2019 Ust Lecture in Political Law Executive Department

2019 Lecture in Political Law (Executive 10/9/2019
Department)
2019 LECTURE IN
POLITICAL LAW
Executive Department
By: Atty. Enrique V. dela Cruz, Jr.
EXECUTIVE
DEPARTMENT
@Atty. Enrique V. dela Cruz, Jr. 1

Department)
• Q: Can the President choose to award the status of

National Artist to persons not nominated by the
NCCA and CCP?
• A: NO. Under the law, the discretion of the President
in the matter of the Order of National Artists is confined
to the names submitted to him/her by the NCCA and the
CCP Boards.
• This means that the President could not have
considered conferment of the Order of National Artists
on any person not considered and recommended by the
NCCA and the CCP Boards.
• The President's discretion on the matter does not
extend to removing a legal impediment or overriding a
legal restriction. [Almario v. Executive Secretary, 701
SCRA 269 (2013)]
May the President discipline a deputy ombudsman?

A: NO. Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and officials in
the Executive Department are subject to the Ombudsman's
disciplinary authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself.
The Office of the Ombudsman, by express constitutional

mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate.
What is true for the Ombudsman must be equally and

necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and
controls external to her Office. [Emilio Gonzales III vs. Office
of the President, G.R. No. 196232. January 28, 2014].

Department)
May the President discipline the Chairman and other

officers of the Commission on Human Rights?
• No. As the term of office of the Chairman (and Members) of
the Commission on Human Rights, is seven (7) years,
without re-appointment, --- their tenure cannot be made
dependent on the pleasure of the President.
• It is extremely difficult to conceptualize how an office

conceived and created by the Constitution to be
independent — as the Commission on Human Rights —
and vested with the delicate and vital functions of
investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the
pleasure of the President. [Bautista v. Salonga, G.R. No.
86439. April 13, 1989].
INCOMPATIBLE OFFICE
Unless otherwise allowed by law or
the primary functions of his position,
no appointive official shall hold any
other office or employment in the
Government or any subdivision,
agency or instrumentality thereof,
including government-owned or
controlled corporations or their
subsidiaries. [Section 13, Article VII and
Section 7, paragraph (2), Article IX-B of the
1987 Constitution]

Department)
Holding Two Concurrent Positions

• Elena bautista was DOTC Usec. She was designated
as OIC of MARINA in a temporary capacity. Is this
valid?
• No. The Constitutional ban on dual or multiple
positions refers to the holding of the office, and not to
the nature of the appointment or designation, words
which were not even found in Section 13, Article VII
nor in section 7, Article IX-B.
• To “hold” an office means to “possess or occupy” the
same, or to be “in possession and administration”,
which implies nothing less than the actual discharge
of the functions and duties of the office.
• FUNA vs. ERMITA, G.R. No. 184740, February 11,
2010, 612 SCRA 308.
• Q: Can the Acting Secretary of Justice concurrently

serve as Acting Solicitor General?
• NO. That is a clear violation of the constitutional

prohibition under Section 13, Article VII of the 1987
Constitution.
• The prohibition against dual or multiple offices being
held by one official must be construed as to apply to
all appointments or designations, whether
permanent or temporary, for it is without question
that the avowed objective of Section 13, is to
prevent the concentration of powers in the
Executive Department.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.

Department)
• Q: State the exceptions to the ban against the

holding of 2 or more positions.
• The only two exceptions against the holding of
multiple offices are: (1) those provided for under
the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member
of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13,
Article VII without additional compensation in ex
officio capacities as provided by law and as
required by the primary functions of the officials’
offices.
• Funa vs. Agra, G.R. NO. 191644, FEBRUARY 19, 2013.
Q: Name the category or categories of officials

whose appointments need confirmation by the
Commission on Appointments? (2%) (1999 Bar
Question)
A:
According to Sarmiento v. Mison, 156 SCRA 549, the
only officers whose appointments need confirmation
by the Commission on Appointments are the head of
executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other
officials whose appointments are vested in the
President by the Constitution.
10

Department)
Q: A was a career Ambassador when he accepted an ad

interim appointment as cabinet Member. The Commision
on Appointment bypassed his ad interim appointment,
however, and he was not re-appointed. Can he re-assume
his position as career Ambassador? (5%) (2010 Bar
Question)
SUGGESTED ANSWER:
The career Ambassador cannot re-assume his position as
career Ambassador. His ad interim appointment as Cabinet
Member was a permanent appointment. (Summers vs. Ozaeta,
81 Phil. 754 [1948].
He abandoned his position as Ambassador when he accepted
his appointment as Cabinet Member because as Cabinet
Member, he could not hold any other office during his tenure.
(Section13, Article VII, Constitution.)
11
Midnight appointment
• Section 15, Article VII:
• "Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein prejudice public service or
endanger public safety.“
• Section 4 (1), Article VIII:

