Executive Department

Question 1

What is Calling Out Power?

Answer 1

The President may resort to this extraordinary power whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion. The power to call is fully discretionary to the President. The only limitation being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. The authority to decide whether the exigency has arisen belongs exclusively to the President and his decision is conclusive upon all other persons.

Question 2

Distinguish the President’s authority to declare a state of rebellion from the authority to proclaim a state of national emergency.

Answer 2

The power of the President to declare a state of rebellion is based on the power of the President as Commander-In-Chief and Chief Executive. It is not necessary for the President to declare a state of rebellion before calling out the Armed Forces of the Philippines to suppress it. The proclamation only gives notice to the nation that such state exists and that the Armed Forces of the Philippines may be called upon to suppress it. (Sanlakas vs. Executive Secretary, February 3, 2004, 421 SCRA 656)

In a proclamation of a state of national emergency, the President is already calling out the Armed Forces ofthe Philippines to suppress, not only rebellion but lawless violence. (David vs. Arroyo, G.R. No. 171396, May 3, 2006)

Question 3

What is Martial Law?

Answer 3

Under Martial Law, police power is exercised by the Executive with the aid of the military and in place of certain government agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty. It authorizes the military to act vigorously for the maintenance of an orderly civil government.

Question 4

When the President can declare martial law?

Answer 4

In case of rebellion or invasion, when the public safety requires it, he “may” for a period not exceeding sixty (60) days, suspend the writ of habeas corpus or place the Philippines or any part thereof under martial law.

Question 5

What is the responsibility of the President to Congress after the declaration of Martial Law?

Answer 5

Within 48 hours from the proclamation of the martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress.

The Congress, if not in session, shall within twenty four (24) hours following such proclamation or suspension, convene in accordance with the rules without need of call.

Question 6

What is the check of Congress on the declaration of Martial Law by the President?

Answer 6

The Congress, VOTING JOINTLY, by a vote of at least 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.

Question 7

In what conditions, Martial Law will be extended?

Answer 7

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 CONGRESS, if the invasion or rebellion shall persist and public safety requires it.

Question 8

What is the role of the Supreme Court in declaration of Martial and the suspension of the privilege of the writ of habeas corpus?

Answer 8

The Supreme Court, may review, in 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 within thirty (30) days from its filing.

Question 9

What is the effect of the declaration of Martial law regarding the Constitution and the courts?

Answer 9

It shall not suspend the operation of the Constitution nor supplant the functioning of civil courts or legislative assemblies, nor authorize 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.

Question 10

To whom the suspension of the writ of habeas corpus applies?

Answer 10

It applies only to persons judicially charged of rebellion or offenses inherent in or directly connected with the invasion (Sec. 18, par. 5, Art. VII). Persons arrested must be judicially charged within 3 days; if not, they must be released. (Sec. 18, par. 6, Art. VII). THE SUSPENSION OF THE PRIVILEGE OF THE WRIT DOES NOT SUSPEND THE RIGHT TO POST BAIL and by implication, does not suspend other civil and political rights. (Sec. 13, Art. III)

Question 11

What is the check on the suspension of the privilege of the writ of habeas corpus?

Answer 11

The suspension of the privilege of the writ and the declaration of martial law are subject to review and possible revocation by Congress. (Sec. 18, par. 1, Art. VII)

It is also subject to review and possible nullification by the Supreme Court (Sec. 18, par. 1, Art. VII)

Question 12

To what habeas corpus extends?

Answer 12

The writ of habeas corpus extends to all cases of illegal confinement or detention. Such confinement or detention involves either of two things: (a) the deprivation of liberty; or (b) the rightful custody of any person is withheld from the person entitled thereto.

Question 13

Is the imposition or martial law or the suspension of the privilege of the writ of habeas corpus a political question?

Answer 13

No. “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of the martial law or the suspension of the writ of habeas corpus or the extension thereof and must promulgate its decision within thirty (30) days from its filing.”

Question 14

It is argued that “only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The Constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.” Correct?

Answer 14

No. It is not correct. The court can simultaneously exercise its power of review with, or independently from the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review.

Question 15

What are the Extraordinary Powers of the President?

Answer 15

The President as Commander-In-Chief wields the extraordinary powers of:

1) calling out the armed forces;
2) suspending the privilege of the writ of habeas corpus;
3) declare martial law;

Question 16

What are the powers of the President in a valid Martial Law?

Answer 16

The President as Commander-In-Chief may order:

1) the arrest and seizures without judicial warrants;
2) ban on public assemblies;
3) takeover of news media agencies and press censorship;
4) issue presidential decrees;

Question 17

Does the exercise of the prerogatives of the President to exercise any of the extraordinary powers subject to judicial review?

Answer 17

The power of judicial review does not extend calibrating the President’s decision pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would tantamount to an incursion of exclusive domain of the Executive and an infringement of the prerogative solely, at least initially lies with the President.

Question 18

Does the recommendation of the Defense Secretary a condition sine qua non for the declaration of the Martial Law?

Answer 18

No. Even the recommendation of, or the consultation with the Secretary of National Defense or other high-ranking military officials is not a condition for the President to declare martial law. A plain reading of Section 18, Article VII of the Constitution shows that the President’s power to declare martial law is not subject to any condition except for the requirements of actual invasion or rebellion and that public safety requires it.

Question 19

Why Void for Vagueness doctrine will not apply to penal statutes?

Answer 19

Criminal statutes have general in terrorem effect resulting from their very existence, and if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

Question 20

When void for vagueness doctrine will apply?

Answer 20

The doctrines of strict scrutiny, overbreadth, and vagueness, are analytical tools, developed for testing “on their faces, statutes in free speech cases or, as they are called in American law, first amendment cases. They cannot be made to do service when what is involved is a criminal statute.

