AUGUST 15 JRGL
favorable recommendation by the Comelec.
Revised Rules on Administrative Cases in the Civil Service
We’ve already mentioned Gonzales vs Office of the President
(2012). We will see what will happen in the impending dismissal
complaint overhaul that the Ombudsman because the newly
appointed ombudsman has publicly declared that he will
implement the decision. This is contrary to the 2014 ruling of
Gonzales vs. office of the President.
Gonzales III vs. Office of the President (2014)
Section 8(2) of RA No. 6770 vesting... disciplinary authority in
the President... over the Deputy Ombudsman violates... the
independence of the Office of the Ombudsman and is thus...
unconstitutional... we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose
own alter egos and officials in the Executive Department are
subject to the Ombudsman's disciplinary authority, cannot but
seriously place at risk the... independence of the Office of the
Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them
tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the... constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly
did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of
the Ombudsman, but inevitably with the principle of checks
and... balances that the creation of an Ombudsman office seeks
to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as... independent
as she is, if only because they are subject to pressures and
controls external to her Office. This need for complete trust is
true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major
problem... for the government. For these reasons, Section 8(2)
of RA No. 6770 (providing that the President may remove a
Deputy Ombudsman) should be declared void.
he statements made by Commissioner Monsod emphasized a
very logical principle: the Executive power to remove and
discipline key officials of the Office of the Ombudsman, or to
exercise any power over them, would result in an absurd
situation wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of the very
persons who can remove or suspend its members.
EXECUTIVE CLEMENCY
The pardoning powers of the President is largely executive,
discretionary, final and unappealable. If there is no constitutional
provision or limitation violated, the private act of the President
though official, which is the grant of pardon or clemency is
considered to be final and unappealable.
The limitations as provided for in the Constitution are the
following:
1. There must have to be conviction by final judgment
If it is in relation to an election offense, there must be
2. It cannot be done in cases of impeachement and there are
no other constitutional limitations on the exercise of such
power.
In the case of Risos-Vidal vs. Comelec, the SC had the occasion to
mention one doctrine, the doctrine of non diminution or non
impairment of the presidents power of pardon by acts of
Congress. Simply there can be no legislation which would limit the
power of the president to extend executive clemency because only
the constitution can provide for such limitation. In the said case,
this was the pardon extended to former president Estrada by Gloria
Macapal Arroyo (GMA). It’s for the conviction for plunder and part
of the discussion there wass whether the grant of pardon was
conditional or absolute. Cited by petitioner was one of the
preambular clause, the third one saying that president Estrada
affirmed that he will no longer stay in the public office. So the
question was, in running for an elective position, did he violate the
conditions of pardon. SC said that the preambular clause - the
whereas clauses of the statute, the grant of pardon being one, is
not considered to be part of the operative fact or act of the grant
of pardon. The recitation of the grant of pardon stating that he is
restored to all his political and civil rights is an indication that the
grant was absolute and so, he was not disqualified to run.
Risos-Vidal vs. Comelec
In September 12, 2007, the Sandiganbayan convicted former
President Estrada for the crime of plunder and was sentenced
to suffer the penalty of Reclusion Perpetua and the accessory
penalties of civil interdiction during the period of sentence and
perpetual absolute disqualification. On October 25, 2007,
however, former President Gloria Macapagal Arroyo extended
executive clemency, by way of pardon, to former President
Estrada, explicitly stating that he is restored to his civil and
political rights.
In 2009, Estrada filed a Certificate of Candidacy for the position
of President. None of the disqualification cases against him
prospered but he only placed second in the results.
In 2012, Estrada once more ventured into the political arena,
and filed a Certificate of Candidacy, this time vying for a local
elective post, that of the Mayor of the City of Manila.
Petitioner Risos-Vidal filed a Petition for Disqualification against
Estrada before the Comelec stating that Estrada is disqualified
to run for public office because of his conviction for plunder
sentencing him to suffer the penalty of reclusion perpetua with
perpetual absolute disqualification. Petitioner relied on Section
40 of the Local Government Code (LGC), in relation to Section
12 of the Omnibus Election Code (OEC).
The Comelec dismissed the petition for disqualification holding
that President Estrada’s right to seek public office has been
effectively restored by the pardon vested upon him by former
President Gloria M. Arroyo.
Estrada won the mayoralty race in May 13, 2013 elections.
Alfredo Lim, who garnered the second highest votes,
intervened and sought to disqualify Estrada for the same
ground as the contention of Risos-Vidal and praying that he be
proclaimed as Mayor of Manila.
Issue: May former President Joseph Estrada run for public office
despite having been convicted of the crime of plunder which
carried an accessory penalty of perpetual disqualification to
hold public office?
Held: Yes. Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes
the right to seek public elective office, the focal point of this
controversy. The wording of the pardon extended to former
President Estrada is complete, unambiguous, and unqualified.
It is likewise unfettered by Articles 36 and 41 of the Revised
Penal Code. The only reasonable, objective, and constitutional
interpretation of the language of the pardon is that the same in
fact conforms to Articles 36 and 41 of the Revised Penal Code.