• "The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en
banc or, in its discretion, in divisions of three, five, or
seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof ."
12

Department)
b. GR: Two months immediately before

the next Presidential elections (2nd
Monday of March), and up to the end of
his “term” (June 30), a President (or Acting
President) shall not make appointments.
XPN: Temporary appointments, to

executive positions, when continued
vacancies therein will prejudice public
service (e.g. Postmaster); or endanger
public safety (e.g. Chief of Staff)
13
May the President appoint a Chief Justice

even during the ban?
• Yes. The ban under Section 15, Article VII of the
Constitution does not cover appointments to the
SC — "(t)wo months immediately before the next
presidential elections and up to the end of his
terms" — the President is prohibited to make
appointments ONLY to lower courts;
• Under Sections 4(1) and 9 of Article VIII, the
President is required to fill vacancies in the courts
within the time frames provided therein unless
prohibited by Section 15 of Article VII.
• The President may validly appoint the next chief
justice to fill-in the vacancy in the SC. (De Castro
v. Judicial and Bar Council, G.R. No. 191002,
Mar. 17, 2010)
14

Department)
PROBLEM:
Prior to the conduct of the May 2010 elections, then
President Gloria Macapagal-Arroyo (President Macapagal-
Arroyo) issued more than 800 appointments to various
positions in several government offices during the ban on
appointments (midnight appointments).
On 30 June 2010, President Benigno S. Aquino III
(President Aquino) took his oath of office as President of
the Republic of the Philippines.
On 30 July 2010, President Aquino issued EO 2 recalling,
withdrawing, and revoking appointments issued by
President MacapagalArroyo which violated the
constitutional ban on midnight appointments.
Is EO 2 correct? Should the appointments made by GMA
be revoked?
15
ANSWER: YES.
All of the 800 appointments of GMA were midnight
appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional.
The President exercises only one kind of appointing
power. There is no need to differentiate the exercise of the
President’s appointing power outside, just before, or during
the appointment ban.
The Constitution allows the President to exercise the power
of appointment during the period not covered by the
appointment ban, and disallows (subject to an exception) the
President from exercising the power of appointment during
the period covered by the appointment ban.
So even if the appointment was accepted after the ban, it
is still void. [Velicaria-Garafil v. Office of the President,
(G.R. No. 203372,16 June 2015)]
16

Department)
• Q: Can active members of the AFP be

designated or detailed to civilian positions
in the Bureau of Customs?
• NO. Section 5(4), Article XVI of the 1987

Constitution states:
• “No member of the AFP in the active service
shall, at any time, be appointed or designated
in any capacity to a civilian position in the
government including GOCC’s.”
• See also Executive Order 371 (1987)
17
QUESTION:
The President abolished the Office of the
Presidential Spokesman in Malacañang
Palace and a long-standing Bureau under
the Department of Interior and Local
Governments.
The employees of both offices assailed the
action of the President for being an
encroachment of legislative powers and
thereby void.
Was the contention of the employees
correct? Explain. (2003 Bar Question)
18

Department)
SUGGESTED ANSWER:
The contention of the employees is not correct. As held in Buklod
nq Kawaninq EIIB v. Zamora. 360 SCRA 718 [2001], Section 31,
Book III of the Administrative Code of 1987 has delegated to the
President continuing authority to reorganize the administrative
structure of the Office of the President to achieve simplicity,
economy and efficiency.
Since this includes the power to abolish offices, the President can
abolish the Office of the Presidential Spokesman, provided it is done
in good faith.
The President can also abolish the Bureau in the Department of
Interior and Local Governments, provided it is done in good faith
because the President has been granted continuing authority to
reorganize the administrative structure of the National Government
to effect economy and promote efficiency, and the powers include
the abolition of government offices. (Presidential Decree No. 1416,
as amended by Presidential Decree No. 1772; Larin v. The
Executive Secretary. 280 SCRA 713 [I997]).
19
QUESTION: Petitioner Pichay assails the

constitutionality of E.O. 13. Petitioner asseverates that the
President is not authorized under any existing law to
create the Investigative and Adjudicatory Division, Office
of the Deputy Executive Secretary for Legal Affairs (IAD-
ODESLA) and that by creating a new, additional and
distinct office tasked with quasi-judicial functions, the
President has not only usurped the powers of congress to
create a public office, appropriate funds and delegate
quasi-judicial functions to administrative agencies but has
also encroached upon the powers of the Ombudsman.
Can the President abolish the PAGC and transfer its

