CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

POWERS OF THE PRESIDENT traditionally considered as within the scope of

‘executive power’. Corollarily, the powers of the
The President has profound influence derived from the
President cannot be said to be limited only to the
vast powers conferred on him that enable him to assume
specific powers enumerated in the Constitution.
leadership in the conduct of public and governmental
In other words, executive power is more than the
affairs.
sum of specific powers so enumerated.”
 Leadership in the:  The President may not amend by Executive
o Enforcement of laws Order the functions of the Commission on Higher
o Conduct of foreign affairs Education without prior legislative authority.
o Command of the armed forces
Administrative Code, on the “residual powers” of the
o Administration of the government
President: “unless Congress provides otherwise, the
o Crystallization of public opinion
President shall exercise such other powers and functions
1935 Constitution: complete assumption of executive vested in the President which are provided for under the
power. laws and which are not specifically enumerated above,
or which are not delegated by the President in
 Villena v. Secretary of Interior, “the President of accordance with the law.”
the Philippines is the Executive of the
Government of the Philippines.  The Administrative Code of 1987 gives the
 Planas v. Gil, “all executive authority is thus President continuing authority to reorganize
vested in him.” and redefine the functions of the Office of the
 Myers v. United States, “the enumeration (of President – “the President implicitly has the
specific executive powers) ought therefore to be power to effect less radical or less substantive
considered as intended merely to specify the changes to the functional and internal structure
principal articles implied in the definition of of the Office of the President, including the
power, leaving the rest to flow from the general modification of functions of such executive
grant of that power.” agencies as the exigencies of the service may
require.”
Reconsidered views, stricter interpretation of executive
power: E.O. 292, “continuing delegated legislative authority to
reorganize.”
 Lacson v. Roque and Mondano v. Silvosa, the
President’s power of general supervision over  Section 31 (1) of EO 292 [Reorganization of the
local governments could be exercised by him Office of the President Proper]
only “as may be provided by law” in accordance o By abolishing, consolidating, or merging
with the constitutional limitation. units, or by transferring functions from
 Steel Seizure Case, Justice Black: “I cannot accept one unit to another.
the view that this clause is a grant in bulk of all  Section 31 (2) and (3) of EO 292 [Reorganization
conceivable executive power but regard it as of the offices outside of the Office of the
allocation to the presidential office of the President Proper but still within the Office of the
generic powers thereafter stated.” President]
o Limited to merely transferring functions
However in: or agencies from the Office of the
 Marcos v. Manglapus, we hold the view that President to Departments or Agencies,
although the 1987 Constitution imposes and vice versa.
limitations on the exercise of specific powers of  Why distinction between the two is important:
the President, it maintains intact what is o Affects employees’ tenurial security
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

o It touches upon the validity of the Proclamations – acts of the President fixing a date or
reorganization (whether the executive declaring a status or condition of public moment or
actions undertaken fall within the interest, upon the existence of which the operation of a
limitations prescribed under EO 292. specific law or regulation is made to depend, and which
shall have the force of an executive order.
On the other hand, certain powers have been
acknowledged as pertaining to the President despite the Memorandum Orders – acts of the President on matters
absence of express conferments upon him of the same. of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office
Example:
of the Government.
 The authority of the President to conduct peace
Memorandum Circulars – acts of the President on
negotiations with rebel groups from the general
matters relating to internal administration, which the
responsibility to promote public peace.
President desires to bring to the attention of all or some
 The authority to declare a state of rebellion of the departments, agencies, bureaus or offices of the
springs from the Commander-in-Chief powers. Government, for information or compliance.
 The authority to choose the individual to whom
immunity would be granted. General or Special Orders – refer to acts and commands
of the President in his capacity as Commander-in-Chief
The President does not have the power to issue decrees. of the Armed Forces of the Philippines.
 David v. Arroyo, it declared unconstitutional Specific powers vested in the President by the
President Arroyo’s proclamation 1017 which Constitution:
authorized her to issue decrees, “legislative
power is peculiarly within the province of the  The Appointing Power
Legislature” and “neither Martial Law nor a state o The Removal Power
of rebellion nor a state of emergency can justify  The Control Power
President Arroyo’s exercise of legislative power  The “Take-Care” Clause
by issuing decrees.”  The Military Power
o Command of the Armed Forces
The President is granted Ordinance Powers under
o Habeas Corpus
Chapter 2, Book II of Executive Order No. 292
o Martial Law
(Administrative Code of 1987) and may issue the
 The Pardoning Power
following:
 The Borrowing Power
 Executive Orders  The Diplomatic Power
 Administrative Orders  The Budgetary Power
 Proclamations  The Informing Power
 Memorandum Orders  Other Powers
 Memorandum Circulars o Call the Congress to special sessions
 General or Special Orders o To approve or veto bills
o To consent the deputization of
Executive Orders – acts of the President providing for government personnel by the COMELEC
rules of a general or permanent character in o To discipline its deputies
implementation or execution of constitutional or o By delegation, exercise emergency and
statutory powers. tariff powers
Administrative Orders – acts of the President which
relate to particular aspects of governmental operations
in pursuance of his duties as administrative head.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