It is insisted that, since a textual examination of the pardon
given to and accepted by former President Estrada does not
actually specify which political right is restored, it could be
inferred that former President Arroyo did not deliberately
intend to restore former President Estrada’s rights of suffrage
and to hold public office, orto otherwise remit the penalty of
perpetual absolute disqualification. Even if her intention was
the contrary, the same cannot be upheld based on the pardon’s
text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and
Section 5 of Article IX-C, provides that the President of the
Philippines possesses the power to grant pardons, along with
other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable
recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that
the only instances in which the President may not extend
pardon remain to be in: (1) impeachment cases; (2) cases that
have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in
which there was no favorable recommendation coming from
the COMELEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the
pardoning power of the President.
The third preambular clause of the pardon did not operate to
make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada
has publicly committed to no longer seek any elective position
or office," neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.
This is especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the unqualified
use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential part
of an act as it is an introductory or preparatory clause that
explains the reasons for the enactment, usually introduced by
the word "whereas." Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the
operative language of the statute. In this case, the whereas
clause at issue is not an integral part of the decree of the
pardon, and therefore, does not by itself alone operate to make
the pardon conditional or to make its effectivity contingent
upon the fulfilment of the aforementioned commitment nor to
limit the scope of the pardon.
Besides, a preamble is really not an integral part of a law. It is
merely an introduction to show its intent or purposes. It cannot
be the origin of rights and obligations. Where the meaning of a
statute is clear and unambiguous, the preamble can neither
expand nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the same
in the text of the pardon itself. Since former President Arroyo
did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular
clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.
AMNESTY VS. PARDON
The case of Magdalo vs. Comelec discusses the distinction between
Amnesty and pardon. Amnesty is an act of the sovereign that’s why
the Constitution requires that section 19 requires prior
concurrence of congress, it’s not a private act of the president
alone unlike a pardon.
Magdalo vs. Comelec
Amnesty commonly denotes a general pardon to rebels for
their treason or other high political offenses, or the forgiveness
which one sovereign grants to the subjects of another, who
have offended, by some breach, the law of nations. Amnesty
looks backward, and abolishes and puts into oblivion, the
offense itself; it so overlooks and obliterates the offense with
which he is charged, that the person released by amnesty
stands before the law precisely as though he had committed
no offense.
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person
pardoned, because the courts take no notice thereof;
while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the courts
should take judicial notice.
Amnesty - any person can claim coverage or benefit under the
amnesty proclamation regardless of the stage whether he has not
yet been arrested, been arrested, tried, convicted or serving
sentence provided one is covered by the amnesty proclamation,
one can claim amnesty. In pardon, there must have to be a
conviction by final judgment. You all remember that case of People
vs. Salle Jr where the SC traced the history of the requirement of
conviction by final judgment. In the original text of the ‘35
Constitution, this followed the American condition that there has
or there is no requirement of conviction, only an act of commission.
Once a crime has been committed, a person may be granted
pardon already or executive clemency. In the ‘73 original draft, as
approved, it required conviction by final judgment although even if
it is on appeal provided there has been a conviction by the trial
court, pardon or clemency can be extended. When it was amended
in ‘81, it returned to the American tradition that no conviction
required. In the ‘87, it was restored and the phraseology was
changed, it is now clear that there must have to be judgment of
final conviction meaning there is no appeal pending, there is
service of sentence or one must have applied for probation. In
instances where before under the imposed death penalty, a person
may waive his right to appeal in writing except in instances of death
penalty impositions, a convition is also considered final. When it is
so, then executive clemency can be extended.
People vs. Salle, Jr.
Section 19, Article VII thereof reads as follows:
“Except in cases of impeachment, or as otherwise provided in
this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of the
Congress.”
Where the pardoning power is subject to the limitation
of conviction, it may be exercised at any time
after conviction even if the judgment is on appeal. It is,
ofcourse, entirely different where the requirement is
" final conviction, " as was mandated in the original provision of
Section 14, Article IX of the 1973 Constitution, or "conviction by
final judgment," as presently prescribed in Section 19, Article
VII of the 1987 Constitution. In such a case, no pardon may be
extended before a judgment of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is
seasonably perfected, (b) when the accused commences to
serve the sentence, (c) when the right to appeal is expressly
waived in writing, except where the death penalty was imposed
by the trial court, and (d) when the accused applies for
probation, thereby waiving his right to appeal. Where the
judgment of conviction is still pending appeal and has not yet
therefore attained finality, as in the instant case,
executive clemency may not yet be granted to the appellant.
The "conviction by final judgment" limitation under Section
19, Article VII of the present Constitution prohibits the grant
of pardon, whether full or conditional, to an accused during the
pendency of his appeal from his conviction by the trial
court. Any application therefor, if one is made, should not be
acted upon or the process toward its grant should not be begun
unless the appeal is withdrawn. Accordingly, the agencies or
instrumentalities of the Government concerned must require
proof from the accused that he has not appealed from
his conviction or that he has withdrawn his appeal. Such proof
may be in the form of a certification issued by the trial court or
the appellate court, as the case may be.
The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or
parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable. Accordingly, those
in custody of the accused must not solely rely on the pardon as
a basis for the release of the accused from confinement.
