RyD Notes | III.

Executive Department

III. EXECUTIVE DEPARTMENT

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

Section 1. The executive power shall be vested in the President of the Philippines.

Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered
voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for
at least ten years immediately preceding such election.

Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected
with, and in the same manner, as the President. He may be removed from office in the same manner as the President.

The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

Q: What are the qualifications required of the President and Vice President?
ANS: A person must meet the following qualifications to be elected President or Vice President (N40-RAW-R10)
1. Natural-born citizen of the Philippines;
2. At least 40 years of age on the day of the election;
3. Able to Read And Write; and
4. A Resident of The Philippines for a period of at least ten years immediately preceding the day of the election

Q: How long is the term of office of the President and Vice President?
ANS: 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.

Note: Section 4 (par 5) The person having the highest number of votes shall be proclaimed elected, but in case two or
more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.

Q: Discuss the rules on the President's and Vice President's election and eligibility for reelection.
ANS:

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.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second
Monday of May.

The President shall not be eligible for any re-election. 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. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of the service for the full term for which he was
elected.

B. Privileges, inhibitions, and disqualifications

Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be
determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive
during their tenure any other emolument from the Government or any other source.

Section 13. 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. They shall not,
during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
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interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.

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 government-owned or controlled
corporations and their subsidiaries.

Q: What are the privileges afforded to the President and Vice-President?

ANS: The following are their privileges:
1. Official residence for the President; and
2. Salaries of the President and Vice-President are determined by law and not to be decreased during his tenure
(CONST., Art VII, Sec. 6).
3. Presidential immunity from suit during his tenure (Soliven v. Makasiar, G.R. No. 82585, November 14, 1988)
4. Executive privilege (Presidential Communications Privilege) has been defined as "the right of the President and
high-level executive branch officials to withhold information from Congress the courts and ultimately, the public"
(Senate v. Ermita, supra).
Q: What is the extent of President's immunity from suit?
ANS: The President like the judges of the courts and the members of the Legislature, may not be personally mulcted
in civil damages for the consequences of an act executed in the performance of his official duties.

This principle of non-liability does not mean that the chief executive may not be personally sued at all in relation to
acts which he claims to perform as such official. The [President] is liable when he acts in a case so plainly outside of
his power and authority that he cannot be said to have exercised discretion in determining whether or not he had the
right to act.

Also, when the cases filed against the President are criminal in character. It will be anomalous to hold that immunity is
an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts
of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser (Estrada v. Desierto, G.R.-Nos. 146710-15 & 146738, March 2. 2001)

Q. What are the inhibitions and disqualifications imposed upon them?

ANS: The following are the inhibitions and disqualifications under the law: (SEOP-CS)
1. Shall have no increase in Salaries during their tenure (CONST., Art. VII, Sec. 6).
2. Shall not receive any other Emoluments from the government or any other source. (CONST., Art. VII, Sec. 6).
3. Shall not hold any other Office or employment, unless otherwise provided in the Constitution (CONST., Art. VII,
Sec. 13)
4. Shall not directly or indirectly, Practice any other profession, participate in any business, or be financially interested
in any contract with, or in any franchise or special privilege granted by the government or any subdivision, agency, or
instrumentality thereof, including GOCCs or their subsidiaries (CONST., Art. VII, Sec. 13);
5. Strictly avoid Conflict of interest in the conduct of their office (CONST., Art. VII, Sec. 13); and
6. May not appoint Spouse or relatives bv consanquinitv or affinity within the 4th civil degree as Members of
Constitutional Commissions or the Office of the Ombudsman or as Secretaries, undersecretaries, chairmen or heads
of bureaus or offices including GOCCs end their subsidiaries (CONST., Art. VII, Sec. 13)

C. Powers of the President

1. Executive and administrative powers in general

Q: Distinguish executive power from administrative power.

ANS: Executive power pertains to the power to enforce and administer the laws. It shall be vested in the President of
the Philippines and exercised through the manifold offices of the executive department (CONST., Art. VII, Sec. 1). On
the other hand administrative power refers to the President’s control over all such executive departments, bureaus,
and offices. He shall ensue that laws are faithfully executed. (CONST., Art. VII, Sec. 17).

Q: What is the power of administrative reorganization?

ANS: It is the President's continuing authority to reorganize the executive branch which includes the power to group or
consolidate bureaus and agencies, to create and abolish offices, to transfer functions, to create and classify functions,
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services and activities, and to standardize salaries and materials. It is effected in good faith if it is for the purpose of
economy or to make bureaucracy more efficient (MEWAP v. Executive Secretary, G R. No 160093, July 31. 2007).

