Article Vii Executive Department Section 1. The Executive Power Shall Be Vested in The President of The Philippines. 1. The Executive Power

ARTICLE VII
EXECUTIVE DEPARTMENT
SECTION 1. THE EXECUTIVE POWER SHALL BE VESTED IN THE
PRESIDENT OF THE PHILIPPINES.
1. The executive power.
The seat of executive power in Philippine constitutional law has
undergone a series of relocations. The 1935 Constitution vested
executive
power in the President. Under the original 1973 Constitution
executive power was for the Prime Minister to exercise and the
President
was reduced to a mere "symbolic head of the State." The idea
of
a merely ceremonial President, however, died even before it
could be
tested. When the original 1973 Constitution took effect,
President Marcos,
who was President under the 1935 Constitution, was allowed to
retain his 1935 powers and at the same time became
ceremonial President
and Prime Minister. And he never was merely a ceremonial
head.
In 1981, the 1973 Constitution was revised and the President
was once
more made head of state and chief executive, while the Prime
Minister
was reduced to being largely a ceremonial figure.
With the 1987 Constitution, the constitutional system returns
to
the presidential model of the 1935 Constitution: executive
power is
vested in the President. During the deliberations of the 1986
Constitutional
Commission there was no debate on the choice between a
presidential
or a parliamentary system.
In vesting executive power in one person rather than in a plural
executive, the evident intention was to invest the power holder
with
energy. And since, even as originally set down in the 1935
Constitution,
the powers themselves were couched in skeletal generalities, it
is possible
for a President to test the extent of those powers to the limit
and
820
Sec. 1 ART. Vn - EXECUTIVE DEPARTMENT 821
even overwhelm the two other theoretically coequal
departments. The
conviction that permeated the 1986 Constitutional Commission
was that
President Marcos had taxed executive power beyond allowable
limits.
Hence, to the specific powers given to the President — to
appoint, to
ensure that the laws are faithfully executed, to be Commander-
in-Chief
of the armed forces, to grant clemency, and to contract foreign
loans
— there have been attached more explicit structural limitations
than
were provided in previous documents. Nonetheless, the
presidency that
emerges from the 1987 text is still a potent institution largely
because
the primary source of his political authority, election by the
people at
large, is still there.
The broad sweep of executive power has been laid out
generously
by the Supreme Court in Marcos v. Manglapus.' In concluding
that the
President had the authority to prevent the return of Mr.
Marcos even in
the absence of a specific law granting her such authority, the
Supreme
Court, speaking through Justice Irene Cortes, laid down the
premise for
its conclusion asserting the existence of "residual powers" not
specifically
mentioned in the Constitution:2
The inevitable question then arises: by enumerating certain
powers of the President did the framers of the Constitution
intend
that the President shall exercise those specific powers and no
other?
Are these enumerated powers the breadth and scope of
"executive
power"? Petitioners advance the view that the President's
powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her.
Inclusio
unius est exclusio alterius." [Memorandum for Petitioners,
p. 4; Rollo p. 233.] This argument brings to mind the institution
of
the U.S. Presidency after which ours is legally patterned.3
Corwin, in his monumental volume on the President of the
United States grappled with the same problem. He said:
'177 SCRA 668 (1989).
2W. at 689-692.
The Philippine presidency under the 1935 constitution was
patterned in large measure
after the American presidency. But at the outset, it must be
pointed out that the Philippine government
established under the constitutions of 1935, 1973 and 1987 is
a unitary government with
general powers unlike that of the United States which is a
federal government with limited and
enumerated powers. Even so, the powers of the president of
the United States have through the
years grown, developed and taken shape as students of that
presidency have demonstrated.
THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec
Article II is the most loosely drawn chapter of the
Constitution. To those who think that a constitution ought
to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers
ought to leave considerable leeway for the future play of
political
forces, it should be a vision realized.
We encounter this characteristic of Article II in its
opening words: "The executive power shall be vested in a
President of the United States of America." x x x. [The
President:
Office and Powers, 1787-1957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised
by the different persons who held the office from Washington
to the early 1900's, and the swing from the presidency by
commission
to Lincoln's dictatorship, he concluded that "what the
presidency
is at any particular moment depends in important measure
on who is President." [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal
institution. It remained, of course, an agency of government
subject to unvarying demands and duties no matter who was
President. But, more than most agencies of government , it
changed shape, intensity and ethos according to the man in
charge. Each President's distinctive temperament and
character,
his values, standards, style, his habits, expectations,
idiosyncrasies,
compulsions, phobias recast the White House
and pervaded the entire government. The executive branch,
said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of
the office, its impact on the constitutional order, therefore
altered from President to President. Above all, the way each
President understood it as his personal obligation to inform
and involve the Congress, to earn and hold the confidence of
the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened
the constitutional order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says
it is or what she does but, rather, that the consideration of
tradition
and the development of presidential power under the different
constitutions
are essential for a complete understanding of the extent
of and limitations to the President's powers under the 1987
Con1
ART. VII - EXECUTIVE DEPARTMENT
stitution. The 1935 Constitution created a strong President with
explicitiy broader powers than the U.S. President. The 1973
Constitution
attempted to modify the system of government into the
parliamentary type, with the President as the mere figurehead,
but
through numerous amendments, the President became even
more
powerful, to the point that he was also the de facto Legislature.
The
1987 Constitution, however, brought back the presidential
system
of government and restored the separation of legislative,
executive
and judicial powers by their actual distribution among the three
distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "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.
On these premises, we hold the view that 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.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive.
Thus, in the landmark decision of Springer v. Government
of the Philippine Islands, 277 U.S. 189 (1928), on the issue of
who
between the Governor-General of the Philippines and the
Legislature
may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power
of
the Governor-General to do so said:
... [H]ere the members of the legislature who constitute
a majority of the "board" and "committee" respectively,
are not charged with the performance of any legislative
functions
or with the doing of anything which is in aid of performance
of any such functions by the legislature. Putting aside
824 THE 1987 CONSTITUTION
Sec. 1
for the moment the question whether the duties devolved
upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The
fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they
do fail within that of the remaining one among which the
powers of government are divided. ... [At 202-203; italics
supplied.]
We are not unmindful of Justice Holmes' strong dissent.
But in his enduring words of dissent we find reinforcement for
the view that it would indeed be folly to construe the powers of
a
branch of government to embrace only what are specifically
mentioned
in the Constitution:
The great ordinances of the Constitution do not establish
and divide fields of black and white. Even the more specific
of them are found to terminate in a penumbra shading
gradually from one extreme to the other, x x x.
It does not seem to need argument to show that however
we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and
executive
action with mathematical precision and divide the
branches into watertight compartments, were it ever so
desirable
to do so, which I am far from believing that it is, or
that the Constitution requires. [At 210-211.]
Justice Isagani Cruz, however, was of a different view:4
In holding that the President of the Philippines has residual
powers in addition to the specific powers granted by the
Constitution,
the Court is taking a great leap backward and reinstating the
discredited doctrine announced in Planas v. Gil (67 Phil. 62).
This
does not square with the announced policy of the
Constitutional
Commission, which was precisely to limit rather than expand
presidential
powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel
Seizure Case (343 U.S. 579) that if it was true that the President
had been granted the totality of executive power, "it is difficult
4177 SCRA 715-716.
Sec. 1 ART. VII - EXECUTIVE DEPARTMENT 825
to see why our forefathers bothered to add several specific
items,
including some trifling ones, ... I cannot accept the view that
this
clause is a grant in bulk of all conceivable executive power but
regard it as an allocation to the presidential office of the
generic
powers thereafter stated."
But the Court was adamant. In a per curiam resolution on
reconsideration
it said:5
3. Contrary to petitioners' view, it cannot be denied that
the President, upon whom executive power is vested, has
unstated
residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her
duties
under the Constitution. The powers of the President are not
limited
to what are expressly enumerated in the article on the
Executive
Department and in scattered provisions of the Constitution.
This is
so, notwithstanding the avowed intent of the members of the
Constitutional
Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos,
for the result was a limitation of specific powers of the
President,
particularly those relating to the commander-in-chief clause,
but
not a diminution of the general grant of executive power.
That the President has powers other than those expressly
stated
in the Constitution is nothing new. This is recognized under
the
U.S. Constitution from which we have patterned the
distribution of
governmental powers among three (3) separate branches.
Article I I , [section] 1, provides that "The Executive
Power shall be vested in a President of the United States of
America." In Alexander Hamilton's widely accepted view,
this statement cannot be read as mere shorthand for the
specific
executive authorizations that follow it in [sections] 2
and 3. Hamilton stressed the difference between the
sweeping
language of article I I , section 1, and the conditional language
of article I, [section] 1: "All legislative powers herein
granted shall be vested in a Congress of the United States
..." Hamilton submitted that "[t]he [article II] enumeration
[in sections 2 and 3] ought therefore to be considered, as
intended
merely to specify the principal articles implied in the
definition of execution power; leaving the rest to flow from
the general grant of that power, interpreted in conformity
with other parts of the Constitution ..."
5178 SCRA 760,763-765 (1989).
Sec. 1
In Myers v. United States, the Supreme Court accepted
Hamilton's proposition, concluding that the federal
executive, unlike the Congress, could exercise power
from sources not enumerated, so long as not forbidden by
the constitutional text: "The executive power was given in
general terms, strengthened by specific terms where emphasis
was regarded as appropriate, and was limited by direct
expressions where limitation was needed ..." The language
of Chief Justice Taft in Myers makes clear that the
constitutional
concept of inherent power is not a synonym for power
without limit; rather, the concept suggests only that not all
powers granted in the Constitution are themselves exhausted
by internal enumeration, so that, within a sphere properly
regarded
as one of "executive" power, authority is implied unless
there or elsewhere expressly limited. [TRIBE, AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition
of the President's implied or residual powers is tantamount to
setting
the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the
Constitution
should not be confused with the power of the President under
the 1973 Constitution to legislate pursuant to Amendment No.
6
which provides:
Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a threat or
imminence
thereof, or whenever the interim Batasang Pambansa
or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his
judgment
requires immediate action, he may, in order to meet
the exigency, issue the necessary decrees, orders, or letters
of instruction, which shall form part of the law of the land.
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the
President
under the 1973 Constitution pursuant to Amendment No. 6.
First of all, Amendment No. 6 refers to an express grant of
power.
It is not implied. Then, Amendment No. 6 refers to a grant to
the
President of the specific power of legislation.
The doctrine enunciated in these two resolutions will be
regretted
when another Ferdinand Marcos emerges as President.
2. Ceremonial functions.
In the presidential system, moreover, the presidency includes
many other functions than just being chief executive. Writing
about the
American President, Clinton Rossiter said:6
He remains today, as he has always been, the ceremonial
head of the government of the United States, and he must take
part
with real or apparent enthusiasm in a range of activities that
would
keep him running and posing from sunrise to bedtime if he
were
not protected by a cold-blooded staff. Some of these activities
are
solemn or even priestly in nature; others, through no fault of
his
own, are flirtations with vulgarity. The long catalogue of public
duties that the Queen discharges in England, the President of
the
Republic of France, and the Governor General of Canada is the
President's responsibility in this country, and the catalogue is
even
longer because he is not a King, or even the agent of one, and is
therefore expected to go through some rather undignified
paces
by a people who think of him as a combination of scoutmaster,
Delphic Oracle, hero of the silver screen, and father of
multitude.
What Rossiter said of the American President can be said with
equal truth of the Philippine President. True enough, the First
Lady, if
there happens to be one and depending on the Lady's
inclinations, can
get a fair share of "flirtations with vulgarity." Imelda Marcos as
First
Lady certainly did. But the President still retains the lion's share
of the
glory.
3. Immunity from suit.
There is no provision in the Constitution clothing the President
with immunity from suit during his tenure. The 1973
Constitution had
a specific provision guaranteeing the President's immunity and
that of
other executive officers.7
But the 1987 Constitution did not preserve this provision. When
Commissioner Suarez suggested that the President's immunity
at least
should be preserved, Father Bernas replied that it was already
under-
THE AMERICAN PRESIDENCY 14-5 (1962).
