1987 PHILIPPINE CONSTITUTION

ARTICLE VII – EXECUTIVE DEPARTMENT

JPDL Notes

Executive Power, Meaning

Executive power is the power to enforce the laws, for the President is head of state as well as head of
government and whatever powers inherent in such positions pertain to the office unless the Constitution
itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one
of the powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g. his power over the country’s foreign relations (Biraogo vs. The
Philippine Truth Commission of 2010, December 7, 2010)

To Whom Executive Powers is vested

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

The Executive Power is vest in the President who is both “Head of State” and “Chief Executive”

As head of state, he remains the ceremonial head of the government and he must take part with real or
apparent enthusiasm in a range of activities that would keep him running and posing from sunrise to
bedtime if he were not protected by a cold-blooded staff. Some of these activities are solemn or even
priestly in nature; others through no fault of his own, are flirtations with vulgarity. (The American
Presidency by Clinton Rossiter)

As Chief Executive, he is the executive and no one else is. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson
‘should be of the President’s bosom confidence,’ and, in the language of Attorney General Cushing, ‘are
subject to the direction of the President.”

Presidential Privileges:

A. Residual Powers
The powers of the President are more than the sum of enumerated executive powers. The duty
of the government “to serve and protect the people” as well as to see to the “maintenance of
peace and order, the protection of life, liberty, and property, and the promotion of the general
welfare” argue towards the existence of “residual unstated powers” (Marcos vs. Manglapus
September 15, 1989) 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 (Bernas)

B. Executive Privilege
It is the power of the President to withstand certain types of information from the courts, the
Congress, and ultimately the public.

The type of information that are covered by the executive privilege include those which are of a
national those which are of nature that disclosure would subvert military or diplomatic
objectives, or information about the identity of persons who furnish information of violations of
law, or information about internal deliberations comprising the process by which government
decisions are reached.
 C. Immunity from Suit
The President has absolute immunity from suit even for wrongdoing committed during his term.
The rationale for the grant of immunity from suit to the President is to assure the exercise of
presidential duties and functions free from any hindrance or distraction, considering that being
the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s
time, also demand undivided attention.

However, once out of office, even before the end of the six year term, immunity for non-official
acts is lost. Such as the case of of Joseph Estrada. 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 many other trespasser. (Estrada vs. Desierto)

Prohibitions, Inhibitions, and Disqualifications

Unless otherwise provided in the Constitution, the President, VP, Members of the Cabinet and their
deputies or assistants, shall not:

1. Receive any other emolument from the government or any other source;
2. Hold any other office or employment during their tenure (exceptions: 1. VP as a cabinet
member, the Secretary of Justice as ex-officio member of JBC)
3. Practice, directly or indirectly, any other profession during their tenure;
4. Participate in any business;
5. Be financially interested in any contract with, or in any franchise, or special privilege granted
by the Government, including Government-owned and controlled corporations;
6. Shall avoid conflict of interest in conduct of office
7. Shall avoid nepotism

Cases:
a. Funa vs. Agra (February 19. 2013)
b. Funa vs. Ermita (February 11, 2010)

Qualifications of the President / Vice-President

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.

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.

No Vice-President shall serve for more than two consecutive 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.

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

The returns of every election for President and Vice-President, duly certified by the board of canvassers of
each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all certificates in the presence of the Senate and the House of Representatives in
joint public session, and the Congress, upon determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.

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.
The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns,
and qualifications of the President or Vice- President, and may promulgate its rules for the purpose.

SECTION 5. Before they enter on the execution of their office, the President, the Vice-President, or the
Acting President shall take the following oath or affirmation:

“I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or
Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (In
case of affirmation, last sentence will be omitted.)

President Vice President

Nationality Natural Born Citizen Natural Born Citizen
Age At least 45 yrs old At least 45 yrs old
Registration Registered Voter Registered Voter
Residency Of Phils for at least Of Phils for at least
10 years IPDE 10 years IPDE
Ability / Read and Write Read and Write
Characteristic
Term 6 years without re- 6 years for 2 terms
election
Other Prohibited May be appointed to
Concurrent cabinet position
Position
 Notes:
• Purpose of residency requirement: for the Candidate to be acquainted with the
conditions of the country which will give him an insight or idea as to the possible
solutions that he may pursue if he succeeds
• Registered voter, meaning: a registered voter is one who is duly registered in the
list of the voters as he possess the qualifications for suffrage under Section 1 of
Article V
• Required age: the candidate should at least be 40 years of age on the day of the
election not on the day of proclamation

Summary of Election Procedures for President and Vice-President:

1. Transmission of Returns – the returns of every election for President and Vice-President shall be
duly certified by the Board of Canvassers of each province or city
2. Transmission of Certified Returns to the Congress – the certified returns shall be transmitted to
Congress, directed to the President of the Senate
3. Opening of certificates of canvass – upon receipt of the certificate of canvass, the President of
Senate shall, not later than thirty days after the day of the election, open all the certificates in the
presence of the Senate and HR in joint public session
4. Canvass of the votes by Congress – upon determination of the authenticity and due execution of
the certificates of canvass, Congress shall canvass the votes
5. Proclamation – the person having the highest number of votes shall be proclaimed elected
6. In case of Tie – in case two or more shall have an equal and highest number of votes, one of them
shall forthwith be chosen by a vote of a majority of all the members of Congress
7. Promulgation of Rules for Canvassing of Certificates – the Congress shall promulgate its rules for
the canvassing of the certificates
8. Sole judge of all contests – the Supreme Court, sitting en banc, (called as Presidential Electoral
Tribunal or PET) shall be the sole judge of all contests relating to: (a) the election, (b) returns, and
(c) qualifications of the President or Vice-President.

