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C. Powers of the President

1. General executive and administrative powers

a. CONTROL OVER EXECUTIVE DEPARTMENT

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Section 17, Article VII, 1987 Constitution)

b. ADDRESS CONGRESS

The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. (Section 23, Article VII, 1987 Constitution)

2. Power of appointment

a. In general

a. NOMINATE AND APPOINT

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. (Section 16, Article VII, 1987 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. (Section 16, Article VII, 1987 Constitution)

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. (Section 16, Article VII, 1987 Constitution)

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until after disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Paragraph 2, Section 16, Article VII, 1987 Constitution)

b. APPOINTMENTS BY ACTING PRESIDENT

Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety (90) days from his assumption or reassumption of office. (Section 14, Article VII, 1987 Constitution)

b. Limitations on the exercise/power

a. PROHIBITION AGAINST NEPOTISM

The spouse and relatives by consanguinity or affinity within the fourth (4th ) 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. (Paragraph 2, Section 13, Article VII, 1987 Constitution)

b. BAN AGAINST MIDNIGHT APPOINTMENTS

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Section 15, Article VII, 1987 Constitution)

c. Types of appointment

a. CONCEPT

The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. (Section 16, E.O. 292, Administrative Code)

1) Permanent Appointment

A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (Section 25[a], P.D. 807, Civil Service Decree; Amores v. CSC, G.R. No. 170093, 29 April 2009)

2) Temporary appointments

GENERAL RULE: The power to appoint vested in the President includes the power to make temporary appointments. (General v. Urro, supra.)

EXCEPTIONS:

1) He is otherwise specifically prohibited by the Constitution or by the law; or,

2) Where an acting appointment is repugnant to the nature of the office involved. (Ibid.)

An appointment is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. (Amores v. CSC, supra.)

NB: For more discussions, see: Part X – Law on Public Officers > C. Modes and Kinds of Appointment

b. PROHIBITED APPOINTMENTS

GENERAL RULE: Two (2) months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments. (Section 15, Article II, 1987 Constitution)

EXCEPTIONS:

1) Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety; and,

2) Appointments to the judiciary. (Ibid.)

3. Power of control and supervision

a. Doctrine of qualified political agency

1) Concept

Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him. (Manubay v. Garilao, G.R. No. 140717, 16 April 2009)

The doctrine of qualified political agency is also known as the alter ego doctrine. (Manalang-Demigillo v. TIDCORP, En Banc, G.R. Nos. 168613 and 185571, 05 March 2013)

GENERAL RULE: The doctrine of qualified political agency essentially postulates that the heads of the various executive departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance of their official duties are deemed the acts of the President. (Ibid.)

EXCEPTIONS:

1) Unless the President himself should disapprove such acts.(Ibid.); or

2) Where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally. (Carpio v. Executive Secretary, En Banc, G.R. No. 96409, 14 February 1992)

There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial. (Kulayan v. Tan, supra.)

Case Law

1) In Villena v. The Secretary of Interior, the Department of Justice, upon the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then recommended to the President the suspension from office of Mayor Villena. Upon approval by the President of the recommendation, the Secretary of Interior suspended Mayor Villena. Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior had no authority to suspend him from office because there was no specific law granting such power to the Secretary of Interior; and that it was the President alone who was empowered to suspend local government officials. The Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of qualified political agency warranted the suspension by the Secretary of Interior. (Ibid.)

a) Purpose

This doctrine is in recognition of the fact that in our presidential form of government, all executive organizations are adjuncts of a single Chief Executive; that the heads of the Executive Departments are assistants and agents of the Chief Executive; and that the multiple executive functions of the President as the Chief Executive are performed through the Executive Departments. The doctrine has been adopted here out of practical necessity, considering that the President cannot be expected to personally perform the multifarious functions of the executive office. (Manalang-Demigillo v. TIDCORP, supra.)

b) Appointment as ex officio member by law

The doctrine of qualified political agency does not apply if Cabinet members seat as ex officio member on a Board of Director of a Government Body or GOCC as it is the law that required them to hold such position and not the President. (Ibid.)