7"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to
his specific orders." Article VII, Section
15,1973 Constitution. This came in as an amendment in 1981.
Sec. 1
stood in Philippine jurisprudence that the President may not be
sued
during his tenure."
The basis for this assertion was the case of Forbes, etc. v.
Chuoco
Tiaco and Crossfield',' a suit against the Governor General.
Speaking
through Justice Johnson the Court said:
The principle of non-liability, as herein enunciated, does not
mean that the judiciary has no authority to touch the acts of
the
Governor-General; that he may, under cover of his office, do
what
he will, unimpeded and unrestrained. Such a construction
would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or
legislatures.
This does not mean, either, that a person injured by the
executive
authority by an act unjustifiable under the law has no remedy,
but
must submit in silence. On the contrary, it means, simply, that
the
Governor-General, like the judges of the courts and the
members
of the Legislature, may not be personally mulcted in civil
damages
for the consequences of an act executed in the performance of
his official duties. The judiciary has full power to, and will, when
the matter is properly presented to it and the occasion justly
warrants
it, declare an act of the Governor-General illegal and void
and place as nearly as possible in status quo any person who
has
been deprived his liberty or his property by such act. This
remedy
is assured to every person, however humble or of whatever
country,
when his personal or property rights have been invaded, even
by the highest authority of the state. The thing which the
judiciary
can not do is mulct the Governor-General personally in
damages
which result from the performance of his official duty, any
more
than it can a member of the Philippine Commission or the
Philippine
Assembly. Public policy forbids it.
Neither does this principle of non-liability mean that the
chief executive may not be personally sued at all in relation to
acts which he claims to perform as such official. On the
contrary,
it clearly appears from the discussion heretofore had,
particularly
that portion which touched the liability of judges and drew an
analogy between such liability and that of the Governor-
General,
that the latter is liable when he acts in a case so plainly outside
of
"II RECORD 423.
'16 Phil. 534 (1910).
Sec. 1 ART. VTI - EXECUTIVE DEPARTMENT 829
his power and authority that he can not be said to have
exercised
discretion in determining whether or not he had the right to
act.
What is held here is that he will be protected from personal
liability
for damages not only when he acts within his authority,
but also when he is without authority, provided he actually
used
discretion and judgment, that is, the judicial faculty, in
determining
whether he had authority to act or not. In other words, he is
entitled to protection in determining the question of his
authority.
If he decide wrongly, he is still protected provided the question
of
his authority was one over which two men, reasonably qualified
for that position, might honestly differ; but he is not protected
if
the lack of authority to act is so plain that two such men could
not
honesdy differ over its determination. In such case, he acts, not
as
Governor-General but as a private individual, and, as such,
must
answer for the consequences of his act."
The subsistence of this doctrine under the 1987 Constitution
was
confirmed in Soliven v. Judge Makasiarw which assumed that
indeed
the President enjoys immunity. The Court said:
The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential
duties
and functions free from any hindrance or distraction,
considering
that being the Chief Executive of the Government is a job that,
aside from requiring all of the office-holder's time, also
demands
undivided attention.
But this privilege of immunity from suit, pertains to the
President by virtue of the office and may be invoked only by the
holder of the office; not by any other person in the President's
behalf.
Thus, an accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as a defense
to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent
the President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege
and
submit to the court's jurisdiction. The choice of whether to
exercise
the privilege or to waive it is solely the President's prerogative.
It is a decision that cannot be assumed and imposed by any
other person.
10167 SCRA 393,399 (1988).
Sec. 1
Immunity from suit came up again in the case of Estrada v.
Desierto."
Estrada, prosecuted for plunder after having left the
presidency,
pleaded presidential immunity from suit as his defense.
Moreover, he
claimed that he could not be sued before the impeachment
could be
terminated.
Before resolving the contention, the Court harked back to
history.
First it recalled Forbes, already mentioned above. Next it noted
that
the 1935 Constitution did not contain any provision on
immunity, but
that the 1973 Constitution did in the following words in its
Section 17,
Article VII:
The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by
him or by others pursuant to his specific orders during his
tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution.
This provision came in as an amendment enacted in 1981. The
immunity granted by the first sentence while the President was
in office
was absolute. During the deliberations on this amendment by
the
Interim Batasang Pambansa, there was this exchange between
Assemblyman
Arturo Tolentino and Minister Ricardo Puno —
Mr. Tolentino: ... if we are starting from the assumption
or from the principle that the mantle of immunity is not a
sanction
for wrongdoing, then, so long as it is shown that a wrongful act,
a
criminal act or an act in violation of law has been committed in
the
performance or in the execution of a lawful order, then there
will
be no mantel of protection at all.
Mr. Puno. Mr. Speaker, the allegation there seeks to negate
immunity.
Clearly, therefore, the intent was to give the President absolute
immunity even for wrongdoing committed during his tenure.12
"G.R. Nos. 146710-15 and 146738, March 2,2001.
I2BERNAS, PHILIPPINE CONSTITUTIONAL LAW (1984) 530-531.
Pacifico Agabin makes the same
point in VICENTE G. SINCO Professional Chair Lecture entitled,
"Presidential Immunity And All The
King's Men: The Law Of Privilege As A Defense To Actions For
Damages" cited by the Supreme
Court.
The second sentence, however, dealing with immunity after
tenure,
was only for official acts.
The Court continued with its historical account thus:
The 1973 Constitution ceased to exist when President Marcos
was ousted from office by the People Power revolution in
1986. When the 1987 Constitution was crafted, its framers did
not
reenact the executive immunity provision of the 1973
Constitution.
The following explanation was given by delegate J. Bernas,
viz.:
Mr. Suarez. Thank you.
The last question is with reference to the Committee's
omitting in the draft proposal the immunity provision for the
President. I agree with Commissioner Nolledo that the
Committee
did very well in striking out this second sentence, at
the very least, of the original provision on immunity from
suit under the 1973 Constitution. But would the Committee
members not agree to a restoration of at least the first
sentence
that the President shall be immune from suit during his
tenure, considering that if we do not provide him that kind
of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing
litigations almost daily?
Fr. Bemas. The reason for the omission is that we consider
it understood in present jurisprudence that during his
tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bemas. There is no need. It was that way before.
The only innovation made by the 1973 Constitution was to
make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for
any more query, Madam President.
Finally the Court went on to resolve the issue:
We now come to the scope of immunity that can be claimed
by petitioner as a non-sitting President. The cases filed against
petitioner
Estrada are criminal in character. They involve plunder,
bribery and graft and corruption. By no stretch of the
imagination
can these crimes, especially plunder which carries the death
pen832
Sec. 1
alty, be covered by the alleged mantle of immunity of a non-
sitting
president. Petitioner cannot cite any decision of this Court
licensing
the President to commit criminal acts and wrapping him with
post-tenure immunity from liability. It will be anomalous to
hold
that immunity is an inoculation from liability for unlawful acts
and
omissions. The rule is that unlawful acts of public officials are
not
acts of the State and the officer who acts illegally is not acting
as
such but stands in the same footing as any other trespasser.
It should be noted that the language of the Court goes beyond
merely saying that a non-sitting President does not enjoy
immunity
from suit. It suggests that even a sitting President, unlike under
the 1973
Constitution, is not immune from suit for non-official acts or for
wrongdoing:
Indeed, a critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or
impairs
the vindication of a right. In the 1974 case of US v. Nixon,"
US President Richard Nixon, a sitting President, was
subpoenaed
to produce certain recordings and documents relating to his
conversations
with aides and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct
justice and other offenses which were committed in a burglary
of
the Democratic National Headquarters in Washington's
Watergate
Hotel during the 1972 presidential campaign. President Nixon
himself was named an unindicted co-conspirator. President
Nixon
moved to quash the subpoena on the ground, among others,
that
the President was not subject to judicial process and that he
should
first be impeached and removed from office before he could be
made amenable to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that "when the ground
for asserting privilege as to subpoenaed materials sought for
use
in a criminal trial is based only on the generalized interest in
confidentiality,
it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice."
In the 1982 case of Nixon v. Fitzgerald,'4 the US Supreme Court
further held that the immunity of the President from civil
damages
covers only "official acts." Recently, the US Supreme Court
"418 U.S. 683 (1974). Other footnotes omitted.
I4457 US 731 (1982).
had the occasion to reiterate this doctrine in the case of
Clinton v.
Jones" where it held that the US President's immunity from
suits
for money damages arising out of their official acts is
inapplicable
to unofficial conduct.
There are more reasons not to be sympathetic to appeals to
stretch the scope of executive immunity in our jurisdiction.
One
of the great themes of the 1987 Constitution is that a public
office
is a public trust. It declared as a state policy that "(t)he State
shall maintain honesty and integrity in the public service and
take
positive and effective measures against graft and corruption."
It
ordained that "(p)ublic officers and employees must at all
times be
accountable to the people, serve them with utmost
responsibility,
integrity, loyalty, and efficiency, act with patriotism and
justice,
and lead modest lives." It set the rule that "(t)he right of the
State
to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees,
shall
not be barred by prescription, laches or estoppel." It
maintained
the Sandiganbayan as an anti-graft court. It created the office
of the
Ombudsman and endowed it with enormous powers, among
which
is to "(i)nvestigate on its own, or on complaint by any person,
any
act or omission of any public official, employee, office or
agency,
when such act or omission appears to be illegal, unjust,
improper,
or inefficient." The Office of the Ombudsman was also given
fiscal
autonomy. These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys
immunity
from suit for criminal acts committed during his incumbency.
As to the claim that the suit must await the termination of the
impeachment
proceeding the Court said:
We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment
proceedings.
The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to
his
loss of the presidency. Indeed, on February 7, 2001, the
Senate
passed Senate Resolution No. 83 "Recognizing that the
Impeachment
Court is Functus Officio." Since the Impeachment Court is
now functus officio, it is untenable for petitioner to demand
that
he should first be impeached and then convicted before he
can be
prosecuted. The plea if granted, would put a perpetual bar
against
15520 US 681 (1997).
Sec. 1
his prosecution. Such a submission has nothing to commend
itself
for it will place him in a better situation than a non-sitting
President
who has not been subjected to impeachment proceedings and
yet can be the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear that
when
impeachment proceedings have become moot due to the
resignation
of the President, the proper criminal and civil cases may already
be filed against him, viz.:
"xxx XXX XXX
Ms. Aquino. On another point, if an impeachment proceeding
has been filed against the President, for example,
and the President resigns before judgment of conviction has
been rendered by the impeachment court or by the body,
how does it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment
to remove one from office, then his resignation would render
the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the
ordinary courts."
This is in accord with our ruling in In Re: Saturnino Bermudez'
6 that "incumbent Presidents are immune from suit or from
being brought to court during the period of their incumbency
and
tenure" but not beyond. Considering the peculiar circumstance
that
the impeachment process against the petitioner has been
aborted
and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution
before the Ombudsman that he be convicted in the
impeachment
proceedings....
In sum, although the new Constitution has not reproduced the
explicit
guarantee of presidential immunity from suit under the 1973
Constitution,
presidential immunity during tenure remains part of the law.
What has been rejected by the new Constitution is the
expansive notion
of immunity in the Marcos Constitution. Once out of office,
however,
even before the end of the six year term, immunity for non-
official acts
is lost.
"145 SCRA 160(1986).
4. Executive privilege.
Executive privilege was discussed extensively in Senate v.
Ermita
v which dealt with Executive Order 464 imposing a gag on
executive
officials summoned to a Senate legislative investigation. In
simplest
terms, executive privilege is the power of the President to
withhold certain
types of information from the courts, the Congress, and
ultimately
the public.
The types of information include those which are of a nature
that
disclosure would subvert military or diplomatic objectives, or
information
about the identity of persons who furnish information of
violations
of law, or information about internal deliberations comprising
the process
by which government decisions are reached.
