EXECUTIVE DEPARTMENT by Atty. Anselmo S.

Rodiel IV

1. Qualifications, election, and term of the President and Vice-President

1. Qualification (N40ARR)
1. Natural-born citizen
2. At least 40 years old at the day of the elections
3. Able to read and write
4. Registered voter
5. Resident of the Philippines at least 10 years at the day of the
elections. (Sec. 2, Art. VII)
1. The doctrines in Poe-Llamanzares v COMELEC and Romualdez-
Marcos v COMELEC shall apply.
2. Election
1. 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. (Sec. 4, Art. VII) This is also called as the Presidential
Electoral Tribunal.
1. The doctrine in Limkaichong v COMELEC shall apply.
2. Is the PET a separate tribunal from the Supreme Court?
1. No. PET was constituted in implementation of Sec 4, Art. VII.
1. The provision states “Supreme Court, sitting en banc,” so PET
is not separate from the Court.
3. Does the PET exercise a quasi-judicial power?
1. No. The power wielded by PET is a derivative of the plenary
judicial power allocated to courts of law. (Makalintal v PET, 2010)
4. The Congress shall canvass the votes in the Presidential/VP elections
1. Sec. 18.5 of the Overseas Absentee Voting Act (RA 9189) provides
that “Notwithstanding the foregoing, the COMELEC is empowered
to order the proclamation of winning candidates.” This provision is
unconstitutional because under Sec. 4, Art. VII, the Congress shall
canvass the votes for the election of President and Vice President.
(Makalintal v COMELEC, 2003)
2. The COMELEC is proscribed from doing an “official” or
“unofficial” canvass of said votes. (Brillantes v COMELEC, 2004)
3. Term
1. The President and VP shall serve for a term of 6 years.
2. The President shall not be eligible for re-election.
1. “Re-election” means to be elected again for the same position.
Hence, the President can later be elected as the Vice President.
 3. No person who a) has succeeded and served as President and b) has
served for more than 4 years shall be qualified for election to the
same office at any time.
4. The VP shall not serve for more than 2 consecutive terms.
5. Voluntary renunciation of the office for any length of time shall NOT
be considered as an interruption in the continuity of service for the full
term for which he was elected. (Sec. 4, Art. VII)
6. The President appoints the Vice President as his Administration's
Housing Czar, a position that requires the appointee to sit in the
Cabinet. Although the appointment of the members of the Cabinet
requires confirmation by the Commission on Appointment (CA), the
Office of the President does not submit the appointment to the CA.
May the Vice President validly sit in the Cabinet? [2017 Bar]
1. Yes. Par. 2, Sec. 3, of Art. VII of the Constitution provides that the
Vice-President may be appointed as a Member of the Cabinet and
such appointment requires no confirmation. Here, the Vice
President has been appointed as the Administration’s Housing
Czar, which is a Cabinet position. Following the language of the
Constitution, the Vice President’s appointment does not require
confirmation by the Commission on Appointments. Thus, the Vice
President may validly sit in the Cabinet even without confirmation.
2. Privileges, inhibitions, and disqualifications
1. President/VP
1. No increase in their salaries during their tenure. (Sec. 6, Art. VII)
2. President/VP/Members of the Cabinet/Deputies and Assistant
1. They shall not, unless otherwise provided in this Constitution, hold
any Other office or employment during their tenure.
1. An instance of “unless otherwise provided in the Constitution” is
the Vice President may be appointed as a Member of the Cabinet,
without the need of confirmation by the Commission on
Appointments.
2. On the other hand, an ex-officio position does not fall under “any
other office or employment” because Cabinet Members are
appointed to the position “by virtue of their office.” Further, it
follows that the official has no right to receive additional
compensation for his services in said position, because they are
already deemed paid for and covered by the compensation
attached to his principal office. (National Amnesty Commission v
COA, 2004)
2. They shall not, during said tenure, directly or indirectly:
1. Practice any other profession,
2. Participate in any business, or be
3. Financially interested in any contract/franchise/special privilege
 3.
granted by the Government.
4. They shall strictly avoid Conflict of interest in the conduct of their
office.
3. On July 25, 2019, President X issued EO No. 284, under Sec. 1 of
which provides that “Even if allowed by law or by the ordinary
functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more
than two positions in the government and government corporations
and receive the corresponding compensation therefor; provided, that
this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.”
Discuss the constitutionality of E.O. No. 284.
1. E.O. No. 284 is unconstitutional. Under Sec. 13 of Art. VII, the
Constitution provides that the President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure. While all other
appointive officials in the civil service, under Sec. 7 of Art. IX-B,
are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly
authorized by the Constitution itself (Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, February 22, 1991). In this
case, E.O. No. 284 in effect would allow a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials
of the Executive Department to hold a maximum of two positions
in the government and government corporations, in violation of
Sec. 13 of Art. VII of the Constitution. Hence, E.O. No. 284 is null
and void.
3. Spouse and Relatives by consanguinity or affinity within the 4th degree of
the President
1. They shall not, during his tenure, be appointed as:
1. Members of the Constitutional Commissions,
2. Office of the Ombudsman,
3. Secretaries, Undersecretaries,
4. Chairmen or
5. Heads of bureaus or offices, including GOCCs. (Sec. 13, Art. VII)
1. NOTE: For easy reminder, think of independent bodies +
executive department. Legislative and judicial are not
included.
2. Margie has been in the judiciary for a long time, starting from the
 2.
lowest court. Twenty (20) years from her first year in the judiciary, she
was nominated as a Justice in the Court of Appeals. Margie also
happens to be a first-degree cousin of the President. The Judicial and
Bar Council included her in the short-list submitted to the President
whose term of office was about to end – it was a month before the
next presidential elections.
1. Can the President still make appointments to the judiciary during
the so-called midnight appointment ban period?
2. Assuming that he can still make appointments, could he appoint
Margie, his cousin? [2014 Bar]
1. Yes, the President may still make appointments. 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 (De Castro v. JBC, G.R. No. 191002, March 17,
2010).
2. Yes, the President can appoint his cousin. Under Sec. 13, par.
2, Art. VII of the Constitution, the spouse and relatives by
consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as
members of the Constitutional Commissions, or the Office of
the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including GOCCs
and their subsidiaries. Following the rule of expressio unius
est exclusio alterius, the exclusion of the judiciary means that
the above provision does not preclude the President from
appointing his spouse and relatives by consanguinity or
affinity within the fourth civil degree to the judiciary.
4. Presidential immunity
1. The presidential immunity from suit remains preserved under our
system, albeit not expressly reserved in the Constitution. (Rubrico v
Macapagal-Arroyo, 2010)
1. Any kind of suit - civil/admin/criminal
2. Not to disturb the functions of the President
2. This immunity pertains only 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.
1. Hence, even if the DECS Secretary is an alter ego of the
President, he CANNOT invoke the immunity from suit. (Gloria v
CA, 2000)
2. Further, an accused in a criminal case in which the President is
the complainant cannot raise the presidential privilege as a
 2.

defense. (Soliven v Makasiar, 1988)