With respect to such statute, the established rule is that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”

Question 21

What is the scope of the power of Judicial Review under the 1987 Constitution in the declaration of Martial Law?

Answer 21

Its power is merely to check-not to supplant-the Executive, or to ascertain merely whether he has gone beyond the Constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.

Question 22

What is meant by “Sufficiency of Factual Basis” Test?

Answer 22

It means “the Court does not need to satisfy itself that the President’s decision is correct, rather it only needs to determine whether the President’s decision had sufficient factual bases. Since the exercise of these powers is a judgment call of the President the determination of this Court as to whether there is sufficient factual basis in the exercise of such must be based only on facts or information known by or available to the President at the time he made the declaration or suspension which facts or information are found in the proclamation as well as the written Report submitted by him to Congress.

As Commander-In-Chief, the President has the sole discretion to declare martial law and/or to suspend the privilege of the writ of habeas corpus, subject to the revocation of Congress and the review of this Court. “

Question 23

What is the standard proof of the President in declaring Martial Law?

Answer 23

The President needs only to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed.

Question 24

How many times Congress can extend the period of martial law?

Answer 24

The provision is 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 writ of Habeas Corpus. The only limitation to the exercise of the congressional authority to extend such proclamation or suspension is that the suspension should be upon the President’s initiative; that it should be grounded on the persistence of invasion or rebellion and the demands of public safety. (Lagman vs. Pimentel, G.R. No. 235935, February 6, 2018)

Question 25

Is the extension of the martial law limited to only 60 days?

Answer 25

No. Section 18, Art. VII did not also fix the period for the extension of the proclamation and suspension. However, it clearly gave the Congress the authority to decide its duration, thus, the provision states that the extension shall be “for a period to be determined by the Congress.” Plain textual reading of Section 18, Art VII and the records of the deliberations of the Constitutional Commission buttress the view that as regards the frequency and duration of the extension, the determinative factor is as long as the “invasion or rebellion persists and public safety requires such extension.” (Lagman vs. Pimentel, G.R. No. 235935, February 6, 2018)

Question 26

Why the scope of Martial Law cannot be confined to a specific vicinity?

Answer 26

The discretion to determine the territorial scope of martial law lies with the President. The Constitution grants him the prerogative whether to put the entire Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be confined only in the particular place where the armed public uprising actually transpired.

Question 27

What is “Public Safety?”

Answer 27

Public safety, which is another component element for the declaration of martial law, “involves the prevention of and protection from events that could endanger the safety of the general public from significant danger, injury/harm, or damage, such as crimes or disasters.”

Public safety is an abstract term; it does not take any physical form. Plainly, its range, extent or scope could not be physically measured by metes and bounds.

Question 28

Is the President of the Republic of the Philippines part of the chain of command of the PNP?

Answer 28

No. Under Section 26 of Republic Act No. 6975,[156] the command and direction of the PNP is vested in the Chief of the PNP. That the PNP chain of command does not include the President is further confirmed by the PNP BOI Report itself which clearly stated that with respect to Oplan Exodus, the chain of command in the PNP should have been: Police Deputy Director General Leonardo Espina, the Officer-in¬-Charge of the PNP (OIC-PNP) as Senior commander, and Police and SAF Director Getulio Napeñas as intermediate commander, excluding PNP Director General Purisima “who could not legally form part of the Chain of Command by reason of his suspension.”

The President’s power over the PNP is subsumed in his general power of control and supervision over the executive department of the government. “The national police force does not fall under the Commander-in-Chief power of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it x x x is [only] subject [to] the exercise by the President of the power of executive control.”

Question 29

What are the requisites for the doctrine of command responsibility to apply?

Answer 29

The following elements must obtain:
a) the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;

b) the superior knew or had reason to know that the crime was about to be or had been committed; and
c) the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.

Question 30

Distinguish executive power from administrative power.

Answer 30

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. On the other hand, administrative power refers to the President’s control over all such executive departments, bureaus, and offices. He shall ensure that laws are faithfully executed. (CONST., Art. VII, Sec. 17)

Question 31

What is the power of administrative reorganization?

Answer 31

It is the President’s continuing authority to organize 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, 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 vs. Executive Secretary, G.R. No. 160093, July 31, 2007)

Question 32

What is faithful execution clause?

Answer 32

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)

Question 33

What is the meaning of Appointment?

Answer 33

It is the act of designation or selection by the executive officer, board or body to whom the power has been delegated of the individual who is to exercise and perform the functions and duties of a given office. It differs from designation in that the latter simply means the imposition of additional duties, usually by law, on a person already in public service. It is also different from a commission, which refers to the written evidence of the appointment.

Question 34

What is the nature of the power to appoint?

Answer 34

1) It is intrinsically an executive function – It is an executive prerogative (but it does not mean no appointment by Congress or the courts can be made as they also appoint those officers who are necessary to the exercise of their own function.)
2) It is essentially discretionary – the right to choose whom to appoint is the very essence of the appointing power.
3) It is self-executing and not subject to legislative limitation – The President’s power to appoint vested by the Constitution itself is self-executing and thus not subject to legislative limitations or conditions.

Question 35

What follows from the fact that the appointing power is executive in nature?

Answer 35

The clear implication is that the legislature may not usurp such function. The legislature may create an office and prescribe the qualifications of the person who may hold the office, but it may neither specify who shall be appointed to such office nor actually appoint him. The appointing power is the exclusive prerogative of the president upon which no limitations may be imposed by Congress except those resulting from the limited exercise of power to prescribe the qualifications given appointive office. (Manalang vs. Quitoriano, 94 Phil 903)

Question 36

Q: What are the kinds of presidential appointments?

Answer 36

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” appointments.(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)

Question 37

What are midnight appointments?

Answer 37

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. VII, Sec.15)

Question 38

Is the prohibition on midnight appointments absolute?