Section 2(a) of E.O. No. 464, upheld as valid by the Supreme
Court, enumerated the following which are taken from earlier
decisions:
1. Conversations and correspondence between the President
and the public official covered by this executive order;
2. Military, diplomatic and other national security matters
which in the interest of national security should not be
divulged;
3. Information between inter-government agencies prior to the
conclusion of treaties and executive agreements;
4. Discussion in close-door Cabinet meetings;
5. Matters affecting national security and public order.
Of these types of information perhaps the trickiest ones are
those
about internal deliberations leading to a government decision.
But the
decision itself, once reached, unless it is about confidential
military or
diplomatic matters, can become a matter of public concern.
Certainly,
for instance, if a decision reached is criminal, it cannot be
privileged.
More to the point, Ermita said, "Executive privilege, as already
discussed, is recognized with respect to information the
confidential
nature of which is crucial to the fulfillment of the unique role
and
responsibilities of the executive branch, or in those instances
where
exemption from disclosure is necessary to the discharge of
highly important
executive responsibilities. The doctrine of executive privilege is
1 7G.R.No. 169777, April 20.2006.
836 THE 1987 CONSTTTUTION
Sec. 1
thus premised on the fact that certain information must, as a
matter of
necessity, be kept confidential in pursuit of the public interest.
The privilege
being, by definition, an exemption from the obligation to
disclose
information, the necessity must be of such high degree as to
outweigh
the public interest in enforcing that obligation in a particular
case."
Put differently, the Court said that a claim of privilege may be
valid or not "depending on the ground invoked to justify it and
the context
in which it is claimed. For in determining the validity of a claim
of privilege, the question that must be asked is not only
whether the
requested information falls within one of the traditional
privileges, but
also whether that privilege should be honored in a given
procedural
setting." From this the Court concluded that it is not for one
claiming
executive privilege "to unilaterally determine that respondents'
dulyissued
Subpoena should be totally disregarded."
One must also see executive privilege vis-d-vis the power of
Congress
to use compulsory process. "While the executive branch is a
coequal
branch of the legislature, it cannot frustrate the power of
Congress
to legislate by refusing to comply with its demands for
information....
Only one executive official may be exempted from this power
— the
President."
Another point which the Court emphasized in Ermita was that
a claim of privilege must be stated with sufficient particularity
to enable
Congress or the court to determine its legitimacy. "Absent then
a
statement of the specific basis of a claim of executive privilege,
there
is no way of determining whether it falls under one of the
traditional
privileges, or whether, given the circumstances in which it is
made, it
should be respected." The lack of specificity renders an
assessment of
the potential harm resulting from disclosure impossible.
However, Congress
must not require the executive to state the reasons for the
claim
with such particularity as to compel disclosure of the
information which
the privilege is meant to protect.
Senate v. Ermita was followed by Neri v. Senate. In a Senate
hearing
involving a contract with a Chinese firm, Neri in his capacity as
Chairman of National Economic Development Authority (NEDA)
was
asked three questions: (a) Whether the President followed up
the (NBN)
project; (b) Whether the President directed him to prioritize the
ZTE?
(c) Whether the President said to go ahead and approve the
project after
being told about the alleged bribe? Neri claimed executive
privilege.
The type of executive privilege claimed here was "presidential
communication privilege." Presidential communication is
presumptively
privileged; but the presumption is subject to rebuttal. Thus,
whoever
challenges it, must show good and valid reasons related to the
public
welfare. The Court ruled that the Senate failed to controvert
the presumption.
18
The Court could have asked for an in camera session for Neri to
explain his claim within the hearing of the Court alone. Such a
procedure,
followed by American practice, could have enabled the Court to
sift what was privileged and what was not and then to allow the
revelation
of what was not privileged. But the Court did not use the
procedure,
and relied instead on presumption. Thus the Chief Justice
commented
that executive privilege was established by guesswork.
The decision has the dangerous effect of blocking discovery of
wrongdoing by the mere claim of presumptive privilege.
A lesser anomaly in the decision is its rejection of the manner in
which the Senate approved its show cause order to Secretary
Neri. The
Senate approved the order through the collection of a sufficient
number
of signatures and not in a meeting. The Court found this to be
an invalid
procedure. But it is not for the Court to tell the Senate what its
voting
procedure should be. As our own Court said in 1960, "Courts
have
declared that 'the rules adopted by deliberative bodies are
subject to
revocation, modification or waiver at the pleasure of the body
adopting
them.' And it has been said that 'Parliamentary rules are merely
procedural,
and with their observance, the courts have no concern. They
may
be waived or disregarded by the legislative body.'" Provided, of
course,
private rights are not violated.
The Court too does modify or even dispense with its own rules.
What is good for the goose should be good for the gander.
5. The Cabinet.
Although the Constitution mentions the Cabinet a number of
times," the Cabinet itself as an institution is extra-
constitutionally created.
It essentially consists of the heads of departments who through
usage have formed a body of presidential advisers who meet
regularly
"G.R. No. 180643, March 25,2008. Reconsidered September
5,2008.
"£.g.. Article VII, Sections 3,11, and 13.
Sec. 2
with the President. Although they are the principal officers
through
whom the President executes the law, the President, through
his power
of control over them and his power to remove them at will,
remains the
chief of administration. Cabinet members as individuals and the
Cabinet
as institution possess no authority over the President. They
serve at
the behest and pleasure of the President.
SEC. 2. No PERSON MAY BE ELECTED PRESIDENT UNLESS HE IS
A NATURAL-BORN CITIZEN OF THE PHILIPPINES, A REGISTERED
VOTER,
ABLE TO READ AND WRITE, AT LEAST FORTY YEARS OF AGE ON
THE DAY
OF THE ELECTION, AND A RESIDENT OF THE PHILIPPINES FOR AT
LEAST
TEN YEARS IMMEDIATELY PRECEDING SUCH ELECTION.
1. Qualifications of the President.
To be elected President, a person must be a natural-born
citizen of
the Philippines, a registered voter, able to read and write, at
least forty
years of age on the day of election for President, and a resident
of the
Philippines for at least ten years immediately preceding such
election.
The applicable definition of a natural bom citizen of the
Philippines
is that found in Article IV, Section 2: "Natural-born citizens are
those who are citizens of the Philippines from birth without
having to
perform any act to acquire or perfect their Philippine
citizenship. Those
who elect Philippine citizenship in accordance with paragraph
(3), Section
1 hereof shall be deemed natural-born citizens."
An illegitimate child of an American mother and a Filipino
father
is a natural born Filipino citizen if paternity is clearly proved.
Hence
such person would be qualified to run for President. This was
the case
of Fernando Poe, Jr.20
The President must also have the qualifications of a voter
prescribed
in Article V, Section 1. Beyond such qualifications he must also
be a "registered voter." The literacy qualification has been
specified
because under Article V literacy, unlike in the 1935
Constitution, is not
required for the exercise of the right of suffrage.
The minimum age for President is forty years. Under the 1935
Constitution it was also forty years. The age qualification must
be pos-
'Tecson v. COMELEC,G A. No. 161434, March 3,2004.
sessed "on the day of the election for President," that is, on the
day set
by law on which the votes are cast.
The residency requirement has the same meaning as
"residence"
in election law. One is a resident of the Philippines if he is
"domiciled"
there, that is, there must concur (1) bodily presence in the
locality, (2)
an intention to remain there — animus manendi, and (3) an
intention
to abandon the old domicile, if he had one, or animus non
revertendi.
While, however, bodily presence in the locality is required, the
residency
requirement allows for temporary physical absences provided
that
the animus revertendi to the domicile is never abandoned.2 1 It
should
be noted that the residence requirement does not specify a
province or
city or legislative district. It is enough that he has a domicile
anywhere
in the Philippines.
SEC. 3. THERE SHALL BE A VICE-PRESIDENT WHO SHALL HAVE
THE SAME QUALIFICATIONS AND TERM OF OFFICE AND BE
ELECTED WITH
AND EM THE SAME MANNER AS THE PRESIDENT. H E MAY BE
REMOVED
FROM OFFICE IN THE SAME MANNER AS THE PRESIDENT.
THE VICE-PRESIDENT MAY BE APPOINTED AS A MEMBER OF
THE
CABINET. SUCH APPOINTMENT REQUIRES NO CONFIRMATION.
1. The Vice-President.
The Vice-President is essentially a President in reserve.
Attempts
to give him a constitutional function other than just being Vice-
President
failed.2 2 Hence, he has the same qualifications as a President,
is
elected with and to the same term as the President, and may
be removed
from office in the same manner as the President; but, unless he
is appointed
as a member of the Cabinet or is given some executive
function,
as Vice-President Estrada was who was made Chairman of the
Presidential Anti-Crime Cornmittee, he has no other function
than to be
prepared to assume the presidency should a vacancy in the
office arise.
In deference to his office, an appointment as department head
extended
to him does not need the consent of the Commission on
Appointments.
But the President is not obliged to give the Vice-President
"See Gallego v. Vera, 73 Phil. 453,455-6 (1941); Faypon v.
Quirino, 96 Phil. 294,299-300
(1954). II RECORD OF THE CONSTITUTIONAL COMMISSION 390
(1986).
22II RECORD 423-4,438-45.
Sec. 4
a Cabinet position because the President must be free to
choose for his
Cabinet people who are his trusted personal choices.23
S E C 4. THE PRESIDENT AND THE VICE PRESIDENT SHALL BE
ELECTED BY DIRECT VOTE OF THE PEOPLE FOR A TERM OF SIX
YEARS
WHICH SHALL BEGIN AT NOON ON THE THIRTIETH DAY OF JUNE
NEXT
FOLLOWING THE DAY OF THE ELECTION AND SHALL END AT
NOON OF
THE SAME DATE SIX YEARS THEREAFTER. T H E PRESIDENT
SHALL NOT
BE ELIGIBLE FOR ANY REELECTION. N O PERSON WHO HAS
SUCCEEDED
AS PRESIDENT AND HAS SERVED AS SUCH FOR MORE THAN
FOUR YEARS
SHALL BE QUALIFIED FOR ELECTION TO THE SAME OFFICE AT
ANY TIME.
No VICE-PRESIDENT SHALL SERVE FOR MORE THAN TWO
SUCCESSIVE TERMS. VOLUNTARY RENUNCIATION OF THE
OFFICE FOR
ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN
INTERRUPTION
IN THE CONTINUITY OF THE SERVICE FOR THE FULL TERM FOR
WHICH
HE WAS ELECTED.
UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR
ELECTIONS
FOR PRESIDENT AND VICE-PRESIDENT SHALL BE HELD ON THE
SECOND
MONDAY OF MAY.
THE RETURNS OF EVERY ELECTION FOR PRESIDENT AND
VICEPRESIDENT
DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH
PROVINCE OR CITY, SHALL BE TRANSMITTED TO THE
CONGRESS,
DIRECTED TO THE PRESIDENT OF THE SENATE. UPON RECEIPT
OF THE
CERTIFICATES OF CANVASS, THE PRESIDENT OF THE SENATE
SHALL,
NOT LATER THAN THIRTY DAYS AFTER THE DAY OF THE
ELECTION,
OPEN ALL THE CERTIFICATES IN THE PRESENCE OF THE SENATE
AND
THE HOUSE OF REPRESENTATIVES IN JOINT PUBLIC SESSION,
AND THE
CONGRESS, UPON DETERMINATION OF THE AUTHENTICITY
AND DUE
EXECUTION THEREOF IN THE MANNER PROVIDED BY LAW,
CANVASS THE
VOTES.
THE PERSON HAVING THE HIGHEST NUMBER OF VOTES SHALL
BE PROCLAIMED ELECTED, BUT IN CASE TWO OR MORE SHALL
HAVE
AN EQUAL AND HIGHEST NUMBER OF VOTES, ONE OF THEM
SHALL
FORTHWITH BE CHOSEN BY THE VOTE OF A MAJORITY OF ALL
THE
MEMBERS OF BOTH HOUSES OF THE CONGRESS, VOTING
SEPARATELY.