THE APPOINTING POWER o When it is repugnant to the nature of the

office involved.
Section 16, Article VII of the 1987 Constitution
 The power to issue an acting appointment is
Power of Appointment – Luego v. Civil Service authorized by the Administrative Code of 1987.
Commission, ‘is an essentially discretionary power and  Purpose: to prevent a hiatus in the discharge of
must be performed by the officer in which it is vested official functions.
according to is best lights, the only condition being that  Separation from the service does not import
the appointee should possess the qualifications required removal but merely the expiration of his term –
by law. If he does, then the appointment cannot be a mode of termination of official relations that
faulted on the ground that there are others better falls outside the coverage of the constitutional
qualified who should have been preferred.” provision on security of tenure since no removal
from office is involved.
Appointment – “The act of designation by the appointing
 Staggering the term of office
officer, body or board, to whom that power has been
o Purpose:
delegated, of the individual who is to exercise the
 Minimize the appointing
functions of a given office.”
authority’s opportunity to
 The appointing power may be exercised by the appoint a majority of the
Legislature and by the Judiciary, as well as the members of a collegial body.
Constitutional Commissions, over their own  Ensure the continuity of the
respective personnel. body and its policies.
o Is not a statutory prohibition, direct
May be done: or indirect, against the issuance of
 Verbally an acting appointment.
 in writing (usually) through the Commission o It does not negate the authority to
o Commission – the written evidence of an issue acting appointments granted
appointment. by the Administrative Code.
 Conditions for the prohibition of issuing an
Permanent Appointments – those extended to persons acting appointment:
possessing the requisite eligibility and are thus protected o Must be specific
by the constitutional provision on security of tenure. o There must be a clear repugnancy
Temporary or Acting Appointments – are given to between the nature of the office and the
persons without such eligibility; are revocable at will and temporary appointment.
without the necessity of just cause or valid investigation;  Essence of an acting appointment:
extended upon the understanding that the appointing o Temporariness
power has not yet decided on a permanent appointee o Revocability at any time by the
and that the temporary appointee may be replaced at appointing authority
any time a final choice have been made; term of office is  The petitioner in a quo warranto proceeding
not fixed but endures at the pleasure of the appointing who seeks reinstatement to an office, on the
authority. ground of usurpation or illegal deprivation, must
prove his clear right to the office for his suit to
General v. Uro: succeed; otherwise his petition must fail.
 The power to appoint vested in the President Designation – the imposition of additional duties, usually
includes the power to make temporary by law, on a person already in public service. It is
appointments unless: different from permanent or temporary appointments.
o He is otherwise specifically prohibited by
the Constitution, or by law, or
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

 It does not entail payment of additional benefits 3. Officers of the armed forces from the rank of
or grant upon the person so designated the right colonel or naval captain
to claim the salary of the position. 4. Those other officers whose appointments are
o The legal right of an employee to claim vested in him by the Constitution
salary is based on the appointment, not 5. All other officers of the government whose
designation. appointments are not provided by law
 Where a person is merely designated and not 6. Those whom he may be authorized by law to
appointed, the implication is that he shall hold appoint
the office only in a temporary capacity and may
be replaced at will by the appointing authority.  Some officers whom the President is authorized
In this sense, the designation is considered only by law to appoint are the members of the various
an acting appointment. statutory administrative agencies.
 Both temporary appointment and designation o Ex.: Officers-in-Charge of the
are not subject to confirmation by the Autonomous Region of Muslim
Commission on Appointments. Mindanao
o Erroneous confirmation will not make
Example of appointments without need of confirmation
the incumbent a permanent appointee.
from the Commission on Appointments:
Pimentel v. Ermita
 Chairman of the Commission on Human Rights
 Congress, through a law cannot impose on the  Ombudsman and his deputies
President the obligation to appoint  Customs Commissioner (Sarmiento v. Mison)
automatically the undersecretary as temporary  Chairman of the National Labor Relations
alter ego. An alter ego, whether temporary or Commission
permanent, holds a position of great trust and  Members of the Supreme Court and judges of
confidence. Congress, in the guise of prescribing lower courts
qualifications to an office, cannot impose on the  Appointment of the Vice-President to the
President who /her/ alter ego should be. Cabinet
 Section 1, Chapter 5. Title I, Book III of EO 292.
o The President may even appoint in an Sarmiento v. Mison
acting capacity a person not yet in the  The clear and expressed intent of the framers of
government service, as long as the the Constitution was to exclude presidential
President deems that person appointments from confirmation by the
competent. Commission on Appointments, except
 Limitations on the executive power to appoint appointments to offices expressly mentioned in
are construed strictly against the legislature. the first sentence of Section 16, Article VII.
o The scope of the legislature’s  The 1987 Constitution deliberately excluded the
interference in the executive’s power to position of ‘heads of bureaus’ from
appoint is limited to the power to appointments that need the consent of the CA.
prescribe the qualifications to an
appointive office. Example of appointments which need confirmation from
the Commission on Appointments:
Six (6) Categories of Officials who are subject to the
Appointing Power of the President:  Sectoral representatives appointed by the
President to the House of Representatives
1. The heads of the executive department  Chairmen and Members of the Constitutional
2. Ambassadors, other public ministers and consuls Commissions
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

