Let's Tilt Windmills

ARTICLE VII: THE EXECUTIVE DEPARTMENT

ARTICLE VII: THE EXECUTIVE DEPARTMENT

1987 Philippine Constitution

IMPORTANT NOTE ON SOURCES

This material integrates commentary from Fr. Joaquin G. Bernas, S.J. and Justice Isagani A. Cruz

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SECTION 1: THE EXECUTIVE POWER

Constitutional Text

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

Core Principles

A. Breadth of Executive Power

The 1987 Constitution vests executive power in the President without defining it precisely. This broad grant has generated significant constitutional debate between expansive and restrictive interpretations.

Bernas Commentary:

According to Bernas, the President is "the Executive of the Government of the Philippines, and no other." This designation carries profound implications:

  1. Exclusive Executive Authority: No other officer shares in the presidency itself
  2. Chief Executive Status: All executive departments, bureaus, and offices are under presidential control
  3. Alter Ego Doctrine: Cabinet secretaries are "of the President's bosom confidence" and "subject to the direction of the President" (Villena v. Secretary of Interior)

Cruz Commentary:

Justice Cruz takes a more restrictive view, warning against unlimited executive power. He argues that if the President possessed the totality of executive power, "it is difficult to see why our forefathers bothered to add several specific items, including some trifling ones."

Cruz emphasizes that the Constitution does not grant "in bulk all conceivable executive power" but rather allocates to the presidential office "generic powers thereafter stated." This view favors enumerated powers over inherent executive authority.

B. Residual Presidential Powers: The Marcos v. Manglapus Doctrine

The Landmark Decision

Marcos v. Manglapus, G.R. No. 88211 (September 15, 1989; October 27, 1989 on reconsideration) stands as the most controversial decision on executive power scope.

Facts: Former President Ferdinand E. Marcos, then in exile in Hawaii, sought to return to the Philippines. President Corazon Aquino prohibited his return, citing threats to national security and public order. Marcos challenged this order, arguing he had a constitutional right to return absent any statute authorizing the ban.

Issue: Whether the President possesses constitutional authority to prevent Marcos's return absent specific statutory authorization.

Ruling (8-7 Decision):

The Supreme Court upheld the President's action, establishing that executive power comprises more than enumerated constitutional powers. The Court held:

"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... the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power."

Doctrinal Foundations:

The Court identified multiple sources for residual powers:

  1. Constitutional Oath: The duty to "preserve and defend the Constitution"
  2. Faithful Execution Clause (Section 17): The duty to "ensure that the laws be faithfully executed"
  3. State Duties (Article II, Sections 4-5):
    • Prime duty to serve and protect the people
    • Maintenance of peace and order
    • Protection of life, liberty, and property
    • Promotion of general welfare

The Stewardship Theory:

Citing Theodore Roosevelt, the Court endorsed a stewardship concept: "It is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand."

Bernas's Response:

Father Bernas notes that the Court distinguished this from the discredited Planas v. Gil doctrine by emphasizing that:

He adds: "Besides, what the Court calls residual powers also come under the duty of the President to ensure that laws are faithfully executed. See Article VII, Section 17."

Cruz's Dissent:

Justice Cruz vigorously dissented:

"In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil. This does not square with the announced policy of the Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship."

He warned: "The doctrine enunciated in these two resolutions will be regretted when another Ferdinand Marcos emerges as President."

Constitutional Commission Intent:

The 1986 Constitutional Commission explicitly sought to constrain executive power following the Marcos dictatorship. Commissioner deliberations emphasized limiting, not expanding, presidential authority. However, the Court noted that these limitations affected specific powers (especially commander-in-chief powers) rather than the general grant of executive power.

C. Ceremonial and Symbolic Functions

Bernas on Presidential Ceremonies:

The President serves as ceremonial head of government beyond mere chief executive functions. Quoting Clinton Rossiter on the American President:

"He remains today, as he has always been, the ceremonial head of the government... Some of these activities are solemn or even priestly in nature; others, through no fault of his own, are flirtations with vulgarity."

The President functions as a combination of statesman, national symbol, and public figure—"a combination of scoutmaster, Delphic Oracle, hero of the silver screen, and father of multitude."

While the First Lady (when present) may share ceremonial duties, the President retains the principal symbolic role representing national unity and authority.

D. Immunity from Suit

General Doctrine:

The Constitution does not explicitly grant presidential immunity, but the doctrine exists through judicial construction based on separation of powers and the practical necessities of office.

Scope of Immunity:

The President enjoys immunity from civil and criminal suits during tenure of office. This immunity:

  1. Protects the dignity and integrity of the office
  2. Enables unhampered performance of executive functions
  3. Prevents harassment through litigation

Key Limitations:

1. Official vs. Unofficial Acts

Following U.S. jurisprudence in Clinton v. Jones, Philippine courts recognize that immunity does not extend to unofficial acts committed before assuming office.

2. Immunity Belongs to Office, Not Person

Soliven v. Makasiar, G.R. No. 82585 (November 14, 1988) established crucial principles:

Facts: President Aquino filed criminal libel complaints against newspaper columnists and publishers. Petitioners argued presidential immunity from suit implied a correlative disability to initiate suits.

Ruling: The Court rejected this argument:

"The privilege of presidential immunity from suit does not prevent the President from initiating criminal proceedings. The rationale for granting the President immunity from suit is to ensure the exercise of Presidential duties free from hindrance or distraction... An accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused."

Waiver of Immunity:

The President may voluntarily waive immunity and submit to court jurisdiction. The choice is personal to the officeholder.

3. Amparo and Habeas Data Proceedings

Saez v. Arroyo, G.R. No. 183533 (September 25, 2012) refined immunity doctrine in human rights cases:

Facts: Petitioner alleged military surveillance and coercion, naming President Arroyo as respondent in an amparo petition.

Ruling: The Court held that the President cannot be automatically dropped from amparo and habeas data petitions solely based on immunity. However, liability requires establishing command responsibility:

  1. Superior-subordinate relationship
  2. Knowledge or imputed awareness of violations
  3. Failure to prevent or punish violations with reasonable diligence

Practical Effect: While presidential immunity doesn't bar amparo/habeas data suits, petitioners must present substantial evidence of presidential involvement—not mere inclusion in pleadings.

E. Executive Privilege

Constitutional Basis:

Executive privilege, while not explicitly mentioned in the Constitution, derives from separation of powers and the need for confidential presidential communications.

Bernas on Executive Privilege:

"In simplest terms, it is the power of the President to withhold certain types of information from the courts, the Congress, and ultimately the public."

The Senate v. Ermita Framework

Senate of the Philippines v. Ermita, G.R. No. 169777 (April 20, 2006) provides the definitive Philippine doctrine on executive privilege.

Facts: President Arroyo issued E.O. 464 requiring executive officials to secure presidential consent before appearing in congressional inquiries. When officials failed to attend Senate hearings citing E.O. 464, multiple petitions challenged its constitutionality.

Issue: Whether E.O. 464, particularly Sections 2(b) and 3, unconstitutionally restricts congressional power of inquiry.

Ruling: The Court declared Sections 2(b) and 3 unconstitutional while recognizing executive privilege as a valid but limited doctrine.