Cases:
1. Legarda vs. De Castro, March 31, 2005
2. Marcos vs. Robredo, PET Case No. 005, October 15, 2019

Legarda vs. De Castro, PET Case No. 003, March 31, 2005

Facts:

Loren B. Legarda filed an election protest against Noli L. de Castro before the Presidential Electoral Tribunal
(PET). De Castro filed a motion for its outright dismissal but the PET confirmed its jurisdiction over the
protest. De Castro filed a motion for reconsideration assailing the PET resolution. He argues that where the
correctness of the number of votes is the issue, the best evidence are the ballots; that the process of
correcting the manifest errors in the certificates of canvass or election returns is a function of the
canvassing bodies; that once the canvassing bodies had done their functions, no alteration or correction of
manifest errors can be made; that since the authority of the Tribunal involves an exercise of judicial power
to determine the facts based on the evidence presented and to apply the law based on the established
facts, it cannot perform the ministerial function of canvassing election returns; that the averments
contained in the protest are mere conclusions of law which are inadequate to form a valid cause of action;
and that the allegations are not supported by facts. He also contends that the Tribunal cannot correct the
manifest errors on the statements of votes (SOV) and certificates of canvass (COC).

Issues:

1. Can the PET correct the manifest errors in the SOV and COC?
2. Is there a need to resort to revision of ballots?
3. Was the election protest sufficient in form and substance?

Held:

1. The constitutional function as well as the power and the duty to be the sole judge of all contests relating
to the election, returns and qualification of the President and Vice-President is expressly vested in the PET,
in Section 4, Article VII of the Constitution. Included therein is the duty to correct manifest errors in the
SOVs and COCs.

2. We agree that the ballots are the best and most conclusive evidence in an election contest where the
correctness of the number of votes of each candidate is involved. However, we do not find any reason to
resort to revision in the first part of the protest, considering that the protestant concedes the correctness
of the ballot results, concerning the number of votes obtained by both protestant and protestee, and
reflected in the election returns. Protestant merely seeks the correction of manifest errors, that is, errors
in the process of different levels of transposition and addition of votes. Revision of ballots in case of
manifest errors, in these circumstances, might only cause unwarranted delay in the proceedings.

3. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she
questions all the results in all the precincts therein. The protest here is sufficient in form and substantively,
serious enough on its face to pose a challenge to protestee's title to his office. The instant protest consists
of alleged ultimate facts, not mere conclusions of law, that need to be proven in due time.

Considering that we find the protest sufficient in form and substance, we must again stress that nothing as
yet has been proved as to the veracity of the allegations. The protest is only sufficient for the Tribunal to
proceed and give the protestant the opportunity to prove her case pursuant to Rule 61 of the PET Rules.
Although said rule only pertains to revision of ballots, nothing herein prevents the Tribunal from allowing
or including the correction of manifest errors, pursuant to the Tribunals rule-making power under Section
4, Article VII of the Constitution.

Official Residence and Salary

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.

Salary of the President and Vice-President: Until the Congress provides otherwise, the President shall
receive an annual salary of P300,000.00 (Section 17, Article XVIII)

Current Salary: P395,858 (Salary Grade 33 for Government Officials and Employees)
 Rules of Succession (Vacancy of Positions)
Section 7 – Vacancy Before the Beginning of the Term
Section 8 – Vacancy During the Incumbency of the Position
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.

Summary of Rules on Succession

A. Vacancy Before the Beginning of the Term (Section 7)

Event Effect
1. In case of death or The VP elect shall become the President
permanent disability of the
President-elect
2. In case of failure to elect the The VP shall act as the President until the President
President shall been chosen and qualified
3. In case no President and VP The Senate President, or in case of his inability, the
shall have been chosen and Speaker of the House shall act as President until a
qualified, or where both shall President or a VP shall been chosen and qualified
have died or become
permanently disabled 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 VP shall have
qualified, in case of death, permanent disability or
 inability of the officials mentioned (Senate Pres and
Speaker)

B. Vacancy During the Incumbency (Section 8)

Event Effect
1. In case of: The Vice President shall become the President to
a. Death; serve the unexpired term
b. Permanent Disability
c. Removal from Office;
d. Resignation of the
President
2. In case of: The Senate President or in case of his inability, the
a. Death; Speaker of the House of Representatives, shall act
b. Permanent Disability as President until the President or Vice President
c. Removal from Office; shall have been elected and qualified
d. Resignation of both the
President and the Vice
President

Vacancy of the Office of the Vice-President without Vacancy of the Office of the 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.

Other Rules on Succession

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 appropriations and shall be exempt from the
requirements of paragraph 4, Section 25, Article VI 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.

President’s State of Health

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 the 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.

Summary of Rules on the State of Health of the President

A. Voluntary Declaration of Inability 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.
B. Involuntary Declaration of Inability 1. Majority of all members of cabinet
transmit to the Senate President and
Speaker of the HR their written
declaration that the President is unable to
discharge the powers and duties of his
office – VP becomes an acting President;
2. When President submits to Senate
President and Speaker of the HR that no
inability exists - President reassumes his
powers and duties;
3. If majority of the Cabinet transmit within
5 days to Senate President and Speaker of
HR their written declaration that
President is unable to discharge the
powers – Congress shall decide the issue
 within 48 hours in accordance with its
rules;
4. If Congress determines by 2/3 vote of
both Houses, voting separately, that
President is unable to discharge the
powers and duties of his Office – the VP
shall act as President, otherwise, the
President shall continue exercising his
powers and duties

POWERS OF THE PRESIDENT

Summary of Powers:
1. Executive and Administrative Powers in General
2. Appointing and Removing Power
3. Power of Control and Supervision
4. Military Powers
5. Pardoning Power
6. Diplomatic Power
7. Delegated Power
8. Borrowing Power (Power to Contract Loan)
9. Residual Power
10. Ordinance Power, and
11. Other Powers

I. Executive and Administrative Powers in General

The mandate of the President is to execute the laws of the land. To execute such laws, the President
may conduct investigation and create offices for the purpose.