Answer 38

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)

Question 39

Does the prohibition apply to the appointments made by the President in the judiciary?

Answer 39

No. The prohibition on midnight appointments does not apply to appointees to the judiciary. The fact that Section 14 and 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 unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. (De Castro vs. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

Question 40

Who are the officials whom the President is authorized to appoint under Section 16?

Answer 40

1) Those vested by the Constitution on the President alone;
2) Those whose appointments are not otherwise provided by law;
3) Those he may be authorized by law to appoint;
4) Those officers lower in rank whose appointment is vested by law in the President alone;

It means Congress may not give to any other officer the power to appoint the abovementioned officers.

Question 41

Who are included in “Those vested by the Constitution on the President alone?”

Answer 41

a) The heads of executive departments, ambassadors, and other public ministers and consuls;
b) Heads of Bureaus and certain offices including quasi-judicial agencies under different departments which are not called bureaus like the Securities and Exchange Commission, National Labor Relations Commission, National Irrigation administration etc. are no longer included among those whose appointments are to be confirmed by the Commission on Appointments.
c) The officers of the Armed Forces of the Philippines from the rank of colonel or naval captain;
d) Other officers whose appointments are vested in the President by the Constitution like sectoral representatives to Congress and members of the Constitutional Commissions;

Question 42

What are included in “those whose appointments are not otherwise provided by law?”

Answer 42

It refers to officers to be appointed to lower offices created by Congress where the latter omits to provide for appointments to said offices or provides in an unconstitutional way for such appointments in which case the officers are considered as among those whose appointments are not otherwise provided by law.

Question 43

What are those appointments whom he may be authorized by law to appoint?

Answer 43

The heads of government-owned or controlled corporations, undersecretaries, heads of bureaus and administrative agencies and other officials.

Question 44

What are other appointments authorized BY LAW law to the President?

Answer 44

1) Members of the Supreme Court and judges of the lower courts including the Sandiganbayan;
2) The Chairman and Commissioners of the Constitutional Commissions (CSC, Comelec, COA);
3) The regular members of the Judicial and Bar Council;
4) The Ombudsman and his deputies
5) The members of the regional consultative commissions;
6) Chairman and members of the Commission on Human Rights; (the Constitution does not state the appointing authority with respect to the Chairman and Members of the Commission on Human Rights but there is no doubt however that the power to appoint them is lodged in the President;)

Question 45

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

Answer 45

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 RA 10153, it falls under this group of officials that the President can appoint. Thus, the assailed law rest on clear constitutional basis. (Datu Michael Abas Kida vs. Senate of the Philippines, G.R. No. 196271, October 18, 2011)

Question 46

May the appointing authority be given to others?

Answer 46

Yes. Appointing authority may also be given to other officials than the President. Thus, Section 16 says, “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. In Rufino vs. Endriga, G.R. No. 139554, July 21, 2006 interpreted this to mean that when the authority is given to head of collegial bodies, it is to the chairman that the authority is given and not to the body. But he can appoint only officers “lower in rank” and not officers equal in rank to him. Thus, a Chairman may not appoint a fellow member of a Board.

Question 47

Are all regular appointments subject to confirmation by the Commission on Appointments?

Answer 47

No. Not all regular appointments are subject to the confirmation of the Commission on Appointments. Strictly speaking, presidential appointments that require no confirmation cannot be characterized properly as regular or ad-interim.

Question 48

What are four instances where confirmation of the Commission on Appointments is required?

Answer 48

1. Heads of Executive Departments; (except the Vice-President who may be appointed as member of the Cabinet and such appointment requires no confirmation)
2. Ambassadors, other public ministers and consuls – those connected with the diplomatic and consular services of the country;
3. Officers of AFP from the rank of colonel to naval captain;
4. Other officers of the government whose appointments are vested in the President in the Constitution (Sec. 16, Art. VII) such as:

i. Chairman and members of CSC, Comelec and COA;
ii. Regular members of Judicial and Bar Council;
iii. The Ombudsman and his deputies
iv. sectoral representatives to Congress
v. The members of the regional consultative commissions

Question 49

Are PNP officers and Philippine Coast Guard of equivalent ranks included in the confirmation of Commission on Appointments?

Answer 49

No. They are not established part of the AFP but Civilian police force pursuant to the mandate of the Constitution, its officers do not fall within this group and accordingly, their appointment does not require consent of the Commission on Appointments.

Question 50

Is the promotion of senior officers of the PNP subject to confirmation by the Commission on Appointments as required under the PNP Law?

Answer 50

No. Congress may not expand the list of those needing CA confirmation. Besides, PNP officers are not members of the Armed Forces but are civilians. (Manalo vs. Sistoza, G.R. No. 107369, August 11, 1999)

Question 51

What is a Regular appointment and what is an Ad-Interim appointment?

Answer 51

A regular appointment are those made during the sessions of Congress while an Ad-Interim appointment are those made during a recess of Congress or when Congress is not in session.

Question 52

When ad interim appointment deemed complete?

Answer 52

An ad interim appointment to be complete must be submitted to the Commission on Appointments once the same is constituted. It cannot be submitted to the Commission on Appointments of a different Congress but only to the Commission on Appointments of the Congress that has created it. An ad interim appointment is not complete until the appointee takes possession of the position or enters upon the discharge of its duties.

Question 53

What is the effect if the appointee is removed right after he already qualified?

Answer 53

The revocation of an appointment, if feasible, should be communicated to the appointee before the moment he qualified. Any revocation thereafter is tantamount to removal. Once an appointee has qualified, he acquires a legal, not merely equitable right, which cannot be taken away from him either by revocation of the appointment or by removal except for cause and with previous notice and hearing.

Question 54

What is a Recess? What is an Adjournment?

