Finals Reviewer

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez ARTICLE 7 EXECUTIVE DEPARTMENT The executive power shall be vested in the President of the Philippines QUALIFICATIONS OF P & VP Qualifications Section 2 1. 2. 3. 4. 5.

Natural-born Filipino Registered voter Able to read and write At least 40 years old on the day of elections Resident of the Philippines for a period of 10 years immediately preceding the elections

Take Note: These qualifications are mutually exclusive - that Congress cannot pass a law providing for additional requirements.

Presidential and Vice Presidential Races Who would canvass the votes? Sec 4 par 4. Congress is vested with the power to canvass the votes for the presidential and vice-presidential elections and proclaim the winners thereof. For the election of P and VP as certified by the board of canvassers of each province or city shall be transmitted to Congress directed to the Senate President. Senate President shall, not later than 30 days following the elections, open the certificates of canvass in the presence of the Senate and House of Reps in joint session assembled. After determining the authenticity of the certificates of canvass, Congress shall then canvass the votes for the president and vice-president, respectively. Whoever shall garner the highest votes shall be proclaimed as winner.

Term of Office 1. They are to be elected at large (nationwide). Even Filipino voters abroad can vote pursuant to the RA9189 Absentee Voters Act.

Only Congress can canvass the votes Sec 4 Art 7. It is only Congress which can canvass the votes for and declare the winners in the P & VP elections.

2. Elected for a term of 6 years, which shall commence at noon of June 30 next following the elections and at noon of June 30, six years thereafter. President Sec 4 Art 7. 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

Macalintal v. Comelec GR No. 157013 June 10, 2004 The SC nullified the provision under Sec 18 par 5 of RA9189 Absentee Voters Act empowering the Comelec to canvass the votes for the P & VP elections involving absentee voters.

In case of tie Where two or more shall have an equal and highest number of votes, Congress will decide by the vote of a majority of all the members of both Houses in joint session but voting separately. 

Why was Erap allowed to run? Sec 4 par 2. 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. (Estrada v. Arroyo

Answer: They will have another caucus until such time that both Houses will be in agreement as to who would be declared as winner.

It was ruled that Erap resigned)

Illustrations 1. Suppose a president served for a full term of 6 years, thereafter, he rested for 6 years. May he run again after resting for 6 years? Answer: NO. Because the president shall not be eligible for "any" reelection at any given time. 2. Why was Erap allowed to run? Answer: Blame Arroyo because when Erap ran, disqualification cases were filed against him but the Comelec ruled that Erap could run because anyway it is up for the people to choose their own president. Everyone suspected that it was the handiwork of Gloria Arroyo because the administration bet was GiboTeodoro and there were a lot of candidates coming from the opposition Noynoy, Villar, Erap and Gordon. And it would appear that the administration of Gloria Arroyo subscribed to the maxim divide and rule. Hence, let Erap run in the hope that the votes for the opposition will be divided. The Comelec rendered a decision in favor of Erap. It was questioned before the SC but either by design, the petition for certiorari was defective such that it was dismissed and denied due course by the SC. The SC did not decide the case on the merits. Hence, there is no definitive ruling on whether or not Erap could run. Moreso, the issue has already become moot and academic by the proclamation of Noynoy as president.

What happens if Senate chose Noynoy but House of Reps chose Gibo?

In the case of the members of Senate and the House of reps, any election contest involving the members thereof shall be decided by the SET or the HRET. 

But who shall decide cases involving election contests pertaining to P & VP elections? Answer: The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice- President.

Take Note: The SC, in deciding such cases will not be governed by the procedures set forth in the Rules of Court. It has a different procedure because the SC in deciding such cases will be acting as the Presidential Electoral Tribunal. Oath Taking Sec 5. Once the winners in the P & VP elections are proclaimed, they are mandated to take the oath of office before they could enter on the execution of their office. "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.) Privileges

Vice President The Vice-President may not serve office for more than 2 consecutive terms. (Hence, he is eligible for reelection, but cannot serve for more than 2 consecutive terms) Sec 4 par 2. 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. Illustrations 1. After serving for 12 years, the vice-president rested for 6 years. Is he qualified to run again? Answer: There is as yet no definitive ruling, but it would appear that he can, because what the law prohibits is only the service of more than two consecutive terms. Sec 5 Art 18. The President and the Vice President elected during Feb 7, 1986 elections (Cory Aquino and Laurel) served office longer than 6 years. - their term would have to be extended until noon of June 30, 1992 for purposes of synchronization of elections in 1992.

1. President will have an official residence - Malacanang palace 2. The salaries of the President and Vice-President are fixed by law. Cannot be decreased during their term of office. (Annual salary: P-300k, VP-200k) Any increase in the salary may be allowed but it shall take effect only after the expiration of the term of the incumbents

3. Immunity from suit There is no express provision in the Constitution giving presidential state immunity from suit, but this was ordained pursuant to a case law by the Supreme Court. Forbes v. Tiaco 16 Phil 534 Decided in the case of Estrada v. Arroyo. Immunity from suit vested upon the president is vested only by a case law. Practical considerations inability of the president to function properly; preoccupied with defending cases.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez 2. What happens if the Senate President and Speaker of the House are likewise incapacitated? Who becomes the acting President?