WHEREFORE, counsel for accused-appellant Ricky Mengote y
Cuntado is hereby given thirty (30) days from notice hereof
within which to secure from the latter the withdrawal of his
appeal and to submit it to this Court. The conditional pardon
granted the said appellant shall be deemed to take effect only
upon the grant of such withdrawal. In case of non-compliance
with this Resolution, the Director of the Bureau of Corrections
must exert every possible effort to take back into his custody
the said appellant, for which purpose he may seek the
assistance of the Philippine National Police or the National
Bureau of Investigation.
PARDON VS. PROBATION
You know what probation is, it covers a certain specie of offenses
where the penalty imposable does not exceed 6 years and there is
other requirements of first time offender. The question there is, is
that granted by the president as part of his clemency powers?
Technically it is not, it is granted by the Court upon proper
recommendation of the parole and probation board. But it is also
granted by the executive department but again not granted directly
by the president but upon order of the court.
PARDON VS. PAROLE
Who grants parole? Also the parole and probation board after
minimum service of minimum sentence under the ISL. Not directly
granted by the president.
PARDON VS .AMNESTY (Humana man?)
EFFECTS OF PARDON
 If the pardon is absolute, it restores the person to all his
civil and political rights.
 If it is conditional, a condition must have to be complied
with or satisfied before a person is fully restored to all
his rights civil and political.
Sanctions for violations
There is a separate felony for failing to comply with conditional
pardon or there can be administrative liability by requiring the
accused to serve the remainder if there is a violation of the pardon.
Does pardoning power apply to administrative cases? The old case
of Llamas vs Executive Secretqary is still a good law. It can be
extended to administrative cases but only if the power is with the
president. In administrative cases relating to other branches of the
government which the President does not have any power of
discipline, the president cannot extend pardoning powers or
clemency powers to those administrative held liable in their
respective cases (?).
Llamas vs Executive Secretary Orbos
Ocampo III was the governor of Tarlac Province. Llamas
together with some other complainants filed an administrative
case against Ocampo III for alleged acts constituting graft and
corruption. Ocampo III was found guilty. He was suspended for
office for 90 days hence his vice governor, Llamas, assumed
 office. In not less than 30 days however, Ocampo III returned
with an AO showing that he was pardoned hence he can resume
office without completing the 90 day suspension imposed upon
him.
The petitioner argues that President may grant executive
clemency only in criminal cases. They say that the qualifying
phrase “after conviction by final judgment” applies solely to
criminal cases, and no other law allows the grant of executive
clemency or pardon to anyone who has been “convicted in an
administrative case, allegedly because the word “conviction”
refers only to criminal cases.
ISSUE: WON the President of the Philippines has the power to
grant executive clemency in administrative cases.
HELD: Yes. It is not specified in the constitution whether it may
be considered under criminal or administrative cases. , if the
law does not distinguish, so we must not distinguish. The
Constitution does not distinguish between which cases
executive clemency may be exercised by the President, with the
sole exclusion of impeachment cases. By the same token, if
executive clemency may be exercised only in criminal cases, it
would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19
of the Constitution. Cases of impeachment are automatically
excluded inasmuch as the same do not necessarily involve
criminal offenses.
The do not clearly see any valid and convincing reason why the
President cannot grant executive clemency in administrative
cases. It is the court’s considered view that if the President can
grant reprieves, commutations and pardons, and remit fines
and forfeitures in criminal cases, with much more reason can
she grant executive clemency in administrative cases, which are
clearly less serious than criminal offenses.
The court stressed, however, that when we say the President
can grant executive clemency in administrative cases, we refer
only to all administrative cases in the Executive branch, not in
the Judicial or Legislative branches of the government.
In criminal cases, the quantum of evidence required to convict
an individual is proof beyond reasonable doubt. On the other
hand, in administrative cases, the quantum of evidence
required is mere substantial evidence to support a decision.
COMMANDER IN CHIEF POWER
1 The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
Art VII Section 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty- four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
This refers to the military powers of the president. Section 181 as
we all know is the longest provision in the present constitution
singularly as a result of the effects of the declaration of Martial Law.
The framers of the 1987 Constitution has tried to perceive and
conceive all limitations to avoid repetition of the events of the past.
The case of Lagman vs Exec Secretary is the longest decision now
per report in the SCRA.
There is a listing of the powers which the President can do under
Section 18. The first is referred to as the calling out power.
1. Calling out power
To call out the armed forces to suppress any lawless
violence invasion of.
2. Suspension of the privilege of the writ of habeas corpus
3. Declaration of martial law
In Lagman, the SC said that the listing is not an enumeration of the
sequence of power that the President can exercise. It’s just a listing
based on gravity or graveness of the offense. The SC cannot
quantify nor direct which of these powers the president should or
must exercise in a particular situation. It is not for the President to
exercise calling out first then suspend then declare martial law. It
depends on the calculation of the president based on the exercise
of discretion on whether the conditions are met.
Lagman vs Executive Secretary
Graduation of powers: It refers to hierarchy based on scope
and effect, and not to a sequence/order that the President
must adhere to. Also, the Court cannot calibrate the
President's decision on which among the powers he will avail
of in a given situation.
The President as Commander-in-Chief has three extraordinary
powers: (a) Calling out the armed forces, (b) Suspending the
privilege of the writ of habeas corpus, and (c) Declaring martial
law.
