Executive Department Flashcards
(196 cards)
1
Q
The executive power shall be vested in the _________________.
[Sec 1, Art VII]
A
President of the Philippines
2
Q
FIB
The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province and city, shall be transmitted to the ______________, directed to the ________________. Upon receipt of the certificates of canvass, the __________________ shall, not later than __________________________, open all the certificates in the presence of the _________ and the ______________________ in ________________, and the Congress upon determination of the authenticity and due execution thereof in the manner __________________, canvass the _______.
A
Congress; President of the Senate; President of the Senate; thirty days after the day of the election; Senate; House of Representatives; provided by law; votes
3
Q
Can Congress validly delegate the initial determination of teh authenticity and due execution of the certificates of canvass?
A
YES.
Congress may validly delegate the initial determination of the authenticity and due execution of the certificates of canvass to a Joint Congressional Committee, composed of both members of both Houses.
[Lopez v Senate]
4
Q
Is COMELEC allowed to make an ‘unofficial’ canvass of the votes for the President and Vice-President?
A
NO.
If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, it is, with more reason, prohibited from making and “unofficial” canvass.
[Brillantes v COMELEC]
5
Q
What body shall act as the Presidential Electoral Tribunal?
A
The Supreme Court
6
Q
FIB
The Supreme Cour, sitting ___________, shall be the sole judge of all contests relating to the ________, ______ and ________ of the President or Vice-President, and may ________________for the purpose.
A
en banc; election; returns; qualifications; promulgate its rules
7
Q
What is the duration of the term of office of the President and the Vice-President?
A
6 years
8
Q
When shall the term of office of the President or Vice-President start? When shall it end?
A
Begin: noon on the 30th day of June nest following the day of the election
End: noon of the same day 6 years thereafter
[Sec 4, Art VII]
9
Q
Is the President eligible for re-election?
A
NO
10
Q
FIB
No person who has succeded the President and has served for _______________ shall be qualified for election to the same office for ______________.
[Sec 4, Art VII]
A
more than 4 years;
any length of time
11
Q
Can the President’s salary be decreased during tenure?
A
NO.
Salary - This shall be determined by law. It shall not be decreased during tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved. [Sec 6, Art VII]
12
Q
What is Presidential immunity from suit?
A
The President as such cannot be sued, enjoying as he does immunity from suit. But the validity of his acts can be tested by an action against other executive officials.’
[Carillo v Marcos]
13
Q
Who can invoke the Presidential immunity from suit?
A
Only the President.
Immunity from suit pertains to the President by virtue of the office and may not be invoked only by the holder of the office; not by any other person in the President’s behalf.
[Soliven v Makasiar; Beltran v Makasiar]
14
Q
Can the President waive his immunity from suit?
A
YES.
The President may waive the protection afforded by the privilege and submit to the court’s jurisdiction.
[Soliven v Makasiar; Beltran v Makasiar]
15
Q
When can Presidential decisions be questioned before the Courts?
A
Where there is
a. grave abuse of discretion, or
b. the President acted without or in excess of jurisdiction
[Gloria v. CA]
16
Q
When can immunity from suit be invoked?
A
Immunity is co-extensive with tenure and covers only official duties. After tenure the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties.
[Estrada v Desierto]
17
Q
What is the exception to the President’s immunity from suit?
A
The President may be sued if the act is one not arising from official conduct.
[Estrada v. Desierto]
18
Q
What is Presidential Privilege?
A
Presidential Privilege
- this refers to the power of the government to withhold information from teh public, the courts, and the Congress.
[Shwart]
-the right of the President and high-level executive branch officers to withhold information from Congress, the courts and ultimately to the public. [Rotzell]
19
Q
What are the qualifications for the Vice-President
A
Same as the President except that no Vice-President shall serve for more than 2 successive terms.
The Vice-President may be appointed as member of the Cabinet without need for confirmation of the Commission of Appointments.
20
Q
Enumerate Prohibitions on the Executive Department
specifically for:
- President
- Vice President
- members of the Cabinet, and their deputies or assistants
A
a. Shall not receive any other emoluments from the govt or any other source (Pres and VPres) [sec 6]
b. Unless otherwise provided in the constitution, shall not hold any other office or employment [sec 13]
- prohibition does not include posts occupied by executive officials without additional compensation in an ex-officio capacity, as provided by law or as required by the primary functions of the said official;s office.
c. shall not directly or indirectly a) practice any other profession b) participate in any businesses; or c) be financially interested in any contract with , or in any franchise of special privilege granted by the government or any subdiviion, agency, or instrumentality therof, including government-owned or controlled corporations or their subsidiaries. [sec 13]
d. strictly avoid conflict of interest in the conduct of their office [Sec 13]
e. May not appoint a) spouse; or b) relatives by consanguinity or affinity within the fourth civil degree as members of Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairman or heads of bureaus or offices, including government-owned or controlled corporation and their subsidiaries.
21
Q
What are the exception to the rule prohibiting the President from holding additional positions?
A
- The President can assume any or all Cabinet posts (because departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency)
- The President can assume ex officio positions. (Pres. as Chairman of NEDA)
22
Q
What are the exception to the rule prohibiting the Vice-President from holding additional positions?
A
The Vice President may be appointed as member of teh Cabinet. Such appointment requires no confirmation.
[sec 3, Art VII]
23
Q
What are the exceptions to the rule prohibiting Cabinet Members from holding additional positions?
