204 TEXTBOOK ON THE PHI UPPll\E CONSTI 'l'UTIO~ Sec. 32
leged cla!>s which may transmit their classification by inheritance to their
children.:;
SEC. 32. The Congress shall, as early as possible, provide for
a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact
laws or approve or reject any act or law or part thereof passed
by the Congress orlocal legislative body after the registration of
any petition therefor signed by at least ten per centum of the
total number of registered voters, of which every legislative
district must be represented by at least three per centum of the
registered voters thereof. ·- ···
Meaning of initiative and .referendum.
(1) JtJitjg,_[iue. - If is the reserved power of the people to directly
propose and enact laws at polls called for the purpose independently of
Congress or of a local legislative body.
(2J..-.!ff!1er:e_ndu!....T!:.. - It is the process by which a ny act or law or part
thereof passed by Congress or by a local legislative body is s ubmitted to the
people for their approval or di sapproval.
Congress to provide a system of initiative
and referendum.
The Consti tution in Section 32 h as institutionalized what is popularly
known as "people's power"1 which was manifested with unprecedented
popular s upport during and after the 1986 presidential "snap" election and
in the "EDSA revolution."2 It manda tes Congress to provide, as early as
·11970 lJPLC Constitutiun Revision Project, p. B9.
1Thc t~rm wh ich has b~en iden t ified wi th Prc!'\id~n t Corazon C. Aqu ino who led it wi t h
the support of the Catholic Church, later became a paradigm of change in authoritarian
regimes worldwid~. It involv~d the largely p~accful ma ss demonstrations of gren t number of
peo ple gathering in meetings, marching, chanting, denouncing wrongdoings, and demanding
reforms, culmina t i•;g in the ou ster' of Prcs\d~nt Ferdinand Jo: . Marcos and his subseq uent
forced exile tu Hawaii. His last 14 year rule after the declaration of martial law in 1972 wa~<
perceived to hE' dicu•torial llnd reprc.~sivc.
~This feCit was re peated 15 years later by what h 11~ been r eferred to as Eds a II, wh i<·h
started on the nigh t ofJanuary 16, 2001 at the sa me spot ofthe EDSA-Shrim. and ended with
t he swearing on .January 20, 20~ I of Vice-President Gloria Maccpagal-Arroyo as the n~ w
President in place of President Josep h E. E:;t rada whu wa.o fo rced to give up the presidency
over allege d corruption and misr u le . 'l'he occasion for the ou ster was the wal k -out ()f prose~o"\t
tors in the impeachment trial of President l!~strada t riggering mass demonstrations and
withdrawal of institutional support led by the top military generals, ca binet m embers, ll.nd
justices of the Supreme Court. "EDSA I" was a ncar bloodless military "break-away" sup-
ported by t h e overwhelming strength of un a rmed civilians t hat assembled at EDSA on
February 22·25, 1986, while "EDSA II" was a peaceful civilian uprising, without force and
arms, th is time supported by unarmed top officers tmd men of the Armed Forces of t.he
Phili ppines (AFP l an d the Philippine Nationa l Police {PNP).
Sec. 32 ART. VI. - LEGISLATIVE DEl'ARTME!\T 205
possible, for a system of initiative and referendum, and the exceptions
therefrom. The condition for the exercise of these reserved powers is the
registration of a petition therefor signed by at least 10% of the total
n'..lmber of registered voters with every legislative district being repre-
sented by at least 3% of the registered voters in said district. Other details
for its implementation are to be determined by law to be enacted by
Congress.
Under Article XVII, Section 2, amendments to the Constitution may be
directly proposed by the people through initiative.
The incorporation in the Constitution of the devices of initiative and
referendum for proposing legislation or constitutioual amendments, or
subjecting acts of Congress or a local legislative body for approval or
rejection gives substance to the time- honored principle that in a republican
and democratic State "sovereignty resides in the people and all government
authority emanates from them." (Art. II, Sec. 1.) Through these processes,
aside from elections, plebiscites, and recalls, the people are able to articu-
late what they feel about certain political, social, and economic issues
confronting the country and, in the exercise of the ultimate, reserve power
of sovereignty given them, resort to direct action to compel obedience of the
government to their own demands, s hort of waging a revolution against it.
Our government, however, remains essentially a republican democ-
racy. (see Art. II, Sec. 1. }
-oOo-
Article VII
EXECUTIVE DEPARTMENT
SECTION 1. The executive power shall be vested in the
President of the Philippines.
President, the Executive.
Following the 1935 Charter, Section 1 vests the executive power in one
person alone - t.he President of the Philippines. It. is, therefore, accurate
to refer to him as t he Executive, not merely Chief Executive. The President
in a president ial system of government is, however, referred to also as the
Chief Exeeutive.
Under both the 1935 Constitution and the present Constitution, the
President is both the head of State and the head of the government. Unlike
the Prime l\linistcr under the 1973 Constitution (as amended), the Presi-
dent is not a legislative leader with membership in Congress. He is purely
an executlve. t
Meaning of executive power.
Executive power has been defined as the power to administer the laws,
which means'c a'r:rying them into practical operation and enforcing their
due observance.2
The "laws" include the Constitution, statutes enacted by Congress,
decrees (issued under the 1973 Constitution), and executive orders of the
President, and decisions of courts.
SEC. 2. No person may be elected President unless h e is a
natural-born citizen of the Philippines, a registered voter, a ble
to read and write, at least forty years of age.on the day of the
election, and a resident ofthe Philippines for at least ten years
immediately preceding such election.
'We ha v<' 1-1 l'nl~i dc·n t ';; from 1898 up to the pl'esen t. (see Note 34 to Introdu ction-C.)
2Coolt'y . f;nn .~ t. L imit.n iuns, 8th ed., p. 183.
206
Sec:;. 3·4 ART. VII. - J<~XEClJTIVE DEPMtTMENT 207
Qualifications of the President
.Vice-President.
; tion 2 provides for the basic or minimum qualifications of the Presi-
d
(l) He is a natural-born riti ?.en oftbe Philippi nes;
<2) He is a registered voter;
(3 J H e is abli~ to n~ad and write;
14 ) H e is at least forty (40 ) yea1·s of age on the day of t h e election (not
proclamation or assumption of offi ce) for President ; and
(5) H e ;,-- a resident of the Philippines for at ~east ten ( 10) years
immedia tely prc:.·eding such election.1
The Vice··President must h ave the same qualifications as the President.
<Sec. 3.) The Constitution doe~ not prescribe any educational, academic, or
literacy quallfication except only the ability to read and write, in line with
the egalitarian objectives of (lul'· democratic society.2 (see Preamb\e.)
SEC. 3. There shall be a Vice-Pres ident who shall have the
same qualifications and term ofoffice and b e elected with and in
t h e sam e manner as the President. He m ay be r emoved from
office in the same m a nner as the President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
The Vice-President.
The Vice-President shall have t he same qualifications and term of
office a s the President and may be r emoved from office on impeachment a::.
in the case of t he Presiden t. (Ar t . XI, Sec. 2. )
He may l e appointed as a member of the Cabinet without need of
confirmation by the Commission on Appointment::; in Congress. To reque~t
confirmation would degrade the dignity of the high office ofVice-President.
SEC. 4. The Preside nt and the Vice-President shall be elected
by direct vote of the p eople for a term of six years which shall
begin at noon on the thirtieth day ofJune next fol1 owing the day
of t he election and sh all end at noon of the same date six years
thereafter . The President shall not be eligible for any re-elec·
tion. No person who has su cceeded as Pres ident and has served
vr, a.1A,.; t.O llli:!CI.ning of "rcgi;;to red voter" a nd "n;:;i(h'll('C," .;f!p Articl(' Section
''Nev~rtheles1:1, it is believ~d that the Co n><titution as:<um es that the President, particu-
larly, i.!< morally and intellectually fi t nnd pn!:~.;><~e!l t:xc·cuti Ye al:>i lity to occupy the highest
offic•~ o f tht• land.
208 TKXTB<X)K ON THE PHiLIPPINE CONSTTTVTJON Sec.4
as such for more than four years shall be qualified for election to
the same office at any timt::.
No Vice-President shall serve for more than two successive
terms, Voluntary renunciation ofthe officefor any length oftime
shall not bE' <:.onsidered as an interruption in the continuity of
the service for the full term for which he was elected.
Unless otherwise provided by law, the regular election for
President and Vice-President shaH be held on the second Mon-
day of May.
The returns of every election for President and Vice-Presi-
dent, duly certified by the board ofcanvassers ofeach province
or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of
canvass, the President of the Senate shall, not later than thirty
days after tl.e day ofthe election, open all the certificates in the
presence ofthe Senate and the House ofRepresentativesinjoint
public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided
by law, canvass the votes.
The person having the highest number of votes shall be
proclaimed elect.ed, but in case two or more shall have an equal
and highest number of votes, one of them shall forthwith be
chosen by the vote of a majority of all the Members of both
Houses of the Congress~ voting separately.
The Congressshall promulgate its rules for the canvassingof
the certificates.
The Supremt' Court, sittingen ba.nc, shall be the solejudge of
all contests relating to the election, returns, and qualifications
ofthe President m· Vice-President, and may promulgate its rules
for the purpose.
Election of the President and
Vice-President
tl) S')'.'ltem of d;rect uoting. -The Constitut-ion retains the system of.
direct poputar e]c(~twn of the President despit.e criticism for abetting mas-
sive vote-buymg and other undesirable practices. ·
Ca i This is considered more democratic and more in keeping with
the Filipino culture and tradition tha l they individually vote for their
leader - their choice of th~ man who woulrl be their President. The
people should not bP deprived of the right to choose the head of their
government, considc;·ing that, having exercised it since 1935, this right
has acquired special significance for them.
Sec. 4 ART. VII.. ·- EXEC UTIVE DEPARTMENT 209
{b ) On the part of the President, the fact that he has popular
suppor: would enable him to muster the necessary courage to effect
policies promotive of t h t- greater good despite opposition from vested
interests.: Moreover, since there is a need for a strong national execu-
tive who can deal effectively with the problems of national survival as
well as unite the numerous ethnic groupings constituting our nat.jon
during these crucial times, a President elected by the lawmaking body
with no fixed term may become subservient to the members to keep
their support.
(2 j Election by Congress in case of a tie. - In case of a tie, however, the
President shall be chosen for the term fixed in the Constitution by a vote of
a majority of all the members of Congress in session assembled. (Sec. 4,
par. 5.)
The Vice-President j s elected with and in the same manner as the
President. (Sec. 4, par. l.i
Unless otherwise provided by law, the regular election for President
and Vice-President shall b e held on the second Monday of May. (Ibid., par.
3.)
Term of office of the President
and Vic~President.
The President and Vice-President. enjoy security of tenure. Their term
of office iR six (6) years "which shall begin at noon on th e 30th day of June
following the day of the election and shall end at noon of the same date six
(6) years thereafter." ipar. 1.)
The Presiden'"-elect and Vice-President-elect shall assume their office
at t he beginning of their term5. (Sec. 7 , par. 1. )
Term of office distinguished from tenure of office;
right to hold office; and office.
(1) The phrase term ofoffice refers to the period, duration or length of
time during which an officer may claim to hold the office as of right, and
fixes the interval after which the several incumbe nts shall succeed one
another .
(21 It is not to be confused with tenure of office (or actual incumbency}
which represents the period during which the incumbent actually holds the
office. The tenurf! may be sh orter t han the term for reasons within or
beyond the power of the incumbent. The President may be removed from
office by Congress by means of impeachment. (Art. XI, Sec. 2. ) A vacancy in
the Office of the President arises in case of permanent disability, death, or
resignation of the President. (Sec. 8.)
119R6 U.P. Law Constitution Revis ion Project, Executive Department, p. 8.
210 TEXTBOOK 0~ THE PHILIPPf~ E CONSTlTUTIO!'J Sec. 4
(3) A right to hold office, on the other hand, is t he just a nd legal claim
to enjoy the powers and responsibilitit-s of th e office.
(4) The off'ice is an institut ional unit of government. while term is a
matter of time during which a person may hold the office.2 (see Art. XI, Sec.
1.)
Reelection of President and Vice-President.
A per son who haR held the office of President is a bsolutely disqualified
for any reelect ion. In th e case of toh e Vice-Presi dent, he cannot serve for
more t h an two (2) successive terms (Sec. 4, par. 2. ) but he is still eligible for
election as President. A Vice-Pr esident who h as succeeded a nd served as
President for more than four (4) years (even in an acting capacity) is also
disqua1ified for election to the same office at any other time.:i (Ibid., par. 1.)
The voluntary renunciation of the office ofVice-Pn:lsident for any length
of t ime does not interr'~pt the continuity of the service for the full term of
six (6) years. {Ibid ., par. 2.) T hus, a Vice-President wh o voluntarily r e-
nounced or resigned from hi s office is deem ed to have served for six (6)
years for purposes of the ban against reelection. The President is not
eligible for any r eelect ion. (See Art. II, Sec. 26. ) But they may be elec!:~d to
a lower position.
Reasons tor prohibition against re-election
of President.
The following have been give n:
(1) A President see king a second term is vulnerable to constant politi-
ca l pr ess ures from those whose support h e must pr eserve and h as to devote
h is time and energy to consolidate this political support. In the context of
Philippine P.xperience, every President elected to t he Office h as used th e
first t.erm to work for r eelection;
(2) A President who seeks a second term is under a ten·ific handicap in
the performance ofhis functions. The result has been that political motiva-
tion is attributed to practically every act he performs; moreover, the dan-
ger of alienating much needed votes may be an ob~tacle to the proper and
impartial performance of his duties;
(3) A President seeking reelection will even usE' pub lic funds for t he
purpose even to the extent of making t he governm~nt bankr upt because no
incumbent Pr esident would like to go down from power as a leader repudi-
ated by his people;
2Nt!evo vs. Angeles, 76 P h il. 12; Aparri vs. Court of Ap peal!'!, 127 SCRA 231. Jan. :~ 1 ,
1984; <1uekt>ko vs. S'lntos, 76 Phil. 237; Pan•dt>s vs. ~fenal!ad, 56 SCHA 522, April l:'i, 1974;
O livc rM> vs. Villaluz, 57 SCRA I63, May 30, 1973.
3S!!t~ note 34 to Introduction-C.
S ec. 4 ART. VU. - EXECUTIVE DF:PARn.lENT 2 11
(4) The prohibition also widens the base of leader ship. In theory, no
man is indispensable in a democracy, and any person, no matter how good
he is, may be replaced hy other s equally good;
(5) The ban will also put an end or at least hamper the establishment
of political dynasties;'
{6) The six-year term will give the President a reasonable time within
which to implement his plans and programs of government. He can concen-
trate on being President free from the demands of pa r t isan politics;fi and
.. ... (7 ) The criticism again ~t a six-year term withou t reelection that six (6)
years are too long for a bad President but too short for a good one, and that
the people will suffer most from a lameduck presidency may be remedied
by the provisions on impeachment. {see Art. XI, Sec. 2. ) A term, no matter
how long, is short for a good President.