Key Doctrinal Points:

1. Executive Privilege Must Be Formally Claimed

The Court emphasized that privilege cannot be presumed:

"A claim of privilege must be stated with sufficient particularity to enable Congress or the court to determine its legitimacy. Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected."

E.O. 464's requirement of prior consent created an invalid system of implied privilege—officials could refuse appearance without explicitly invoking privilege or stating grounds.

2. Only the President May Invoke Executive Privilege

The Court held that only the President (or the Executive Secretary with explicit "By order of the President" authorization) may invoke executive privilege—not subordinate officials.

The "presumptive authorization by mere silence" in E.O. 464 contradicted the exceptional nature of the privilege.

3. Types of Executive Privilege

The Court recognized two categories of privileged information:

a) Presidential Communications Privilege:

b) Deliberative Process Privilege:

4. Congressional Power of Inquiry vs. Question Hour

Critical distinction:

Inquiries in Aid of Legislation (Art. VI, Sec. 21):

Question Hour (Art. VI, Sec. 22):

5. Relationship to Compulsory Process

"While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information... Only one executive official may be exempted from this power—the President."

**Subsequent Development: *Neri v. Senate***

Following Senate v. Ermita, the Court applied its framework in Neri v. Senate, G.R. No. 180643. Secretary Neri claimed presidential communications privilege for three questions about conversations with President Arroyo regarding an allegedly corrupt transaction.

The Court upheld the privilege claim because:

  1. Questions involved direct conversations with the President
  2. Senate failed to demonstrate compelling public interest overriding the presumption
  3. Communications related to confidential presidential decision-making

Bernas's Analysis:

Father Bernas explains that the legitimacy of executive privilege depends on:

  1. The ground invoked to justify it
  2. The context in which it's claimed
  3. Whether the privilege should be honored in a given procedural setting

He emphasizes: "Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect."

F. The Cabinet

While Article VII does not detail Cabinet structure, constitutional and statutory provisions establish:

  1. Composition: Heads of executive departments appointed by the President with Commission on Appointments confirmation (Section 16)

  2. Alter Ego Doctrine: Cabinet members are not independent officers but extensions of the President, subject to presidential direction and control

  3. Role in Presidential Inability: A majority of all Cabinet members may declare the President unable to discharge duties (Section 11)

  4. Vice-President as Cabinet Member: The Vice-President may be appointed to the Cabinet without need for confirmation (Section 3)

  5. Prohibition on Multiple Office-Holding: Cabinet members cannot hold other office or employment during tenure (Section 13)

SECTION 2: QUALIFICATIONS OF THE PRESIDENT

Constitutional Text

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

Analysis of Qualifications

1. Natural-Born Citizenship

Definition: Natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect Philippine citizenship (Article IV, Section 2).

Purpose: Ensures loyalty and prevents potential conflicts of allegiance.

Note: The "natural-born" requirement is more stringent than mere citizenship. Naturalized citizens, even with decades of residence, cannot become President.

2. Registered Voter

Requirement: The candidate must be registered in the current voters' list.

Purpose: Demonstrates active citizenship and participation in democratic processes.

3. Literacy

Requirement: Ability to read and write (English or Filipino)

Purpose: Ensures basic capacity to perform presidential functions

Note: This is a minimal educational qualification; actual presidents typically possess advanced education.

4. Age Requirement

Minimum Age: At least 40 years on election day

Purpose: Ensures maturity and life experience

Comparison:

5. Residence Requirement

Duration: At least 10 years immediately preceding the election

"Residence" vs. "Domicile"

Philippine jurisprudence has grappled with distinguishing these concepts:

Residence (more flexible): The place where one lives or stays Domicile (more permanent): The fixed permanent residence with intention to remain

Supreme Court decisions have interpreted "residence" more liberally, focusing on actual residence rather than strict domicile requirements, particularly for candidates who maintained ties to the Philippines while working abroad.

SECTION 3: THE VICE-PRESIDENT

Constitutional Text

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

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

Function and Powers

Primary Constitutional Function:

The Vice-President has only one constitutional function: to be available to assume the presidency when needed or to succeed to the presidency in case of permanent vacancy.

As Cabinet Member:

The President may appoint the Vice-President to head an executive department. This appointment:

Term Limitation:

"No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected."

Succession Rule:

If the Vice-President succeeds as President and serves for more than four years, they are disqualified from election to the presidency at any time (Section 4).

SECTION 4: TERM AND ELECTION

Constitutional Text

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

Key Points

1. Term Length and Prohibition on Reelection

2. Succession and Four-Year Rule

If a Vice-President (or other successor) assumes the presidency and serves more than four years, they are disqualified from election to the presidency.

Rationale: Prevents circumvention of the no-reelection rule through succession.

Example:

3. Vice-Presidential Term Limits

The Vice-President may serve two successive terms (12 years maximum).

Voluntary renunciation does not interrupt service for term limit purposes.

SECTION 5: OFFICIAL RESIDENCE

Constitutional Text

Section 5. The President-elect and the Vice President-elect shall assume office at the beginning of their terms.

Implementation

The official residence of the President is Malacañang Palace, though this is by tradition and law rather than constitutional mandate.

SECTION 6: PRESIDENTIAL SALARY

Constitutional Text

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

Principles

1. Salary Determination: By law (Congress prescribes)

2. Non-Diminution During Tenure: Protects independence; prevents harassment through salary reduction

3. Prohibition on Mid-Term Increases: Increases take effect only for the next presidential term

Purpose: Prevents self-dealing; ensures compensation is set by Congress for future terms

SECTION 7: OATH OF OFFICE

Constitutional Text

Section 7. The President-elect shall assume office at the beginning of his term. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:

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

Significance

The oath:

  1. Marks the official beginning of presidential authority
  2. Establishes constitutional duties: preserve, defend, execute, and serve
  3. May be administered by the Chief Justice or, in their absence, the most senior available Justice
  4. Creates legal and moral obligations enforceable through impeachment

SECTION 8: PRESIDENTIAL SUCCESSION

Constitutional Text

Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.

Order of Succession

  1. Vice-President → Becomes President for unexpired term
  2. Senate President → Acts as President
  3. House Speaker → Acts as President (if Senate President unable)
  4. Other officials → As provided by law

Key Distinction:

The Estrada to Arroyo Transition

The transition from President Joseph Ejercito Estrada to President Gloria Macapagal-Arroyo in January 2001 involved complex questions of succession:

Did Estrada resign or was he removed?

The Supreme Court in several cases held that Vice-President Arroyo properly assumed the presidency following Estrada's departure from office, characterized as a constructive resignation through abandonment of office.

SECTION 9: VICE-PRESIDENTIAL VACANCY

Constitutional Text

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

Process

  1. Presidential Nomination: From Members of Congress (either House)
  2. Congressional Confirmation: Majority of all members of both Houses, voting separately
  3. Immediate Assumption: Upon confirmation

Historical Example:

When Vice-President Arroyo assumed the presidency in 2001, she nominated Senator Teofisto Guingona, Jr., who was confirmed by Congress.

Note: The 1935 Constitution had no provision for filling vice-presidential vacancies, creating potential succession gaps.