The President cannot refuse to enforce a law on the ground that in his opinion it is unconstitutional.
Otherwise, he will be violating the doctrine of separation of powers because by doing so, he will be
arrogating unto himself the power to interpret the law, not merely to implement it. (L.S. Moon & Co.
vs. Harrison, 43 Phil. 38)

Faithful Execution Clause

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

The President has the duty to execute laws regardless of his doubts to its validity until and unless a
law is declared unconstitutional. The President must take care that the laws are faithfully executed.

The President’s power to conduct investigations to aid him in ensuring the faithful execution of laws –
in this case, fundamental laws on public accountability and transparency – is inherent in the
President’s power as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly mentioned in the
 Constitution or in statues does not mean that he is bereft of such authority. (OSG Memorandum, p.
37, rollo, p. 356)

Doctrine of Executive Impoundment

Impoundment refers to the refusal of the President, for whatever reason, to release funds
appropriated by Congress. It is the failure to spend or obligate budget authority of any type.

While its constitutional conferment is not expressed, the Administrative Code has given the President
specific authority, when in his judgment the public interest requires and upon due notice to the head
of office concerned, to suspend or otherwise stop further expenditure of funds allotted for any
agency. (Section 38, Chapter 5, Book VI of EO no. 292)

The Doctrine of Executive Impoundment means that although an item of appropriation is not vetoed
by the President, he however refuses for whatever reason, to spend funds made possible by
Congress. It is the failure to spend or obligate budget authority of any type. Proponents of
impoundment have invoked at least three principal sources of authority of the President:
1. Authority to impound given to him by Congress, either expressly or impliedly;
2. The executive power drawn from his power as Commander-In-Chief; and
3. The faithful execution clause of the Constitution.

II. The Power of Appointment and Removal

SECTION 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until after disapproval by the
Commission on Appointments or until the next adjournment of the Congress.

Appointment, Meaning:
Appointment may be defined as the selection by the authority with the power, of an individual who is to
exercise the functions of a given office.

Appointments made by the President in accordance with the limitations imposed by the Constitution or
doctrinal laws may not be subject to judicial review in deference to the doctrine of separation of powers.
However, if the President appoints one in violation of the restrictions imposed by the Constitutional or
one who does not possess the qualifications prescribed by the Constitution or law, such appointment may
be reviewed judicially.

Differences:
 vs
Appointment Designation
Naming a particular person to a specified public The imposition of additional duties, usually by law,
office on a person already in the public service
Permanent Appointment Temporary Appointment
When the person appointed possesses the One given to a person without the required
required eligibility of the post and is thus eligibility, and thus can be removed from the
protected by the constitutional provision on office without the necessity of just cause or a valid
security of tenure investigation.
Regular Appointment Ad Interim Appointment
One made during the legislative session. It is One made when the Congress is in recess. It does
made only after the nomination is confirmed by not wait for the confirmation of the CA but such
the Commission on Appointments and once appointment ceases to be valid if disapproved by
confirmed by the CA, continues until the end of the CA or upon the next adjournment of the
the term of the appointee Congress

Case: Pimentel Jr., et. al. vs. Ermita (G.R. No. 164978, October 12, 2005)

FACTS:
Due to the vacancies in the cabinet, then President Gloria Macapagal Arroyo appointed secretaries in the
different executive departments. Their appointment was in an acting capacity only.

Meanwhile, Senator Aquilino Pimentel and seven other senators filed a complaint against the appointees
and Executive Secretary Eduardo Ermita, on the ground that the President cannot make such
appointment without the consent of the Commission on Appointments; that, in accordance with Section
10, Chapter 2, Book IV of Executive Order No. 292, only the undersecretary of the respective departments
should be designated in an acting capacity and not anyone else.

On the contrary, then Executive Secretary Eduardo Ermita averred that the president is empowered by
Section 16, Article VII of the 1987 Constitution to issue appointments in an acting capacity to department
secretaries without the consent of the Commission on Appointments even while Congress is in session.
Further, EO 292 itself allows the president to issue temporary designation to an officer in the civil service
provided that the temporary designation shall not exceed one year.

During the pendency of said case, Congress adjourned and GMA issued ad interim appointments re-
appointing those previously appointed in acting capacity.

ISSUE:
Whether the appointments made by PGMA without the consent of the Commission of Appointments and
while the Congress is in session are constitutional.

RULING:
Yes, the essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure
intended to fill an office for a limited time until the appointment of a permanent occupant to the
office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department
secretary is the alter ego of the President, the acting appointee to the office must necessarily have the
President’s confidence. Thus, by the very nature of the office of a department secretary, the President
must appoint in an acting capacity a person of her choice even while Congress is in session. That person
may or may not be the permanent appointee, but practical reasons may make it expedient that the acting
appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I,
Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the
government service or any other competent person to perform the functions of an office in the executive
branch." Thus, the President may even appoint in an acting capacity a person not yet in the government
service, as long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the President by the
Constitution, because it only applies to appointments vested in the President by law. Petitioners forget
that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of Congress,
municipal ordinances, implementing rules issued pursuant to law, and judicial decisions.17

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in
Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on
Appointments.

Wherefore, the petition is denied.

Officials Subject to Appointing Power of the President

The four groups of public officers that are subject to the appointing power of the President where only
the first group of officers is subject to the confirmation process by the Commission on Appointments:

1. The heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the Armed Forces of the Philippines from the rank of Colonel or Naval captain, and
other officers whose appointments are vested in him by the Constitution (e.g. Chairmen and
Commissioners of the three Constitutional Commission, Regular Members of the JBC);
2. All other officers of the Government whose appointments are not otherwise provided for by
law;
3. Those, who, the President may be authorized by law to appoint; and
4. Officers lower in rank whose appointments the Congress by law vest in the President alone
(Fetalino vs. COMELEC, December 4, 2012)
Limitations on the President’s Power to Appoint

1. 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. (Section 13, par. 2)
2. Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger
public safety. (Section 15)
3. The other officers mentioned in the first group under Section 16, Article VII are subject to the
confirmation of the Commission on Appointments;
4. Appointments in the Judiciary shall be made upon recommendation of the Judicial and Bar
Council (Section 9, Article VIII)
5. Appointments extended by an Acting President shall remain effective, unless revoked by the
elected President within ninety days from his assumption or reassumption of office. (Section 14)
6. The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until after
disapproval by the Commission on Appointments or until the next adjournment of the Congress.
(Section 16, par. 2)
7. Congress may prescribe the qualifications required of public office.