The main argument against the absolute prohibition on reelection is
that it forecloses the possibility of a good President being recalled to the
office at some future time should his services be required. Imposing a
complete ban on reelectiun will , in effecl, penalize th e people from calling
back to the Presidency a person who has rendered s ign a l s ervice to the
na tion, should that need for such man arise. As an alternative. the ban should
be on immediate reelection in order to prevent the President from using his
office to advance his candidacy.R Furthermore, the people a re the wisest judge
on how many terms a President (or Vice-President) is going to have.
Canvassing of returns and proclamation.
(1 ) Returns transmitted to Congress. - The returns of every election
for Pre::;ident and Vice-Pres ident are canvassed I exa mined for authentic-
ity) by the board of canvassers of each province or city, adding all the
returns in ev~ry town in the province or every district in the city. These
r eturns which show the r esult of the voting must be duly certified by the
corresponding board. Then, they are transmitted to Congress directed to
the President of the Senate who shall, not later than thirty (30) days after
the day of the election and in the presence of the Senate and the House of
Representatives in joint public session and upon determination of the
authenticity and due execution thereof' in the m anner provided by law,
'Sec 1970 UPLC Con:;titution Revis ion Proj ect, p. 442.
&1986 UPL Constit ution Re-vision Project, Exccutive Depart men t . pp. 12- 1:3.
81970 UPLC Cons titution Revis ion Project, p. 442.
' The ph rase "u pon determination of the a uthenticit y an d due execution thereor' h al>
been a dded in view of t he national exper ience in the J986 ":;nap" pr•csidential election. The
Ba t asang Pambansa majority pa r ty insisted that in the counting of vot es it s duty was purely
ministerial and, therefore, rould not go beyond the returns. The new phrase is intended to
emphasize that Congress must first be satisfied on the genuineness of the returns. If they are
obviously false, statistically improbable, or patently irregular (e.g., the n umber of votes cast
exceeds the number of registered voters), Congress i~ empowered to reject them or make an
inquiry with respect to the same. (1986 UPL Constitution Revision Project, Executive
Depart ment, p. 9.}
212 TEXTBOOK ON 'I'HE PHlLlPPINF. CONSTITUTION Sec. 5
canvass the votes. (Sec. 4, par. 4.) Congress is empowered to promulgate its
rules for the canvassing of the certificates. (]bid., par. 6.)
(2) Plurality rule sanctioned. - The Constitution does not prescribe
any minimum number of votes to he cast in a presidential election nor any
majority vote needed for the prodamation of the winner for it merely
provides that "the candidate havi ng the highest number of votes shall be
proclaimed elected. (Ibid ., par. 5.) It sanctions the plurality rule. Thus, a
minority President may be elected (i .e. , by t he votes of less than 50f;:{, of the
number of registered voters) if there is a low t.urnout of voters or there are
more than two (2 l candidates.
(3) Candidate to be proclaimed. - The person having the highest
number of votes shall be proclaimed elected. In case of a tie between two or
among more than two candidates, that is, more than one candidate shall
have an equal and highest number of votes, one of them shall be chosen
President by a vote of the majority member~;hip of Congress in session
assembled. (Ibid. , par. 5.) The candidate thus chosen shall then be pro-
claimed elected.
Election contest involving the position
of President or Vice-President.
The Supreme Court, sitting en bane (as one body ), shall now be the sole
judge of all contests r elating to the election, returns and qualifications of
the President or Vice-Preside nt. It may promuigate its rules for the pur-
pose. (Ibid., last par.)
Under the new Constitution, the Supreme Court, itself, as such, shall
be the sole judge of electoral disputes involving the President-elect or Vice-
President-elect.
SEC. 5. Before they e nter on the execution of their office, tht"
President, the Vice-President, or the Acting President shall take
the following oath or affirmation:
"I do solemnly swear (Ol' affirm) that I will faith·
fully and conscientiously fulfill my duties as President
(or Vice-Preside n t or Acting President) of the Philip·
pines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to
the service of the Na tion. So h elp me God." (In case of
affirmation , last senten ce will be omitted.)
Oath or affirmation of the President, Vice-President,
or Acting President.
Oath is an o-.;tward pledge made under an immediate sense of responsi-
bility to God. If the President., Vice-President or Acting President does not
believe in God, he makes an affirmation. Instead of saying "I do solemnly
S e (:.:;. 6·7 AKT. Vll. - EXECUTTVI<~ DEPARTiviE!'I T 2 13
swear" he declares, "I do solemnly affirm." I n such case, he omits the last
sentence: "So help me God."
The oath-taking marks the formal induction of the President, Vice-
President or Acting President in office. It is mandatory. He cannot enter on
ihe execution of his office without taking the prcs.-:ribed oath or affirma-
tion.
The President is enjoi ned by the Constitution, a mong others, to "do
justice to every man" because of the vast powers of his office which if
abused could cause much harm and injustice.
SEC. 6. The President shall have an official residence. The
salaries ofthe President and Vice·President shall be determined
by law and shall not be decreased during the ir tenure. No
increase in said compensation shall take effect until after the
expiration of the t erm of the incumbent during which such
increase was approved. They shall not receive during their
tenure any other emolument from the Government or any other
s ource.
Official residence and compensation of
the President and Vice-President.
(1) The official residence of the President shall he de termined by law.
(2) The annual compen!;ation of the President and Vice- President shall
be provided by law.
(a) During their tenure of office, the President a nd Vice-President
shall not receive any oth er emolument (e.fr . p er diems, allowances, and
other remunerations) from the government or any other source. With-
out the prohibition, they may he able to make use of their positions for
pecuniary gain.
(b) The compensation of the President and Vice-President, as fixed
by law, cannot be increased or decreased by Congress during their
continuance in office. A law increasing the salary of the President or
Vice-President shall n ot benefit the incumbent Pres ident or Vice-Presi-
dent at the time of the enactment of said law, for the increase shall not
take effect until after the expiration of bis term during \vhich such
increase was approved . The prohibition is for the purpose of securing
t he independence of the President or Vice·President from Congress.
(c) The Constitution , in the Transitory Provisions, fixes the initial
annual salary of the President at P300,000.00 and t he Vice-President
at P240,000.00. Congress may provide otherwise subject to Section 6.
<Art. XVIII, Sec. 17.)
SEC. 7. The President-elect and the Vice-President-elect
sh a ll assume office at the beginning of their terms.
2 14 TEXT BOOK 0!\' THE P HII.l PPl::'-JE CO~STITUTTON Sees. 7-8
If the President-elect fails to qualify, the Vice-President- .
elect shall act as President until the President-elect shall have
qualified.
Ifa President shallnothave been chosen, theVice-President-
elect shall act as President until a President shall have been
chosen and qualified.
If at the beginning of the term of the President, the Presi-
dent-elect shall have died or shaH have become permanently
disabled, the Vice-President-elect shalJ become President.
Where no Preside nt and Vice-President shall have been
chosen or shall have qualified, or where both shall have died or
become permanentlydisabled, the Presidentofthe Senateor, in
case ofhis inability, the Speaker ofthe House ofRe pt•esentatives
shall act as President until a President or a Vice-President shall
have been chosen and qualified.
The Coagress shall, by law, provide for the manner in which
one who is to act as President shall be selected until a President
or a Vice-President sha ll have qualified, in ca se of death, perma-
nent disability, or inabilityofthe officials mentioned in the next
preceding paragraph.
SEC. 8. In case of d eath, permanent disability, removal from
office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation
of both the President and Vice-President, the President of the
S enate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President
or Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as
President in case ofd eath, permanent disability, or resignation
ofthe Acting President. He shall serve until the Pt·esidentor the
Vice-President shall h ave been elected and qualified, and be
subject to the same restrictions ofpowers and disqualifications
as the Acting President.
Classes of Presidential succession.
The Constitution pr ovides for t wo (2} classes of P r esidential su ccession,
to wit:
{1) J3.efore a~ of offi,:e by the President -elect a t the time fixed
for t h e beginning ofhiR term (Sec. 7.), i.e., at noon on J une :30 following the
day ofthe election (Sec. 4 , par. 1.); and .
(2) An~r..ass.umptiun of office by the President-e le ct at (or subsequent
to) the time fixed for the beginning of his term . (Sec. 8.)
Sees. 7 -A ART. Vll. - EXECUTIVE DEPARTMENT 21 5
When vice-President shall act as Presi®nt.
The President-elect and the Vice-President-elect shall a!':sume office at
the beginning of their terms, i.e., at noon on the 30th of June next following
the day ofthe election. (Sec. 4, par. 7.)
In any of the following cases, the Vice-President shall act as President:
(1) If the President-elect fails to qualify; or
(~- If a President shall not have been chosen; or
(a) In case of temporary inability or incapacity of the President to
discharge his powers and duties.
The Vice-President-elect shall act as President until the President-
elect. shall have qualified, or a President shall ha\·e been chogen and
qua lified (Sec. 7.), or the disability shall have terminated. (see Sec. 11.)
___..W..__he n. V····i·c-· e - P.. -r e.. si de n. t...s ha··l-·l·· bec.ome.President.
'- '''
In any of the following cases:
(} 1 If at the beginning of the i,erm of the President, the Presiden t -elect
shall h ave died or shall have become permanently di<>abled (Sec. 7, par. 4.);
or
c.zi.After as~umption of office, in case of death, permanent disability,
r emoval from office, or resignation of the President, in which case the Vice-
President shaJl serve the unexpired term. (Sec. 8, par. l.l
In the above cases, there is a permanent vacancy in the office of
P resident.
Where there are no President
and Vice-President.
(1) ft~fo.rfEJJ.§..SUllJ:l!Jio!!: - -The Senate President or, in case of his inabil-
ity, the Speaker of the House of Representatives, sh all act as President
until a President or Vice-President shall have been cho.c;en and qualified
where no President and Vice-President shall have been chosen or shall
have qualified, or where both shall have died or b eco me permanently
disable d at the beginning of the term of the President. (Sec. 7, par. 4.)
( 2) Afte.!_ (JR_S.lf.!.!~Pti_o~- The Senate President or, in case of his inabil-
ity, t he Speaker of the Hou.se of Representatives, shall act as President in
case of death , pPrmanent disability, removal from offlce. or resignation of
both the P resident and Vice-P re sident until the President or Vice-Presi-
dent shall have been elected and qualified. (Sec. 8, par. 1.)
(3) Where Senate President and Speaker al~;o unable to act as President.
- Congress is mandated to provide by law for the case when both the
S~nate President and the Speaker are also unable to act as President, or
tor the case of death, permanent disability or res ignation of the acting
216 TEXTBOOK ON THJ:; I'HlLII'I'INE CONSTITUTJOX Se(':>. 9·10
President, as to who shall act as President, including the manner of his
selection, until the President or Vice-Pt·es1d~nt shall have been elected and/
or qualified. (Sees. 7, 8, last pars. i
SEC. 9. Whenever there is a vacancy in tht.~ Office ofthe Vice-
President during the term for which he was elected, tbe Presi-
dent shall 1mminate a Vice-President from among the l\lembe'";s
of the Senate and the House of Representatives who shall as-
sume office upon confirmation by a majority vote of aH the
Members of both Houses of the Congress, voting separately.
Vacancy in the Office of the Vice-President.
In case a permanent vacancy occurs in th(! Office of the Vice-President
during the tc1·m for which he was E>lected, the President shall nominate a
Vice President from among the members of the Senate and the House nf
Representatives.
The nomination is subject to confirmation by a majority vote of all
.members of both Houses of Congress, voting- Reparately. The nmninee ~hall
assume office upon such confirmation.
SEC. 10. The Cong1•ess shall, at ten o'clock in the morning of
the third <lay after the vacancy in the offices ofthe Pt•esidentand
Vice-President occur.;;, convene in accordance with its rules
without need ofa call and within seven days enact a law calling
for a specialelection to elect a President and a Vice-President to
be held not earlier than forty-five days nor later than sixty dayH
from the time ofsuch call. The bill calling such special election
shall be deemed certified under paragraph 2, Section 26, Article
VI of this Constitution and shall become law upon its approval
on third readingby the Congress. Appropriations for the special
eJection shall be charged against any current appropriations
and shall be exempt from the requirements of paragraph 4,
Section 25, Article VI of this Constitution. The convening ofthe
Congress cannot be suspended nor the special ele<~tion post-
poned. No special election shaH be called if the vacancy occurs
within eighteen months before the date of the next presidential
election.
Vacancy in the Offices of both the President
and Vice-President
(1 l Special ele.cti.r>n._-:-- In case of a permanent vacaney in the Offic-es of
both the President and Vice-Preuident, the Congres!' shall convene and
enact a Jaw calling for a special election to elect a President and Vice-
PresirlE!nt. The convening of Congress cannot be suspended nor the holding
of the i>p~cial election postponed as required by Section 10. The bill calling
Sec. ll i\Hl'. VII . - gx~CUTIV E DEP ARnff:NT 217
f(l r the ~peci,=tl election is not subject to tht> requirements prescribed in
Scct.i nn.s 25(4) a nd 26t2 ) of Articl e VI.
C2 l ~ .i'J..e.xt Presiclential ekc_ti.QJJ., .-=::- No spec~ial election s hall be called if
lhe vncancy occurs ~.tb._il} 18 ffiQ.~ before the date ofthe next Pl'l~sidcn
tial e lection. The reason is obvious. Such special electi on becomes unneees-
sHry and costly since t.he elected President and Vice-Preside nt will serve!
only for a shr,rt period to end when the term of their successors begin.
S EC.ll. Whenever the President transmits to th(: President
of the Senate and the Speaker of the House of Representatives
his written declaration thatheis unableto discharge the powers
a nd duties ofhis office , and until he transmits to th em a written
declaration to tbe contrary. such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet
transmit to the President ofthe Senate and to the S peaker ofthe
House of Representatives tlteir written declaration that the
President is unable to discharge the powers a nd duties of his
office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President of
the Senate and to the Speaker of the House of RepresentatiYes
his written declaration that noinabilityexists, he shallreassume
the powers and duties of his office. Meanwhile, should a major-
ity ofall the Members ofthe Cabinet transmit within five days to
t;he President of the Senate and to the Speaker of the House of
R epresentatives their written declaration that the President is
una ble to discharge the powers and dut ies of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after r eceipt of the last
written declaration, or1 ifnot in session, within twelve days after
it is required to assemble, determines by a two-thirds vote of
both Houses, voting separately, that the President is unable to
discharge the powers and duties ofhis office, the Vice-President
shall act a s President; otherwise, the President s h a ll continue
exercising the powers and duties of his office.
Rules in case of temporary disability
of the President.