 Regular members of the Judicial and Bar Council Next Adjournment – refers to the termination of the
next regular or special session of Congress. (Guevera v.
Officers Lower in Rank – should not be understood as
Inocentes)
referring to petty or unimportant officers but those
below the rank of or subordinate to those whom the Matibag v. Benipayo:
power of appointment is vested.
 An ad interim appointment is a permanent
 The Congress may allow the appointments of appointment because it takes effect
officers lower in rank to be made by the immediately and can no longer be withdrawn by
President alone, the courts, and the heads of the President once the appointee has qualified
departments, agencies, commissions and into office.
boards.  It being subject to the confirmation of the CA
does not alter its permanent character.
Steps in the Regular Appointing Process:
 The Constitution itself makes an ad interim
1. Nomination (made by the President) appointment permanent in character by making
2. Confirmation (prerogative of the Commission on it effective until disapproved by the CA or until
Appointments) the next adjournment of Congress.
3. Issuance of the Commission (done by the  When ad interim appointment lapses by inaction
President) by the CA, as when it fails or refuses to act on the
same until the next adjournment of Congress, it
Steps in the Ad Interim Appointing Processs:
would not constitute a term of office.
 The appointment comes before the confirmation  The period from the time the ad interim
(which is made by the CA when it reconvenes) appointment is made to the time it lapses is
 The nomination is made during the recess and neither a fixed term nor an expired term.
becomes effective then to confirmation or  Purpose: to prevent a hiatus in the discharge of
rejection during the next legislative session. official duties.

Distinction between REGULAR and AD INTERIM Limitations to the President’s Power of Appointment:
appoitments:
1. May be limited by Congress through its power to
REGULAR APPOINTMENT prescribe qualifications for public office.
2. The Judiciary may annul an appointment made
 Appointment is made during legislative by the President if the appointee has not been
session validly confirmed or does not possess the
 Made only after the nomination is confirmed required qualifications.
by the Commission on Appointments
 Once confirmed by the CA, continues until Two Special Limitations:
the end of the term of the appointee. 1. Section 14, Article VII – emphasizes the
AD INTERIM APPOINTMENT caretaker capacity of the Acting President, at the
same time allows the elected President to ratify
 Appointment is made during recess his appointments by mere inaction during the
 Made before the confirmation of the CA specified 90 days.
 Shall cease to be valid if disapproved by the CA 2. Section 15, Article VII – to prevent use, or abuse,
or upon the next adjournment of Congress. of the appointing power for the purpose of
o In the latter case, the appointment is enlisting political support in exchange for some
deemed “by-passed” through inaction, appointive office in the government. This also
and so disapproved impliedly by the CA. prevents “midnight appointments”.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

a. This does not cover appointments to the accordance with the prescribed administrative
Supreme Court. (De Castro v. JBC) procedure.

 Exception: with respect to the members of the

 Luego v. Civil Service Commission, the Civil
Cabinet or to other executive officials whose
Service Commission is not “empowered to
term of office is determined at the pleasure of
determine the kind or nature of the appointment
the President.
extended by the appointing officer, its authority
being limited to approving or reviewing the A removal presupposes a forcible and permanent
appointment in the light of the requirements of separation of the incumbent from office before the
the Civil Service Law. expiration of his term.

 Lacson v. Romero, an appointment is deemed

complete only upon its acceptance. Pending THE CONTROL POWER
such acceptance, which is optional to the
appointee, the appointment may still be validly Section 17, Article VII of the 1987 Constitution (this is a
withdrawn. self-executing provision)
o Appointment to a public office cannot  The President derives his power directly from
be forced upon any citizen except for the Constitution and not from any implementing
purposes of the defense of the State legislation.
under Article II.
“The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that
“Where there are offices which have to be filled, but the the laws be faithfully executed.”
law does not provide the process for filling them, the
Constitution recognizes the power of the President to fill Control – “the power of an officer to alter or modify or
the office by appointment. Any limitation or qualification nullify or set aside what a subordinate officer had done
to the exercise of the President’s appointment power in the performance of his duties and to substitute the
should be strictly construed and must be clearly stated in judgment of the former for that of the latter.” It is
order to be recognized.” stronger than supervision.

THE REMOVAL POWER It includes:

From the express power of appointment, the President  The authority to order the doing of an act by a
derives the implied power of removal. subordinate
 To undo such act
 But not all officials appointed by him are also
 Assume a power directly vested in him by law
removable by him. For example:
o Members of the Supreme Court Supervision – “overseeing or the power or authority of
o Members of the Constitutional an officer to see that subordinate officers perform their
Commissions duties. If the latter fail or neglect to fulfill them, then the
o Judges of Inferior Courts former may take such action or steps as prescribed by
o Ombudsman (but Deputy Ombudsmen law to make them perform these duties.”
may be removed by the President)
For more distinction between control and supervision,
o Elected local officials
see Drilon v. Lim.
The Removal Power may be exercised by the President
 Theoretically, the President has full control of all
only for cause as may be provided by law and in
the members of his Cabinet, since they are
merely is alter ego. He may appoint them as he
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

sees fit, shuffle them at pleasure, and replace o Also subject to the rule-making authority
them in his discretion without legal inhibition. of the Supreme Court

Doctrine of Qualified Political Agency – Villena v.