Power of Removal

The power to appoint comes with the power to remove, unless expressly limited by the Constitution or
Statute. While the President is empowered to appoint members of the Supreme Court, Chairmen and
Commissioners of the Constitutional Commissions, and the Ombudsman, they could not be removed
except only through impeachment. In addition, judges of lower courts may be appointed by the President
yet the power to discipline and remove them belongs to the Supreme Court. Consequently, civil service
officers can only be removed for causes provided for by law.

III. Power of Control and Supervision

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

Control is the power of a superior officer to alter, modify, nullify, or set aside what a subordinate official
had done in the performance of his duties and to substitute the judgment of the former to the latter. The
power of control implies the right of the Superior officer to interfere in the exercise of such discretion as
may be vested by law in the subordinate officer.

On the other hand, supervision means overseeing or the power or authority of an officer to see that
subordinate officer performs their duties. If the latter fail or neglect to fulfill them, the former may take
such action or step as prescribed by law to make them perform their duties. (Mondano vs. Silvosa, 97
Phil. 143)

Doctrine of Qualified Political Agency (also known as the alter ego doctrine)
The doctrine of qualified political agency or alter ego principle means that the acts of the secretaries of
the Executive department performed and promulgated in the regular course of business are
presumptively the acts of the Chief Executive (Villena vs. Secretary of the Interior GR No. L46570 April 21,
1939)
Exceptions:
1. In cases wherein the Chief Executive is required by the Constitution or by the law to act in
person, or
2. The exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments.

Rationale: Since the president is a busy man, he is not expected to exercise the totality of his power of
control all the time. He is not expected to exercise all his powers in person. He is expected to delegate
some of them to men of his confidence, particularly to members of his Cabinet.

The doctrine of qualified political agency essentially postulates that the heads of the various executive
departments are the alter egos of the President, and, thus, the actions taken by such heads in the
performance of their official duties are deemed the acts of the President unless the President himself
should disapprove such acts. This doctrine is in recognition of the fact that in our presidential form of
government, all executive organizations are adjuncts of a single Chief Executive; that the heads of the
Executive Departments are assistants and agents of the Chief Executive; and that the multiple executive
functions of the President as the Chief Executive are performed through the Executive Departments. The
doctrine has been adopted here out of practical necessity, considering that the President cannot be
expected to personally perform the multifarious functions of the executive office. (Manalang-Demigillo
vs. Trade and Investment Devt. Corp. of the Philippines, GR No. 168613, March 5, 2013)

In the case of Abakada Guro vs. Executive Secretary (September 1, 2005), the SC held that the Secretary
of Finance can act as an agent of the Legislative Department to determine and declare the event upon
which its expressed will is to take effect. Thus, being the agent of Congress and not of the President, the
latter cannot alter, or modify or nullify, or set aside the findings of the Secretary of Finance and to
substitute the judgement of the former for that of the latter.

Power of General Supervision over local government

The President of the Philippines, as chief executive, has the mandate to supervise local governments in
the Philippines, despite their autonomous status as provided by RA No. 7160 otherwise known as the
Local Government Code of 1991.

Traditionally, this is done by the Department of Interior and Local Government, headed by a cabinet
secretary – an alter ego of the President.

The President wielded no more authority than that of checking whether local governments or their
officials were performing their duties as provided by the fundamental law and by statutes. He cannot
interfere with local governments, so long as they act within the scope of their authority. In League of
Provinces vs. Executive Secretary (GR No. 175368, April 11, 2013), it was held that the President’s power
to regulate small scale mining (through DENR) is consistent with his supervisory powers over the LGU’s as
well as with his duties that the laws are faithfully executed.
 IV. Military Power of the President

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. 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 any 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 the 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.

As Commander-In-Chief, the President exercises military powers under the following circumstances:
a. 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 60 days, suspend the privilege of the writ of habaes corpus or place the Philippines or
any part thereof under martial law.
b. He may enforce discipline in the armed forces through court martial which may be created by the
President under and by virtue of his power as Commander-In-Chief of the Armed Forces of the
Philippines

Writ of Habeas Corpus, Meaning

It is an order requiring a person or an officer detaining another, to bring the said person before the court
and explain the reason or cause of detention

Rationale for giving the power to declare Martial Law to the President: Martial law is founded upon the
principle that the state has a right to protect itself against those who would destroy it, and has likened to
the right of an individual to self-defense. It includes all laws that have reference to or are administered by
the military forces of the state.

Limitations on the Exercise of the Military Powers of the President

1. The calling out power may only be done when necessary to prevent or suppress lawless violence,
invasion or rebellion only;
2. The grounds for the suspension of the privilege of the writ of habeas corpus and the
proclamation of martial law are now limited only to invasion and rebellion only, and when public
safety requires it;
3. The duration of such suspension or proclamation shall not exceed 60 days, following which it shall
be automatically lifted;
4. (Legislative Check) Within 48 hours after such suspension or proclamation, the President shall
personally or in writing report his action to the Congress. The Congress, if not in session, must
convene within 24 hours without need of a call. The Congress may then, by a majority vote of all
its Members voting jointly, revoke his action;
5. Such revocation of Congress may not be set aside by the President;
6. In the same manner, the Congress may, upon initiative of the President, extend his suspension or
proclamation for a period to be determined by the Congress if the invasion or rebellion shall
continue and the public safety requires the extension;
7. (Judicial Check) The action of the President and the Congress shall be subject to review by the
Supreme Court which shall have the authority to determine the sufficiency of the factual basis of
such action. This matter is no longer considered a political question and may be raised in an
appropriate proceeding by any citizen. Moreover, the Supreme Court must be decide the
challenge within 30 days from the time it is filed;
8. Martial law does not automatically suspend the privilege of the writ of habaes corpus or the
operation of the Constitution. The civil courts and the legislative bodies shall remain open.
Military courts and agencies are not conferred jurisdiction over civilians where the civil courts are
functioning;
9. The suspension of the privilege of the privilege of the writ of habeas corpus shall apply only to
persons facing charges of rebellion or offenses inherent in or directly connected with invasion;
10. Any person arrested for such offense must be judicially charged therewith within three days.
Otherwise, he shall be released.