A
- “unless otherwise provided in this Constitution” (Sec 13, Art VII)
- “unless otherwise allowed by law or by the primary function of his positon” (Sec 7, Art IX-B)
24
Q
What are the cases contemplated by the phrase “unless otherwise provided by the Constitution” in Sec 13, Art VII?
A
- The Vice President - appointed as member of Cabinet
- The Vice- President acting as President when one has not yet been chosen or qualified (Sec 7, Art VII)
- Secretary of Justice sitting as ex-officio member of the Judicial and Bar Council [Sec 8, Art VIII; Civil Liberties Union v. Executive Secretary
25
When does the Constitution allow a Cabinet member to hold another office?
1. It is an ex-officio capacity and without additional compensation
2. Such is necessitated by the primary function of his position (eg Secretary of Trade an Industry as Chairman of the NDC; Secretary of Agrarian Reform as Chairman of the Land Bank)
3. Such is allowed by law. (Civil Liberties Union v Executive Secretary)
26
What is Executive Power?
This refers to the Presidents's power to enforce, implement , and administer laws. The President shall ensure that the laws be faithfully executed. [Sec 17, Art VII]
27
What are the powers of the President? (enum)
1. Executive and Administrative Powers in General
2. Power of Appointment
3. Power of Control and Supervision
4. Military Powers
5. Pardoning Powers
6. Diplomatic Powers
7. Powers Relative to Appropriation Measures
8. Delegated Powers
9. Veto Power
10. Residual Power
11. Executive Privilege
12. Emergency Powers
28
FIB
As ________________ of the government, the President is vested with the _________________ into practical operation.
[National Electrification Commission v CA]
administrative head;
| power to execute, administer, and carry out laws
29
Enumerate: Summary of Presidential Powers
1. Executive Power
2. Power of Appointment
3. Power of Control
4. Power of Supervision
5. Commander-in-Chief Powers
6. Power of Legislation
7. Diplomatic Powers
8. Residual Power
9. Other Power
- Power to pardon
- power to grant amnesty
- borrowing power
- budgetary power
10. informing power
30
summ
What is Executive Power?
This is the power to enforce and administer laws.
31
summ
What is the President's Power or Appointment?
The Legislative can create office, but only the Executive can fill it; Congress cannot circumvent this by setting very narrow qualifications, such that only one person is qualified to hold office.
[Flores v Drilon]
32
summ
What is the President's Power of Control?
The President may a) nullify, modify judgements of subordinates; b) undo or redo actions of subordinates; and c) lay down rules for the performances of subordinates' duties.
33
summ
Power of Supervision
This refers to the oversight function. The Executive must see to it that rules, which it did not make, are followed.
34
What is under the Commandr-in-Chief Powers of the President?
a. Call out Power
b. Suspension of the privilege of the Writ of Habeas Corpus
c. Martial Law
35
What is under the Power of Legislation of the President?
a. Veto Power
b. Power to Declare an Emergency
c. Integrative Power
36
summ
Residual Power of the President
To protect the general welfare of people; founded on duty of President as steward of the people; includes powers unrelated to execution of any provision of law.
[Marcos v Manglapus]
37
summ
Informing Power of the President
Address Congress during opening of session, or at any other time [Sec 23, Art VII]
38
Does the presidential power of control require statutory implementation?
NO
The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.
39
Is Pres. Duterte bound by the 1992 Agreement between former President Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte?
NO.
As incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine the policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate. [Ocampo v. Enriquez]
40
What is Power of Appointment (def)?
Power of Appointment:
The selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.
41
Differentiate appointment from designation and commission?
Appointment- the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.
Designation - imposition of additional duties, usually by law, on a person already in the public service.
Commission - written evidence of the appointment
42
What are the elements for a valid appointment?
1. Authority to appoint and evidence of the exercise of the authority
2. Transmittal of the appointment paper and evidence of the transmittal (preferably through the Malacanang Records Office)
3. Vacant positions at the time of appointment; and
4. Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications
43
When should the elements of a valid appointment apply?
All the elemements of a valid appointment should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban.
[Velicaria-Garafil v Office of the President]
44
Enumerate the four groups (classes) of officers whom the President may appoint.
1. Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him (needs CA confirmation)
2. All other officers of the government whose appointments are not otherwise provided by law;
3. Those whom the President may be authorized by law to appoint
4. Officers lower in rank whose appointments Congress may by law vest in the President alone.
45
Which Group of officers whom may the President may appoint needs confirmation of the Commission on Appointments?
Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colones or naval captain and other officers whose appointments are vested in him.
46
Recite Sec 16, Art VII of the Constitution.
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 by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. […]
47
Does appointment to the Philippine Coast Guard need undergo confirmation?
NO.
It is no longer under the AFP. [Soriano v. Lista]
48
Enumerate the presidential appointments which require the confirmation of the Commission of Appointments.
Appointees mentioned in first sentence of Sec 16, Art VII, including those officers whose appointments are expressly vested by the Constitution itself in the President:
a. Heads of the executive departments
b. Ambassadors, other public ministers and consuls
c. Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain
49
What is the rationale for the need of CA confirmation of certain presidential appointments to the AFP?
These are officers of a sizeable command enough to stage a coup
50
Do the directors and chief superintendents of the PNP fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments?
NO.
Directors and chief superintendents of the PNP, do not fall under the first category of presidential appointees requiring confirmation by the Commission on Appointments.
The Philippine National Police [PNP, Section 4, Art XVI PC] is separate and distinct from the Armed Forces of the Philippine [AFP, Section 6, Art XVI, PC].
The police force is different from and independent of the armed forces and that the ranks in the military are not similar to those in the PNP.