Limitations 1. Cannot receive any other form of emoluments from the government or other sources Take Note: Sec 3 par 2. The VP may be appointed by the President as a member of the Cabinet, without need for confirmation by the Commission on Appointment.

Answer: Sec 7 Congress is mandated to enact a law to deal with such particular situation.

Suppose the VP is appointed by the P as a member of the cabinet, is the VP entitled to the salary appertaining to such cabinet position?

Special Elections Sec 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.

Answer: NO, because of the prohibition imposed under Sec 6. But allowances are allowed.

Does it always follow that where there are permanent vacancies in the offices of the P and VP, there be special elections?

Vacancy in the Office of the President What happens where there is vacancy in the office of the president?

Answer: Where the vacancies occurred within 18 months before the next presidential elections, there shall be no more special elections.

Two provisions dealing with presidential succession:

A law calling for special elections is deemed certified Such that the readings thereof in three separate days, the printing and distribution of copies thereof may be validly dispensed with. Any such bill will become a law after its approval at the third reading, without the signature of the president.

Illustration

1. Section 7 - Deals with a situation where the vacancy occurs before or during the beginning of the term of office of the president. 2. Section 8 - Deals with a situation where the vacancy occurs during the incumbency of the elected president. Presidential Succession under Section 7 (1) If a President shall not have been chosen, the Vice-Presidentelect shall become the acting President (acting only, not permanent) until a President shall have been chosen and qualified. Illustrations 1.

2.

During the canvassing of votes, there was a tie involving two presidentiables but no tie involving VPs. Naturally, the VP is proclaimed and takes his oath. If the Congress still hasn't chosen the winning President, the VP shall become the acting President, until such time that a President is chosen. When the president shall not have qualified yet and the VP has already been proclaimed and taken his oath. The VP elect will become the acting president.

Budget or funding for special elections Charged as against any available funding or appropriation. It is considered as an exception to the rule that special appropriation bills should be supported by funds actually available as certified by the national treasury. A bill calling for special elections, it need not be supported by a certification coming from the national treasury that there is an available funding. Rationale: We cannot sanction a situation where we do not have a permanent P & VP. Presidential Succession under Section 8 (1) 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. Example: Gloria became the successor of Erap and she served the unexpired portion of Erap's term.

Example. Noynoy is proclaimed as winner but at the scheduled oath taking, Noynoy was not able to make it because he had to undergo surgery. Noynoy, while already proclaimed as winner, has not yet qualified. Where that happens, the VP shall be the acting president, until such time that Noynoy is qualified.

(2) In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the Senate President 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.

(2) If at the beginning of the term of the President, the President-elect shall have died or have become permanently disabled, the VicePresident-elect shall become President.

Take Note: Special elections shall be called but where the vacancies occurred within 18 months before the next presidential elections, there shall be no more special election. Read sections 7 and 8 in conjunction with sections 9 and 10

Illustration 1.

Noynoy got proclaimed as winner, but a bomb exploded during the oath taking causing his instantaneous death. Where that happens, the VP elect will become permanent President of the Philippines.

Vacancy in the office of the Vice President How should such vacancy be filled up? Apply Sec 9. The President shall nominate the Vice President from among the members of Congress. The persons nominated shall assume the position as VP, the moment the nomination is confirmed by a majority vote of all members of Congress in joint session but voting separately. Vacancy in the Offices of the President and the Vice President When no President or Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the Senate President or, in case of his inability, the Speaker of the House of Representatives shall act as President. (Only acting and not permanent president)

Instances where the Vice-President would become the acting President Section 11 1. Whenever the President transmits to the Senate President and the Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office. 2. Whenever a majority of all the Members of the Cabinet transmit to the Senate President and to the Speaker of the House their written declaration that the President is unable to discharge the powers and duties of his office. Take Note: If such declaration is disputed by the President, such that the President transmits to the Senate President and to the Speaker of the House his written declaration that no inability exists, he shall reassume the powers and duties of his office. But if within 5 days, majority of the members of the Cabinet would dispute the refutation of the President, the capacity or incapacity of the President will be decided by Congress.

Illustrations 1. If the Senate President becomes the acting President, will the Speaker of the House also become the acting Vice-President? Answer: NO. It's not provided for in the Constitution. There is only an acting President.

If the Congress is not in session, it shall convene within forty-eight hours without need of call from such declaration. 10 days following the receipt of the last written declaration or 12 days from the time the Congress is convened when it was not in session at first, it has to make a decision:

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez Required number of votes 2/3 votes of the members in joint session but voting separately. If President is determined to be incapacitated, Vice President shall become acting President. Otherwise, the President reassumes his position. When the President is suffering from serious illness Section 12 Contemplates of a situation where the President is suffering from a serious illness. The public should be informed of the actual health condition of the president. The members of the Cabinet in charge of national security, foreign relations and the Chief of Staff of the Armed Forces shall not be denied access to the President. Reason. During the time of Marcos, the public were not sufficiently informed about the true health condition of Marcos. Restrictions on the members of the Presidential Family Section 13 Presidential family is composed of: - President - Vice President - Members of the Cabinet - Assistants and their deputies 1. Prohibited from holding any other office or employment in the government, public or private corporation. Unlike Congress where the prohibition only applies in government offices

Exceptions:  Unless otherwise provided for in the Constitution. a. Vice President may be appointed as member of the Cabinet b. DOJ Secretary is also the ex officio member of the Judicial and Bar Council  Where the second position could be considered as extension of office, adjunct and ancillary to the primary functions a. Secretary of Labor is also the ex officio member of the Board of PEZA (Phil Estate Zoning Authority) b. Secretary of Transportation and Communications is also the ex officio chairman of the Board of the Philippine Ports Authority 2.