THE CONGRESS SHALL PROMULGATE ITS RULES FOR THE
CANVASSING OF THE CERTIFICATES.
"Id. at 390.
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, AND
MAY
PROMULGATE ITS RULES FOR THE PURPOSE.
1. Election of the President and Vice-President.
The 1935 Constitution provided for a President elected by
direct
vote of the people. The original 1973 Constitution had wanted
to experiment
not only with a ceremonial President elected by the legislature
but also with a chief executive, the Prime Minister, similarly
elected by
the legislature. The 1981 revision restored the concept of a
chief executive
directly elected by the people as more consonant with
Philippine
experience. The 1987 Constitution has preserved that concept.
In like
manner, the Vice-President is elected by direct vote of the
people.
2. Term of the President and Vice-President.
The President is given a fixed term of six years to begin at noon
on
June 30th following the day of the election and to end at noon
also on
June 30th "six years thereafter." It was argued that six years
was long
enough for a good President to implement his programs and,
rather optimistically,
that with the constraints built around the presidency, a bad
one would not succeed in accomplishing his evil designs.24
The fixing of the exact time and date for the start and ending of
the term excludes the right to "hold-over." At noon on June 30
six years
after the start of the term, either the newly elected President
takes over
or the rule on filling of vacancies found in Section 7 becomes
operative.
An innovation introduced by the 1986 Constitutional
Commission
is the limit on the number of terms a President and Vice-
President may
serve. A President is not eligible for any re-election for that
office, that
is, either immediately after his term or even after an interval of
one or
more terms. It was thought that the elimination of the prospect
of reelection
would make for a more independent President capable of
making
correct even if unpopular decisions.2 5 The prohibition of re-
election
applies to any person who has served as President.26
Mld. at 207.
aid. at 208. The whole exercise of trying to fix the term of the
President, Vice-President.
Senators, and Representatives is discussed at great length, id.
204-438,548-554,passim.
"In 1992, as President Aquino was about to finish her term,
there was some debate whether
the rule would apply to her considering that. Article XVIII,
Section 7 declared her elected under
Sec.4
A less restrictive limitation is imposed on persons who serve as
Vice-President. They may not serve for more than two
successive terms.
But voluntary renunciation of the office for any length of time
shall not
be considered as an interruption in the continuity of a Vice-
President's
service. Moreover, if the Vice-President succeeds to the
presidency, if
he serves for less than four years, he may run for election as
President
since in his case it would not be a re-election.
3. The Congress as national board of canvassers.
The fourth, fifth, and sixth paragraphs of Section 4 make the
Congress the national board of canvassers for presidential and
vicepresidential
elections. The power of the present Congress, moreover,
is broader than that of the Congress under the 1935
Constitution. The
Congress of the 1935 Constitution was also, through Article VII,
Section
2, the board of canvassers for presidential election. Describing
that
function, the Court said in Lopez v. Roxas.21 "Congress merely
acts as a
national board of canvassers, charged with the ministerial and
executive
duty to make said declaration, on the basis of the election
returns duly
certified by provincial and city board of canvassers." The
imposition on
Congress of such ministerial and executive duty did not give to
Congress
the power "to determine whether or not said duly certified
election
returns have been irregularly made or tampered with, or reflect
the
true result of the elections in the areas covered by each, and, if
not, to
recount the ballots cast, and, incidentally thereto, pass upon
the validity
of each ballot or determine whether the same shall be counted,
and,
in the affirmative, in whose favor, which Congress has power to
do."2*
The Batasan of the 1973 Constitution had powers similar to
those
of the 1935 Congress. The 1987 Constitution has departed from
the
old rule. The clear intent of the 1987 provision is to give to
Congress
as a canvassing body more powers. Congress now is given
authority
to make a "determination of the authenticity and due
execution" of the
returns coming from provincial and city boards of canvassers in
accordance
with the manner to be provided by law, that is, by Congress
the 1973 Constitution. It was largely an academic debate
because she herself disavowed any desire
to run for re-election.
"17 SCRA 756,769 (July 28, 1966).
"Id.
Sec. 4 ART. v n - EXECirrrvE DEPARTMENT 843
itself. What this means in the concrete is explained in the
following
exchange:2 9
MR. MAAMBONG. Madam President, the word "ministerial"
always been interpreted by the Supreme Court as applicable
to the canvass made by the National Assembly, and the reason
why
we did not put the word "ministerial" in the Article is, it has
been
understood in the case of Roxas vs. Lopez and in other cases.
When
we used the words "authenticity" and "genuineness," the
question
refers to the problem of whether or not the ministerial function
is already non-ministerial. The answer is, it is still ministerial
but when we say "authenticity and due execution," what it
really
means is that the National Assembly will look at the certificates
of
canvass and find out from the face of the document whether
there
are flaws in the execution and authenticity of the document.
That
is what it means.
MR. NOLLEDO. Madam President, in the event that the
legislature finds out that there are serious defects in the
certificates
of canvass — as when the seals are broken, there are a lot of
erasures
and then many of them are unsigned and, therefore,
authenticity
appears to be questionable — what will happen?
MR. MAAMBONG. The answer to that is in the phrase "in
the manner provided by law." The Committee had to insert the
phrase "in the manner provided by law" so that the legislature
itself
will find out and will make it very specific as to what flaws or
deficiencies in the certificates of canvass can be taken
cognizance
of by the canvassing board of tellers, because as of now the
guiding
regulations that govern the National Assembly, as I mentioned
in the Committee, are: the rules and regulations of the
COMELEC,
the Omnibus Election Code, the jurisprudence from the
decisions
of the Supreme Court. All these things taken together, the
legislature
is given a notice by using the phrase "in the manner provided
by law," so that it will make a determination now of what are
the
points which the board of tellers can take cognizance of,
because
it is not very clear right now under the laws and regulations,
and
as a matter of fact, that was one of the controversies which
arose
during the canvassing of the votes of President Aquino and
former
President Marcos in the last Batasan.
RECORD at 391,401. See also id. at 413-415, and Appendix, id.
at 775-776.
Sec. 4
It should be noted, however, that the extent to which Congress
as a
canvassing body may determine "authenticity and due
execution" must
only be "in the manner provided by law." Congress will have to
devise
the scope of its own power.
The responsibility for the canvassing of the votes in a
presidential
and vice-presidential election and proclaiming the winners is
given by
the Constitution to both houses of Congress in joint session and
not to
the COMELEC.3 0
The controversy that attended the election of Gloria
Macapagal-
Arroyo gave the Court the opportunity to rule on the meaning
of the
power of Congress. When Congress formed a Joint Committee
perform
the task of a preliminary count of the votes, the authority of the
Committee
was challenged on the ground that canvassing belong to
Congress
as a whole. The Court, however, ruled that the preliminary task
could be done by a smaller body whose work, however, must
be submitted
to Congress as a whole for its review and approval.31
When the time for final adjournment of Congress came, the
canvassing
had not yet been completed. Could Congress continue the
canvass?
The Court pointed out that the final adjournment terminated
the
law-making function of Congress but that the non-law making
functions,
such as canvassing, could continue until the term of the
members
ended.3 2
4. Breaking a presidential or vice-presidential tie.
More than merely functioning as a board of canvassers,
Congress
also has authority to break a tie in presidential and vice-
presidential
elections. The fifth paragraph of Section 4 provides the method
for
breaking the tie in case "two or more shall have an equal and
highest
number of votes." The tie is broken by "vote of a majority of all
the
Members of both Houses of the Congress, voting separately."
5. Presidential and Vice-Presidential election controversies.
Neither the 1935 nor the 1973 Constitution had an explicit
provision
designating the body with jurisdiction to be judge of
presidential
"Macalintal v. COMELEC, G.R. No. 157013. July 10,2003.
"Lopez v. Senate and House, G.R. No. 163556, June 8, 2004.
"Pimentel v. Joint Canvassing Committee, June 22, 2004.
Sec. 5 ART. Vn - EXECUTIVE DEPARTMENT 845
and vice-presidential election contests. When the question of
jurisdiction
arose under the 1935 Constitution in Lopez v. Roxas," the Court
said that, since the Constitution was silent on the matter, and
in the
absence of a statute empowering a judicial body to be judge of
such
contests, any candidate for president or vice-president who
believed
"that he was the candidate who obtained the largest number of
votes for
either office, despite the proclamation by Congress of another
candidate
as the president-elect or vice-president-elect, had no legal right
to demand
by election protest a recount of the votes cast for the office
concerned,
to establish his right thereto. As a consequence, controversies
or
disputes on this matter were not justiciable." For this reason,
Congress
passed Republic Act No. 1793 constituting the Supreme Court
as the
electoral tribunal for presidential and vice-presidential
contests.
The validity of this law was upheld in the already cited case of
Lopez v. Roxas. However, with the adoption of the 1973
Constitution,
R.A. 1793 was implicitly repealed for being incompatible with a
parliamentary
system and it was not restored under the reconstituted
presidential
system of the 1973 Constitution. The last paragraph of Section
4 of Article VI now fills that void. What was statutory law in R.A.
No.
1793 has now become a constitutional provision.
The Rule in presidential contests is that only two persons, the
2nd
and 3rd placers, may contest the election. The Rule effectively
excludes
the widow of a losing candidate.34
The power of the Court as Tribunal includes the power to
correct
manifest errors on the statements of votes (SOV) and
certificates of
canvass (COC).35
SEC. 5. BEFORE THEY ENTER ON THE EXECUTION OF THEIR
OFFICE, THE PRESIDENT, THE VICE-PRESIDENT, OR THE ACTING
PRESIDENT SHALL TAKE THE FOLLOWING OATH OR
AFFIRMATION:
"I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I
WILL FAITHFULLY AND CONSCIENTIOUSLY FULFILL MY
DUTIES AS PRESIDENT (OR VICE-PRESIDENT OR ACTING
PRESIDENT) OF THE PHILIPPINES, PRESERVE AND DEFEND
ITS CONSTITUTION, EXECUTE ITS LAWS, DO JUSTICE TO
"17 SCRA at 761.
"Fernando Poe, Jr. v. Arroyo, PET. CASE No. 002, March
29,2005.
"Legarda v. De Castro, RET. CASE No. 003, March 31,2005.
Sees.
EVERY MAN, AND CONSECRATE MYSELF TO THE SERVICE
OF THE NATION. SO HELP ME GOD." (IN CASE OF
AFFIRMATION, LAST SENTENCE WILL BE OMITTED)
S E C 6. THE PRESIDENT SHALL HAVE AN OFFICIAL RESIDENCE.
THE SALARIES OF THE PRESIDENT AND VICE-PRESIDENT SHALL
BE
DETERMINED BY LAW AND SHALL NOT BE DECREASED DURING
THEIR
TENURE. NO INCREASE IN SAID COMPENSATION SHALL TAKE
EFFECT
UNTIL AFTER THE EXPIRATION OF THE TERM OF THE
INCUMBENT
DURING WHICH SUCH INCREASE WAS APPROVED. THEY SHALL
NOT
RECEIVE DURING THEIR TENURE ANY OTHER EMOLUMENT
FROM THE
GOVERNMENT OR ANY OTHER SOURCE.
SEC. 7. THE PRESIDENT-ELECT AND THE VICE-PRESIDENTELECT
SHALL ASSUME OFFICE AT THE BEGINNING OF THEIR TERMS.
IF THE PRESIDENT-ELECT FAILS TO QUALIFY, THE
VICEPRESIDENT-
ELECT SHALL ACT AS PRESIDENT UNTIL THE PRESIDENTELECT
SHALL HAVE QUALIFIED.
IF A PRESIDENT SHALL NOT HAVE BEEN CHOSEN, THE
VICEPRESIDENT-
ELECT SHALL ACT AS PRESIDENT UNTIL A PRESIDENT
SHALL HAVE BEEN CHOSEN AND QUALIFIED.