Calling out the armed forces is the most benign and involves
ordinary police action. It is done only when it is necessary to
prevent or suppress lawless violence, invasion, or rebellion. The
only limitations are that the president must act within
constitutional boundaries and not in a manner constituting
grave abuse of discretion.
For both the suspension of the privilege of the writ of habeas
corpus and the declaration of martial law, the president is
sufficiency of the factual basis of the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ
of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to
persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person
thus arrested or detained shall be judicially charged within three days, otherwise
he shall be released.
allowed to resort to these only when there is actual invasion or
rebellion AND public safety requires it. It is limited to 60 days,
subject to review and possible revocation by Congress, and also
to review and possible nullification by the Supreme Court.
Insurrection and IMMINENT danger are NOT grounds for the
suspension of the writ or declaration of Martial Law. As a
constitutionally granted power of the President, the
recommendation of the Defense Secretary to declare martial
law is not a prerequisite.
During the period of martial law, the president exercises police
power, which is normally a function of the legislature. The
president as commander-in-chief can also order arrests and
seizures without judicial warrants, ban public assemblies,
takeover news media and agencies and censor the press, and
issue presidential decrees. Nonetheless, the president still does
not have unbridled discretion to infringe the rights of civilians
because martial law does not suspend the operation of the
Constitution, nor supplant the operation of civil courts or
legislative assemblies.
Petition for certiorari is not the appropriate proceeding. It is
also not correct to say that the power to review the factual
basis of the declaration of Martial Law falls under Section 1
and Section 5, Article VIII.
Rule 65 is not the appropriate proceeding because this refers to
whether or not an official gravely abused his/her authority
amounting to lack or excess of jurisdiction. The review of the
sufficiency of the FACTUAL basis of Martial Law cannot be done
using the same standard of review. The jurisdiction of the
Supreme Court in reviewing the sufficiency of the factual basis
of the declaration of martial law is suis generis -- it is a special
ad specific jurisdiction of the Supreme Court aside from those
enumerated in Section 1 (expanded jurisdiction of the Court)
and Section 5 (exclusive and original jurisdiction of the SC) of
Article VIII. If the Court applies the standard of review used in a
petition for certiorari, the same would emasculate its
constitutional task under Section 18, Article VII. The framers of
the Constitution added an additional safeguard under the third
paragraph of Section 18, Article VII on top of the expanded
jurisdiction of the Court.
Lansang doctrine reiterated
According to the case of Garcia-Padilla vs. Enrile, decided after
the declaration of martial law during the presidency of
Ferdnand Marcos, the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus is a
political question and not subject to judicial review. The Garcia
case overturned the Lansang doctrine, an earlier case that
declared that the factual basis of declaring martial law and the
suspension of the privilege of the writ of habeas corpus are
subject to judicial inquiry. In the case at bar, the Supreme Court
made it clear that the 1987 Constitution (Section 18, Article VII)
reverted to and constitutionalized the Lansang doctrine.
The power of the Court to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under Section 18,
Article VII of the 1987 Constitution is independent of the
actions taken by Congress.
By this conclusion, the Court reversed the doctrine in Fortun vs.
Macapagal-Arroyo insofar as it refers to the role of Congress
and the Supreme Court in the review of the factual basis of the
declaration of martial law. In Fortun, the Court declared that it
was only on "standby" in case Congress defaults, but the Court
made it clear in the case at bar that the it can exercise its power
of review simultaneously with the power of Congress to do the
same.
Proclamation No. 216 is not vague and is, therefore,
constitutional.
As held in this case, the void-for-vagueness doctrine applies
only to free speech cases. Proclamation No. 216 does not
regulate speech or any other fundamental right that may be
facially challenged. It only seeks to penalize conduct, not
speech.
The inclusion of "other rebel groups" does not make the
proclamation vague, as it should be interpreted in relation to
the other words that accompany it. They refer to the other
rebel groups as found in Proclamation No. 55 (calling out armed
forces), which was cited in Proclamation No. 216 by way of
reference in the Whereas clauses.
The lack of operational parameters does not make the
proclamation void. Operational guidelines are mere tools for
the implementation of the proclamation. Judicial review covers
only the sufficiency of the information or data at the time, or
prior to the declaration or suspension. The review by this Court
will be confined to the proclamation itself and the report
submitted to Congress. Any act committed under the said
orders in violation of the Constitution and the laws, such as
criminal acts or human rights violations, should be resolved in a
separate proceeding.
Sufficiency of factual basis test
The president as Commander-in-Chief has the sole discretion to
declare martial law and/or to suspend the privilege of the writ
of habeas corpus. The determination of this Court as to whether
there is sufficient factual basis for the exercise of such must
ONLY be based on facts or information known by the President
at the time he made the declaration or suspension, which facts
or information are already found in the proclamation as well as
the written Report submitted by him to Congress.
The Court cannot look at the absolute correctness of the facts,
as this will unduly burden the president and impede the process
of decision-making. The Court should look into the full
complement or totality of the factual basis, and not piecemeal
or individually. The Court does not need to satisfy itself that the
President's decision is correct, rather it only has to satisfy itself
that the decision had sufficient factual bases. (Sufficiency >
accuracy)
Standard of proof is only probable cause.