powers to a new office thru a mere Executive Order?
20

Department)
• Q: Can the President abolish the PAGC and

transfer its powers to a new office thru a mere
Executive Order?
• A: YES.
• First, the President has continuing authority to
reorganize the Executive Department under E.O. 292.
• Second, the reorganization did not entail the creation of
a new, separate and distinct office.
• The abolition of the PAGC did not require the creation
of a new, additional and distinct office as the duties and
functions that pertained to the defunct anti-graft body
were simply transferred to the ODESLA, which is an
existing office within the Office of the President Proper.
• Pichay v. ODESLA, G.R. NO. 196425. JULY 24, 2012
21
COMMANDER-IN-CHIEF
POWERS
22

Department)
Q: After the Maguindanao massacre, the

president declared a state of emergency and
called out the armed forces. Is this valid?
A: The calling out of the armed forces to prevent or

suppress lawless violence in such places is a
power that the Constitution directly vests in the
President. She did not need a congressional
authority to exercise the same.
The President's call on the armed forces to
prevent or suppress lawless violence springs from
the power vested in her under Section 18, Article
VII of the Constitution, which provides. (Ampatuan
v. Sec. Puno, G.R. No. 190259. June 7, 2011.)
23
Q: Who can challenge the constitutionality of

the declaration of martial law?
A: The Constitution explicitly clothes "any citizen"
with the legal standing to challenge the
constitutionality of the declaration of martial law
or suspension of the writ.
The Constitution does not make any distinction
as to who can bring such an action.
As discussed in the deliberations of the
Constitutional Commission, the "citizen" who can
challenge the declaration of martial law or
suspension of the writ need not even be a
taxpayer. (Fortun v. Pres. Macapagal-Arroyo,
March 20, 2012)
24

Department)
Q: Can the President impose martial law without

any concurrence of Congress?
A: Yes. The Constitution vests exclusively in the
President, as Commander-in-Chief, the
emergency powers to declare martial law or
suspend the writ in cases of rebellion or invasion,
when the public safety requires it.
The imposition of martial law or suspension of the
writ takes effect the moment it is declared by the
President.
No other act is needed for the perfection of the
declaration of martial law or the suspension of the
writ. (Ampatuan v. Sec. Puno, G.R. No. 190259.
June 7, 2011.)
25
Q: Does Congress have the mandatory duty to convene

jointly upon the President's proclamation of martial law
or the suspension of the privilege of the writ of habeas
corpus?
A: NO. 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 Article VII, Section 18 of the 1987
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.
It is worthy to stress that the provision does not actually refer to
a "joint session.“
The requirement of voting jointly explicitly applies only to the
situation when the Congress revokes the President's
proclamation of martial law.
Padilla v. Congress, 25 July 2017
26

Department)
Q: Can the Supreme Court review the

correctness of the President’s basis for
imposing martial law?
A: NO. In determining the sufficiency of the factual
basis of the declaration -- the Court should not
expect absolute correctness of the facts stated in
the proclamation and in the written Report as the
President could not be expected to verify the
accuracy and veracity of all facts reported to him
due to the urgency of the situation.
The Court should only look at whether the President
acted arbitrarily. (Edcel Lagman v. Executive
Secretary, GR No. 231658, July 4, 2017.)
27
Is the right to bail impaired if the

privilege of the writ of habeas corpus is
suspended?
The right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended.
d. He may proclaim martial law over the entire Philippines or any

part thereof provided that
i. There must be an invasion or rebellion; and

ii. The public safety requires the proclamation of martial law
over the Philippines or any part thereof.
Note: Martial law shall not be more than 60 days following which it
shall be lifted unless extended by Congress. Further, the
President, personally or in writing, has the duty to report to
Congress within 48 hours.
28

Department)
What are the requisites for the

suspension of the privilege of the
writ of habeas corpus?
1. There must be an invasion or rebellion; and
2. The public safety requires the suspension.
Note: The invasion and rebellion must be actual

and not merely imminent.
(Ampatuan v. Sec. Puno, G.R. No. 190259. June
7, 2011.)
29
State the guidelines in the declaration

of martial law.
1. There must be an invasion or rebellion, and
2. Public safety requires the proclamation of martial

law all over the Philippines or any part thereof.
Duration: Not more than 60 days following which it

shall be lifted unless extended by Congress
Duty of the President to report to Congress: Within