[Manalo v Sistoza]
51
Enumerate the other officers whose appointments are vested in the President by the Constitution.
a. Chairman and Commissioners of the Constitutional Commissions
b. Regular members of the Judicial and Bar Council
c. Sectoral Congressional representatives (provision no longer in force)
52
In what cases is confirmation not required in Presidential appointments?
1. When the President appoints other government officers whose appointments are not otherwise provided for by law
2. Those officers whom he may be authorized by law to appoint (eg Chairman and Members of the Commission on Human Rights)
3. When Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments
4. Appointment of the Vice-President as members of the Cabinet [Sec 3, Art VII)
5. Appointments upon recommendation of the Judicial and Bar Council
6. Appointments solely by the President
53
What are the appointments which are solely by the President?
1. Those vested by the Constitution on the President alone
2. Those whose appointments are not otherwise provided by law
3. Those whom he may be authorized by law to appoint
4. Those other officers lower in rank whose appointments is vested by law in the President.
54
What are the appointments upon recommendation of the Judicial and Bar Council which do not require confirmation by the Commission on Appointments?
1. Members of the Supreme Court and all other courts [Sec 9, Art VIII]
2. Ombudsman and his 5 deputies (for luzon, visayas, and mindanao, general and military) [sec 9, ArtXI]
55
What is the difference between the Supreme Court and lower Courts as to when apppointment must be made in a vacancy?
Supreme Court: the appointment must be made 90 days from when the vacancy occurs [Sec 4, Art VIII]
Lower Courts: appointment shall be issued within 90days from submission of the list
56
What are the steps in the appointing process?
1. Nomination by the President
2. Confirmation by the Commission on Appointments
3. Issuance of the Commission
4. Acceptance of the Appointment
57
An appointment is deemed complete only upon _________.
[Lacson v Romero]
acceptance
58
Appointment is essentially a __________________, the only condition being that the appointee, if issued a permanent appointment, should possess the ___________________ ; including the ____________________ prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment.
discretionary power;
minimum qualification requirements;
Civil Service eligibility
59
What are the two kinds of Appointments requiring confirmation?
1. Regular - if the CA (Congress) is in session
| 2. Ad Interim - during the recess of Congress (CA only meets while Congress is in session)
60
When does a regular appointment take effect?
Regular appointment takes effect only after confirmation by the Commission on Appointments.
61
Does the filing of a motion for reconsideration of the confirmation of an appointment have the effect of recalling or setting aside said appointment?
NO.
Regular appointment - continues until the end of the term.
The Constitution is clear - there must either be a rejection by the Commision on Appointments or non-action on its part for the confirmation to be recalled.
62
When does an ad-interim appointment take effect?
Ad interim appointment takes effect immediately, but ceases to be valid
1. if disapproved by the CA
2. upon the next adjournment of Congress
[Sec 16, Art VII]
63
(Iden.)
A type of appointment which can be withdrawn or revoked at the pleasure of the appointing power.
Acting/Temporary Appointment
The appointee does not enjoy security of tenure.
64
What are the limitation to the President as to making acting/temporary appointment?
President is constitutionally prohibited from making such appointments to the Constitutional Commissions (in order to preserve the latter's independence)
65
When can the President appoint someone to a temporary designation?
The President may designate an officer already in the gov't service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when:
1. The officer regularly appointed to the offect is unable to perform his duties by reason of illness, absence or any other cause, or
2. There exists a vacancy
66
In no case shall a temporary designation exceed ___________.
1 year
[Sec 17, Book III, Admin Code of 1987]
67
Can Congress impose on the President the obligation to appoint an incumbent Undersecretary as [the President's] Acting Secretary?
NO.
The President shall have the freedom to choose who shall be his temporary alter ego. [Pimentel v Ermita]
68
Differentiate Ad Interim (Reces) and Acting (Temporary) Appointments?
Both - Effective upon Acceptance
Ad Interim:
- extended only when Congress is in recess
- submitted to the CA for confirmation
- permanent appointments
Acting:
- may be extended even if Congress is in session
- not submitted to the CA for confirmation
- way of temporary filing up vacancies
69
What are the limitations on the appointing power of the President?
1. Art VII, Sec 13, par 2 - spouse, relatives by cosanguinity or affinity within the 4th civil degree
2. recess (ad interim ) appointments - only until dispproval by the Commission on Appointments or until the next adjournment of the Congress [Sec 16-2, Art VII]
70
As to what positions does the appointment prohibition on Sec 13, par 2, Art VII apply
The spouse and relatives by cosanguinity or affinity within the 4th civil degree of the President shall not, during his 'tenure', be appointed as
a. Members of the Constitutional Commissions
b. Member of the Office of Ombudsmand
c. Secretaries
d. Undersecretaries
e. Chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries
71
What is the general rule on Midnight Appointments Ban?
2 months immediately before the next presidential elections (2nd Monday of March), and up to the end of his 'term' (June 30), a President (or Acting President) shall not make appointments
[Sec 15, Art VII]
72
What is the exception to Midnight Appointments Ban?
Temporary appointments to executive positions, when continued vacancies will
a. prejudice public service
b. endanger public safety
73
What is the limit of the Midnight Appointment Ban?
The midnight appointment ban is limite to the executive department:
The prohibition against midnight appointment applies only to positions in the executive department.
[De Castro v JBC]
74
Does the ban on midnight appointment extend to appointments made by local elective officials?
NO.
The ban applies only to the President.
There is on law that prohibits local elective officials from making appointments during the last days of his or her tenure.