Both the 1935 and 197a Constitutions containf!d no provision on how
and by whom a Pregident's temporary incapacity or inability was to be
d etermined nor how and by whom his fitness to re.=;um(! the pre~idential
21S TF.XTBOOK ON '!'HE PHlUPP1NE CONSTITVTJON Sec. 12
office was to be te.sted.1 Hence, the authority that was to decide whether
there was a permanent or temporary disability to warrant presidential
succession was the President himself. A disabled Pre.siden:t could insist on
his capacity.
Section 11 solves the vexing problom of determining t.be existence and
termination of presidf'nlial incapacity in cases of dispute.
(1) l}!claration..fui_.t.ll._~_p_,~~si.d_e_Y!:_t. -The President may transmit to the
Senate President and t.he Speaker of the House of Representatives hi~
written declaration that he is unable to discharge the powers and duties of
his office. In such case, the Vice-President shall be the Acting President
until the President transmits to the two officials a written declaration of
the termination of his incapacity. (Sec. 11, par. l.l
(2) I!.£.~!gra:.~!'!.'!•.b~. rrz._e_'!_I}Z.l~!...S._qf_~l]_l}_ c;_gf2!:!_1_f,t. - In case a majority of all
the members of the Cabinet- who are all the President'8 men--- transmit
such written declaration, the Vice-President shall immediately assume the
powers and duties of the Office a1> Acting President. Thereafter, upon
transmitting his written declaration that no inability exists, the President
shall reassume the powers and duties of his office. (pars. 2 and 3.)
(3) .Q.g_cis(f?f!.9..Y.Q(!l~gr__~ii_~_f(L__~(!3_e of_9_ disp!:f.!!!..: -- In case of a dispute on
the matter between the PreRident and the majority of all the members of
the Cabinet, Congress by a 2/~~ vote ofboth Houses, voling separately, shall
decide the existence and/or t£>rmination of presidential incapacity. (last
par.)
SEC. 12.ln ca'5e ofserious illness oHhe President, the p!Jblic
~~UJ:)~jn(~rme.J_~(t:h~ ~tat~Qf_I!~~_he~_!_I!:..:_fhe members of the
Cabinet in charge ofnational security and foreign relations and
the Chief of Staffof the Armed Forces of the Philippines, shall
not be denied access to the President during such illness.
When public to be informed of President's
state of health.
The problem of temporary incapacit-y was l).ighlightcd during the presi-
dency of Ferdinand Marcos in 1983 when his illness and lack of provision
for succession exacerbated political and economic unc(~rtainties. 1 All kinds
of speculations about his physical condition were mad0 and heard espe-
cially during the last yean; of his administra~ion..
This problem, a serious matter indeed involving as it docs national
Elccurity r.nd public interest., has been solved by Sedi'Jns 11 and 12. In case
· of serious illness of the Presi.dent, the public has a right to be informed of
'1970 lJPLC ConsI itut.ion H~vision Project, p. 44il.
'1986 L'PL Constitution Rcvio;il>n l'roj~ct, Executive Dcpartmcmt, p. 20.
Sec. 13 ART. VTT. - RXF:CUTIVE DE PARTME~T 219
the state of his health. To safeguard the interest of the nation, particularly
during abnormal times, the Constitution declares that Cabinet members in
charge of ~.tion.~L.~~C\lrity a nd f9.t..e.i_gn_:[email protected]~ and the OUQL<?f .S.1~f(
shall not be denied access to the President during such illness.
}.'lote that Section l~.Q9~~...n<?t.r~9.illiT.. th_~the..Ulll_~.§~_.sho_gl..Qj DC.§ipaci-.
tate t:iie -P~~~i·d~&---·····
~ .............- ····--·-·
SEC. 13. The President, the Vice-President, the Members of
the Cabinet, and their d epu t ies or assistants shall not, unless
otherwise provided in this Constitution, hold any other officeor
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or he financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government orany subdivision, agency, or instrumental·
ity thereof, including government owned or controlled corpora·
tions or their subsidiaries. They shall strictly avoid conflict of
inte rest in the conduct of their office.
The spouse and relatives by oonsanguinity or affinitywithin
as Membersthe fourth civil degree of the Preside:!\! shall not during his
tenu"'relieappointed ofthe-Constitutional Commis·
sions, or the Office of the Ombudsman, or as Secretaries, Under-
secretaries, chairmen or heads of bureaus or offices, including
government-owned or -controlled corporations and their sub-
sidiaries.
Disabilities of President, Vice-President, Members
of Cabinet, and their deputies and assistants.
(1)-PLohibW.on.s. durin.g..J..b.e.i.r.t.eau.ra. -During t heir tenure, the Presi-
dent and Vice-President, as well as Members of the Cabinet and their
deputies and assistants are subject t.o prohibitions, n amely:
fl> They shall not hold, unless otherwise provided in the Constitu-
tion (see Sec. 3; Art. VIII, Sec. 8fll; Art. IX, B-Sec. 7, par. 2; Art. XII,
Sec. 9, par. 1.), any other office or employment;
'
'b) They shall not practice any other profession;
~) 1'hey shall not participate, direct ly or indirectly, in any busi-
ness;
{d) They shall not be financially interested, directly or indirectly,
in any contract with, or in any franchise (see Art. XII, Sec. 11.) or
special privilege granted by t he government or any subdivision, agency
or instrumentality thereof including any government-owned or -con-
trolled corporation or their subsidiaries; and
(~.) They shall strictly avoid conflict of interest (between personal
or family interest and public interest) in the conduct of their offi.c€.
220 Tt:XTijOOK ON THE PHILIPPINE CONRTITll'fiON
(2) Purp_ose of" pr.(~/:t.~hf,tions.. - The purpose of the prohibitions is to
insure that the otlicials m~ntion~d (the President particularly) will devote
their full time and at.tention to their official duties, prevent them from
exte nding special favors to th(•ir own private business which come~ under
their official jurisdiction, and assure the public that they will be faithful
and dedicated in the perfl)rroance of t.heir function s. 1
(3j O~her o!J'i~_iql,s s_~f!.}f.£i..l2_s_imil.C!l:J!.!'Phibj_J..~Q..7'}_. - Similar restrictions
apply to the Member s of Congress iArt. VI, Sees. 13 , 14.) and of the
Constitutional Commi~si ons (Art. IX, A-Sec. 2. ), and th~ Tanodbayan and
his Deputies. (Art. XI , Sec. 8.) They seek to stress the principle that public
office is a publie truflt. <Ibid., Sec. l.J
Bu.l.e_on nepotiSQl·
In addition to the above disabilities, the President is prohibited during
his tenure from appointing his spouse and relatives by consanguinity or
affinity within the fourth dvil degree fe.g., up to first cousin, grand nephew
and grand niece) to any of the positions mentioned. (Sec. 13, par. 2. )
The Constitution seeks Lc>s t op the practice i.n t he past when the Presi-
dent appointed his wife , children and many of their close relati ves to high
positions in the government.
SEC. 14. Appoint ments extended by an Acting President
shall remain effective, unless revoked by the elected President
within ninety days from his assumption or reassumption of
office.
Appointments extended by an Acting
President.
(1 i 'e owers and fu nctions of Acting. Pre.si.ri_r~_at. - An acting President
exercises the power~ and functions of the Office of Prcsid~nt until a Presi -
dent shall have qualified or shall have been elected and quahfied (Sees. 7
and 8.), or his tempora1·y incapacity shaJl have terminated. (Sec.Jl.) H e is
not the incumbent President. He has not become President to ~erve the
unexpired portion of the term. There is only a temporary vacancy.
(2) Revocation by _ q_!~c tt~~ - PrE!sident... ()_fJh(:.. a.PR_~_i.'!_!!_!l:_en_t_s.,.. - The- ap-
pointments extende-d by <ln Acting President are naturally valid and effec-
tive. However, the ele<.:t.ed President is given the- power to revoke them. H e
should not be forced to endure important appointments he cannot accept.
' Chiefs ofhun~au~ and oflicc~ rtnd their- a;;si~t.ants are not in~.:luded among such orficials.
The exe:mption i;; t.o givt' them a chan<:;; tn t'•ngage in some l t.wful aclivity to augment iheir
income. At any rate, oxi~t.ing dvil se rvice rule,:; already provide thnt <)fficers and cmployeetl of
the government ar~ prohibi ted from engaging in business unl ess with the permission of their
d epartment hE->Mls. UnU('l' tho ~amc rul1~s, d(1partment hoad11 m u;.;t make <!lure thllt the
business activity or pr;u:ti(.e ofprofc;;sion dnt~s not interfere with t.he work of the official:; nor
bring about any connict. of interest.
Se-es . 15· 16 221
But h~ must make the revocation within 90 days from his a ssumption or
reassumption of office . The period is deemed sufficient to enable him to
study the a ppointments. At the same time. it prot('cts the govE.'rnment
officials concerned from having the ~word of Damocles of possible removal
or replacement hanging over their heads indefinitely.
SEC. 15. Two months immediately before the next presiden·
tial elections and up to the e nd ofhis t-erm, a President or Acting
President shall not make appointments, except temporary ap·
pointments to executive positions when continued vacancies
therein will prejuclice puhlic.sex-vice or endanger public safety.
Appointments preceding a presidential
election.
(1} f.r:qhtb.ited if mqde w.ithia..t.wo C2J month:< before. - Section 15
prohibits an incumbent or Acting President io make appointments within
two (2l months preceding the date of the next presidential election and
thereafter until the expiration of the term of t.hc incumbent President or
the tenure of the Acting President. The purpose is to stop or curb the
possible misuse by t.he outgoing President of the power of appointment for
the purpo·se of enlisting political support during the Presidential election
and for partisan considerations after his dd'eat.
In the past, two former Presidents extended so-called ''mass rnidnight"
appointments or last-minute appointments to f:.wor(.>d purty men or
recommendees of political supporters.
(2) bcep#on,s~ - .I.empor.acy .appoi.ntrnonts to e.xer.u.t.i.Y..e. PQ.Sition.a.~-h.~D
~ntinued vacal).cies woul~ prej~g.icc_ .P_l!bli~ _ sery-ic~- or ~J}[email protected]
l~fety are not cover~d _by the p~~!}-~~~~-oE-:.Jhe reason is vP.r y obvious. Note
the requisites, the appointment~ must be: { ct I t E.'mporary in nature; {b) to
executive positions; and (c) urgent in the jntere8t of publit: service or public
safety. Permanent appointments to judicial positions are, therefore, also
covered by the prohibition. (see Art. VIII, Sec. ~. par. 2.)
(3) Allowed if made more than two (2) months bt>fore. -·Appointments,
whether permanent or temporary, to executive or judicial position. ex-
tended by the incumbent or Acting President more than two 12) months
preceding the date of the next Presidential election, are valid. What Sec-
tion 15 prohibits are appoi.ntments, whether permanent or temporary, to
executive positions, made within the two (2)-month period except in re-
spect t o temporary appointments to executive positions which have to be
filled immediately.
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
TEXTBOOK ON 'l'HE PHILIPPI Nr: CONSTITUTION Soc. 16
colone l or naval captain and other officers whose appointments
arc 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
author ized bylaw to a ppoint. The Congress may, bylaw, vest the
appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to make appointments
during the r ecess ofthe Congress, whether voluntary or compul-
sory, but such appointments shall be effective only until disap·
proval by the Commission on Appointments or until the next
adjournment of the Congress.
Meaning of appointment.
Appointment is the ac~ of desi.gnation by the executive officer, board, or
body to whom the power has been delegated, of the individual who is to
exercise the functions of a given office.1
Nature of power to appoint.
The power of appointment is intrinsically an executive prerogative. The
legislative body creates the office, defines its powers, limits its duration,
a nd provides the compensation. This done, its legislative power ceases. It
has nothing to do with designating the man to fill t he office.2
The exec utive nature of the appointing power does not imply ~hat no
appointment by Congress and the courts can be made. They m ay also
appoint t hose officers who an~ necessary to the exercise of their own·
function s . (see Art. Vl, Sec. 16fl); Art. VIII, Sec. 5(6J.J
Officials whose appointments are vested
in the President.
(1) Un der S ection 16. - The power of the President to appoint high
officers in the government. is shared by the Commission on Appointments'
power to ratify or reject. The officials whom the President i::; authorized to
a ppoint under Section 16 are:
la) The heads of executive departments,3 "ambassadors , and other
public ministers and consuls;
'Meclu~m . Puh. Offices and Officer s, Sec. 102: Borrom eo vs. Marian o, 41 Phil. 322;
Aparr i vs. Court of Appeals, 127 SCRA 2:31, Jan. ;n, 19A4.
~see Gov't. of the Phil. Is. v ~. Springe r, 50 Phil. 259.
·'The.)' n~fer to dt~ pa rtmcnt ~<ecn·tari e~ who are mtmbers of the cabinet and who head and
run a r egular depart ment (e.g., Department of Agri culture ) and its subor din ate offices. Not
every official of Cabinet rank is a head of a depa rtment. Some Presidential assistunts (e.g.,
ART. VII .-· 1•:XI':CUT1VE DEPARTMENT
(b ) The ~)ffi cers t)f tht' Armt~d F'orCL' :< (Jf t h e Philippines from the
rank of colont:>l or m1v <tl capta iu :
::c) Other oHil:c~J·.s <.vhnse appointments are ves t.cd in the Pl'esident
by the Constitution;
(d) All other officer s of the Government who::;e appointments a1·e
not otherwise pro\ided for by law, and they refer to officers to be
appointed to lower offices cr~ated by Congress where the latter omits to
provide for appointments to said officG~. or provides in an unconstitu-
tional way fm such appointm en ts; and
(e ) Those whom h e m ay be authori z-ed by law to appoint s u ch as the
heads of govf'r'1ment- own~d or -controlled corporations, department
undersccretarie;s, heads of bureaus and offices, and other officials.
The Congre~s may impose qualification::; for appointment t~> public
offices of relevance to the dutitlS to be performE-d.
(2) Under oth'!.r rnm.•i:-;ions . -- The Prt>sident, likewise, under other
provisions ofthc Coustitution, appoints the members of the Supreme Court
und judges of lower courts including the St=\ndiganbaynn (Art. VIII , Sec. 9;
s ee Ar t. XI, Sec.. 4.), the regular members of the Judieial and Bar Counci l
tArt. VIII. Sec. 8f21.), the Chai rm<.~n and the Commi ssio ners of the Civil
Service Commission <Art. rx, B-Sec. ll2 1.1, the Chairm a n and the Commis-
!:~ioners of the Commission on E lectlonl> (Ibid., C-Scc. H2ll, t he Chairman
and the Commissioners of tht~ CommiHsion oo Audi~ (!bid., D-Sec. ll2].),
and the Ombudsman anrl his D£>pulies. (Art. XL Sec. 9.\
The Com.;titution does not. stHtt:' the appointing uuthority with respect
t'> the Chairman and M embcr.s. of the Commission on Human Rights. (Art.