Case Law

1) In Manalang-Demigillo v. TIDCORP, the doctrine of qualified political agency could not be extended to the acts of the Board of Directors of TIDCORP despite some of its members being themselves the appointees of the President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended by Section 6 of Republic Act No. 8494, the five ex officio members were the Secretary of Finance, the Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas, the Director-General of the National Economic and Development Authority, and the Chairman of the Philippine Overseas Construction Board, while the four other members of the Board were the three from the private sector (at least one of whom should come from the export community), who were elected by the ex officio members of the Board for a term of not more than two consecutive years, and the President of TIDCORP who was concurrently the Vice-Chairman of the Board. Such Cabinet members sat on the Board of Directors of TIDCORP ex officio, or by reason of their office or function, not because of their direct appointment to the Board by the President. Evidently, it was the law, not the President, that sat them in the Board… Under the circumstances, when the members of the Board of Directors effected the assailed 2002 reorganization, they were acting as the responsible members of the Board of Directors of TIDCORP constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act No. 8494, not as the alter egos of the President. (Supra.)

b. Executive departments and offices

1) Concept

a) Administrative relationships

Unless otherwise expressly stated in the Administrative Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows:

1) Supervision and control;

2) Administrative supervision. (Section 38, Chapter 7, Book IV, E.O. 290, Administrative Code)

In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter. (Mondano v. Silvosa, G.R. No. L-7708, 30 May 1955)

Supervision and control – shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. (Section 38[1], Chapter 7, Book IV, Ibid.)

Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word “control” shall encompass supervision and control as defined in this paragraph. (Ibid.)

Administrative supervision – which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; or require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and to review and pass upon budget proposals of such agencies but may not increase or add to them. (Section 38[2][a], Chapter 7, Book IV, Ibid.)

Such authority shall not, however, extend to:

1) Appointments and other personnel actions in accordance with the decentralization of personnel functions under the Administrative Code, except appeal is made from an action of the appointing authority, in which case the appeal shall be initially sent to the department or its equivalent, subject to appeal in accordance with law;

2) Contracts entered into by the agency in the pursuit of its objectives, the review of which and other procedures related thereto shall be governed by appropriate laws, rules and regulations; and,

3) The power to review, reverse, revise, or modify the decisions of regulatory agencies in the exercise of their regulatory or quasi-judicial functions (Section 38[2][b], Chapter 7, Book IV, Ibid.)

Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word “supervision” shall encompass administrative supervision as defined in this paragraph. (Section 38[2][c], Chapter 7, Book IV, Ibid.)

Attachment – refers to the lateral relationship between the department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency; (Section 38[3][a], Chapter 7, Book IV, Ibid.)

c. Local government units

1) Concept

The President shall exercise general supervision over local governments. (Section 18, Chapter 6, Book III. E.O. 292, Administrative Code)

The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). (Pimentel, Jr. v. Aguirre, En Banc, G.R. No. 132988, 19 July 2020)

a) Supervision, not control

Such power enables the President to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat. (Ibid.)

The Chief Executive wielded no more authority than that of checking whether local governments or their officials were performing their duties as provided by the fundamental law and by statutes. He cannot interfere with local governments, so long as they act within the scope of their authority. “Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.” (Ibid.)

b) Cabinet Members v. Local Chief Executives

Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. (Ibid.)

In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the President’s supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law. (Ibid.)

4. Emergency powers

a. CONCEPT

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Section 23[2], Article VI, 1987 Constitution)

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. (Section 17, Article XII, Ibid.)

1) Emergency

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies have been occasioned by a wide range of situations, classifiable under three (3) principal heads:

1) Economic;

2) Natural disaster; and,

3) National security.

“Emergency,” as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. (David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006)

2) Congress as repository of emergency powers

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. (Ibid.)

a) Limitations of the grant of emergency powers to the President

However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

1) There must be a war or other emergency.

2) The delegation must be for a limited period only.

3) The delegation must be subject to such restrictions as the Congress may prescribe.

4) The emergency powers must be exercised to carry out a national policy declared by Congress. (Ibid.)

3) Power to declare state of national emergency v. Power to exercise emergency powers

A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. (Ibid.)

The President can validly declare the existence of a state of national emergency even in the absence of a Congressional enactment… But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. (Ibid.)

a) Take over of private business affected with public interest

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (Ibid.)

While the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. (Ibid.)

