Executive Department Flashcards
The executive power shall be vested in the _________________.
[Sec 1, Art VII]
President of the Philippines
FIB
The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province and city, shall be transmitted to the ______________, directed to the ________________. Upon receipt of the certificates of canvass, the __________________ shall, not later than __________________________, open all the certificates in the presence of the _________ and the ______________________ in ________________, and the Congress upon determination of the authenticity and due execution thereof in the manner __________________, canvass the _______.
Congress; President of the Senate; President of the Senate; thirty days after the day of the election; Senate; House of Representatives; provided by law; votes
Can Congress validly delegate the initial determination of teh authenticity and due execution of the certificates of canvass?
YES.
Congress may validly delegate the initial determination of the authenticity and due execution of the certificates of canvass to a Joint Congressional Committee, composed of both members of both Houses.
[Lopez v Senate]
Is COMELEC allowed to make an ‘unofficial’ canvass of the votes for the President and Vice-President?
NO.
If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, it is, with more reason, prohibited from making and “unofficial” canvass.
[Brillantes v COMELEC]
What body shall act as the Presidential Electoral Tribunal?
The Supreme Court
FIB
The Supreme Cour, sitting ___________, shall be the sole judge of all contests relating to the ________, ______ and ________ of the President or Vice-President, and may ________________for the purpose.
en banc; election; returns; qualifications; promulgate its rules
What is the duration of the term of office of the President and the Vice-President?
6 years
When shall the term of office of the President or Vice-President start? When shall it end?
Begin: noon on the 30th day of June nest following the day of the election
End: noon of the same day 6 years thereafter
[Sec 4, Art VII]
Is the President eligible for re-election?
NO
FIB
No person who has succeded the President and has served for _______________ shall be qualified for election to the same office for ______________.
[Sec 4, Art VII]
more than 4 years;
any length of time
Can the President’s salary be decreased during tenure?
NO.
Salary - This shall be determined by law. It shall not be decreased during tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved. [Sec 6, Art VII]
What is Presidential immunity from suit?
The President as such cannot be sued, enjoying as he does immunity from suit. But the validity of his acts can be tested by an action against other executive officials.’
[Carillo v Marcos]
Who can invoke the Presidential immunity from suit?
Only the President.
Immunity from suit pertains to the President by virtue of the office and may not be invoked only by the holder of the office; not by any other person in the President’s behalf.
[Soliven v Makasiar; Beltran v Makasiar]
Can the President waive his immunity from suit?
YES.
The President may waive the protection afforded by the privilege and submit to the court’s jurisdiction.
[Soliven v Makasiar; Beltran v Makasiar]
When can Presidential decisions be questioned before the Courts?
Where there is
a. grave abuse of discretion, or
b. the President acted without or in excess of jurisdiction
[Gloria v. CA]
When can immunity from suit be invoked?
Immunity is co-extensive with tenure and covers only official duties. After tenure the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties.
[Estrada v Desierto]
What is the exception to the President’s immunity from suit?
The President may be sued if the act is one not arising from official conduct.
[Estrada v. Desierto]
What is Presidential Privilege?
Presidential Privilege
- this refers to the power of the government to withhold information from teh public, the courts, and the Congress.
[Shwart]
-the right of the President and high-level executive branch officers to withhold information from Congress, the courts and ultimately to the public. [Rotzell]
What are the qualifications for the Vice-President
Same as the President except that no Vice-President shall serve for more than 2 successive terms.
The Vice-President may be appointed as member of the Cabinet without need for confirmation of the Commission of Appointments.
Enumerate Prohibitions on the Executive Department
specifically for:
- President
- Vice President
- members of the Cabinet, and their deputies or assistants
a. Shall not receive any other emoluments from the govt or any other source (Pres and VPres) [sec 6]
b. Unless otherwise provided in the constitution, shall not hold any other office or employment [sec 13]
- prohibition does not include posts occupied by executive officials without additional compensation in an ex-officio capacity, as provided by law or as required by the primary functions of the said official;s office.
c. shall not directly or indirectly a) practice any other profession b) participate in any businesses; or c) be financially interested in any contract with , or in any franchise of special privilege granted by the government or any subdiviion, agency, or instrumentality therof, including government-owned or controlled corporations or their subsidiaries. [sec 13]
d. strictly avoid conflict of interest in the conduct of their office [Sec 13]
e. May not appoint a) spouse; or b) relatives by consanguinity or affinity within the fourth civil degree as members of Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairman or heads of bureaus or offices, including government-owned or controlled corporation and their subsidiaries.