Answer 54

Recess means the period after the final adjournment of Congress for the session and before the next session begins while an adjournment during a session of Congress means a merely temporary suspension of business from day to day, or for such brief periods of time as are agreed upon by the joint action of the two Houses.

Question 55

Distinguish Ad-Interim Appointment from Appointment in an acting capacity.

Answer 55

1) Ad Interim appointment is made if Congress is not in session while Appointment in an acting capacity is made at any time there is vacancy i.e. whether Congress is in session or not;
2) Ad-Interim appointment requires the confirmation of the CA, while Appointment in an Acting Capacity does not require CA confirmation;
3) Ad-Interim appointment is permanent in nature while Appointment in Acting capacity is temporary in nature;
4) In Ad-Interim appointment, Appointee enjoys security of tenure, while Appointee in an Acting Capacity, appointee does not enjoy security of tenure;

Question 56

Q: What are the kinds of appointments which are required confirmation by the Commission on Appointments?

Answer 56

a) Regular Appointments – those made while Congress is in session.
b) Ad-Interim Appointments – those made during a recess in Congress or when Congress is not in session.

Question 57

When Regular Appointments take effect?

Answer 57

Regular appointments- with respect to those subject to the confirmation by the Commission on Appointments, the President issues a nomination as preliminary to the appointment to be approved by the Commission on Appointments. So, there is no appointment yet in the strict sense until it is confirmed. Thus, the appointment becomes the joint act of the President and the Commission on Appointments. It is only after the Commission gives its consent may the President issue the appointment to the officer concerned and the latter assume office. It is clear that there are 3 stages in regular appointment to wit: 1) nomination by the President; 2) confirmation or consent by the Commission on Appointments; 3) the appointment by the President. The “commission” issued by the President is the written evidence of the appointment.

Question 58

When Ad-Interim appointments take effect?

Answer 58

they take effect at once or immediately. The individual appointed may qualify and perform his function without loss of time. They are extended only during the recess of Congress and are submitted to the Commission on Appointments for confirmation or rejection.

Question 59

When Permanent Appointment takes effect?

Answer 59

If they are not subject to confirmation by the Commission on Appointments, they take effect at once like ad interim appointments.

Question 60

When temporary, acting and designation appointments take effect?

Answer 60

They also take effect at once. Section 15 gives the President the power to make temporary appointments. Section 16 refers to the regular appointing power of the President. The Administrative Code allows the President to make acting appointments. (Pimentel Jr. vs. Ermita, 472 SCRA 587)

Question 61

Distinguish the effects of disapproval by the Commission on Appointments and the failure of the Commission to act on the appointment.

Answer 61

a) Disapproval by the CA – The disapproval or rejection is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits and since the Constitution does not provide for any appeal, the disapproval is final and binding on the appointee as well as on the appointing power. The President can no longer renew the appointment because of the final decision of the CA.
b) Failure of the CA to act – a “by-passed” appointment is one that has not been finally acted upon on the merits by the CA at the close of the session of Congress. There is no final decision by the CA to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad-interim appointment of a by-passed employee.

Question 62

Would the Ad Interim appointment lapse with the ending of the term of office of the twelve Congressmen comprising one half of the membership of the Commission on Appointments?

Answer 62

No. An ad interim appointment does not automatically lapse. The Commission is a continuing body; only its membership changes periodically. It is not a creature of Congress.

Question 63

What is a by-passed appointment?

Answer 63

A by-passed appointment is one that has not been acted 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 vs. Benipayo, G.R. No. 149036, April 2, 2006)

Question 64

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

Answer 64

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)

Question 65

Is there a limit as to the number of times the CA can review the President’s re-appointment of a by-passed appointee?

Answer 65

Yes. A nomination or appointment which has been by-passed 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 members 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)

Question 66

When does Ad Interim appointment applies?

Answer 66

Under the constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e. without the participation of the Commission on Appointments. Ad Interim appointments by their very nature under the 1987 Constitution, extend only appointments where review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until the disapproval by the Commission on Appointments or until the next adjournment of Congress, but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments can not be ad interim appointments. (Bautista vs. Salonga, 172 SCRA 160 [1989])

Question 67

A law empowers the Commission to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. Constitutional?

Answer 67

No. It is unconstitutional. Any limitation or qualification on the Presidential power of appointment which is intrinsically an Executive act, is strictly construed as against the sharing of this power. (Sarmiento III vs. Mison 156 SCRA 549)

Question 68

Petitioner seek the recall of the appointments of the fourteen (14) private respondents before the CSC on the ground that these were “midnight appointments” by the Mayor forbidden under Article VII, Section 15 of the Constitution. Decide.

Answer 68

The prohibition applies only to presidential appointments. There is no law that prohibits elective officials from making appointments during the last days of his or her tenure. (De la Rama vs. Court of Appeals, G.R. No. 131136, February 28, 2001)

Question 69

Distinguish Appointment from Designation.

Answer 69

Appointment is the selection by the authority vested with the power of an individual who is to exercise the functions of a given office while designation merely connotes the imposition by law of additional duties of the incumbent public office while he performs the functions of his permanent office.

Appointment connotes permanency; designation implies temporariness.

Question 70

Does an Acting President possess the power to appoint?

Answer 70

Yes. But his appointment may be revoked by the elected President within 90 days from his assumption or reassumption of office.

An Acting President exercises the powers and functions of the Office of the President until a President shall have qualified or shall have been elected and qualified or his temporary incapacity shall have terminated. He is not the incumbent President. He has not become President to serve the unexpired portion of the term. There is only temporary vacancy. The appointments extended by the Acting President are naturally valid and effective. However, the elected is given the power to revoke them. But he must make the revocation within 90 days from assumption or re-assumption of office. His inaction is deemed a ratification by him of the appointments.

Question 71

Which appointment the power to revoke covers?