3. Further, the President can waive the privilege. (Soliven v Makasiar,
1988)
4. What if he he already finished his term as President?
1. After his tenure, the President CANNOT invoke the immunity from
suit for civil damages arising out of acts which were NOT
performed in the exercise of official duties as a President.
(Estrada v Desierto, 2001; Resident Marine Mammals v Reyes)
1. If they are performed in the exercise of his official duties as
President, the doctrine of State immunity applies, because the
ultimate liability will fall to the State.
5. Inter-departmental courtesy demands that the HIGHEST officials of
each department be exempt from compulsory processes of the other
departments. (In Re: Production of Court Records and Documents,
2012)
1. Hence, the President cannot be subpoenaed by the Congress or
the Supreme Court.
5. Presidential privilege
1. Executive privilege is the right of the President and high-level
executive officers to withhold information from Congress, courts, and
ultimately the public. (Senate v Ermita, 2006)
2. What are the kinds of executive privilege?
1. Presidential communications privilege - applies to
communications between the President and his close-advisors in
closed-door cabinet meetings.
1. Elements: (QCO) - Quintessential; Close advisor;
Overcome by adequate need
1. Communication - Quintessential and non-delegable
presidential power communication - the communication
relates to the same
2. Communicator - Close advisor/President himself - the
communication is received/authored by the close advisor
or the President himself. The judicial test is that an
advisor must be in "operational proximity" with the
President; and,
3. Not Overcome - adequate need- (important evidence;
unavailability) by a showing of adequate need, such that it
"likely contains important evidence," and there is
unavailability of information elsewhere
2. Hence, executive privilege is wider in scope as it
encompasses any information which is of a sensitive matter
that, for reasons of public policy, cannot be disclosed to the
public (i.e., national security matters),
 3. While presumptive presidential communications privilege
particularly refers to those communications between the
president in closed-door cabinet meetings.
2. Deliberative process privilege - include advisory opinions,
recommendations, and deliberations comprising part of a process
by which governmental decisions and policies are formulated.
(Neri v Senate, 2008)
1. Elements: (PD)
1. Predecisional - it must be previous/antecedent to the
adoption of a decision/policy.
2. Deliberative - it must be refer to the give-and-take
deliberation/consultative process. (In Re: Production of
Court Records and Documents, 2012)
3. Diplomatic negotiations privilege - it is meant to encourage a
frank exchange of exploratory ideas between the negotiating
parties by shielding such negotiations from public view.
1. "Secrecy of negotiations with foreign countries is not violative
of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information.”
1. Why? Delegates from other countries come and tell you in
confidence of their troubles at home and of their
differences with other countries and with other delegates;
they tell you of what they would do under certain
circumstances and would not do under other
circumstances… If these reports… should become public…
who would ever trust you in another conference? (Neri v
Senate, 2008)
4. Informer’s privilege - privilege of the Government not to disclose
the identity of the person who furnished information regarding
violations of law to officers charged with the enforcement of law.
(Akbayan v Aquino, 2008)
5. State Secrets privilege - military, diplomatic and other national
security matters which in the interest of national security should
not be divulged (Almonte vs. Vasquez, 1995)
6. Distinguish "presidential communications privilege" from
"deliberative process privilege." [2010 Bar]
1. Presidential communications privilege applies to decision-
making of the President. The deliberative process privilege
applies to decision-making of ALL executive officials.
2. Unlike the "deliberative process privilege, "the presidential
communications privilege" applies to documents in their
ENTIRETY and covers final decisional matters, and as pre-
deliberative ones. The deliberative process privilege includes
 2.

advisory opinions, recommendations and deliberations

comprising part of a process by which governmental
decisions and policies are formulated (Neri v. Senate
Committee on Accountability of Public Officers and
Investigations, G.R No. 180643, September 4, 2008)
1. In short, president v executive officials/legislative
department/judiciary
2. In short, ALL documents whether pre-decisional or post-
decisional v documents which are pre-decisional only
3. An implied claim of executive privilege is NOT allowed.
1. The Congress has the right to know WHY the information is
considered privilege. It does NOT suffice to MERELY DECLARE
that the President has determined that it is so. Hence, a claim of
privilege, being a claim of exemption from an obligation to
disclose information, must be CLEARLY ASSERTED, stating the
grounds therefor. (Senate v Ermita, 2006)
1. In the case, EO 464 provides that the senior executive
officials may NOT appear before the House regarding
privilege information without the consent of the President.
Hence, there was an implied assertion of executive privilege.
4. The President is the only executive official who can invoke executive
privilege.
1. The privilege being an extraordinary power, it must be wielded
only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to
exercise such power.
2. It follows, therefore, that when a subordinate executive 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. (Senate v
Ermita, 2006)
5. Right to information and executive privilege
1. The right to information does not extend to matters recognized as
‘privileged information’ under the separation of powers, by
which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet
meetings. (Neri v Senate Committee, 2008) Why? Because the
right to information is “subject to such limitations as may be
provided by law.” Hence, executive privilege is an exception to the
 right to information.
2. However, when executive privilege is raised, the President must
clearly state the grounds therefor. Otherwise, the right to
information is impaired. (Senate v Ermita, 2006) Mere declaration
is insufficient.
3. Powers of the President
1. General executive and administrative powers
1. Executive power pertains to the power to enforce and administer laws.
It shall be vested in the President and exercised through the offices of
the executive department. (Sec. 1, Art. VII)
2. Administrative power refers to the President’s control over the
departments, bureaus, and offices. He shall ensure that laws are
faithfully executed. (Sec. 17, Art. VII)
3. What is the faithful execution clause?
1. The second sentence of Sec. 17 is referred to as the “take care
power” or “faithful execution clause.” The President is bound to
ensure the faithful execution of laws regardless of his belief in the
legality of the same.
2. Further, it underscores that the President is not above the laws,
and is obliged to obey and execute the same. (National Artist for
Literature Almario v Executive Secretary, 2013)
2. Power of appointment
1. In general
1. Appointment is the selection of a person to fill an office or public
function and discharge the duties of the same. (Flores v Drilon,
1993)
2. Appointment is different from designation
1. A designation is the mere imposition of new or additional
duties upon an officer to be performed by him in a special
manner while he performs the function of his permanent
office. (Discussed further in law on public officers)
3. Appointment is a discretionary power that must be performed by
the President. The only condition is that if the appointment is
permanent, the appointee should possess the minimum
qualification requirements, including the Civil Service Eligibility
prescribed by law.
1. Can the CSC disapprove the permanent appointment on the
ground that another person is better qualified?
1. No. When the appointee is qualified and the other legal
requirements are satisfied, the Commission has no choice
but to attest to the appointment in accordance with the
Civil Service Laws. (Luego v CSC)
2. Limitations on the exercise/power
1. Midnight appointment
1. 2 months immediately before the next presidential elections
and up to the end of his term, a President shall not make
appointments.
2. Except temporary appointments to executive positions when
continued vacancies therein will prejudice public service/
safety. (Sec. 15, Art. VII)
1. This provision applies only to presidential appointments.
There is no law prohibiting local executive officials, like
mayors, from making appointments during the last days
of their tenure. (De Rama v CA, 2001)
2. However, the prohibition does not apply to appointment of
members of the Supreme Court/lower courts. (De Castro
v JBC, 2010)
2. Commission on Appointments
1. Which positions require the approval of the CoA? (HAAO)
1. Heads of the Executive Departments
2. Ambassadors, other public ministers, and consuls
3. Armed Forces - from the rank of colonel or naval captain
4. Other offices whose appointments are vested in him by
the Constitution, i.e.,
Constitutional Commissions and the Members of JBC.
(Sec. 16, Art. VII)
2. Which do not require the approval of CoA? (VJOO)
1. Appointment of the VP to a Cabinet position. (Sec. 3, Art.
VII)
2. Judges and justices. (Sec. 9, Art. VIII)
3. Ombudsman and his deputies (Sec. 9, Art. XI)
4. All Other officers of the Government he may be
authorized by law to appointment or whose appointments
are not otherwise provided by law, such as:
1. Commissioner of Customs (Sarmiento v Mison, 1987)
2. Chairman of CHR (Bautista v Salonga, 1989)
3. Appointments in the Philippine Coast Guard (Soriano
v Lista, 2003)
3. Qualifications prescribed by Congress
1. The scope of the legislature’s inference in the President’s
power to appoint is limited to the power to PRESCRIBE
QUALIFICATIONS to an appointive office.
1. The Congress cannot appoint a person to an office IN THE
GUISE of prescribing qualifications. Neither may Congress
impose on the President the duty to appoint any
PARTICULAR PERSON in office. (Pimentel v Ermita, 2005)
 1.

That would violate the separation of powers.

