachment complaint may be filed against him during his tenure. (Art.
XI)

(3) The President may not be prevented from instituting suit. (Soliven v.
Makasiar, G.R. No. 82585, Nov. 14, 1988)

(4) There is nothing in our laws that would prevent the President from waiving the
privilege. The President may shed the protection afforded by the privilege.
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988)

(5) Heads of departments cannot invoke the President’s immunity. (Gloria v.

Court of Appeals, G.R. No. 119903, Aug. 15, 2000)

B. (Rule on immunity after tenure)

Once out of office, even before the end of the 6-year term, immunity for non-
official acts is lost. Such was the case of former President Joseph Estrada.
Immunity cannot be claimed to shield a non-sitting President from prosecution for
alleged criminal acts done while sitting in office. (Estrada v. Desierto, G.R. Nos.
146710-15, Mar. 2, 2001)

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The 1987 Constitution does not provide for presidential immunity from
suit. Unlike congressional immunity, presidential immunity is not expressly
stated nor prescribed by the Constitution. The basis for the immunity is only
found in jurisprudence, both in the U.S. and the Philippines, which, by virtue of
Article 8 of the Civil Code, “forms a part of the legal system of the Philippines.”

The rationale for the grant to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office-holder’s time, also
demands undivided attention. [Soliven vs Judge Makasiar (1988)]

The privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office, not by any other
person in the President’s behalf. Thus, an accused in a criminal case in which
the President is complainant cannot raise the presidential privilege as a defense
to prevent the case from proceeding against such accused.

Q: The Philippine President Rowena and the PNP Chief Rockie are close
friends. It was PNP Chief Rockie’s birthday, and the President wanted to
throw him a surprise house party. He called the Greenwich Hotline to order
several pizzas and lasagnas for delivery. Upon delivery, he received the
items ordered however he refuses and fails to pay the delivery man. The
delivery man returned to the Greenwich branch to tell the manager about
what happened. Furious of what happened, the manager asked for help
from their legal team if it is possible to sue the President for the collection
of sum of money.

A. How should the legal team respond to the manager?

B. Briefly explain to the manager the difference between the words “term of
office” and “tenure incumbent.”
A: A. Any civil or criminal suit against the President during his tenure will not
prosper.

The Supreme Court held that the President is immune from any civil or criminal
case during his tenure and the only way to make him accountable to the people
is through impeachment; that such absolute immunity established by
jurisprudence is based on public policy considerations. (David v. Macapagal-
Arroyo,G.R. No. 171396, May 3, 2006, 489 SCRA 160 cited in De Lima v.
Duterte, G.R. No. 227635 [Resolution], October 15, 2019) Further ruled by the
Court is that the immunity of the President from suit is concurrent only with his
tenure as an incumbent and not his term. (Estrada v. Desierto, GR No. 146710-
15, April 3, 2001)

Applying the foregoing to this case, the manager’s plans to initiate a collection
suit against President Rowena would not prosper if such is instituted while she is
still an incumbent president due to the presidential immunity from suit sourced
from case laws. In other words, the ordinary collection for the sum of money will
only be appropriate when the Chief Executive already ended her tenure.

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B. The term of an office is distinguished from the tenure incumbent as follows:

The term means the time during which the officer may claim to hold office as of
right, and fixes the interval after which the several incumbents shall succeed one
another. The tenure represents the term during which the incumbent actually
holds the office. The term of office is not affected by the hold-over. The tenure
may be shorter than the term for reasons within or beyond the power of the
incumbent. (Topacio Nueno et al. vs. Angeles, 76 Phil., 12, 21-22)

Q: What is executive privilege?

A: It is the power of the President to withhold certain types of information from the
public, the courts, and the Congress. These include:
1. Conversations and correspondence between the President and the public
official.
2. Military, diplomatic and other national security matters which in the interest of
national security should not be divulged.
3. Information between inter-government agencies PRIOR to conclusion of
treaties and executive agreements.
4. Discussion in close-door Cabinet meetings.
5. Matters affecting national security and public order.

Q: How is the privilege invoked?

A: Executive privilege must be invoked in relation to specific categories of
information and not to categories of persons.