What are the exception to the rule prohibiting the President from holding additional positions?
- The President can assume any or all Cabinet posts (because departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency)
- The President can assume ex officio positions. (Pres. as Chairman of NEDA)
What are the exception to the rule prohibiting the Vice-President from holding additional positions?
The Vice President may be appointed as member of teh Cabinet. Such appointment requires no confirmation.
[sec 3, Art VII]
What are the exceptions to the rule prohibiting Cabinet Members from holding additional positions?
- “unless otherwise provided in this Constitution” (Sec 13, Art VII)
- “unless otherwise allowed by law or by the primary function of his positon” (Sec 7, Art IX-B)
What are the cases contemplated by the phrase “unless otherwise provided by the Constitution” in Sec 13, Art VII?
- The Vice President - appointed as member of Cabinet
- The Vice- President acting as President when one has not yet been chosen or qualified (Sec 7, Art VII)
- Secretary of Justice sitting as ex-officio member of the Judicial and Bar Council [Sec 8, Art VIII; Civil Liberties Union v. Executive Secretary
When does the Constitution allow a Cabinet member to hold another office?
- It is an ex-officio capacity and without additional compensation
- Such is necessitated by the primary function of his position (eg Secretary of Trade an Industry as Chairman of the NDC; Secretary of Agrarian Reform as Chairman of the Land Bank)
- Such is allowed by law. (Civil Liberties Union v Executive Secretary)
What is Executive Power?
This refers to the Presidents’s power to enforce, implement , and administer laws. The President shall ensure that the laws be faithfully executed. [Sec 17, Art VII]
What are the powers of the President? (enum)
- Executive and Administrative Powers in General
- Power of Appointment
- Power of Control and Supervision
- Military Powers
- Pardoning Powers
- Diplomatic Powers
- Powers Relative to Appropriation Measures
- Delegated Powers
- Veto Power
- Residual Power
- Executive Privilege
- Emergency Powers
FIB
As ________________ of the government, the President is vested with the _________________ into practical operation.
[National Electrification Commission v CA]
administrative head;
power to execute, administer, and carry out laws
Enumerate: Summary of Presidential Powers
- Executive Power
- Power of Appointment
- Power of Control
- Power of Supervision
- Commander-in-Chief Powers
- Power of Legislation
- Diplomatic Powers
- Residual Power
- Other Power
- Power to pardon
- power to grant amnesty
- borrowing power
- budgetary power - informing power
summ
What is Executive Power?
This is the power to enforce and administer laws.
summ
What is the President’s Power or Appointment?
The Legislative can create office, but only the Executive can fill it; Congress cannot circumvent this by setting very narrow qualifications, such that only one person is qualified to hold office.
[Flores v Drilon]
summ
What is the President’s Power of Control?
The President may a) nullify, modify judgements of subordinates; b) undo or redo actions of subordinates; and c) lay down rules for the performances of subordinates’ duties.
summ
Power of Supervision
This refers to the oversight function. The Executive must see to it that rules, which it did not make, are followed.
What is under the Commandr-in-Chief Powers of the President?
a. Call out Power
b. Suspension of the privilege of the Writ of Habeas Corpus
c. Martial Law
What is under the Power of Legislation of the President?
a. Veto Power
b. Power to Declare an Emergency
c. Integrative Power
summ
Residual Power of the President
To protect the general welfare of people; founded on duty of President as steward of the people; includes powers unrelated to execution of any provision of law.
[Marcos v Manglapus]
summ
Informing Power of the President
Address Congress during opening of session, or at any other time [Sec 23, Art VII]
Does the presidential power of control require statutory implementation?
NO
The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.
Is Pres. Duterte bound by the 1992 Agreement between former President Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte?