1. As example, the law cannot provide for the election of
trustees in the GOCC. The trustees must be
appointed by the President. (Rufino v Endriga, 2006)
2. Further, the law cannot impose on the President the
obligation to appoint the undersecretary. (Pimentel v
Ermita, 2005)
2. The qualification must be GERMANE to the position
("reasonable relation" rule);
3. The Congress cannot prescribe qualifications contrary to
the Constitution.
1. As example, the members of the Supreme Court must
be at least 40 years of age at the time of
appointment. The Congress, by law, cannot decrease
or increase the age requirement. It would violate
Constitutional supremacy.
2. Example of valid qualification is civil service eligibility
of undersecretaries and assistant solicitor generals.
4. The Supreme Court appoints ALL of the officials and employees of
the Judiciary, except the judges and justices. (Sec. 5(6), Art. VIII)
3. Types of appointment
1. Permanent - those appointments which last until lawfully
terminated, i.e., due process of law, because they have security of
tenure.
1. The exception is if the appointee serves at the pleasure of the
President. In this case, the official can be terminated any time.
2. Temporary/Acting - those appointments which last until a
permanent appointment is issued.
1. An unqualified person cannot be appointed a member even in
an acting capacity. (Ignacio v Banate)
2. Unqualified is different from ineligible.
1. An ineligible person can become a temporary appointee,
provided he is qualified for the position. He shall be given
a period of time to become eligible, in accordance with
the civil service law.
3. Temporary appointments are not subject to the concurrence
of CoA (Valencia v Peralta)
3. Regular - appointments made while the Congress is in session.
They may be permanent or temporary.
4. Ad interim - appointments made during the recess of the
Congress. They are always permanent.
1. Such appointments shall be effective only:
1. Until after disapproval by the CoA or
 2. Until the next adjournment of the Congress. (Sec. 16, Art.
VII)
2. “Ad interim” appointments are permanent in nature. (PLM v
IAC)
3. The classification of “Regular” and “Ad interim” is only
important if the appointment requires the consent of CoA.
Otherwise, this classification does not matter.
4. Finality of disapproval in ad interim appointments
1. When the COA DISAPPROVES an ad interim appointment,
the appointee can NO LONGER be extended a new
appointment because the disapproval is the FINAL
DECISION of the Commission. It is FINAL AND BINDING on
both the appointee and the appointing power.
2. However, when the ad interim appointment is BY-PASSED
because of lack of time or failure to act on the same,
there is NO FINAL DECISION by the Commission. Hence,
the President is still FREE TO RENEW the ad interim
appointment. (Matibag v Benipayo, 2002)
4. Power of removal
1. As a rule, the power of removal is implied from the power of
appointment.
2. However, the President cannot remove officials appointed by him
where the Constitution prescribes certain methods of separation
of such officers from public service. Examples are:
1. Impeachable officers such as Ombudsman (Sec. 3, Art. XI),
and
2. Supreme Court en banc shall have the power to discipline
judges of lower courts, or order their dismissal by a vote of a
majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon.
(Sec. 11, Art. VIII)
3. Also, the President may exercise the power of removal only for
just cause and in accordance with prescribed administrative
procedure. Basis? Security of tenure. (Villaluz v Zaldivar, 1965)
1. However, Members of the Cabinet and such other officers
whose continuity in office depends upon the PLEASURE of the
President may be replaced at any time. Legally speaking, their
separation is effected not by removal but by expiration of
term. (Alajar v Alba)
4. Also, the power of the President to remove a person from office
may be qualified by law. (Domingo v Rayala, 2008)
3. Power of control and supervision
1. Doctrine of qualified political agency
 1. The alter-ego principle is also called as the “doctrine of qualified
political agency.”
1. It provides that the actions taken by the heads in the
performance of their official duties are deemed the acts of the
President unless the President himself should disapprove
them. (Atty. Manalang-Demigillo v TIDCORP, 2013)
1. Hence, the President can exercise powers conferred by
LAW to his Cabinet members and officers whom he
exercises control. (City of Iligan v Director of Lands)
2. Also, the power of the President to reorganize the
National Government may be validly delegated to the
Cabinet Members, because the actions of the Cabinet are
deemed the actions of the President. (DENR v DENR
Region XII Employees)
3. However, even if he is an alter-ego of the President, the
DECS Secretary CANNOT invoke the IMMUNITY FROM
SUIT in a case filed against him, since the questioned acts
are not those of the President. (Gloria v CA, 2000)
4. Lastly, the alter ego doctrine does NOT apply in cases
where the Chief Executive is required by the Constitution
or law to act in personally. As example, “the President
must enter into agreements with foreign-owned
corporations involving either technical or financial
assistance for large-scale exploration, development, and
utilization of minerals.” (Sec. 2, Art. XII) The agreement
cannot be entered into by a Department Secretary based
on “alter-ego” principle.
2. Executive departments and offices
1. “Power of control over all executive departments, bureaus, and
offices”
1. Control is the power of an officer to alter/modify/nullify/
replace the acts of his subordinates, done in the
performance of duties. (Mondona v Silvosa, 1955)
1. Hence, the President can alter the acts of the Cabinet
Members.
2. Further, the Executive Secretary, when acting by the
authority of the President, may reverse the decision of
another department secretary. (Lacson-Magallanes v
Pano, 1967)
2. Control also gives the President the authority to reorganize/
restructure the executive departments, by abolishing or
merging units and transferring functions to another unit. This
is called as “administrative reorganization.” (MEWAP v
 2.