48 hours personally or in writing
30

Department)
Note:
The power of Congress is to revoke — not to confirm
or ratify, much less to approve, — the President's
action declaring martial law or suspending the
privilege of the writ of habeas corpus. It is a veto
power, just as the power of the judiciary to review
the President's action is a veto power on the
Executive's action.
It is clear, therefore, that the President's power to
declare martial law or suspend the writ is
independent, separate, and distinct from any
constitutionally mandated act to be performed by
either the Legislature or the Judiciary.
31
When the President declares a state of national

emergency and calls out the Armed Forces, does
such an act give to the President additional powers?
No. The declaration of a state of emergency is

merely a description of a situation which
authorizes her to call out the Armed Forces to
help the police maintain law and order.
It gives no new power to her, nor to the police.
Certainly it does not authorize warrantless
arrests or control of media. (Randolf S. David,
et al. v. Gloria Macapagal-Arroyo, et al.,
G.R. No. 171396, May 3, 2006).
32

Department)
Does the proclamation of a state of national emergency authorize the

President under Section 17, Article XII to temporarily take over or
direct the operation of any privately-owned public utility or business
affected with public interest?
NO. Section 17. Articled XII must be understood as an aspect of the

emergency power clause. The taking over of private business affected
with public interest is just another face of the emergency powers generally
reposed upon Congress.
Thus, when Section 17 states that “the State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business
affected with public interest but refers to Congress, not the President.
Whether or not the President may exercise such power is dependent on

whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof (Randolf S. David, et al. v. Gloria Macapagal-
Arroyo, et al., G.R. No. 171396, May 3, 2006).
33
Q: May the president be held liable under the

doctrine of “command responsibility” for enforced
disappearances of political dissidents under the
rules on the writ of amparo?
A: No. There is still no Philippine law that provides for
criminal liability under that doctrine. The individual’
criminal liability of respondents, if there be any, is beyond
the reach of amparo proceedings.
The writ of amparo was conceived to provide expeditious
and effective procedural relief against violations or
threats of violation of the basic rights to life, liberty, and
security of persons; the corresponding amparo suit,
however, “is not an action to determine criminal guilt.
(Rubrico v. Pres. Macapagal-Arroyo, G.R. No. 183871,
February 18, 2010, 613 SCRA 233.)
34

Department)
Q: May the president declare a “State of

Rebellion”? What is the Significance of such a
declaration?
A: The President's authority to declare a state of
rebellion springs in the main from her powers as Chief
Executive and, at the same time, draws strength from
her Commander-in-Chief powers. This notwithstanding,
in calling out the Armed Forces, a declaration of a state
of rebellion was an utter superfluity.
At most, it only gives notice to the nation that such a
state exists and that the Armed Forces may be called to
prevent or suppress it. The Court found that such a
declaration was devoid of any legal significance. For all
legal intents, the declaration was deemed not written.
[SANLAKAS v. Executive Secretary, G.R. No. 159085.
February 3, 2004.]
35
Q: May the president declare a “State of

Rebellion”? What is the Significance of such a
declaration?
A: The mere declaration of a state of rebellion cannot
diminish or violate constitutionally protected rights.
Indeed, if a state of martial law does not suspend the
operation of the Constitution or automatically suspend
the privilege of the writ of habeas corpus, then it is with,
more reason that a simple declaration of a state of
rebellion could not bring about these conditions.
A person may be subjected to a warrantless arrest for
the crime of rebellion whether or not the President has
declared a state of rebellion, so long as the requisites for
a valid warrantless arrest are present. [SANLAKAS v.
Executive Secretary, G.R. No. 159085. February 3, 2004.]
36

Department)
PARDONING
POWER
37
What is the general rule in executive clemencies?

The President may grant reprieves, commutations,
pardons, and remit fines and forfeitures, after
conviction by final judgment. (Art. VII, Sec. 19)
Note: The grant is discretionary, and may not be controlled

by the legislature or reversed by the court, unless there is a
constitutional violation. Where a conditional pardon is
granted, the determination of whether it has been violated
rests with the President.
“No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules and regulations shall be
granted by the President without the favorable
recommendation of the COMELEC." (Article IX, C, Section 5,
Constitution).
38