While executive privilege is a constitutional concept, a claim thereof may be valid

or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact of being executive officials.
(Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Q: Who can invoke executive privilege?

A: (1) President - the privilege being an extraordinary power, it must be wielded
only by the highest official in the executive department. Thus, the President may
not authorize her subordinates to exercise such power.

(2) Executive Secretary, upon proper authorization from the President. The
Executive Secretary must state that the authority is “By order of the President,”
which means he personally consulted with her.

Q: When and how can an executive official other than the President and
Executive Secretary invoke the executive privilege?
A: When an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded
reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the
matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the official to
appear before Congress and may then opt to avail of the necessary legal means
to compel his appearance. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

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Q: Sec. 1 of EO 464 required all heads of departments in the Executive branch

to secure the consent of the President before appearing in an inquiry
conducted by either House of Congress, pursuant to Art. VI, sec. 22 of the
Constitution. Does this section applies only question hour? Is it valid?
A: Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that issuances
must be interpreted, as much as possible, in a way that will render it
constitutional.

The requirement then to secure presidential consent under Section 1, limited as it

is only to appearances in the question hour, is valid on its face. For under
Section 22, Article VI of the Constitution, the appearance of department heads in
the question hour is discretionary on their part. (Senate v. Ermita, G.R. No.
169777, April 20, 2006)

Q: Distinguish “presidential communication privilege” from “deliberative

process privilege.”
A: Jurisprudence laid down 2 kinds of executive privilege which are presidential
communication privilege and deliberative process privilege (Neri vs. Senate
Committee on Accountability of Public Officers and Investigations, 549 SCRA 77
[2008]).

Presidential Communication Privilege: pertains to the communications,

documents or other materials that reflect presidential decision-making and
deliberations and that the President believes should remain confidential. It
applies to decision-making of the President. It is based on separation of powers.
It is always subject to a greater scrutiny.

Deliberative Process Privilege: includes advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and
policies are formulated. Based on common law privileged it applies to decision-
making of executive officials and not subject to greater scrutiny. (2010 Bar,
Question No. VIII)

Q: The House of Representatives’ House Committee conducted an inquiry on

the Japan- Philippines Economic Partnership Agreement (JPEPA), then
being negotiated by the Philippine Government. The House Committee
requested DTI Usec. Aquino to furnish it with a copy of the latest draft of
the JPEPA. Aquino replied that he shall provide a copy thereof once the
negotiations are completed.

A petition was filed with the SC which seeks to obtain a copy of the
Philippine and Japanese offers submitted during the negotiation process
and all pertinent attachments and annexes thereto. Aquino invoked
executive privilege based on the ground that the information sought
pertains to diplomatic negotiations then in progress. On the other hand,
Akbayan for their part invoke their right to information on matters of public
concern.

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Are matters involving diplomatic negotiations covered by executive

privilege?
A: Yes. It is clear that while the final text of the JPEPA may not be kept perpetually
confidential, the offers exchanged by the parties during the negotiations continue
to be privilege even after the JPEPA is published. Disclosing these offers could
impair the ability of the Philippines to deal not only with Japan but with other
foreign governments in future negotiations. (AKBAYAN Citizen’s Action Party v.
Aquino, G.R No. 170516, July 16, 2008)

Q: What are the prohibitions attached to the President, Vice-President,

Cabinet Members, and their deputies or assistants?
A: The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants, unless otherwise provided in this Constitution—

(1) Shall not receive any other emolument from the government or any other
source (Sec. 6, Art. VII)

(2) Shall not hold any other office or employment during their tenure unless:

a. Otherwise provided in the Constitution (e.g. VP can be appointed as a

Cabinet Member; Sec. of Justice sits on Judicial and Bar Council)

b. The positions are ex-officio and they do not receive any salary or other
emoluments therefor (e.g. Sec. of Finance is head of Monetary Board)

(3) Shall not practice, directly or indirectly, any other profession during their
tenure

(4) Shall not participate in any business

(5) Shall not be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government, including GOCCs

(6) Shall avoid conflict of interest in conduct of office

(7) Shall avoid nepotism (Sec. 13, Art. VII)

C. Powers of the President

Q: What are the powers of the President? Explain each briefly.