XIII , Sec. 17.) Tht>re is no doubt, however, that the power to appoint them
i s lodged i n the Presiden t. (seP. Sec. 16. )
Confirmation of appointments by Commission
on Appointments.
Only the officer!S in the tirst three (aJ groups enumerated in Section 16
art:! appointed by the Pre~ i den t with the <:onBent. (confirmation) of the
Commission on Appointments. Departmt>nt undersecretarie::; and heads of
bureauH and cer.-t.{lin ofli.ces under t he different depal'trncnts which are not
<.:<ll led hureau1' like the Securitir:.s and Exchange CommiStiion, Insurance
Commission, N<itional lrrigati~m Administratil)n, etc., are no longer in-
cluded among those whose appointments are t.o be confi rm ed hy the Com-
mission on App ointmen ts. 1.se0 Art. VI, Sec. 18 .) 'l'he p urpose is to insulate
them from the baneful influence of parti::;an p olitics. 1'hey are civil service
? r·csidential As~i::;taJ•t on L~gi >;< l ~r(iv<? :\ffni,·;;J ar~ gi\·.,n th« r;rn k of Secretary and arc so
addrc.,sl!d but they :·n P. not full -fi i?. Jg~d Cabin+'!. nH:mher.o;. They de> nnt head departments and
t hdr appoi ntment.<; ;:~t· not ,;uhmit.ted w lht~ Commi~!'>iun on Appointments for confirmation.
224 T EXTBOOK Ol\i THE PHILIPPINE COt\.STITl.:T JON Sec. 16
officers whose appoiutment:s are sup posed to b~ made only according lo
merit a nd fiLn ess. (Art. XII. B-Sec. 2l2] .) · '
The m ember~ of the judjciary and the Ombudl;man and his D eputies
arc <lp pointed by the President upon re<.:ommendation of the Judicial and
Bar Council without n eed of C(mfirmation by the Commission on Appoint-
menU;. ThCl appointment of the Chairman and Member s ofthe Commission
of Human Rights does not also require con firmation by the Commission on
Appoi ntmen ts. Also, not s ubject to confir mation are the ranking officers of
t he Philippine National Police (P NP; which is a civi.lia li organization dis-
tinct from tlw Armed F orces of the Philippines (AF PJ. ( SCt' Art. XVI , Sec. 6.)
Appointment by other officials.
Congress may, by la w, vest. in the courts , h eads of departmen ts, agt~n
cies, <.:omrnission s, or boards, the powe1· to a ppoint other officers lower in
rank (e.g , Chiefs of divisions or sections) in th eir respective offices. {Se c.
16 , par . l. j ThE:' phras<: "lower in rank'' refers to officers subordinate to
thosE- enumerated offi~;ers in whom respectively the p ower of a ppointrnent
may be vested - t he heads of executive departments , agencies, commis -
sions, and hoards. 1\ ppointm ents of minor employee~; may a lso be ve sted in
the m. The Supre nw Court a ppoi;1ts all offici als and employees of th e
judiciary. <Art. VI II, Sec. 5[Gj.)
'fhe phrase does n ot incl ude h eads of bureaus and offices not specifi -
cally mei! tioned in the Constitution as among those to be appoint ed by tlH~
President wl1o 3J"(~ subordinates of Cabinet m embers. By l.aw, their ap-
poi ntm en ts an~ ves ted in the PreBident.
Kinds of presidential appointments.
Appoint.rr:ents which are r equired to be submitted to the Commission
on i\ppointments a re (~it her:
i 1J regular appoi ntments or those m ade during the sessions of Coo-
g-reRs !Sec. lG, par. 1. ); or
l2} acl int.erim appointments or those made during a r eccs :) of Congress .
Ubid., par. 2.J
With respect to r egu lar appointmen ts subject to confirmation by the
Commission on Appointment s, the President issueR a nomi nation as a
prelimina ry to 3ppointment, to be a pproved by the Comm ission on Ap-
pointments. So there i:) no appointment yet in th~ s t r ict sens e until it is
confi.rm ('d. It is clear that there are three (3) stages in regul ar appoiut-
ments, to wit: n omination by the P resident, con sent by the Commission on
App(lintnHm ts, and appointment by the President.
Ad interim appointments.
The second p a ragra ph of Section 16 r efers to ad interim appointmen ts
or appointments made by the President during the recess of Congress,
Sec. 16 II HT. VI I.·- !o;Xl-~CUTIV E DEPAR'DfF.NT 225
whether such r~ces s is voluntary or compuls~n·y. Compulsory recess takes
place when Congn~ss a djo urns, while voluntary recess is that which takes
pl ace before t he adjoumrnent of Congres..;, like a Ch ristmas Hlccs~.
Under the Constit nlion. the Commission on Appointments, which ap-
proves major appoi.ntmenls of the Pres ident, m eets only whe n Congress is
in session. tArt. VI , Sec. 19. J The 1·ece!'\s appointment power keeps in
continuous ope ration t h e busi ness of governm ent when Congress i ;; not in
session. But the appointments shall cease to be e ffective upon rejection by
the Commission on Appo intments or, if not acted upon, at the adjournmen t
of the next se~sion, reguiar or special, of Congress. In other wo1·ds, in the
secund situation, the appointment remain-" eil'ective until the end of the
session foll owing su ch appointment or "until t h e next a djournment,'' not
until t he next (vulnntary; reepgs. This is to give the Commission on A p-
pointmen ts time to delibe :·ate upon the ~1ppointment before confirming or
rejecting i L.
Section 15 gives th(• President t he: power to make temporary appoint-
ments . Section 16 ip<n·. 1. ! refers to the regul at· a ppointing p ower of the
President.
Kinds of appointment in the career
services.
They Me:
( l J Permcu1ent . .._. <.1rH· which is issued to a per:;on who meetti all the
requireme nts for the p1.l:'i tion to which hoi~ appointt:>.d; it l asts until it is
lawfully terminated . ThP. holde:r of s uch appointmr:: nl eannot be removed
except only for cause:1 and
(2 1 T ,·mporory or ru.'tin!J. - one which is i s~;ue d to a perl:'on who meets
all the require!llent;: for the posilion to which h e is being appointed except
the appropriate ei\'il ~c n ice ellgihility; it shall not exceed 12 months, but
the appointee may be replaced socincr if a qualified civ.il service eligible
becomes available. The h older of such appointment may be removed any
time e ven without a h(·rtring or cause.:·
Steps in the appointing process.
They are:
(l ) Ap{Jointmen t. - It is the m:t of t he appointing power. It may include
the issuance by the Pr~idcnt of the commilision, which is the written
evidence ~f the appoin tme nt: and
······
(2) A cceptance. - It is the act of the appointee. He m ay or may not
accept the a ppoin tment. But a cceptance thereof is neces»ary to enable hi m
1Pr·e srdcnt.ial UP.l:l't:" Xo . b OI. ;S('C. 2!1 .
'Jhirl.
2~ 6 TI<:XTBOOK ON T HE PHJLTPPJN E CONST ITUTIO K SE::c. 16
to have full possession, enjoym e-nt, and responsibility of an office. It is not,
however, necessa ry to t he lega li ty of the appointm ent..~
Kinds of acceptance.
Acceptance may be:
( 1) Express. -- whe n doM verba lly or in writing; and
( 2 ) I mplied. - when, wit h out formal acceptance, the a ppointee enters
upon the exercise of the duties and functions of a n office .
The best formal evi dence of the acceptance is undoubtedly the qualifi-
cation of the officer appointe d by taking the oath of office. In some in-
stance!:!, the law requires th~tt a bo nd be p()sted.
Meaning of designation.
Designation is simply the mere imposition of new or additional duties
upon an officer already in the government Mrvice (or any other competent
person) to temporarily perform the functions of an office in the executive
branch when the officer r egularly appointed to the offi ce is unable t.o
perform his duties or there <:xists a vacancy.7
It is, therefore, d ifferent from appointment.
Removal power Qf the President.
Removal is th e ouster of an incumbent before the expiration of his term
of office.
The Constitution contains no provision expressly ves ting in the Presi-
dent t hP. power to remove executive officials from their· posts. Nevertheless.
the power is possessed by hi.m, as it is implied from any of the fol1owing, to
wit:
(1 > from his power to appoint which carries with it t he power to re-
move;
(2) fro m the natur·e of the "execut ive power·· exercised by the Presi-
dent, the power to r emove being executive in n::~turc (Sec. 1.);
(3 ) from the President's d uty to execute the laws (see Sees. 5, 17 .);
(4) from the President's control of all departments , bureaus a n d offices
(Sec. 17.); and
(5) from the provision that "no officer or £~mployee in the Civil Service
shall be removed or suspended ex(:ept for cause provided hy law." (Art. IX,
B-Sec. 2[3J.)
6 Borromeo vs. Manalo, 41 Phil. 322; Lacson vs. Romero, 84 Phil. 740.
"Administrati,·e Cnde uf 1HH7, Book IJ J. Sectiun 17.
s~c . 17 ART. Vll. - F,XECUTI VE DEPARTM J:;:-IT 227
Whet·e the power to appoint is vested by law in the courts, tht:! h eads of
departments, etc., Congress may ulso provide that those appointed may be
removed by them , subject to .such restrictions a s it deems best to impose for
t he public: interest.
Extent of the President's power
to remove.
(1) With r espect to officers exercising purely executive functions whose
tenure is not fixed by law (i.e., members of the Cabinet), the President may
remove them with or without cause and Congress may not restrict such
power.
(2) With respec t to otficer~> exercising quasi-legislative or quasi-judi-
cial functions (e.g., members of the Securities and Exchange Commi~:~sion),
they may b"' removed only on grounds provided by law to protect their
independence in t he di.sdtarge of their duties;
(3 ) With respect to constitutional officers removable only by mean s of
impeachment (see Art. XI , Sec. 2.), and judges of lower courts (Art. VIII,
Sec. 11.1, they are not subject to the removal pow~r of the President; and
(4) With respect to civil service officers, the Presidt>nt may remov(!
them only for cause as provided by law. (Art. IX , U-See. 21:11.1
SEC. 17. The Pres ident sh all have control ofail the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
Power of control over alf executive departments,
bureaus and offices.
T he above pJ·ovision emphasizes the rolE> of the President a s adminis-
trator.
As administrative head, the duty of the Presidtmt is to see to it that
every department, bureau and office under the executive branch it; man-
aged and maintained properly hy the person in charge of it in <:w:ordance
with pertinent Jaws and regulalions. 1 There arc two factors that. contribute
to the effective hold and cont r ol of the Pregiden t over all executivt' de part-
ments, bureaus and offi<:es, to wit :
(1} The power of'appointm,•nt ~Sec. 16.), with which he may choose men
of competence and confidence; and
(2) The power ol removal (which is implied in the power to appoint),
with which h e may weed out incapable and dishonest officials.
1V.G. Sinco, op. cit.. p. 235.
228 TEXTBOOK ON Till'; l'HILIPPINE CONSTITUTION Sec. 17
Naturt3 and extent of the power of control.
(1) Over cabinet members. -·The power of control of the President is in
line with the concept of Cabinet me mbers serving as a lter egos (Lat.,
another I.) of the President. It implies that he may alter or modify or set
aside what a subordinate officer had done in the performan<.:e of his duties
and to substitute his judgment for that of the latter/ act directly on any
specific functio n c ntruRted to the offices concerned, direct the performance
of a duty, r estrain the commission of acts, determine priorities in the
execution of plans and programs, and prescribe standards, guidelines,
plans a nd progra ms.
(2) Over other subordinate officers. -- The power of contr<Jl of the
President over a ll execulive departments, burcEJ.us and offices is not just
over the heads thereof but extends to all other subordinate officers. It
includes the power to supervise, investigate, suspend, or remove officers
and emp loyees who belong to the executive branch if they are appointed b:y
him or do not belong to t he career service.
(3) Over officers and empLoyees in the cq_reer service. - The President,
however, has nv authority to directly investigate and thereafter remove
even for cause, an officer or employee who belongs to the career service.
(see Art. IX, B-Sec. 2r3 J.i Such officer or employee fall s under the original
and exclusive jurisdiction of the Civil Service Commission insofar as inves-
tigation is concerned. A direct action of the President would deprive them
of due process as guaranteed by th e Civil Service Law .:1
Power to insure that the laws be
faithfully executed.
(1) Primary function of President. - As the Executive in whom the
executive power is vested (Sec. 1.), the primary functi on of the President is
to enfor<.:e the laws . Before assuming office, h e 'is required to take an oath
or affirmation to the effect that as President. of the Philippines, he will,
among others, ''execute its laws." (Sec. 5.) Now, he "s h a ll insure, that the
laws be faithfully executed." (Sec. 17 .)
(2) More of(l mandatory dut:y than a power. ·-- The function ofthe Presi-
dent to sec that the laws a re faithfully executed is more of a duty than a
pow er, to be discharged by him personally and through subordinates under
his control or supervision. (see Art. X, Sees. 4, 16.) To say that the Presi·
dent can forbid the execution of the laws is tantamount to investing him
with the power to make a mockery of the legislative process and the admin-
istration of justice. It is his mandatory duty to enforce the laws of the land
regardless of his opinion about their wisdom, advisa bility or validity. A law
is presumed valid and constitutional until judicialJy declared otherwise.
2See Monda•lo vs. Silvos a, 97 Phil. 143.
'l'fh e law is the Civil SE-rvice DecrP.e of the Philippines. <Pres. Decree No. H07. I See Ang-
angco vs. Castillo. L-1716H, l\:vv. 30, 1963.
Sec. 18 ART. VII. - EXECUTIVE DEPARTl\·lENT 229
SEC. 18. The Pres ident shall be the Commandet•-in-Chief of
all armed forces of the Pbilippin~s and wheneve r it becomes
nec:sary, he may call out such armed forces to prevent or
suppress lawle-:;s viole nce, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, bJ~ rna~
for a period not ~xce~~!n~ts!x~. d~J suspend the privilege of
the writ of habeas corpus or place the Philippines or any part
the r eof under martial law. Within forty~eight hours from the
proclamationofmartial law or the suspension ofthe privilege of
the writ ofhabeas corpus, the President shall submit a report in
p~~2!l or in .w.rjtin.g to the Congre~s. The Congress, voting
..~!!.tll:• by a vote of a t least . ~- majority of all its Members in
regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initia tive of the President, the Congress
may, in the same manner, extend such proclamation or suspen-
sion for a period to b e determined by the Congress, if the
invasion-er rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceed-
ing filed by any citizen, the s ufficiency of the factual basis of the
p roclamation ofmartial law or the suspension of the privilege of
th e writ or the extension thereof~ and must promulgate its
d edsion thereon within thirty days from its filing.