NO.
As incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine the policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate. [Ocampo v. Enriquez]
What is Power of Appointment (def)?
Power of Appointment:
The selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.
Differentiate appointment from designation and commission?
Appointment- the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.
Designation - imposition of additional duties, usually by law, on a person already in the public service.
Commission - written evidence of the appointment
What are the elements for a valid appointment?
- Authority to appoint and evidence of the exercise of the authority
- Transmittal of the appointment paper and evidence of the transmittal (preferably through the Malacanang Records Office)
- Vacant positions at the time of appointment; and
- Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications
When should the elements of a valid appointment apply?
All the elemements of a valid appointment should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban.
[Velicaria-Garafil v Office of the President]
Enumerate the four groups (classes) of officers whom the President may appoint.
- Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him (needs CA confirmation)
- All other officers of the government whose appointments are not otherwise provided by law;
- Those whom the President may be authorized by law to appoint
- Officers lower in rank whose appointments Congress may by law vest in the President alone.
Which Group of officers whom may the President may appoint needs confirmation of the Commission on Appointments?
Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colones or naval captain and other officers whose appointments are vested in him.
Recite Sec 16, Art VII of the Constitution.
Sec. 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. […]
Does appointment to the Philippine Coast Guard need undergo confirmation?
NO.
It is no longer under the AFP. [Soriano v. Lista]
Enumerate the presidential appointments which require the confirmation of the Commission of Appointments.
Appointees mentioned in first sentence of Sec 16, Art VII, including those officers whose appointments are expressly vested by the Constitution itself in the President:
a. Heads of the executive departments
b. Ambassadors, other public ministers and consuls
c. Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain
What is the rationale for the need of CA confirmation of certain presidential appointments to the AFP?
These are officers of a sizeable command enough to stage a coup
Do the directors and chief superintendents of the PNP fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments?
NO.
Directors and chief superintendents of the PNP, do not fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments.
The Philippine National Police [PNP, Section 4, Art XVI PC] is separate and distinct from the Armed Forces of the Philippine [AFP, Section 6, Art XVI, PC].
The police force is different from and independent of the armed forces and that the ranks in the military are not similar to those in the PNP.
[Manalo v Sistoza]
Enumerate the other officers whose appointments are vested in the President by the Constitution.
a. Chairman and Commissioners of the Constitutional Commissions
b. Regular members of the Judicial and Bar Council
c. Sectoral Congressional representatives (provision no longer in force)
In what cases is confirmation not required in Presidential appointments?
- When the President appoints other government officers whose appointments are not otherwise provided for by law
- Those officers whom he may be authorized by law to appoint (eg Chairman and Members of the Commission on Human Rights)
- When Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments
- Appointment of the Vice-President as members of the Cabinet [Sec 3, Art VII)
- Appointments upon recommendation of the Judicial and Bar Council
- Appointments solely by the President
What are the appointments which are solely by the President?
- Those vested by the Constitution on the President alone
- Those whose appointments are not otherwise provided by law
- Those whom he may be authorized by law to appoint
- Those other officers lower in rank whose appointments is vested by law in the President.
What are the appointments upon recommendation of the Judicial and Bar Council which do not require confirmation by the Commission on Appointments?
- Members of the Supreme Court and all other courts [Sec 9, Art VIII]
- Ombudsman and his 5 deputies (for luzon, visayas, and mindanao, general and military) [sec 9, ArtXI]
What is the difference between the Supreme Court and lower Courts as to when apppointment must be made in a vacancy?
Supreme Court: the appointment must be made 90 days from when the vacancy occurs [Sec 4, Art VIII]
Lower Courts: appointment shall be issued within 90days from submission of the list
What are the steps in the appointing process?
- Nomination by the President
- Confirmation by the Commission on Appointments
- Issuance of the Commission
- Acceptance of the Appointment
An appointment is deemed complete only upon _________.
[Lacson v Romero]
acceptance
Appointment is essentially a __________________, the only condition being that the appointee, if issued a permanent appointment, should possess the ___________________ ; including the ____________________ prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment.
discretionary power;
minimum qualification requirements;
Civil Service eligibility
What are the two kinds of Appointments requiring confirmation?