 Lacson-Magallanes Co., Inc. v. Pano /on the issue
Secretary of Interior, “without minimizing the
of whether or not the administrative decision
importance of the heads of various departments, their
could still be appealed to the President/
personality is in reality but the projection of that of the
o “Implicit then is his authority to go over,
President.” Accordingly, their acts “performed and
confirm, modify or reverse the action
promulgated in the regular course of business, are,
taken by his department secretaries. It
unless disapproved or reprobated by the Chief Executive,
may not be said that the President
presumptively the acts of the Chief Executive.”
cannot rule on the correctness of a
 This doctrine does not apply to acts of cabinet decision of a department secretary.
secretaries done in their capacity as ex officio
board directors of GOCCs of which they became  The power of control is exercisable by the
members not by appointment of the President President over the acts of his subordinates and
but by law. not necessarily over the subordinate himself.
o Ang-Angco v. Castillo “not over the actor
Trade and Investment Development Corporation of or agent himself of the act.
the Philippines v. Manalang-Demigillo

Doctrine in recognition of the fact that:  De Leon v. Carpio, as a subordinate in this

Department (DoJ), the respondent was bound to
 In the Philippines’ presidential form of obey the Secretary’s directives, which are
government, all executive organizations are presumptively the acts of the President of the
adjuncts of a single Chief Executive; Philippines.
 The heads of the Executive Departments are
assistants and agents of the Chief Executive;  Orosa v. Roa, the Department of Justice is not a
 That the multiple executive functions of the quasi-judicial body. Its preliminary investigation
President as the Chief Executive are performed of a case is therefore not a quasi-judicial
through the Executive Departments. proceeding.
See also: Araneta v. Gatmaitan:

Doctrine of Exhaustion of Administrative Remedies – a THE “TAKE-CARE” CLAUSE

party aggrieved by an order of an administrative official The energy or indifference with which he discharges this
should first appeal to the higher administrative authority power will determine the measure of his success as Law
before seeking judicial relief. Otherwise, the complaint Enforcer.
will be dismissed for being premature or for having no
cause of action. The law he is supposed to enforce includes:

 Such appeal would however not be necessary or  The Constitution

required when there exists a special law that  Statutes
provides for a different mode of appeal.  Judicial Decisions
 “Executive control” is not absolute. It may be  Administrative Rules and Regulations
limited by:  Municipal Ordinances
o The Constitution
Until and unless a law is declared unconstitutional, the
o Law
President has a duty to execute it regardless of his doubts
o Judicial decision
on its validity.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

 Biraogo v. The PhilippineTruth Commission of 2. Suspend the privilege of the writ of

2010¸ that the authority of the President to habeas corpus
conduct investigation and to create bodies to 3. Declare a state of martial law
execute his power is not explicitly mentioned in
COMMAND OF THE ARMED FORCES
the Constitution or in statutes does not mean he
is bereft of such authority. The “power of the sword” makes the President the most
1. The Executive is given much leeway in important figure in the country in times of war or other
ensuring that our laws are faithfully similar emergency.
executed.
2. The powers of the President is not  It is because the sword must be wielded with
limited to those specified under the courage and resolution that the President is
Constitution. given vast powers in the making and carrying out
3. This power includes the authority to of military decisions.
create ad hoc committees. This is from The President can:
the obvious need to ascertain facts and
determine if laws have been faithfully  Determine what degree of force a particular
executed. crisis demands;
 Organize courts martial for the discipline of the
Faithful-execution Clause – Section 17, Article VII of the members of the armed forces violating military
1987 Constitution. “Obligation to see to it that laws are law;
faithfully executed necessitates the corresponding  Create military commissions for the punishment
power in the President to conduct investigations into the of war criminals; and
conduct of officials and employees in the executive  Call out the armed forces to prevent or suppress
department.” lawless violence, invasion, or rebellion.

Courts Martial – Ruffy v. Chief of Staff, agencies of

THE MILITARY POWER executive character which may be convened by the
Section 18, Article VII of the 1987 Constitution President independently of legislation and by virtue only
of his constitutional function as commander-in-chief.
 This section bolsters the principle announced in Unlike courts of law, they are not a portion of the
Article II, Section 3: ‘Civilian authority is, at all Judiciary.
times, supreme over the military.’
 It is important that the military be subordinated  Garcia v. Executive Secretary, the “general court
to the President so he can keep it in check martial is a court within the strictest sense of the
whenever it is tempted to impose its will upon word and acts as a criminal court.
the government.  “The power to confirm a sentence of the
 Although the President is made the Commander- President, as Commander-in-Chief, includes the
in-Chief of all the armed forces, he will be so only power to approve or disapprove the entire or any
if there are armed forces to command. These part of the sentence given by the court martial.”
armed forces will be raised by the Congress in
the exercise of its general legislative power,  Olaguer v. Military Commission No. 34, “Since we
particularly Section 4, Article II of the are not enemy-occupied territory nor are we
Constitution. under a military government and even on the
premise that martial law continues in force, the
 The Military Power enables the President to: military tribunals cannot try and exercise
1. Command all the Armed Forces of the jurisdiction over civilians for civil offenses
Philippines committed by them which are properly
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