A: The Powers of the President of the Philippines are the following:

(1) Executive power. This power by the Constitution under Section 1 of Article
VII, which states that the executive power shall be vested in the President of the
Philippines; and such vested power, carries with it a duty as stated under Section
17 of Article VII, which states that The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

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This is the power to enforce and administer laws. The presidential power of
control over the Executive Branch of Government is a self executing provision of
the Constitution and does not require statutory implementation, nor may its
exercise be limited, much less withdrawn, by the legislature. [Ocampo v.
Enriquez, G.R. No. 225973 (2016)].

(2) Power of appointment. The Legislative can create office, but only the
Executive can fill it; Congress cannot circumvent this by setting very narrow
qualifications, such that only one person is qualified to hold office [Flores v.
Drilon, G.R. No. 104732(1993)].

(3) Power of control. The President may (a) nullify, modify judgments of
subordinates [Sec. 17, Art. VII]; (b) undo or redo actions of subordinates; and (c)
lay down rules for the performance of subordinates’ duties.

(4) Power of Supervision. This refers to the oversight function. The Executive
must see to it that rules, which it did not make, are followed.

(5) Commander in Chief Powers. These powers pertain to the President as a

Commander in Chief as provided under Sec. 18, Art. VII of the Constitution:
a. Call Out Power
b. Suspension of the privilege of the Writ of Habeas Corpus
c. Martial law

(6) Power of Legislation

a. Veto Power
b. Power to Declare Emergency

(7) Diplomatic Powers: Including Power to Enter into Treaties

(8) Residual Power. To protect the general welfare of people; founded on duty
of President as steward of the people; includes powers unrelated to execution of
any provision of law [Marcos v. Manglapus, G.R. No. 88211(1989)]

(9) Other Powers

a. Power to Pardon: Reprieve, commute, pardon, remit fines and
forfeitures after final judgment stated under Sec. 19(1), Art. VII
b. Power to Grant Amnesty: With concurrence of majority of all
members of Congress
c. Borrowing Power: Contract or guarantee foreign loans with
concurrence of Monetary Board under Sec. 20, Art. VII
d. d. Budgetary Power: Submit to congress budget of bills and
expenditures pursuant to Sec. 22, Art. VII

(10) Informing Power. Address Congress during opening of session, or at any

other time under Sec. 23, Art. VII

Q: What is the scope of the appointing power of the President?

A: Under Sec. 16, Art. VII of the 1987 Constitution, there are four groups of officers
whom the President shall appoint:


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(1) First, (a) the heads of the executive departments; (b) ambassadors, other
public ministers and consuls; (c) officers of the Armed Forces from the rank of
colonel or naval captain; and (d) other officers whose appointments are
vested in him in the Constitution, such as the chairman and members of the
Commission on Elections, Civil Service Commission, the Commission on
Audit. These appointments require the consent of the Commission on
Appointments (COA).
(2) Second, all other officers of the government whose appointments are not
otherwise provided by law;
(3) Third, those whom the President may be authorized by law to appoint; and
(4) Fourth, officers lower in rank whose appointments Congress may by law vest
in the President alone.
NOTE: Only appointments in the first group require the consent of the COA. The
second, third and fourth groups do not require such consent.