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.

Q: Discuss the faithful execution clause.

ANS: The second sentence of Section 17, Article Vll is referred to as the "take care power" of the President and also
sometimes called the "faithful execution clause”. Under this provision, the President is bound to ensure the faithful
execution of laws regardless of his belief in the legality of said laws. Until and unless a law is declared
unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity (CONST., Art. VII,
Sec. 1 & 17)

2. Power of appointment

Q: Define appointment.
ANS: An appointment is the selection, by the authority vested with the power to do so, of an individual who will be
tasked to exercise the functions of a given office. It differs from a designation in that the latter simply means the
imposition of additional duties, usually by law, on a person already in the public service. It is also different from a
commission, which refers to the written evidence of the appointment (NACHURA, supra at 356).

Q: What is the nature of the power to appoint?

ANS: The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of
this executive power except in those instances when the Constitution expressly allows it to interfere (Pimentel v.
Ermita, G R. No. 164978, October 13, 2005).

Q: What are the limitations in the President's appointing power?

ANS: The following are the limitations in the President's power:
1. Limitations on the executive power to appoint are construed strictly against the legislature. The scope of the
legislature's interference in the President's power to appoint is limited to the power to prescribe the qualifications to an
appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office.
Neither may Congress impose on the President the duty to appoint any particular person to an office.
2. The CA is independent from Congress and does not legislate when it confirms or refuses a Presidential
appointment.
3. The President has no constitutional or legal obligation to only make permanent appointments when Congress is in
session.
4. The President can also make temporary appointments even when the CA is in session (Pimentel v. Ermita, supra)
5. The President is constitutionally prohibited from making "midnight appointments" except under certain conditions
(CONST., Art VII, Sec. 15)

Q: What are the classifications of appointments?

ANS: (Please refer to the section of this book on the Law on Public Officers).

Q: What are the kinds of presidential appointments?

ANS: The following are the kinds of presidential appointments:
1. Regular presidential appointments, with or without confirmation by the Commission on Appointments, including
"recess” or 'ad interim’ appointment. (CONST., Art. VII sec. 16)
2. Appointments made by an Acting President (CONST Art. VII, Sec. 14);
3. Midnight appointments - appointment made by a President within 2 months before the next presidential elections
and up to the end of his term (CONST. Art VII, Sec. 15; see General v. Urro, G R. No 191560, March 29, 2011, and
Sana v. Career Executive Service Board, G R. No. 192926, November 15, 2011).

Q: What are the appointments that can be made solely by the President?
ANS: The following are such appointments:
1. Those vested by the Constitution on the President alone;
2. Those whose appointments are not otherwise provided for by law;
3. Those whom he may be authorized by law to appoint; and
4. Those other officers lower in rank whose appointment is vested by law in the President alone (CONST., Art. VII sec.
16).

Q: Can the President legally appoint officers-in-charge in ARMM?

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 RyD Notes | III. Executive Department

ANS: Yes. The President shall appoint all other officers of the government whom the President may be authorized by
law to appoint (CONST., Art. VII, Sec. 16). Since the President's authority to appoint OICs emanates from R.A. No.
10153, it falls under this group of officials that the President can appoint. Thus, the assailed law rests on clear
constitutional basis (Datu Michael Abas Kida, etc, v. Senate of the Philippines, G.R. No. 196271, October 18, 2011).

a. Confirmation and by-passed appointments

Q: Which presidential appointments require confirmation by the Commission on Appointments, under the
Constitution?
ANS: The President shall nominate and, with the consent. of the Commission on Appointments, appoint:
1. Heads executive departments;
2. Ambassadors and other public ministers and consuls;
3. Officers of the AFP from the rank of colonel or naval captain;
4. Officers whose appointments are vested in him by the Constitution:
a. Regular members of the Judicial and Bar Council (CONST., Art. VIII, Sec. 8, par (2));
b. Chairmen and members of the Constitutional Commissions (CONST., Art. IX-B, Sec. 1 par (2)); and
c. Sectoral representatives during the three-consecutive terms after the ratification of the Constitution
(CONST.,
Art. XVIII, Sec.7)
Q: What is a by-passed appointment?
ANS: A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on
Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments
to give or withhold its consent to the appointment as required by the Constitution (Matibag v. Benipayo, G.R, No.
149036, April 2, 2002).