SECTION 10: SIMULTANEOUS VACANCIES

Constitutional Text

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

Procedure

If both President and Vice-President positions are vacant:

  1. Automatic Congressional Convening: 10:00 AM, third day after vacancy
  2. Certified Bill: Law calling special election (deemed certified)
  3. Election Timeline: 45-60 days from call
  4. Funding: Charged against current appropriations
  5. No Special Election: If vacancy occurs within 18 months before next regular presidential election

Acting President During Process: Senate President or House Speaker serves until special election

SECTION 11: PRESIDENTIAL INABILITY

Constitutional Text

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

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

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

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

Two Procedures for Declaring Inability

1. Voluntary Declaration by President

President declares own inability → Vice-President becomes Acting President → President may resume by written declaration

2. Cabinet Declaration

Majority of Cabinet declares President unable → Vice-President becomes Acting President → If President contests, Congress decides by 2/3 vote

Safeguards:

SECTION 12: DISCLOSURE OF HEALTH

Constitutional Text

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

Purpose

Transparency: Public has right to know about presidential health affecting governance

Security: Key national security officials maintain access to ensure continuity of critical functions

SECTION 13: PROHIBITIONS

Constitutional Text

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Prohibitions Explained

1. Holding Multiple Offices

The President, Vice-President, Cabinet members, and their deputies/assistants cannot:

Exceptions in Constitution:

Purpose: Ensures full-time dedication to executive duties

Stricter Than Civil Service: The Constitutional Commission intentionally made this prohibition stricter for the President and Cabinet than the general civil service prohibition (Article IX-B, Section 7), recognizing their greater power and potential for abuse.

In Civil Liberties Union v. Executive Secretary, the Court emphasized:

"Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned."

Executive Order 284: This order allowing Cabinet members to hold other positions in an ex-officio capacity without additional compensation was challenged. The Court upheld limited exceptions but emphasized strict interpretation.

2. Professional Practice Prohibition

During tenure, these officials cannot:

Purpose: Prevents conflicts of interest and corruption

3. Nepotism Prohibition

The President's spouse and relatives by consanguinity or affinity within the fourth civil degree cannot be appointed to:

Fourth Civil Degree Includes:

SECTION 14: ACTING PRESIDENT APPOINTMENTS

Constitutional Text

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office.

Application

When someone serves as Acting President (not assuming the full presidency), their appointments are:

Rationale: Balances need for continuity with elected President's prerogative to select key officials

SECTION 15: MIDNIGHT APPOINTMENTS

Constitutional Text

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The Midnight Appointment Ban

Period of Prohibition: Two months before presidential election through end of term

Rationale: Prevents outgoing President from limiting successor's appointive power

Exception: Temporary appointments to executive positions when:

  1. Continued vacancy would prejudice public service, OR
  2. Continued vacancy would endanger public safety

Does It Apply to the Judiciary?

This created significant controversy, resolved differently for lower courts versus the Supreme Court:

Lower Courts and Constitutional Commissions: In re Valenzuela (1998) held Section 15 applies to all appointments, including judiciary.

Supreme Court: De Castro v. JBC (2010) held Section 15 does not apply to Supreme Court appointments because:

  1. Article VIII, Section 4(1) mandates President "shall" fill Supreme Court vacancies within 90 days
  2. Mandatory language creates constitutional duty that cannot be restricted by Section 15
  3. Dissent argued this creates an unintended exception

Local Government Officials: De la Rama v. CA held Section 15 applies only to presidential appointments, not local elective officials' appointments.

SECTION 16: THE APPOINTMENT POWER

Constitutional Text (First Paragraph)

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

Nature of the Appointing Power

Executive in Character

Government v. Springer established that appointment is an executive function. Therefore:

As the Court stated in Manalang v. Quitoriano:

"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 to a given appointive office."

Categories of Presidential Appointments

1. Appointments Requiring Commission on Appointments Confirmation

These officers must receive Senate confirmation:

Key Change from 1935 Constitution:

Under the 1935 Constitution, the general rule was that all presidential appointments needed Commission confirmation unless Congress exempted them.

Under the 1987 Constitution, only the enumerated appointments need Commission confirmation. This represents a significant restriction on the Commission's checking power.

Bernas on the Drafting History:

The 1986 Constitutional Commission deliberately narrowed the Commission on Appointments' scope. As Commissioner Regalado explained when accepting amendments:

"The Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments."

Examples of Officials NOT Requiring Confirmation:

Rationale: The framers sought to streamline the appointment process and reduce political friction while maintaining checks on the most sensitive positions.

2. Appointments by President Alone

These do not require Commission confirmation:

3. Appointments Congress May Delegate to Lower Officials

Congress may, by law, vest appointment of officers lower in rank in:

Critical Limitation: Congress cannot expand the list of appointments requiring Commission confirmation. This list is constitutionally exhaustive (Sarmiento v. Mison; Calderon v. Carale).

The Commission on Appointments

Composition (Article VI, Section 18):

Powers:

Nature: Though composed of legislators, the Commission on Appointments is a constitutional body independent of Congress, exercising executive functions (Cunanan v. Tan).

Second Paragraph: Recess Appointments

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

Ad Interim (Recess) Appointments

Characteristics:

  1. Effective Immediately: No need to wait for confirmation
  2. Valid Until: Commission disapproval OR next congressional adjournment
  3. Not Temporary: Ad interim appointments are permanent in character (Summers v. Ozaeta)

Bernas Explanation:

"An ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution... It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character."

Distinguished from "Acting" Appointments:

Feature Ad Interim Acting
Timing Only during congressional recess Any time
Nature Permanent Temporary
Confirmation Subject to Commission review Not subject to Commission
Duration Until disapproval or adjournment Until permanent appointment

Controversial Issues

1. May Congress Expand Commission Confirmation Requirements?

No. The Supreme Court has consistently held that Congress cannot expand the list of appointments requiring Commission on Appointments confirmation.

Calderon v. Carale invalidated R.A. No. 6715, which required NLRC Chairman and Commissioners to receive Commission confirmation. The Court stated:

"The list in the first sentence of Section 16 of those whose appointment require confirmation by the Commission on Appointments is exclusive."

Rationale: The enumeration is constitutionally exhaustive; allowing legislative expansion would permit Congress to circumvent the framers' intent.

2. Multiple Ad Interim Appointments

Matibag v. Benipayo addressed whether the President could make repeated ad interim appointments to Constitutional Commission positions.

The Court held: Multiple ad interim appointments are permissible because:

Cruz Commentary: This interpretation is questionable, as it creates a distinction not found in the constitutional text. The Constitution simply says the President may make appointments during recess—it doesn't distinguish between confirmed and unconfirmed appointments for purposes of the reappointment ban.

3. The Unique Case: Aquino Appointments (February-July 1987)

The 1987 Constitution took effect February 2, 1987. Congress convened July 27, 1987. President Aquino made appointments requiring Commission confirmation during this period.

What was their status?

Bernas's Analysis:

The appointments fell into different categories:

February 2 - June 30, 1987: Officers appointed were, at worst, de facto officers. They could not strictly be considered:

June 30 - July 27, 1987: These were proper ad interim appointments under Section 16, second paragraph. Congress existed (term began June 30) but was in "compulsory recess" (couldn't convene until fourth Monday of July per Article VI, Section 15).