V. Pardoning Power of the President

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.

Pardon is an act of grace given by those who have the power and authority to execute laws which
exempts the individual subject of pardon from the punishment which the law inflicts for a crime he has
committed. The President is authorized to grant not only pardon but also reprieve, commutation of
sentence, remission of fines and forfeitures and amnesty.
Nature of Executive Clemency: it is an executive function and not a function of the judiciary. It is also a
non-delegable power and it can only be exercised by the President personally. (Villena vs. Secretary of
Interior, 1953)

Meaning:

Pardon is an act of grace given by those charged with the power and authority to execute laws which
exempts the individuals subject of pardon from the punishment which the law inflicts for a crime he has
committed.

Reprieve is the execution of the sentence is stayed or postponed. It is the withdrawal or withholding of
punishment for a time after conviction and sentence. It is in the nature of a stay of execution. It
postpones the execution of a sentence to a day certain.

Parole is when a person is released from imprisonment but his liberty is not fully restored because the
parole is still considered in the custody of the law although he is not in confinement. Parole does not
pardon the prisoner; he still remains in the legal custody. Although the prisoner is conditionally released,
the sentence is not set aside, nor the offense obliterated. He is still under the supervision of the parole
officer, and subject to be remanded to prison if grantee fails to perform or violates the conditions of the
parole.

Amnesty is an act of grace given with the concurrence of Congress. It is usually extended to groups of
persons who committed political offenses and it abolishes the offense itself.

Commutation is when the penalty is mitigated or reduced. It is the reduction of penalty from a greater
punishment to a lighter one even without need of acceptance of the convict.

Difference between Pardon and Amnesty

Pardon Amnesty
Who grants Pardon is granted by the Chief It is a proclamation of the Chief
Executive and therefore it is a private Executive with the concurrence of
act which must be pleaded and Congress, hence, it is a public act
proved by the person pardoned which the court should take judicial
because the courts take no notice notice.
thereof
When Granted It is granted to one after his Amnesty is granted to classes of
conviction by final judgment persons or communities who may be
guilty of political offenses, generally
before or after the institution of the
criminal prosecution and sometimes
after conviction
Nature Pardon looks forward and relieves Amnesty looks backward and abolishes
the offender from the consequences and puts into oblivion the offense
of an offense of which he has been itself, it so overlooks and obliterates
convicted. It abolishes or forgives the the offense with which he is charged
punishment, and for that reason it that the person released by amnesty
does “not work the restoration of the stands before the law precisely as
 rights to hold public office, or the though he had committed no offense
right of suffrage, unless such rights (Barrioquinto vs. Fernandez, 82 Phil.
be expressly restored by the terms of 642, 1949)
pardon, and it in no case exempts the
culprit from the payment of the civil
indemnity imposed upon him by the
sentence.

Kinds of Pardon

1. Absolute – when the President does not impose any conditions or qualification upon the
pardonee. It is complete even without the necessity of acceptance;
2. Conditional – when the President annexes or attaches certain terms or qualifications as he deems
fit. It requires the acceptance by the pardonee for its validity.

Note: A conditional pardon once delivered by the Chief Executive and accepted by the pardonee can no
longer be revoked. However, where the pardon has not yet been delivered and accepted, the same may
be withdrawn.

Limitations of the Pardoning Power of the President

1. It can only be exercised after conviction by final judgment;

2. It cannot extend to cases of impeachment;
3. It cannot be exercised on matters involving violation of election laws without a favorable
recommendation from the Commission on Elections;
4. Pardon cannot extinguish civil liability;
5. Pardon does not restore offices forfeited or vacated after conviction;
6. Determination as to whether there is a violation of condition exclusively rests in the Chief
Executive;
7. It cannot be exercised on judicial and legislative contempt because it violates the doctrine of
separation of powers.

Case: Pardon Granted to Former President Joseph Estrada (Risos-Vidal vs. COMELEC GR NO. 206666,
January 21, 2015)

Facts:

In September 12, 2007, the Sandiganbayan convicted former President Estrada for the crime of plunder
and was sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute disqualification. On October 25, 2007,
however, former President Gloria Macapagal Arroyo extended executive clemency, by way of pardon, to
former President Estrada, explicitly stating that he is restored to his civil and political rights.

In 2009, Estrada filed a Certificate of Candidacy for the position of President. None of the disqualification
cases against him prospered but he only placed second in the results.
In 2012, Estrada once more ventured into the political arena, and filed a Certificate of Candidacy, this time
vying for a local elective post, that of the Mayor of the City of Manila.

Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the Comelec stating
that Estrada is disqualified to run for public office because of his conviction for plunder sentencing him to
suffer the penalty of reclusion perpetua with perpetual absolute disqualification. Petitioner relied on
Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code
(OEC).

The Comelec dismissed the petition for disqualification holding that President Estrada’s right to seek public
office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo.

Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second highest
votes, intervened and sought to disqualify Estrada for the same ground as the contention of Risos-Vidal
and praying that he be proclaimed as Mayor of Manila.