Q: What is the primary effect of a by-passed appointment?

ANS: Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at
the close of the session of Congress shall be returned to the President and unless new nominations or appointments
are made, shall not again be considered by the Commission on Appointments (The New Rules of the Commission on
Appointments, March 7, 2017. Sec. 17).

Q: Is there a limit as to the number of times the CA can review the President's re- appointment of a by-passed
appointee? ANS: Yes. A nomination or appointment which has been bypassed three (3) times shall be reported out by
the standing committee concerned to the commission for its appropriate action in the next plenary session; provided
that no member shall be allowed to invoke the suspension of the consideration of the appointment in this regard (The
New Rules of the Commission on Appointments, supra at Sec. 25).

b. Midnight and ad interim appointments

Section 15. 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 will prejudice public service or endanger public safety.

Q: What are midnight appointments?

ANS: Midnight appointments are appointments made by a President within 2 months before the next presidential
elections and up to the end of his term (CONST., Art. Vll, sec. 15).

Q: Is the prohibition on midnight appointment absolute?

ANS: No. The President or Acting President may make temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety (CONST., Art. VII, Sec. 15),

Q: Does the prohibition apply to the appointments made by the President in the judiciary?
ANS: No. The prohibition on midnight appointments does not apply to appointees to the judiciary. The fact that Section
14 and Section 16, Article VII refer only to appointments within the Executive Department renders conclusive that
Section 15 also applies only to the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary because their establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial position to the unhurried and deliberate prior process of JBC ensured that there
would no longer be midnight appointments to the Judiciary (De Castro Judicial and Bar Council. G. R. No.
191002, March 17, 2010).
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c. Power of removal

Q: What are the rules on the President's power of removal?

ANS: The general rule is that from the express power of appointment, the President derives the implied power of
removal (CRUZ, Philippine Political Law, supra at 407). Exceptions to this rule are those appointed by him where, the
Constitution prescribes certain methods for separation from public service. e.g. impeachment under Section 2, Article
Xl, 1987 Constitution.

Note: In cases where the power of removal is lodged in the President, the same may be exercised only for causes as
may be provided by law, and in accordance with the prescribed administrative procedure (CRUZ, Philippine Political
Law, supra at 408). The President may directly discipline the members of the career service of the Civil Service who
are appointed by him (Villaluz v. Zaldivar, G.R. No. L-22754, December 31, 1965).

Q: Can a law vest the President with disciplinary authority over a Deputy Ombudsman?
ANS: No. To subject 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 official all of them tasked to support the Ombudsman in carrying out her
mandate. Unfortunately, intrusion upon the constitutionally-granted independence is whet Section 8(2) of RA No. 6770
exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to
the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an
Ombudsman office seeks to revitalize (Gonzales v. Office of the President, G.R. No. 196231, January 28, 2014).

3. Power of control and supervision

Q: Distinguish control from supervision.

ANS: The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of former for the latter. The power of supervision is
defined as the power of a superior offiice officer to see to it that lower officers perform their functions in accordance
with law (Joelbito-onon v. Fernandez, G.R No. 139813, January 31, 2001)

a. Doctrine of qualified political agency

Q: Discuss the doctrine of qualified political agency or the alter ego principle
ANS: All executives and administrative organizations are adjuncts of the Executive Department, the heads of the
various executive, and except in cases where the Chief Executive is required by the Constitution or law to act in
person or the exigencies of the situation demand that he acts personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and through the executive departments and the acts of the
Secretaries of Executive departments when performed and promulgated in the regular course of business are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive (Carpio v. Executive
Secretary, G.R. No. 96409, February, 24, 1992).

Note: Thus, the Executive Secretary, when acting by authority of the President, may reverse the decision of another
department secretary (Lacson-Magallanes v. Pano, G R. No.L-2711, November 17, 1967). The decision of the
Cabinet Secretary carries the presumptive approval of the President and there is no need to appeal the decision to the
President in order to complete exhaustion of administrative remedies (Kilusang Bayan, et al. v: Dominguez. G.R. No.
85439, January 13, 1992).

b. Executive departments and officers

Q: Does the President exercise power of control over the executive departments and offices?
ANS: Yes. The President shall have control of all executive departments, bureaus, and offices (CONST., Art. VII, Sec,
17). This includes restructuring, reconfiguring, and appointments of their respective officials. He shall ensure that the
laws be faithfully executed (ADM Code).

c. Local Government Units

Q: Discuss the power of the President to supervise local government units.