[De Rama v CA]
75
Does the ban on midnight appointments apply to the acting president?
YES
76
What is the appointing power of the Acting President?
Appointments extended by an Acting Presiden shall remain effective unless revoked by the elected President within ninety days from his assumption or re-assumption of office [Sec 14, Art VII]
77
This power is implied from the power of appointment
Power of Removal
78
What are the exception to the President's Power of Removal?
The President cannot remove officials appointed by him where the Constiturion prescribes certain methods for the separation of such officers from public service (eg Chairmen and Commissioners of Constitutional Commissions) who can only be removed only by impeachment, or judges who are subject to the disciplinary authority of the Supreme Court
79
FIB
Cabinet members and such officers whose continuity in office depends ____________________ may be replaced at any time, but legally speaking their separation is effected _______________________ of the appointee.
upon the pleasure of the president;
| not by removal but by expiration of their term
80
Differentiate Supervision from Control
SUPERVISION
-overseeing or the power or authority of the officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties.
These does not include the power to overrule their acts if these acts are within their discretion.
CONTROL
-power of an officer to alter, modify, nullify or set aside what a subordinate officer had done and to substitute the judgment of the former for that of the latter
81
What is the Power of Control?
1. the power to alter or modify or nullify or set aside what subordinate officer had done in the performance of his duties; and to
2. substitute the judgment of the former with that of the latter
[Biraogo v Philippine Truth Commission]
82
What is the Doctrine of Qualified Political Agency (Alter Ego Principle)?
All different executive and administrative organizations are mere adjuncts of the Executive Department. This an adjunct of the Doctrine of One Executive.
The heads of the various executive departments are assistants and agents of the Chief Executives [Villena v Secretary of the Interior]
In the regular course of business, acts of executive departments, unless disapproved or reprobated by the Chief Executive, are presumptively acts of the Chief Executive
[Free Telephone Workers Union v Minister of Labor and Employment]
83
What is the general rule on how the functions of the Chief Executive are performed?
General Rule:
The multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments.
84
What are the exceptions to the general rule on the role of the executive departments and offices?
1. Cases where the Chief Executive is required by the Constitution or by the law to act in person; or
2. The exigencies of the situation demand that he act personally
85
Does the President have the power to abolish offices?
Generally, the power to abolish a public office is legislative. But, as far as bureaus, offices, or agencies of the executive department are concerned, power of control may justify him to inactivate functions of a particular office.
86
The President shall exercise _____________ over local governments. [Sec 4, Art X]
The President shall exercise ___________ over autonomour regions to ensure that ______________________. [Sec 16, Art X]
general supervision;
general supervision;
laws are faithfully executed
87
Can the President suspend or remove local officials?
YES
The President may suspend or remove local officials by virtue of the power delegated to him by Congress through the Local Government Code.
The Constitution also places the local governments under the general supervision of eh president, and also allows Congress to include in teh local government code provisions for removal of local officials.
[Sec 3, Art X]
[Ganzon v CA]
88
What are the Commander-in-chief powers of the President?
a. he may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion
b. he may suspend the privilege of the writ of habeaus corpus
c. he may proclaim martial law over the entire Philippines or any part thereof
89
The President shall be the ____________________ of all armed forces of the Philippines.
Commander-in-Chief
90
What authority does the commander-in-chief clause vests in the President?
Outside explicit constitutional limitations, teh commander-in-chief clause vests in the President, as commander-in-chief, absolute authority over ther persons and actions of the members of the armed forces.
Such authority includes the ability of the President to restrict travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.
[Gudani v Senga]
91
What are the "sequence of graduated power" granted by Sec 18, Art VII to the President as Commander-in-Chief?
1. Calling out power
2. The power to suspend the privilege of writ of habeas corpus
3. the power to declare martial law
92
What are the conditions for the suspension of the privilege of writ of habeas corpus and the power to declare martial law?
concurrence of two conditions:
- actual invasion or rebellion
- that public safety requires such exercise of such power
93
What is the criterion for the calling-out power of the President?
The only criterion is that 'whenever it becomes necessary', the President may call the armed forces 'to prevent or suppress lawless violence, invasion, or rebellion.
[Sanlakas v. Executive Secretary]
94
How is the term 'rebellion' to be understood for the purposes of suspending the WHC or declaring martial law?
Since the Constitution did not define the term "rebellion", it must be understood to have the same meaning as the crime of "rebelion" in the RPC.
95
What standard of proof is necessary to determine the existence of rebellion (in suspending the WHC or declaring martial law)?
In determining the existence of rebellion, the President only needs to convince himself that there is PROBABLE CAUSE or evidence showing that more likely than not a rebellion was committed or is being committed.
To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers.
[Lagman v Medialdea]
96
What is a Writ of Habeas Corpus?
An order from the court commanding a detaining officer to inform the court:
a. if he has the person in custody; and
b. his basis in detaining that person
97
What is "privilege of the writ"? (WHC)
portion of the writ requiring the detaining officer to show cause why he should not be tested.
Note: It is the privilege tha is suspended, not the writ itself.
98
What are the requisites for the suspension of the Privilege of the Writ of Habeas Corpus?
a. there must be an actual invasion or rebellion; and
| b. the public safety requires the suspension
99
What is the duration of the suspension of the WHC and of Martial law?
Not to exceed 60 days unless extended by Congress
100
What are the effects of the suspension of the Privilege of the WHC?
a. The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion. [Sec 18, Art VII]
b. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released [Sec 18 Art VII]
c. The right to bail shall not be impaired even when the privilege of the WHC is suspended [Sec 13, Art III]
101
Does the suspension of the WHC render valid an otherwise illegal arrest or detention?