Q: What are the limitations of the above appointing power of the President?
A: (1) Appointments extended by an acting President shall remain effective, unless
revoked by the elected President within ninety days from his assumption or re-
assumption of office. (Sec. 14, Art. VII, 1987 Constitution)
(2) Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancy
therein will prejudice public service or endanger public safety. (Sec. 15, Art. VII,
1987 Constitution)
(3) The President can only appoint members of the Supreme Court and judges of
lower courts from among the list of at least three members for each position
prepared and recommended by the Judicial and Bar Council (Section 9, Article
VII, Constitution).
(4) The President cannot appoint officials and employees of the Judiciary, as the
power to appoint them belongs to the Supreme Court in accordance with the civil
service law (Section 5(6) Article VIII, Constitution). Neither can he appoint
officials and employees of the Civil Service Commission, Commission on
Elections and Commission on Audit, as the power to appoint them belongs to
these respective commissions in accordance with the civil service law (Section 4,
Article IX-A, Constitution).
(5) The President can only appoint the Ombudsman and deputies persons from
among the list of at least six nominees prepared and recommended by the
Judicial and Bar Council (Section 9, Article XI, Constitution).
(6) The officials and employees of the Office of the Ombudsman, other than the
deputies, shall be appointed by the Ombudsman according to the civil service
law, and not by the President (Section 6, Article XI, Constitution).
(7) The Commission on Human Rights shall appoint its officers and employees in
accordance with law, precluding the President from doing so (Section 17 (10),
Article XIII, Constitution).
(8) Congress may, by law, vest the appointment of lower in rank in the courts, or
in the heads of departments, agencies, commissions or boards (Section 16,
Article VII, Constitution).

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(9) An elective official may be appointed by the President to another position, but
he has to vacate his elective post. He cannot be appointed to another position
and, at the same time, maintain his elective position. On the other hand, an
appointive official may be appointed or designated by the President to another
appointive position, thus occupying two or more appointive positions, if a specific
law so allows or where his primary functions so require in an ex officio capacity
(Flores v. Drilon, 223 SCRA 268[1993]).
(10) Except as may be expressly provided by the Constitution, (i.e., the Vice
President may be appointed Cabinet member) Section 13, Article VII of the
Constitution prohibits the President from appointing a Cabinet member, any of
his deputies or assistants to another position(s). However, such constitutional
provision does not prohibit these executive officials from holding additional
positions in ex-officio capacities and as required by their primary functions but
without additional compensation or per diems in whatever form (De la Cruz v.
COA, GR 138489, November 29, 2001).
(11) Administrative Code of 1987 (Section 31, Executive Order 292) expressly
grants the President continuing authority to reorganize the Office of the President
in order to achieve simplicity, economy and efficiency.
(12) The President, during his tenure, cannot appoint his or her spouse and
relatives by consanguinity or affinity within the fourth civil degree as: a) Members
of the Constitutional Commission b) Ombudsman c) Secretaries or
Undersecretaries d) Chairman or heads of bureaus of offices, including
government-owned-or-controlled corporations and their subsidiaries (Section 13,
Article VII, Constitution)

Q: What are the four groups of officers whom the President shall appoint?
A: There are four (4) groups of officers whom the President shall appoint:

First, 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 him in this
Constitution;

Second, all other officers of the Government whose appointments are not
otherwise provided for by law;

Third, those whom the president may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest
in the President alone. (Sarmiento III v. Mison, GR No. 79974,December 17,
1987)

Q: Distinguish a temporary appointment from a permanent appointment.

A: A permanent appointment is extended to a person possessing the requisite
qualifications, including the eligibility required, for the position. A permanent
appointee enjoys the constitutional guarantee of security of tenure. In the
absence of appropriate eligibles and when it becomes necessary in the public
interest to fill a vacancy, a temporary appointment shall be issued to a person
who meets all the requirements for the position to which he is being appointed
except the appropriate civil service eligibility; provided, that such temporary
appointment shall not exceed twelve months, but the appointee may be replaced
sooner if a qualified civil service eligible becomes available.

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Q: Distinguish an ad interim appointment from an appointment in an acting

capacity.
A:

AD INTERIM APPOINTMENT APPOINTMENT IN AN ACTING

CAPACITY

Made if Congress is not in session Made at any time there is vacancy,

i.e., whether Congress is in session
or not

Requires confirmation of CA Does not require confirmation of CA

Permanent in nature Temporary in nature

Appointee enjoys security of tenure Appointee does not enjoy security

of tenure

Note: An ad interim appointment 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.

Q: A was a career Ambassador when he accepted an ad interim appointment

as Cabinet Member. The Commission on Appointments bypassed his ad
interim appointment, however, and he was not re- appointed. Can he re-
assume his position as career ambassador?
A: NO. an interim appointment is an appointment made by the President during the
recess of Congress and it is a permanent appointment and shall continue to hold
such permanency until disapproved by the Commission on Appointment or until
the next adjournment of congress.