ANS: The President of the Philippines shall exercise general supervision over local governments (CONST., Art X,
Sec. 4). The President may only interfere in the affairs and activities of a local government unit if he or she finds that
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the latter had acted contrary to law. Any directive therefore by the President or any of his or her alter egos seeking to
alter the wisdom of a law-confirming judgment on local affairs of an LGU is a patent nullity because it violates the
principle of local autonomy and separation of powers of the executive and legislative departments in governing
municipal corporations (Dadole v. COA, G.R. No. 125350, December 3, 2002)
4. Military powers

Q: What are the military powers vested on the President?

ANS: Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. 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.

a. Calling out power

Q Discuss the calling out power of the President.

ANS: The President, as commander-in-chief of all the armed forces of the Philippines may call out the armed forces to
suppress lawless violence, invasion, or rebellion, whenever it shall be necessary. It 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. It is limited however to ordinary police action necessary to maintain
public order (IBP v, Zamora, G,R. No. 141284, August 15, 2000)

b. Declaration of Martial Law and suspension of the privilege of the writ of habeas corpus; requisites and
parameters of extension

Q: Discuss the power of the President to suspend the privilege of the writ of habeas corpus or to place the Philippines,
or any part thereof under martial law.
ANS: The President may only exercise this power in case of actual invasion or rebellion (Lagman v. Medialdea. G.R.
No. 231658, July 4, 2017).

Note: The words “actual" are not found in Article VII. Section 18 of the 1987 Constitution which provides:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. 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.

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. 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. 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.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.

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.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.

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1. Even when there is invasion or rebellion, the power not be exercised unless required by public safety.
2. The suspension of the privilege of the writ or the imposition of martial law, shall not exceed 60 days, unless revoked
or extended by Congress.
3. 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.
4. The suspension of the privilege of the writ of habeas corpus applies only to persons judicially charged of rebellion or
offenses inherent in or directly connected with invasion. Persons arrested must be judicially charged within three 3
days if not they must be released.
Note: The suspension of the privilege of the writ does not suspend right to post bail and thus by implication does not
suspend other civil and political rights.
5. The suspension of the privilege of the writ and the declaration of martial law are subject to review and possible
revocation by Congress.
6. The suspension of the privilege of the writ and the declaration of martial law are subject to review and possible
nullification by Supreme Court.

Q: Does the Congress have the power to extend martial law?

ANS: Yes. The Congress has the prerogative to extend the martial law and the suspension of the privilege of the writ
of habeas corpus as the Constitution does not limit the period for which it can extend the same (Lagman v. Medialdea.
G.R. Nos 243522, 243677, 243745 & 243797. February 19, 2019).

Q: Can the Congress extend the proclamation or suspension more than once?
ANS: Yes. Section 18, Article VII of the Constitution 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 Vll is clear that the only limitations to the exercise of
the congressional authority to extend such proclamation or suspension are that the extension should be upon the
President's initiative; that it should be grounded on the persistence of the invasion or rebellion and the demands of
public safety; and that it is subject to the Court's review of the sufficiency of its factual basis upon the petition of any
citizen.

Thus, whenever there is a determination that the invasion or rebellion persists and public safety requires the extension
of martial law or of the suspension of the privilege of the writ, the Congress may exercise its authority to grant such
extension as may be requested by the President, even if it be subsequent to the initial extension.

Section 18, Article VII did not also fix the period of the extension of the proclamation and suspension. However, it
clearly gave the Congress the authority to decide on its duration; thus, the provision states that that the extension shall
be "for a period to be determined by the Congress"; If it were the intention of the framers of the Constitution to limit the
extension to sixty (60) days, as petitioners in G.R. No. 235935 theorize, they would not have expressly vested in the
Congress the power to fix its duration. (Laqman v. Pimentel III, G.R Nos. 235935, 236061, 236145 & 236155,
February 6, 2018).

Q: What are the limitations on the exercise of congressional authority to extend martial law?
ANS: The only limitations to the exercise of congressional authority to extend such proclamation or suspension:
1. The extension should be upon the President’s initiative;
2. It should be grounded on the persistence of the invasion or rebellion and the demands of public safety; and
3. It is subject to the Court's review of the sufficiency of its factual basis upon the petition of any citizen (Lagman V.
Medialdea, supra).
Note: At the initial declaration of the martial law, the President observed the 60-day limit and the requirement to report
to Congress. In this initial declaration as well as in the extensions, the President's decision was based on the reports
prepared by the different specialized agencies of the Executive branch charged with externa and internal security of
the whole country. These were the same reports submitted to Congress which were deliberated on, no matter how
brief the time allotment was for each of the law makers' interpellations (Lagman v. Medialdea. supra).