NO.
The suspension of the privilege does not destroy petittioner's right and cause of action for damages for illegal arrest and detention and other violations of their constitutional right.
The suspension does not render valid an otherwise illegal arrest or detention.
What is suspended is merely the speedy means of obtaining his liberty.
[Alberta v Ver]
102
INSERT: Effects of the Suspension of the Privilege
----
103
What are the requisites in proclaiming Martial Law?
a. There must be an invasion or rebellion
| b. Public safety requires the proclamation of martial law all over the Philippines or any part thereof
104
Enumerate what cannot be done by a proclamation of Martial Law: [Sec18, Art VII]
a. suspend the operation of the Constitution
b. Supplant the functioning of the civil courts and the legislative assemblies
c. confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function (Open Court Doctrine)
d. Automatically suspend the privilege of the writ of habeas corpus. The President must expressly suspend the privilege
105
What is the "Open Court" Doctrine?
Civilians cannot be tried by military courts if the civil courts are open and functioning.
If the civil courts are not functioning, then civilians can be tried by teh military courts.
[Olaguer v Military Commission]
106
When may Congress revoke the proclamation of martial law?
Congress may revoke the proclamation of martial law or suspension of the privilege of the WHC before the lapse of 60 days from the date of suspension or proclamation.
107
What must Congress do after the proclamation of martial law or suspension of the WHC?
Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.
108
What must the President do after the proclamation of martial law or suspension of the WHC?
Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken).
109
In voting jointly re martial law or suspension of WHC, what are the two options of Congress?
1. To revoke such proclamation or suspension. When it so revoked, the President cannot set aside (or veto) the revocation as normally would do in the case of bills
2. To extend it beyond the 60-day period of its validity
110
Can Congress initiate the extension of martial law or suspension of WHC?
NO.
Congress can only so extend the proclamation or suspension upon the initiative of the President.
111
What happens if Congress fails to extend before the 60 days of martial law or suspension of WHC expires?
Congress can no longer extend it until the President again re-declares the measure.
112
Can Congress lift the extension before the period of extension lapses? (re martial law or suspension of WHC)
YES.
Congress can lift the extension before the period of extension lapses if the requirements for the proclamation or suspension no longer exist, since the power to confer implies the power to take back.
113
What aspect of the proclamation of martial law or suspension of WHC can the Supreme Court review?
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of:
1. the proclamation of martial law or the suspension of the privilege of the writ, or
2. the extension thereof. It must promulgate its decision thereon within 30 days from its filing
114
FIB
Calling out power is purely __________________________; the Constitution does not explicitly provide for a judicial review of its factual basis
[IBP v Zamora]
discretionary on the President
115
What information is the Court allowed to consider when reviewing the sufficiency of the factual basis of the proclamation or suspension?
The Court considers only the information and data available to the President prior to or at the time of the declaration; it is not allowed to 'undertake an independent investigation beyond the pleadings.'
116
What is the difference bet. the Congress and the Supreme Court on what information they may consider when reviewing the sufficiency of the factual basis of the proclamation or suspension?
Supreme Court: considers only the information and data available to the President prior to or at the time of the declaration
Congress: may take into consideration not onlydata available prior to, but likewise events supervening the declaration.
Unlike the Court which does not look into the absolute correctness of the factual basis as will be discussed below, Congress could probe deeper and further; it can delve into the accuracy of the facts presented before it.
117
Differentitate the Court and the Congress' review power (re proclamation and suspension)
Supreme Court: Court's review power is passive; it is only initiated by the filing of a petition 'in an appropriate proceeding' by a citizen.
Congress: Its review mechanism is automatic in the sense that it may be activated by Congress itself any time after the proclaation or suspension was made
118
Wh60 daysat is the limit on the Calling Out Power?
Test of Arbitrariness
A determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction.
The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact.
119
What are the 4 ways for the proclamation of martial law or suspension of the privilege of the WHC to be lifted?
a. lifting by the President himself
b. revocation by Congress
c. Nullification by the Supreme Court
d. By operation of law, after 60 days
120
Do Letters of Instructions (LOI) and Presdential Decrees issued by the President under the 1973 Constitution during Martial Law form part of the laws of the land?
LOIs are presumed to mere administrative issuances except when the conditions set out in Garcia-Padilla v. Enrile exist.
121
What are the requirements for a decree, order or LOI to be part of the law of the land?
1. issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 Amendments to teh Constitution
2.
a. Whenever in his judgment there exists a grave emergency or a threat or imminence thereof
b. whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequatel on any matter for any reason that in his judgment requires immediate action.
LOIs are mere administrative issuances may be repealed, altered, or modified by way of an executive order
[PASEI v Torres]
122
What are the limitations to the President's Pardoning powers?
Sec 19 (1), Art VII
Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutation, and pardons, and remit fines and forfeitures, after conviction, by final judgement.
123
What are the forms of Executive Clemency?
1. Reprieves
2. Commutations
3. Amnesty
4. Remit fines, forfeitures, after conviction by final judgement
5. Pardons
124
[Iden}
This a type of executive clemency which is a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution.
A witholding of a sentence for an interval of time, a postponement of executoin, a temporary suspension of execution.
Reprieves
125
What are Reprieves?
It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution.
[People v Vera]
126
[Iden]
This is a type of executive clemency which is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed.
Commutations
127
What are commutations?