If the appointment is bypassed and the appointee was not re-appointed he can
no longer re-assume as career ambassador because by accepting an ad interim
appointment he is deemed to have waived his right to hold his old position as ad
interim appointment is permanent. (2010 Bar, Question No. XXIII)

Q: Is the act of the President in appointing acting secretaries constitutional,

even without the consent of the Commission on Appointments while
Congress is in session?
A: Yes. 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. The office of a department secretary may become vacant while
Congress is in session. Since a department secretary is the alter ego of the
President, the acting appointee to the office must necessarily have the
President’s confidence. (Pimentel v. Ermita, G.R. No. 164978, October 13, 2005)

Q: Sec. 15, Art. VII of the 1987 Constitution prohibits the President from
making appointments two months before the next presidential elections
and up to the end of his term. To what types of appointment is said
prohibition directed against?

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A: Section 15, Article VII is directed against two types of appointments:

(1) Those made for buying votes – refers to those appointments made within two
months preceding the Presidential election and are similar to those which are
declared election offenses in the Omnibus Election Code; and

(2) Those made for partisan considerations – consists of the so-called “midnight”
appointments. (In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta,
A.M. No. 98-5-01-SC Nov. 9, 1998)

Q: Does an outgoing President have the power to appoint the next Chief
Justice within the period starting two months before the presidential
elections until the end of the presidential term? Discuss thoroughly.
A: Yes. Article VII is devoted to the Executive Department, and, among others, it
lists the powers vested by the Constitution in the President. The presidential
power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the President upon
the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the President’s
or Acting President’s term does not refer to the Members of the Supreme Court.

Given the background and rationale for the prohibition in Section 15, Article VII,
there is no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and screening of
candidates for judicial positions to the unhurried and deliberate prior process of
the JBC ensured that there would no longer be midnight appointments to the
Judiciary. (De Castro v. JBC, G.R. No. 191002, Mar. 17, 2010)

Q: On 3 May 1992, while Congress is on a short recess for the elections, the
president appoints Renato de Silva to the rank of General (4-star) in the
Armed Forces. She also designates him as Chief of Staff of the AFP. He
immediately takes his oath and assumes that office, with the rank of 4-star
General of the AFP.

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When Congress resumes its session on 17 May 1992, the Commission on

Appointments informs the Office of the President that it has received from
her office only the appointment of De Silva to the rank of 4-star General and
that unless his appointment to the Office of the Chief of Staff of the AFP is
also submitted, the Commission will not act on the matter.

The President maintains that she has submitted to the Commission all that
the Constitution calls for.

(a) Who is correct?

(b) Did Gen. de Silva violate the Constitution in immediately assuming
office prior to a confirmation of his appointment?
(c) Are the appointment and designation valid?
A: (a) The President is correct. Under Presidential Decree No. 360, the grade of
four-star general is conferred only upon the Chief of Staff. Hence, the
appointment of Renato de Silva as a four-star general must be deemed to carry
with it his appointment as Chief of Staff of the AFP,

(b) Gen. Renato de Silva did not violate the Constitution when he immediately
assumed office before the confirmation of his appointment, since his appointment
was an ad interim appointment. Under Article VI I, Sec. 16 of the Constitution,
such appointment is immediately effective and is subject only to disapproval by
the Commission on Appointments or as a result of the next adjournment of the
Congress.

(c) The appointment and designation of Gen. de Silva are valid for reasons given
above. However, from another point of view they are not valid because they were
made within the period of the ban for making appointments. Under Article VII,
Sec. 15 the President is prohibited from making appointments within the period of
two (2) months preceding the election for President and Vice President. The
appointment in this case will be made on May 3, 1992 which is just 8 days away
from the election for President and Vice President on May 11, 1992. For this
reason the appointment and designation of Gen. de Silva are after all invalid.
(1991 Bar, Question No. 3)

Q: Define the President’s power of control.