The Supreme Court declared that the president only needs to
satisfy probable cause to make a declaration of martial law and
to suspend the privilege of the writ of habeas corpus. This is,
according to the majority decision, the most practical and most
expedient standard by which the President can ascertain the
existence or non-existence of rebellion. Based on the facts cited
in the 2 proclamations and the report to Congress, the Court
found that the factual circumstances in Marawi warranted the
declaration of Martial Law. As to other parts of Mindanao, the
Court took notice of the fact that the Maute group has
 established extensive networks and linkages with foreign and
local armed groups.
The counter-evidence provided by the petitioners were not
given credence. As found by the Court, the counter-evidence
came from unverified news reports. The ruling in Bedol vs.
Commission on Elections on the admissiblity of independent
relevant statements does not apply. Independent relevant
statements are reliable only when the statements are relevant
and when the truth or falsity thereof is immaterial. In the case
at bar, the truth or falsity of the contents of the news reports is
material.
Maute groups are terrorists. Although terrorism is not cited as
a ground to declare martial law, terrorism and rebellion are
not mutually exclusive.
Terrorism neither negates nor absorbs rebellion. Objective of a
terrorist is to sow and create a condition of widespread fear
among the populace in order for the government to give in to
an unlawful demand. Rebellion is political. Nonetheless,
nothing in Article 134 of the Revised Penal Code nor RA 9372
makes them mutually exclusive. In fact, rebellion may be
subsumed under the crime of terrorism, which is broader in
scope and covers a wide range of predicate crimes. Rebellion is
only one of the various means by which terrorism can be
committed.
As to the powers of congress while the case of Fortun vs. Arroyo2
on the Maguindanao Martial law declaration, said that the power
to declare martial law is shared by both the President and
Congress. That has been altered in the case of Lagman where the
SC said there is no requirement of prior consent or approval from
congress, the president can declare martial law. Absolutely, the
president has the power to declare without requiring any prior
approval of any other office for that matter. What is the basis for
the president to declare martial law? This is based on the test of
sufficiency of the factual basis - that there is invasion or rebellion
and that public safety requires it. Provided those are present, then
the president can declare martial law. When the President mixed
that the court to congress in person or through his representatives
in writing as required by the constitution, congress can consider
facts prior during and even after such declaration. It is a political
determination. Congress is not limited to a determination by the
court on the sufficiency of the factual basis. The SC’s authority
come when there is an appropriate petition filed. What is that
nature of that petition in Lagman? The SC said:
 If it were to be to question the calling out power, it must
be based on rule 65 petition. Grave abuse of discretion.
 But if it were to be to question the factual sufficiency of
the suspension of the privilege or declaration of martial
law, then it is sui generis It is not a rule 65 petition
because it is not a test of grave abuse of discretion of
arbitrariness. It is a petition to test the sufficiency of the
factual basis for such suspension or declaration.
Again there is a difference between questioning the calling out
power and with respect to the other two more grave declarations.
It is sui generis because it does not follow the rule 65 rules, any
citizen is supposed to be a proper party to question the sufficiency
so when you talk about a legal standing, the only requirement is
2
The President has the sole and exclusive power to declare martial law or suspend
the writ. This power of the President is subject to review separately by Congress
and the Supreme Court. Justice Mendoza stresses, "Thus, Congress and this Court
have separate spheres of competence. They do not act ‘jointly and sequentially’ but
that you are a citizen of majority age of no other particular
requirement. When the petition is filed, the SC said that it upheld
the old ruling in Lansang vs. Garcia that the declaration of martial
law or suspension of the privilege of the writ is a justiciable not a
political question, however, unlike in Lansang vs. Garcia where the
SC then said that it can be tested based on arbitrariness. This time
around, the SC said the Lansang ruling requiring in arbitrariness is
no longer true because what is to be determined is sufficiency of
factual basis. And the SC in determining whether the factual basis
are sufficient must have to consider the totality of the facts based
on what has been reported to the president. It is based on
sufficiency not on accuracy. So even if the facts turn out later to be
inaccurate, but by the totality of the facts taken altogether when
the President made the declaration would make up a sufficient
basis for declaring martial law or suspending the writ that would be
sufficient. SC is not allowed to take facts after into consideration in
determining whether the declaration or suspension was made
without sufficient factual basis. So the capof is up to the time of
declaration or suspension. Unlike congress which is allowed to take
matters even after. Now with respect to the requirement of
determination of the existence of rebellion, SC said that the
President is still bound by Art 134 of the RPC and that kind of
rebellion. However, the determination of its existence is based on
probable cause. Such facts and circumstances which would
engender a well-founded belief that rebellion is being committed.
It does not require preponderance, it does not require proof
beyond reasonable doubt, only probable cause. Finally with respect
to the coverage of declaration of martial law or suspension of the
privilege, the SC made a discussion that it is not limited to where
actual public uprising is happening. Where public uprising is
required in rebellion, there are common crimes which are
absorbed in rebellion under the doctrine of absorption and these
common crimes will be committed in areas where there is no actual
public uprising. And so, despite the requirement of rebellion, it is
conceivable that the declaration may include areas where there
may be no actual public uprising but there are common offenses
being committed in furtherance of rebellion. That’s why even if the
actual public uprising is in Marawi, in the western side of
Mindanao, Dinagat Island in the eastern side is covered by the
declaration of the martial law because common crimes may be
committed in Dinagat Island in furtherance of rebellion in Marawi.