IF AT THE BEGINNING OF THE TERM OF THE PRESIDENT, THE
PRESIDENT-ELECT SHALL HAVE DIED OR SHALL HAVE BECOME
PERMANENTLY DISABLED, THE VICE-PRESIDENT-ELECT SHALL
BECOME
PRESIDENT.
WHERE NO PRESIDENT AND VICE-PRESIDENT SHALL HAVE BEEN
CHOSEN OR SHALL HAVE QUALIFIED, OR WHERE BOTH SHALL
HAVE
DIED OR BECOME PERMANENTLY DISABLED, THE PRESIDENT OF
THE
SENATE OR, IN CASE OF HIS INABILITY, THE SPEAKER OF THE
HOUSE
OF REPRESENTATIVES SHALL ACT AS PRESIDENT UNTIL A
PRESIDENT
OR A VICE-PRESIDENT SHALL HAVE BEEN CHOSEN AND
QUALIFIED.
THE CONGRESS SHALL, BY LAW, PROVIDE FOR THE MANNER IN
WHICH ONE WHO IS TO ACT AS PRESIDENT SHALL BE SELECTED
UNTIL
A PRESIDENT OR A VICE PRESIDENT SHALL HAVE QUALIFIED, IN
CASE
OF DEATH, PERMANENT DISABILITY, OR INABILITY OF THE
OFFICIALS
MENTIONED IN THE NEXT PRECEDING PARAGRAPH.
SEC. 8. IN CASE OF DEATH, PERMANENT DISABILITY, REMOVAL
FROM OFFICE, OR RESIGNATION OF THE PRESIDENT, THE
VLCEPRESIDENT
SHALL BECOME THE PRESIDENT TO SERVE THE UNEXPIRED
TERM. IN CASE OF DEATH, PERMANENT DISABILITY, REMOVAL
FROM
OFFICE, OR RESIGNATION OF BOTH THE PRESIDENT AND
VLCEPRESIDENT,
THE PRESIDENT OF THE SENATE OR, IN CASE OF HIS
INABILITY, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES,
SHALL
Sees. 5-8 ART. VII - EXECUTIVE DEPARTMENT 847
THEN ACT AS PRESIDENT UNTIL THE PRESIDENT OR VICE-
PRESIDENT
SHALL HAVE BEEN ELECTED AND QUALIFIED.
THE CONGRESS SHALL, BY LAW, PROVIDE WHO SHALL SERVE
AS PRESIDENT IN CASE OF DEATH, PERMANENT DISABHITY, OR
RESIGNATION OF THE ACTING PRESIDENT. HE SHALL SERVE
UNTIL THE
PRESIDENT OR THE VICE-PRESIDENT SHALL HAVE BEEN
ELECTED AND
QUALIFIED, AND BE SUBJECT TO THE SAME RESTRICTIONS OF
POWERS
AND DISQUALIFICATIONS AS THE ACTING PRESIDENT.
1. Filling a vacancy in the presidency.
There are two sets of rules for filling a vacancy in the
presidency.
One set of rules, Section 7, applies when the vacancy occurs at
the start
of the term, and another set, Section 8, applies when a vacancy
occurs
in mid-term.
As already adverted to earlier, a President has no right to
"holdover."
When the designated date for the end of his term comes, at
noon
of the thirtieth of June six years following his election, he must
leave
office and the president-elect assumes office. Should it happen
that on
the appointed hour and day there is no president-elect, either
because
the president-elect died or failed to qualify or because no
winner has
been proclaimed, then Section 7 becomes operative.
A vacancy can also occur when an incumbent President dies, is
permanently disabled, is removed from office, or resigns. In
such eventuality
Section 8 applies.
The causes of vacancy enumerated in Section 8 are "death,
permanent
disability, removal from office, or resignation." Of the four
causes,
permanent disability is perhaps the most shrouded in obscurity.
The
difficulty arises from two related questions: First what is
"permanent
disability" and, second, who decides whether the President is
disabled.
Previous constitutions did not attempt to answer these
questions. The
1987 Constitution answers them in Section 11.
2. From Joseph Estrada to Gloria Arroyo
The succession provision in Section 8 became the center of the
controversy around the ascension of Gloria Macapagal Arroyo
to the
presidency after Joseph Estrada. The proximate antecedents of
the
event started with a House Resolution approving the
impeachment trial
of Joseph Estrada for various grave crimes. With Chief Justice
Hilario
Sees. 5-8
Davide, Jr. presiding, the impeachment trial proceeded until on
January
16, 2001, the Senate voted 11-10 to block the opening of an
envelope
thought to contain the "smoking gun" against Estrada. The vote
was followed
by the walkout of the prosecution panel. Within hours a
massive
gathering of people began to converge at the EDSA shrine
clamoring
for the resignation of Estrada. On January 18, as the pressure
continued
to mount, the entire military establishment led by Secretary of
National
Defense Orlando Mercado and the Chief of Staff of the Armed
Forces
Angelo Reyes abandoned their support for President Estrada.
The Philippine
National Police followed later.
On January 20, at high noon, Chief Justice Davide administered
the oath of office to Gloria Macapagal Arroyo as President.
Meanwhile,
in Malacanang Palace, at 2:30 p.m. Joseph Estrada left the
palace and
issued the following statement:
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our
country,
I have strong and serious doubts about the legality and
constitutionality
of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacanang Palace, the
seat of the presidency of this country, for the sake of peace and
in
order to begin the healing process of our nation. I leave the
Palace
of our people with gratitude for the opportunities given to me
for
service to our people. I will not shirk from any future challenges
that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day Joseph Estrada signed the
following
letter addressed to the Speaker of the House of
Representatives
and to the Senate President.
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By
operation
of law and the Constitution, the Vice-President shall be the
Acting President.
(Sgd.) JOSEPH EJERCiTO ESTRADA"
Thereafter, Arroyo proceeded to perform the functions of a
President,
and her government received the recognition of many states.
The contention of Joseph Estrada was that he was a President
on
leave under the terms of Section 11 of Article VII and that
Gloria Macapagal-
Arroyo was merely an acting President. The Estrada v. Arroyo™
case was filed by Estrada, together with the companion case of
Estrada
v. Desierto?1 to seek confirmation of his position.
The decision of the Court was unanimous, with Chief Justice
Davide
and Justice Panganiban abstaining: Davide because he had
sworn
in Arroyo and Panganiban to obviate any suspicion that he had
prejudged
the case. The decision was that Estrada was no longer President
and that Arroyo was. But there was no unanimity in arriving at
this
conclusion.
*G.R. 146738, March 2,2001.
"G.R. 146738, March 2,2001. Reconsidered April 3,2001.
Another petition asking for a resolution of the controversy
was Lozano, et al. v. Macapagal-
Arroyo, G.R. No. 146579, February 6, 2001. The petition was
dismissed on the following
grounds: 1. Petitions are essentially for declaratory relief over
which the Supreme Court has no
original jurisdiction; 2. as petitions for prohibition and
mandamus they fail to allege, much less
show, lack or excess of jurisdiction, or grave abuse of
jurisdiction on the part of "any tribunal,
corporation, board, officer or person whether exercising
judicial, quasi-judicial or ministerial functions,"
which Rule 65 of the Rules of Court requires to be alleged and
proven before the extra-ordinary
writ of prohibition may be issued; 3. petitioners have no legal
standing; 4. they may not be
treated as quo warranto because a plea for quo warranto
must be commenced: (a) by the solicitor
general, (b) by a public prosecutor, and (c) by "a person
claiming to be entitled to a public office
or position usurped or unlawfully held or exercised by
another." None of the petitioners qualify in
law to commence the action.
Sees. 5-8
The main opinion, written by Justice Puno, gave resignation
from
office as the cause if the permanent vacancy. He anchored his
opinion
mainly on the letter of Estrada and on the diary of Executive
Secretary
Edgardo Angara which was published in the Inquirer. Puno
concluded
with what he called the result of a "totality test":
In sum, we hold that the resignation of the petitioner cannot
be doubted. It was confirmed by his leaving Malacanang. In the
press release containing his final statement: (1) he
acknowledged
the oath-taking of the respondent as President of the Republic
albeit
with reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of
peace
and in order to begin the healing process of our nation. He did
not say he was leaving the Palace due to any kind of inability
and
that he was going to re-assume the presidency as soon as the
disability
disappears; (3) he expressed his gratitude to the people for
the opportunity to serve them. Without doubt, he was referring
to
the past opportunity given him to serve the people as
President;
(4) he assured that he will not shirk from any future challenge
that
may come ahead in the same service of our country.
Petitioner's
reference is to a future challenge after occupying the office of
the
president which he has given up; and (5) he called on this
supporters
to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of
reconciliation
and solidarity could not be attained if he did not give up
the presidency. The press release was petitioner's valedictory,
his
final act of farewell. His presidency is now in the past tense.
Justice Vitug concurred with the resignation theory:
Mr. Estrada imports that he did not resign from the Presidency
because the word "resignation" has not once been embodied in
his letters or said in his statements. I am unable to oblige. The
contemporary
acts of Estrada during those four critical days of January
are evidentce of his intention to relinquish his office. Scarcity
of words may not easily cloak reality and hide true intentions
For Vitug, however, it was not resignation pure and simple:
Abandonment of office is a species of resignation, and it
connotes the giving up of the office although not attended by
the
formalities normally observed in resignation. Abandonment
may
be effected by a positive act or can be the result of an omission,
whether deliberate or not.
Justice Pardo likewise based his opinion on forced resignation:
I concur in the result. In the above cases, the Court decided
to dismiss the petitions. Consequently, the Court effectively
declared
that on January 20, 2001, petitioner has resigned the office
of the president. Thus, then Vice President Gloria Macapagal-
Arroyo succeeded to the presidency in a manner prescribed in
the
Constitution. She is a de jure president. I only wish to add that
petitioner
was "constrained to resign" the office. It has been held that
"resignation is defined as the act of giving up or the act of an
officer
by which he declines his office and renounces the further right
to use it. To constitute a complete and operative act of
resignation,
the officer or employee must show a clear intention to
relinquish or
surrender his position accompanied by the act of
relinquishment."
Petitioner's act of "resignation," however, was done in light of
the
reality that he could no longer exercise the powers and duties
of
the presidency and left "the seat of the presidency of this
county,
for the sake of peace and in order to begin the healing process
of
our nation."
For his part, Justice Mendoza saw it as a case of permanent
disability:
Indeed, the people power movement did not just happen
at the call of some ambitious politicians, military men,
businessmen
and/or prelates. It came about because the people, rightly or
wrongly, believed the allegations of graft and corruption made
by
Luis "Chavit" Singson, Emma Lim, Edgardo Espiritu, and other
witnesses against petitioner. Their testimonies during the
impeachment
trial were all televised and heard by millions of people
throughout the length and breadth of this archipelago. As a
result,
petitioner found himself on January 19, 2001 deserted as most
of
his cabinet members resigned, members of the Armed Forces
of
the Philippines and the Philippine National Police withdrew
their
support of the President, while civil society announced its loss
of
trust and confidence in him. Public office is a public trust.
Petitioner
lost the public's trust and as a consequence remained President
only in name. Having lost the command of the armed forces
and the national police, he found himself vulnerable to threats
of
mayhem.
This is the confession of one who is beaten. After all, the
permanent disability referred to in the Constitution can be
physical,
mental, or moral, rendering the President unable to exercise
Sees. 5-8
the powers and functions of his office. As his close adviser
wrote
in his diary of the final hours of petitioner's presidency:
The President says: "Pagod na pagod na ako. Ayoko
na masyado nang masakit. Pagod na ako sa red tape,
bureaucracy,
intriga." (I am very tired. I don't want any more
of this — it's too painful. I'm tired of the red tape, the
bureaucracy,
the intrigue.)
Angara himself shared this view of petitioner's inability. He
wrote in his diary:
"Let us be realistic," I counter. "The President does
not have the capability to organize a counter-attack. He does
not have the AFP or the Philippine National Police on his
side. He is not only in a comer — he is also down."