Practical Result: No controversy arose about these appointments, so the theoretical problems remained unresolved.

SECTION 17: PRESIDENTIAL CONTROL AND FAITHFUL EXECUTION

Constitutional Text

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

The Power of Control

Definition:

The Supreme Court in Mondano v. Silvosa defined control 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."

Scope: Control extends over:

Constitutional Foundation: This grants the President the "same power of control found in Article VII, Section 10(1) of the 1935 Constitution."

The Doctrine of Qualified Political Agency

While the President has plenary control, practical necessity requires delegation. The doctrine of qualified political agency recognizes that Cabinet secretaries and heads of departments act as the President's authorized representatives.

As Villena v. Secretary of Interior stated:

"The President is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson 'should be of the President's bosom confidence,' and, in the language of Attorney General Cushing, 'are subject to the direction of the President.'"

Practical Effect: Cabinet members' acts, within their authority, are presumptively the President's acts, but the President may always revoke, modify, or reverse such acts.

Supervision vs. Control

Critical Distinction:

The Constitution distinguishes between:

Supervision: "The power to ensure that the laws are faithfully executed by inferiors." It does not include the power to substitute judgment—only to check legality, not wisdom.

The Drilon v. Lim Doctrine

Secretary of Justice Franklin Drilon v. Manila Mayor Alfredo Lim, G.R. No. 112356 (August 4, 1994) definitively established the supervision/control boundary.

Facts: Section 187 of the Local Government Code authorized the Secretary of Justice to review local tax ordinances for "legality and consistency." The Secretary invalidated Manila's Revenue Code, finding ultra vires provisions and procedural violations. The RTC declared Section 187 unconstitutional, claiming it gave the Secretary control (not mere supervision) over local governments.

Issue: Does Section 187's grant of review power to the Secretary of Justice violate the constitutional limit of "general supervision" over local governments?

Ruling: The Supreme Court reversed and upheld Section 187's constitutionality.

Doctrinal Principles:

1. Supervision Is the Power to Ensure Legality

"Supervision is not a meaningless provision. As defined, it means overseeing, or the power or authority of an officer to see that subordinate officers perform their duties. It involves ensuring that laws are faithfully executed, that rules are followed, and that standards are met."

2. Control Means Power to Alter or Substitute Judgment

The Court reiterated Mondano:

"The power of control is '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.'"

3. Review for Legality vs. Review for Wisdom

Constitutional Supervision allows review limited to:

Unconstitutional Control would involve:

4. Application to Section 187

The Court examined what Secretary Drilon actually did:

"Secretary Drilon set aside the Manila Revenue Code only on two grounds, to wit, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure."

Because the Secretary confined review to legality, not policy, Section 187 authorized only supervision, not control.

Bernas Commentary:

Father Bernas notes that while the President has control over executive officers, the legislature controls their "person" through the Civil Service system:

"While the Executive has control over the 'judgment' or 'discretion' of his subordinates, it is the legislature which has control over their 'person.'" (citing Article IX-B, Section 2(3) on security of tenure)

The Faithful Execution Clause

"He shall ensure that the laws be faithfully executed."

This clause serves multiple functions:

1. Source of Implied Powers

The faithful execution clause authorizes the President to take necessary actions to enforce laws, even absent specific statutory direction. As Bernas notes:

"This means that the President can do whatever is needed to ensure that laws, general or special, are followed."

2. Constitutional Basis for Investigative Powers

In Planas v. Gil (1939), the Court held this clause authorizes the President to:

The Court stated:

"The President's duty to faithfully execute laws is not limited to the enforcement of legislative acts or the express terms of the Constitution but also includes the due enforcement of rights, duties, obligations, prerogatives and immunities growing out of the Constitution itself."

3. Authorization for Executive Agreements

Bernas suggests the faithful execution clause justifies certain executive agreements implementing treaties or statutes without need for separate Senate concurrence—analogous to administrative regulations implementing delegating laws.

4. Reorganization Authority

The President's control power, combined with the faithful execution clause, justifies executive action to reorganize executive offices under broad statutory authorization.

Limitations on Presidential Control

1. Cannot Extend to Other Branches

The President's control is limited to the executive branch. Congress and the judiciary are co-equal branches.

2. Cannot Override Security of Tenure

While the President controls the "judgment" of subordinates, Congress has limited the President's power over their "person" through civil service protections (Article IX-B, Section 2(3)).

3. Cannot Violate Due Process

Even in exercising control, the President must respect procedural due process rights of government employees.

4. Government-Owned Corporations

Control over government-owned corporations comes not from the Constitution but from statute. Therefore, it may be limited or removed by statute (NAMARCO v. Arca).

SECTION 18: COMMANDER-IN-CHIEF POWERS

Constitutional Text (First Paragraph)

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

Civilian Status of the President

Is the President a Member of the Armed Forces?

No. The weight of authority holds the President remains a civilian while exercising commander-in-chief powers.

Bernas's Analysis:

"The President's duties as Commander-in-Chief represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature. He is elected as the highest civilian officer. His compensation is received for his services rendered as President of the nation, not for the individual part of his duties; no portion of it is paid from sums appropriated for the military or naval forces. The President does not enlist in, nor is he inducted or drafted into the forces; he is not subject to court martial or other military discipline."

Constitutional Mandate: Article II, Section 3 declares: "Civilian authority is, at all times, supreme over the military."

Therefore, the President, as a civilian, holds supreme military authority as the ceremonial, legal, and administrative head of the armed forces.

Commander-in-Chief Powers Generally

As Commander-in-Chief, the President has the power to:

Fleming v. Page (U.S. 1850):

"As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy."

Delegation to Military Experts: While ultimate authority remains with the President, actual command is typically delegated to military professionals.

Three Levels of Commander-in-Chief Powers

The Constitution establishes three gradated powers in ascending order of severity:

  1. Calling Out the Armed Forces (Section 18, first paragraph)
  2. Suspension of the Writ of Habeas Corpus (Section 18, second paragraph)
  3. Declaration of Martial Law (Section 18, second paragraph)

1. The Calling Out Power

Constitutional Basis:

"whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion."

Nature:

This is the least intrusive and most flexible commander-in-chief power. It involves ordinary police action by the military to assist civilian authorities.

The Integrated Bar v. Zamora Framework

IBP v. Executive Secretary Zamora, G.R. No. 141284 (August 15, 2000) established key principles governing the calling out power.

Facts: President Estrada, citing increased violent crimes, issued LOI 02/2000 ordering Philippine Marines to conduct joint visibility patrols with the PNP. The IBP challenged the order, claiming it violated civilian supremacy over the military and the civilian nature of the police.

Issue: Whether the President validly exercised the calling out power, and whether military assistance to police violates civilian supremacy.

Ruling: The Court dismissed the petition, upholding the deployment.

Key Doctrinal Points:

A. Presidential Discretion in Calling Out

"The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts."

Reasons for Deference:

B. Judicial Review Limited to Grave Abuse

While the calling out power is primarily discretionary, it is not unreviewable. Courts may examine for grave abuse of discretion amounting to lack or excess of jurisdiction.

However, once the proclamation is lifted, judicial review becomes moot.