Department)
• Q: Can the President grant executive clemency in

administrative cases?
• A: YES
• If the President can grant reprieves, commutations and
pardons, and remit fines and forfeitures in criminal
cases, with much more reason can he grant executive
clemency in administrative cases, which are clearly less
serious than criminal offenses.
• It is evident from the intent of the Constitutional Commission,
therefore, that the President's executive clemency powers
may not be limited in terms of coverage, except as already
provided in the Constitution.
• If those already adjudged guilty criminally in court may be
pardoned, those adjudged guilty administratively should
likewise be extended the same benefit.[Llamas v. Orbos,
G.R. No. 99031. October 15, 1991.]
39
• QUESTION:
• Ruben Tiu was sentenced to suffer Reclusion Perpetua
following his conviction for drug trafficking.
• The Board of Pardons and Parole (BPP) recommended the
grant of executive clemency to Tiu, among many others.
• Then President GMA granted him "conditional pardon without
parole conditions," but it turned out, that his Certificate of
Conditional Pardon was not signed by PGMA.
• Meantime Congress enacted RA 10592, which substantially
increased the Good Conduct Time Allowance (GCTA) of
qualified inmates – Ruben Tiu.
• The Director of Prisons granted to Tiu a “colonist status”,
which under the BuCor Rules will automatically modify his
sentence to 30 years.
• The BPP then applied the provisions of RA 10592 and
commuted the sentence of Tiu for his GCTA.
40

Department)
• Q: Should Tiu be now released? On what basis – the

pardon or RA 10592?
• A:
• He cannot be released. His Certificate of Conditional Pardon
was not signed by PGMA. Tus, he was not granted pardon.
• It must be emphasized that pardon is an act of grace,
proceeding from the power entrusted with the execution of
the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he
has committed.
• It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is
intended and not communicated officially to the court.
• A pardon is a deed, to the validity of which delivery is
essential. [Tiu v. Judge Dizon, G.R. No. 211269. June 15,
2016. J. Perlas Bernabe]
41
• Q: Should Tiu be now released? On what basis –

the pardon or RA 10592?
• A:
• He cannot also be released on the basis of RA10592.
• The act of classification as a penal colonist is separate
from and necessarily precedes the act of approval by
the Executive of his clemency.
• The reduction of his sentence is a partial pardon, and
our Constitution reposes in the President the power
and the exclusive prerogative to extend the same.
• He cannot be released unless the President approves
the commutation of his sentence. [Tiu v. Judge
Dizon, G.R. No. 211269. June 15, 2016. J. Perlas
Bernabe]
42

Department)
• Q: The IRR of RA 10592 allows the BuCor Chief to

release inmates on the basis of GCTA. Is this legal?
• A: NO.
• Since the Chief Executive is required by the
Constitution to act in person, he may not
delegate the authority to pardon prisoners under
the doctrine of qualified political agency.
• The reduction of a prisoner's sentence is a partial
pardon, and our Constitution reposes in the
President the power and the exclusive
prerogative to extend the same.
• [Tiu v. Judge Dizon, G.R. No. 211269. June 15, 2016.
J. Perlas Bernabe]
43
DISTINGUISH PARDON FROM AMNESTY

• 1. Pardon is a private act and must be pleaded and proved
by the person pardoned; while amnesty is a public act of
which courts take judicial notice;
• 2. Pardon does not require the concurrence of Congress,
while amnesty requires the concurrence of Congress;
• 3. Pardon is granted to individuals, while amnesty is granted
to classes of persons or communities;
• 4. Pardon may be granted for any offense, while amnesty is
granted for political offenses;
• 5. Pardon is granted after final conviction, while amnesty
may be granted at any time; and
• Pardon looks forward and relieves the offender from the
consequences of his offense, while amnesty looks backward
and the person granted it stands before the law as though he
had committed no offense. [People v. Casido, March 7,
1997]
44

Department)
DISTINGUISH PARDON FROM IMMUNITY

• Pardon and immunity are conceptually different from
each other. Unlike pardon which the President may
grant only after conviction by final judgment (Section 19,
Article VII, 1987 Constitution), immunity may be
granted even before the filing of an information (See
Tanchanco v. Sandiganbayan,) or even during the trial
of the criminal case (See Mapa v. Sandiganbayan,).
• While immunity would substantially have the same
effect as pardon, there will be no "derogation of judicial
power" considering that the immunity is granted not
purely for immunity's sake but, most importantly, for the
purpose of securing the conviction of the other accused
who are the most guilty.[Quart v. Marcelo, G.R. No.
169042. October 5, 2011.]
45
• QUESTION: CAN THE PRESIDENT ALONE REVOKE

THE AMNESTY GRANTED TO SEN. TRILLANES?
• ANSWER: NO. Since the grant of amnesty
requires concurrence of congress, it cannot be
revoked by the president alone.
• Even assuming that what the President seeks to
declare as “void ab initio” is ONLY the inclusion of
Sen. Trillanes in the list of grantees of amnesty –
still, the president has no power to declare his
inclusion VOID. Only the courts can do so because
the effects of amnesty has already set in and
recognized by the government when the cases
against him were dismissed and he was released
from detention by reason of the grant of amnesty.
46