This is the clearest proof that petitioner was totally and
permanently
disabled at least as of 11 PM. of Friday, January 19,
2001. Hence, the negotiations for the transfer of power to the
respondent
Vice-President Gloria Macapagal-Arroyo. It belies petitioner's
claim that he was not permanendy disabled but only
temporarily
unable to discharge the powers and duties of his office and
therefore can only be temporarily replaced by respondent
Gloria
Macapagal-Arroyo under Art. VII, §11.
Justice Bellosillo likewise anchored his concurrence on
permanent
disability:
Clearly, permanent disability in the sense it is conceptualized
in the Constitution cannot realistically be given a restrictive
and impractical interpretation as referring only to physical or
mental
incapacity, but must likewise cover other forms of incapacities
of a permanent nature, e.g., functional disability. Indeed, the
end
sought to be achieved in inserting Sec. 8 of Art. VII in the
Constitution
must not be rendered illusory by a strained interpretation
fraught with constitutionally calamitous or absurd
consequences.
The present scenario confronting the Republic had been wisely
foreseen and anticipated by the framers, for after all, the 1987
Constitution was sired by People Power I.
It may be asked: Was petitioner rendered permanendy disabled
as President by the circumstances obtaining at the height of
People Power II as to justify the ascension of Mme. Gloria
Macapagal-
Arroyo as the 14th de jure President of the Republic? So he
was; hence, the assumption of respondent as President.
.5-8 ART. VII - EXECUTIVE DEPARTMENT
I view petitioner's permanent disability from two (2) different
perspectives: objectively and subjectively. From the objective
approach, the following circumstances rendered inutile
petitioner's
administration and powers as Chief Executive: (a) the
refusal of a huge sector of civil society to accept and obey him
as
President; (b) the mass resignation of key cabinet officials
thereby
incapacitating him from performing his duties to execute the
laws
of the land and promote the general welfare, (c) the withdrawal
of
support of the entire armed forces and the national police thus
permanently
paralyzing him from discharging his task of defending
the Constitution, maintaining peace and order and protecting
the
whole Filipino people; (d) the spontaneous acknowledgment by
both Houses of Congress — the Senate represented by the
Senate
President, and the House of Representatives by the Speaker —
of
Mme. Gloria Macapagal-Arroyo as the constitutional successor
to
the Presidency; and, (e) the manifestation of support by the
Papal
Nuncio, doyen of the diplomatic corps, and the recognition and
acceptance
by world governments of the Presidency of Mme. Gloria
Macapagal-Arroyo. By virtue hereof, petitioner has lost all
moral
and legal authority to lead. Without the people, an effectively
functioning
cabinet, the military and the police, with no recognition
from Congress and the international community, petitioner had
absolutely no support from and control of the bureaucracy
from
within and from without. In fact he had no more functioning
government
to speak of. It is in this context that petitioner was deemed
to be absolutely unable to exercise or discharge the powers,
duties
and prerogatives of the Presidency.
The irremediable nature of his disability cannot be doubted.
It is well-nigh inconceivable that there would be a reversal of all
the factors that disabled him. There was nothing in the
withdrawal
of support from the various sectors which would suggest that it
was merely temporary or conditional. On the contrary, the
withdrawal
of support was categorical and unqualified. Certainly, the
factual milieu of this case makes it all the more remote and
very
unlikely that those who have withdrawn their support from
petitioner
would suddenly have a change of heart, intone mea culpa,
and shift back their allegiance to him once again.
From the subjective approach, I am likewise convinced that
petitioner's contemporaneous acts and statements during and
after
the critical episode are eloquent proofs of his implied — but
nevertheless
unequivocal — acknowledgment of the permanence of
his disability.
Sees. 5-8
In a separate opinion, Justice Kapunan disagreed with the
resignation
theory:
To constitute a complete operative resignation of a public
official,
there must be: (1) the intention to relinquish part of the term
and (2) an act of relinquishment. Intent connotes voluntariness
and
freedom of choice. With the impassioned crowd marching
towards
Malacanang Palace and with the military and police no longer
obeying petitioner, he was reduced to abject powerlessness. In
this
sense, he was virtually forced out of the Presidency. If intention
to
resign is a requirement sine qua non for a valid resignation,
then
forced resignation or involuntary resignation, or resignation
under
duress, is no resignation at all.
For this reason, Kapunan preferred to recognize the legitimacy
of
the Arroyo presidency simply as an irreversible fact:
However, I share my colleagues' opinion that respondent
Arroyo
is now the recognized legitimate President. It is an irreversible
fact. She has taken her oath as President before the Chief
Justice
on 20 January 2001. Since then Ms. Arroyo has continuously
discharged the functions of the President. Her assumption into
power and subsequent exercise of the powers and
performance of
the duties attaching to the said position have been acquiesced
in by
the Legislative Branch of government.
The Senate President and the Speaker of the House of
Representatives
executed a Joint Statement of Support and Recognition
of respondent Arroyo as petitioner's constitutional successor.
The Senate and the House of Representatives passed their
respective
Resolutions expressing support to the Arroyo administration.
Congress confirmed the nomination of Senator Teofisto
Guingona,
Jr. as the new Vice-President, thus acknowledging respondent
Arroyo's
assumption to the presidency in a permanent capacity. The
Impeachment Court has resolved that its existence has ceased
by
becoming functus officio in view of petitioner's relinquishment
of
the presidency.
As President, Ms. Arroyo has gained control over all the
executive
departments, bureaus and officers and is the acknowledged
Commander-in-Chief of all the armed forces of the Philippines.
Her administration has, likewise, been recognized by numerous
members of the international community of nations, including
Japan, Australia, Canada, Spain, the United States, the ASEAN
countries, as well as 90 major political parties in Europe, North
America, Asia and Africa. More importantly, a substantial
number
of Filipinos have already acquiesced in her leadership. The
Court
can do no less.
Justice Sandoval-Gutierrez was of a similar view:
It is a cardinal principle in Public Officers Law that a resignation
must be voluntary and willingly. It must also be express and
definite. A resignation even if clear and unequivocal, if made
under
duress, is voidable and may be repudiated.
Nevertheless she concluded:
However, the legality or illegality of petitioner's so called
resignation has been laid to rest by the results that have taken
place. Respondent Arroyo immediately took her oath as
President
of the Republic of the Philippines before Chief Justice Hilario G.
Davide, Jr. On January 24,2001, the House of Representatives
issued
House Resolution No. 175 expressing its full support to her
administration. Likewise, twelve members of the Senate signed
a
Resolution recognizing and expressing support to the new
government
and of President Arroyo. Moreover, the international
community
has likewise recognized the legitimacy of her government.
Under the circumstances, this Court has to declare as a fact
what in fact exists. Respondent Gloria Macapagal-Arroyo is the
de
jure President of the Republic of the Philippines.
Justice Ynares Santiago's separate opinion was mainly a
warning
against the legitimation of "people power." In the end,
however, she
concluded:
While I am against the resort to mob rule as a means of
introducing
change in government, the peculiar circumstances in the
case at bar compel me to agree that respondent Arroyo
rightfully
assumed the presidency as the constitutionally anointed
successor
to the office vacated by petitioner. There was at that time an
urgent
need for the immediate exercise of presidential functions,
powers
and prerogatives. The vacancy in the highest office was created
when petitioner, succumbing to the overwhelming tumult in
the
streets as well as the rapidly successive desertions and
defections
of his cabinet secretaries and military officers, left Malacanang
Palace "for the sake of peace and in order to begin the healing
process of our nation."
Sees. 5-8
The Estrada camp filed a motion for reconsideration which was
decided on April 3,2001. The justices maintained their
respective positions
but, on the matter of resignation, Justice Puno added:
We also reject the contention that petitioner's resignation
was due to duress and an involuntary resignation is no
resignation
at all.
" . . . [I]t has been said that, in determining whether a
given resignation is voluntarily tendered, the element of
voluntariness
is vitiated only when the resignation is submitted
under duress brought on by government action. The threepart
test for such duress has been stated as involving the following
elements: (1) whether one side involuntarily accepted
the other's terms; (2) whether circumstances permitted no
other alternative; and (3) whether such circumstances were
the result of coercive acts of the opposite side. The view has
also been expressed that a resignation may be found
involuntary
if on the totality of the circumstances it appears that
the employer's conduct in requesting resignation effectively
deprived the employer of free choice in the matter. Factors to
be considered, under this test, are: (1) whether the employee
was given some alternative to resignation; (2) whether the
employee understood the nature of the choice he or she was
given; (3) whether the employee was given a reasonable time
in which to choose; and (4) whether he or she was permitted
to select the effective date of resignation. In applying this
totality of the circumstances test, the assessment whether
real alternatives were offered must be gauged by an objective
standard rather than by the employee's purely subjective
evaluation; that the employee may perceive his or her only
option to be resignation — for example, because of concerns
about his or her reputation — is irrelevant. Similarly, the
mere fact that the choice is between comparably unpleasant
alternative — for example, resignation or facing disciplinary
charges — does not of itself establish that a resignation was
induced by duress or coercion, and was therefore involuntary.
This is so even where the only alternative to resignation
is facing possible termination for cause, unless the employer
actually lacked good cause to believe that grounds for
termination
existed. In this regard it has also been said that a resignation
resulting from a choice between resigning or facing
proceedings for dismissal is not tantamount to discharge by
coercion without procedural view if the employee is given
Sees.5-8 ART. VII - EXECUTIVE DEPARTMENT 857
sufficient time and opportunity for deliberation of the choice
posed. Furthermore, a resignation by an officer charged
with misconduct is not given under duress, though the
appropriate
authority has already determined that the officer's
alternative is termination, where such authority has the legal
authority to terminate the officer's employment under the
particular circumstances, since it is not duress to threaten to
do what one has the legal right to do, or to threaten to take
any measure authorized by law and the circumstances of the
case."38
In the cases at bar, petitioner had several options available
to him other than resignation. He proposed to the holding of
snap
elections. He transmitted to the Congress a written declaration
of
temporary inability. He could not claim he was forced to resign
because
immediately before he left Malacanang, he asked Secretary
Angara: "Ed, aalis na ba ako?" which implies that he still has a
choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign.
But it is difficult to believe that the pressure completely vitiated
the voluntariness of the petitioner's resignation. The
Malacanang
ground was then fully protected by the Presidential Security
Guard
armed with tanks and high-powered weapons. The then Chief
of
Staff, General Angelo Reyes, and other military officers were in
Malacanang to assure that no harm would befall the petitioner
as
he left the Palace. Indeed, no harm, not even a scratch, was
suffered
by the petitioner, the members of his family and his Cabinet
who stuck it out with him in his last hours. Petitioner's
entourage
was even able to detour safely to the Municipal Hall of San Juan
and bade goodbye to his followers before finally going to his
residence
in Polk Street, Greenhills. The only incident before the
petitioner
left the Palace was the stone throwing between a small
group of pro- and anti-Erap rallyists which resulted in minor
injuries
to a few of them. Certainly, there were no tanks that rumbled
through the Palace, no attack planes that flew over the
presidential
residence, no shooting, no large scale violence, except verbal
violence, to justify the conclusion that petitioner was coerced
to
resign.
In sum, three justices (Puno, Vitug and Pardo) accepted some
form of resignation; two justices (Mendoza and Bellosillo) saw
perma-
'63C Am Jur 2d Public Officers and Employees, Section 158.
Sees. 9-10
nent disability; three justices (Kapunan, Ynares-Santiago, and
Sandoval
Gutierrez) accepted the presidency of Arroyo as an irreversible
fact.
Five justices (Quisumbing, Melo, Buena, de Leon and Gonzaga-
Reyes)
signed the decision without expressing any opinion. Davide and
Panganiban
abstained. In the light of all this, it is not clear what doctrine
was established by the decision.
SEC. 9. WHENEVER THERE IS A VACANCY IN THE OFFICE OF THE
VICE-PRESIDENT DURING THE TERM FOR WHICH HE WAS
ELECTED,
THE PRESIDENT SHALL NOMINATE A VICE-PRESIDENT FROM
AMONG
THE MEMBERS OF THE SENATE AND THE HOUSE OF
REPRESENTATIVES
WHO SHALL ASSUME OFFICE UPON CONFIRMATION BY A
MAJORITY
VOTE OF ALL THE MEMBERS OF BOTH HOUSES OF THE
CONGRESS,
VOTING SEPARATELY.