Answer 71

According to In Re: Appointment of Valenzuela, AM 98-0501 SC, November 9, 1998, the provisions apply to the Judiciary. However, according to De Castro vs. Judicial and Bar Council, G.R. No. 191002, April 10, 2010 and May 1, 2010, it does not apply to appointments to the Supreme Court, only to appointments in the Executive Department. Therefore, ban on midnight appointments is applicable in the entire judiciary, except on the Supreme Court.

Question 72

What are the rules on the President’s power of removal?

Answer 72

The general rule is that from the express power of appointment, the President derives the implied power of removal.

Exceptions to this rule are those appointed by him where the Constitution prescribes certain methods of separation from public service, e.g. impeachment under Section 2, Article XI, 1987 Constitution.

Question 73

Can a law vest the President with disciplinary authority over a Deputy Ombudsman?

Answer 73

No. To subject the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials of 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, include its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of Ra 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 vs. Office of the President, G.R. No. 196231, January 28, 2014)

Question 74

Recite the Power of Control provision of the Constitution.

Answer 74

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

Question 75

What is the Power of Control?

Answer 75

In Mondano vs. Silvosa, 97 Phil 143, the power of control has been defined as “the power of an officer to alter, or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.

Question 76

What is the doctrine of Qualified Political Agency?

Answer 76

In the case of Villena vs. the Secretary of the Interior, supra, postulates that “all executive and administrative organizations are adjuncts of the Executive Department, the heads of various executive departments are assistants and agents of the Chief 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 act personally, the multifarous executive and administrative functions of the Chief Executive are performed by and through the executive departments, and acts of the secretaries of such departments, performed and promulgated in the regular course of business are unless disapproved or reprobated by the Chief Executive presumptively are the acts of the Chief Executive.

Question 77

What is the effect on the doctrine of qualified political agency on the decision of department secretaries?

Answer 77

The effect would be is that a decision of a department secretary when reprobated by the Executive is the last step in the process of exhausting administrative remedies. Thus too, the Executive Secretary when acting “by authority of the President” may reverse the decision of another department secretary (Lacson-Magallanes vs. Pano 21 SCRA 895). “By authority of the President, he also has the power to modify, alter or reverse a construction of a statute given by the Secretary of Justice. (Maceda vs. Macaraig Jr. 197 SCRA 771 [1991])

Question 78

Does the power of control include the power to reorganize executive offices?

Answer 78

Yes. It has been held that the power of control means the power to reverse the judgment of an inferior officer. It may also be exercised in his behalf by Department Heads. Thus, the Secretary of Justice may reverse the judgment of the Prosecutor and direct him to withdraw an information already filed. Such action is not directly reviewable by the courts. One who disagrees however, should appeal to the Office of the President in order to exhaust administrative remedies prior to bringing it to court. (Orosa vs. Roa, G.R. No. 14047, July 14, 2006)

Question 79

Is the Executive Power of Control absolute? What is the limit of the exercise of the Executive Power to control?

Answer 79

The definition of the structure of the executive branch of the government and the corresponding degrees of administrative control is not the exclusive preserve of the executive. It may be effectively limited by the Constitution, by law or by judicial decisions. All the more in the matter of appellate procedure as in the instant case. Appeals are remedial in nature; hence constitutionally subject to the Court’s rule making power.

Question 80

Who has the control of the “discretion” of a subordinate?

Answer 80

The power of control merely applies to the “exercise of control” over the acts of the subordinate in the performance of his duties. It only means that the President may set aside the judgment or action taken by a subordinate in “performance of his duties.” (Ang-angco vs. Castillo, 9 SCRA 619, 629).

Question 81

Is the review about the “person” of the subordinate included in the power of control of the President?

Answer 81

No. The power of control therefore is not the source of the Executive’s disciplinary power over the person of the subordinate, rather his disciplinary powers flows from his power to appoint. The power to remove in inherent in the power to appoint.

Moreover, this inherent disciplinary power has been made subject to the limitation by the legislature through the latter’s power to provide for a civil service system on of whose main features is security of tenure. “No officer or employee in the Civil Service shall be suspended or dismissed except for cause provided for by law. hence, it can be said that while the executive has control over the “judgment” or “discretion” of his subordinates, it is the legislature which has control over their “person.”

Question 82

Does the President have the control over officers of government owned or controlled corporations?

Answer 82

Yes. However, it is submitted that such power over government owned or controlled corporation comes not from the Constitution but from the statute. Hence, it may be taken away by statute.

Question 83

What is the Power of Supervision?

Answer 83

It is the power of a superior officer to “ensure that the laws are faithfully executed” by inferiors. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. The power of the President over local government is one of general supervision.

Question 84

Distinguish control from supervision.

Answer 84

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 the former for the latter.

The power of supervision is defined as the power of a superior officer to see to it that lower officers perform their functions in accordance with law. (Joelbito-on vs. Fernandez, G.R. No. 139813, January 31, 2001)

Question 85

When shall Emergency Powers be delegated to the President?

Answer 85

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of Congress, such powers shall cease upon the next adjournment thereof. (Sec. 23, Article VI, Constitution)

Other national emergency” may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood or other similar catastrophe or nationwide proportions or effect.

Question 86

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

Answer 86

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 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 vs. Commission on Audit, G.R.No. 125350, December 3, 2002)

Question 87

What is Decentralization of Administration?

Answer 87

There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process make local governments “more responsive and accountable” and “enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.”

Question 88

What is Decentralization of Power?

Answer 88

Decentralization of Power involves an abdication of political power in favor of local government units declared to be autonomous. According to a constitutional author, decentralization of power amounts to “self-immolation,” since in that event, the autonomous government becomes accountable not to the central authorities, but to its constituency.

Question 89

Define Devolution.

Answer 89

Devolution is an act by which the national government confers power and authority upon various LGUs to perform specific functions and responsibilities.

Question 90

Define deconcentration.