Q: What are the two factual bases for the extension of the proclamation of martial law or of the suspension of the
privilege of the writ of habeas corpus?
ANS: Section 18, Article VII of the 1987 Constitution requires two factual bases for the extension of the proclamation
of martial law or of the suspension of the privilege of the writ of habeas corpus:
1. The invasion or rebellion persists; and
2. Public safety requires the extension (Lagman v. Pimentel IlI, supra).

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Q: What is the extent of review by the Congress on the President's martial law and suspension powers?
ANS: Congressional check on the President's martial law and suspension powers thus consists of:
1. The power to review the President's proclamation of martial law or suspension of the privilege of the writ of habeas
corpus, and to revoke such proclamation or suspension. The review is "automatic in the sense that it may be activated
by Congress itself at any time after the proclamation or suspension is made." The Congress' decision to revoke the
proclamation or suspension cannot be set aside by the President.
2. The power to approve any extension of the proclamation or suspension, upon the President's initiative, for such
period as it may determine, if the invasion or rebellion persists and public safety requires it (Lagman v. Pimentel Ill,
supra).

Q: What is the extent of review by the Court as regards the President's exercise of his military powers?
ANS: The Court's power to review is limited to the determination of whether the President in declaring martial law and
suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, the review would be limited to
an examination on whether the President acted within the bounds set by the Constitution, i.e. whether the facts in his
possession prior to and at the time of the the declaration or suspension are sufficient for him to declare martial law or
suspend the privilege of the writ of habeas corpus (Lagman v. Medialdea, supra). Nor may the Court advise or dictate
its own judgment upon the President as to which and how his military powers should be exercised in a given set of
factual circumstances (Lagman V. Pimentel III, G.R No. 235935, February 6, 2018).
Note: A petition for certiorari pursuant to Section 1 or 5 of Article VIII is not the proper tool 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.
Such a petition is sui generis, jurisdiction of which is conferred to the Court under Section 18 of Article VII (Lagman v.
Pimentel Ill, supra).

Q: Differentiate the judicial power to review sufficiency of the factual basis of the proclamation of martial law against
the congressional power to revoke it.
ANS: The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the
ground of sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.

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 take into consideration not
only data available prior to but likewise events supervening the declaration.

In addition, the Court's review power is passive: it is only initiated by the filing of a petition "in an appropriate
proceeding" by a Citizen. On the other hand, 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).

Q: What are the limitations on the President's exercise of the martial law and suspension powers?
ANS: Pursuant to Section 18, Article VII of the 1987 Constitution, the following are the limitations on the President's
exercise of martial law and suspension powers:
1. The President may declare martial law or suspend of the privilege of the writ of the privilege of habeas corpus only
when there is an invasion or rebellion and public safety requires such declaration or suspension.
2. The President's proclamation or suspension shall be for a period not exceeding 60 days.
3. Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to
Congress.
4. The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or
suspension.
5. The President cannot set aside the Congress' revocation of his proclamation or suspension.
6. The President cannot by himself, extend his proclamation or suspension. He should ask the Congress' approval.
7. Upon such initiative or request from the President, the Congress voting jointly and by a vote of at least a majority of
all its Members, can extend the proclamation or suspension for such period as it may determine.
8. The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and
public safety requires it.
9. The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension or the
extension thereof in an appropriate proceeding filed by any citizen.
10. The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding.
11. Martial law does not suspend the operation of the Constitution. Accordingly, the Bill of Rights remain effective in a
state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military
and the armed forces is the protector of the people. They must also abide by the States policy to value the dignity of
every human person and guarantee full respect for human rights.

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12. Martial law does not 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.
13. The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
14. Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially
charged within three days, otherwise he should be released (Lagman v. Pimentel Ill, supra).
Note: The Constitution does not specify the number of times the Congress is allowed to approve an extension of
martial law or the suspension of the privilege of the writ of habeas corpus (Lagman v. Pimentel III, supra). The
Congress is also not constitutionally mandated to convene in joint session except to vote jointly to revoke the
President's declaration or suspension (Padilla Congress, G.R. No 231671. July 25, 2017).

Q: Is the Congress required to "meet in joint session" whenever the President declares martial law or suspends the
privilege of the writ of habeas corpus?
ANS: 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 Article Vll, Section 18 of the 1987 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 (Padilla v. Congress of the Philippines, G.R. Nos. 231671 & 231694, July 25, 2017).