cognizable by the civil courts that have remained specific duty to prevent and suppress rebellion
open and have been regularly functioning.” and lawless violence.”
o “A Court Martial is not yet an
independent instrument of justice but  The President, as Commander-in-Chief, may
remains to a significant degree a validly prohibit a military officer from testifying
specialized part of the over-all in a legislative inquiry, without prejudice though
mechanism by which military discipline to the right of the legislative body seeking such
is preserved and that ex-servicemen testimony to obtain judicial relief to compel the
should be given ‘the benefits of a civilian attendance of the officer.
court trial when they are actually o Such judicial action should be directed at
civilians.’” the heads of the executive branch or the
armed forces, the persons who wield
Calling-Out Power – involves “ordinary police action,”
authority and control over the actions of
which would ordinarily not entitle him to “invoke a
the officers concerned.
greater power when he wishes to act under a lesser
power.” It is only the President who is authorized to
 Rodriguez v. Macapagal-Arroyo, citing Gonzales
exercise the calling-out power.
v. Abaya, the President, as Commander-in-Chief,
David v. Arroyo: can be held responsible or accountable for
extrajudicial killings and enforced
 “While the President alone can declare a state of
disappearances in the context amparo
national emergency, however, without proceedings.
legislation, he has no power to take over
privately-owned public utility or business Doctrine of Command Responsibility:
affected with public interest. In short, the
Requisites:
President has no absolute authority to exercise
all the powers of the State under Section 17, a) The existence of a superior-subordinate
Article VII in the absence of an emergency relationship between the accused as superior
powers act passed by Congress.” and the perpetrator of the crime as his
 The President cannot call the military to enforce subordinate;
or implement certain laws, such as: b) The superior knew or had reason to know that
o Customs laws the crime was about to be or had been
o Laws governing family and property committed; and
relations c) The superior failed to take the necessary and
o Laws on obligations and contracts and reasonable measures to prevent the criminal
the like acts or punish the perpetrators thereof.
 He can only order the military to enforce laws
HABEAS CORPUS
pertinent to its duty to suppress lawless
violence. The President is entrusted the power to suspend the
privilege of the writ of habeas corpus. This power is with
 “The President’s power to conduct peace limitations and may be revoked by the Congress or the
negotiations is implicitly included in her powers Supreme Court in proper cases.
as Chief Executive and Commander-in-Chief. As
the Chief Executive, the President has the  Section 18, Article VII must be read with Section
15, Article VIII of the 1987 Constitution.
general responsibility to promote public peace,
and as Commander-in-Chief, she has more Writ of Habeas Corpus – “is a writ directed to the person
detaining another, commanding him to produce the
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

body of the prisoner at a designated time and place, with  Under Section 13, Article III, “the right to bail
the day and cause of his caption and detention, to do, to shall not be impaired even if the privilege of the
submit to, and receive whatever the court or judge writ of habeas corpus is suspended.”
awarding the writ shall consider in his behalf. It is a high
MARTIAL LAW
prerogative common law writ of ancient origin the great
object of which is the liberation of those who may be in Martial Law – that law which has application when the
prison without sufficient cause.” military arm does not supersede civil authority but is
called upon to aid it in the execution of its civil function.
 What is permitted to be suspended by the
President is not the writ itself but its privilege.  The declaration of Martial Law has no legal effect
 It may not be availed of by police officers under than to warn the citizens “that the military
investigation and subjected to “restrictive powers have been called upon by the executive
custody order” issued by their superiors, limiting to assist him in the maintenance of law and order
their physical movements and liberty to leave and that while the emergency lasts, they must,
camps. upon pain of arrest and punishment, not commit
any act which will in any way render difficult the
Two (2) grounds for the suspension of the privilege of the
restoration of order and enforcement of law.”
writ of habeas corpus:

 Invasion or rebellion  The principle still holds good that necessity, and
 When the public safety requires it necessity alone, will justify an infringement
upon private rights of persons and property.
The Supreme Court has the power to annul the
suspension of the privilege of the writ of habeas corpus Effects:
if the same is not based on the two grounds.
 No new powers are given to the Executive
 Barcelona v. Baker, the determination by the  No extension of arbitrary authority is recognized
President of the Philippines of the existence of  No civil rights of the individuals are suspended
any of the grounds prescribed by the  The relation of the citizens to their State is
Constitution for the suspension of the privilege unchanged
of the writ of habeas corpus is conclusive upon o Whatever interference there may be
the courts. with their personal freedom or property
o Justification: with all the intelligence rights must be justified.
sources available to the President as  Commission of acts which in more tranquil times
Commander-in-Chief, he is in a better are not demanded
position than the Supreme Court to  Those in authority may control the individual in
ascertain the real state of peace and his property in ways which they could not legally
order in the country. do at other times.
Montenegro Doctrine – the suspension of the privilege Powers which may be exercised by the President during
of the writ of habeas corpus was a political question to a valid declaration of Martial Law:
be resolved solely by the President.
 Arrests and seizures without judicial warrants
Lansang Doctrine (Constitutionalized through Section  Ban on public assemblies
18) – the Supreme Court had the power to inquire into  Take-over of news media and agencies and press
the factual basis of the suspension of the privilege of the censorship
writ of habeas corpus.  Issuance of Presidential Decrees
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

LIMITATIONS ON THE MILITARY POWERS 10. The suspension of the privilege of the writ of
habeas corpus shall apply only to persons facing
Authority of the President as Commander-in-Chief:
charges of rebellion or offenses inherent in or
1. He may call out the armed forces when it directly connected with invasion.
becomes necessary to prevent or suppress
Under the 1987 Constitution, the President and the
lawless violence, invasion or rebellion only.
Congress act in tandem in exercising the power to
2. The grounds for the suspension of the privilege
proclaim martial law or suspend the privilege of the writ
of the writ of habeas corpus and the
of habeas corpus.
proclamation of martial law are now limited only
to invasion or rebellion, when the public safety  Although the Supreme Court has the power to
requires it. review the sufficiency of the factual basis of the
3. The duration of such suspension and proclamation and suspension, it is implicit that
proclamation shall not exceed sixty (60) days, the Court must allow the Congress to exercise its
following which it shall be automatically lifted. own review powers, which is automatic rather
4. Within forty-eight (48) hours after such than initiated.
suspension or proclamation, the President shall o Only when Congress defaults in its
personally or in writing report his action to the express duty to defend the Constitution
Congress. If not in session, the Congress must through such review should the
convene within twenty-four (24) hours without Supreme Court step in as its final
need of a call. rampart.
5. The Congress may then, by majority vote of all its  The constitutional validity of the declaration or
members voting jointly, revoke his action. proclamation is first a political question in the
6. The revocation may not be set aside by the hands of Congress before it becomes a
President. justiciable one in the hands of the SC.
7. By the same vote and in the same manner, the
Congress may, upon initiative of the President,
extend his suspension or proclamation for a THE PARDONING POWER
period to be determined by Congress if the
invasion or rebellion shall continue and the Section 19, Article VII of the 1987 Constitution
public safety requires the extension. Executive clemency is granted for the purpose of
8. The action of the President and the Congress relieving the harshness of the law or correcting mistakes
shall be subject to review by the Supreme Court in the administration of justice.
which shall have the authority to determine the
sufficiency of the factual basis of such action.  Under the Revised Penal Code, the judge may, in
This matter is no longer a political question and his decision, make a recommendation for the
may be raised by any citizen in an appropriate pardon of the convict if warranted by the
proceeding. Moreover, the Supreme Court must circumstances.
decide the challenge within thirty (30) days from  The exercise of the pardoning power is
the day it is filed. discretionary in the President and may not be
9. Martial law does not automatically suspend the controlled by the Legislature or reversed by the
privilege of the writ of habeas corpus or the courts, save only when it contravenes
operation of the Constitution. The civil courts limitations.
and the legislative bodies shall remain open.
Pardon – is an act of grace which exempts the individual
Military courts and agencies are not conferred
on whom it is bestowed from the punishment which the
jurisdiction over civilians where the civil courts
law inflicts for the crime he has committed.
are functioning.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

o Commutation – is a reduction or mitigation of  Conditional: the offender has the right to

the penalty, e.g., when the death sentence is reject it.
reduced to life imprisonment. o The condition of the pardon shall be
co-extensive with the penalty
Reprieve – merely a postponement of a sentence to a
remitted unless otherwise indicated.
date certain, or a stay of execution. It may be ordered to
o If a violation takes place before the
enable the government to secure additional evidence to
expiration of the remitted penalty,
ascertain the guilt of the convict or, in the case of
the pardon is deemed invalidated
execution of the death sentence upon a pregnant
and the pardonee may either (1) be
woman, to prevent the killing of her unborn child.
recommitted by the President under
Constitutional Limitations on the Pardoning Power: the Administrative Code or (2)
prosecuted for violation of
1. Pardon cannot be granted in cases of conditional pardon under Article
impeachment. 159 of the RPC.
o An impeachment proceeding is not a judicial,
o In the latter, the penalty of prision
much less a criminal, prosecution and does
correctional in its minimum period
not essentially come under the pardoning shall be imposed upon the convict,
power. However, the party convicted in an except when the penalty remitted is
impeachment proceeding is subject to
higher than six (6) years, in which
prosecution, trial and punishment in an
event he shall serve the unexpired
ordinary criminal action and in this case can portion of his sentence.
be extended a pardon. o Culanag v. Director of Prisons, that
2. No pardon can be granted for the violation of any
these criminal and administrative
election law, rule or regulation without the
remedies are not mutually exclusive
favorable recommendation of the COMELEC.
and may be successively availed by
o Not every offense committed on election the President.
day is to be considered an election offense. o Espuelas v. Provincial Warden of
3. Pardon can be granted only after conviction by
Bohol, “mere commission, not
final judgment. necessarily conviction by the court,
o People v. Salle, a conditional pardon of any other crime, is enough in
extended on the prisoner while his appeal order that the petitioner may be
was still pending before the SC was invalid.
deemed to have violated the
Additional limitations: condition of his parole or pardon.
o Determination of such condition
 A pardon cannot be extended to a person rests exclusively in the sound
convicted of legislative contempt or of civil judgment of the Chief Executive.
contempt.
 Pardon cannot be extended for the purpose of  Absolute: the pardonee has no option, and
absolving the pardonee of civil liability, including must accept it whether he likes it or not. It is
judicial costs. similar to commutation, which is also not
 Pardon will not restore offices forfeited. subject to acceptance by the offender.
Kinds of Pardon:
2. Plenary or Partial – one under which the convict
1. Absolute or Conditional – one extended without is required to comply with certain requirements.
strings attached.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