Romulo, 2007)
1. This is not an invalid exercise of legislative power. While
the power to abolish an office is generally lodged with the
legislature, the President can reorganize the executive
branch because he has “control” over all executive
departments. (MEWAP v Romulo, 2007)
2. The power of the President to reorganize executive
offices or agencies even to the extent of modifying and
realigning appropriations for that purpose. (Banda v
Executive Secretary, 2010) Why? Because the realignment
is merely incidental.
3. Also, the power to reorganize the executive department is
a limitation to the security of tenure of permanent
employees, as long as the power is exercised in good
faith.
3. The alter-ego principle or doctrine of qualified political
agency is a manifestation of control, as discussed above.
2. In 2001, President XX issued EO No. 12, creating the Presidential
Anti-Graft Commission (PAGC) and vesting it with the power to
investigate or hear administrative cases or complaints for possible
graft and corruption, among others, against presidential
appointees and to submit its report and recommendations to the
President. In 2010, President YY issued EO 13, abolishing the
PAGC and transferring its functions to the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA), more particularly
to its newly- established Investigative and Adjudicatory Division
(IAD).
Meanwhile, AA filed before the IAD-ODESLA a complaint affidavit
for grave misconduct against BB, who thereafter assailed the
constitutionality of EO 13. BB argues that President YY, by the
issuance of EO 13 usurped on the power of the legislature to: (1)
create a public office; and (2) delegate quasi-judicial powers to
administrative agencies. Decide.
1. E.O. 13 is constitutional. Both arguments are not correct.
2. The first argument is not correct. Under Sec. 31 of E.O. 292,
otherwise known as the Administrative Code of 1987, the
President is authorized to: (1) restructure the internal
organization of the Office of the President Proper by
abolishing, consolidating, or merging units thereof or
transferring functions from one unit to another; (2) transfer
any function under the Office of the President to any other
Department or Agency as well as transfer functions to the
Office of the President from other Departments and Agencies;
 and (3) transfer any agency under the Office of the President
to any other Department or Agency as well as transfer
agencies to the Office of the President from other
departments or agencies. Here, both PAGC and ODESLA
belong to the Office of the President Proper. Therefore,
reorganization by way of abolishing the PAGC and transferring
its functions to the ODESLA is allowable under Sec. 31 (1) of
E.O. 292 (Pichay Jr. vs. Office of The Deputy Executive
Secretary for Legal Affairs-Investigative and Adjudicatory
Division, G.R. No. 196425, July 24, 2012).
3. The second argument is also not correct. Sec. 17, Art. VII of
the Constitution provides that the President shall have control
of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed. The obligation to
see to it that laws are faithfully executed necessitates the
corresponding power in the President to conduct
investigations into the conduct of officials and employees
in the executive department. Here, the IAD-ODESLA is a
fact-finding and recommendatory body to the President, not
having the power to settle controversies and adjudicate cases.
Thus, the President's authority to issue E.O. 13 and constitute
the IAD-ODESLA as his fact-finding investigator cannot be
doubted. After all, as Chief Executive, he is granted full
control over the Executive Department to ensure the
enforcement of the laws (Pichay Jr. vs. Office of The Deputy
Executive Secretary for Legal Affairs-Investigative and
Adjudicatory Division).
3. Administrative Order No. 402 authorized government agencies
and government-owned and controlled corporations (GOCC) to
establish an annual medical checkup program. The XYZ, a GOCC,
requested that it be authorized to establish a health maintenance
program through their membership in a private health
maintenance organization, in lieu of the annual medical checkup
under AO 402. The request was approved by the Office of the
President, through the Senior Deputy Executive Secretary. Thus,
XYZ entered into Health Care Agreement with Philamcare.
However, COA disallowed the amount which represented the
annual membership fees of XYZ employees under the Health Care
Agreement. The Audit Team issued Disallowance Notice,
contending that program was violative of COA Resolution No.
2005- 001, which prohibits the procurement of healthcare
insurance from private agencies and ultimately violative of AO
402. The COA upheld the Disallowance Notice. Arguing that the
 President, through its Senior Deputy Executive Secretary, allowed
and granted XYZ to avail of medical benefits and continue to
implement its annual and medical checkup program, XYZ filed this
petition for certiorari. Is XYZ correct?
1. No, the Senior Deputy Executive Secretary has no authority to
exempt an agency from the application of an administrative
order.
2. Under the doctrine of qualified political agency, each head of
a department is, and must be, the President's alter ego in the
matters of that department where the President is required by
law to exercise authority. The doctrine remains limited to
the President's executive secretary and other Cabinet
secretaries. It does not extend to deputy executive
secretaries or assistant deputy secretaries.
3. It must be stressed that the Administrative Code explicitly
grants the power to sign papers by authority of the president
to the executive secretary. It grants no similar authority to a
senior deputy executive secretary. In addition, while the
executive secretary is likened to a Cabinet secretary, a deputy
executive secretary is equated to an undersecretary
(Philippine Institute for Development Studies v. Commission
on Audit, G.R. No. 212022, August 2019, J. Leonen).
3. Local government units
1. The President of the Philippines shall exercise general supervision
over local governments. (Sec. 4, Art. X)
1. General supervision is the power of a superior officer to
oversee that the subordinate officer performs his functions in
accordance with the law.
1. Hence, the President cannot interfere with local
governments so long as the same or its officers act within
the scope of their authority. (Taule v Secretary Santos)
2. If the subordinate does not act in accordance with the
law, the former may take action to make him perform his
duties.
1. However, this does not include the power to
substitute one’s judgment for that of the lower officer.
It can only ensure that the subordinate acts in
accordance with the law. (Taule v Secretary Santos)
Such is a patent nullity because it violates the
principle of local autonomy and separation of powers
between the executive and the local legislative body.
(Dadole v COA, 2002)
2. The power of general supervision includes the power
 2.
to discipline, investigate and remove local officials.
Autonomy does not transform local governments into
kingdoms unto themselves. (Ganzon v CA, 1991)
Control Supervision
Control is the power of an officer to alter/General supervision is the power of a
modify/nullify/replace/substitute the superior officer to oversee that the
acts of his subordinates, done in the subordinate officer performs his functions
performance of duties. (Mondona v in accordance with the law.
Silvosa, 1955)
4. Emergency powers
1. Emergency power is a grant by the Congress to the President to carry
out a declared national policy.
2. Requisites of emergency power: (WELLRP)
1. War or other Emergency
2. Law
3. Limited period only
4. Subject to Restrictions as the Congress may prescribe
5. Must carry out a national Policy declared by Congress. (David v
Arroyo; Sec. 23(2), Art. VI)
1. Emergency power must be granted by LAW. However, it is
withdrawn by mere RESOLUTION OR cease upon the next
adjournment of session.
2. The term “resolution” includes an approved bill by Congress.
(Rodriguez vs. Gella, 1953)
3. Under Art. XII, when may the State take over private businesses?
(EPERTP)
1. In times of national Emergency,
2. When the Public interest so requires,
3. The State may, during the Emergency and
4. Under Reasonable terms prescribed by it,
5. Temporarily take over or direct the operation of:
1. Any privately-owned Public utility or
2. Business affected with Public interest. (Sec. 17, Art. XII)
4. How is Art. XII, Sec. 17 related to Sec. 23(2), Art. VI?
1. Sec. 17, Art. XII is an ASPECT of the emergency power clause
under Sec. 23(2), Art. VI. Hence, the term “State” in Art. XII
means Congress. Now, whether or not the President may
temporarily take over private businesses depends on whether the
Congress will delegate the same pursuant to a LAW, prescribing
reasonable terms thereof. (David v Arroyo, 2006)
5. Commander-in-chief powers
1. Calling out powers
1. Whenever it becomes necessary, the President may call out the
 1.
armed forces to prevent or suppress lawless violence, invasion, or
rebellion. (Sec. 18, Art. VII)
2. This is the most benign of the military powers of the president and
is merely incidental to his authority to determine the disposition of
the armed forces and what degree of force a particular crisis
demands.
3. It is limited to ordinary police action “whenever it becomes
necessary.” (IBP v Zamora, 2000)
4. Further, the acts must be done within permissible constitutional
boundaries or in a manner not constituting grave abuse of
discretion. (Lagman v Medialdea, 2017)
1. Lawless violence
2. Invasion
3. Rebellion
2. Declaration of martial law and suspension of the privilege of the
writ of habeas corpus; extension
1. Proclamation No. 216 was the President's declaration of martial
law and/or suspension of the privilege of the writ of habeas
corpus which is effective for 60 days. Petitioner M posits that
martial law is a measure of last resort and should be invoked by
the President only after exhaustion of less severe remedies. It
contends that the extraordinary powers of the President should be
dispensed sequentially, i.e., first, the power to call out the armed
forces; second, the power to suspend the privilege of the writ of
habeas corpus; and finally, the power to declare martial law. It
maintains that the President has no discretion to choose which
extraordinary power to use.
1. Does the President have the discretion to choose which
extraordinary power to use?
2. The petitioners contend that the President had no sufficient
factual basis for the issuance of Proclamation No. 216
because, among others, acts of terrorism in Mindanao do not
constitute rebellion since there is no proof that its purpose is
to remove Mindanao or any part thereof from allegiance to the
Philippines, its laws, or its territory, and that the President's
Report contained "false, inaccurate, contrived and hyperbolic
accounts." Is the petitioners' contention correct?
3. Distinguish the power of the Court to review the sufficiency of
the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution from the power
to revoke by Congress.
1. Yes, the President has discretion to choose which
1.
extraordinary power to use. The 1987 Constitution gives
the “President, as Commander-in-Chief, a 'sequence' of
'graduated powers'. From the most to the least benign,
these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to
declare martial law.” However, this graduation refers only
to hierarchy based on scope and effect and it does not
dictate or restrict the manner by which the President
decides which power to choose. The power to choose,
initially, which among these extraordinary powers to wield
in a given set of conditions is a judgment call on the part
of the President. The power of judicial review does not
extend to calibrating the President's decision pertaining
to which extraordinary power to avail given a set of facts
or conditions (Lagman v. Medialdea, G.R. No. 231658,
231771 & 231774, July 4, 2017).
2. No, the Constitution requires sufficiency of factual
basis, not accuracy. The parameters for determining the
sufficiency of factual basis are as follows: 1) actual
rebellion or invasion; 2) public safety requires it; the first
two requirements must concur; and 3) there is probable
cause for the President to believe that there is actual
rebellion or invasion." The phrase “sufficiency of factual
basis” in Sec. 18, Art. VII of the Constitution should be
understood as the only test for judicial review of the
President's power to declare martial law and suspend the
privilege of the writ of habeas corpus." Accuracy is not
the same as sufficiency as the former requires a higher
degree of standard. To require precision in the President's
appreciation of facts would unduly burden him and
therefore impede the process of his decision-making
(Lagman v. Medialdea, G.R. Nos. 231658, 231771 &
231774 (Resolution), December 5, 2017).
3. The President's extraordinary powers of suspending
the privilege of the writ of habeas corpus and
imposing martial law are subject to the veto powers of
the Court and Congress. The Court may strike down the
presidential proclamation in an appropriate proceeding
filed by any citizen on the ground of lack of sufficient
factual basis. In reviewing the sufficiency of the factual
basis of the proclamation or suspension, the Court
considers only the information and data available to the
President prior to or at the time of the declaration; it is not
 allowed to "undertake an independent investigation
beyond the pleadings." On the other hand, Congress may
revoke the proclamation or suspension, which revocation
shall not be set aside by the President. Congress may
take into consideration not only data available prior to, but
likewise events supervening the declaration. Congress
could probe deeper and further; it can delve into the
accuracy of the facts presented before it. Congress'
review mechanism is automatic in the sense that it may be
activated by Congress itself at any time after the
proclamation or suspension was made (Lagman v.
Medialdea, supra).
2. Does Article VII, Section 18 of the Constitution require the
Congress to automatically convene in joint session in the event
that the President proclaims a state of martial law and/or
suspends the privilege of the writ of habeas corpus in the
Philippines or any part thereof?
1. No. The Congress is not constitutionally mandated to convene
in joint session except to vote jointly to revoke the President's
declaration or suspension. By the language of Sec. 18, Art. VII
of the Constitution, the Congress is only required to vote
jointly to revoke the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas
corpus.
2. It is worthy to stress that the provision does not actually
refer to a "joint session." The provision only requires
Congress to vote jointly on the revocation of the
President's proclamation and/or suspension (Padilla v.
Congress, G.R. No. 231671, July 25, 2017).

_____________________________________________________________________________________

What is the meaning of lawless violence, invasion, or rebellion?