3) Exercise of emergency powers solely with the President

It is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof. (Kulayan v. Tan, En Banc, G.R. No. 187298, 03 July 2012)

5. Commander-in-chief powers

a. Calling out powers

1) Concept

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. (Section 18, Article VII, 1987 Constitution)

a) Solely exercised by the President

By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. (Kulayan v. Tan, supra.)

Case Law

1) Kulayan v. Tan, respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code. (Supra.)

b) Fully discretionary

The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review. (Lagman v. Medialdea, En Banc, G.R. Nos. 231658, 231771, 231774 etc., 04 July 2017)

c) Civilian authority supreme at all times over the military

While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. (Kulayan v. Tan, supra.)

The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his.  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. (Ibid.)

b. Declaration of martial law and suspension of the privilege of the writ of habeas corpus; extension

1) President

a) Requisites

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. (Section 18, Article VII, 1987 Constitution)

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when:

1) There is actual invasion or rebellion; and,

2) Public safety requires it. (Lagman v. Medialdea, supra.)

b) Limitations

The 1987 Constitution imposed the following limits in the exercise of these powers:

1) A time limit of sixty (60) days;

2) Review and possible revocation by Congress; and,

3) Review and possible nullification by the Supreme Court. (Ibid.)

c) Graduation of powers

The 1987 Constitution gives the President, as Commander-in- Chief, a “sequence” of “graduated powers.” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called “graduation of powers” does not dictate or restrict the manner by which the President decides which power to choose. (Ibid.)

These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore necessarily follows that the power and prerogative to determine whether the situation warrants a mere exercise of the calling out power; or whether the situation demands suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the President. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address exigencies or threats that endanger the government, and the very integrity of the State. (Ibid.)

d) Scope of extent of martial law

Under a valid declaration of martial law, the President as Commander-in-Chief may order the: (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) takeover of news media and agencies and press censorship; and (d) issuance of Presidential Decrees. (Ibid.)

2) Congress

a) President to report to Congress

Within forty-eight (48) 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. (Section 18, Article VII, 1987 Constitution)

a) Congress to decide revocation or extension

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. (Section 18, Article VII, 1987 Constitution)

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. (Section 18, Article VII, 1987 Constitution)

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. (Paragraph 2, Section 18, Article VII, 1987 Constitution)

3) Supreme Court

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing. (Paragraph 3, Section 18, Article VII, 1987 Constitution)

The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. (Kulayan v. Tan, supra.)

4) Limitations of Martial Law

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. (Paragraph 3, Section 18, Article VII, 1987 Constitution)

a) Suspension of writ of habeas corpus

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. (Paragraph 4, Section 18, Article VII, 1987 Constitution)

b) Charged within 3 days or released

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released. (Last paragraph, Section 18, Article VII, 1987 Constitution)

6. Executive clemency

a. Nature and limitations

1) Concept

GENERAL RULE: The President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment. (Section 19, Article VII, 1987 Constitution)

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (Paragraph 2, Section 19, Article VII, 1987 Constitution)

EXCEPTIONS:

1) Impeachment cases;

2) Cases that have not yet resulted in a final conviction; and,

3) Cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. (Risol-Vidal v. COMELEC, En Banc, G.R. No. 206666, 21 January 2015)

a) Absolute discretion on the President

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

2) Application

Executive clemency may be extended to both:

1) Administrative cases; and

2) Criminal cases. (Llamas v. Orbos, En Banc, G.R. No. 99031, 15 October 1991)

The President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. (Ibid.)

However, executive clemency in administrative cases refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government. (Ibid.)

a) No notice required

Notice to the recipient of the pardon is not necessary. (Ibid.)

Pardon has been defined as “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.” (Ibid. citing Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]).

b) Cannot be delegated

Since the Chief Executive is required by the Constitution to act in person, he may not delegate the authority to pardon prisoners under the doctrine of qualified political agency. (Tiu v. Dizon, G.R. No. 211269, 15 June 2016)

3) Effects of pardon

a) Forgiveness, not forgetfulness

While a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. (Garcia v. COA Chairman, G.R. No. 75025, 14 September 1993)

Unless expressly grounded on the person’s innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But ssince pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. (Ibid.)

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. (Ibid.)