A state of martial law does not suspend the operation ofthe
Constitution, nor supplant the functioning ofthe civil courts or
l egislative assemblies, nor authorize the conferment ofjurisdic-
tion on military courts and a gencies over civilians where civil
courts are able to function, nor automatica lly suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to
p ersons judicially charged for rebellion or offe n ses inherent in
or directly connected with invasion.
During the suspe~sion ofthe privilege ofthe writ, any person
thus arrested or d etained shall be judicially ch arged within
three days, otherwise h e shall be released.
Military power of the President,../
·.
The a bove section prov)des for the military power of the President.
(1) Powers to meet emergency situations. - It mentions three extraor-
dinary remedies or measures which the President is empowered to utilize
230 TEXTBOOK ON T HE PHILIPPINE CONS1'lTUTJON St-c. 18
in meeting emergency s ituations:to'call out the armed forces; t.o suspend
the p rivilege of t he writ of habeas corp us; and t o declare martial law. The
Constitution has provided another built-in measure to cope with any crisis
or emergency: emergency powers expressly delegated to the President b y
Congress (under Artich~ VI, Sec. 2;1f2l.l.
(2) Commander-in-Chiefof'the Armed Forces. - The Const itution makes
the President, a civilia n, the Commander-in-Chief of all armed forces of the
Phil ippines. 1 He i!> authorized, whenever it becomas neceasary, to call out
such armed forces to prevent or suppress lawless violence, invasion, or
rebellion . This provision ensures the supremacy of the civil authorities
over the military forces of the government. (see Art. II, Sec. 3. )
Powers of President as Commander-in-Chief
of the Armed Forces.
The President is not only a civil offlcial. As Commander-in-Chief of
t he Armed J:t'orces , he is also in a sense a military officer. He is not,
however , a member of the a r med forces, and consequently, he is not subject
to court martial or military discipline .2
As Commander-iu-Chief, the President ha s control of the military or-
ganization and personnel whether in peace time or in war time. Re is givE>n
the broad powers to call out the armed force s to prevent or suppl·e~~'>
lawless violence, invasion , or rebellion. A-le is also empowered to <.:ff•a ie
military tribunals to try persons who violat e military laws or commit
crimes agains t n ationa l security. H.9we ver, e v_e n in ~ st~J~ of.;nartia,U£Y£.,
m_i}ij:ary__~ourts an.~l. agen_cies ha:ve n o jurisd~ct~~m over Gi.Yih~u.s.v.:.lliu:f:.civil
c.ourts ar.e..ahle to functio.u. (Sec. 18, par. 4.)
ln thtui.'LCllLo.f.war,.the..Pre.sid.eot•.rwrmaUy...\'<.VJJld..d.ele_g_a.t.e. t.he .~ctuaJ
..s;on:un~m.d _q[J,h e ~rrn ed for ces to hi!?. military ~~perts ,_ -- ~~( t:.he ulti}1}~te
f O.JJ1.Ifl.a.fld..b.~!~!!!i_~t9_~~-~-...
Authority of Congress over the armed forces.
,·Congress shares with the President his authority over t he armed forces.
It ~upplies the money a nd makes t he laws for thei r governance. To it
belongs the sole pow~r to decla re the existence of a state of a war. (Art. VI,
Sec. 23ll]. )
Power to suspend privilege of writ of habeas
corpus.
Two conditions are necessary in order that the President may suspend
the privilege of the writ:
,<I >Ther~ must be invasion or rebellion; and
'This powe r covers the Philippi ne National Police (P:-/P ).
1Sw1:1rtz, The Powers or the President C196a), p. 215.
Sec. 18 AR1'. VTL - EXECUTIVE DEPARTMBNT 231
(~). The public safety must requi re the suspension.
This particular topic has previously been discussed under the Bill of
R.ightf:<. (see Art. III, Sec. 15, par. l, supra. )
Power to declare martial law.
The conditions for a valid suspension of the privilege of the writ of
habeas corpus are also the requisites for the declaration of martial law by
the President. fl9wev_e..r...the..C.oru;.titutionmak.e..s it clea.r. t.b.~J. th.~prqslama
par.tion of martiall~-w...9.Q~.s not automatically suspend the privilege ofthe writ.
~(Sec~·i8, 4. )
ju1diTcihael su s pension of t he privile ge s hall·apply only with respect to persons
ly charged for rebellion or offenses inherent in, or directly con-
nected with invasion. (Ibid., par. 5.) A person arrested or detained must be
released if not judicially charge d within three (3J days. Ubid. , last par.)
This mandate is directed against the practice in the past of detaining
indefinitely persons for alleged political offenses without charges being
filed against them in court. And even when the privilege of the writ of
ha.beas corpus i~; suspended, th e right to bail is not impaired . (Art. III, Sec.
13. )
The power to proclaim martial law includes the power to make all
needful rules and n~gulations with the force of law until the termination of
martial rule .
Mean!ng.oLmartlal law:.
(1) In its comprehen~ive sense. it includes all laws that have reference
to and are administered by the military forces of the State. They include:
ta) The military law proper, that is, the la ws enacted by the law·
maKing body for the government of the armed forces; and
(b) Tht~ rulct< governing the conduct of military forces in times of
war and in places under military occupation.
( 2) In its strict sen:·w, it is that Law which has application when the
military arm does not supersede civil authority but is called upon to aid it
in the execution of its vital functions.~ The Constitution refers to this
meaning of martial law.
Basis, object, and duration of martial law.
(1) Basis. - The right to declare, apply, and exercise martial law is one
of the rights of sovereignty. It is as essential to the existence of a nation a~'.
the right to decl a re and carry on war.1 The power is founded on necessity
and is inherent in every government.
~See Willoughby, 2nd ed., p. 1586.
~51 Am. Jur. 24 1.
232 TEXTBOOK ON Tim l'HILll'PIIS'~: CONSTI1'VTIO~ Sec. 18
(2) Object. - -· The object of marti al law is the preserva tion of the public
safety and good order. ~U nless the right and p ower exi ~t, p(~ace , good order,
security - government itsel f - may be des troyed and obliter ated ... when
the domination of la wless elements becom es so powNful that it cannot be
stopped by the civil a uthor ities.
(3 ) Dur·ation. - Bei ng founded 011 neeessi ty, th e exercise of the power
may not extend beyond what is required by thP. exigency whith it ca ll
forth .G Section 18 (par . l. i sets a t ime lim it for th e d uration of t he state of
martial law and t he suspension of the: privilege of the writ of h abf•as
co r p u s.
Restrictions on the exercise of the two
powers.
The Constitution imposes reslridion::; on the Pre"ident\ power t.o de-
clare martial la w and to !:;uspend t he privilege oft.he wri t. o!'/wb(~ns corpus.
The lessons learned by the people from 14 year~ of marti al rule m ainly
account for their imposition. Moreover, these extraordinary powers fall
heavily on .human rights. Only when a bsolutely necessary should the Con-
stitution provide for a der·ogo.tion from the ccmplcte exercise of such rights,
and whe n carried out, should cause the least curtailment th ereof. 7
The r estrictions are on the conditions. duration, a nd effects of the
exercise of the powers. They a rc:
(-1 ) There must be (actu al ) i nvasion or rebellion a nd pulllic sa fety
rc~quires the prodamation or s uspen::;ion;
(2J Th e duration sh all not e xceed 60 d ays un less exte nd ed by Cong t·ess
(which must convene within 24 hours fo!Jowiug tho proclamation or sus-
pension without need of a call ) upo11 the initiative ol the Pres ident, i.e., he
must ask for extension of the proclama tion or s uspen sion for a period t.o be
determined by Congress i.tsclf(Sec. l R, pars. 1 nnd 2. J;
(3) The P resident m ust submit a re port in person or in writ ing to
Congress within 48 hours from the proclamation or sul;pen sion (!bid.) to
guide Congress in decid ing the a ctjon il shou ld takt>, i. e., re vocation or
extension;
(4) T.h~ procla mation or suspension :rnay be revoked by majority vote of
all the m embers of Congress voting jointly (not separa tC'ly i which r evoca-
tion sh aU noi be set asid!! by the Presidl'nt {]6id.J;
(5) The S upreme Court may inq uire into t he suffi ciency of the factual
basiR of the proclamation or suspenRion. (ibid., par. ;-u So, the action~ of
'' Th u;;, it is eS~t!ntially a police power·. (see Art. ITT, Se<.:. 9.1
uMoyer vs. Peabody, 212 U .S. 78; Dunc•u\ v:;. Ki:ihnnamok u , 2:.l7 U.S. 304 : Lawyer:;'
Journal, Oct. :n , 1972.
' W86 UP L Co nstitution P roj t>Ct., E:~W('Uti w' De paa·tmc nt, pp. 24-:.15.
Sec. 18 ART. VII.-- EXECUTIVE DEPARTMt::-\T 233
both the President and Congress lin case of extension) are made subject to
judicial review; and
(6) The effects of a state ofmartial law are clearly spelled out, to define
the extent of the martial law power. (par. 4.)
Effects of a state of martial law.
The definition ofthe extent of the martial law powers is made by way of
denials, stating what are not the effects of a state of martial law. (par. 4.)
Thus:
(1 J 9P.?m.t.ipn !Jf..th.e C.an.s.tiJJJ.ti.tm. - It does not suspend the operation
of the Constitution. The declaration does not mean that the military au-
thorities will take the reign of government. Under the Constitution, civil-
ian authority is at all times supreme over the military. (Art. II, Sec. 3.) The
guarantees of the people found in the Bj]] of Rights continue to exist.
Whatever interference there may be with individual liberties or property
rights must be justified, as in the case of police power (see Art. lii, Sec. 9.),
by absolute necessity in the interest of national security or public welfare.
(2 :1 .EUJ1&t.i.u!11i..of.duiL fXlUI.~ JJ.ll.d.._l£gi.sl.a.tine_.asse.m.blie11....- It does not
supplant the functioning of the civil courts or legislative assemblies. The
proclamation of martial law serves as a warning to the citizens that the
military powers have been called upon by the President. to assist him in the
maintenance of law and order. ~o new powers are given to the President;
no extension of arbitrary authority is recognized; "fi.o civil rights of the
individuals are suspended.8 M.~.r.t.i.~l.J~wj~ decl!!r.~.d- m.~_ili_tQ .a.ssist..the
.civil government,.not. to supplant: it-.
(3) .J.u.~tion of military coud,s and agenc"S· - I t does not author-
ize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function. Under martial law, for
instance, a person may not be arrested and detained indefinitely without
court orders and civilians may not be tried by a military commission or
court-martial for a crime relating to national security. When martial law is
declared, civil authorities are not superseded by military authorities. Nor
are civil laws suspended.
(4) .fri_vi(W,!!_Qf. the writ of hab~a8_<;.C!fl!..US. ...._ It does not automatically
suspend the privilege of the writ of habeas corpus. The privilege continues
to be available to persons under detention until ~uspendt~d by the Presi-
dent, subject to the restrictions imposed. (Sec. 18, par~. 1 and 3.) The
suspension shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion. Any person thus
arrested or detained shall be judicially charged within three (3) days;
otherwise, he shall be released. (Ibid., pars. 5 and 6.) This provision could
effectively negate the suspension when an actual emergency occurs.
•sec 3 Willoughby, 2nd ed., pp. 1591-1592.
234 TEXTBOOK ON THE PHILIPPI~E CO:-;;STlTUTION 8 ec. 19
~ SEC. 19. Except in cases of impeachment, or as otherwise
provide d in this Constitution, the President may grant r e ·
prieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to gra,nJ .~IJ!!!~~~y with the
concurrence of a majority of all the Members of the·Congress.
~doning power.
........
The power to gr ant pardon and other a cts of clemency to violators of the
law is traditionally vested in the Chief Executive of th~> n ation. 1 The
Constitution gives this power to th e P resident in th e above provision. This
power ca nnot b e taken away from him nor can the exe rcise th ~reof be
su bject t o limitations or condit ions beyond those provided by the Constitu-
tion. (see in fra.) Neither m ay the courts inquire into the wi~dom or rea-
sonableness of a ny pard on g ranted by the Presi dent. Hi s d iscretion is
absolute. (see, however , Art. VIII, Sec. 1, par. 2..1
The pardoning power extends t o all offenst's, including criminal con-
t empt (disrespect to or disobedience to a court whi ch amounts to a crime).
It does not give the Pr esident the po\ver t.o exempt, except ftom punish-
ment, anyone from the law.
Meaning of reprieve and suspension •
of sentence.
..Be.pJ:J:.eue is the pos t.ponem<~ nt of t.he execution of a death f\e ntence to a
certai n date. It is diffen mt from suspension of senten ce wh ich is t he post-
ponement of a sentence for a n indefi.nite time.
Meaning of commutation.
QQJJ:J.nz utation is the reduction of the sentence imposed to a lesser
punishment, as from death to life im prisonment. lt may he granted without
t h e acceptance a nd even against th e will of the convict.
Meaning of pardon.
J'g.r d_q_n_ha s been defim: d a s an act of grace proceeding fr om the power
ent rusted with the execution of the laws (Pre::;identi which c xemp1 s the
ind ividual on whom it is bestowed , from the punishmen t the law inflicts for
a crime h e has committed.2 (as to meaning of parole, see Ar t. IX, C-Sec. 5,
infra.)
1See Pres. Decrees No. 95, 124, :Hi4, 433. and 598. The l'rcsidt!nt acts gt!nerally, pursu-
ant to the r ecommendation of t he Board of P ardons an d Parole which i~; headed by the
Secretary of Justice as its chairman.
2De Leon vs. Director of Pri~ons, :n P hil. 60.
Sec. 19 AHT. Vll. - EXECCTIVE DEPARTMENT 235
Object of pardoning power.
Executive clemency exists to afford relief from undue harshness or
evident mistake in the operation or enforcement of the criminal law.
The administration of justice by the courts is not necessarily always
wise or certainly considerate of circumstances which may properly miti·
gate guilt. To afford a remedy, it has always been thought essential in
popular (democratic) governments, as well as in monarchies, to vest, in
some authority other than the courts, the power to ameliorate or avoid
particular judgments.3
Kinds of pardon.
They are:
(1) . -bbsgl.l:J.J:~. - when it is not subject to any condition whatsoever. It
becomes effective when made; and
(2).il.!J.T'ldit~<l!1PI- when it is given subject to any condition or qualifi-
cation the President may see fit. It must be accepted by the offender to
become effective.
l..imJJations uportth.e par:®nln~ow.er.
They are the following:
!(.t') It may not be exercised for offenses in impeachment cases (Art. XI,
Sec. 2.);
I)) It may be exercised only after conviction by fin&l judgment (par. 1.);
t;B) It may not be exercised over ciuil contempt4 (as for refusing to
answer a proper question when testifying as a witness in a case); and
<¥ ' In case of violation of/election law or rules and regulations, no
pardon, parole, or suspension of sentence may be granted without the
-r._e...c..o...m.. m-e. ·n-·d...a.tio.. .n o.f...t. .h.. e. -·--.C.. ·o·- mm.i§.§.i_Q!L9.n..El.~kt.jons. (Art. IX, C-Sec. 5.)