Issue:

May former President Joseph Estrada run for public office despite having been convicted of the crime of
plunder which carried an accessory penalty of perpetual disqualification to hold public office?

Held:

Yes. 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 only reasonable, objective, and
constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36
and 41 of the Revised Penal Code.

It is insisted that, since a textual examination of the pardon given to and accepted by former President
Estrada does not actually specify which political right is restored, it could be inferred that former President
Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and to hold public
office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her intention was the
contrary, the same cannot be upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive
clemency.

It is apparent from the foregoing constitutional provisions that the only instances in which the President
may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was
no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the pardoning power of the President.
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The sentence
which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory
penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36
and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties
of civil interdiction and perpetual absolute disqualification were expressly remitted together with the
principal penalty of reclusion perpetua.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of
the OEC was removed by his acceptance of the absolute pardon granted to him

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms,
Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other
words, the latter provision allows any person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold any
public office, whether local or national position.

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes
the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering
the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a
preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the
reasons for the enactment, usually introduced by the word "whereas." Whereas clauses do not form part
of a statute because, strictly speaking, they are not part of the operative language of the statute. In this
case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore, does
not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the
fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to
seek a public office again, the former ought to have explicitly stated the same in the text of the pardon
itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition to
the pardon extended to former President Estrada.

VI. Diplomatic Power

The conduct of foreign relations or diplomatic power is vested in the head of state or sovereign. In some
states, such as the Philippines, which observe the doctrine of separation of powers, the President holds
actual executive power including the conduct of foreign relations.

The diplomatic power is the power to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties and otherwise transact the business of
foreign relations.

Constitutional Provisions on the Diplomatic Powers of the President:

1. The President is the Head of State and the repository of executive powers (Sec. 1, Art. VII)
2. The President shall nominate and with the consent of the Commission on Appointments…
Appoint ambassadors, other public ministers and consuls (Sec. 16, Art. VII)
3. The President may enter into treaty or executive agreement with the concurrence of at least two-
thirds of all the Members of Senate (Sec. 21, Art. VII)
4. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines (Sec. 20, Art. VII)

Power of the President over aliens (foreign nationals)

The President of the Philippines has certain powers over non-Filipinos in the Philippines. The powers he
may exercise over foreigners in the country are as follows:

• The chief executive may have an alien in the Philippines deported from the country after due
process.
• The President may change the status of a foreigner, as prescribed by law, from a non-immigrant
status to a permanent resident status without necessity of visa.
• The President may choose to overrule the Board of Commissioners of the Bureau of Immigration
before their decision becomes final and executory (after 30 days of the issuance of the decision).
The Board of Commissioners of the Bureau of Immigration has jurisdiction over all deportation
cases.
• The president is also mandated by the Administrative Code of 1987 to exercise powers as
recognized by the generally accepted principles of international law.

Difference between Treaties and International Agreements

Treaty Executive Agreements

Treaty is a formal document which requires Executive agreement becomes binding through
ratification with the approval of two-thirds of the executive action without need of concurrence
Senate from the Senate
International agreements involving political issues International agreements embodying adjustments
or changes of national policy and those involving of details in carrying out well-established national
international arrangements of a permanent policies and traditions and those involving
character usually take for of treaties arrangements of a more or less temporary nature
usually take the form of executive agreements
Case: Constitutionality of Enhanced Defense Cooperation Agreement with US (Saguisag vs. Executive
Secretary Ochoa GR No. 212426, January 12, 2016)

Facts:

On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of the
Philippines to reveal that some Senators, including himself, had been allotted an additional P50 Million
each as "incentive" for voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public statement
entitled Abad: Releases to Senators Part of Spending Acceleration Program, explaining that the funds
released to the Senators had been part of the DAP, a program designed by the DBM to ramp up spending
to accelerate economic expansion.

The DBM soon came out to claim in its website that the DAP releases had been sourced from savings
generated by the Government, and from unprogrammed funds; and that the savings had been derived
from (1) the pooling of unreleased and (2) the withdrawal of unobligated allotments also for slow-moving
programs and projects that had been earlier released to the agencies of the National Government.
The petitioners brought to the Court’s attention NBC No. 541 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No.
541, which was issued to implement the DAP, directed the withdrawal of unobligated allotments as of
June 30, 2012 of government agencies and offices with low levels of obligations, both for continuing and
current allotments.

Issues:

1. Whether or not Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which
provides: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by
law?
2. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the
DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:

(a) They treat the unreleased appropriations and unobligated allotments withdrawn from government
agencies as "savings" as the term is used in Sec. 25(5), in relation to the provisions of the GAAs of 2011,
2012 and 2013;

(b) They authorize the disbursement of funds for projects or programs not provided in the GAAs for the
Executive Department; and

3. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and
balances, and (3) the principle of public accountability enshrined in the 1987 Constitution considering
that it authorizes the release of funds upon the request of legislators?

4. Whether or not the Doctrine of Operative Fact is applicable?

Ruling:

1. No. The OSG posits, however, that no law was necessary for the adoption and implementation of the
DAP because of being neither a fund nor an appropriation, but a program or an administrative system of
prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the President as
the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.

The DAP was a government policy or strategy designed to stimulate the economy through accelerated
spending. In the context of the DAP’s adoption and implementation being a function pertaining to the
Executive as the main actor during the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to
implement the DAP. Congress could appropriate but would have nothing more to do during the Budget
Execution Stage.

The President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to changes in the country’s economic situation. He could
adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded
under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be
funded under the DAP did not involve appropriation in the strict sense because the money had been
already set apart from the public treasury by Congress through the GAAs. In such actions,
the Executive did not usurp the power vested in Congress under Section 29(1), Article VI of the
Constitution.