Answer 90

Deconcentration, also known as administrative decentralization, is a decentralization which is administrative in nature. It involves transfer of function or the delegation of authority and responsibility from the national office to the regional and local office.

Question 91

What is the Constitutional Basis of the power of the President to grant Executive Clemency?

Answer 91

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 the majority of all the members of Congress.

Question 92

What are reprieves, commutations, and remission of fines and forfeitures?

Answer 92

A reprieve postpones the execution of an offense to a day certain. (People vs. Vera, 65 Phil 56) and a commutation “is a remission of a part of the punishment; a substitution of a less penalty for one originally imposed. Remission of fines and forfeitures is a self-explanatory term. However, it should be noted that remission of fines and forfeitures merely prevents the collection of fines or the confiscation of forfeited properties; it cannot have the effect of returning property which have been vested in third parties or money in the public treasury.

Question 93

Define Pardon.

Answer 93

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court.

Question 94

What is the effect of pardon?

Answer 94

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.

Question 95

Discuss the nature of the pardoning power of the President.

Answer 95

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 vs. Comelec). In granting the power of executive clemency upon the President, the Constitution does not distinguish between criminal and administrative cases. (Llamas vs. Executive Secretary, G.R. No. 99031, October 15, 1991)

Question 96

What are the two kinds of pardon?

Answer 96

1) Absolute Pardon – It is complete even without acceptance.
2) Conditional Pardon – it has no force until accepted by the condemned.

The reason is obvious. The condition may be “less acceptable to him than the original punishment and may in fact be more onerous.”

Question 97

What are the limitations, if any, to the pardoning power of the President?

Answer 97

(1) The President cannot pardon impeachment cases.
(2) The President may grant pardons only after conviction by final judgment.
(3) Amnesty requires the concurrence of the majority of all the Members of Congress. (Section 19, Article VII of Constitution)
(4) The President cannot grant pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations without the favorable recommendation of the Commission on Elections. (Section 9, Article iX-C of Constitution.)
(5) The President cannot pardon members and employees of the Judiciary found guilty by the Supreme Court in administrative cases, because it will encroach upon the exclusive power of administrative supervision of the Supreme Court over them (in re Petition for judicial Clemency of Manuel V. Romilo, Jr., G.R. No. 97091, December 9, 1997)

Question 98

Petitioner, an assistant treasurer, was convicted of estafa through falsification of public documents and received a penalty which included temporary absolute disqualification to last during the period of her sentence. The conviction was upheld by the Supreme Court but she filed a motion for reconsideration. Pending reconsideration she was granted absolute pardon. Is she entitled to reinstatement to her former position even without a new appointment?

Answer 98

No. Pardon removes all penalties and legal disabilities. But it does not restore legal office already forfeited. Since however, her disqualification has been removed, it qualifies her to apply for a new appointment. (Monsanto v. Factoran Jr. G.R. No. 78239, February 9, 1989)

Question 99

Petitioner was a teacher with the rank of Principal I. Convicted of a criminal offense, he was sentence to one year imprisonment and disqualification to hold public office. Subsequently, he was given absolute pardon and restored to “full civil and political rights.” He applied for reinstatement and was given the position merely of a classroom teacher. Is she entitled to his old rank of Principal I?

Answer 99

While it is true according to the case of Monsanto vs. Factoran that one who is given an absolute pardon has no demandable right to reinstatement. However, since the petitioner in this instance was actually reinstated and there are no circumstances that would warrant the diminution of his rank, justice and equity dictates that he be given his former rank of Principal I. (Sabello vs. Department of Education, G.R. No. 87687, December 26, 1989)

Question 100

What is an Amnesty?

Answer 100

Amnesty commonly denotes the general pardon to rebels for their treason and other high political offenses or the forgiveness which one sovereign grants to the subjects of another, who have offended by some breach of the law of nations. (Villa vs. Allen, 2 Phil 436)

Question 101

Distinguish Pardon from Amnesty.

Answer 101

1) Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned because courts take no notice thereof; while Amnesty by proclamation of the Chief Executive with the concurrence of Congress is a public ac of which the courts should take judicial notice.
2) Pardon is granted to one after conviction; while Amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.
3) Pardon looks forward and relieves the offender of the consequences of an offense of which he has been convicted, that is, abolishes or forgives the punishment and for that reason it does “not work for the restoration of the rights to hold public office or the right of suffrage unless such rights are expressly restored by the terms of the pardon, and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence. While Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (Barrioquinto vs. Fernandez, 85 Phil 642 [1949]

Question 102

What is the effect of pardon when extended to one who has a pending appeal?

Answer 102

Since pardon can be extended only to one whose conviction is final, pardon has no effect until the person withdraws his appeal and thereby allows his conviction to be final. (People vs. Salley Jr. G.R. No. 103567, December 4, 1995)

Question 103

May reprieves, commutations, pardons and remission of fines and forfeitures be given after conviction?

Answer 103

No. These can only be granted after conviction by final judgment. This is to prevent the President from pre-empting the action of the judge

Question 104

When does a judgment of conviction become final and executory?

Answer 104

Section 7 of Rule 120 of the Rules of Court provides that a judgment in a criminal case shall become final:

1. After the lapse of the period for perfecting an appeal – 15 days from promulgation of the judgment or from notice of the final order appealed from;
2. When the sentence has been partially or totally satisfied or served;
3. When the accused has waived in writing his right to appeal; or
4. When the accused applied for probation;

Question 105

Explain the “Conviction by Final Judgment” limitation?

Answer 105

It prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Thus, before an appellant may be validly granted pardon, he must first ask the withdrawal of his appeal, i.e. the appealed conviction must first be brought to finality.

Question 106

What is the effect of the appeal on the power of the President to extend pardon?