- Regular - if the CA (Congress) is in session
2. Ad Interim - during the recess of Congress (CA only meets while Congress is in session)
When does a regular appointment take effect?
Regular appointment takes effect only after confirmation by the Commission on Appointments.
Does the filing of a motion for reconsideration of the confirmation of an appointment have the effect of recalling or setting aside said appointment?
NO.
Regular appointment - continues until the end of the term.
The Constitution is clear - there must either be a rejection by the Commision on Appointments or non-action on its part for the confirmation to be recalled.
When does an ad-interim appointment take effect?
Ad interim appointment takes effect immediately, but ceases to be valid
1. if disapproved by the CA
2. upon the next adjournment of Congress
[Sec 16, Art VII]
(Iden.)
A type of appointment which can be withdrawn or revoked at the pleasure of the appointing power.
Acting/Temporary Appointment
The appointee does not enjoy security of tenure.
What are the limitation to the President as to making acting/temporary appointment?
President is constitutionally prohibited from making such appointments to the Constitutional Commissions (in order to preserve the latter’s independence)
When can the President appoint someone to a temporary designation?
The President may designate an officer already in the gov’t service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when:
- The officer regularly appointed to the offect is unable to perform his duties by reason of illness, absence or any other cause, or
- There exists a vacancy
In no case shall a temporary designation exceed ___________.
1 year
[Sec 17, Book III, Admin Code of 1987]
Can Congress impose on the President the obligation to appoint an incumbent Undersecretary as [the President’s] Acting Secretary?
NO.
The President shall have the freedom to choose who shall be his temporary alter ego. [Pimentel v Ermita]
Differentiate Ad Interim (Reces) and Acting (Temporary) Appointments?
Both - Effective upon Acceptance
Ad Interim:
- extended only when Congress is in recess
- submitted to the CA for confirmation
- permanent appointments
Acting:
- may be extended even if Congress is in session
- not submitted to the CA for confirmation
- way of temporary filing up vacancies
What are the limitations on the appointing power of the President?
- Art VII, Sec 13, par 2 - spouse, relatives by cosanguinity or affinity within the 4th civil degree
- recess (ad interim ) appointments - only until dispproval by the Commission on Appointments or until the next adjournment of the Congress [Sec 16-2, Art VII]
As to what positions does the appointment prohibition on Sec 13, par 2, Art VII apply
The spouse and relatives by cosanguinity or affinity within the 4th civil degree of the President shall not, during his ‘tenure’, be appointed as
a. Members of the Constitutional Commissions
b. Member of the Office of Ombudsmand
c. Secretaries
d. Undersecretaries
e. Chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries
What is the general rule on Midnight Appointments Ban?
2 months immediately before the next presidential elections (2nd Monday of March), and up to the end of his ‘term’ (June 30), a President (or Acting President) shall not make appointments
[Sec 15, Art VII]
What is the exception to Midnight Appointments Ban?
Temporary appointments to executive positions, when continued vacancies will
a. prejudice public service
b. endanger public safety
What is the limit of the Midnight Appointment Ban?
The midnight appointment ban is limite to the executive department:
The prohibition against midnight appointment applies only to positions in the executive department.
[De Castro v JBC]
Does the ban on midnight appointment extend to appointments made by local elective officials?
NO.
The ban applies only to the President.
There is on law that prohibits local elective officials from making appointments during the last days of his or her tenure.
[De Rama v CA]
Does the ban on midnight appointments apply to the acting president?
YES
What is the appointing power of the Acting President?
Appointments extended by an Acting Presiden shall remain effective unless revoked by the elected President within ninety days from his assumption or re-assumption of office [Sec 14, Art VII]
This power is implied from the power of appointment
Power of Removal
What are the exception to the President’s Power of Removal?
The President cannot remove officials appointed by him where the Constiturion prescribes certain methods for the separation of such officers from public service (eg Chairmen and Commissioners of Constitutional Commissions) who can only be removed only by impeachment, or judges who are subject to the disciplinary authority of the Supreme Court