Department)
Q: CAN THE PRESIDENT ORDER THE ARREST

AND COURT MARTIAL OF SEN. TRILLANES
EVEN AFTER HIS DISCHARGE FROM THE
MILITARY?
A: No. When Sen. Trillanes filed his COC for
senator in 2007, he was deemed
automatically resigned from office (military
service). He became a civilian.
The articles of war and the commander-in-
chief powers of the President apply only to
those in active military service.
47
• QUESTION:
• Risos-Vidal filed a petition seeking to disqualify President
Estrada from running for and holding any public elective
office on the ground that the pardon granted to him did not
expressly provide for the remission of the penalty of
perpetual absolute disqualification, particularly the restoration
of his (former President Estrada) right to vote and be voted
upon for public office.
• She invokes Articles 36 and 41 of the Revised Penal Code, which
provides:
• ART. 36. Pardon; its effects.– 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. 41. The penalties of reclusion perpetua and reclusion temporal
shall carry with them xxx—xxx perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the
principal penalty, unless the same shall have been expressly remitted
in the pardon.
48

Department)
• Q: IS ERAP QUALIFIED?:
• A: YES. Former President Estrada was granted an
absolute pardon that fully restored all his civil and
political rights, which naturally includes the right to seek
public elective office, the focal point of this controversy.
• The wording of the pardon extended to former President
Estrada is complete, unambiguous, and unqualified.
• It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code.
• The pardoning power of the President cannot be limited
by legislative action.
• Therefore, it can be argued that any act of Congress by way
of statute cannot operate to delimit the pardoning power of
the President. (Risos-Vidal v. COMELEC, G.R. No. 206666,
January 21, 2015; J. De Castro)
49
DIPLOMATIC
POWERS
50

Department)
RP and the ICC
• The Philippine Government signed the

Rome Statute of the International Criminal
Court but refused to submit it to the Senate
for its concurrence.
• Sen. Pimentel filed a petition for
mandamus to compel the executive
department to transmit the signed text of
the treaty to the Senate of the Philippines
for ratification. Will the suit prosper?
51
Who has the power to ratify?
• Section 21, Article VII of the 1987

Constitution provides that “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.”
52

Department)
Who has the power to ratify?

• The power to ratify is vested in the
President.
• The role of the Senate is limited only to
giving or withholding its consent, or
concurrence, to the ratification.
• Hence, it is within the authority of the
President to refuse to submit a treaty to
the Senate for its ratification.
• The decision not to ratify a treaty is within
the competence of the President alone,
which cannot be encroached by the Courts
via a writ of mandamus. Pimentel v. Romulo
[G.R. No. 158088, July 6, 2005]
53
International Implications
• When a treaty is signed by an

official representative of a State,
does this mean that the State is
already bound by the provisions of
the treaty?
54

Department)
Pimentel v. Romulo
• No. The signature does not signify the final consent
of the state to the treaty.
• It is the ratification that binds the state to the
provisions thereof.
• Ratification is the act by which the provisions of a
treaty are formally confirmed and approved by a
State.
• There is no legal obligation to ratify a treaty.
• Note: In 2010, President PNOY ratified the
ROME Statute and the Senate concurred.
55
Q: Can the President, on his own, terminate a treaty?
A: NO. Typically, a treaty provides for its termination by notice

of one of the parties, usually after a prescribed time from the
date of notice. Of course, treaties may also be terminated by
agreement of the parties, or by breach by one of the parties, or
by some other means.
Because the Constitution requires the consent of the
Senate for making a treaty, one can logically argue that its
consent is as well required for terminating it.
Finally, because treaties are, like statutes, the supreme law of
the land, it may well be argued that, again like statutes, they
may be undone only through law–making by the entire
Congress; additionally, since Congress may be required to
implement treaties and may displace them through legislation,
this argument is re-enforced.
56

Department)
• 2008 BAR EXAM QUESTION:

• The President alone without the
concurrence of the Senate abrogated a
treaty.
• Assume that the other country-party to the
treaty is agreeable to the abrogation
provided it complies with the Philippine
Constitution.
• If a case involving the validity of the treaty
abrogation is brought to the Supreme
Court, how should it be resolved?
57
• Suggested Answer:
• The Supreme Court should declare the treaty abrogation
invalid.
• While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
• Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
• The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
58