1. Vacancy in the office of Vice-President.
Section 9 is a new rule. The President is authorized to nominate
a
member of Congress from either the Senate or the House of
Representatives
to fill a vacated office of the Vice-President. For the nomination
to
be effective, it must be confirmed by a majority vote of all the
members
of both Houses voting separately. An attempt to limit the
choice of the
President to members of the Senate, on the argument that
Senators are
elected at large, was defeated on the counter argument that
the field
of choice should not be restricted to the twenty-four members
of the
Senate.3 9
Upon the ascension of Vice-President Gloria Macapagal-Arroyo
to the presidency, she nominated Senator Teofisto Guingona,
Jr., as
Vice-President, and Congress concurred.
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. T H E BILL CALLING SUCH SPECIAL ELECTION SHALL
BE
DEEMED CERTIFIED UNDER PARAGRAPH 2, SECTION 2 6 ,
ARTICLE VI OF
"II RECORD at 442.
THIS CONSTITUTION AND SHALL BECOME LAW UPON ITS
APPROVAL ON
THIRD READING BY THE CONGRESS. APPROPRIATIONS FOR THE
SPECIAL
ELECTION SHALL BE CHARGED AGAINST ANY CURRENT
APPROPRIATIONS
AND SHALL BE EXEMPT FROM THE REQUIREMENTS OF
PARAGRAPH 4,
SECTION 2 5 , ARTICLE VI OF THIS CONSTITUTION. THE
CONVENING
OF THE CONGRESS CANNOT BE SUSPENDED NOR THE SPECIAL
ELECTION
POSTPONED. N O SPECIAL ELECTION SHALL BE CALLED IF THE
VACANCY
OCCURS WITHIN EIGHTEEN MONTHS BEFORE THE DATE OF THE
NEXT
PRESIDENTIAL ELECTION.
1. Vacancy in both the presidency and vice-presidency.
Section 10 is another new rule. It deals with the rather rare
probability
of having a vacancy in both the presidency and vice-presidency.
SEC. 11. WHENEVER THE PRESIDENT TRANSMITS TO THE
PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE
HOUSE OF
REPRESENTATIVES HIS WRITTEN DECLARATION THAT HE IS
UNABLE TO
DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, AND
UNTIL HE
TRANSMITS TO THEM A WRITTEN DECLARATION TO THE
CONTRARY,
SUCH POWERS AND DUTIES SHALL BE DISCHARGED BY THE
VICEPRESIDENT
AS ACTING PRESIDENT.
WHENEVER A MAJORITY OF ALL THE MEMBERS OF THE
CABINET
TRANSMIT TO THE PRESIDENT OF THE SENATE AND TO THE
SPEAKER OF
THE HOUSE OF REPRESENTATIVES THEIR WRITTEN
DECLARATION THAT
THE PRESIDENT IS UNABLE TO DISCHARGE THE POWERS AND
DUKES OF
HIS OFFICE, THE VICE-PRESIDENT SHALL IMMEDIATELY ASSUME
THE
POWERS AND DUTIES OF THE OFFICE AS ACTING PRESIDENT.
THEREAFTER, WHEN THE PRESIDENT TRANSMITS TO THE
PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE
HOUSE OF
REPRESENTATIVES HIS WRITTEN DECLARATION THAT NO
INABILITY
EXISTS, HE SHALL REASSUME THE POWERS AND DUTIES OF HIS
OFFICE.
MEANWHILE, SHOULD A MAJORITY OF ALL THE MEMBERS OF
THE
CABINET TRANSMIT WITHES FIVE DAYS TO THE PRESIDENT OF
THE
SENATE AND TO THE SPEAKER OF THE HOUSE OF
REPRESENTATIVES
THEIR WRITTEN DECLARATION THAT THE PRESIDENT IS UNABLE
TO
DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE
CONGRESS
SHALL DECIDE THE ISSUE. FOR THAT PURPOSE, THE CONGRESS
SHALL
CONVENE, D7 IT IS NOT ES SESSION, WITHES FORTY-EIGHT
HOURS, IN
ACCORDANCE WITH ITS RULES AND WITHOUT NEED OF CALL.
IF THE CONGRESS, WITHIN TEN DAYS AFTER RECEIPT OF THE
LAST WRITTEN DECLARATION, OR, IF NOT ES SESSION, WITHIN
TWELVE
Sec.11
DAYS AFTER IT IS REQUIRED TO ASSEMBLE, DETERMINES BY A
TWOTHIRDS
VOTE OF BOTH HOUSES, VOTING SEPARATELY, THAT THE
PRESIDENT IS UNABLE TO DISCHARGE THE POWERS AND
DUTIES OF HIS
OFFICE, THE VICE-PRESIDENT SHALL ACT AS PRESIDENT;
OTHERWISE,
THE PRESIDENT SHALL CONTINUE EXERCISING THE POWERS
AND DUTIES
OF HIS OFFICE.
1. Incapacity of the President.
Section 11 deals with the thomy issue of deciding whether the
President is still able to perform his functions or not. If the
President
is able to make the decision and is willing to declare himself
disabled,
he certainly has the power to declare so. This power was
recognized in
the agreement of March 1958 between President Eisenhower
and Vice-
President Nixon which stated that "In the event of inability the
President
would — if possible — so inform the Vice President" who would
then exercise "the powers and duties until the inability had
ended." But
if the President himself is unable to make the decision or,
though able,
is unwilling to admit his incapacity, can somebody else decide
for him?
There was no clear answer to this question in previous
constitutions.
Section 11 attempts to supply the answer. It was tested in
Estrada v. Arroyo
already partly discussed above under Section 8.
It seems that after his press release quoted under Section 8,
Estrada
had an afterthough and wrote the following letter addressed to
the
Speaker of the House of Representatives and to the Senate
President.
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By
operation
of law and the Constitution, the Vice-President shall be the
Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
Thus the question: Was his merely a case of temporary
disability?
In answering this question, the Court started with a recitation
of
facts: (1) The letter was sent to Congress on January 29, 2001;
(2) Unaware
of the letter, Arroyo took her oath as President; (3) Both Senate
and House of Representatives passed resolutions supporting
Arroyo as
President; ( 4 ) The Senate passed a resolution declaring the
impeachinctus
officio; (5) The Senate also confirmed the nomination <
) Guingona, Jr. as Vice-President in place of Arroyo; (6) Bol
started sending bills to be signed by Arroyo as President. In tl
all these the Court concluded:
What leaps to the eye from these irrefutable facts is that both
mses of Congress have recognized respondent Arroyo as the
esident. Implicitly clear in that recognition is the premise that
e inability of petitioner Estrada is no longer temporary.
Congress
s clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review
s claim of temporary inability of petitioner Estrada and thereter
revise the decision of both Houses of Congress recognizing
spondent Arroyo as President of the Philippines. Following
7aida
v. Cuenco,40 we hold that this Court cannot "exercise its judid
power for this is an issue "in regard to which full discretionary
thority has been delegated to the Legislative ... branch of the
ivernment." Or to use the language in Baker vs. Carr,*' there is
a
;xtually demonstrable constitutional commitment of the issue
to
:oordinate political department or a lack of judicially discoverle
and manageable standards for resolving it." Clearly, the Court
nnot pass upon petitioner's claim of inability to discharge the
»wers and duties of the presidency. The question is political in
iture and addressed solely to Congress by constitutional fiat. It
a political issue which cannot be decided by this Court without
uisgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not re-
Em, still, he cannot successfully claim that he is a President on
ave on the ground that he is merely unable to govern
temporar-
/. That claim has been laid to rest by Congress and the decision
at respondent Arroyo is the de jure President made by a co-
equal
anch of government cannot be reviewed by this Court.
SEC. 12. IN CASE OF SERIOUS ILLNESS OF THE PRESIDENT,
4E PUBLIC SHALL BE INFORMED OF THE STATE OF HIS HEALTH.
THE
[EMBERS OF THE CABINET IN CHARGE OF NATIONAL SECURITY
AND
DREIGN RELATIONS AND THE CHIEF OF STAFF OF THE ARMED
FORCES
F THE PHILIPPINES, SHALL NOT BE DENIED ACCESS TO THE
PRESIDENT
URING SUCH ILLNESS.
103 Phil 1051,1067(1957).
369U.S. 186.
862 THE 1987 CONSTrrUTION
Sec.13
1. Serious illness of the President.
Illness that results in incapacity to perform the functions of the
presidency is dealt with in Section 11. Section 12 presumably
deals
with serious illness that is not incapacitating because access to
him is
kept open for Cabinet members in charge of the national
security and
foreign relations. The obvious purpose of such access is to allow
the
President to make the important decisions in those areas of
government;
which suggests that this contemplates a situation where the
President is
still able.
The purpose of the first sentence is to guarantee the people's
right
to know about the state of the President's health, contrary to
secretive
practice in totalitarian governments.42
SEC. 13. THE PRESIDENT, VICE-PRESIDENT, THE MEMBERS
OF THE CABINET, AND THEIR DEPUTIES OR ASSISTANTS SHALL
NOT,
UNLESS OTHERWISE PROVIDED IN THIS CONSTITUTION, HOLD
ANY
OTHER OFFICE OR EMPLOYMENT DURING THEIR TENURE. THEY
SHALL
NOT, DURING SAID TENURE, DIRECTLY OR INDIRECTLY
PRACTICE ANY
OTHER PROFESSION, PARTICIPATE IN ANY BUSINESS, OR BE
FINANCIALLY
INTERESTED IN ANY CONTRACT WITH, OR IN ANY FRANCHISE,
OR SPECIAL
PRIVILEGE GRANTED BY THE GOVERNMENT OR ANY
SUBDIVISION,
AGENCY, OR INSTRUMENTALITY THEREOF, INCLUDING
GOVERNMENTOWNED
OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES.
THEY SHALL STRICTLY AVOID CONFLICT OF INTEREST IN THE
CONDUCT
OF THEIR OFFICE.
THE SPOUSE AND RELATIVES BY CONSANGUINITY OR
AFFINITY WITHIN THE FOURTH CIVIL DEGREE OF THE
PRESIDENT
SHALL NOT DURING HIS TENURE BE APPOINTED AS MEMBERS
OF
THE CONSTITUTIONAL COMMISSIONS, OR THE OFFICE OF THE
OMBUDSMAN, OR AS SECRETARIES, UNDERSECRETARIES,
CHAIRMEN
OR HEADS OF BUREAUS OR OFFICES, INCLUDING
GOVERNMENT-OWNED
OR CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES.
1. Prohibition against holding another office or employment.
Section 13 prohibits the President, the Vice-President, the
members
of the Cabinet and their deputies or assistants from holding any
4 2W.at457.
fice or employment during their tenure.4 3 Commissioner David
:o modify this absolute-sounding rule by adding "unless othei
>vided in this Constitution." Davide said that he had specificall
exceptions which might be made by the Constitution itself suci
n favor of the Vice-President who can be made a member of th
. However, satisfied by the explanation that a particular excep
de in favor of the Vice-President would already be understooi
ception to the general rule in Section 13, Davide did not insis
mendment.4 4 Thus, it was that Section 13 was approved on
sec
third reading without the phrase "unless otherwise provided ii
istitution." The phrase crept into Section 13 when it was intro
y Cornrnissioner Azcuna without explanation or debate in th
>f making the report for the Committee on Style.4 5
Conceivablj
my new discussion on the subject and since the Committee oi
d not have the authority to alter the sense of previously ap
provisions, the intent was to make explicit the original limitei
F Commissioner Davide.