1. Lawless violence - not defined by jurisprudence. Subject to the
determination of the President, as long as there is no grave abuse of
discretion
2. Invasion - It means another State invades the Philippines.
3. Rebellion - The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of land, naval or
other armed forces, or depriving the Chief Executive or the Legislature, wholly
 or partially, of any of their powers or prerogatives.

The Calling out Power is Exclusive to the President

In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc
(Sereno, CJ), the Court held: Given the foregoing, Governor Tan is not endowed
with the power to call upon the armed forces at his own bidding. In issuing the
assailed proclamation, Governor Tan exceeded his authority when he declared a
state of emergency and called upon the Armed Forces, the police, and his own
civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if
he is the local chief executive, is ultra vires, and may not be justified by the
invocation of Section 465 of the Local Government Code, i.e., powers and
functions of the Governor.

Is the President’s power to call out the armed forces as their Commander-in-
Chief in order to prevent or suppress lawless violence, invasion or rebellion
subject to judicial review, or is it a political question?
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom, i.e., political question. This is clear from the intent
of the framers and from the text of the Constitution itself. The Court, thus, cannot
be called upon to overrule the President's wisdom or substitute its own. However,
this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the President's
decision is totally bereft of factual basis. The present petition fails to discharge
such heavy burden as there is no evidence to support the assertion that there
exists no justification for calling out the armed forces. There is, likewise, no
evidence to support the proposition that grave abuse was committed because the
power to call was exercised in such a manner as to violate the constitutional
provision on civilian supremacy over the military. In the performance of this
Court's duty of ―purposeful hesitation‖ before declaring an act of another branch
as unconstitutional, only where such grave abuse of discretion is clearly shown
shall the Court interfere with the President's judgment. To doubt is to sustain.
(Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284,
Aug. 15, 2000, En Banc [Kapunan])

Along with the Calling Out Power, Is there a Power to Declare the State of
Rebellion?
No. The foregoing discussion notwithstanding, 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. Perhaps the declaration may wreak emotional
effects upon the perceived enemies of the State, even on the entire nation. But
this Court's mandate is to probe only into the legal consequences of the
declaration. This Court finds that such a declaration is devoid of any legal
significance. For all legal intents, the declaration is deemed not written.
[SANLAKAS vs. Reyes, G.R. No. 159085, February 3, 2004]

COMMENT: Declaration of state of rebellion is not necessary to exercise the

calling out power. Why? Because the requirement for the calling out power is
merely “whenever it becomes necessary.”
_____________________________________________________________________________________
Nature of Suspension of Privilege of Writ of Habeas Corpus by the President
What is the writ of habeas corpus?
The writ is directed to the person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and
cause of his detention, to do, to submit to, and receive whatever the court or
judge awarding the writ shall consider in his behalf. (Moran)

When is the writ of habeas corpus usually availed?

When a person is detained but there is no cause of detention.

Hence, when the person is charged or convicted or suffering judgment already,

the writ is NOT allowed. (Sec. 4, Rule 102) Why? Because there is a cause for
detention already.

What does it mean that only the privilege of the writ is suspended and not the
writ itself?
Only the privilege of the writ is suspended, not the writ itself.
This means the Court will issue the writ. However, when it finds that the person is
detained in areas where the privilege is suspended, the court will also suspend the
proceedings.

Scope of the Suspension of Privilege of Writ of Habeas Corpus

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 the
invasion. (Sec. 18, Art. VII)

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. (Sec. 18, Art. VII)

Correlation to the Right to Bail

In Sec. 13, Art. III, “The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended.”

Hence, persons detained can be released on bail despite the suspension of the
privilege. Of course, this presupposes that the offense is bailable.

To correlate to Sec. 17(c) of Rule 114, “Any person in custody who is not yet
charged in court may apply for bail with any court in the province, city, or
municipality where he is held.”

This provision presupposes that there is at least a complaint filed with the Office
of the Prosecutor already. If there is a complaint, the person detained can be
released on bail already.

QUESTION: If a complaint is necessary before the right to bail can be availed, can
the police just refuse to file it so that the person remains detained? No, because
Sec. 18, Art. VIII provides that any person detained shall be judicially charged
within three days. Otherwise, he shall be released.
_____________________________________________________________________________________
Nature of Declaration of Martial Law by the President
SANDOVAL: The declaration of Martial Law is a “warning to citizens that the
military power has been called upon by the executive to assist in the maintenance
of law and order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law.

When there is a valid declaration of martial law, there may be:

1. Arrests and seizures without judicial warrants
2. Ban on public assemblies
3. Take-over of news media and agencies and press censorship
4. Issuance of Presidential Decrees (PDs)

PDs are powers which can be exercised by the President as Commander-in-Chief,

only where there is a valid declaration of martial law or suspension of the privilege
of writ of habeas corpus. (David v Arroyo)

Scope of Proclamation of 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)
In short: (CCMH)
1. Not suspend the Constitution
2. Not supplant the civil Courts/legislature
3. Not authorize the conferment of jurisdiction on Military courts over civilians,
where civil courts able to function
4. Not automatically suspend the privilege of the writ of Habeas corpus.

“Not authorize the conferment of jurisdiction on military courts over civilians,

where civil courts are able to function”
Due process of law demands that in all criminal prosecutions, the accused shall be
entitled to a trial. The trial contemplated by the due process clause of the
Constitution is a trial by judicial process, not by executive or military process.
Military commissions or tribunals, by whatever name they are called, are not
courts within the Philippine judicial system. [Olaguer vs. Military Commission No.
34, G.R. No. L-54558, May 22, 1987]
Moreover, military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of the executive power, provided
by the legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and utilized
under his orders or those of his authorized military representatives.
Following the principle of separation of powers underlying the existing
constitutional organization of the Government of the Philippines, the power and
the duty of interpreting the laws, such as when civilians violate the law, is
primarily a function of the judiciary. It is not, and it cannot be the function of the
Executive Department, through the military authorities. And as long as the civil
courts remain open and are regularly functioning, as they do so today and as
they did during the period of martial law in the country, military tribunals cannot
try and exercise jurisdiction over civilians for offenses committed by them and
which are properly cognizable by the civil courts. To have it otherwise would be a
violation of the constitutional right to due process of the civilian concerned.
[Olaguer vs. Military Commission No. 34, G.R. No. L-54558, May 22, 1987]

Court Martial Does Not Apply to Members of the PNP

Republic Act No. 6975, creating the Philippine National Police (PNP), which took
effect on 1 January 1991, provides: "SEC. 46. Jurisdiction in Criminal Cases. — Any
provision of law to the contrary notwithstanding, criminal cases involving PNP
members shall be within the exclusive jurisdiction of the regular courts. [Quiloña
vs. General Court Martial, G.R. No. 96607, March 4, 1992]
____________________________________________________
Grounds for the suspension of privilege of writ of habeas corpus/
proclamation of martial law
When public safety requires it:
1. Invasion
 2. Rebellion

The phrase “when public safety requires it” is not a ground. It merely qualifies
invasion and rebellion.

The Recommendation of the Defense Secretary is Not a Condition for the

Proclamation or Suspension
Even the recommendation of, or consultation with, the Secretary of National
Defense, or other high-ranking military officials, is not a condition for the
President to declare martial law. A plain reading of Section 18, Article VII of the
Constitution shows that the President's power to declare martial law is not subject
to any condition except for the requirements of actual invasion or rebellion and
that public safety requires it. Besides, it would be contrary to common sense if the
decision of the President is made dependent on the recommendation of his mere
alter ego. Rightly so, it is only on the President and no other that the exercise of
the powers of the Commander-in-Chief under Section 18, Article VII of the
Constitution is bestowed. (Lagman v Medialdea, 2017)
_____________________________________________________________________________________
What are the limitations to the suspension of the privilege of writ of habeas
corpus and declaration of martial law?
1. Limited to 60 days
2. Duty to Report to Congress
3. Subject to Review/Revocation of the Congress
4. Subject to Review/Nullification of the Supreme Court

1. Limited to 60 days
The provision is clear. It states that the President may, for a period not exceeding
60 days, suspend the privilege of writ of habeas corpus; or place the Philippines
or any part thereof under martial law.
_____________________________________________________________________________________
2. Duty to Report to Congress
Within forty-eight hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress.
_____________________________________________________________________________________
3. Subject to Review/Revocation of the Congress
The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President.