Answer 106

An appeal brings the entire case within the exclusive jurisdiction of the appellate court. The doctrine of separation of powers demands that such exclusive authority of the appellate court be fully respected and kept unimpaired. Had not the present Constitution adopted the “conviction by final judgment” limitation, the President could, at any time and even without the knowledge of the court, extend executive clemency to anyone whom he in good faith or otherwise believes to merit presidential mercy.

Question 107

In rape cases, does the pardon of the parents without the concurrence of the minor victim herself effective?

Answer 107

No. Pardon must be granted not only by the parents but also by the offended minor herself to be effective as an express pardon.

Question 108

Does Pardon restore rights to hold public office or the rights to suffrage?

Answer 108

Generally, it does not work to restore rights to hold public office or the right to suffrage unless such rights be expressly restored by the terms of the pardon and it in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence.

Question 109

What is the significance of the necessity of the individual’s pardon papers?

Answer 109

The necessity for the individual pardon papers is best explained by the nature of a conditional pardon, which is “a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby 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 terms and conditions of the pardon.”[41]The individual pardon papers, therefore, contain the terms and conditions of the contract of pardon, the compliance of which is essential to the pardonee’s freedom from recommitment to prison.

Question 110

Can the President delegate the pardoning power through a subordinate under the doctrine of qualified political agency?

Answer 110

No. It has long been recognized that the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, demands the exclusive exercise by the President of the constitutionally vested power.[51]Stated otherwise, since the Chief Executive is required by the Constitution to act in person, he may not delegate the authority to pardon prisoners under the doctrine of qualified political agency, which “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.” Ruben E. Tiu vs. Hon. Natividad Dizon, G.R. No. 211269, June 15, 2016)

Question 111

Is Novation a means of extinguishing criminal liability?

Answer 111

No. It is not a mode of extinguishing criminal liability. It may prevent the rise of criminal liability as long as it occurs prior to the filing of criminal information in court.

Question 112

What is the Constitutional Basis for the President to contract or guarantee loans in behalf of the Republic of the Philippines?

Answer 112

The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board and subject to such limitations as may be provided by law. The Monetary Board shall within thirty (30) days from the end of every quarter of the calendar year submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the government or government-owned or controlled corporations which would have the effect of increasing the foreign debt and containing other matters as may be provided by law. (Section 20, Article VII)

Question 113

The Financing Program for foreign loans instituted by the President extinguished portions of the country’s pre-existing loans through either debt buyback or bond-conversion. The buyback approach essentially preterminated portions of public debts while the bond conversion scheme extinguished public debts through obtention of a new loan by virtue of a sovereign bond issuance, the proceeds of which in turn were used for terminating the original loan. Petitioners contend that buyback or bond conversion are not authorized by Article VII Section 20.

Answer 113

The language of the Constitution is simple and clear as it is broad. It allows the President to contract and guarantee foreign loans. It makes no prohibition on the issuances of certain kinds of loans or distinctions as to which kinds of debts instruments are more onerous than others. This court may not ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the President. The plain clear and unambiguous language of the Constitution should be construed in a sense that will allow the full exercise of the power provided therein. (Constantino vs. Cuisia G.R. No. 106064, October 13, 2005)

Question 114

What are the foreign affairs powers granted to the President?

Answer 114

The following foreign affairs powers are also vested to the President:
1. The power to make treaties.

2. The power to appoint ambassadors, other public ministers, and consuls.
3. The power to receive ambassadors and other public ministers duly accredited to the Philippines.

Question 115

What is the limitation of the treaty making power of the President?

Answer 115

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds 2/3 of all members of the Senate. (Section 21, Article VII)

Question 116

Define Treaty

Answer 116

Treaties are formal contracts between the Philippines and other States-parties, which are in the nature of international agreements, and also of municipal laws in the sense of their binding nature.

Question 117

Define International Agreements

Answer 117

International agreements are similar instruments, the provisions of which may require the ratification of a designated number of parties thereto. These agreements involving political issues or changes in national policy, as well as those involving international agreements of a permanent character, usually take the form of treaties. They may also include commercial agreements, which are executive agreements essentially, but which proceed from previous authorization by Congress, thus dispensing with the requirement of concurrence by the Senate.

Question 118

Define Executive Agreements.

Answer 118

Executive agreements are generally intended to implement a treaty already enforced or to determine the details of the implementation thereof that do not affect the sovereignty of the State

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as “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.”

Question 119

When is the 2/3 votes of the Senate is required to bind treaties and international agreements?

Answer 119

Treaties and international agreements that cannot be mere executive agreements must, by constitutional decree, be concurred in by at least two-thirds of the Senate.

Question 120

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

Answer 120

No. No treaty or international agreement shall be valid and effective unless concurred with at least 2/3 of all the Members of the Senate. (CONST., Art. VII, Sec. 21)

Question 121

Who “ratifies” a treaty?

Answer 121

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 ratification, refuse to ratify it. (Pimentel Jr. vs. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005)

Question 122

Can the President generally enter into executive agreements?

Answer 122

Yes. The President may generally enter into executive agreements subject to limitations defined by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.

Question 123

Can the President enter into an executive agreement without the concurrence of Senate?

Answer 123

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.

However, the President, may not, by executive agreement enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, he may not defeat legislative enactments that acquired the status of law by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by the said laws. (Gonzales vs. Hechanova, G.R. No. L-21897, October 22, 1963)

Question 124

What is the distinguishing feature of an executive agreement?

Answer 124

Treaties are formal documents which require ratification with the approval of two-thirds of the Senate.

Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.

Question 125

Why Senate concurrence in executive agreements are dispensed with?

Answer 125

executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded

(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the Legislature; or
(3) in the exercise of the President’s independent powers under the Constitution.[211] The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations.Rene Saguisag vs. Paquito Ochoa, G.R. No. 212426, January 12, 2016)

Question 126

Can the President have an option to enter into a treaty or an executive agreement?