A reduction of sentence (Black's Law Dictionary)
It is a remission of a part of the punishment; a substittution of a less penalty for the one originally imposed. [People v Vera]
128
[Iden]
A sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty usually of politival offenses and who are subject to trial but have not yet been convicted, and often conditioned upon their return to obedience and duty within a prescribed time.
Amnesty
129
What is an amnesty?
A sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty usually of politival offenses and who are subject to trial but have not yet been convicted, and often conditioned upon their return to obedience and duty within a prescribed time
130
What is the requirement to pass an Presidential amnesty?
Requires the concurrence of majority of all members of Congress. [Sec 19, Art VIII]
131
[Iden]
Permanent cancellation of sentence.
It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, form the punishment the law inflicts for the crime he has committed
It is a remission of guilt, a forgiveness of the offense.
Pardons
132
What is a pardon?
Permanent cancellation of sentence. [Black's Law Dictionary]
It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, form the punishment the law inflicts for the crime he has committed
It is a remission of guilt, a forgiveness of the offense.
[People v Vera]
133
What are the general exceptions to Executive Clemencies?
1. In cases of impeachment
2. As otherwise provided in this Constitution eg: for ellection offenses: No pardon, amnesty, parole or suspension of sentence for violation of electoin laws, rules, and regulations shall be granted by the President without the favorable recommendation by the Commission on Election [Sec 5, Art IX]
3. In cases of legislative and civil contempt
4. Before conviction by final judgment (except amnesty)
5. without concurrence of a majority of all members of Congress (in case of amnesty) [Sec 5, Art IX]
134
Differentiate a plenary pardon to a partial pardon.
Plenary Pardon: Extinguishes all the penalties imposed upon the offender, including accessory disabilities.
Partial Pardon: Does not extinguish all penalties imposed
135
Differentiate a Conditional and Absolute Pardon
Conditional Pardon: The offender has the right to reject the same since he may feel that the condition impsed is more onerous than the penalty sought to be remitted.
Absolute Pardon: Pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, which is alson not subject to acceptance by the offender
136
The determination or whether the conditions had been breached rests exclusively in the sound judgment of the ______________.
Chief Executive
-Such determination would not be reviewed by the courts. A judicial pronouncement stating that the conditionally pardoned offender has committed a crime os not necessary before the pardon may be revoked. [ Torres v Gonzales]
137
What are the limitations on Pardon?
1. Cannot be granted for impeachment [Sec 19, Art VII]
2. Cannot be granted in cases of violation of election laws without the favourable recommendation of the COMELEC [Sec 5, Art IX-C]
3. Can be granted only after conviction by final judgment [People v Salle]
4. Cannot absolve the convict of civil liability. [People v Nacional]
5. Cannot be granted to cases of legislative contempt or civil contempt
6. Cannot restore public offices forfeited, even if pardon restores the eligibility for said offices [Monsanto v
Factoran.
- However, if a pardon is given because he did not commit the crime, reinstatement and back wages would be due.[Garcia v COA]
138
Does a pardonee regain his right to seek public elective office?
YES.
The right to seek public office is unequivocally considered as a political right.
Upon acceptance of the pardon, the pardonee regained his full civil and political rights - including the right to seek elective office, even though that right is not expressly mentioned as provided under Article 36 of the RPC. [Risos-Vidad v COMELEC]
139
Differentiate Pardon and Amnesty
PARDON
- infractions of peace of the state
- granted to individuals
- exercised solely by the executive
- private act which must be pleaded and proved
- looks forward and relieves the pardonee of the consequences of the offense
- extended after final judgment
AMNESTY
- addressed to political offenses
- to classes of persons
- requires concurrence of Congress
- public act which the courts could take judicial notice
- looks backward and puts into oblivion the offense itself
- may be extended at any stage
140
What is a probation?
Disposition where a defendant after conviction and sentence is released subject to
1) conditions imposed by the court and
2) supervision of a probation officer [PD No. 968, Sec 3s]
141
What is a parole?
Suspension of sentence of convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspenden [Reyes]
142
Can the President grant executive clemency in administrative cases?
YES.
Administrative cases are less serious than criminal offenses.
But only to administrative cases in the Executive branch. [Llamas v Executive Secretary]
143
Can the President remove administrative penalties or disabilities?
YES.
In meritorious cases and upon recommendation of the Civil Service Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and ocnditions as he may impose in teh interest of the service [Sec 53, Chapter 7, Subtitle A, Title I, Book V, Admnistrative Code of 1987]
144
Can amnesty be granted to one who maintains that he has not committed the crime?
NO.
Persons invoking the benefit of amnesty must first admit to their
145
Differentiate Pardon and Amnesty
PARDON
- infractions of peace of the state
- granted to individuals
- exercised solely by the executive
- private act which must be pleaded and proved
- looks forward and relieves the pardonee of the consequences of the offense
- extended after final judgment
AMNESTY
- addressed to political offenses
- to classes of persons
- requires concurrence of Congress
- public act which the courts could take judicial notice
- looks backward and puts into oblivion the offense itself
- may be extended at any stage
146
What is a probation?
Disposition where a defendant after conviction and sentence is released subject to
1) conditions imposed by the court and
2) supervision of a probation officer [PD No. 968, Sec 3s]
147
What is a parole?
Suspension of sentence of convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspenden [Reyes]
148
Can the President grant executive clemency in administrative cases?
YES.
Administrative cases are less serious than criminal offenses.
But only to administrative cases in the Executive branch. [Llamas v Executive Secretary]
149
Can the President remove administrative penalties or disabilities?