The Congress is Only Required to Vote Jointly if it will REVOKE the

President’s Proclamation/Suspension
It is worthy to stress that the provision does not actually refer to a "joint session."
While it may be conceded, subject to the discussions below, that the phrase
"voting jointly" shall already be understood to mean that the joint voting will be
done "in joint session," notwithstanding the absence of clear language in the
Constitution, still, the requirement that "[t]he Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or special session, x x x" explicitly
applies only to the situation when the Congress revokes the President's
proclamation of martial law and/or suspension of the privilege of the writ of
habeas corpus. Simply put, the provision only requires Congress to vote jointly on
the revocation of the President's proclamation and/or suspension.
Hence, the plain language of the subject constitutional provision does not support
the petitioners' argument that it is obligatory for the Congress to convene in
joint session following the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus, under all circumstances.
(PADILLA VS. CONGRESS OF THE PHILIPPINES, G.R. NO. 231671, JULY 25, 2017
[J. Leonardo-De Castro])

COMMENT: Hence, when the Congress approves of the proclamation/suspension,

it does not need to convene and vote.

“Voting jointly”
This means both Houses must vote in the same regular or special session.
However, each House must still vote separately.

“At least majority of all its Members”

This means each House, by a vote of at least majority of ALL its members, may
revoke the proclamation or suspension.

Majority of the members constituting the quorum is insufficient.

Hence, 13 out of the 24 senators must vote to approve/revoke the proclamation or
suspension. Further, 153 out of the 304 representatives must vote to approve/
revoke the proclamation or suspension.

“Revocation shall not be set aside by the President”

This is enacted to prevent the President from abusing his powers.
_____________________________________________________________________________________
4. Subject to Review/Nullification of the Supreme Court
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.

Are the suspension of privilege of writ of habeas corpus and proclamation of

martial law political questions?
No. The provision states that the Supreme Court may review, in an appropriate
proceeding, filed by any citizen, the sufficiency of the factual basis of them.

“In an appropriate proceeding”

A proceeding "[i]n its general acceptation, [is] the form in which actions are to be
brought of opposing judgments, and of executing. In fine, the phrase "in an
appropriate proceeding" appearing on the third paragraph of Section 18, Article VII
refers to any action initiated by a citizen for the purpose of questioning the
sufficiency of the factual basis of the exercise of the Chief Executive's emergency
powers, as in these cases. It could be denominated as a complaint, a petition, or
a matter to be resolved by the Court. Hence, "in an appropriate proceeding" does
not refer to a petition for certiorari filed under Section 1 or 5 of Article VIII.
(REP. LAGMAN VS. HON. MEDIALDEA, G.R. No. 231658, July 4, 2017 [J. Del
Castillo])

Judicial Review under Sec. 18, Art. VII is SUI GENERIS; Different from Art. VIII
The unique features of the third paragraph of Section 18, Article VII clearly
indicate that it should be treated as sui generis separate and different from those
enumerated in Article VIII.
1. Under the third paragraph of Section 18, Article VII, a petition filed pursuant
therewith will follow a different rule on standing as any citizen may file it. In
Art. VIII, locus standi applies.
2. Said provision of the Constitution also limits the issue to the sufficiency of
the factual basis of the exercise by the Chief Executive of his emergency
powers. In Art. VIII, grave abuse of discretion is required.
3. The usual period for filing pleadings in Petition for Certiorari is likewise not
applicable under the third paragraph of Section 18, Article VII, considering the
limited period within which this Court has to promulgate its decision. (REP.
LAGMAN VS. HON. MEDIALDEA, G.R. No. 231658, July 4, 2017 [J. Del
Castillo])

COMMENT: In short,
1. Any citizen; Locus standi
2. Limit to factual basis of suspension/proclamation; Grave abuse of discretion
3. Usual period is not applicable

Sufficiency of Factual Basis Test; Limitation

Similarly, under the doctrine of contemporaneous construction, the framers of the
1987 Constitution are presumed to know the prevailing jurisprudence at the time
they were drafting the Constitution. Thus, the phrase “sufficiency of factual basis”
in Section 18, Article VII of the Constitution should be understood as the only test
for judicial review of the President's power to declare martial law and suspend the
privilege of the writ of habeas corpus under Section 18, Article VII of the
Constitution. The Court does not need to satisfy itself that the President's
decision is correct, rather it only needs to determine whether the President's
decision had sufficient factual bases.

Parameters for Determining Sufficiency of Factual Basis

The parameters for determining the sufficiency of factual basis are as follows:
1. actual Rebellion or Invasion;
2. Public safety requires it; the first two requirements must concur; and
3. there is Probable cause for the President to believe that there is actual
rebellion or invasion. (REP. LAGMAN VS. HON. MEDIALDEA, G.R. No. 231658,
July 4, 2017 [J. Del Castillo])

COMMENT: In short, actual rebellion or invasion; public safety; probable cause

The Power of Judicial Review Does Not Extend to Calibrating President’s

Decision Pertaining to Which Extraordinary Power to Avail
These extraordinary powers are conferred by the Constitution with the President
as Commander-in-Chief; it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants a mere exercise of the
calling out power; or whether the situation demands suspension of the privilege of
the writ of habeas corpus; or whether it calls for the declaration of martial law,
also lies, at least initially, with the President. The power to choose, initially, which
part among these extraordinary powers to wield in a given set of conditions is a
judgment call on the part of the President. As Commander-in-Chief, his powers
are broad enough to include his of the State.
It is thus beyond doubt that the power of judicial review does not extend to
calibrating the President's decision pertaining to which extraordinary power to
avail given a set of facts or conditions. To do so would be tantamount to an
incursion into the exclusive domain of the Executive and an infringement on the
prerogative that solely, at least initially, lies with the President. (REP. LAGMAN VS.
HON. MEDIALDEA, G.R. No. 231658, July 4, 2017 [J. Del Castillo])

COMMENT: In short, the power to choose which extraordinary power to avail lies
with the President. The Court is limited to determining the sufficiency of the
factual basis of the suspension or declaration.
_____________________________________________________________________________________
Power of Extension
Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety requires it.

Congress has the Power to Extend and Determine the Period of Martial Law
and the Suspension of the Privilege of the Writ of Habeas Corpus
The provision is indisputably silent as to how many times the Congress, upon the
initiative of the President, may extend the proclamation of martial law or the
suspension of the privilege of habeas corpus. Such silence, however, should not
be construed as a vacuum, flaw or deficiency in the provision. While it does not
specify the number of times that the Congress is allowed to approve an extension
of martial law or the suspension of the privilege of the writ of habeas corpus,
Section 18, Article VII is clear that the only limitations to the exercise of the
congressional authority to extend such proclamation or suspension are:
1. that the extension should be upon the President's initiative;
2. that it should be grounded on the persistence of the invasion or rebellion and
the demands of public safety; and
3. that it is subject to the Court's review of the sufficiency of its factual basis
upon the petition of any citizen. (REP. LAGMAN VS. HON. MEDIALDEA, G.R.
No. 231658, July 4, 2017 [J. Del Castillo])

“In the same manner”

The previous sentence states that “The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President.”

Hence, to extend the suspension/proclamation, the Congress must:

1. Vote jointly
2. By a vote of at least majority of ALL it members
3. Convening in a regular or special session
4. Extend the proclamation/suspension.

Does the martial law grant the President additional powers?