5. Executive clemency

Q: What is pardon?
ANS: Pardon is an act of grace which exempts an individual on whom it is bestowed from punishment which the law
inflicts for a crime he has committed. A pardon is a deed, for the validity of which delivery is essential, and delivery is
not complete without acceptance. It can be rejected (U.S. v. Wilson. No. 90-1745, March 24, 1992).
Note: For amnesties, the grant be concurred with by a majority of all the Members of Congress (CONST., Art. VII,
Sec. 19).

Q: What are the classifications of pardon?

ANS: Pardon may be classified as follows:
1. Conditional pardon - in the nature of a contract between the Chief Executive and the convicted criminal; by the
pardonee's consent to the terms stipulated in the contract, the pardonee has placed himself under the supervision of
the Chief Executive or his delegate who is duty bound to see to it that the pardonee complies with the conditions of the
pardon (Torres vs Gonzales, G. R. No. L-76872, July 23, 7987); or
2. Absolute pardon - pardon is absolute if it is not only unconditional, it is also unrestricted in scope, complete and
plenary in character (Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015).

Q: Discuss the nature of the pardoning power of the President.

ANS: 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.
The exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or
the Court, except only when it exceeds the limits provided for by the Constitution (Risos-Vidal v. COMELEC, supra). In
granting the power of executive clemency upon the President, the Constitution does not distinguish between criminal
and administrative cases (Llamas v. Executive Secretary, G.R. No. 99031, October 15. 1991).

Q: What is the effect of pardon?

ANS: Pardon removes the penalties and the resultant disabilities from conviction and restores him to his civil and
political rights; it makes him as if he were a new man and gives him a new credit and capacity (SUAREZ, supra at
600).

Q: What are the limitations to the pardoning power of the Presjdent?

ANS: The following are the limitations to said power:
1. It can be granted only after conviction by final judgment (except amnesty) (CONST., Art. VII, Sec.19);
2. It cannot be granted in cases of impeachment (CONST., Art. VII, Sec.19);
3. It cannot be granted in violations of election laws without the favorable recommendation of the COMELEC
(CONST., Art. IX-C, Sec.5):
4. It cannot be granted in cases of legislative contempt or civil contempt (CRUZ, Philippine Political Law, supra at 444-
445);
5. It cannot absolve a convict from civil liability (CRUZ, Philippine Political Law, supra at 445):
6. It cannot restore public offices forfeited (CRUZ, Philippine Political Law, supra at 445).
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Q: What is amnesty?
ANS: Amnesty is an act of grace by the President, concurred with by the Legislature, usually extended to classes of
persons or communities who may be guilty of political offenses, before or after the institution of the criminal
prosecution and sometimes after conviction. It looks backward and abolishes and puts into oblivion the offense itself
that the person released by amnesty stands before the law precisely as though he had committed no offense
(Barrioquinto v. Fernandez. G.R. No. L-1278, January 21. 1949)
Q: What are the other forms of executive clemency?
ANS: The other forms of executive clemency are the following:
1. Commutation - reduction or mitigation of the penalty (CRUZ, Philippine Political Law, supra. at 444);
2. Reprieve - postponement of sentence to a date certain, or stay of execution (CRUZ, Philippine Political Law, supra
at 444),
3. Parole - release from imprisonment, but without full restoration of liberty, as parolee is in the custody of the law
although not in confinement (SUAREZ, supra at 598) and;
4. Remission of fines and forfeiture - merely prevents the collection of fines or the confiscation of forfeited property; it
cannot have the effect of returning property which has been vested in thirds parties or money already in public
treasury (BERNAS, Philippine Constitution Reviewer, supra at 315).

6. Powers pertinent to foreign relations

Q: Discuss the diplomatic power of the President.

ANS: The President is the sole organ of the nation in its external relations and its sole representative with foreign
nations (Neri V. Senate, G.R. No: 180643, Septernber 4, 2008).

Q: What are the foreign affairs powers granted to the President?

ANS: The following foreign affairs powers åre also vested to the President.
1. The power to make treaties (CONST., Art. VII, Sec. 21);
2. The power to appoint ambassadors, other public ministers and consuls (CONST., Art. VII, Sec. 16); and
3. The power to receive ambassadors and other public ministers duly accredited to the Philippines.

Q: Is a treaty or international agreement entered into by the President valid and binding in itself?