Effects of pardon.
They are the following:
q1 It removes penalties and disabilities and restores h1m to his full
civil and political rights;
"Ex-parte Grossman, 267 U.S. 870; see Art. 5, R~vised P enal Code . In the review of
decisions in criminal cases i"cluding those where the death penalty is imposed, the Supreme
Cout·t must reiy on the evid~>nce as presented to and evaluated by the lower courts. On the
other hand, the President, in the t>xercise of his constitutional prerogative to grant pardon.
stay of execution, or commutation of sentence, can take a broader look and con;;ider facts and
circumstanees beyond the ~;;videntia1·y record.
•It is the failure to do ;;omething ordered by a court to be done in !l civil action for the benefit
of a party and is, therefore, an offe nse against thE! party in whose beht~lf the ot·der is made. {17
C.J.S. 8.) CJi.min.aL~'J.t@U?.i.. on the other hand, is any conduct directed against the dignity or
authority of a court, which tends to bring the court into disrepute or disrespect. (17 C.J.S. 7.)
TEXTBOOK ON THE PHILIPPINE CONSTITUTION .Sec. 19
r-2 ) It does not discharge the civil liability of the convict to the indi -
vidual he has wronged as the President has no power to pardon a private
wrong;'' and
(3) It does not restore offices, property, or rights vested in others in
~onseque:nce of the conviction.6 Under our law, a pardon shall not work the
restoration of the right to hold public offices or the right of suffrage unless
such r ight b~ expressly restored by the terms of the pardon.~
Remission of fines and forfeitures.
The President has the po,.,.·er to remit fines and forfeitures for all
offenses after final conviction. Th1s power may not be exercised by any
officE:r other than the President. But Congress may constitutionally au-
thorize other officers such as heads of depart ments or bureau chiefs to
remit administratiue .fines and forfeitures.8
Remission prevents the collection of fin es or the confiscation of for-
feitecfpro.pcrty. The power of the Presid~nt is limited to fines or forfeitures
as have not been vested in third parties, or paid into the treasury of the
governm~nt, as fund s cannot be paid out of the treasury without the
authority of Congress.9 (Art. VI, Sec. 29[1J.)
Meaning of amnesty.
AJ!!J!:.'!~!~' is an act of the sovereign power .granting oblivion o~ a gen~ral
pardon for a past offense usually granted in favor of certain classes of
persons who have committed crimes of a political character, such as t:-ea-
son, sedition, or rebellion.
Effect of amnesty.
Amn esty abolishes a nd puts into oblivion the offense of which one is
charged, so that the person released by amnesty stands before the law
precisely as though h ~ had committed no offense. 10 (sea effects as to pardon ,
supra. )
Pardon and amnesty distinguished.
The distinctions are:
(!) Pardon is granted by the President alone after conviction, while
amnesty, with the concurrence of Congress (Sec. 19.),.before or after convic-
tion;
520 R.C.L. 563; see ArU;. 36, 133. Revised Penal Code.
GEx·partf'. Garland, 4 Wall. 333.
'Art. 36, Revised Penal Code.
~22 R. C .L . 53 1.
920 R.C. L. 531-532; see Romero vs. Amparo, 91 Phil. 221:1.
1L'See Barrioquinto vs. Fernande:t, 82 Ph~!. 642.
Sec. 20 ART. Vll. - EXE CCTTVE DEPARTMENT 237
(2) Pardon is an act offorgiveness, i.e.. it reli eves the offender from the
consequences of the offense, while amnesty is an act offorgetfulncss, i.e., it
pu ts into oblivion the offense of which one is charged so that the person
released by amnesty stands in the eyes of the law as if he had never
committed the offense;
(3) Pardon is granted fo r infractions of the ~eace of the State, while
amnesty, for crimes against the sovereignty of the State (i.e., political
offenses); and
(4) Pardon is a private act of the President which must be pleaded and
proved by the person who t;laims to have been pardoned, because the courts
take no judicial notice ti1ereof, while amnesty by proclamation of the
President with the concurrence of Congress is a public act of which the
courts will take judicial notice.11
SEC. 20. The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and I'Oubject to such limita.
tions as may be provided by law. The Monetary Board shall,
within thirty days from the end ofevery quarter ofthe calendar
year,submittothe Congressa complete reportofits decisions on
applications for loans to be contracted or guaranteed by the
Government or government-owned and -controlled corpora-
tions which would have the effect ofincreasing the foreign debt,
and containing other matters as may be provided by law.
Authority to contract and guarantee
foreign loans.
(1 ) E xclusive executive function. -The President may contract foreign
loans on behalf of the Republic of th e Philippines without t he need of prior
congressional approval. When obtained by private persons, natural or
juridical, he may guarantee such loans. There is possibly no official better
qualified to enter into such negotiation than the President. He is the
official best supplied with information as well as with executive and legis-
lative assistance to determine the advisability of obtaining loans as well as
the country's capacity for making good use of such credit. 1
(2) Concurrence of Monetary Board required. - The authority of the
Presi dent is not absolut~. The contract or guarantee mu st he with the prior
concurrence of the Monetary Board of the Central Bank now, Bangko
Sentra.l ng Pilipinas (BSP), which is required to make a report to Congress
contai ning the matters mentioned. The prior concurrence of the Monetary
Board is required because, as the custodian of the foreign reserves of the
country, it has the expertise to determine the reason ableness of the con-
' 1l hid.
'Del. M. Cuarderno, Sr., "The C11biner GoV\)rnment," in C.R. Montejo, supm, p. 151.
238 TEXTBOOK ON THE PHILIPPINE CONSTITUTION Sec. 21
tract or guarantee and whether the proposed foreign loan is within the
capacity of the country to pay. The report will guide Congress in the
enactment of whatever legislation it may deem necessary to protect the
national interest.
In the past, huge foreign loans were contracted or guaranteed by the
government even against the advice of the Monetary Board with disastrous
consequences to the economy. Many domestic private firms with borrow-
ings from overseas sources heavily backed up by government guarantees
defaulted on their obligations.2
(3) Checks by Congress. -The reasons for not requiring congressional
approval for foreign loans are: first , the loans urgently needed by the
country may no longer be available when concurrence which usually takes
some time is finally obtained, and second, an obstructionist Congress could
withhold approval for political reasons.
However, as a check on executive power, Congress may, by law, place
limitations on its exercise (Sec. 20; Art. XII, Sec. 21.) and make the neces-
sary investigations in aid of legislation (see Art. VI, Sec. 21.) if it believes
that the borrowing based Ofl the Monetary Board report is not justified. It
has the power to determine the organization and composition of the Mon-
etary Board. (see Ibid., Sec. 20.) Furthermore, an appropriations law is
needed to pay out of the treasury a foreign loan. (see Art. VI , Sec. 29f ll.)
l:{~te ti:t_at s~~~iO)) 20 . spe~~~ - only o(.f~r~i_g~_l'?a ns. With re_§.P.~ft tt:'
9.2!!1_~st.~c-~<?~!l.~~...~he__p_r!_qr_~()~~W:!~.I1c:;~QUhe..Mo.J!etan:. Board is not n.e.<;~..s
~¥ unless .re.quired..by.law.
SEC. 21. No treaty or international a&P'eement shall be valid
and effective unless concurred in by at lel:\~Uwo··thirds.of all the
Members of the Senate.
Meaning of treaty.
A!!.~ may be defined as a compact made between two or more states,
including international organizations of states, intended to create binding
r ights and obligations upon the parties thereto. Thus, a treaty may be
bilateral or multilateral. It is also known as. a pact. convention, or...cha.ct.er. ,
Distinguished from international agreement
and executive agreement.
The phrase "or international agreement" has been inserted in order to
preclude any ambiguity in view of the technical meaning that the word
"treaty" has acquired in contemporary international law "as an interna-
2It has heen claim t'd that about 112 of the more than $26 billion debt t hen of the
Philippine!" wa~ (;O!"It ractcd through the initiutive of President Marcos. Now, the President
cannot borrow or g ua:·antce loans at will.
Sec. 22 ART. Vll . -- EXECUTIVE DEPARTMENT 239
t iona] agreement between states." This definition excludes agreements
entered into between states and international or ganizations. Hence, the
need to introduce the phrase as among those requiring the concurrence of
th e Senate.1
However, the phnu;e does not cover executive agreements2 which have
been traditionally recognized in t.he Philippines to be well within the
prerogative of the President to make without need for legis lative concur-
rence. In the Philippines, t h e amen dment~ to th e 1.947 U.S.-Philippine
Military Bases Agreem ent. were f'ffected by mean s of a~ executive agree-
ment. ~ ~xecutive agreements , however. serve a ul:leful purpose and our
courts 'recogni7.e th e power of the President to enter into them without
Senate concurrence.3
Steps in treaty-making.
There are two general steps in the entire treaty-making process, namely:
( 1) N egotiation.- In th e field of initiation and negotiation, the Presi-
dent alone has the sole authority. The reason is that secrecy, dispatch,
caution, continuity, and access to information ·are essential ingredients in
t h is task which the President alone possesses. Confidential information
a r e passed and premature di sdosures may not only cause serious embar-
rassment. but may likewise imperil the successful accomplishment of the
n<.:got iations;·1 and
(2) Approval or ratification. - As a general rule, no treaty or interna-
tional agreement shall be valid and effective unless concurred in by at lea.st
2/3 of a ll the members of the Senate. This is only logical, treaties and'
international agreements being part of the law of th e land and they affe<"t
our international relations, pei ng in the nature of a contract between the
parties.
SEC. 22. The President shall submit to the Congress within
thirty days from the opening of every regular session, as the
basis of the general approp1·iations bill, a budget of expendi·
tures and sources offinancing, including receipts from existing
and proposed revenue measures.
aM.~9§.~~ry PO~~:V~r 91 1h.~.P.L~~!dJ.mJ.~
The President is e;ntrusted by t he Constitution with the task of-prepa r -
ing t he budget of receipts a nd expendit ures based on ex isti ng a nd proposed
r evenue m easures and other sources of fi nan cing ie.g.. loans) and of sub-
'198o UPL Constituuun R~ vi ~i on J'rc]cct, Exccuti,·t- Depnrtment, p. 34.
~As to the making of executive agreement, sec Anic!e VIII, Section 4f2).
')1970 l:PLC Constitution Rt-vision Project, p. 459.
•sec N.A. Gonzales. rJp. cit ., p. 331.
240 TEXTBOOK ON THE PHILIPPINE CONSTITUTION s~c. 23
mitting it to Congress within thirty (30) days from the opening of each
regular session. (see Art. VI, Sec. 15.) The budget t hus submitted sh ;·ill be
the basis of the general appropriations act to be enacted by the CoP.gress
for the followi ng year. 1 (]bid., Sees. 24, 25.)
The constitutional mandate requiring Congress to consider first the
budget reverses the practice of the old Congress which yearly took up the
budget not at the beginning but at the end of the legislative year.
SEC. 23. The President shall address the Congress at the
opening of its regular session. He may also appear before it at
any other time.
Prerogative to address and appear
before Congress.
This provision furnishes an opportunity on the part of th~ Presiden t at
the opening of the r egular session of Congress (see Art. VI, Sec. 15.) to give
information on the "state ofthe nation" and to recommend to the considera-
tion of the legislative body such measures as he may deem necessary and
proper. Such measures are, of course, merely propoJ.als. They have no
binding effect until enacted by the Congress. The address may also contain
guidelines of national policy.
The President may appear before Congress at any other time he may
choose after the opening of its regular session.
-oOo -
1As to mt!lming of"budge t.,'' "appropriatio ns bill," etc.. see Article Vl. Sections 24 and 25.
\
Article VIII
.f.!-~DICIAL DEPARTMENT -fc,~{~ --\L- rot<vpr-{.. t
l~~.:.~.
,i
SECTION 1. The judicial power shall be V€'sted in one Su-
preme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts ofjustice to
settle actual conb·oversies involving rights whi<:h are legally
demandable and enforceable, and to detet-min€' whethe1· or not
there bas been a grave abuse ofdiscretion amounting to lack or
excess ofjurisdiction on the part of any branch or instrumental-
ity of the Governm€'nt.
Meaning of judicial power.
Judicial ppUJ~r is the power to apply the laws to contests or disputes
concerning legally recognized rights OJ' duties between the State and pri-
vate persons, or between individual litigants in cases properly brought
before the judicial tribunals.1
Scope...ot;.udic.ial.pnwer.
(1) .d!_lju_(]_(c;at~lfY-Jl1.lli~I!.I- - It includes the duty of courts of justice:
- ·- -(crl to settle actual controversies involving rights which are legally
demandable and enforceable; and
(.b) to determine whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction finfra.J on the part of any
branch or instrumentality of the government. (Sec. L par. 2.'1
To be legally demandable and enforceable in courlR, rights m11st he
.d!:l.ri~ from law. (e.g.. right of wife to recei\'e support from her husband) or
,remgnized.A¥.-law (e.g., rjght of cr~ditor to collect indebtednt>!'is of debtor
under a contract of loan). G.r.aU£..!lhJJ.J:;tLaf-..dis.CL~et.imJ, as used above, has
?een judiciall_y def\ned to ·~ean "w.u:lu;~p:r.jcious ~nd _a:rbitra_ry_:~~rc~seof
.J.P.sigment a~ Js equivalent. m the. eyes cl tllil.law,.. to la{;k ofJunsdktwn:'2
\ha,t i§,J(I.ck vf autllllrity. t.o..act Qn..the matter in di.sput~.
1See BhJck, Ciln.-1 it.ut irm ~i I Law. 2nd ~o-d.. p. 8~.
~Palma an1l Tgn<H:i(• \"<;. ~ & S. Inc.. 17 SCRA :~1 \In\ 19, 19(H)
:241
242 TEXTBOOK ON THE PHILIPPINE CONSTITUTION Sec. 1
fow, not even the President or Congress can escape judicial scrutiny
when facing complaints of great indiscretion or abuse of authority (e.g.,
arrest and detention of persons without charges; declaration of martial law
without sufficient factual basis) by invoking the political nature of their
acts or pronouncements. (infra.)
(2) PQWt?r...ofjudi(:f:g,Jr,ey f!!U!.: - It also includes the power:
\,a) to pass upon the validity or constitutionality of the Iaws of the
State and the acts of the other departments of the government (see Sec.