 Plenary pardon extinguishes all the penalties The right to back wages is afforded to those who
imposed upon the offender, including have been illegally dismissed and were thus
accessory disabilities. ordered reinstated or to those otherwise
 A partial pardon does not. acquitted of the charges against them.

A convict who has already served his prison term may still While a pardon will not relieve the pardonee of the civil
be extended a pardon for the purpose of relieving him of liability or such other claims as may pertain to private
whatever accessory liabilities have attached to his litigants, it will, however, have the effect of remitting
offense. fines and forfeitures which otherwise will inure to the
interests of the government.
Effects of Pardon:
Parole – only a release of the convict from
 To restore not only the offender’s liberty but also imprisonment, but not a restoration of his liberty. The
his civil and political rights. parolee is still in the custody of the law although no
Monsanto v. Factoran: longer under confinement. This is executive;
presupposes the prior service of part of the sentence.
 Pardon cannot mask the acts constituting the
crime. Probation – is judicial; may be granted before actual
 Pardon granted after conviction frees the service of sentence.
individual from all the penalties and legal AMNESTY
disabilities and restores him to all his civil rights.
But unless expressly grounded on the person’s  The Constitution itself provides that it can be
innocence (which is rare), it cannot bring back granted by the President only with the
lost reputation for honesty, integrity and fair concurrence of the majority of all members
dealing. Congress.
 We are in full agreement with the commonly-  It requires a previous admission of guilt since a
held opinion that pardon does not ipso facto person would not need the benefit of amnesty
restore a convicted felon to public office unless he were guilty of the offense covered by
necessarily relinquished or forfeited by reason of the proclamation.
the conviction although such pardon
Amnesty v. Pardon:
undoubtedly restores his eligibility for
appointment to that office. 1. Amnesty is usually addressed to crimes against
the sovereignty of the State, to political offenses,
Garcia v. Chairman, Commission on Audit:
forgiveness being deemed more expedient for
 If the pardon is based on the innocence of the the public welfare than prosecution and
individual, it affirms this innocence and makes punishment; Pardon condones infractions of the
him a new man and as innocent, as if he had not peace of the State.
been found guilty of the offense charged. 2. Amnesty is usually generally addressed to
 When a person is given pardon because he did classes or even communities of persons; Pardon
not truly commit the offense, the pardon is usually addressed to an individual.
relieves the party from all punitive 3. In Amnesty, there may or may not be distinct
consequences of his criminal act, thereby acts or acceptance, so that if other rights are
restoring to him his clean name, good reputation dependent upon it and are asserted, there is
and unstained character prior to the finding of affirmative evidence of acceptance; in Pardon,
guilt. there must be distinct acts of acceptance.
 Petitioner’s automatic reinstatement to the 4. Pardon does not require the concurrence of the
government service entitles him to back wages. Congress; Amnesty requires such concurrence.
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

5. Pardon is a private act of the President which  Conclude treaties except in conformity with
must be pleaded and proved by the person Section 21, Article VII of the 1987 Constitution.
pardoned because the courts do not take judicial
Executive Agreement – is a treaty within the meaning of
notice of it; Amnesty is a public act of which the
that word in international law and constitutes
courts take judicial notice.
enforceable domestic law. Unlike a treaty though, an
6. Pardon looks forward and relieves the offender
executive agreement (1) does not require legislative
from the consequences of an offense of which he
concurrence, (2) is usually less formal and (3) deals with
has been convicted; while Amnesty looks
narrower range of subjects.
backward and abolishes and puts into oblivion
the offense itself; it so overlooks and obliterates  All that would be required for its efficacy would
the offense with which he is charged that the be:
person released by amnesty stands before the o the agreement must be between states
law precisely as though he had committed no o it must be written
offense. o must be governed by international law

Bayan Muna v. Romulo:

THE BORROWING POWER
 The terms “exchange of notes” and “executive
Section 20, Article VII of the 1987 Constitution agreements” have been used interchangeably.
 Supreme Court: “the fact that this power is  Exchange of Notes – is considered a form of
subject to the concurrence of another entity executive agreement that becomes binding
does not make it any less executive.” through executive action.
 The fact that the President has to secure the  Executive agreements concluded by the
prior concurrence of the Monetary Board, which President ‘sometimes take the form of exchange
shall submit to the Congress a complete report of notes and at other times that of more formal
of its decision before contracting or documents denominated ‘agreements’ or
guaranteeing foreign loans, does not diminish ‘protocols.’”
the executive nature of the power.  Under International Law, there is no difference
between treaties and executive agreements in
terms of their binding effects on the contracting
states concerned, as long as the negotiating
THE DIPLOMATIC POWER
functionaries have remained within their
Section 21, Article VII of the 1987 Constitution powers.
 Neither on the domestic sphere, can one be valid
As head of State, the President is supposed to be the
if it violates the Constitution.
spokesman of the nation in external affairs. He may:
 However, a treaty has greater ‘dignity’ than an
 Deal with foreign states and governments executive agreement, because its constitutional
 Extend or withhold recognition efficacy is beyond doubt.
 Maintain diplomatic relations  A treaty has the authority of (1) the President, (2)
 Enter into treaties the Senate, and (3) the people.
 Transact the business of foreign relations  A ratified treaty, unlike an executive agreement,
takes precedence over any prior statutory
The President of the Philippines is empowered to: enactment.
 Appoint ambassadors
 Other public ministers  “Treatises and international agreements actually
 Consuls have a limiting effect on the otherwise
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

encompassing and absolute nature of “In the Chief Executive dwell the powers to run the
sovereignty.” government. Placed upon him is the power to
recommend the budget necessary for the operation of
o Almost every time a state enters into an the Government, which implies that he has the necessary
international agreement, it voluntarily authority to evaluate and determine the structure that
sheds part of its sovereignty. each government agency in the executive department
o The Constitution did not envision a would need to operate in the most economical and
reclusive Philippines isolated from the efficient manner.
rest of the world.
 The Congress may not increase the
o The usual underlying consideration in
appropriations recommended by the President
this partial surrender may be the
for the operation of the Government as specified
greater benefits derived from a pact or a
in the budget.
reciprocal undertaking of one
contracting party to grant the same
privileges or immunities to the other. THE INFORMING POWER

Section 23, Article VII of the 1987 Constitution

An executive agreement cannot be used to amend a duly
ratified and existing treaty. The first sentence of this provision does not as a rule
impose a compellable duty to the President.

 Pimentel v. Executive Secretary, the power to  In his discretion, he may or may not give
ratify is vested in the President, subject to the information to the legislature, although he will
concurrence of Congress. The role of the Senate, usually choose to do so for practical reasons:
however, is limited only to giving or withholding
its consent, or concurrence, to the ratification. o He will want to maintain the good will of
o It is within the authority of the President the Congress and so will not deny its
to refuse to submit a treaty to the request for information if its release will
Senate or, having secured its consent for not prejudice the public interest.
its ratification, refuse to ratify it. o The requested information may be
needed as the basis of the legislation he
The treaty-making power is exclusive to the President. is recommending and he knows that
Congress, while possessing vast legislative powers, may lacking such basis the legislature would
not interfere in the field of treaty negotiations. be justified in not acting on his
proposals.
 Section 21, Article VII of the 1987 Constitution
pertains only to the validity of the treaty under The President usually discharges the informing power
consideration, not the conduct of negotiations through what is known as the state-of-the-nation
attendant to its conclusion. address, which is delivered at the opening of the regular
session of the legislature.
Treaties and other international agreements concluded
by the President are also subject to check by the  He may also appear before it at any other time
Supreme Court, which has the power to declare them for the same purpose.
unconstitutional.

OTHER POWERS
THE BUDGETARY POWER
 Call the Congress to special session
Section 22, Article VII of the 1987 Constitution  To approve or veto bills
 CHAPTER 11: POWERS OF THE PRESIDENT TRANSCRIBED BY BEA DOMINIQUE ABE

 To consent to the deputization of government

personnel by the Commission on Elections
 To discipline its deputies
 And by delegation, exercise emergency and tariff
powers

RESUME

“The President is not a Gulliver immobilized by ten

thousand tiny cords, nor even a Prometheus chained to
a rock of frustration. He is, rather, a kind of magnificent
lion who can roam widely and do great deeds so long as
he does not try to break loose from his broad
reservation. Our pluralistic system of restraints is
designed to keep him from going out of bounds, not to
paralyze him in the field that has been reserved for his
use. He will feel few checks upon his power if he uses that
power as he should. This may well be the final definition
of the strong and successful President: the one who
knows just as far as he can go in the direction he wants
to go. If he cannot judge the limits of his power, he
cannot call upon its strength. If he cannot sense the
possible, he will exhaust himself attempting the
impossible. The power of the President moves as a
mighty host only with the grain of morality and liberty.”
– Prof. Clinton Rossiter