Prohibited from having any financial or business interest in a contract, franchise or privilege granted by the government or any of its instrumentalities including government-owned or controlled corporations. Unlike Congress where they are only required to make a full disclosure of their financial assets but not completely divest themselves of any financial interests or shareholdings

3.

Altogether prohibited from directly or indirectly practicing their profession. Unlike Congress where they can practice their profession. But if a lawyer, prohibited only from personally appearing in court but can still sign pleadings

4.

Nepotism is prohibited. Prohibits the spouse of the President, his relatives of affinity or consanguinity within the 4th civil degree from being appointed as members of the various Constitutional Commissions. (Comelec, COA, CSC, Ombudsman, Under/Secretaries of Bureaus including government-owned or controlled corporations)

Powers of the President Military Powers 1. Power to call out the Armed Forces to suppress any lawless violence, invasion of rebellion. (The President shall be the Commander-in-Chief of the Armed Forces of the Philippines) Referred to as the calling out power of the President. (IBP v. Zamora)’ 2. Power to declare martial law or suspend the privilege of writ of habeas corpus. Habeas corpus – Special proceedings whereby the petitioner seeks that a person illegally detained be produced in court. What the president can suspend is the privilege of the writ of habeas corpus (its effect and enforcement). The President cannot therefore order that no habeas corpus may be filed nor suspend the issuance of the writ by the courts.

Martial law – Declared by the president to suppress lawlessness; calls the Armed Forces to suppress invasion or rebellion. The president is not given any additional powers. Partial declaration of Martial Law is allowed. It does not have to be throughout the Philippines. Example: Maguindanao was declared under Martial Law subsequent to the Maguindanao massacre. Limitations on the Military Powers Section 18 1. There can only be declaration of Martial law or suspension of the writ of habeas corpus when there is invasion or rebellion and more importantly, when public safety requires. 2. Any such suspension of the writ or declaration of martial law shall only be for a period of 60 days, unless extended or revoked by Congress. 3. The President is mandated to make a report to Congress within 48 hours following such declaration of Martial Law or suspension of the writ – personally or in writing. (Congress is mandated to convene within 24 hours from such declaration) 4. Congress can suspend or revoke such declaration of martial law or suspension of the privilege of the writ. Such revocation cannot be set aside by the president. (No veto power) Voting requirement. Majority of all the members of Congress in joint session, voting jointly. Downside. By the same number of votes and upon the initiative of the President, Congress can extend the effectivity of the martial law or suspension of the privilege of the writ. (No time limit for as long as such invasion or rebellion still exists)

5. Supreme Court is empowered to review the sufficiency or the factual bases of the declaration of martial law or suspension of the privilege of writ. Such petition may be filed by any citizen, with no requirement anent legal standing. Take Note. Supreme Court has to decide the case within a period of 30 days from the filing thereof. Conflicting decisions in the past. Montenegro case The Supreme Court ordained that it had no power to determine the sufficiency or insufficiency of the factual bases for the President’s declaration of martial law, because it is considered as a political question. Lansang v. Garcia Supreme Court ruled that it had competence and power to review the sufficiency or insufficiency of the factual bases for the President’s declaration of martial law. Garcia Padilla v. Enrile The Supreme Court reverted to its earlier ruling in the case of Montenegro, holding that it had no power to determine the sufficiency or insufficiency of the factual bases for the President’s declaration of martial law. But now under Sec 18 Art 7, the Supreme Court is clothed with the authority to entertain such petition questioning the validity of the declaration of martial law.

6. The declaration of martial law would not suspend the operation of the Constitution. Hence, the Constitution remains operative even during Martial Law. It will also not dissolve the functioning of the courts of law or the legislative body. Also, military courts would have no jurisdiction over civilians. Rationale: During the time of Marcos, military courts were conferred authority over civilians. Ruffy v. Chief of Staff Pursuant to the military powers of the President, the President can create military tribunals to decide cases involving war crimes. Kuroda v. Jalandoni The Supreme Court affirmed the jurisdiction of the military tribunals to try and decide war crimes cases. Aquino v. Military Commission No. 2 The Supreme Court ruled that military tribunals would have jurisdiction over civilians. (Because it was during the time of Marcos) Olaguer v. Military Commission No. 34 Supreme Court ruled that military commissions would have no jurisdiction over civilians.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez 7. The declaration of martial law does not necessarily carry with it the suspension of the writ of habeas corpus Take Note. The suspension of the privilege of habeas corpus would only apply to persons judicially charged of rebellion or for offenses necessarily connected with invasion. (continuing offenses – can be arrested without warrant of arrest) Hence, if a person detained for murder, habeas corpus is still available because the suspension of the privilege of the writ applies only to cases involving rebellion or invasion. Even during the suspension of the privilege of the writ of habeas corpus, persons arrested must be judicially charged in court within 3 days following their arrest. Otherwise, they should be released from custody.