C. No Additional Powers Granted

The Court emphasized in subsequent cases (Lacson v. Perez; Sanlakas v. Executive Secretary; David v. Ermita) that calling out the armed forces does:

NOT grant the President:

ONLY means:

D. Civilian Supremacy Not Violated

The Court held military assistance to police does not violate Article II, Section 3 (civilian supremacy) or Article XVI, Section 5(4) (civilian character of police) when:

  1. Operational control remains with civilians: The police (civilian) retain command; military provides support
  2. No military officers appointed to civilian posts: Military personnel do not assume police positions
  3. Regulatory, proscriptive, or compulsory test not met: Military does not regulate, prohibit, or compel conduct

"Gloss on Executive Power": The Court noted that the practice of using military for domestic security, pursued systematically and unquestioned by Congress, constitutes a "gloss on executive power" under the Youngstown framework.

David v. Macapagal-Arroyo: Limits on State of Emergency

Prof. Randolf S. David v. Gloria Macapagal-Arroyo, G.R. No. 171396 (May 3, 2006) clarified important limitations on emergency powers.

Facts: On February 24, 2006 (EDSA anniversary), President Arroyo issued Proclamation No. 1017 declaring a "state of national emergency" citing a conspiracy to bring down the government. She also issued G.O. No. 5 commanding the AFP and PNP to suppress "lawless violence" and "acts of terrorism."

Following these issuances:

Issues:

  1. Whether PP 1017 and GO 5 are constitutional
  2. Whether the President exceeded her calling out power
  3. Whether implementation violated constitutional rights

Ruling: The Court held PP 1017 and GO 5 were partially constitutional.

What Was Constitutional:

1. Exercise of Calling Out Power

The President validly exercised her Section 18, first paragraph power to call out the armed forces to suppress lawless violence. This power:

2. Declaration of State of Emergency Under Article XII, Section 17

The President may declare a state of national emergency as contemplated by Article XII, Section 17 (temporary takeover of private business).

What Was Unconstitutional:

1. Directive to Enforce "Decrees"

PP 1017's provision commanding the AFP to enforce "decrees promulgated by the President" was unconstitutional. The Court held:

"Legislative power belongs exclusively to Congress under Section 1, Article VI."

Only Congress may enact laws. The President cannot issue "decrees" with the force of law.

2. Takeover of Private Utilities Without Congressional Authorization

The reference to Article XII, Section 17 as basis to "temporarily take over" private utilities was invalid. That provision requires:

"In times of national emergency, when the public interest so requires, the State may... temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."

However, this power requires prior legislation from Congress implementing the constitutional authorization. Absent such law, the President cannot unilaterally seize private property.

3. Prior Restraint on Media

Any provision or implementation granting power to impose standards on media or prior restraint on press freedom was unconstitutional, violating Article III, Section 4 (freedom of the press).

4. "Acts of Terrorism" Provision Void for Vagueness

G.O. No. 5 directed the AFP to suppress "acts of terrorism." The Court held this unconstitutional because:

What Implementation Was Illegal:

The Court declared unconstitutional and illegal:

  1. Warrantless arrests of David and Llamas absent clear showing they were committing lawless violence
  2. Dispersal and arrest of KMU members without proof of lawless violence or BP 880 violations
  3. Warrantless search of Daily Tribune offices and seizure of publication materials (prior restraint)
  4. Blanket cancellation of rally permits without specific showing of clear and present danger

Critical Holding:

"PP 1017 did not expand grounds for warrantless arrests, searches, seizures, or dispersal of assemblies beyond constitutional and statutory limits."

Calling out the armed forces does not authorize:

Bernas Commentary:

Father Bernas emphasizes that when the President exercises the calling out power, "this does not give her additional powers. Lacson v. Secretary Perez... Certainly, for instance, it does not authorize warrantless arrests. David v. Ermita... And a President can claim emergency powers only when these are granted to her by Congress under Article VI, Section 23."

Cruz Commentary:

Justice Cruz, in his commentary on David v. Ermita (quoted in the Constitutional Law treatise), noted the holding that PP 1017 did not authorize warrantless arrests or suspension of civil liberties:

"The warrant of arrest of Randolf S. David and Ronald Llamas, the dispersal and warrantless arrest of the KMU and NAFKU-KMU members during their rallies in the absence of proof that those petitioners were committing acts of lawless violence... and the imposition of standards or any form of prior restraint, as well as the warrantless search of Tribune offices and whimsical seizures of its articles for publication, and other materials, are declared UNCONSTITUTIONAL."

2. Suspension of the Writ of Habeas Corpus

Constitutional Text (Section 18, Second Paragraph):

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Prerequisites:

  1. Invasion OR Rebellion (not mere lawless violence)
  2. Public safety requires it

Limitations:

  1. Maximum 60 days initially (may be extended by Congress)
  2. Presidential report to Congress within 48 hours
  3. Congressional revocation by majority vote of all members, voting jointly
  4. Judicial review available (see below)

Effect of Suspension:

The privilege of the writ of habeas corpus is suspended, meaning:

3. Declaration of Martial Law

Constitutional Text (Continuation of Section 18, Second Paragraph):

[Same paragraph as habeas corpus suspension—both powers governed by same provisions]

Prerequisites: Identical to habeas corpus suspension

Duration and Controls: Same as habeas corpus

Effect:

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

Martial law places areas under military control, but:

Critical Limitation:

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

Judicial Review of Martial Law and Habeas Corpus Suspension

Constitutional Text (Section 18, Third Paragraph):

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

Key Features of Judicial Review:

  1. Any citizen has standing to file
  2. Sufficiency of factual basis is reviewable (not mere procedural compliance)
  3. 30-day deadline for Supreme Court decision
  4. Not a political question: The Court must decide

Standard of Review:

The Court examines whether there is sufficient factual basis for the President's determination that:

This is not mere grave abuse of discretion review—it's substantive review of the factual predicate.

Effects During Martial Law

Constitutional Text (Section 18, Fourth Paragraph):

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

What Martial Law Does NOT Do:

  1. Does not suspend the Constitution: All constitutional guarantees remain in force
  2. Does not replace civilian government: Courts and Congress continue functioning
  3. Does not give military courts jurisdiction over civilians: If civilian courts can function, they retain jurisdiction
  4. Does not automatically suspend habeas corpus: Separate action required

Arrest and Detention (Section 18, Fifth Paragraph):

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

Historical Context: The 1972-1981 Martial Law

Bernas Commentary on Marcos Martial Law:

The extensive martial law regime under President Marcos (September 21, 1972 - January 17, 1981) represented everything the 1987 Constitution sought to prevent.

Key Features of Marcos Martial Law:

  1. Indefinite Duration: Lasted over 8 years
  2. No Judicial Review: Supreme Court declined to review (Aquino v. Enrile)
  3. Legislative Powers: President assumed legislative authority
  4. Military Tribunals: Jurisdiction over civilians despite functioning civil courts
  5. Constitutional Suspension: Effectively suspended the 1935 Constitution, later replaced with 1973 Constitution

The 1987 Reaction:

Every limitation in Section 18 responds to martial law abuses:

Cruz's Warning:

As Justice Cruz observed regarding presidential power expansion:

"This does not square with the announced policy of the Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship."