:erest in this prohibition was aroused by Executive Order No
ued during the last days of enjoyment of legislative power b;
it Aquino, which took the position that the phrase "unless oth
)rovided in this Constitution" encompassed not just exception
l the Constitution itself but also the broad exception made fo
ive officials in general found in Article IX, B, Section 7. Th<
paragraph of this provision says: "Unless otherwise allowed b}
)y the primary functions of his position, no appointive officia
•Id any other office or employment in the Government or an)
sion, agency or instrumentality thereof, including government
or controlled corporations or their subsidiaries." On this basis
ve Order No. 284 said:
SECTION 1. Even if allowed by law or by the ordinary func-
>ns of his position, a member of the Cabinet, undersecretary
or
sistant secretary or other appointive officials of the Executive
apartment may, in addition to his primary position, hold not
more
an two positions in the government and government
corporatie
Committee proposal included chiefs of bureaus or offices and
their assistants, bul
lg their level of pay, this was found too harsh. Id. at 402-3,533-
4.
d. at 542.
/ RECORD 730.
Sec.13
tions and receive the corresponding compensation therefor;
Provided,
That this limitation shall not apply to ad hoc bodies or
committees,
or to boards, councils or bodies of which the President is
the Chairman.
SECTION 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official of the Executive
Department
holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary
position.
SECTION 3. In order to fully protect the interest of the
government
in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such
corporation
should either be a secretary, or undersecretary, or assistant
secretary.
The Civil Service provision was discussed ahead of the article on
the executive department; but Cornmissioner Maambong
already noted
that there was no symmetry between the Civil Service
prohibitions,
originally found in the General Provisions, and the anticipated
report on
the executive department. Commenting on such discrepancy,
Commissioner
Foz said: "We actually have to be stricter with the President
and
the members of the Cabinet because they exercise more
powers and,
therefore, more checks and restraints on them are called for
because
there is more possibility of abuse in their case."4 6
Executive Order 284 was challenged in CiviV Liberties Union v.
Executive Secretary."1 The Court ruled:48
But what is indeed significant is the fact that although Section
7, Article IX-B already contains a blanket prohibition against
the holding of multiple offices or employment in the
government
subsuming both elective and appointive public officials, the
Constitutional
Commission should see it fit to formulate another provision,
Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and
assistants
from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
"I RECORD 553. More will be said about this under Article LX,
B, Section 7.
"194 SCRA 317 (1991).
"M. at 327-328.
13 ART. VII - EXECUTIVE DEPARTMENT
Evidently, from this move as well as in the different
phraseologies
of the constitutional provisions in question, the intent of
the framers of the Constitution was to impose a stricter
prohibition
on the President and his official family in so far as holding
other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the Constitution
on
the disqualifications of certain public officials or employees
from
holding other offices or employment. Under Section 13, Article
VI, "(N)o Senator or Member of the House of Representative
may
hold any other office or employment in the Government...."
Under
Section 5(4), Article XVI, "(N)o member of the armed forces
in the active service shall, at any time, be appointed in any
capacity
to a civilian position in the Government, including
governmentowned
or controlled corporations or any of their subsidiaries."
Even Section 7(2), Article IX-B, relied upon by respondents
provides
"(U)nless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government."
It is quite notable that in all these provisions on
disqualifications
to hold other office or employment, the prohibition pertains
to an office or employment in the government and
governmentowned
or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states
that
"(T)he President, Vice-President, the Members of the Cabinet,
and
their deputies or assistants shall not, unless otherwise provided
in
this Constitution, hold any other office or employment during
their
tenure." In the latter provision, the disqualification is absolute,
not
being qualified by the phrase "in the Government." The
prohibition
imposed on the President and his official family is therefore
all-embracing and covers both public and private office or
employment.
But the Court also added:49
To reiterate, the prohibition under Section 13, Article VII
is not to be interpreted as covering positions held without
additional
compensation in ex-officio capacities as provided by law and
as required by the primary functions of the concerned official's
4 ,W.at333.
OF THE REPUBLIC O F THE PHILIPPINES
Sec.13
office. The term ex-ojficio means "from office; by virtue of
office."
It refers to an "authority derived from official character
merely,
not expressly conferred upon the individual character, but
rather
annexed to the official position." Ex-ojficio likewise denotes
an
"act done in an official character, or as a consequence of
office,
and without any other appointment or authority than that
conferred
by the office."50 An ex-ojficio member of a board is one who
is a
member by virtue of his title to a certain office, and without
further
warrant or appointment.5' To illustrate, by express provision
of law, the Secretary of Transportation and Communications is
the
ex-ojficio Chairman of the Board of the Philippine Ports
Authority,
and the Light Rail Transit Authority.52
In sum, therefore, except for the Vice-President who may be
appointed to the Cabinet, and the Secretary of Justice who is
made
ex officio member of the Judicial and Bar Council, the officials
enumerated in Section 13 may not hold another office. But they
may be
given additional functions which are intimately related to their
primary
office. Such conferment of additional functions does not
constitute a
new appointment. As the Court had earlier said in Rafael v.
Embroidery
& Apparel Control Board:" " . . . we do not think that, because
additional
duties germane to the offices already held by them were
devolved upon
them by the Act, it was necessary that they should again be
appointed
by the President— It cannot be doubted, and it has frequently
been the
case, that Congress may increase the power and duties of an
existing
office without thereby rendering it necessary that the
incumbent should
be again nominated and appointed."
Incidentally, when an Undersecretary sits for a Secretary in a
function
for which the Secretary may not receive additional
compensation,
the prohibition on the Secretary also applies to the
Undersecretary.54
It should also be noted that the stricter prohibition is imposed
on
"members of the Cabinet." It therefore applies not just to
department
secretaries, but to any one who is a member of the Cabinet
even if he or
she is not a head of a department.
"BLACK'S LAW DICTIONARY, p. 516; 15A Words and Phrases,
p. 392.
5 115A Words and Phrases, p. 392.
"Sec. 1, E.O. No. 210.
"21 SCRA 336, 342 (September 29, 1967), quoting Shoemaker
v. United States, 147 U.S.
170,185.
"Bilonio v. COA, G.R. No. 147392, March 12, 2004.
Sec.13 ART. VII - EXECUTIVE DEPARTMENT 867
The case of the appointment of Vice-President as Chairman of
the
Presidential Anti-Crime Commission needs to be mentioned
here. He
was not appointed to a Cabinet position nor to a position
constituting an
intimate element of his duties as Vice-President. His only duty
as Vice-
President is to be available to assume the presidency should a
vacancy
arise. Clearly, therefore, it would seem to be covered by the
prohibition
of Section 13. But the validity of his appointment was never
challenged.
The only possible explanation for the tolerance of the situation
must be
the assumption that the prohibition is meant to prevent the
enhancement
of the powers of one who is already powerful or busy with
other duties.
The Vice-President, by the nature of his office, is neither
powerful nor
busy.
2. Other prohibitions.
The second and third sentences of Section 13 say: "They shall
not,
during said tenure, directly or indirectly practice any other
profession,
participate in any business, or be financially interested in any
contract
with, or in any franchise, or special privilege granted by the
Government
or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
They shall strictly avoid conflict of interest in the conduct of
their office."
Prohibited participation in a contract with the government can
include being a member of family corporation which has
dealings with
the government.55
There are two reasons for these prohibitions, reasons which
also
apply to the first sentence: (1) to avoid conflict of interest and
(2) to
force the officials to devote full time to their official duties.56
The second paragraph says: "The spouse and relatives by
consanguinity
or affinity within the fourth civil degree of the President shall
not during his tenure be appointed as Members of the
Constitutional
Commissions, or the Office of the Ombudsman, or as
Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices,
including
government-owned or controlled corporations and their
subsidiaries."
This is essentially an anti-nepotism provision which even in
statutes
"Doromal v. Sandiganbayan, 177 SCRA 354 (1989).
"II RECORD 402-3.
Sees. 14-15
normally goes up to the fourth degree of consanguinity or
affinity.57 If
fourth degree relatives, however, are already in office when a
President
assumes office, the relatives are not thereby ousted from their
positions.
What is prohibited is appointment or reappointment and not
uninterrupted
continuance in office.59
Beyond the constitutional prohibitions there also is the rule on
incompatible offices. Thus, since the Chief Presidential Legal
Counsel
has the duty of giving independent and impartial legal advice
on the actions
of the heads of various executive departments and agencies
and to
review investigations involving other presidential appointees,
he may
not occupy a position in any of the offices whose performance
he must
review. Such would involve occupying incompatible positions.
Thus
he cannot be PCGG Chairman and at the same time head of the
PCGG
since the PCGG answers to the President.59
SEC. 14. APPOINTMENTS EXTENDED BY AN ACTING PRESIDENT
SHALL REMAIN EFFECTIVE, UNLESS REVOKED BY THE ELECTED
PRESIDENT
WITHIN NINETY DAYS FROM HIS ASSUMPTION OR RE
ASSUMPTION
OF OFFICE.
SEC. 15. Two MONTHS IMMEDIATELY BEFORE THE NEXT
PRESIDENTIAL ELECTIONS AND UP TO THE END OF HIS TERM, A
PRESIDENT
OR ACTING PRESIDENT SHALL NOT MAKE APPOINTMENTS,
EXCEPT TEMPORARY APPOINTMENTS TO EXECUTIVE POSITIONS
WHEN
CONTINUED VACANCIES THEREIN WILL PREJUDICE PUBLIC
SERVICE OR
ENDANGER PUBLIC SAFETY.
1. Midnight appointments.
The prohibition found in this section applies even to
appointments
to the judiciary. The provision in Article VIII which requires the
President
to make appointments to the judiciary within ninety days
applies
only to the period not covered by Article VII, Section 15.60
It should also be noted that this provision is a limitation on the
President's power of appointment. There is no similar
;limitation on the
power of appointment of local executives.61
5 7W.at403,541.
"Id. at 538-540.
"Public Interest Group v. Elma, G.R. No. 138965, June 30,
2006.
"In re: Appointment of Valenzuela, AM 98-0501 SC, November
9,1998.
"De la Rama v. Court of Appeals, G.R. No. 131136, February
28,2001.
SEC. 16. THE PRESIDENT SHALL NOMINATE AND, WITH THE
CONSENT OF THE COMMISSION ON APPOINTMENTS, APPOINT
THE
HEADS OF THE EXECUTIVE DEPARTMENTS, AMBASSADORS,
OTHER
PUBLIC MINISTERS AND CONSULS, OR OFFICERS OF THE ARMED
FORCES
FROM THE RANK OF COLONEL OR NAVAL CAPTAIN, AND OTHER
OFFICERS
WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION,
HE SHALL ALSO APPOINT ALL OTHER OFFICERS OF THE
GOVERNMENT
WHOSE APPOINTMENTS ARE NOT OTHERWISE PROVIDED FOR
BV LAW,
AND THOSE WHOM HE MAY BE AUTHORIZED BY LAW TO
APPOINT. T HE
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.
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 DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS
OR UNTIL
THE NEXT ADJOURNMENT OF THE CONGRESS.
1. Nature of the appointing power.
An argument drawn from the animal-plant-mineral trilogy was
used by the Supreme Court in classifying the nature of the
power to
appoint. In Government v. Springer,62 the Supreme Court said
that since
the power to appoint is neither legislative nor judicial, it must
be executive.
While this approach may seem facetious, it is really one that is
made inevitable by the nature of a tripartite form of
government. One
can fairly define legislative power as the power to make laws
and judicial
power as the power to decide cases and controversies and
thereby
arrive at a fairly certain confinement of these two powers. But
executive
power, which includes the power to "take care that the laws be
faithfully
executed" — a phrase used in the 1935 Constitution6 3 and
also in
Section 17, Article VII of the 1987 Constitution — is not so
easily cabined.
Like charity, it can cover a multitude of sins. Hence, what
Government
v. Springer really implies is that whatever power is not properly
legislative or judicial must be attributed to the executive. Thus
could
Concepcion v. Paredes6* say that "Appointment to office is
intrinsically
"50 Phil. 259,283 (1927).
"Article VII, Section 10(1). It did not appear in the 1973
Constitution.
"42 Phil. 599,603 (1921).

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