YES.
In meritorious cases and upon recommendation of the Civil Service Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and ocnditions as he may impose in teh interest of the service [Sec 53, Chapter 7, Subtitle A, Title I, Book V, Admnistrative Code of 1987]
150
Can amnesty be granted to one who maintains that he has not committed the crime?
NO.
Persons invoking the benefit of amnesty must first admit to their complicity in the crimes charged.
Amnesty presupposes the commission of a crime, and when the accused maintains the hes has not committed the crime, he cannot have any use for amnesty [Vera v People]
151
Who may avail of amnesty?
```
Generally:
Individuals who form part of the class of persons covered by an amnesty proclamaton whose acts constitute the political offenses covered by the same.
```
152
[Iden]
This partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due to it.
Tax amnesty
[Republic v IAC]
153
What are the requirements for foreign military bases, troops, or facilities to be allowed in the Philippines?
- treaty duly concurred in by the Senate and, when the Congress so requires
- ratified by a majority of the votes cast by the people in a national referendum held for that purpose
- recognized as a treaty by the other contracting State
[Sec 25, Art XVIII]
154
Under the President's Diplomatic Power, he is vested with the authorit to: (enum)
a. deal with foreign states and government
b. extend or withhold recognition
c. maintain diplomatic relatons
d. enter into treaties, and
e. transact the business of foreign relations
[Pimentel v Executive Secretary]
155
What are the requirements for a treaty or international agreement to be valid and effective?
Concurrence of at least 2/3 of all the members of the Senate (Sec 21, Art VII)
156
What is the legal basis for the validity of the Visiting Forces Agreement?
The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty.
The VFA is therefore valid for it is a presence allowed under the RP-US Mutual Defese Treaty. Since the RP-US Mutual Defense Treaty itsel has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence [Nicolas v Romulo]
157
What are the other terms for a treaty? (enum)
- act
- protocol
- agreement
- compromis d' arbitrage
- concorday
- convention
- declaration
- exchage of notes
- pact
- statute
- charter
- modus vivendi
158
What are the 2 classes of Executive Agreement?
a. Presidential Agreements - agreements purely as executive acts affecting external relations and independent of or without legislative authorization
b. Congressional-executive agreements - agreements entered into in pursuance of acts of Congress
159
What are the requirements for foreign military bases, troops, or facilities to be allowed in the Philippines?
- treaty duly concurred in by the Senate and, when the Congress so requires
- ratified by a majority of the votes cast by the people in a national referendum held for that purpose
- recognized as a treaty by the other contracting State
[Sec 25, Art XVIII]
160
When can the president enter into an executive agreement on foreign military bases, troops, or facilities?
If
a. it is not the instrument that allows the presence of foreign miltary bases, troops or facilities; or
b. it merely aims to implement an existing law or treaty
161
What are the legal standards to determine whether a military base or facility in the Philippines, which houses or is accessed by foreign miltary troops, is foreign or remains a Philippine military base or facility?
a. independence from foreign control
b. sovereignty and applicable law
c. national security and territorial integrity
[Saguisag v Executive Secretary]
162
What is the legal basis for the validity of the Visiting Forces Agreement?
The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty.
The VFA is therefore valid for it is a presence allowed under the RP-US Mutual Defese Treaty. Since the RP-US Mutual Defense Treaty itsel has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence [Nicolas v Romulo]
163
Distinguish Executive Agreements from Treaties.
Treaties - international agreements involving political issues or changes in national policy and those involving international agreemnens of PERMANENT CHARACTER
Executive Agreements - international agreements involving ADJUSTMENTS IN DETAIL carrying out well-established national policies and traditions and those involving a more or less TEMPORARY CHARACTER
[Commissioner of Customs v Eastern Sea Trading]
164
What are the 2 classes of Executive Agreement?
a. Presidential Agreements - agreements purely as executive acts affecting external relations and independent of or without legislative authorization
b. Congressional-executive agreements - agreements entered into in pursuance of acts of Congress
165
What are the requisites for contracting and guranteeing foreign loans?
a. with the concurrence of the monetary board [Sec 20, Art VII]
b. subject to limitations as may be provided by law [Sec 2, Art XII]
c. Information on foreign loans obtained or guaranteed shall be made available to the public [Sec 2, Art XII]
166
What are the 2 ways of Deporting an Undesirable Alien?
a. By the order of the President after due investigation [ch 3, bk III of the Admin Code of 1987]
b. By the Commissioner of Immigration under Section 37 of the Immigration Law [Qua Chee Gan v Deportation Board]
167
FIB
The ______________ can entertain deportation based on the grounds not specified in Sec 37 of the Immigration Law. The Board has________________ the alien even if he had not been convinced yet.
Deportation Board;
| jurisdiction to investigate
168
FIB
The President's power to deport aliens and to investigate them subject to deportation are provided in _______________________.
Chapter 3. Book III, of the Admin Code of 1987
169
What does the budget (general appropriations bill) indicate?
a. expenditures of the government
b. sources of financing
c. receipts from revenue-raising measures
170
The Chief Executive is the ___________________ of the existence of facts which would warrant the deportation of aliens.
sole and executive judge
[Go Tek v Deportation Board]
171
What are the requisites for contracting and guranteeing foreign loans?
a. with the concurrence of the monetary board [Sec 20, Art VII]
b. subject to limitations as may be provided by law [Sec 2, Art XII]
c. Information on foreign loans obtained or guaranteed shall be made available to the public [Sec 2, Art XII]
172
What is the Congress' role in foreign loans?