A: Section 10, paragraph 1, Article VII, of the Constitution provides: "The President
shall have control of all the executive departments, bureaus, or offices, exercise
general supervision over all local governments as may be provided by law, and
take care that the laws be faithfully executed." Under this constitutional provision
the President has been invested with the power of control of all the executive
departments, bureaus, or offices. (Mondano v. Silvosa, G.R. No. L-7708, [May
30, 1955], 97 PHIL 143-150)

Q: A complaint for rape and concubinage was filed against Mayor X before the
Presidential Complaints and Action Committee. When the Assistant
Executive Secretary turned over the case to the provincial governor and
provincial board, the governor suspended Mayor X and the board
proceeded hearing the charges against him. Mayor X filed a writ of
prohibition against the governor and board, but the governor argued that

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the Assistant Executive Secretary, as agent of the Chief Executive, are

clothed with power of direct control and supervision over all bureaus and
can order the investigation of any act.
A. Distinguish between control and supervision.
B. Is the indorsement of the Assistant Executive Secretary proper?
A: A. In administrative law supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them the former may take such action or step as
prescribed by law to make them perform these duties. Control, on the other hand,
means 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, G.R. No. L-
7708, [May 30, 1955], 97 PHIL 143-150)

B. No. The department head as agent of the President has direct control and
supervision over all bureaus and offices under his jurisdiction as provided for in
section 79(c) of the Revised Administrative Code, but he does not have the same
control of local governments as that exercised by him over bureaus and offices
under his jurisdiction. Likewise, his authority to order the investigation of any act
or conduct of any person in the person in the service of any bureau of office
under his department is confined to bureaus under his jurisdiction and does not
extend to local governments over which the President exercises only general
supervision as may be provided by law (section 10, paragraph 1, Article VII of the
Constitution). (Mondano v. Silvosa, G.R. No. L-7708, [May 30, 1955], 97 PHIL
143-150)

Q: What is the doctrine of qualified political agency (alter ego doctrine)?

A: The doctrine of qualified political agency acknowledges the multifarious executive
responsibilities that demand a president's attention, such that the delegation of
control power to his or her Cabinet becomes a necessity. Unless the Constitution
or law provides otherwise, Cabinet members have the president's imprimatur to
exercise control over the offices and departments under their respective
jurisdictions, which authority nonetheless remains subject to the president's
disapproval or reversal. (Phil. Institute of for Development Studies vs. COA, GR
No. 212022, August 20, 2019)

Q: What are the exceptions to the alter ego doctrine?

A: (1) If the acts are disapproved or reprobated by the President
(2) If the president is required to act in person by law or by the Constitution

Q: Pursuant to an executive order, the Department of Environment and Natural

Resources (DENR) Secretary issued an administrative order providing for
the redefinition of functions and realignment of administrative units in the
regional and field offices. Consequently, the Regional Executive Director of
the DENR for Region XII issued a memorandum directing the immediate
transfer of the DENR XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. This is part of the realignment of administrative units of
establishing one Community Environment and Natural Resources Office
(CENRO) in ARMM and NCR.

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Does the DENR Secretary have the authority to reorganize the DENR?
A: Yes. Applying the doctrine of qualified political agency, 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.

In the case at bar, 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, is presumed to be the acts of the President for the
latter had not expressly repudiated the same. (Department of Environment and
Natural Resources v. DENR Region 12 Employees, G.R. No. 149724, August 19,
2003)

Q: What is the power of general supervision?

A: This is the power of a superior officer to ensure that the laws are faithfully
executed by subordinates. The power of the President over LGUs is only of
general supervision. Thus, he can only interfere in the affairs and activities of a
LGU if he finds that the latter acted contrary to law. The President or any of his
alter egos cannot interfere in local affairs as long as the concerned LGU 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 LGU is a patent nullity, because it
violates the principle of local autonomy, as well as the doctrine of separation of
powers of the executive and the legislative departments in governing municipal
corporations. (Dadole v. COA, G.R. No. 125350, December 3, 2002)

General Supervision over Local government units and the autonomous regions :
(1) The President shall exercise general supervision over local governments.
[Sec 4, Art X]
(2) The President shall exercise general supervision over autonomous regions to
ensure that laws are faithfully executed. [Sec 16, Art X]