1. No. Martial law does not grant the President additional powers,
emergency powers are only available when granted by Congress,
as provided by Sec. 23, Art. VI
1. Executive clemency
1. Nature
1. The nature of the pardoning power is discretionary in the
President and may NOT be interfered with by the Congress or the
Court.
2. The President has the power to restore the political and civil rights
of the person pardoned. (Risos-Vidal v COMELEC)
2. Limitations
1. It can be granted only after Conviction by final judgment
2. It cannot be granted in cases of Impeachment
3. It cannot be granted in violation of election laws without the
favorable recommendation of the COMELEC
 4. It cannot be granted in cases of legislative Contempt or civil
contempt
5. It cannot absolve a convict from Civil liability
6. It cannot restore Public offices forfeited
3. Forms of executive clemency
1. Reprieve
2. Commutation of service
3. Pardon
4. Remission of fines and forfeitures, AFTER conviction
5. Amnesty, with the concurrence of majority of ALL members of
Congress. (Sec. 19, Art. VII)
1. What is pardon?
1. Pardon is an act of grace which exempts an individual
from punishment for a crime he committed. (US v Wilson,
1992)
2. Kinds of pardon
1. Conditional - the pardon is in the nature of a contract
between the President and the convict. The pardonee is
duty bound to comply with the conditions of the pardon.
(Torres v Gonzales, 1987)
2. Absolute - the pardon is absolute if it is unconditional,
unrestricted in scope, complete, and plenary in character.
(Risos-Vidal v COMELEC, 2015)
3. Effect of pardon
1. Pardon abolishes the punishment and does not restore the
rights to hold public office, or right of suffrage, unless
such rights be expressly restored by the terms of the
pardon. (Risos-Vidal v Lim) In short, it looks forward.
4. Effect of amnesty
1. Amnesty looks backward, abolishes and puts into oblivion
the offense itself. The person released by amnesty stands
before the law as though he had committed no offense.
(Magdalo v COMELEC, 2012)
5. Effects of the other forms of executive clemency
1. Reprieve - the temporary suspension of the execution of
sentence.
2. Commutation of service - remission of part of the
punishment or a substitution of a less penalty for the one
originally imposed
3. Parole - conditional release of the offender after he
serves the minimum term of his prison sentence
4. Remission of fines and forfeitures - prevents the
collection of fines or the confiscation of forfeited
 4.

property.
6. The exercise of the pardoning power is not absolute. The
following are the limitations on the pardoning power of the
President:
1. It can be granted only after conviction by Final judgment,
except in cases of amnesty;
2. It cannot be granted in cases of civil or legislative
contempt;
3. It cannot absolve convict of civil liability;
4. It cannot be granted in cases of impeachment;
5. It cannot be granted for violations of election laws without
favorable recommendations of the COMELEC; and
6. It cannot restore public offices forfeited.
7. Distinguish pardon and amnesty
Pardon
Amnesty

As to who grants An act of grace by the Chief Executive with the

Chief Executive alone concurrence of majority
(Tiu v Dizon) of ALL Members of
Congress
Nature of Act Private Public

As to when After conviction only Before or after institution

of criminal action or after
conviction
As to which crimes Generally all Political offenses

Effect Pardon abolishes the Amnesty looks backward,

punishment and does not
restore the rights to hold
public office, or right of
suffrage, unless such
rights be expressly
restored by the terms of
the pardon. (Risos-Vidal v
Lim) In short, it looks
forward.
Judicial Notice The courts do not take
judicial notice because it
is a private act. Hence, it
must be proved before
the courts.
abolishes and puts into
oblivion the offense itself.
The person released by
amnesty stands before the
law as though he had
committed no offense.
(Magdalo v COMELEC,
2012)
The courts take judicial
notice because it is a
public act. Hence, there
is no need to prove
before the courts.
2. Diplomatic power
1. The President is the SOLE organ of the nation in its external relations,
and its SOLE representative with foreign nations. (Neri v Senate,
2008)
2. What are the foreign affairs powers granted to the President?
1. Power to enter into Treaties (Sec. 21, Art. VII)
2. Power to enter into Executive agreements (Bayan Muna v Romulo,
2011)
3. Power to appoint Ambassadors, other public ministers, and
consuls, with the concurrence of the Commission on
Appointments (Sec. 16, Art. VII)
4. Power to receive Ambassadors and other public ministers duly
accredited to the Philippines.
3. Limitation on treaty-making power
1. It shall NOT be valid or effected unless concurred by at least 2/3
of the Members of the Senate. (Sec. 21, Art. VII)
4. Who ratifies a treaty?
1. In our jurisdiction, the power to ratify is vested in the President
and NOT the legislature. The Senate merely gives or withholds its
consent to the ratification by the President. (Bayan v Zamora,
2000)
5. The Department of Foreign Affairs (DFA) by virtue of Section 9,
Executive Order No. 459 (Providing for the Guidelines in the
Negotiation of International Agreements and its Ratification),
determined that the Protocol Relating to the Madrid Agreement
Concerning the International Registration of Marks (Madrid Protocol)
was an executive agreement. The President ratified the Madrid
Protocol through an instrument of accession which was deposited
with the Director General of the World Intellectual Property
Organization (WIPO). XYZ Association challenged the validity of the
President's accession to the Madrid Protocol without the concurrence
of the Senate. Is the concurrence of the Senate required to enact the
accession by the President? Explain briefly.
1. No, the concurrence of the Senate is not required. The power
of the President to enter into binding executive agreements
without Senate concurrence is already well-established in this
jurisdiction (Saguisag v. Ochoa, G.R. No. 212426, January 12,
2016).
2. Jurisprudence provides that the registration of trademarks and
copyrights have been the subject of executive agreements
entered into without the concurrence of the Senate. In this case,
the Madrid Protocol deals with the international registration of
marks. It is, thus, an executive agreement which may be entered
 into by the President without the concurrence of the Senate
(Intellectual Property Association of the Philippines, v. Ochoa,
G.R. No. 204605, July 19, 2016).
6. On December 28, 2000, the Philippines, through then President
Joseph Estrada, signed the Rome Statute of the International Criminal
Court (ICC). On August 23, 2011, following the election of President
Benigno Aquino III, the Senate, with a vote of 17-1, passed a resolution
enabling the Philippines’ consummate accession to the Rome Statute.
On March 15, 2018, the President Rodrigo Duterte announced the
Philippines withdrawal from the ICC. On March 16, 2018, the
Philippines formally submitted its Notice of Withdrawal through a Note
Verbale to the United Nations Secretary General who received the
same on March 17, 2018. The said withdrawal was made without the
concurrence of the Senate. May the President unilaterally withdraw
from treaties or international agreements?
1. Yes. In Pangilinan, et. al. v. Cayetano (2021), the Court adopts the
following guidelines as the modality for evaluating cases
concerning the President’s withdrawal from international
agreements:
1. The President enjoys some leeway in withdrawing from
agreements which he or she determines to be contrary to the
Constitution or statutes.
2. The President cannot unilaterally withdraw from agreements
which were entered into pursuant to congressional
imprimatur.
3. The President cannot unilaterally withdraw from international
agreements where the Senate concurred and expressly
declared that any withdrawal must also be made with its
concurrence.
2. NOTE: The Philippines’ withdrawal of its membership from the ICC
took effect on March 17, 2019 (one year after the date of receipt
of the notification). The Philippines completed the requisite acts
of withdrawal. This was all consistent and in compliance with what
the Rome Statute plainly requires. xxx Further, the ICC
acknowledged the Philippines’ action soon after it had withdrawn.
This foreclosed the existence of a state of affairs correctible by
this Court’s finite jurisdiction. The Petitions were, therefore, moot
when they were filed. (Pangilinan, et. al. v. Cayetano, G.R. No.
238875, March 16, 2021, Leonen)
7. Difference between a treaty and executive agreement
Treaty Executive Agreement
Nature They involve political They involve details
issues/changes of national carrying out an established
policy/permanent national policy/temporary
character. character. (Bayan Muna v
Romulo, 2011)
 Treaty Executive Agreement
Nature They involve political They involve details
issues/changes of national carrying out an established
policy/permanent national policy/temporary
character. character. (Bayan Muna v
Romulo, 2011)
International law A treaty is an international
agreement concluded
between States
WHATEVER its particular
designation. (Art. 2, VCLT)
Hence, there is no
distinction.
Philippine law A treaty is concluded by An executive agreement is
the President with the concluded by the President
concurrence of at least based on the inherent
2/3 of all the members of authority granted by the
Senate. Constitution. Hence, it
does not need the
concurrence of the
Senate. (Bayan v Romulo,
2011)
3. Powers relative to appropriation measures
1. The President signs into law the Appropriations Act passed by
Congress but she vetoes separate items therein, among which is a
provision stating that the President may not increase an item of
appropriation by transfer of savings from other items. The House of
Representatives chooses not to override this veto. The Senate,
however, proceeds to consider two options: (1) to override the veto
and (2) to challenge the constitutionality of the veto before the
Supreme Court.
1. Is option (1) viable? Is so, what is the vote requirement to override
the veto?
2. Is option (2) viable? if not. why note? If viable, how should the
Court decide the case?
1. Option 1 is not viable in as much as the House of
Representatives, from which the Appropriations Act originated
and to which the President must have returned the law, is
unwilling to override the presidential veto. There is, therefore,
no basis for the Senate to even consider the possibility of
overriding the President’s veto. Under the Constitution the
vote of two-thirds of all the members of the House of
Representatives and the Senate, voting separately, will be
needed to override the presidential veto.
 2. It is not feasible to question the constitutionality of the veto
before the Supreme Court. In Gonzales v. Macaraig (G.R. No.
87636, November 19, 1990), the Supreme Court upheld the
constitutionality of a similar veto. Under Article VI, Sec. 27(2)
of the Constitution, a distinct and severable part of the
General Appropriations act may be the subject of a separate
veto. Moreover, the vetoed provision does not relate to any
particular appropriation and is more an expression of a
congressional policy in respect of augmentation from savings
than a budgetary provision. It is therefore an inappropriate
provision and it should be treated as an item for purposes of
the veto power of the President. The Supreme Court should
uphold the validity of the veto in the event the question is
brought before it.
4. Delegated powers
1. Emergency powers (Sec. 23(2), Art. VI)
1. When may Congress grant emergency powers to the President?
(WELLRP)
1. War or other Emergency
2. Law
3. Limited period only
4. Subject to Restrictions as the Congress may prescribe
5. Must carry out a national Policy declared by Congress. (David
v Arroyo; Sec. 23(2), Art. VI)
1. Emergency power must be granted by LAW. However, it is
withdrawn by mere RESOLUTION OR cease upon the next
adjournment of session.
1. The term “resolution” includes an approved bill by
Congress. (Rodriguez vs. Gella, 1953)
2. Tariff powers (Sec. 28(2), Art. VI)
1. The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as
it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework
of the national development program of the Government.
5. Residual powers
1. The President has unstated residual powers which are implied from
the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the
Constitution.
1. Among the duties of the President is to protect and promote the
interest and welfare of the people. Hence, her decision to bar the
 1.