Case Law

1) In Garcia v. COA Chairman, the pardonee was granted clemency based on his innocence. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency… Petitioner’s automatic reinstatement to the government service entitles him to back wages. (Ibid.)

b) Civil indmenity

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Paragraph 2, Article 36, Ibid.)

c) Right to hold public office and suffrage

A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. (Article 36, Revised Penal Code)

The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Article 41, Ibid.)

Under Articles 36 and 41 of the Revised Penal Code, the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. (Risol-Vidal v. COMELEC, supra.)

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. (Ibid.)

Case Law

1) In Riso-Vidal v. COMELEC, a close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. (Ibid.)

2) In U.S. v. Guarin, there is nothing in the provisions of the Penal Code touching the crime of adultery, as amended by Act No. 1773, which would justify us in holding that the power of the Chief Executive to pardon one of two offenders who have been convicted of adultery is limited by any rule by virtue of which such pardon must inure to the benefit of the other. (U.S. v. Guarin, En Banc, G.R. No. L-9900, 15 March 1915)

b. Forms of executive clemency

1) Pardon

a) Absolute pardon

An absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. (Monsanto v. Factoran, Jr., En Banc, G.R. No. 78239, 09 February 1989)

Full pardon, at least one not based on the offender’s innocence, relieves the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt.  But it relieves him from nothing more. “To say, however, that the offender is a ‘new man’, and’”as innocent as if he had never committed the offense;’ is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction.” (Ibid.)

A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” (Ibid.)

Case Law

1) In Monsanto v. Factoran, Jr., the pardon was not based on the innocence of the pardonee. Thus, this would explain why the pardonee, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits (Ibid.)

b) Conditional pardon

Conditional pardon – is “a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon.” (Risol-Vidal v. COMELEC, supra.)

The individual pardon papers contain the terms and conditions of the contract of pardon, the compliance of which is essential to the pardonee’s freedom from recommitment to prison. (Ibid.)

The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. (Ibid.)

2) Commutations

The reduction of a prisoner’s sentence is a partial pardon, and our Constitution reposes in the President the power and the exclusive prerogative to extend the same. The 1987 Constitution, specifically under Section 19, Article VII thereof, provides that the President possesses the power to grant pardons, along with other acts of executive clemency. (Ibid.)

3) Reprieves

Reprieve – is the postponement of a sentence of death. Webster defines the word reprieve as “the temporary suspension of the execution of a sentence, especially of a sentence of death,” and there are not lacking those who maintain that this word ought to be applied only to postponement of a sentence of death. (Director of Prisons v. Judge of CFI Cavite, En Banc, G.R. No. L-10543, 23 January 1915)

4) Remit fines and forfeitures

7. Diplomatic power

a. CONCEPT

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. (Section 21, Article VII, 1987 Constitution)

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. (Pimentel, Jr. v. Romulo, En Banc, G.R. No. 158088, 06 July 2005)

b. TREATY-MAKING

1) President as sole authority

In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Ibid.)

a) Subject to restriction: 2/3 concurrence of Senate for validity

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. (Ibid.)

Section 21, Article VII of the 1987 Constitution provides that “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.” (Ibid.)

a) Purpose

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth. (Ibid.)

2) Process of treaty-making

“The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.” (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

a) Negotiation

“Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even ‘collapse’ in case the parties are unable to come to an agreement on the points under consideration.” (Ibid.)

b) Signature

“If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.” (Ibid.)

The Philippines is not bound under treaty law and international law to ratify the treaty which it has signed. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. (Pimentel, Jr. v. Romulo, supra.)

c) Ratification

“Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.” (Ibid.)

The signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. The signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. (Pimentel, Jr. v. Romulo, supra.)

Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. (Ibid.)

It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. (Ibid.)

The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. (Ibid.)

Under the 1987 Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. (Ibid.)

Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,  such decision is within the competence of the President alone, which cannot be encroached by the Court via a writ of mandamus. (Ibid.)