8. Sec 13 Art 3. Even during Martial Law or when the privilege of the writ is suspended, bail is still available for his temporary liberty pending the trial of the case. If arrested for rebellion (non-bailable offense), can bail still be availed of? There has to be concurrence. The evidence of guilt must be strong. Otherwise, the person may be entitled to bail.

Appointing Power Section 16 Appointment Process of selection by the authority vested with the power, of the person who is to perform the functions of an office. Two kinds: 1. Permanent Appointment It is extended when the appointee has all the necessary qualifications and the requisite eligibility for the office. Enjoys security of tenure. 2. Temporary Appointment It is extended when the appointee does not have all the necessary qualifications and the requisite eligibility for the office. Services may be terminated at will, even without cause. Appointment v. Designation Appointment – Method of filling up a position. Designation – The process of giving additional functions to a person who is already occupying a position. Take Note. But there are situations where a person is merely designated to perform a particular function (Services may be terminated at will; Hence, there is a similarity between temporary appointment and designation) Appointing power of the President Section 16. First paragraph is composed of two sentences:

Velez v. Commission on Appointments 177 SCRA 259 The appointment by the President of a sectoral representative would need confirmation of the Commission on Appointments because such appointment would fall within the purview of the first sentence of Section 16.

Exceptions: Officers whose appointments are vested in the President by the 1987 Constitution (Needs no for confirmation by the Commission on Appointments) 1. Justices of the Supreme Court and judges of the lower courts 2. Ombudsman and his deputies 3. Vice-President as a member of his Cabinet Simplified Rule: When the President would appoint officers whose appointments are vested in him by the Constitution, generally, said appointments would need confirmation by the Commission on Appointments, except when the Constitution provides otherwise. Appointment of officers pursuant to the 2nd sentence Needs no confirmation by the Commission on Appointment Appointment of officers of the government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint. 1. Chairman of the Commission on Human Rights Concepcion Bautista v. Salonga 172 SCRA 16 The appointment by the President of the chairman of the Commission on Human Rights would not need confirmation by the Commission on Appointments because it falls within the purview of the 2nd sentence of sec 16.

If the President would appoint officers whose appointments are vested in him by a law, not by the Constitution, then said appointment needs no confirmation by the Commission on Appointment. Illustration What if the law vests upon the President the power to appoint certain government officials but the law itself provides that such appointment would need confirmation by the Commission on Appointments? Should such appointment be confirmed by the Commission on Appointments? Answer: NO. Calderon v. Caralle 208 SCRA 254 Sec 215 of the Labor Code, as amended, the chairman and the members of the NLRC would have to be appointed by the President and the Labor Code itself provides that said appointments should be confirmed by the Commission on Appointments. The Supreme Court ruled that any such condition as thus imposed by the law would be unconstitutional.

Steps to follow in making Presidential Appointments

(1)

The President shall nominate, and with the consent of the Commission on Appointments, appoint the heads of the Executive Departments, Ambassadors, Republic Ministers and Consuls, Officers of the Armed Forces (Colonel or Naval Captain), and those whose appointments are vested in him in the 1987 Constitution.

1. The President nominates the would-be appointee 2. The appointment would be confirmed by the Commission on Appointments (If such appointment would need confirmation) 3. The appointed prater via the issuance of the commission a written declaration 4. Acceptance by the appointee

(2)

He shall also appoint 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.

Take Note. These processes would have to be followed when the President would appoint officials in the government while Congress is in session.

Take Note. The first paragraph consists of two sentences. Sarmiento v. Mison Where the President would make appointments pursuant to the first sentence of Section 16, then such appointments would need confirmation of the Commission on Appointments. Whereas if the President would make appointments pursuant to the second sentence, said appointment would not need confirmation of the Commission on Appointments.

Appointment of officers pursuant to the 1st sentence Needs confirmation of the Commission on Appointments 1. 2. 3. 4.

Heads of the Executive Departments Ambassadors, Public Ministers or Consuls Officers of the Armed Forces (Colonel or Naval Captain) To officers whose appointments are vested in him in the 1987 Constitution.

General Rule: Officers whose appointments are vested in the President by the 1987 Constitution (Needs confirmation of the Commission on Appointments) 1. 2. 3.

Chairman and members of the Constitutional Commissions (CSC, COMELEC, COA) Regular members of the Judicial and Bar Council Sectoral Representatives (Before the party-list elections)

Reason. Sec 19, Art 6. When Congress is in session, the Commission on Appointments is likewise in session. Where Congress is in recess, such that the Commission on Appointments is likewise in recess, these steps need not be followed. Appointments while Congress is in recess The President may appoint at once a government officer, and the confirmation by the Commission on Appointments would just come later. Regular Appointment – When the President appoints government officers while Congress is in session. Ad interim Appointment - When the President appoints government officers while Congress is in recess. Illustrations 1.

Is ad interim appointment valid? Answer: Yes, it is valid until disapproved by the Commission on Appointments or until the next adjournment of Congress.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez President extended an ad interim appointment when Congress was in recess. The appointment is valid until disapproved by the Commission on Appointments or where the same has not been acted upon by the Commission on Appointments, until its adjournment.