Answer 126

No court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article VIII, Section 25.

1) The executive agreement must not go beyond the parameters, limitations, and standards set by the law and/or treaty that the former purports to implement; and must not unduly expand the international obligation expressly mentioned or necessarily implied in the law or treaty.
2) The executive agreement must be consistent with the Constitution, as well as with existing laws and treaties. (Rene Saguisag vs. Paquito Ochoa, G.R. No. 212426, January 12, 2016)

Question 127

What are the requisites before an international agreement allowing the presence of foreign military bases, troops, or facilities in the Philippines be entered into?

Answer 127

Section 25, Article XVIII of the Constitution, contains stringent requirements that must be fulfilled by the international agreement allowing the presence of foreign military bases, troops, or facilities in the Philippines:

(a) the agreement must be in the form of a treaty, and
(b) it must be duly concurred in by the Senate.

Question 128

What is the President’s role in entering into international agreements?

Answer 128

In the negotiation phase of treaty making, the executive may completely exclude Congress. However, the fruit of the executive’s negotiation does not become binding treaty without the concurrence of at least two thirds of all the Members of the Senate.

Question 129

Who has the power to deport aliens?

Answer 129

It is lodged in the President of the Philippines. As an act of state, it is vested in the Executive by virtue of its office, subject only to the regulation prescribed in Section 69 of the Revised Administrative Code or to such future legislation as may be promulgated on the subject. There is no provision in the Constitution nor act of the legislature defining the power as it is evident that it is the intention of the law to grant to the Executive full discretion to determine whether an alien’s residence in the country is so undesirable as to effect or injure the security, welfare and interest of the State.

Question 130

Why Senate concurrence is dispensed with in Executive Agreements?

Answer 130

Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded. Executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded

1) To adjust the details of a treaty;
2) Pursuant to or upon confirmation by an act of the Legislature;

3) In the exercise of the President’s independent powers under the Constitution.
The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations.

Question 131

Does the EDCA violate the constitutional provision against the prohibition of entry of bases, troops and facilities in the Philippines without the concurrence of the Senate?

Answer 131

No. The Constitutional provision merely restricts the initial entry of the foreign military bases, troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the limitations provided by the rest of the Constitution and Philippine law, and not to the Section 25 requirement of validity through a treaty.

The EDCA can be in the form of an executive agreement, since it merely involves “adjustments in detail” in the implementation of the MDT and the VFA. It points out that there are existing treaties between the Philippines and the U.S. that have already been concurred in by the Philippine Senate and have thereby met the requirements of the Constitution under Section 25. Because of the status of these prior agreements, respondent emphasizes that EDCA need not be transmitted to the Senate

Question 132

What are the two important features that distinguishes a treaty from an executive agreement?

Answer 132

First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of the Executive and the Senate unlike executive agreements, which are solely executive actions. Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution.

Question 133

What are the Constitutional Provisions that limits the President’s power to enter into international agreements?

Answer 133

a) The policy of freedom from nuclear weapons within Philippine territory;
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, which must be pursuant to the authority granted by Congress;
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of Congress;
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in by the Monetary Board;
e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the form of a treaty duly concurred in by the Senate.
f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form of the government chosen be a treaty.

Question 134

When is the consent of the State to be bound by the treaty is expressed by ratification?

Answer 134

1. The treaty provides for the ratification;
2. It is otherwise established that the negotiating States agreed that ratification should be required;
3. The representative of the State has signed the treaty subject to ratification;
4. The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during its ratification;

Question 135

What is the significance of the signature of the State’s representative to a treaty?

Answer 135

It DOES NOT signify its final consent to the treaty. It is the ratification that binds the state to the provisions thereof. The Philippines is not bound under treaty law and international law to ratify a treaty which it has signed.

Question 136

What is the role of the Senate in relation to treaty signing?

Answer 136

As an independent body, it has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal yet delicate role in keeping the principles of separation of powers and of checks and balances alive.

Question 137

The Philippines signed the Rome Statute which created the International Criminal Court. Petitioners filed an action to compel its transmittal to the Senate for ratification.

Answer 137

The signing of a treaty and the ratification are two separate and distinct steps in the treaty-making process. Ratification is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act. The signature does not signify the final consent of the state to the treaty. Thus, the President has the discretion whether or not to ratify the treaty. The role of the Senate is limited to giving or withholding its concurrence to the ratification. Hence, it is within the authority of the President to refuse to submit the treaty to the Senate. (Pimentel vs. Office of the Executive Secretary, 462 SCRA 622)

Question 138

What does the Court look into when exercising the power of judicial review on international agreement entered into by the President?

Answer 138

The Court does not look into whether an international agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the applicable limitations.

Question 139

Discuss the President’s residual power

Answer 139

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 vs. Manglapus, G.R. No. 88211, October 27, 1989)

Question 140

Pursuant to the extradition treaty with the United States, a request was made by the U.S. for the extradition of Mark Jimenez. While the petition for extradition was being evaluated by the Department of Justice and before the filing of an extradition case in the proper court, a request was made by Jimenez that documents coming from the US related to the extradition request be made available to him. The request was granted by Judge Lantion. Whereupon, the Secretary of Justice asked the court to reverse the lower courts order. Decide.

Answer 140

During the evaluation stage in the Office of the Department of Justice the subject of the extradition request does not have the right to notice and hearing. P.D. 1069 which implements RP-US Extradition Treaty provides the time when an extradite shall be furnished a copy of the petition for extradition as well as the supporting papers i.e. after the filing of the petition for extradition by the extradition court. “An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country does not shield an accused from extradition pursuant to a valid treaty. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding safeguards in the latter do not necessarily apply to the former. (Secretary of Justice vs. Judge Lantion, g.r. Mo. 139465) October 17, 2000.