SECTION 19: POWER OF EXECUTIVE CLEMENCY

Constitutional Text

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

Purpose of Executive Clemency

Bernas Commentary:

"That Section 19 gives to the President the power of executive clemency is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power therefore exists as an instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law."

Clemency is exclusively an executive function, not judicial. Article 5 of the Revised Penal Code directs judges to recommend clemency when strict application would cause undue harshness, but the ultimate decision rests with the President.

Forms of Executive Clemency

1. Reprieve

Definition: "Postpones the execution of an offense to a day certain" (People v. Vera)

Effect: Delays punishment temporarily

2. Commutation

Definition: "A remission of a part of the punishment; a substitution of a less penalty for the one originally imposed" (People v. Vera)

Effect: Reduces severity of sentence

Form: Need not be in any specific format (Drilon v. CA): "The fact that he was released after six years and the fact that house arrest is not a penalty leads to the conclusion that the penalty had been shortened."

3. Pardon

Definition (from United States v. Wilson):

"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... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him."

Absolute vs. Conditional Pardon:

Effect of Pardon:

The Cristobal v. Labrador / Pelobello v. Palatino doctrine (followed in Philippine jurisprudence) holds that pardon reaches "residual disqualifications":

"A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense... it makes him, as it were, a new man, and gives him a new credit and capacity."

**Refinement in *Monsanto v. Factoran***:

While pardon removes punishment, it does not make the pardoned person "innocent." The crime occurred; pardon merely forgives the penalty.

Effect on Reinstatement to Public Office:

Garcia v. COA: If pardon is granted because the person was acquitted on the ground they didn't commit the crime, reinstatement and backwages are due.

Monsanto v. Factoran: If pardon is granted to a guilty person, no reinstatement or backwages.

Determination of Condition Violations:

When a conditional pardon is granted, the President alone determines whether conditions have been violated (Torres v. Gonzales). The pardoned person's acceptance of the pardon includes acceptance of this presidential authority.

4. Remission of Fines and Forfeitures

Self-explanatory. Prevents collection of fines or confiscation of forfeited property.

Limitation: Cannot return property already vested in third parties or money already in the public treasury.

5. Amnesty

Distinction from Pardon:

Barrioquinto v. Fernandez (1949) enumerated differences:

Feature Pardon Amnesty
Grantor President alone President with Congress concurrence
Notice Private act Public act (judicial notice)
Timing After conviction Before, during, or after prosecution
Scope Individual or group Classes of persons/communities
Effect Relieves consequences Obliterates the offense itself
Rights Doesn't restore rights to office/suffrage Completely restores status
Civil Liability Doesn't exempt civil indemnity May exempt all liabilities

Bernas's Synthesis:

While Barrioquinto listed many differences, some are based on constitutional text rather than inherent nature. The true distinguishing factors are:

  1. Number of recipients: Pardon may be individual; amnesty is always for a class
  2. Nature of offense: Amnesty is for political offenses (treason, rebellion, sedition)

Definition:

"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 v. Allen)

Effect:

"Amnesty... so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense."

Requirements for Claiming Amnesty:

The Supreme Court has held that to invoke amnesty as a defense, the accused must:

  1. Confess guilt of the crime charged
  2. Prove compliance with amnesty conditions
  3. Submit case to proper amnesty board (not habeas corpus petition)

This is because "a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action." (People v. Llaneta; Vera v. People)

Tax Amnesty:

Not an act of executive clemency under Section 19, but rather a legislative act or delegated administrative act when authorized by law.

Legaspi v. Minister of Finance (1982) held that tax amnesty is "a general pardon or intentional overlooking of [the state's] authority to impose penalties on persons otherwise guilty of evasion or violation of revenue or tax law."

Constitutional Limitations on Executive Clemency

1. Cases of Impeachment

The President cannot grant clemency in impeachment cases.

Rationale: Impeachment is a political remedy belonging to Congress; allowing presidential pardon would usurp legislative prerogative.

2. After Conviction by Final Judgment

Reprieves, commutations, pardons, and remission of fines and forfeitures can only be granted "after conviction by final judgment."

Purpose: Prevents the President from preempting judicial action.

Change from Prior Constitutions: This restores the rule under the 1935 and 1973 Constitutions, rejecting the 1981 amendment that allowed clemency before conviction.

3. Amnesty Requires Congressional Concurrence

Amnesty requires "concurrence of a majority of all the Members of the Congress."

Political Offenders Without Amnesty: While amnesty needs congressional concurrence, political offenders may receive individual pardon (after conviction) without congressional involvement.

4. Election Law Violations

Article IX-C, Section 5: "No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission [on Elections]."

5. Non-Delegability

Executive clemency is a non-delegable power and must be exercised by the President personally (Llamas v. Orbos—though this case involved the Executive Secretary issuing pardon, the Court treated it as if the President acted through a conduit).

Exception: Remission of administrative fines may be delegated by statute to subordinate administrative officers (Roviro v. Amparo).

Extension to Administrative Penalties

May the President Grant Clemency for Administrative Penalties?

Yes. Llamas v. Orbos, G.R. No. 99031 (October 15, 1991) held:

"The Constitution makes no distinction with regard to the extent of the pardoning power except with respect to impeachment."

The Court could have relied on P.D. No. 807, Section 43 (statutory authorization), but chose to treat it as a constitutional question. Reasoning:

Cruz Commentary: This is a broad interpretation. The better view might be that Section 19's "conviction by final judgment" refers specifically to criminal convictions, but the Court has spoken.

SECTION 20: POWER TO CONTRACT OR GUARANTEE FOREIGN LOANS

Constitutional Text

Section 20. 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 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 and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Requirements

1. Prior Concurrence of the Monetary Board

Before contracting/guaranteeing foreign loans, the President must secure Monetary Board approval.

Rationale (Bernas):

"Because it has expertise and consistency to perform the mandate and since such expertise or consistency may be absent among the Members of Congress."

The Monetary Board provides technical economic analysis.

2. Subject to Limitations Provided by Law

Congress may impose statutory restrictions on foreign borrowing.

3. Quarterly Reporting to Congress

The Monetary Board must report to Congress within 30 days after each quarter on:

Scope of "Contract or Guarantee"

Does this extend to debt relief operations?

Constantino v. Cuisia, G.R. No. 106064 (October 13, 2005) clarified that the presidential foreign borrowing power extends to debt restructuring, buyback schemes, and bond conversions.

Facts: President Aquino's administration negotiated the Philippine Comprehensive Financing Program for 1992, involving debt-relief through:

  1. Cash buyback of foreign debt at a discount
  2. Bond conversion allowing creditors to exchange debt for various bonds

Petitioners challenged these as beyond presidential power, arguing "contract or guarantee" doesn't include debt relief.

Ruling: The Court dismissed the petition, upholding the debt-relief program.

Key Holdings:

1. Broad Construction of "Contract or Guarantee"

The Court held that the presidential power is not limited to simply borrowing new money. It includes all aspects of managing foreign debt:

"The term 'contract foreign loans' in Article VII, Section 20 encompasses not only the act of incurring new debt but also activities that effectively address, manage, or extinguish existing debt obligations, including debt-relief mechanisms such as buybacks and bond conversions."