Why was the midnight appointment of Corona allowed? Because according to the Supreme Court, we have sec 4 par 1 and sec 9 of Art 8, which provides that vacancies in the Judiciary, especially the Supreme Court, shall be filled up within 3 months following such vacancy. And according to the Supreme Court, the provisions above stated are exceptions to the prohibition imposed under Sec 15 of Art 7.

If the ad interim appointment is disapproved, the appointment ceases to be valid. If the ad interim appointment is not acted upon by the Commission on Appointments, the appointment is valid only until the Commission on Appointments adjourns. 2.

But before that, there was already a decided case In the matter of Mateo Valenzuela 98-5-01-SC November 9, 1998 The Supreme Court said that appointments in the Judiciary would have to defer to the prohibition imposed under Sec 15 Art 7 of the 1987 Constitution.

Suppose during the recess of Congress, the President extended an ad interim appointment to X. If the Commission on Appointments disapproves the appointment of X, may he be reappointed or nominated by the President to the same position?

Nicastro v. Judicial and Bar Council GR No. 192002 March 17, 2010 The case of Corona is the subject matter in this case. Corona’s appointment was valid according to the Supreme Court. Sec 4 par 1 and sec 9 of Art 8 somehow modify the prohibition imposed under Sec 15, Art 7 of the 1987 Constitution.

Answer: NO, because there is already a decision made by the Commission on Appointments, rejecting the appointment of X for such particular position. But notwithstanding the disapproval of X’s ad interim appointment to such particular position, X may still be appointed by the President to another position. 3.

President extended an ad interim appointment to X, but when Congress resumed its session, the Commission on Appointments failed to act on the ad interim appointment of X. The appointment of X is considered to have been bypassed by the Commission on Appointments. Can the President reappoint X to the same position? Answer: YES, because there is no decision yet disapproving his previous appointment. Matibag v. Benifayo GR No. 149036 April 2, 2002 When the ad interim appointment is simply bypassed, the appointee may be reappointed to the same position, because there is as yet no decision made by the Commission on Appointments.

4.

Can the President appoint a cabinet secretary in an acting capacity?

Take Note: The prohibition under Sec 15 applies only to presidential appointments. It does not apply to midnight appointments made by local chief executives like outgoing provincial governors or mayors. De Rama v. Court of Appeals GR NO. 131136 February 28, 2001 The prohibition under Sec 15 applies only to presidential appointments. It does not apply to midnight appointments made by local chief executives like outgoing provincial governor or mayor.

Removal Power Appointing authority necessarily carries with it the power to remove the appointees. Such that when the President appoints the members of his cabinet, then the President has the power to remove them. However, it does not necessarily follow that all appointees of the President may be removed by him. 1. 2. 3. 4.

Justices of the Supreme Court Chairman and members of the Constitutional Commissions Ombudsman Judges of the lower courts (only the Supreme Court can discipline or remove judges of the lower courts)

Answer: YES. Pimentel v. Ermita GR No. 164978 October 13, 2005 Said appointment is valid for as long as it is made in good faith, especially where the same is extended by the President to meet the exigency of public service.

Regular Appointment v. Ad Interim Appointment Regular Appointment

Ad Interim Appointment

Extended by the President when the Congress is in session

Extended by the President when Congress is in recess

Appointment is made after confirmation

Appointment precedes the confirmation

Once the same is confirmed, it continues after the expiration of the term of the appointee

Valid until disapproved by the Commission on Appointments or until adjournment

Take Note. While these officials were appointed by the President, they cannot be removed at will by the President. They may only be removed by impeachment. Officials belonging to the career service – they may not be removed by the President without cause Sec 2 par 3 Art 9-B. Officials or employees of the CSC shall not be suspended or removed, except for cause as otherwise provided by law. Hence, it would appear that only members of the Cabinet may be removed by the President. Control Power Section 17 The President shall have control of all the executive departments, bureaus, and officer. He shall ensure that the laws be faithfully executed. First sentence – control power Second sentence – take care clause Power of Control v. Power of Supervision

Limitations on the Appointing Power of the President 1. Prohibition against nepotism. Prohibits the spouse of the President, his relatives of affinity or consanguinity within the 4 th civil degree from being appointed as members of the various Constitutional Commissions. 2. Appointments made by the acting President may be revoked by the elected President within 90 days from his assumption or reassumption of his office. 3. Section 15. Two months immediately prior to the next Presidential election and up to the end of his term, the acting President or the President shall not make appointments except temporary appointments to executive positions when the continued vacancy therein would endanger public safety or prejudice public service.

Power of Control

Power of Supervision

(1) The superior has the power to alter, modify, nullify or set aside the judgment or acts of the subordinate.

Higher ranking official merely oversees the performance of the lower ranking official to see to it that the latter performs his bounden-duties within the parameters and confines of the law.

(2) The superior officer has the power to command the doing or undoing of an act. (3) Has the power to substitute his judgment for that of the subordinate and may perform the acts ought to be performed by the subordinate.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez Control Power

Espuelas v. Provincial Warden of Bohol Mere commission of an offense is already considered as a violation of the conditional pardon. Conviction for such offense is not a requirement.