To follow the ruling of the SC, so the entire island had been placed
(in martial law).
Final item discussed in the case of Lagman is the matter of rebellion
vs. terrorism. Justice Leonen was discussing in his dissent that what
was committed was an act of terrorism and not rebellion. The SC
addressed that by saying that rebellion may be subsumed under
terrorism. Rebellion is one of the means to commit terrorism.
Lansang vs. Garcia
(no longer true but just to compare the Lagman and this one..)
FACTS: Due to the throwing of two hand grenades in a Liberal
Party caucus in 1971 causing the death of 8 people, Marcos
issued PP 889 which suspended the privilege of the writ of
habeas corpus. Marcos urged that there is a need to curtail the
growth of Maoist groups. Subsequently, Lansang et al were
invited by the PC headed by Garcia for interrogation and
investigation. Lansang et al questioned the validity of the
independently of each other."50 Father Bernas points out, "Since the powers of
Congress and the Court are independent of each other, there is nothing to prevent
Congress and the Court from simultaneously exercising their separate powers." 51
 suspension of the writ averring that the suspension does not
meet the constitutional requisites.
ISSUE: Whether or not the suspension is constitutional.
HELD: The doctrine established in Barcelon and Montenegro
was subsequently abandoned in this case where the SC
declared that it had the power to inquire into the factual basis
of the suspension of the privilege of the writ of habeas corpus
by Marcos in Aug 1971 and to annul the same if no legal ground
could be established. Accordingly, hearings were conducted to
receive evidence on this matter, including two closed-door
sessions in which relevant classified information was divulged
by the government to the members of the SC and 3 selected
lawyers of the petitioners. In the end, after satisfying itself that
there was actually a massive and systematic Communist-
oriented campaign to overthrow the government by force, as
claimed by Marcos, the SC unanimously decided to uphold t5he
suspension of the privilege of the Writ of Habeas Corpus.
Efficacy of the Declaration
As to the efficacy of the declaration, the constitution says that the
initial declaration cannot be longer than 60 days but any extension
can be longer. That’s why in Mindanao we are still under martial
law up to 31st of December. And it is congress which will determine
any request for extension whether it is needed. Can the SC review
the grant of extension by congress? The provision says any
extension thereof so it could also be.
The declaration of martial law does not carry with it the
suspension of the privilege of the writ of habeas corpus and vice
versa. Both must have to be declared by the President. With
respect to the suspension, we all know that what is actually
suspended is not the writ itself but the privilege to be released from
detention without official charge within the standard periods
under article 125 of the RPC. The 12, 18 and 36 hrs. The suspension
of the privilege simply extends the period of extension without
charge to 72 hours because the constitution says that these
persons must be charged within 72 hours or 3 days otherwise, they
would have to be released. A suspension of the privilege does not
therefore authorize or validate indefinite detention. It does not
even validate invalid arrests, you can be arrested and detained
without warrant but subsequently charged within that 3-day
window. Otherwise, that person must have to be released. It does
not authorize indefinite detention without any official charge.
Effects of Martial Law
As to the effects of martial law, what traditionally the effects of
martial law in the so called political law concept, in the actual
theatre of war, the executive can do anything. The martial law
commander on the ground xxx, can exercise any of the powers of
government within that so called theatre of war. That is the reality.
But our constitution, because it is a reaction to what has happened
before categorically states that
1. The constitution is not suspended.
2. Civilian courts will continue to have jurisdiction over
civilians. Military courts are not conferred jurisdiction.
3. Legislative assemblies shall continue to function that
includes all other governmental institutions. That
ideally should happen if there is no actual hostilities or
skirmishes ongoing like what we are having in
mindanao.
3
Art VII Section 20. The records and books of accounts of the Congress shall be
preserved and be open to the public in accordance with law, and such books shall
The declaration or suspension will lose its effect:
1. If the President lifts it himself like what happened in
maguindanao declaration or
2. If congress nullifies it or
3. If the SC, in a proper petition, revokes it and
4. By operation of law, if the period for efficacy has lapsed
and there has been no extension, then declaration or
suspension will lose (its effectivety).
Contracting and Guaranteeing Foreign Loans
The 2005 case of Constantino vs. Cuisia discusses this section 20 of
Art 7. Section 203 simply states that the President may contract or
guarantee foreign loans subject to the prior approval or
recommendation of the Monetary Board and subject to restriction
as may be provided for by law. So there is no question that the
President can but there must have to be prior recommendation by
the monetary board. One of the questions raised here is that if the
president pays the debt should there be authorization from the
monetary board and/or Congress to exterminate a debt. So he can
contract a loan but can he pay the loan without congressional
authorization? Because the constitution requires that all
appropriations from the public treasury must have to be with
legislation and the SC said that there is a law. The law on debt
payment is not included in the general appropriations act. That is
to ensure that we are or the country is compliant with its debt
servicing obligation. On the manner of xxx, the SC said even then
even if there was no such law on debt servicing or debt termination
or repayment of a debt of a loan, the fact that the constitution
grants to the president that power to contract a loan, it necessarily
includes the power to pay that loan because it defies common
sense and logic that if you are authorized to obtain one that you
are not also authorized to pay up. So the president can pay up the
loan even without congressional authorization.