2. Delegation Through Alter Ego Doctrine

The Court addressed whether only the President personally may exercise this power:

General Rule: The President need not personally execute every foreign loan contract. Under the alter ego doctrine, Cabinet members (particularly the Secretary of Finance) may act for the President.

Limitation: Such delegation requires:

The Court found no evidence President Aquino withheld approval or repudiated the Program. Given her avowed policy to honor and restructure foreign debts, the lack of countermand meant the acts carried presidential approval.

Statutory Authorization: R.A. No. 245 expressly authorizes the Secretary of Finance to borrow and issue debt instruments with presidential approval and Monetary Board consultation.

3. Standard of Review: Grave Abuse of Discretion

The Court emphasized it may only check whether the President exceeded constitutional limits, not whether the act was wise:

"The exercise of judicial review is merely to check, not supplant, the Executive—to ascertain whether the President exceeded constitutional limits, not to determine the wisdom of the act."

Strong Presumption of Validity: Governmental acts enjoy a presumption of constitutionality and validity.

No Grave Abuse Shown: Petitioners failed to demonstrate the Program was arbitrary or capricious. Evidence showed:

4. Behest Loans Issue Not Ripe

Petitioners argued the Program unconstitutionally waived the right to repudiate fraudulent "behest loans" from the Marcos era.

Holding: This issue was not ripe for adjudication because:

Bernas Commentary:

Father Bernas notes this power was placed with the President (subject to Monetary Board) rather than Congress because:

  1. Executive has superior expertise in financial negotiations
  2. International debt management requires flexibility and confidentiality
  3. Requiring congressional approval for every loan would be impractical

Relationship to Treaty-Making Power

Foreign loan agreements may constitute executive agreements rather than treaties if they:

Such agreements do not require Senate concurrence under Section 21 (see next section).

SECTION 21: TREATY-MAKING POWER

Constitutional Text

Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Two Phases of Treaty-Making

1. Negotiation Phase

Executive Domain: The President has exclusive authority to negotiate treaties.

Justice Sutherland: "He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it."

2. Concurrence/Ratification Phase

The Senate must concur by at least two-thirds of all members (16 Senators minimum).

Critical Limitation: If the President does not submit a treaty to the Senate, there is nothing for the Senate to concur in.

Pimentel v. Ermita Doctrine

Senator Pimentel v. Executive Secretary Ermita, G.R. No. 158088 (July 6, 2005)

Facts: President Estrada signed the Treaty on the International Criminal Court but never submitted it to the Senate. President Arroyo also declined to submit it. Petitioners sought mandamus compelling submission.

Ruling: The Court dismissed the petition.

Holding: "The decision to enter or not to enter into a treaty is a prerogative solely of the President. Thus unless the President submits a treaty to the Senate there is nothing for the Senate to concur in."

Implication: The President can effectively veto any treaty by simply refusing to submit it for Senate concurrence, even after signing it in the international forum.

What Requires Senate Concurrence?

The Constitutional Text Problem:

The 1987 Constitution says "No treaty or international agreement shall be valid... unless concurred in by Senate."

Does this mean all international agreements need Senate concurrence? This would be unworkable.

The Executive Agreement Exception:

Philippine and U.S. jurisprudence recognize that less formal international agreements may be entered into by the President and become binding without Senate concurrence.

Bernas's Framework:

Based on historical practice and jurisprudence, agreements that require Senate concurrence (true "treaties") involve:

  1. Permanent arrangements of national policy
  2. Original agreements establishing new obligations
  3. Political issues or changes of national policy

Agreements that do not need Senate concurrence (executive agreements):

  1. Temporary arrangements
  2. Implementation of existing treaties or statutes
  3. Carrying out well-established policies and traditions
  4. Adjustments of detail in administrative matters

Examples of Valid Executive Agreements (from Bernas):

Historical U.S. practice (which Philippine law follows):

Justification: Executive agreements implementing statutes or treaties draw their authority from the delegating law or parent treaty, analogous to administrative regulations.

The Faithful Execution Clause: Such agreements may also be justified under the President's duty to "ensure that the laws be faithfully executed" (Section 17).

Bayan v. Executive Secretary: The Visiting Forces Agreement

Bayan v. Executive Secretary, G.R. No. 138570 (October 10, 2000) addressed whether the Visiting Forces Agreement (VFA) required Senate concurrence.

Facts: The Philippines and United States entered into the VFA governing the presence of U.S. military personnel in the Philippines.

Issue: Does the VFA require Senate ratification under Article VII, Section 21 or Article XVIII, Section 25?

Ruling: The VFA requires Senate concurrence.

Key Holdings:

1. Both Article VII, Section 21 AND Article XVIII, Section 25 Apply

Article VII, Section 21 governs the manner of ratification (two-thirds Senate vote).

Article XVIII, Section 25 determines whether ratification is needed:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate..."

2. Article XVIII, Section 25 Covers "Troops"

The provision isn't limited to permanent bases; it includes foreign military troops in any capacity.

3. U.S. Ratification Process

The Court held that the Philippines must accept U.S. declarations that their constitutional requirements for treaty ratification were satisfied.

The Court's holding confirmed that treaties or international agreements must pass through Philippine Senate approval, but international law determines what constitutes a valid agreement on the U.S. side.

Termination of Treaties

Who Has the Power?

The Constitution is silent on treaty termination. This creates uncertainty about whether:

Potential Approaches:

1. Presidential Termination

The President's control over foreign affairs suggests unilateral termination authority, especially when:

2. Congressional Involvement

Since treaties are equivalent to statutes, Congress could potentially pass legislation negating treaty terms (though this affects only domestic force, not international obligations under dualism theory).

3. Shared Power

Since treaty-making involves both President and Senate, some argue termination should too.

U.S. Precedent: Goldwater v. Carter (1979) addressed President Carter's unilateral termination of the Mutual Defense Treaty with Taiwan. The U.S. Supreme Court:

Philippine Law: Unresolved. The issue awaits a definitive Supreme Court ruling.

Other Foreign Affairs Powers

In Addition to Treaty-Making, the President exercises:

1. Appointing Power: Ambassadors, other public ministers, and consuls (with Commission on Appointments confirmation)

2. Receiving Foreign Representatives: Power to receive ambassadors and other public ministers duly accredited to the Philippines

This "receiving" power implies:

3. Power to Deport Aliens

Tan Tong v. Deportation Board (1955):

"The power to deport aliens is lodged in the President of the Republic of the Philippines. As an act of state, it is vested in the Executive by virtue of his office... 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 Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to affect or injure the security, welfare or interest of the state."

4. Espousal of Claims

The President decides whether to espouse claims of Philippine nationals against foreign governments.

Vinuya v. Executive Secretary (2010): The Court held that the decision to waive reparations claims against Japan in the 1951 Treaty of Peace was a foreign relations matter "demonstrably committed by our Constitution not to the courts but to the political branches."

SECTION 22: THE BUDGET

Constitutional Text

Section 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.

Presidential Budget Preparation

Requirement: Within 30 days of regular session opening (fourth Monday of July), the President must submit a budget.

Contents:

  1. Expenditures
  2. Sources of financing
  3. Receipts from existing and proposed revenue measures

Constitutional Purpose: The presidential budget serves as the basis for the general appropriations bill that Congress will enact.