4f2J. );
(.b) to interpret them; and
(ll) to render binding judgmcnts.3
(3) lr.t:~.i.cJe!liG.:(.P_O..l:£.~~· - It likewise includes the incidental powers
necessary to the effective discharge of the judicial functions such as the
power to punish persons ~djud ged in contempt. (see note 1 under Art. VI,
Sec. 22, supra. )
Giving of advisory opinions
not a judicial function.
(1) A./J.mc.ti..o.l:l... Q[.e~ecutiv~.Q{fic.iaU..- The judiciary is entrusted by the
Constitution with the function of deciding actual cases and controversies.
It cannot be required by law to exercise any power or to perform any duty
not pertaining t.o, or connected with, the administration of judicial func-
tions.4 It is not its function to give advisory opinions. (see Sec. 12.) It is a
function of executive officials.
(2) J!_o~:trinf! of:separq~fon._.!_JfP.2.W.er~: -This doctrine callR for the oth'}r
departments being left alone to discharge their duties as they see fit. The
President and Congress are not bound to seck the advice of the J udiciary a s
to what to do or not to do. It is ~ prerequi site that something had been
accomplished or performed by either of them before a court may enter into
the picture. At such time, it may par.s on the validity of what was done but
only when propedy challenged in an appropriate legal proceeding:~
(3) Pe[Ld_(}!lf;:Y_o[ma[J-~. ac~y.~!._c.c:.ses. - Furt hermore, with so many cases
pending in courts wherein there is an actual and antagonistic assertion
between the parties, it would not serve public interest at all if on hypo-
thetical questions or m atters their time and atte ntion would still have to be
devoted. 6
3Black, supra., op. cit., p. 82.
•Noblejas vs. Teehankee, L-28790, April 29, 1968.
6'fan vs. Macapagal, L-34161, Feb. 29, 1972; Plana.!; v:;. Gil, fi7 Phil. 62.
6Serrano vs. Amorcs, L-34370, ,Jan. 17, 1975.
Sec. 1 ART. Vlll. - ,JUDICIAL DEPARTMENT 243
Judicial power vested in one Supreme Court
and in iower courts.
Judicial power, under the Constitution, is "vested in one Supreme
Court and in s uch lower courts as may be established by law." (Sec. 1.) The
judiciary composed ofthe courts is one ofthe three main divisjons of power
in our government. As the highest court of the land, the decisions of the
Supreme Court are binding on all lower tribunals.
(1) Classification of court8. - Under the provisirm, only the Supreme
Court is a .fQnsJ.itJ.i.ti.OB.al ..s:.WJr:J. in the sense of being a creation of the
Constitution. All other cour ts, including the Sandiganbayan (see Art. XI.
Sec. 4. ), ar~a.~rJ.Jory c.ourt.s,).n the sense that they are creations of law.
They are referred to as lower courts in the Constitution, meaning courts
below that of the Supreme Court.
(2) Creation and abolition of courts by Congress. - In the exercise of
its legislative power ,J(:ongress may 3bolish any or all lower courts and
replace them with other courts subject to the limitation that the reorgani-
zation shall not undermine security of tenure. (Sec. 2, par. 2. ) It cannot,
however, abolish the Supreme Court; neither can i.t create an additional
Supreme Court because the Constitution provides for only "on~....S.\!J).r.eme
CQ!,.U:t.~. Neither can it abolish the Sandiganbayan because its existence is
constitutionally recognized although Congress, in th e exerc;se of its legis-
lative power, may determine its functions and jurisdiction. (see Art. XI,
Sec. 4.)
Organization of courts.
( O...Bcgylq'.:__£9..Y::~_s. - Th e Philippine judici al system consists of a
hierarchy of courts r esembling a pyramid with the Supreme Court at the
apex. Under the Judiciary Reorganization Act of 1980 (as amended), t he
other courts are:
(a) A Court of Appeals with 69 'Justices headed by a Presiding
Justice which operates in23' divisions each comprising three (3) mem-
bers. The Court sits en b~nc only to exercise administrative, .ceremo-
nial, or other non-adjudicatory functions;
(b) A Regionai 'rrial Court presided bx_ 720 Regional Trial Judges in
each of the thirteen (13") regions of the country; and
(c) A Metropolitan Trial Court in each Metropolitan area estab-
lished by law; a Municipal Trial Court in every city not forming part of
a metropolitan area and in each of the municipalities not comprised
within a metropolitan area and a municipal circuit; and a Municipal
Circuit 'l'ri.al Cout·t in each area defined as a municipal circuit compris-
ing one or more cities and/or one or more municipalities grouped to-
gether accvrding to law.
244 TEXTBOOK ON T HE l'HfiAPPINE CONSTITUTION Sec. 1
A court may consist of several branches.
(2) Bpe.cia.l cour.ts.; -- Aside from the regular courts, there are under
present laws special courts:
(a) The 8andil{_a1Jllqyan £:with 14 justices a nd a. Presiding Justice)
which operates in five (5) divisions each comprising three {3) members,
was created by Presidential Decree No. 1606 pursuant to the mandate
of the 1973 Constitution .~ IL"shall continue to function a nd exercise its
j urisdiction" a!) provided in sai d decree or as may be provid ed by a
suhsequent law. (see Art. XI. Sec. 5. l
fb l T~e Cnu rt n{ Tq:r Appeo.(.s. (with five justices and a Presiding
justice) was. created under Republic Act No. 1125, as am~ded by R.A.
No. 9282, which has exclusive appellate jurisdiction to review on ap-
peal, among others, decisions of the CommisRione r of Internal Revenue
involving internal revenue taxes and deciBions of t he Commissioner of
Customs involving customs duties.
Quasi-judicial agencies.
Administrative bodies under the executive branch per forming quasi-
judi cial~ functions, like the National Labor Relat-ions Comm ission, th e
Employees' Compensation Commission, the Securities and Exchange Com-
miRsion, the Insurance Commission, etc., and the independent Constitu-
tional Commission!5 do not form part of the integrated judicial system.
The same thing may be said of courts-martial. They are agencies of
executive character. The a uthori ty for the ordering of courts-martial per-
tains to the President as Commander -in-Chief of the Armed Forces of the
Philippines independently of legislation to aid him in properly command-
ing the Armed Forces a nd e nforcing discipline. 10
Importance of the judiciary.
The courts perform a crucial function in society.
(ll (.'o_n[icJen£.~•.ifl_fhe..fJi..r:.t.rJj!J.. an.cJ_€J!e'l. admi_rJ:i$t,T:gtjp_r;_g[ justic;_(}. - In
the language of Lord Bryce:
"Nothing more clearly touches the welfare a nd security of the aver~
age citizen than his sense that he can rely on the certain and prompt
admin istration of justice. Law is respected and supported when it is
trusted as the ::;hield of innocence and the in;tpartial guardian of every
=Pr~sident.ial Decree No. 108:3 I.J<'t>b. 4, 19?7}, otherwise known as the "Code of Muslim
Per~onal Law>< of tht> Philippine~." created os part of th e judicial system, courts of limited
juri>'<didion known a:': 8hari'a District Co urts presided by District .fudges enjoying tlH! same
privileges a;; ,Judges of Regional T:-ial Courts and Shnri'a Circuit Courts presided by Circuit
Judges enjoying the ~arne pri vilege!\ as ,Judges of Municipal Cin:uit Courts with jurisdiction
over all cases arising unde r t he Code. (see Sees. ~:n - 159 the reof.)
RSee Article XIII . Sect.ion 5 th<l renf.
~" is..a.La.tin ..t.crm..wtikh means.~in_<:JUI..a.i.Ju~...
10Ruffy vs. Chief of Staff. 43 O.G. 855.
s~c. 1 ART. VTJl . - ,HJD£CIAL DEPARTMENT 245
private civil right. x x x But if the law be dishonestly administered, the
salt has lost its savour; if it be weakly or unfaithfully enforced, the
guarantees of order fail , for it is more by the certainty than by the
severity of punishment that offenses are repressed. If the lamp of
justice goes out in darkness, how great is that darkne8s. "11
(2) .£.r.~S.e.r.:v..ntiQ!1Jt.[Jhe governmkt. --- According to Chancellor James
Kent:
"Where there is no judicial department to int.crprP.t and execut.e the
law, to decide controversies, a nd to enforce right!'!, th e government
must either perish by its own imbec.:ility or the other departments of
government must usurp powers for the purpose of commanding obedi-
ence, to the destruction of liberty."12
(3) B.e.spet;t.fo_r_:_.lg_w _g_'1¢_f!rs!.f.~· - - In the words of Mr. Justice Arthur
Vande1·bilt:
"It is in the courts and not in the legislature that our citizens
primarily feel the keen cutting edge of the law. If they have respect for
the work of t he courts, thei r respect fo r law will survive t he shortcom-
ings of any other branch of the government; bul if they lose their
respect for the wor k of the courts, their respect for law and order will
banish with it to the great detriment of society."13
Independence of the judiciary.
(1) .\. lain constitutional provisionr; safeguarding judicial independence.
- In a democracy, the courts enjoy independence, that is, they are free to
perform their functions without interference from the executive or legisla-
tive bra nch of the government. 14 For a government of law and not of men
ca n be assured only by a judiciary that is independent and free, passion-
ately devoted to the impar tial admir.istration of justice. This being true,
the Constitution secures, in a number of ways, the independence of the
judiciary, to wit:
(~ Congress may not deprive the Supreme Cour t of the constitu-
tional powers granted to it (Sees. 2, 5.);
(b) Congress cannot prescribe the manner in which the Supreme
Court should sit, and determine the number of Ju~tices composing the
court (Sec. 4[11.);
(c) The Supreme Court is given the authority to appoint all officials
and empl oyees of t he judiciary {Sec. 5[61.);
11Modern Democracies, Vol. 2, p. 384.
12Cited in G ..l". Zaide. .~upra , p. 142.
13Th~ Challenge of Law Reform, pp. 4-5 lpamphlei}.
14True judicial independence implies indepcndt>m:t> not only from the other branches of
the government but also from any other institution, organization, or person. It is also
essentia l that cou rts are not infl uenced by the vagaries of public opinion or sentiment nor
!!WIIyed by any pressure from interelit groups.
246 TEXTBOOK ON THI-: PHILlPPTNE CONSTTTUTION Sec. 2
(A) The members of the Supreme Court and judges of lower courts
enjoy security of tenure (Sec. 11. );
(e) Their salaries cannot be decreased du1·ing their continuance in
office (Sec. 10.);
(() The members of the Supreme Court can only be removed through
the difficult process of impeachment (Art. XI, Sec. 2.); and
(g) The judiciary enjoys fiscal autonomy. (Sec. 3.)
(2) Other constitutional provisions. - The constitutional policy of an
independent judiciary is further strengthened by the provisions transfer-
ring (from the Department of Justice I to the Supreme Court the adminis·
trative supervision over all courts and the personnel then~of (Sec. 6.) and
the authority to assign temporarily judges of lower courts to other stations
as the public interest may require (Sec. 5l3J.), and the provision giving
specific authorization to the Supreme Court to order a change of venue or
place of trial to avoid a miscarriage of justice. I.Sec. 5l4J.) The prohibition
against members of Congress personally appearing as counsel before any
court (Art. VI, Sec. 14.), while designed to shield them from corruption,
works equally to promote the independence of the courts.
In the final analysis, every judge sets the threshold of his own inde-
pendence. No constitution can do that for him if he does not possess the
strength of character expected of those appointed to the bench. (see Sec. 7.)
(3) Criticism of courts. -The courts are not !:leyond criticism because
of the constitutional guarantee of freedom of expression. (Art. III, Sec. 4.)
But criticism should be fair and constructive and based on facts. Irrespon-
sible criticism also tends to erode the faith of the people in the administra-
tion ofjustice. Respect of the people for the courts is the only sure guaran-
tee for their stability and p e r m a n e n c e . 1
"
SEC. 2. The Congress shall have the power to define, pre-
scribe, and apportion the jurisdiction of the various courts but
maynot deprive the SupremeCourtofitsjurisdictionover.cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it
undermines the security of tenure of its Members.
Power to apportion jurisdiction of various courts ·
vested in Congress.
The power to define, presc1·jbe, and apportion the jurisdiction of the
various courts is vested by the Constitution in Congress. However, there
are three (3) limitations to the exercise of this power. namely:
16Andres vs. Cabrera, 94 SCRA 512, Dec. 14, 19i9.
S~<;. 9 ART. Vlii.- JUDICIAL DEPARTMENT 247
(1) The Congress cannot diminish or otherwise impair the original and
appellate jurisdiction of the Supreme Court over cases enumerated in
Section 5 (infra.);
(2) No law shall be passed reorganizing the judiciary when it under-
mines security of tenure guaranteed in Section 11; and
(3) ·No law shall be passed increasing the appellate jurisdiction of the
Supreme Court without its advice and concurrence. (Art. VI, Sec. 30.)
Jurisdiction of courts.
Jurisdi(:tio!J. is the power and authority of a court to hear , try, and
decide a case. It may be:
(1) ..Ge.acraJ. --when it is empowered to decide all disputes which may
come before it except those assigned to other courts (e.g., jurisdiction of the
Regional Trial Courts);
(2)_I,Arn:itecj_, - when it has authority to hear and determine only a few
specified cases (e.g., jurisdiction of special courts, supra.);
(3), Orig~TJ:.g,.l. - wh en it can try and decide a case presented for t he first
time;
(4 ) gpp~t.lr£tg_.- when it can take a case already h eard and decided by a
lower court removed from the latter by appeal;
(5) .E.~r;.Zu..ff.i_l!e. - when it can try and decide a case which cannot be
presented before any othe1· court;
(6) Concurrent. - when any one of two or mol'e co urts may take
cognizance-or-a case;
(7) CLimi.rt.fl<l. - that which exist s fo r the punishment of crime; and
(8) (;j~~- that which exists when the s ubject matter is not .of a
criminaT nature (e.g., collection of debt).
SEC. 3. The Judiciary shall enjoy fiscal autonomy. Appro·
priations for the Judiciary may notbe reduced by the legislature
below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released.
Fiscal autonomy.
Section 3 seeks t o further insure the independence of the j udi ciary. 'l'he
appropriations for the judiciary may not be reduced as provided above but
they may be increased. The Constitution takes into account the fact that
the administration of justice, in the past, has always been at the bottom
list of priorities in government budgetary appropriations. The prohibition
again st reduction by Congress of the appropriations for the judiciary below
the amounts appropriated for the previous year assures, at least, that the
minimal funding requirements of the judiciary will be met.
248 TEXTBOOK ON THE PHILIPPINE CONSTITUTION Sec.4
After approval, the appropriations shall be automatically and regularly
released, thus making it financially independent, without having to plead
to the President or budget officials for their release.
SEC. 4. (1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en bane or in
its discretion, in divisions ofthree, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.
(2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall be
heard by the Supreme Court en bane, and all other cases which
under the Rules of Court are t•equired to be heard en bane,
including those involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders, in·
structions, ordinances, and other regulations, shall be decided
with the concurrenceofa majority ofthe Members who actually
tookpartin the deliberations on the issues in the case and voted
thereon.