return of the Marcoses is in compliance with this bounden duty.

(Marcos v Manglapus, 1989)
2. In short, if the power is not vested in the Legislature or in the
Judiciary, the President can exercise the same under his residual
powers.
6. Veto powers
1. If the President approves the bill, he shall sign it; otherwise, he shall
veto it and return the same with his objections to the House where it
originated. (Sec. 27(1), Art. VI)
2. What is the limitation of the veto power?
1. In its exercise, the President shall either veto the ENTIRE bill or
NONE at all. (Bengzon v Drilon, 1992)
2. Exceptions:
1. Item veto - The President shall have the power to veto any
particular item in an appropriation, revenue, or tariff bill, but
the veto shall not affect the items which he does not object.
(Sec. 27(2), Art. VI)
2. Doctrine of inappropriate provisions.
1. The doctrine provides that the President may veto
“riders” in a bill. To recall, riders are provisions which are
NOT germane or related to the subject matter of the bill.
(Gonzales v Macaraig Jr., 1990)
3. When must the President communicate his veto?
1. He must communicate it within 30 days after the date of receipt of
the bill. Otherwise, it shall become a law as if he had signed it.
(Sec. 27(1), Art. VI)
4. Does the President have the power of “pocket veto’?
1. No. A pocket veto is the power to veto a bill by simply refusing to
act on it. In the Philippines, the President does not have such
power because in case of inaction, the bill shall become a law as if
he had signed it. (Bolinao Electronics v Valencia, 1964)
10. Rules of Succession
1. Vacancy in the Office of President during the term for which he was
elected
1. Death, permanent disability, removal, resignation - the VP
2. Vacancy in the Office of VP during the term for which he was elected
1. The President shall nominate a VP from the Senate or House of
Representatives, who shall assume office upon confirmation by a
MAJORITY VOTE of ALL the members of both Houses, voting
separately. (Sec. 9, Art. VII)
3. Vacancy in the Office of President AND VP during their term
1. Death, permanent disability, removal, resignation - The Senate
President, or in case of inability, the Speaker shall ACT as President
 1. Until a President or VP shall have been elected and qualified.
(Sec. 8, Art. VII)
4. Vacancy in the Office of President, VP, Senate President, AND Speaker
during their term
1. Death, permanent disability, removal, resignation - the Congress shall,
by law, provide WHO shall serve as President until the President or VP
shall have been elected and qualified. (Sec. 8, Art. VII)

_____________________________________________________________________________________
SECTION 18.
1. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and
2. Whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion.
3. In case of invasion or rebellion, when the public safety requires it, he may, for
a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law.
4. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress.
5. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
6. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires
it.
7. The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without any need of a call.
8. 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.
9. 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.
10. 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 the invasion.
11. During the suspension of the privilege of the writ, any person thus arrested
 11.
or detained shall be judicially charged within three days, otherwise he shall
be released.

Very easy:
1. President->Commander-in-Chief of all armed forces of the Philippines
2. When necessary->Call out armed forces->prevent/suppress (LIR)
1. Lawless violence
2. Invasion
3. Rebellion
3. In case of invasion or rebellion, when public safety requires it
1. He may, for a period 60 days,
1. Suspend the privilege of writ of Habeas corpus; or
2. Place the Philippines or any part thereof under Martial law.
4. The Congress->voting jointly->vote of at least a majority of ALL its Members-
>may revoke proclamation/suspension->not be set aside by the President.
5. Initiative of President->the Congress may->in the same manner->extend
proclamation/ suspension->period to be determined by Congress->if invasion/
rebellion shall persist and public safety requires it.

_____________________________________________________________________________________

SECTION 19. Except in cases of impeachment, or as otherwise provided in this

Constitution, the President may grant reprieves, commutations and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority
of all the Members of the Congress.

Limitations of Pardon
1. It does not apply in cases of impeachment
2. Otherwise provided in the Constitution
3. It can be granted only after Conviction by final judgment
4. It does not extinguish civil liability
5. It cannot be granted in Legislative contempt as it would violate the separation
of powers
6. It cannot be granted in Civil contempt as the State is without interest in the
same
7. It cannot restore public offices forfeited (Monsanto v Factoran)
8. It cannot be granted in cases of violation of Election law, without the favorable
recommendation of the COMELEC (Sec. 5, Art. IX-C)

Pardon v Amnesty
Pardon - infractions of the peace of the State
- individuals
 - granted only after conviction by final judgment
- acceptance by the convict is necessary
- this does not require the concurrence of Congress
- private act which must be pleaded and proved
- looks forward and relieves the pardon of the consequences of the offense.

Amnesty - political offenses

- group of persons
- granted before or after conviction by final judgment
- acceptance by the convict is not necessary
- this requires the concurrence of the majority of all members of the
Congress
- public act which must not be pleaded and proved
- looks backward and abolishes the offense itself. The accused committed
no offense

Since amnesty looks backward and abolishes the offense itself, the accused can
run for public offense again.

Pardon; The right to hold public office and the right of suffrage are not
restored
A pardon shall not work the restoration of the right to hold public office, or the
right of suffrage, unless such rights be expressly restored by the terms of the
pardon. (Art. 36, RPC)

Pardon; Application of “unless expressly restored by the terms of the

pardon”
Risos-Vidal was contending that PGMA should have specifically stated which civil
and political rights removed under Article 41 were restored. The Court held that
Congress may not dictate as to how the President may exercise his/her power of
executive clemency. The form or manner by which the President, or Congress for
that matter, should exercise their respective Constitutional powers or prerogatives
cannot be interfered with unless it is so provided in the Constitution. Here, it was
clearly, plainly, and unambiguously stated in the text of the pardon that “all the
civil and political rights of Estrada were restored.” Hence, his right to suffrage and
to hold public office were restored. (Risos-Vidal v COMELEC, 2015)
_____________________________________________________________________________________
SECTION 20. The President may contract or guarantee foreign loans on behalf of
the Republic of the Philippines with the prior concurrence of the Monetary Board,
and subject to such limitations as may be provided by law. The Monetary Board
shall, within thirty days from the end of every quarter of the calendar year, submit
to the Congress a complete report of its 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.
_____________________________________________________________________________________
SECTION 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.

Treaty/International Agreement v. Executive Agreement

Treaty/International Agreement - this involves political issues or changes of
national policy and those of a permanent character; formal documents require
ratification by the concurrence of at least 2/3 of all the members of Senate.
(Commissioner of Customs v Eastern Sea Trading)

Executive Agreement - this involve adjustment of details carrying out well

established national policies and transitions and involving arrangements of a more
or less temporary nature; it does not require ratification by the Senate.
(Commissioner of Customs v Eastern Sea Trading)

How to illustrate?

The Constitution is silent as to how treaties/executive agreements can be

repealed
OPINION: Hence, the residual power of the President applies. He can repeal
treaties/executive agreements on his own. To recall, “residual power” is that power
that is not enumerated in the Constitution. This power is vested in the President.

_____________________________________________________________________________________