"Sources of Financing": This phrase implies financing can come from sources other than revenue measures (e.g., borrowing, asset sales).

Separation of Powers Balance:

This implements the principle that "the power to appropriate is essentially and exclusively legislative" but recognizes executive input is essential for rational budgeting.

SECTION 23: STATE OF THE NATION ADDRESS

Constitutional Text

Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

State of the Nation Address (SONA)

Annual Obligation: The President shall address Congress at the opening of each regular session (fourth Monday of July).

Content: Traditionally includes:

Additional Appearances: The President may appear before Congress "at any other time"—e.g., to address urgent matters, deliver special messages, or respond to crises.

Historical Practice: SONAs have become major annual events, broadcast nationally, serving both legislative and public communication functions.

LEADING CASES SUMMARY

1. Marcos v. Manglapus (1989)

Doctrine: Residual presidential powers; executive power exceeds enumerated constitutional provisions

Holding: President may prevent return of deposed dictator based on general executive power to protect national security, maintain peace and order, and serve the people.

Controversy: 8-7 decision; Justice Cruz dissented, warning it reinstated discredited Planas v. Gil doctrine and contradicted Constitutional Commission's intent to limit presidential power.

2. Saez v. Macapagal-Arroyo (2012)

Doctrine: Presidential immunity doesn't bar amparo/habeas data petitions, but requires proof of command responsibility

Holding: President cannot be automatically dropped from human rights petitions on immunity grounds, but petitioner must show: (1) superior-subordinate relationship, (2) presidential knowledge/awareness, (3) failure to prevent/punish with due diligence.

Significance: Limits presidential immunity in human rights cases while maintaining substantial evidentiary burden.

3. Ople v. Torres (1998)

Doctrine: Presidential administrative orders cannot establish novel systems requiring legislative policy choices

Holding: Administrative Order 308 establishing National ID System was unconstitutional because it:

Separation of Powers: "The line that delineates Legislative and Executive power is not indistinct"—courts apply strict scrutiny to claimed administrative authority affecting fundamental rights.

4. In re Bermudez (1999)

Doctrine: Presidential appointment power cannot be restricted by automatic succession schemes

Holding: Congress cannot require President to automatically appoint undersecretary as temporary department secretary. Cabinet positions are "of the President's bosom confidence"—Congress cannot impose who shall be the President's alter ego.

5. Drilon v. Lim (1994)

Doctrine: Supervision vs. control distinction in executive-local government relations

Holding: Secretary of Justice reviewing local tax ordinances for "legality and consistency" exercises supervision (constitutional), not control (would be unconstitutional).

Key Distinction:

Application: National government may review local government acts for legality but not substitute policy preferences.

6. Integrated Bar v. Zamora (2000)

Doctrine: Presidential discretion in calling out armed forces; civilian supremacy maintained through operational control

Holding: President's determination that calling out armed forces is "necessary" is largely unreviewable, subject only to grave abuse of discretion. Military assistance to police doesn't violate civilian supremacy if:

7. Senate v. Ermita (2006)

Doctrine: Executive privilege is valid but limited; must be formally claimed with specificity

Holding: E.O. 464 unconstitutional insofar as it:

Requirements for Valid Privilege Claim:

  1. Only President (or Executive Secretary with explicit authorization) may invoke
  2. Must be stated with sufficient particularity
  3. Must specify grounds (presidential communications, deliberative process, etc.)
  4. Subject to balancing against congressional/public interest

8. David v. Macapagal-Arroyo (2006)

Doctrine: Calling out power doesn't grant emergency powers or authorize violations of constitutional rights

Holding: President may validly call out armed forces and declare state of national emergency, BUT cannot:

Critical Principle: Emergency declaration doesn't expand presidential powers or suspend constitutional guarantees.

9. Soliven v. Makasiar (1988)

Doctrine: Presidential immunity doesn't disable President from initiating criminal proceedings

Holding: President may file criminal complaints; privilege belongs to office (to protect official functions), not to shield President from participation in legal system. Accused cannot raise presidential privilege as defense to prevent case from proceeding.

10. Planas v. Gil (1939)

Doctrine: (Controversial, limited by Marcos v. Manglapus) Presidential investigative authority over government officials

Holding: President has power to investigate elected local government officials under:

Controversy: Cited in Marcos v. Manglapus but also criticized for overly broad view of executive power. Framers of 1987 Constitution sought to limit such broad readings.

11. Constantino v. Cuisia (2005)

Doctrine: Presidential foreign borrowing power extends to debt-relief operations; delegable to Cabinet under alter ego doctrine

Holding: Debt restructuring, buybacks, and bond conversions fall within Section 20 power to "contract or guarantee foreign loans." Secretary of Finance may execute such agreements as presidential alter ego with presidential approval (express or implied).

Judicial Review: Limited to grave abuse of discretion; courts don't assess wisdom of debt management decisions.

12. Beltran v. Makasiar (1988)

Doctrine: Same as Soliven v. Makasiar (consolidated cases)

Holding: Presidential immunity from suit doesn't prevent President from being complainant in criminal case; accused can't invoke immunity to bar prosecution.

SYNTHESIS AND THEMES

Recurring Tensions in Article VII Jurisprudence

1. Enumerated vs. Implied Powers

The fundamental debate: Does the President possess only those powers expressly granted, or does the general grant of "executive power" imply broader authority?

Resolution: Courts generally recognize some implied powers but subject them to strict scrutiny, especially when affecting fundamental rights.

2. Executive Autonomy vs. Legislative/Judicial Checks

Article VII grants substantial executive power but also establishes multiple checking mechanisms:

Legislative Checks:

Judicial Checks:

3. Civilian Supremacy vs. Military Authority

The Constitution maintains civilian supremacy (Article II, Section 3) while giving the President, a civilian, supreme military authority as Commander-in-Chief.

Balancing mechanisms:

4. Presidential Immunity vs. Accountability

The tension between protecting presidential functions and ensuring accountability:

5. Executive Privilege vs. Transparency

Presidential communications need confidentiality for candid advice, but government operates under constitutional presumption of transparency:

CONCLUSION

Article VII establishes a strong but constrained presidency. The 1987 Constitution reflects the framers' attempt to create an energetic executive capable of effective governance while preventing the authoritarian excesses of the Marcos dictatorship.

Key characteristics:

1. Unified Executive: All executive power vests in the President—there is no plural executive

2. Limited Term: Single six-year term prevents perpetuation in power

3. Separation of Powers: Robust checks from coordinate branches

4. Civilian Supremacy: Military subject to civilian authority

5. Accountability: Multiple mechanisms for holding President accountable

6. Enumerated Yet Flexible: Specific grants supplemented by implied powers necessary for faithful execution

The jurisprudence reveals ongoing interpretation of these constitutional commitments, with courts balancing executive effectiveness against constitutional limitations. The tension between Bernas's recognition of practical executive needs and Justice Cruz's warnings against excessive power remains a defining feature of Philippine constitutional law.

Understanding Article VII requires appreciation of both its text and context—the words of the Constitution and the historical experience that shaped them. The framers drafted these provisions with specific abuses in mind, creating a presidency powerful enough to govern but constrained enough to remain democratic.