Q: What are the constitutional safeguards on the exercise of the President’s

power to proclaim martial law?
A: The following are the constitutional safeguards to the exercise of the power of the
President to proclaim martial law:
(1) There must be actual invasion or rebellion;
(2) The duration of the proclamation shall not exceed sixty (60) days;
(3) Within forty-eight (48) hours, the President shall report his action to Congress.
If Congress is not in session, it must convene within forty-eight (48) hours;
(4) Congress may by majority vote of all its members voting jointly revoke the
proclamation, and the President cannot set aside the revocation;
(5) By the same vote and in the same manner, upon initiative of the President,
Congress may extend the proclamation if the invasion or rebellion continues and
public safety requires the extension;

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(6) The Supreme Court may review the factual sufficiency of the proclamation,
and the Supreme Court must decide the case within thirty (30) days from the time
it was filed;
(7) Martial law does not automatically suspend the privilege of the writ of habeas
corpus or the operation of the Constitution. It does not supplant the functioning of
the civil courts and of Congress. Military courts have no jurisdiction over civilians
where civil courts are able to function.

Q: W was convicted of the crime of estafa. The President granted him a

conditional pardon, where W should not again violate any of the penal laws
of the Philippines and should he violate the condition, he will be proceeded
against in the manner prescribed by law. W accepted the conditional
pardon. Years after, W has charged with crimes, including estafa, other
forms of swindling, grave threats, and violation of BP 22. As a
consequence, the President cancelled his pardon, and he was rearrested
and recommitted for violation of his conditional pardon. W filed a petition
for habeas corpus claiming that he did not violate his conditional pardon
since he was not convicted by final judgment for the crimes charged
against him.
A. Is the determination of terms and conditions of a conditional pardon
subject to judicial scrutiny?
B. What are the limitations of the President’s exercise of pardoning
power?
A:
A. No. The grant of pardon and the determination of the terms and conditions of
a conditional pardon are purely executive acts which are not subject to judicial
scrutiny. The determination of the occurrence of a breach of a condition of a
pardon, and the proper consequences of such breach, may be either a purely
executive act, not subject to judicial scrutiny under Section 64 (i) of the
Revised Administrative Code; or it may be a judicial act consisting of trial for
and conviction of violation of a conditional pardon under Article 159 of the
Revised Penal Code. Where the President opts to proceed under Section 64
(i) of the Revised Administrative Code, no judicial pronouncement of guilt of a
subsequent crime is necessary, much less conviction therefor by final
judgment of a court, in order that a convict may be recommitted for the
violation of his conditional pardon. (Torres y Sumulong v. Gonzales, G.R. No.
76872, [July 23, 1987], 236 PHIL 292-307)

B. Based on the Constitution and jurisprudence, the following are the limitations
in the president’s exercise of the pardoning power:
• Cannot be granted in cases of impeachment [Sec. 19, Art. VII]
• Cannot be granted in cases of violation of election laws without the
favorable recommendation of the Commission on Elections [Sec. 5, Art.
IX-C]
• Can be granted only after conviction by final judgment
• Cannot be granted in cases of legislative contempt or civil contempt
• Cannot absolve the convict of civil liability
• Cannot restore public offices forfeited

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Q: The President is granted under Section 19, Article VII of the Constitution
with pardoning power. Enumerate and define the forms of executive
clemency.
A: Section 19, Article VII provides that “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.”

Based on this provision, the following are the forms of executive clemency:
• Pardon: It is an act of grace which exempts the individual on whom itis
bestowed from the punishment that the law inflicts for the crime he has
committed.
• Commutation: It refers to the reduction or mitigation of the penalty.
• Reprieve: It is the postponement of a sentence or stay of execution.
• Parole: It refers to the release from imprisonment, but without full restoration
of liberty, as parolee is still in the custody of the law although not in
confinement.
• Amnesty: It is an 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.

Q: What is the Budgetary power of the President?

A: The Budgetary power of the President is properly entrusted to the him who as
chief administrator and enforcer of the laws, is in the best position to determine
the needs of the government, and propose the corresponding appropriations
therefore on the basis of existing or expected sources of revenue (Pichay, Jr. v.
Office of the Deputy Executive Secretary for Legal Affairs-IAD, G.R. No. 196425,
[July 24, 2012], 691 PHIL 624-645).