Constantino vs. Cuisia
During the Aquino regime, her administration came up w/ a
scheme to reduce the country’s external debt. The solution
resorted to was to incur foreign debts. Three restructuring
programs were sought to initiate the program for foreign debts
– they are basically buyback programs & bond-conversion
programs). Constantino as a taxpayer and in behalf of his minor
children who are Filipino citizens, together w/ FFDC averred
that the buyback and bond-conversion schemes are onerous
and they do not constitute the loan “contract” or “guarantee”
contemplated in Sec. 20, Art. 7 of the Constitution. And
assuming that the President has such power unlike other
powers which may be validly delegated by the President, the
power to incur foreign debts is expressly reserved by the
Constitution in the person of the President. They argue that the
gravity by which the exercise of the power will affect the Filipino
nation requires that the President alone must exercise this
power. They argue that the requirement of prior concurrence
of an entity specifically named by the Constitution–the
Monetary Board–reinforces the submission that not
respondents but the President “alone and personally” can
validly bind the country. Hence, they would like Cuisia et al to
stop acting pursuant to the scheme.
ISSUE: Whether or not the president can validly delegate her
debt power to the respondents.
be audited by the Commission on Audit which shall publish annually an itemized list
of amounts paid to and expenses for each Member.
 HELD: There is no question that the president has borrowing
powers and that the president may contract or guarantee
foreign loans in behalf of this country w/ prior concurrence of
the Monetary Board. It makes no distinction whatsoever and
the fact that a debt or a loan may be onerous is irrelevant. On
the other hand, the president can delegate this power to her
direct subordinates. The evident exigency of having the
Secretary of Finance implement the decision of the President to
execute the debt-relief contracts is made manifest by the fact
that the process of establishing and executing a strategy for
managing the government’s debt is deep within the realm of
the expertise of the Department of Finance, primed as it is to
raise the required amount of funding, achieve its risk and cost
objectives, and meet any other sovereign debt management
goals. If the President were to personally exercise every aspect
of the foreign borrowing power, he/she would have to pause
from running the country long enough to focus on a welter of
time-consuming detailed activities–the propriety of
incurring/guaranteeing loans, studying and choosing among the
many methods that may be taken toward this end, meeting
countless times with creditor representatives to negotiate,
obtaining the concurrence of the Monetary Board, explaining
and defending the negotiated deal to the public, and more
often than not, flying to the agreed place of execution to sign
the documents. This sort of constitutional interpretation would
negate the very existence of cabinet positions and the
respective expertise which the holders thereof are accorded
and would unduly hamper the President’s effectivity in running
the government. The act of the respondents are not
unconstitutional.
Exception
There are certain acts which, by their very nature, cannot be
validated by subsequent approval or ratification by the
President. There are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must be
exercised by him in person and no amount of approval or
ratification will validate the exercise of any of those powers by
any other person. Such, for instance, in his power to suspend
the writ of habeas corpus and proclaim martial law and the
exercise by him of the benign prerogative of pardon (mercy).
There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the
supersedence of executive prerogatives over those exercised by
co-equal branches of government. The declaration of martial
law, the suspension of the writ of habeas corpus, and the
exercise of the pardoning power notwithstanding the judicial
determination of guilt of the accused, all fall within this special
class that demands the exclusive exercise by the President of
the constitutionally vested power. The list is by no means
exclusive, but there must be a showing that the executive
power in question is of similar gravitas and exceptional import.
Power over foreign affairs
We have discussed the xxx. We have mentioned the xx office of the
president on the stages of the negotiations of the treaty in relation
to concurrence of senate requirements. That case of Liduyo vs
Romulo that highlights the concept of political question, the matter
of bringing up a claim against a foreign sovereign cannot be forced
on our exec or the president because it affects foreign relations as
representative of the state in foreign relations it is still within the
political discretion of the president whether or not he would file
such claim against a foreign sovereign.
Deportation against undesirable aliens
This case of Rosas vs. Montor, is just a discussion to author to
exclude and deport. Exclusion is the process by which a state can
prevent the entry of a foreigner. The given is that, the entry and
stay of a foreigner in the Philippines is a matter of privilege. His
entry may be denied and if allowed entry already that person may
be ordered deported and in deportation proceedings, there is no
necessity that the foreigner must have to be convicted in a final
judgment. Whatever determination that the executive may have
over that person because his continued presence in the Philippines
is inimical to public interest would be sufficient to cause his
deportation. Now in Rosas, exclusion is again the act of the state
thru Bureau of Immigration to deny the entry of a foreign national.
(2 days ago there was a foreign professor who was here on transit
but he got sick and he was supposed to or there was a request for
him to be taken out of the airport terminal for medical examination
but because of his political views, his entry has been denied even
on humanitarian grounds. He was allowed to however be examined
by a physician in one of the lounges in the airport but never to get
out of the terminal and go to a hospital for medical reason.