Case Law

1) Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. (Ibid.)

d) Exchange of the instruments of ratification

“The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.” (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

8. Powers relative to appropriation measures

a. BUDGET OF EXPENDITURES AND SOURCES OF FINANCING

The President shall submit to the Congress within thirty (30) 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. (Section 22, Article VII, 1987 Constitution)

b. FOREIGN LOANS

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. (Section 20, Article VII, 1987 Constitution)

The Monetary Board shall, within thirty (30) days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. (Section 20, Article VII, 1987 Constitution)

9. Delegated powers

1) Emergency powers

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Section 23[2], Article VI, 1987 Constitution)

2) Power to fix tax rates

The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (Section 28[2], Article VI, 1987 Constitution)

3) Power to reorganize offices and agencies

The President has the power to reorganize the offices and agencies in the executive department in line with the President’s constitutionally granted power of control over executive offices and by virtue of previous delegation of the legislative power to reorganize executive offices under existing statutes. (Banda v. Ermita, En Banc, G.R. No. 166620, 20 April 2010)

To be very clear, this delegated legislative power to reorganize pertains only to the Office of the President and the departments, offices and agencies of the executive branch and does not include the Judiciary, the Legislature or the constitutionally-created or mandated bodies. Moreover, it must be stressed that the exercise by the President of the power to reorganize the executive department must be in accordance with the Constitution, relevant laws and prevailing jurisprudence. (Ibid.)

Case Law

1) In Banda v. Ermita, the issuance of Executive Order No. 378 by President Arroyo was held to be a validexercise of a delegated legislative power granted by Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987, which provides for the continuing authority of the President to reorganize the Office of the President, “in order to achieve simplicity, economy and efficiency.” (Supra.)

Case Law

The rule which forbids delegation of legislative power is not absolute. It admits of exceptions as when the Constitution itself authorizes such delegation. In the present case, our Constitution expressly authorizes such delegation. (Article VI, section 22 [2].) This is so because the royalty rates may take the form of tariff rates. At any rate, Commonwealth Act No. 728 confers upon the President authority to regulate, curtail, control, and prohibit the exportation of scrap metals, and in this authority is deemed included the power to exact royalties for permissive or lawful use of property right. (Raytheon Mfg. Co. vs. Radio Corporation of America, 190, N. E. 1, 5, 286 Mass. 84, cited in Words and Phrases, Vol. 37, p. 810.)

4) Power to create ad hoc investigating bodies

The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. (DOH v. Camposano, En Banc, G.R. No. 157684, 28 April 2005)

The purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. (Biraogo v. The Philippine Truth Commission of 2010, En Banc, G.R. No. 192935, 07 December 2010)

a) Funding

On the charge that Executive Order No. 1 (creating The Philippine Truth Commission of 2010) transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. (Ibid.)

Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, “whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission.” (Ibid.)

Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding. (Ibid.)

10. Residual powers

a. CONCEPT

The President shall exercise such other powers as are provided for in the Constitution. (Section 19, Chapter 7, Title I, Book III, E.O. 292, Administrative Code)

Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. (Section 20, Chapter 7, Title I, Book III, Ibid.)

Executive power – is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country’s foreign relations. (Marcos v. Manglapus, En Banc, G.R. No. 88211, 15 September 1989)

On these premises, although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. (Ibid.)

Whatever power inherent in the government that is neither legislative nor judicial has to be executive. (Ibid.)

Case Law

1) In Dalamal v. Board, as an act of state, the President has the inherent power to order the deportation of an alien and as incident thereof, his arrest, while at the same time that power may be deemed vested in him thru delegation by the Legislature thru the enactment of an appropriate statute via Section 69, Revised Administrative Code. (G.R. No. L-16812, En Banc, 31 October 1963)

2) In Biraogo v. The Philippine Truth Commission of 2010, En Banc, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. (Supra.)

1) Implied

The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. (Marcos v. Manlapus, En Banc, G.R. No. 88211, 27 October 1989)

The President, upon whom executive power is vested, has unstated residual powers which are implied from:

1) The grant of executive power; and,

2) Which are necessary for her to comply with her duties under the Constitution. (Ibid.)

11. Veto powers

a. CONCEPT

Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. (Section 27[1], Article VI, 1987 Constitution)

1) Reconsideration

If, after such reconsideration, two-thirds (2/3) of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. (Ibid.)

In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal.

2) Lapse into law after 30 days of inaction

The President shall communicate his veto of any bill to the House where it originated within thirty (30) days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (Ibid.)

3) Specific items/s

The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. (Section 27[2], Article VI, 1987 Constitution)

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