Department)
Q: Can the President unilaterally withdraw the

Philippines from the Rome Statute (treaty establishing the
ICC)?
A: YES. Article 127 of the Rome Statute,
ratified and signed by the Philippines, lays out
the terms which member-states need to follow
if they want to withdraw:
"1. A State Party may, by written notification
addressed to the Secretary-General of the
United Nations, withdraw from this Statute.
The withdrawal shall take effect one year after
the date of receipt of the notification, unless
the notification specifies a later date.”
59
Q: Does this mean that the ICC did not acquire

jursidction over President Duterte and the cases filed
against him can now be dismissed?
A: NO. Article 127 of the Rome Statute states:
“2. A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute
while it was a Party to the Statute, including any financial
obligations which may have accrued.
Its withdrawal shall not affect …. criminal
investigations and proceedings … which were
commenced prior to the date on which the withdrawal
became effective, nor shall it prejudice in any way the
continued consideration of any matter which was already
under consideration by the Court prior to the date on which
the withdrawal became effective."
60

Department)
• IS THE EDCA CONSTITUTIONAL:

• EDCA authorizes the U.S. military forces to have access to
and conduct activities within certain "Agreed Locations" in
the country.
• It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.
Accordingly, in June 2014, the Department of Foreign Affairs
(DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two
countries.
• Petitioners primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive
agreement.
• Is the EDCA Constitutional?
61
• ANSWER:
• As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive power
to conduct and manage the country's interface with
other states and governments.
• Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and
enters into international agreements; promotes trade,
investments, tourism and other economic relations; and
settles international disputes with other states.
• Rene Saguisag, et al., v. Executive Secretary, et al., GR
No. 212426, January 12, 2016.
62

Department)
• ANSWER:
• No court can tell the President to desist from choosing
an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely
within Article VIII, Section 25.
• As can be gleaned from the debates among the
members of the Constitutional Commission, they were
aware that legally binding international agreements were
being entered into by countries in forms other than a
treaty.
• At the same time, it is clear that they were also keen to
preserve the concept of "executive agreements" and the
right of the President to enter into such agreements..
[Rene Saguisag, et al., v. Executive Secretary, et al.,
GR No. 212426, January 12, 2016.]
63
Presidential
Succession
64

Department)
In case of a tie between Presidential

candidates, who shall be declared
winner?
In case of a tie between 2 or more
candidates, one shall be chosen by a
majority of all the members of both
Houses, voting separately. In case this
results in a deadlock, the Senate President
shall be acting President until the deadlock
is broken.
Note: The same is true with Vice-
Presidential candidates.
65
What is the term of office of the

President?
Six (6) years
Note: 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.
No Vice-President shall serve for more than two successive

terms.
Note: The person who succeeds as President and not just in

an acting capacity could either be: the Vice-President; or one
who was elected President in a special election.
In both cases, if he has served for more than 4 years, he is

ineligible for re-election as President.
66

Department)
ARTICLE VII, SECTION 8. 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.
67
Q: What is meant by the phrase – “The President

shall not be eligible for any reelection”?
A:
Article VII, Section 4. The President and the Vice
President shall be elected by direct vote of the
people for 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. 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.
68

Department)
Q: What is meant by the phrase – “The President

shall not be eligible for any reelection”?
A:
He cannot run for president again.
An innovation introduced by the 1986 Constitutional
Commission is the limit on the number of terms a President
and Vice-President may serve.
A president is not eligible for reelection for that office, that
is, either immediately after his term or even after an
interval of one or more terms.
It was thought that the elimination of the prospect of reelection
would make for a more independent President capable of
making correct even if unpopular decisions.
The prohibition of reelection applies to any person who has
served as President for more than four years.
69
What are the rules on presidential

succession?
1. Vacancies at the beginning of the term
2. Vacancies after the office is initially filled
3. Vacancy in office of VP during the term for which he
was elected:
a. President will nominate new VP from any member

of either House of Congress.
b. Nominee shall assume office upon confirmation by
majority vote of all members of both Houses, voting
separately.
Note: Nominee forfeits seat in Congress.
70

Department)
Q. Can a law be passed stating that in case of death,

incapacity, impeachment or resignation of both the
President and the VP – the Chief Justice shall be Acting
President?
A: No. The Constitution states that the Senate President
shall be acting President.
ARTICLE VII, SECTION 8. 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.
71
The vacancy shall be filled-up as follows:
a. Congress shall convene 3 days after the vacancy in the

office of both the President and the VP, without need of a
call. The convening of Congress cant be suspended.
b. Within 7 days after convening, Congress shall enact a law
calling for a special election to elect a President and a VP.
The special election cannot be postponed.
c. The special election shall be held not earlier than 45 days
nor later than 60 days from the time of the enactment of the
law.
d. The 3 readings for the special law need not be held on
separate days.
e. The law shall be deemed enacted upon its approval on third
reading.
Note: No special election shall be called if the vacancy occurs within

18 months before the date of the next presidential election.
72

Department)
Presidential
Immunity
73
Q: Is the President immuned from suit?