(3) Cases or matters heard by a division shall be decided or
resolved with the concurrenceofa majority oftheMembers who
actually took part in the deliberations on the issues in the case
and voted thereon, and in no case, without the concurrenceofat
least th.t:e.e~~b_M~JP.!mn. When the required number is not
obtained, the case shall be decided en bane: Provided, That..no
.sl2~tti._ne or principl~_<?.t:.~~~_)~i-~-~~~!1-_hY.t.h.e. ~~!1-~.t~-~-d~!§i«m
l~,ll~e.~_ed ~n bane .4?.1:" i!l,__(iiyi.~ie>R.m~y_Q~__m.Q~ifl~d.orHre.versed
~~E:Ptby th.e. co\lT.t.mting.m ban.c-1
Composition of the Supreme Court.
The new Constitution retained the membership of the Supreme Court
of fifteenJ15) me~.Qers including the_Chief Justice under the 1973 Charter
(Sec. 4[1].) to cope with the continuing increase in the number of cases
brought about by a growing population.
The Constitution requires any vacancy to be filled within ninety (90)
days from the occurrence thereof. In the past, vacancies in the Supreme
Court sometimes remain unfilled for a 1ong time. Even when the member-
ship of the Court was fixed at fifteen ( 15), it was seldom constituted.
Sitting procedure.
The Supreme Court may sit and hear casesilll.b..f£nc (i.e., as one body) or
in divisions of three <:U, five (5), or seven (Jj membe?s:'{Sec. 4r1D)t is now
the Supreme Court that decides whether or not it will sit in divisions.
Sec. 4 ART. VIII. -JUDICIAL DEPART:I-1ENT 249
On t he basis of fifteen (15 ) members, the number of divisions will be
five (5), composed ofthree f3 ) members each; three (3), composed of five (5)
m embers each; or two (2), meeting separately. In case of two (2) division8,
there wilJ be eight (8) members including the Chief Justice in one division,
and seven (7) in the other. The different sizes of the divisions would
indicate the relative importance of the case being heard.
By sitting in divisions, the Supreme Court increases its capacity to
dispose of cases pending before it. The decision of a divi sion is the decision
of the Supreme Court itself. Although a doct rine or principle of law ren-
dered en bane or in division may be modified or reversed only by the court
sitting en bane (Sec. 4(3).), there is always the possibility that each of the
three (3) divisions may render inconsistent decisions.
Cases to be heard or decided en bane
and vote required.
They are:
(j) All cases involving the constitutionality of a treaty, international or
executive agreement, or law (statute) shall always be heard and decided by
t h e Supreme Court en bane. To declare a treaty, international or executive
agreement, or law, unconstitutional, the ~o_nctJ..r.r.!:!n~(L.Qf..i! maiori.ty Qf th.e.
.Jrle.IJl.b.~§-who actually _took pa.rJ....i.nJh.~u;leliberatio.n~Q. th.eJ.s~_j.n.Jhe.
.case.and..Jlaie.d..the.re.on is. requiri.d. (Sec. 4[2].) When the necessary major-
ity cannot be had, its constitutionality shall be deemed upheld.
The quorum of toe Supreme Court when sitting en bane is eight (f?J.
H ence, the votes of five C9J are sufficient for rendering a decision on ~li
cases required to be heard en bane provided they actually took part in the
deliberations on the issues in th e case;
(2) All other cases including those involving the co~titutionality, ap-
plicat ion or operation of president ial decrees, proclamation s, orders, in-
structions, ordinances and other regulations which under the rules of court
are r equired to be heard en bane shall be decided with the concurrence also
of the ?umber provided above (Ibid.);
(8") In administrative cases where the decision is for the dismissal of a
judge of a lower court, the same majority vote is necessary to order such
dismi~sal (see Sec. 11, infra.);
(4) Cases heard by a aivision shall be decided or resolved with the
concurrence likewise of t he same majority of the m ember s who are at least
three (3) in number but if such required number is not obtai ned, the case
shall be decided en bane (Sec. 4[3).); and
(_5) Cases modifying or r eversing a doctrine or principle ..of layv laid
down by the Court in a decision rendered en bane or in division shall be
decided by the Court sitting en bane. (!bid.)
250 TEXTBOOK ON THE PHILIPPINE CONSTITL'TION Sec. 4
Meaning of executive agreement.
An .e.~gcutjve agreem.~ is an agreement entered into by the President
on behalf of the Philippines with the government of another country and is
effective and binding upon the Philippines even without the concurrence of
Congress.1
The line between such agreement and a treaty (see Art. VII, Sec. 21,
supra.) is not easily defined although it may be generally said that the
former deals usually with routine matters not thought to require the
formality of a treaty.2 From the point of view of internationallaw,3 there is
no difference between treaties and executive agreements in their binding
effect upon the states concerned.
Classes of executive agreements.
Executive agreements may be classified into two groups, namely:
( 1) Those ma.ckp,ure.l~ as...exec_utive acts affecting external relations and
independent of legislative authorization. 'fhey are used in the settlement
of pecuniary claims of citizens against foreign countries for violation of
rights protected by treaties or by rules of international law; and
(2) 'I.hQ§...e_ ~.!':terl!.cl. _i'.tto_j_n_pJ.~rsuqnc~_!2LQcts 9LJ;ongres§_. They affect
internal affairs and domestic rightg_ They include tariff and postal ar-
rangements, visa fees, commercial relations, and matters affecting trade-
marks and copyrights, and the like. An example is the executive agreement
entere::l into between the President of the Philippines and the President of
the U-nited States on July 4, 1941, known as the Bell Trade Agreement
which was entered pursuant to a congressional acL4
Meaning of power of !udicial review.
The power of.iJJ£l.k-_iq,lJ.'(!.Ei.f.?:Y is the power of the courts, ultimately of the
Supreme Court, to interpret the Constitution and to declare any legislative
or executive act invalid because i'i: is in conflict with the fundamental law.
This authority is derived by clear implication from the provisions of Sel~
tions 4(2, 3) and 5(2, a, b), Article VIII of the Constitution.
Through such power, the judiciary, the Supreme Court partiCularly,
enforces a~d upholds the rule of law and supremacy of the Constitution. It
is because the courts are the official (but not necessarily the only) inter-
preters of th~· Constitution that a study of 0ur Constitution is, in large
measure, a study of judicial decisions and opinions on the meaning and
application of its provisions.
'This is debatable. (see Article VII, Sec. 2l.J
2The 1947 R.P.-U.S. Military Bases Agreement was merely an executive agreement. (see
A1·t. XVIII, Sec. 25.}
"As to meaning of international agreement, ~ee Article VII, Section 21.
•See V.G. Sinco, op. cit., p. 296. The act i.;; Commonwealth Act No. 733.
Sec. 4 ART. VIU. -,JUDICIAL DEPARTMENT 251
The power of judicial review now includes "the duty to determine
whether or not there has been a grave abuse of discretion amounting to
lack or excess ofjurisdiction on the part of any branch or instrumentality of
the Government." (Sec. 1, par. 2.) This is true although the question before
the court may be political in character,which ordinarily cannot be inquired
into by the courts. (infra.)
Limitations on exercise of power
of judicial review.
Iu. ..~§.~s involviqgJb.~..~on~Jj~_l!tiopalitY..Qf.~'f_!:l_a_ty..~ _]avv_,_p_l~~~ig_~~~i<:l!.
.P.ecr~_e, .~.tc.J .th~_U!l}!~~lions ar~~
0) There must be a concurrence of at least a majority of the members
who actually took part in the deliberations on the issues in the case and
(~)voted thereon (Sec 4[2, 3].);
·. A law, @must be sustained unless clearly repugnant to the
Constitution in view of the presumption of validity. Jn other words, when
there are two possible interpretations, by one of which a statute would be
unconstitutional, and by the other would be valid, the court should adopt
the latter;5
(;}''(The question of.wisdom, propriety, or necessity of a law, etc., is not
open to determination by the court;6 and
(4) Political questions are generally addressed to the political (i.e.,
elective) branches (namely, the President and Congress) of the government
and are, therefore, n.._o-t..j-u s t i c i ab l e . 7
.:_
Justiciable question distinguishe41
from political question.
A justiciable questio'f] is one which affects personal or property rights
accorded to every member of the community in cases properly brought
before the judical tribunals. It is one which is proper to be examined or
decided in courts ofjustice because its determination would not invol\'e an
encroachment upon the legislative or executive power.
Thus, issues concerning the claim of a person against another. the guilt
or liability of one accused of violation of law, the powers of a government
agency or office, the right of a citizen in relation to the government, and
generally those involving the interpretation oflaws, treaties, or the Consti-
tution, are essentially within the competence of courts to pass upon.
:.chippewa Indiana vs. U.S., 301 U.S. 358.
6See U.S. vs. Ten Yu, 24 Phil. 40.
7-The C....Q.~~i.~~-~!•m,however, CX_£!'_~~~lY. confers upon tl}e_?~reme Cou.rt the eower to
dechu:e.a....u·~Jl,Il£onstjtutional dcspite..the..eminently pplitical char~:ot.i-.r.~~ti:;rii~-ki~i
(Sec. 4(2].) and..to. determine_w,b.e~or..not.ther.e.has been a graye abuse ofdis~:retiQO Qn th.e.
p<.~rtQf.1hc..P.n.ai.~r...kQngr~ (Sec. I, par. 2.1
252 TEXTBOOK ON TH E PHIL£PPINF. CONSTITUTION Sec. 5
A P..Olitical question, on the other hand, is one which, under the Consti-
tuti on;-<'fs- i;"be d;cid~d by th e people in their sovereign capacity, or in
regard to which full discreti onary authori ty h as been delegated to the
legislative or executive branch of the government." The term connotes a
question of policy in matters concerning the government of the State as a
body politic. It is concerned with issues dependent upon the wisdom, not
the validity or legality, 'of a pai.'ticular measure or a contested act.8
. For example, the :Supreme Court cannot inquire into the reason for the
expulsion uf a member of Congress, or determine what constitutes disor-
derly behavior by a membcr9 (Art. VI, Sec. 16131.) or pass upon th e question
a s to who h as been elected Senate President or Speaker of t h e H ouse of
Representat.ives10 {Sec. 16[ l l l because the Constitution has conferred ju-
risdiction upon the matter to Congress itself. The matter of whe ther 0r not
the holding of a referendum is unnecessary has been held to be a political
question, involving as it does the wisdom of the decision of the political
branch of the government to cal l for a referendum.U
But if t h e cont roversy involves the issu e of whether or not th ere has
been a grave abuse of di~cretion a mounting to lack or excess of jurisdiction
on the part of a ny branch or instrumentality of the government, m· viola-
tion of constitu tional limitations on power, the same may be heard by the
courts. (see Sec. 1, par. 2.)
SEC. 5. The Supreme Court shall h ave the following powers:
(1 ) Exe rcise origina l jurisdiction over cases affecting am-
bassadors, other public ministers and consul~, and over peti-
tions for certiorari, prohibition, mll.ndamus, quo warranto, and
habeas corpus.
(2) Review, revise, r ever se, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final
judgme n ts and orders of lower courts in:
(a) All cases in which the constitutionality or validity ofany
treaty, inte rnational or e xecutive agreement, law, presidential
decree, proclamation, orde r, instruction, ordinance, or regula-
tion is in q uestion.
(b) All ca~es involving the legality of a n y tax, impost, assess-
ment, or toll, or any p enalty imposed in r elat ion thereto.
(c) All cases in which the jurisdiction of any lower court is
in issue.
&fanada vs. Cuenco, 103 Phil. 105 1; sec .Ja vell11na vs. Executive Secretary, et al., L-
36142. March :31 , l973.
'>St>e Osmeria vs. P end atun , L-17144, Oct. 2fl, 1962.
''1Avelino vs. Cuenco. 83 Phil. J7.
"De La Llan1:1 vs. COMELEC, L-47:245, Dec. 9. 1977.
.;
St~c. fi ART. V1/l. - JUl>lCIAL DF,PARTMENT 253
(d) All criminal cases in which the penalty imposed is reclu-
sion perpetua or higher.
(e) All cases in which only an error or question of law is
involved.
(3) Assign temporarily judges of lower courts to other s t a·
tions as public interest may require. Suc h temporary assign·
ment shall n ot exceed six m onths without t he consent of the
judge concer ned .
(4) Orde r a change of ve nue or place of tria l to avoid a
mis carriage of justice.
(5} Promulgate rules concerning the protection and en-
forcement of constitutional rights, pleading, pradice, and pro-
cedure in all courts, the admission to the practice of law, the
Integrated Ba r , and legal assistance to the u nderprivileged.
Such rules sh all provide a simplified and inexp e n sive procedure
for the s p eedy dis posit ion ofcases, shall be uniform for all courts
of the same grad e, and s h a ll not diminish, increase, or modify
substantive r ights. Rules of procedure of s pecial courts a nd
quasi·judicia l bodies shall r emain effective unless disapproved
by the Supre m e Court.
(6) Appoint all officials and employees of the Judiciary in
accordance with the Civ il Ser vice Law.
Original jurisdiction of Supreme Court over
cases affecting ambassadors, etc.
The words "ambassadors, other public ministe rs a nd consuls" include
all possible diplomatic agents which a ny foreign power may accr edit to
another state.1 They refer, t herefore, to those of a foreign country, and not
thos e of the Philippines. The origi na l jurisdiction conferred is concurrent
(sup ra. ) with th at of Regional 1'ria l Courts whose decis ions m ~y be ap-
peale d to the Supreme Court.2
As a rule, ambassador§and othe[.J2J,!blic minist~rs a re exempt from the
jurisdiction of tribunals of the country to which t,h ey are accredited. T his is
based on the principle of i nternationallaw that they a re con~idered exten-
s ions of the sovereignty of the states which thty r epresent. .1\....c.o.o.sul,
..h o wey_~E.Lis .n. o~. ~~-~i~k~ 0~ ~:t~_priy.H~..K~~ anrl.i.!!!.Qlhl.n.~.U~~.Qf an ambass.~,slor
~ r . minj,ste.r . a.n.c;!. ~.~.. §.\,l.jb ~~ t ~9 . -~h.e. Ja.J~:->. o~ tl:t~ co~ n~ ry _~o whi~h. h~_j_s ,
P,;~cr~_d!ted. A ~9.1J.§!Y.U h~~J. i.~?. Q<J.!:..~.~~EJ....l? tfr~!!l._c.:r:.i n .1i naJ..P.rosecution.3
1U.S.C.A ., Cot\!\t. Pa rt 2, p. 235. d t.i ng 70 Op. Atty. Gen. U.S . 20U.
2See Schnekenhergcr vs. Moran, 62 Phil. 429.
3lbid.
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