2. No. The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a
concurrence of the following requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective offices;
and
(3) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.
GAA’s of 2011 and 2012 lacked a law to authorize transfers of funds under the DAP. Hence, transfers
under DAP were unconstitutional.
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing
law for it to be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first
requisite, the GAAs should expressly authorize the transfer of funds.
In the 2011 GAA, the provision that gave the President and the other high officials the authority to
transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item
in this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:

Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item
in this Act from savings in other items of their respective appropriations.
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually
unfaithful to the Constitution for not carrying the phrase "for their respective offices" contained in
Section 25(5), supra. The impact of the phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the President, the transfer was to an item of
appropriation within the Executive). The provisions carried a different phrase ("to augment any item in
this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds
from savings to augment any item in the GAAs even if the item belonged to an office outside the
Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution.

There were no savings from which funds could be sourced for the DAP Were the funds used in the DAP
actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and withdrawn
unobligated allotments — were not actual savings within the context of Section 25(5), supra, and the
relevant provisions of the GAAs
We partially find for the petitioners.

The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation
and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any
obligation or encumbrance which are: (i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from
appropriations balances arising from unpaid compensation and related costs pertaining to vacant
positions and leaves of absence without pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to
meet and deliver the required or planned targets, programs and services approved in this Act at a lesser
cost.

In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is
that Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs
to fund; and the amounts of money to be spent for each PAP. The second principle
is that the Executive, as the department of the Government tasked to enforce the laws, is expected to
faithfully execute the GAA and to spend the budget in accordance with the provisions of the GAA. The
Executive is expected to faithfully implement the PAPs for which Congress allocated funds, and to limit
the expenditures within the allocations, unless exigencies result to deficiencies for which augmentation is
authorized, subject to the conditions provided by law. The third principle is that in making the President’s
power to augment operative under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its
power to the Executive. But Congress does not thereby allow the Executive to override its authority over
the purse as to let the Executive exceed its delegated authority. And the fourth principle is that savings
should be actual. "Actual" denotes something that is real or substantial, or something that exists
presently in fact, as opposed to something that is merely theoretical, possible, potential or hypothetical.
The foregoing principles caution us to construe savings strictly against expanding the scope of the power
to augment. It is then indubitable that the power to augment was to be used only when the purpose for
which the funds had been allocated were already satisfied, or the need for such funds had ceased to
exist, for only then could savings be properly realized. This interpretation prevents the Executive from
unduly transgressing Congress’ power of the purse.
The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased
appropriations such as unreleased Personnel Services appropriations which will lapse at the end of the
year, unreleased appropriations of slow moving projects and discontinued projects per Zero- Based
Budgeting findings. The fact alone that the appropriations are unreleased or unalloted is a mere
description of the status of the items as unalloted or unreleased. They have not yet ripened into
categories of items from which savings can be generated.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of
"savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act free
from any obligation or encumbrance." But the first part of the definition was further qualified by the
three enumerated instances of when savings would be realized. As such, unobligated allotments could
not be indiscriminately declared as savings without first determining whether any of the three instances
existed. This signified that the DBM’s withdrawal of unobligated allotments had disregarded the definition
of savings under the GAAs.
No funds from savings could be transferred under DAP to augment deficient items not provided in the
GAA.
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment
an item in the general appropriations law for the respective offices." The term "augment" means to
enlarge or increase in size, amount, or degree.
The failure of the GAAs to set aside any amounts for an expense category sufficiently indicated that
Congress purposely did not see fit to fund, much less implement, the PAP concerned. This indication
becomes clearer when even the President himself did not recommend in the NEP to fund the PAP. The
consequence was that any PAP requiring expenditure that did not receive any appropriation under the
GAAs could only be a new PAP, any funding for which would go beyond the authority laid down by
Congress in enacting the GAAs.
Cross-border augmentations from savings were prohibited by the Constitution.
By providing that the President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be
authorized to augment any item in the GAA "for their respective offices," Section 25(5), supra, has
delineated borders between their offices, such that funds appropriated for one office are prohibited from
crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we
call such transfers of funds cross-border transfers or cross-border augmentations.

To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive,
with respect to the President; the Senate, with respect to the Senate President; the House of
Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief Justice; the
Constitutional Commissions, with respect to their respective Chairpersons.
The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were
transferred under the DAP respectively to the COA and the House of Representatives. Those transfers of
funds, which constituted cross-border augmentations for being from the Executive to the COA and the
House of Representatives.