ANS: No, 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.

Note: The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate,
however, 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 or having secured its consent for its ratification,
refuse to ratify it (Pimentel. Jr. v Office of the Executive Secretary, G.R. No. 158088. July 6. 2005).

Q: What are the differences between a treaty and an executive agreement?

ANS: A treaty as "an international agreement concluded between states in written form and governed by international
law whether embodied in a single instrument or in two or more related instruments and whatever its particular
designation" (The Vienna Convention on the Law of Treaties, Art. 2) [hereinafter VCLT). An executive agreement is
similar to a treaty. except that the former does not require legislative concurrence, is usually less formal, and deals
with a narrower range of subject matters (Bayan Muna v. Romulo, G.R. No. 159618. February 1, 2011)

International agreements involving political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties. But international agreements embodying
adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of
a more or less temporary nature usually take the form of executive agreements (Commissioner of Customs v. Eastern
Sea Trading, G.R. No. L-14279, October 31, 1961).

Q: Can the President enter into an executive agreement without the concurrence of Senate?
ANS: Yes. The right of the Executive to enter into binding agreements without the necessity of subsequent Senate
approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive
agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of
these have never been seriously questioned by our courts (Bayan Muna v. Romulo, supra).

However, the President may not, by executive agreement, enter into a transaction which is prohibited by statutes
enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce the laws, enacted by
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 RyD Notes | III. Executive Department

Congress. He may not defeat legislative enactments that have acquired the status of law, by indirectly repeating the
same through an executive agreement providing for thee performance of the very act prohibited by said laws
(Gonzales v. Hechanova, G.R. No. L-21897, October 22, 1963).

Q: Discuss the President's residual power.

ANS: The President, upon whom executive power is vested, 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 article on the Executive Department
and in scattered provisions of the Constitution (Marcos v. Manglapus, G.R. No. 88211 (Resolution). October 27,
1989).

The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to
the day to day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace
is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision
(Marcos v. Manglapus, G.R. No. 88211, September 15, 1989).

D. Rules of succession

Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have
qualified.

If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have
been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently
disabled, the Vice President-elect shall become President.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died
or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a
President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.

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.

Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected,
the President shall nominate a Vice-President from among the Members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of
the Congress, voting separately.

Section 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the
President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven
days, enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than
forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be
deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval
on third reading by the Congress. Appropriations for the special election shall be charged against any current
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appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article V1 of this Constitution.
The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be
called if the vacancy occurs within eighteen months before the date of the next presidential election.

Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of
the House of Representatives their written declaration that the President is unable to discharge the powers and duties
of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate
and to the Speaker of the House of Representatives, their written declaration that the President is unable to discharge
the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after
it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is
unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and duties of his office.

Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The
members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces
of the Philippines, shall not be denied access to the President during such illness.

Q: What are the rules of succession if the vacancy occurs before the beginning of the term of the President?
ANS: The following rules must be observed in such case.
1. In case of death or permanent disability of the president elect, the Vice- President elect shall become President; but
see Constitution (If at the beginning of the term of the President, the President-elect shall have died or shall have
become permanently disabled, the Vice President-elect shall become President.)
2. In case of failure to elect the president (i.e. presidential election has not been held or non-completion of the canvass
of the presidential elections), the Vice- President shall act as the President until the president shall have been chosen
and qualified; or
3. In case no President and Vice-President shall have been chosen and qualified, or where both shall have died or
become permanently disabled, the Senate President, or in case of his inability, the Speaker of the House of
Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified.
Congress shall by law provide for the manner in which one who is to act as President shall be selected until a
President or a Vice-President shall have qualified, in case of death, permanent disability or inability of the officials
mentioned herein.

Q: What are the rules of succession if the vacancy occurs during the incumbency of the President?
ANS: The following rules must be observed in such case:
1. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall
become President to serve the unexpired term; or
2. In case of death, permanent disability, removal from office, or resignation of both the President and the Vice-
President, the Senate President, or in case of his inability, the Speaker of the House of Representatives shall act as
President until a President or a Vice-President shall have been elected and qualified.