Araneta v. Gatmaitan The Supreme Court justified the action of President Magsaysay in promulgating the rules governing trawl fishing, when under the law, said duty is only lodged on the Secretary of the Agriculture and Natural Resources. In as much as the President has the power of control over the Secretary of Secretary of the Agriculture and Natural Resources, then the President can validly perform the duties ought to be performed by the subordinate. Lacson-Magallanes v. Pano The Supreme Court justified the office of the President in reviewing the decision of the Director of Lands, which under the law, would become final already once approved by the Secretary of the Agriculture and Natural Resources. What the President has over the lower subordinates was the power of control, such that he can alter, modify, nullify or set aside the decision of his subordinates. Ega Workers Association of the Phils v. Romulo GR No. 160093 July 31, 2007 This power of control vested upon the President over all Executive Departments would include the power to reorganize the various Executive offices.

Cabinet-Secretaries They serve at the behest of the President. For as long as they enjoy the trust and confidence of the President, then they can continue with the performance of their functions. Hence, they are regarded as the alter-egos of the President. Alter-ego principle Otherwise known as the “doctrine of qualified political agency”. The acts of the cabinet secretaries, unless reprobated or disapproved by the President, are considered as acts of the President himself.

Sumulong v. Gonzales The Supreme Court reiterated its earlier ruling in the case of Espuelas.

2.

Absolute pardon – Excuses the person from service of sentence. Needs no acceptance. Civil and political liberties are restored but it would not serve to restore forfeited offices. Monsantong v. Factoran Convicted for estafa, falsification of public documents. He was a treasurer and was granted absolute pardon. He wanted to reinstated to his previous position. Supreme Court disagreed noting that although what was granted was absolute pardon, it would not mask the criminal infractions already committed. However, the person granted absolute pardon may reapply for the same position. There is no automatic reinstatement but he is not qualified from re-applying for the same position.

Plenary pardon – If involves the wiping out of accessory penalties Partial – Does not involve the wiping out of accessory penalties Power to Grant Amnesty Only applies to political crimes, normally granted to a class of persons, such that individual acceptance is not required. Needs concurrence of majority of members of Congress. Pardon v. Amnesty

All administrative offices are considered adjuncts of the office of the President. Pardon Take-Care Clause The President shall ensure that the laws be faithfully executed. Simple but became the decisive factor in the case involving the creation of the Truth Commission by President Noynoy. Lagman v. Ochoa GR No. 193036 December 07, 2010 The creation by Noynoy of the Truth Commission to look into the anomalies perpetrated by the past administration of Gloria was questioned. It was contended by the petitioners that Noynoy had no authority to create such office – Truth Commission, because only Congress can validly create an office because the creation of a public entails disbursement of public funds. The Supreme Court ruled that the President had the power to create the Truth Commission, pursuant to his power under the second sentence of sec 17. He created the Truth Commission to ensure that laws were faithfully executed during the pas administration. The Supreme Court sustained the authority of Noynoy to create the Truth Commission. But just the same, the creation of such Commission was struck down as void because it ran afoul with the equal protection clause, since it was created to look into the anomalies perpetrated by the past administration of Gloria Arroyo.

Laws he is supposed to enforce: 1. Constitution 2. Statutes 3. Judicial decisions 4. Administrative rules and regulations 5. Municipal ordinances 6. Treaties entered into by the Phil government Pardoning Power Section 19 Except in cases of impeachment, or as otherwise provided in the 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. Limitations on the Pardoning Power 1. Cannot extend to cases of impeachment 2. When the same is granted to an election offense, it has to be extended with the favorable recommendation of the Comelec 3. Pardon presupposes final conviction by a final judgment 4. It cannot extend to persons cited in legislative and civil contempt 5. Does not wipe out any civil liability 6. Does not restore offices already forfeited Two kinds of Pardon: 1.

Conditional pardon – needs acceptance (the conditions are only co-extensive with the penalty) In case of violation: Rearrested and prosecuted for violation of Art 159 of the RPC

Amnesty

Extends to offenses which are not considered political crimes

Only applies to political crimes

Normally granted to an individual

Normally granted to a group of persons

Private act of the President – must be pleaded and proved by the person claiming to be pardoned

Public act of the president – taken cognizance by the jduge

Does not need concurrence of the Congress

Needs concurrence of majority of the members of the Congress

Acceptance is a requirement

Acceptance is not a requirement

Looks forward. Does not erase the criminality but only exempts the person from any punishment

Looks backward. As if in law, the offenders did not commit any crime at all.