The President does not need prior approval by the Congress
a. because the Constitution places the power to check the President's power on the Monetary Board
b. But the Congress may provide guidelines and have them enforced through the Monetary Board
173
When may the President exercise delegate legislative powers?
The President, under MARTIAL LAW or in a REVOLUTIONARY GOVERNMENT, may exercise delegated legislative power. [see Art VI, Sec 23 (2)]
Congress may delegate legislative powers to the president in times of WAR or in other NATIONAL EMERGENCY. [Bernas]
174
FIB
Sec 22, Art VII
The President shall submit to Congress within ___________ from the opening of every regular session, as the basis of the _______________, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.
thirty days;
| general appropriations bill
175
What does the budget (general appropriations bill) indicate?
a. expenditures of the government
b. sources of financing
c. receipts from revenue-raising measures
176
FIB
| The budget is the _________ of the appropriations bill to be passed by Congress.
upper limit
177
Art VI, Sec 28
The Congress may, by law, authorize the President to fix
1. within specified limits, and
2. subject to such limitations and restrictions as it may impose: (enum)
a. tarriff rates
b. import and export quotas
c. tonnage and wharfage dues
d. other duties or imposts within the framework of the national development program of the Government
178
What is the limitations for when Congress to authorize the President to fix tarrif rates etc?
1. within specified limits
| 2. subject to such limitations and restrictions as it may impose
179
When may the President exercise delegate legislative powers?
The President, under MARTIAL LAW or in a REVOLUTIONARY GOVERNMENT, may exercise delegated legislative power. [see Art VI, Sec 23 (2)]
Congress may delegate legislative powers to the president in times of WAR or in other NATIONAL EMERGENCY. [Bernas]
180
Enumerate the rules on the Emergency Powers of the President [Art VI, Sec 23]
1. in times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy
2. unless sooneer withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof
181
What is the difference bet. the President's Emergency Power and Commander-in-Chief power?
a. When the President acts under the Commander-in-Chief clause, he acts under a constitutional grant of military power, which may include the law-making power.
b. When the President acts under the emergency power, he acts under a Congressional delegaton of law-making power.
182
What is the meaning of "power necessary and proper" in Sec 23, Art VI?
power to issue rules and regulation
183
What was the two standards enumerated by the Court in Marcos v Manglapus in the President's exercise of its Residual Power?
1. there must be a factual basis
| 2. the impairment must not be arbitrary
184
What are the opposing view bet the Constitution and jurisprudence re when the emergency power ceases?
Constitution:
The emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress
Cases:
The emergency powers shall cease upon the resumption of session.
185
What is the general rule re the veto power of the President?
All bills must be approved by the President before they become law.
186
What are the exeptions to the President's veto power?
a. the veto of the President is overridden by 2/3 vote of all Members of the House where it originated
b. The bill lapsed into law bacause of the President's failure to act on the bill within 30 days; and
c. The bill passed is the special law to elect the President and Vice President
187
What are the limitations to the President's veto power?
The President may only veto bills as a whole
Exception: In appropriation, revenue, or tariff bills, the President may veto particular items.
188
What is the general doctrine behind the President's Residual Power?
General Doctrine: The President has unstated residual powers, which are implied from the grant of executive power necessary for her to comply with her Constitutional duties, such as to safeguard and protect the general welfare. It includes powers unrelated to the execution of any provision of law. [Marcos v Manglapus]
189
What was the two standards enumerated by the Court in Marcos v Manglapus in the President's exercise of its Residual Power?
1. there must be a factual basis
| 2. the impairment must not be arbitrary
190
What are the 2 kinds of Executive Privilege in Neri v Senate Committee?
a. Presidential Communications Privilege (President)
| b. Deliberate Process Privilege (Executive Officials)
191
NOTE:
While the President could validly declare teh existence of a state of national emergency even in the absence of a Congressional enactment, the exercise of the emergency powers, such as the taking over of privately-owned public utility or business affected with public interest, requires a delegation from Congress which is the repository of emergency powers {David v Macapagal- Arroyo]
reiterate
192
What are the varieties of Executive Privilege (US)?
a. State secrets privilege - invoked by US Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives
b. informer's privilege - the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law
c. generic privilege for internal deliberations - has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies. [senate v ermita]
193
Who can invoke Executive Privilege?
1. President
2. Executive President, by order of the President
Executive privilege is properly invoked in relation to specific categories of information and not to categories of persons - it attaches to the information and not the person.
[Senate v Ermita]
194
What are the requisites for invoking presidential privilege?
1. Formal Claim of Privilege - for the privilege to apply there must be a formal claim of the privilege (President or Executive Secretary)
2. Specifity requirement - a formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving confidentiality. Without this specifity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. [Senate v Ermita]
195
What are the requisites for validity of claim of privilege?
a. Quintessential and non-delegable presidential power: power subject of the legislative inquiry must be expressly granted by the Constitution to the President, eg commander-in-chief, appointing, pardonign, and diplomatic powers
b. Operational Proximity Test - it must be authored, solicited, and received by a close advisor of the President or the President himself. The judical test is that an advisor must be in "operational proximity" with the President
c. No adequate need to limit privilege - the privilege may be overcome by a showing of adequate need, such that the information sought "likely contains important evidence" and by the unavailability of the information elsewhere by an appropriate investigating authority [Akbayan v Aquino]
196
What does "operational proximity" entail?
Officials who stand proximate to the President, not only by reason of their FUNCTION, byt also by reason of their POSITIONS in the Executive's organizational structure