The respondents further stated in their memorandum that the President "made available" to the
"Commission on Elections the savings of his
department upon [its] request for funds…" This was another instance of a cross-border augmentation.
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section
25(5), supra, disallowing cross border transfers was disobeyed. Cross-border transfers, whether as
augmentation, or as aid, was prohibited under Section 25(5), supra.
Sourcing the DAP from unprogrammed funds despite the original revenue targets not having been
exceeded was invalid.
The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed
funds were treated as separate sources of funds. Even so, the release and use of the unprogrammed
funds were still subject to restrictions, for, to start with, the GAAs precisely specified the instances when
the unprogrammed funds could be released and the purposes for which they could be used.
The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP
were in accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that the
unprogrammed funds could be availed of when any of the following three instances occur, to wit: (1) the
revenue collections exceeded the original revenue targets proposed in the BESFs submitted by the
President to Congress; (2) new revenues were collected or realized from sources not originally considered
in the BESFs; or(3) newly-approved loans for foreign assisted projects were secured, or when conditions
were triggered for other sources of funds, such as perfected loan agreements for foreign- assisted
projects. This view of the DBM was adopted by all the respondents in their Consolidated Comment.
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations
that provided standby authority to incur additional agency obligations for priority PAPs when revenue
collections exceeded targets, and when additional foreign funds are generated. Contrary to the DBM’s
averment that there were three instances when unprogrammed funds could be released, the BESFs
envisioned only two instances. The third mentioned by the DBM – the collection of new revenues from
sources not originally considered in the BESFs – was not included. This meant that the collection of
additional revenues from new sources did not warrant the release of the unprogrammed funds. Hence,
even if the revenues not considered in the BESFs were collected or generated, the basic condition that
the revenue collections should exceed the revenue targets must still be complied with in order to justify
the release of the unprogrammed funds.
The present controversy on the unprogrammed funds was rooted in the correct interpretation of the
phrase "revenue collections should exceed the original revenue targets." The petitioners take the phrase
to mean that the total revenue collections must exceed the total revenue target stated in the BESF, but
the respondents understand the phrase to refer only to the collections for each source of revenue as
enumerated in the BESF, with the condition being deemed complied with once the revenue collections
from a particular source already exceeded the stated target.
However, the requirement that revenue collections exceed the original revenue targets was to be
construed in light of the purpose for which the unprogrammed funds were incorporated in the GAAs as
standby appropriations to support additional expenditures for certain priority PAPs should the revenue
collections exceed the resource targets assumed in the budget or when additional foreign project loan
proceeds were realized. The unprogrammed funds were included in the GAAs to provide ready cover so
as not to delay the implementation of the PAPs should new or additional revenue sources be realized
during the year. Given the tenor of the certifications, the unprogrammed funds were thus not yet
supported by the corresponding resources.
The revenue targets stated in the BESF were intended to address the funding requirements of the
proposed programmed appropriations. In contrast, the unprogrammed funds, as standby appropriations,
were to be released only when there were revenues in excess of what the programmed appropriations
required. As such, the revenue targets should be considered as a whole, not individually; otherwise, we
would be dealing with artificial revenue surpluses. The requirement that revenue collections must exceed
revenue target should be understood to mean that the revenue collections must exceed the total of the
revenue targets stated in the BESF. Moreover, to release the unprogrammed funds simply because there
was an excess revenue as to one source of revenue would be an unsound fiscal management measure
because it would disregard the budget plan and foster budget deficits, in contravention of the
Government’s surplus budget policy.
We cannot, therefore, subscribe to the respondents’ view.
3. No. With respect to the challenge against the DAP under the Equal Protection Clause, Luna argues that
the implementation of the DAP was "unfair as it [was] selective" because the funds released under the
DAP was not made available to all the legislators, with some of them refusing to avail themselves of the
DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in contravention of the Equal
Protection Clause.
COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable
classification was used in distributing the funds under the DAP; and that the Senators who supposedly
availed themselves of said funds were differently treated as to the amounts they respectively received.

The OSG counters the challenges, stating that the supposed discrimination in the release of funds under
the DAP could be raised only by the affected Members of Congress themselves, and if the challenge
based on the violation of the Equal Protection Clause was really against the constitutionality of the DAP,
the arguments of the petitioners should be directed to the entitlement of the legislators to the funds, not
to the proposition that all of the legislators should have been given such entitlement.
Equal Protection Clause

The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of
funds under the DAP to legislators, lacks factual and legal basis. The allegations about Senators and
Congressmen being unaware of the existence and implementation of the DAP, and about some of them
having refused to accept such funds were unsupported with relevant data. Also, the claim that the
Executive discriminated against some legislators on the ground alone of their receiving less than the
others could not of itself warrant a finding of contravention of the Equal Protection Clause. The denial of
equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and,
in these cases, such parties would be the few legislators claimed to have been discriminated against in
the releases of funds under the DAP. The reason for the requirement is that only such affected legislators
could properly and fully bring to the fore when and how the denial of equal protection occurred, and
explain why there was a denial in their situation. The requirement was not met here. Consequently, the
Court was not put in the position to determine if there was a denial of equal protection.
Separation of Powers

Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to
faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered
discretion that allowed the President to substitute his own will for that of Congress. He was still required
to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the GAAs was
but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress,
not in the Executive. Moreover, leaving the spending power of the Executive unrestricted would threaten
to undo the principle of separation of powers.
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse
whenever it deliberates and acts on the budget proposal submitted by the Executive. Its power of the
purse is touted as the very foundation of its institutional strength, and underpins "all other legislative
decisions and regulating the balance of influence between the legislative and executive branches of
government." Such enormous power encompasses the capacity to generate money for the Government,
to appropriate public funds, and to spend the money. Pertinently, when it exercises its power of the
purse, Congress wields control by specifying the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of
appropriations.For this purpose, appropriation involves two governing principles, namely: (1) "a Principle
of the Public Fisc, asserting that all monies received from whatever source by any part of the government
are public funds;" and (2) "a Principle of Appropriations Control, prohibiting expenditure of any public
money without legislative authorization.” To conform to the governing principles, the Executive cannot
circumvent the prohibition by Congress of expenditure for a PAP by resorting to either public or private
funds. Nor could the Executive transfer appropriated funds resulting in an increase in the budget for one
PAP, for by so doing the appropriation for another PAP is necessarily decreased. The terms of both
appropriations will thereby be violated.

Principle of Accountability with regard to DAP

Anent the principle of public accountability being transgressed because the adoption and implementation
of the DAP constituted an assumption by the Executive of Congress’ power of appropriation, we have
already held that the DAP and its implementing issuances were policies and acts that the Executive could
properly adopt and do in the execution of the GAAs to the extent that they sought to implement
strategies to ramp up or accelerate the economy of the country.

4. Yes. Doctrine of operative fact was applicable. The doctrine of operative fact recognizes the existence
of the law or executive act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect.

We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its
application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and
its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term
executive act is broad enough to include any and all acts of the Executive, including those that are quasi
legislative and quasi-judicial in nature.

Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does
not always apply, and is not always the consequence of every declaration of constitutional invalidity. It
can be invoked only in situations where the nullification of the effects of what used to be a valid law
would result in inequity and injustice; but where no such result would ensue, the general rule that an
unconstitutional law is totally ineffective should apply.

In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that
can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but
cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings
of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and
other liabilities.

WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement Acceleration Program, National Budget Circular No.
541 and related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI
of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other
offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the
General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification
by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant
General Appropriations Acts.