Borrowing Powers Section 20 While the President is vested with the power to contract or guarantee foreign loans, he cannot do the same without the prior concurrence of the monetary board. Monetary Board is mandated by law to submit a periodic report, 30 days after the end of every quarter, on matters pertaining to its decisions and applications for foreign laws, especially where the same would increase public indebtedness. Diplomatic Powers Section 21 The President can enter into treaties and international agreements, but for said treaties to be valid, the same would need concurrence by 2/3 votes of the Members of the Senate. (Excluding the House of Reps) What is given to the Senate is concurrence power and NOT ratification power. Because the power to ratify treaties is lodged on the President. Without the 2/3 concurrence, any such treaty or international agreement is not effective.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez How about executive agreements entered into by two presidents? Would that need concurrence of the 2/3 of the members of the Senate? NO, because only International Agreements would need concurrence of 2/3 of the Members of the Senate. Budgetary Powers Section 22 The President is mandated to submit within 30 days, from the opening of every session of Congress, a budget of expenditures and sources of finances, the same to serve as basis for the general appropriation act. Read this provision in tandem with sec 24 Art 6 – Any appropriation bill must originate from the House of Representatives Sec 25 par 1 Art 6 – Congress may not increase the appropriation recommended by the President. Informing Power Section 23 The President shall address Congress at the opening of its sessions. It is couched in mandatory terms for it used the word “shall”, but in actuality, it is not mandatory for the President to deliver a SONA during the opening of the session of Congress. The powers of the President are not only those enumerated under Article 7 1. Power to veto a bill 2. Power to call for special session of Congress 3. Power to exercise tariff powers if delegated 4. Emergency powers if delegated 5. Power to give consent to the deputization by the Comelec of government officers Manglapos v. Marcos Authority of President Corazon Aquino to bar the entry the of remains of Marcos. It was contended by the heirs of Marcos that there is no law allowing Aquino to prohibit the bringing in of the body of Marcos. She acted without authority. The Supreme Court disagreed, noting that executive power is not the sum total of the powers so enumerated under the Constitution. The President may exercise powers for as long as the same are executive in character.

JUDICIARY DEPARTMENT ART 8 Judicial power shall be vested in one Supreme Court and such lower courts as may be created by law. The only Constitutional Court is the Supreme Court and the lower courts are merely statutory courts Statutory – there are mere creations of legislations as may be enacted by Congress. Other courts: 1. Court of Appeals 2. Sandiganbayan 3. Court of Tax Appeals 4. Regional Trial Courts 5. Metropolitan Trial Courts 6. Municipal Trial Courts in Cities 7. Municipal Courts 8. Municipal Circuit Trial Courts 9. Sharia’ Courts Hierarchy of Courts Supreme Court – the highest law of the land Vargas v. Raza Supreme Court struck down as void a provision of the People’s Court Act, Section 20, creating a special supreme court to try collaboration cases. The president was given the power to appoint ad hoc members of the Supreme Court coming from the Court of Appeals and RTC. It would appear that there would be two Supreme Courts. Regular Supreme Court, trying regular cases and Ad Hoc Supreme Court, trying collaboration cases.

Composition There are 15 justices of the Supreme Court 1 Chief Justice 14 Associate Justices The Supreme Court must be sitting en banc, and in its discretion, may have divisions in 3, 5 and 7 members. Qualifications Section 7 Justices of the Supreme Court 1. Natural-born Filipinos 2. At least 40 years old

3. Must be a judge of the lower court or must be engaged in the practice of law for 15 years or more Cayetano v. Monsod Practice of law is not limited to appearance in court or litigation. Any activity involving the application of law already constitutes practice of law.

Judges of Collegiate Courts (CA, CTA) 1. Natural-born Filipinos (Congress may want to provide for additional qualifications Judges of the Lower Courts (RTC, MTC, MTCC) 1. Congress is given the power to provide for their qualifications. 2. The minimum qualification is that a judge should be a citizen of the Philippines and should be a member of the Philippine Bar (Hence, they need not be natural-born Filipinos) 3. Engaged in the practice of law for 5 years (MTC) 4. Engaged in the practice of law for 10 years (RTC) Take Note. Members of the Judiciary must be a person of proven competence, integrity, probity and independence Appointments Section 9 Justices of the Supreme Court and judges of the lower courts are to be appointed by the President of the Philippines from at least 3 nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation by the Commission on Appointments. Reason. To ensure the independence of the Judiciary.

For the lower courts, the President shall issue the appointments within 90 days from the submission of the list. In the matter of Mateo Valenzuela 98-5-01-SC November 9, 1998 The Supreme Court said that appointments in the Judiciary would have to defer to the prohibition imposed under Sec 15 Art 7 of the 1987 Constitution. Nicastro v. Judicial and Bar Council GR No. 192002 March 17, 2010 The case of Corona is the subject matter in this case. Corona’s appointment was valid according to the Supreme Court. Sec 4 par 1 and sec 9 of Art 8 somehow modify the prohibition imposed under Sec 15, Art 7 of the 1987 Constitution. The Supreme Court upheld as valid the appointment of Chief Justice Corona although it was made within 2 months prior to the expiration of the term of Gloria Arroyo, which ostensibly is an exception according to the SC to the prohibition imposed under Sec 15 Art 7.

Judicial and Bar Council Has regular members and ex-officio members. Ex officio members Ex officio chairman – Chief Justice of the Supreme Court Other ex officio members: 1. Secretary of Justice 2. A representative of Congress Chavez v. JBC GR 402242 There was an issue as to representation in the JBC coming from Congress, because in the past there were two representatives, one from each house. The Supreme Court ruled that there shall only be one representative coming from Congress.

Regular members 1. 2. 3. 4.