Deportation on the other hand involves a proclamation where a
foreigner has been allowed entry but again because of certain
violations, again, not requiring conviction by final judgment, he
may be ordered depowered or ordered to leave the country. What
comes to your mind is the case of sister fox, she has been in the
Philippines for more than 30 years as a nun in a missionary ground
involved in urban poor and other poor communities but because
she has been joining public assemblies which was or had been
critical to the Duterte administration, YOUR President ordered her
deportation. So the Bureau of Immigration Commissioner
cancelled her missionary visa and ordered her immediate
deportation. On appeal to the DOJ Sec, the order of the BI
Commissioner was reversed because in deportation proceedings,
as early as the case of hachigan, we all know that before a person
is to be ordered arrested and deported there must have to be a
determination that his stay is undesirable. He cannot be ordered
deported immediately without that determination. Upon orders of
YOUR president, his visa was cancelled without any proceedings.
On what ground? Apil apil kag rally madreha ka! So, the short of
the long story was that the BI was ordered to conduct deportation
proceedings. She was able to prove her case or cause and the result
was visa is still cancelled. She was ordered deported. But at least
she still has options after the order issued by the BI unlike the first
order it was a major reaction because nag rally rally, pahawaon!
Pak cancelled dayon!
Rosas vs Montor
Every sovereign power has the inherent power to exclude aliens
from its territory upon such grounds as it may deem proper for
its self-preservation or public interest. In the Philippines, aliens
may be expelled or deported from the Philippines on grounds
and in the manner provided for by the Constitution, the PIA of
1940, as amended, and administrative issuances pursuant
thereto.[27]
Section 10[28] of the PIA of 1940 requires non-immigrants to
present their unexpired passports and valid passport visas to
immigration officers. Pursuant to their powers as outlined in
Section 6[29] of the PIA of 1940, the examining immigration
officer determines whether the non-immigrant is qualified to
 enter the Philippines based on Section 29(a).[30] If the alien
holds none of the disqualifications as stated in Section 29, he
may be admitted entry barring other circumstances that might
affect his entry. If, however, the immigration officer determines
that an alien possesses any of the disqualifications under
Section 29, the immigration officer is authorized to issue an
exclusion order.
Exclusion and deportation are formal removal procedures
which ultimately results to an alien's removal from the territory
provided for separately under Section 29 and 37 of the PIA,
respectively. The United States in Ex Parte Domingo
Corypus,[31] the Washington District Court in 1925
differentiated exclusion from deportation in the following
manner:
what has been approved in 2018. So if you’re taking about NOE
that’s okay because what is to be paid this year will necessarily be
paid next year in terms of salaries and expenses. But what about
projects? If in 2018 were taking about 300 km of roads in Luzon,
and it is re-enacted in 2019 where can they use that? Because the
appropriation says in Luzon. How could they make use of that if the
budget is reenacted? It cannot be anyone be like PDAF it’s a lump
sum fund, there must have to be a specification on which project
this particular amount should be spent on. So if that has been done
and accomplished this year, what is the basis for using that next
year for some other similar project?

x x x Deporting a person who is already in the country, and

therefore enlarged, is depriving him of a privilege which he, at
least at the time, is enjoying in the United States; whereas a
person being denied the privilege to enter is not deprived of any
liberties which he had theretofore enjoyed. The gate is simply
closed and he may not enter.

Under Philippine immigration laws, exclusion is the authorized

removal of an alien by immigration officers, performing primary
inspection, or by the immigration boards of special inquiry, by
secondary inspection, of any foreigner arriving in the
Philippines who, upon inspection and prior to entry or
admission, is barred by immigration laws, rules and regulations
from entering or being admitted to the Philippines.[32] When an
alien is excluded he is immediately sent back to the country
where he came from on the same vessel which transported him,
unless in the opinion of the Commissioner of Immigration such
immediate return is not practicable or proper.[33] Under certain
circumstances, when an alien is excluded, Section 25[34] of the
PIA of 1940 authorizes the alien's detention until such time it is
determined that he is qualified for entry and/or admission.

Deportation proceedings, on the other hand, are governed by

Sections 37[35] to 39 of the PIA. We have stated that the power
to deport aliens is an act of State, an act done by or under the
authority of the sovereign power.[36] It is a police measure
against undesirable aliens whose continued presence in the
country is found to be injurious to the public good and the
domestic tranquility of the people.

Power of legislation

We will discuss that. What probably is best to remember I don’t

know if you are familiar with the problem now of our budget. There
has been a deadlock as mentioned yesterday, the exec is changing
the rules on the budget proposal. They want a catch base
appropriation meaning that the appropriations must have to be
spend within a period of 1 or 2 years to complete a project. The
members of the lower house would want to continue with the
obligation based appropriation. According to the executive, it
increases the deficit (whatever that means, that means mapobre
tag samot). We all know that in the budgetary sense, when the exec
comes up with a budget proposal, not all of that amount is funded
it still has to be raised as the year progressed that’s why there are
corresponding revenue proposals in the budget proposal. That why
we are going to experience another TRAIN and it will affect your
school, hospital. Karon gas pa lang ug kuryente. Gamay pa lang. in
today’s news, the plan of the executive if they will take the dare of
the lower house is they are willing to take a re-enacted budget. So
they approved GAA 2018 will be used in 2019. My question is this