Q: What are the rules of succession when there is presidential inability to discharge the powers and duties of the
President?
ANS: The following rules must be observed in such case:
1. When the President transmits to the Senate President and to the Speaker of the House of Representatives his
written declaration that he is enable to discharge the powers and duties of his office, the powers and duties of his
office shall be discharged by the Vice President as Acting President; or
2. When a majority of all the members of the Cabinet transmit to the Senate President and to the Speaker of the
House of Representatives their written declaration that the President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the powers and duties of the Office as Acting President.
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Executive Department

Presidential Immunity

Presidential privilege of immunity from suit is a well-settled doctrine in our jurisprudence. The President
may not be sued during his tenure or actual incumbency, and there is no need to expressly grant such
privilege in the Constitution or law. This privilege stems from the recognition of the President's vast and
significant functions which can be disrupted by court litigations. (Lagman v. Senate President, G.R. No.
235935, February 6, 2018)

[Note: It is, thus, clear that petitioners in G.R. Nos. 236061 and 236145 committed a procedural misstep in including
the President as a respondent in their petitions. (Lagman v. Senate President, G.R. No. 235935, February 6, 2018)]

Military Powers
The determination of which among the Constitutionally given military powers should be
exercised in a given set of factual circumstances is a prerogative of the President. The Court's
power of review, as provided under Section 18, Article VII, does not empower the Court to advise,
nor dictate its own judgment upon the President, as to which and how these military powers should be
exercised. (Lagman v. Senate President, G.R. No. 235935, February 6, 2018)

[Note: Congressional check on the President's martial law and suspension powers thus consists of:
First. The power to review the President's proclamation of martial law or suspension of the privilege of the writ of
habeas corpus, and to revoke such proclamation or suspension. The review is "automatic in the sense that it may be
activated by Congress itself at any time after the proclamation or suspension is made." The Congress' decision to
revoke the proclamation or suspension cannot be set aside by the President.
Second. The power to approve any extension of the proclamation or suspension, upon the President's initiative, for
such period as it may determine, if the invasion or rebellion persists and public safety requires it. (Lagman v. Senate
President, G.R. No. 235935, February 6, 2018)]

When approved by the Congress, the extension of the proclamation or suspension, as described during the
deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a "collective
judgment" between the President and the Congress xxx. (Lagman v. Senate President, G.R. No. 235935,
February 6, 2018)

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 that
the extension should be upon the President's initiative; that it should be grounded on the persistence of the
invasion or rebellion and the demands of public safety; and that it is subject to the Court's review of the
sufficiency of its factual basis upon the petition of any citizen. (Lagman v. Senate President, G.R. No. 235935,
February 6, 2018)

Section 18, Article VII did not also fix the period of the extension of the proclamation and suspension.
However, it clearly gave the Congress the authority to decide on its duration; thus, the provision states that
the extension shall be ―for a period to be determined by the Congress." If it were the intention of the framers of
the Constitution to limit the extension to sixty (60) days, as petitioners in G.R. No. 235935 theorize, they
would not have expressly vested in the Congress the power to fix its duration. (Lagman v. Senate President,
G.R. No. 235935, February 6, 2018)

[Note: The information upon which the extension of martial law or of the suspension of the privilege of the writ of
habeas corpus shall be based principally emanate from and are in the possession of the Executive Department. Thus,

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 RyD Notes | III. Executive Department

"the Court will have to rely on the fact-finding capabilities of the [E]xecutive [D]epartment; in turn, the Executive
Department will have to open its findings to the scrutiny of the Court." (Lagman v. Senate President, G.R. No. 235935,
February 6, 2018)]

[Note: The requirement of the Constitution is therefore adequately met when there is sufficient factual basis to hold
that the present and past acts constituting the actual rebellion are of such character that endanger and will endanger
public safety. This permissive approach is sanctioned not only by an acknowledgment that the Congress is and should
be allowed flexibility but also because the Court is without the luxury of time to determine accuracy and precision.
(Lagman v. Senate President, G.R. No. 235935, February 6, 2018)]

Martial law is a law of necessity. "Necessity creates the conditions for martial law and at the same time
limits the scope of martial law." Thus, when the need for which Proclamation No. 216 was further extended
no longer exists, the President can lift the martial law imposition even before the end of the one-year
period. Under the same circumstances, the Congress itself may pass a resolution pre-terminating the
extension. This power emanates from Congress’ authority, granted under the Constitution, to approve the
extension and to fix its duration. The power to determine the period of the extension necessarily includes
the power to shorten it. Furthermore, considering that this Court's judgment on the constitutionality of an
extension is "transitory," or "valid at that certain point of time," any citizen may petition the Court to review
the sufficiency of the factual basis for its continued implementation should the President and the Congress
fail or refuse to lift the imposition of martial law. (Lagman v. Senate President, G.R. No. 235935, February 6,
2018)

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