Representative from the IBP (should serve office for 4 years) Professor of law (3 years) Retired Justice of the SC (2 years) A representative of the private sector appointed by the President (1 year – with confirmation of the Commission on Appointments)

Take Note. Judging from the composition of the JBC, in the appointments of the justices of the SC and judges of the lower courts, there is still political influence. Reason. Secretary of Justice as the ex officio member of the JBC Representative from Congress which is a political Representative appointed by President

Term of Office Section 11 Members of the Judiciary – justices of the Supreme Court and judges of the lower courts are given security of tenure. They shall serve until good behavior or until reaching the mandatory retirement age of 70, or until such time that they shall become incapacitated.

Constitutional Law 1 l Atty. Renato Galeon l Reviewer by Tanya Ibañez Impeachment Justices of the Supreme Court - May only be removed by impeachment. They are appointed by the President but the President cannot terminate their services at will. Judges of the lower courts – appointed by the President but cannot be removed by the President because only the Supreme Court en banc has the power to discipline the judges or dismiss them from service.

Vests upon the Supreme Court the power to revise, review, reverse or affirm on appeal or on certiorari, final decisions or orders of the lower courts over the cases enumerated therein: 1.

Voting requirement: Majority votes of the members who actually took part in the deliberation of the case. Fuentes v. Office of the Ombudsman The Supreme Court ruled that the Ombudsman has no power to investigate judges of the lower courts because it is only the Supreme Court vested the power to investigate, discipline of remove judges of the lowers courts – sec 11.

Ynot v. Intermediate Appellate Court Lower courts are equally clothed with judicial review. Only that the decisions may still be reviewed by the Supreme Court in the exercise of the SC of its appellate jurisdiction.

2.

All cases decided by the lower courts involving the validity or legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

3.

All cases wherein the jurisdiction of the lower courts is in question

4.

All criminal cases in which the penalty imposed is reclusion perpetua or higher. (Not the imposable penalty but the penalty actually imposed)

How about if there is a law reorganizing the Judiciary resulting in the abolition of some salas or courts? May the judges of the lower courts be removed? Answer: Ocampo v. Secretary of Justice Reorganization in the Judiciary resulting in the abolition of the offices or salas of the judges of the lower courts is not violative of security of tenure, because security of tenure presupposes an office. Such that where the offices are abolished, then there is no security of tenure to speak of.

All cases wherein the validity of a treaty, international agreement or executive agreement, law, PDs, ordinances is in issue.

People v. Mateo In the past, automatic review is conducted by the Supreme Court. However in this case, the Supreme Court ruled that any such criminal case must be reviewed first by the Court of Appeals.

Take Note. There is now an express provision to the end that no law should be passed reorganizing the Judiciary, for it will undermine the security of tenure of its members. 5.

All cases in which only an error or question of law is involved

Powers of the Judiciary Power of Judicial Review The power of the courts of justice to check the validity of executive and legislative acts whether or not they are in accordance with the Constitution. Through this power, courts of law are now empowered to inquire into the validity of executive and legislative acts to check if these acts are in conformity with the Constitution. In the exercise of judicial review, the Judiciary as a whole is not asserting its supremacy as it is not supreme over the other two branches, but it is merely performing its bounden duty under the Constitution to allocate conflicting claims of authority. Hence, when the Judiciary performs its judicial power, it is not asserting its supremacy but that of the Constitution. Judicial review is only a part or component of judicial power. Essential Requisites of Judicial Review 1. 2. 3. 4.

Existence of an actual case or controversy Constitutional question must be raised by the proper party Constitutional question must be raised at the earliest opportunity Any such question or issue must be decisive of the case.

Exclusive Jurisdiction Sec 5 par 1 Vests upon the Supreme Court original jurisdiction over the cases enumerated therein affecting 1. Ambassadors 2. Public ministers 3. Consuls 4. Over petitions on certiorari, mandamus, prohibition, quo warranto and habeas corpus * Shared with the Court of Appeals and the RTC

Terms 

Jurisdiction – authority of the court to take cognizance over the case



Original jurisdiction – petitions pertaining to these cases may be filed directly with the Supreme Court



Certiorari – Rule 65 A respondent is said to have acted beyond the ambit of a given authority; grave abuse of discretion



Prohibition – Petitioner seeks to prohibit the performance of an act which is patently illegal



Mandamus – Petitioner seeks to compel the performance of an act ought to be performed by the respondent



Quo warranto – Contest involving claims pertaining to an office or position; Action that may be filed against a corporation for abuse of its charter

Appellate Jurisdiction Sec 5 par 2 Appellate jurisdiction of the Supreme Court (Cases may originate from the lower courts, only that the decisions may be reviewed by the Supreme Court, being the final arbiter)

Sec 30 Art 6 The appellate jurisdiction of the Supreme Court may be increased, but such should be done with the prior concurrence of the Supreme Court. Without which, any such increase is considered invalid. Fabian v. Desierto Under Sec 27 of RA 6770 Ombudsman Act, decisions of the office of the Ombudsman and administrative cases may be appealed further in the Supreme Court. The Supreme Court struck down such particular remedy because it has an effect of increasing the appellate jurisdiction of the Supreme Court, and such was done without the prior consent of the Supreme Court.

Assignment of temporary judges Sec 5 par 3 Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned Change of venue Order a change of venue or place of trial to avoid a miscarriage of justice. Promulgating Power Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Appointment Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law