A: Yes.
Jurisprudence dictates that the presidential immunity
from suit remains preserved in the system of
government of this country, even though not expressly
reserved in the 1987 Constitution.
The President may not be sued during his tenure.
The President is granted the privilege of immunity from
suit to assure the exercise of Presidential duties and
functions free from any hindrance or distraction,
considering that the position of Chief Executive of the
Government requires all of the office-holder's time and
demands undivided attention to his duties.
[Lagman v. Pimentel III, February 6, 2018]
74

Department)
Q: What is the extent of Presidential Immunity?

A:
Immunity does not mean that the President is not
accountable to anyone.
Like any other official, he remains accountable to
the people but he may be removed from office
only in the mode provided by law and that is by
impeachment [David v. Arroyo, 522 Phil. 705
(2006).]
Incumbent Presidents are immune from suit or
from being brought to court during the period of
their incumbency and tenure but not beyond.
[Estrada v. Desierto, March 2001]
75
Q: Distinguish "presidential communications privilege"

from "deliberative process privilege." (3%). (2010 Bar
Question)
SUGGESTED ANSWER:
Presidential communications privilege applies to decision-
making of the President. The deliberative process privilege
applies to decision-making of executive officials.
Unlike the "deliberative process privilege," "the presidential
communications privilege" applies to documents in their
entirety and covers final and post decisional matters, as well
as pre-deliberative ones.
The deliberative process privilege includes 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, 549 SCRA77 [2008].)
76

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2019 Lecture in Political Law (Executive 10/9/2019

@Atty. Enrique V. dela Cruz, Jr. 1

• Q: Can the President choose to award the status of

May the President discipline a deputy ombudsman?

The Office of the Ombudsman, by express constitutional

What is true for the Ombudsman must be equally and

@Atty. Enrique V. dela Cruz, Jr. 2

May the President discipline the Chairman and other

• It is extremely difficult to conceptualize how an office

@Atty. Enrique V. dela Cruz, Jr. 3

Holding Two Concurrent Positions

• Q: Can the Acting Secretary of Justice concurrently

• NO. That is a clear violation of the constitutional

@Atty. Enrique V. dela Cruz, Jr. 4

• Q: State the exceptions to the ban against the

Q: Name the category or categories of officials

@Atty. Enrique V. dela Cruz, Jr. 5

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

• Section 4 (1), Article VIII:

@Atty. Enrique V. dela Cruz, Jr. 6

b. GR: Two months immediately before

XPN: Temporary appointments, to

May the President appoint a Chief Justice

@Atty. Enrique V. dela Cruz, Jr. 7

@Atty. Enrique V. dela Cruz, Jr. 8

• Q: Can active members of the AFP be

• NO. Section 5(4), Article XVI of the 1987

@Atty. Enrique V. dela Cruz, Jr. 9

QUESTION: Petitioner Pichay assails the

Can the President abolish the PAGC and transfer its

@Atty. Enrique V. dela Cruz, Jr. 10

• Q: Can the President abolish the PAGC and

@Atty. Enrique V. dela Cruz, Jr. 11

Q: After the Maguindanao massacre, the

A: The calling out of the armed forces to prevent or

Q: Who can challenge the constitutionality of

@Atty. Enrique V. dela Cruz, Jr. 12

Q: Can the President impose martial law without

Q: Does Congress have the mandatory duty to convene

@Atty. Enrique V. dela Cruz, Jr. 13

Q: Can the Supreme Court review the

Is the right to bail impaired if the

d. He may proclaim martial law over the entire Philippines or any

i. There must be an invasion or rebellion; and

@Atty. Enrique V. dela Cruz, Jr. 14

What are the requisites for the

2. The public safety requires the suspension.

Note: The invasion and rebellion must be actual

State the guidelines in the declaration

2. Public safety requires the proclamation of martial

Duration: Not more than 60 days following which it

Duty of the President to report to Congress: Within

@Atty. Enrique V. dela Cruz, Jr. 15

When the President declares a state of national

No. The declaration of a state of emergency is

@Atty. Enrique V. dela Cruz, Jr. 16

Does the proclamation of a state of national emergency authorize the

NO. Section 17. Articled XII must be understood as an aspect of the

Whether or not the President may exercise such power is dependent on

Q: May the president be held liable under the

@Atty. Enrique V. dela Cruz, Jr. 17

Q: May the president declare a “State of

Q: May the president declare a “State of