Q: What are the President’s powers over foreign affairs?

A: The President is the chief architect of foreign relations. By reason of the
President's unique position as Head of State, he is the logical choice as the
nation's spokesman in foreign relations. The Senate, on the other hand, is
granted the right to share in the treaty-making power of the President by
concurring with him with the right to amend.

Q: What is the scope of the foreign relations powers of the President?

A: The President’s diplomatic powers include power to:
(1) Negotiate treaties and other international agreements. However, such treaty
or international agreement requires the concurrence of the Senate (Sec. 21,
Art. VII)
(2) Appoint ambassadors, other public ministers, and consuls.
(3) Receive ambassadors and other public ministers accredited to the
Philippines.
(4) Contract and guarantee foreign loans on behalf of the Republic of the
Philippines
(5) Deport aliens

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(6) Decide that a diplomatic officer who has become persona non grata be
recalled
(7) Recognize governments and withdraw recognition.

Q: What are residual powers of the President?

A: Whatever power inherent in the government that is neither legislative nor judicial
has to be executive. These unstated residual powers are implied from the grant
of executive power and which are necessary for the President to comply with his
duties under the Constitution. (Marcos v. Manglapus, G.R. No. 88211, Oct. 27,
1989)
Note: Residual powers are those not stated or found in the Constitution but which
the President may validly exercise.

Q: On 15 Jan 1992, some provisions of the Special Provision for the Supreme
Court and the Lower Court’s General Appropriations were vetoed by the
President because a resolution by the Court providing for appropriations
for retired justices has been enacted. The vetoed bill provided for the
increase of the pensions of the retired justices of the Supreme Court, and
the Court of Appeals as well as members of the Constitutional
Commission. Is the veto of the President on that portion of the General
Appropriations bill constitutional?
A: No, the veto of the President on that portion of the General Appropriations bill is
not constitutional.

The Justices of the Court have vested rights to the accrued pension that is due to
them in accordance to Republic Act 1797. The president has no power to set
aside and override the decision of the Supreme Court neither does the president
have the power to enact or amend statutes promulgated by her predecessors
much less to the repeal of existing laws. The veto is unconstitutional since the
power of the president to disapprove any item or items in the appropriations bill
does not grant the authority to veto part of an item and to approve the remaining
portion of said item. (Bengzon v. Drilon, G.R. No. 103524, A.M. No. 91-8-225-
CA, [April 15, 1992], 284 PHIL 245-275)

Q: Is the President allowed to Pocket Veto?

A: Under the Constitution, the President does not have the so-called pocket-veto
power, i.e., disapproval of a bill by inaction on his part. The failure of the
President to communicate his veto of any bill represented to him within 30 days
after the receipt thereof automatically causes the bill to become a law.

This rule corrects the Presidential practice under the 1935 Constitution of
releasing veto messages long after he should have acted on the bill. It also
avoids uncertainty as to what new laws are in force. Except under the par (2),
Section 27 of Art 6 of the Constitution which grants the President power to veto
any particular item or items in an appropriation, revenue or tariff bill. The veto in
such case shall not affect the item or items to which he does not object.

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Q: Who among the VP and Cabinet members, undersecretaries, and assistant

secretaries, if any, are generally allowed to hold other offices?
A: The general rule under Section 13, Article VII is that the Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided by the Constitution, hold any other office or employment
during their tenure.
Exceptions:
(1) the Vice-President is appointed as a Member of the Cabinet [Section 7(2) and
(3), Article VII]
(2) the Secretary of Justice sits in ex officio capacity as a member of Judicial and
Bar Council [Section 8(1), Article VIII]
Exception to the Exception: However, the Vice-President, Members of the
Cabinet, and their deputies or assistants may hold other office or employment in
an ex officio capacity, provided it is necessitated by the primary functions of their
office, it is permitted by law, and no additional salary or emoluments are given
(Civil Liberties Union v. Executive Secretary, GR No. 83896, February 22, 1991).

~o0o~

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