legislative power to executive department

8/8/2019 Legislative Power to Executive Department

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Micha Chernobyl Lopez Malana || i-am-cybil 2010

EH 408 MC || Constitutional Law I || Atty. Joan Largo

University of San Carlos College of Law || AY 2010 - 2011

LEGISLATIVE DEPARTMENT (POWERS)

A. GENERAL PLENARY POWERSSection 1. The legislative power shall be vested in theCongress of the Philippines which shall consist of a Senateand a House of Representatives, except to the extentreserved to the people by the provision on initiative andreferendum

LEGISLATIVE POWERS

- the power propose, enact, amend and repeal laws- vested in Congress; yet shared to the people by meansof initiative and referendum

INITIATIVEANDREFERENDUM-Signed by at least ten percentum of total registeredvoters; of which a legislative district should be representedby 3 percentum of registered voters thereof.

B. LEGISLATIVE MILL(refer to Procedure of the Passage of Bills Section of

the Requirements of Bills)

C. AS TO REQUIREMENTS OF BILLSSUBJECT AND TITLE

Section 26. (1)Every bill passed by the Congress shallembrace onlyone subjectwhich shall beexpressed inthe titlethereof.

- the title expresses the subject of the bill.- this is such so as to prevent logrolling or the possibilityof smuggling in of riders in a bill.

RIDERS items that are unrelated to the bill

itself. - this is to prevent fraud; and to givedue process to the legislators.

TITLE- Need not be an index of the content of the bill- Must not be so uncertain that the average person

reading it would not be informed of the purpose of theenactment.

- The title is controlling over the text- Should not be construed in other ways that that which

is provided on its ordinary meaning.-

- inform public, prevent fraud, riders- subject expressed in title, inform, due

process for legislators themselves

AS TO SPECIFIC LAWS

Section 22. The President shall submit to the Congress,within thirty days from the opening of every regularsession as the basis of the general appropriationsbill, a budget of expenditures and sources of

financing, including receipts from existing and proposedrevenue measures.

Section 24. All appropriation, revenue or tariff bills, billsauthorizing increase of the public debt, bills of localapplication, and private bills, shalloriginate exclusivelyin the House of Representatives, butthe Senate may

propose or concurwith amendments.

Section 25.

1. TheCongress may not increase theappropriationsrecommended by the President for theoperation of the Government as specified in the budget.The form, content, and manner of preparation of thebudget shall be prescribed by law.

2. No provision or enactment shall be embraced inthe general appropriations bill unless i t relates specificallyto some particular appropriation therein. Any suchprovision or enactment shall be limited in its operation totheappropriation to which it relates.

3. The procedure in approving appropriations for theCongressshall strictly follow the procedure forapproving appropriations for other departmentsand agencies.

4. Aspecial appropriations billshall specify thepurpose for which it is intended, and shall be supportedby funds actually available as certified by theNationalTreasurer, or to be raised by a corresponding revenueproposal therein.

5. No law shall be passed authorizing any transferof appropriations; however, the President, thePresident of the Senate, the Speaker of the House ofRepresentatives, theChief Justice of the SupremeCourt, and the heads ofConstitutionalCommissionsmay, by law, be authorized to augment any item inthe general appropriations law for their respectiveoffices from savings in other items of their

respective appropriations.

6. Discretionary funds appropriated for particularofficials shall be disbursed only for public purposes to besupported by appropriate vouchers and subject to suchguidelines as may be prescribed by law.

7. If, by the end of any fiscal year, the Congressshall have failed to pass the general appropriations bill forthe ensuing fiscal year, the general appropriations law forthe preceding fiscal year shall be deemed re-enacted andshall remain in force and effect until the generalappropriations bill is passed by the Congress.

- The President is vested with the duty to submit to

Congress a budget of expenditures; in turn Congressallocates the specific budget into the specific projectsand laws to which the general public can benefit from.

- Appropriation bills are said to have to originate fromthe House of Representatives since their affinity to thegeneral public is greater as compared to other officialcapacity in the government.


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** the appropriation bill should be inaccordance to the budget set by thePresident.- The Senate, however, may propose or concurwith the bill passed by the House of Reps.; suchproposals or concurrence, may even result to anew bill made by Senate.

- such occurrence is valid only when the aHouse bill has already passed third reading andhad already been received by the Senate. Thisevent then may trigger the deliberation of theSenate Bill which basically originated from theHouse of Representatives.1

- Bills that should originate from the House ofRepresentatives are the following:

An appropriation billis one the primary and specificpurpose of w/c is to authorize the release of funds fromthe public treasury.

A revenue billis one that levies taxes and raises fundsfor the govt, while a tariff billspecifies the rates orduties to be imposed on imported articles.

A bill increasing the public debtis illustrated by onefloating bonds for public subscription redeemable after acertain period.

Abill of local applicationis one involving purely localor municipal matters, like a charter of a city.

Private billsare illustrated by a bill granting honorarycitizenship to a distinguishedforeigner.

The Congress cannotincrease , but only decrease theappropriations; this may be possible through:

1.) Presidents discretion on allocating budget on PorkBarrel.2.) Congress can, itself, decrease the budget.

ArticleVI, Section 29. No money shall be paid out ofthe Treasury except in pursuance of an appropriationmade by law.

- In the case of Guingona vs. Carague, there was aquestion to whether the automatic appropriation service,which was promulgated before the 1987 Constitution,was already indeed unconstitutional

-The Courts contention was that by virtue of Sec 3 ofArticle XVIII, the law passed to make the automatic

appropriations possible may still be in effect since it hasnot been amended, repealed or altered, and it is notinconsistent with the present Constitution.

Section 3. All existing laws, decrees, executive orders,proclamations, letters of instructions, and other executiveissuances not inconsistent with thisConstitution

1G.R. No. 115455, Tolentino vs. Secretary of Finance, October 30,

1995.

shall remain operative until amended, repealed, orrevoked.

- Laws are construed in a way that they are expresslylimited to certain matters, they may not, byinterpretation or construction, be extended to othermatters.

PROCEDURE FOR PASSAGE OF BILLS

ArticleVI. Section 26.

(2). No bill passed by either House shall become a lawunless it has passed [three readings]on[separatedays], and [printed copies thereof in its final formhave been distributed to its Members three daysbefore its passage], except when the President certifiesto the necessity of its immediate enactment to meet a

public calamity or emergency. Upon the last reading ofa bill, no amendment thereto shall be allowed, and thevote thereon shall be taken immediately thereafter, andthe yeas and nays entered in the Journal.

PREPARATIONOFTHEBILL

The Member or the Bill Drafting Division of theReference and Research Bureau prepares and drafts thebill upon the Member's request.

FIRSTREADING

1. The bill is filed with the Bills and Index Service andthe same is numbered and reproduced.

2. Three days after its filing, the same is included inthe Order of Business for First Reading.

3. On First Reading, the Secretary General reads thetitle and number of the bill. The Speaker refers the

bill to the appropriate Committee/s.

COMMITTEECONSIDERATION/ACTION

1. The Committee where the bill was referred toevaluates it to determine the necessity of conductingpublic hearings.If the Committee finds it necessary to conduct publichearings, it schedules the time thereof, issues publicnotics and invites resource persons from the publicand private sectors, the academe and experts on theproposed legislation.If the Committee finds that no public hearing is notneeded, it schedules the bill for Committeediscussion/s.

2. Based on the result of the public hearings orCommittee discussions, the Committee mayintroduce amendments, consolidate bills on thesame subject matter, or propose a subsitute bill. Itthen prepares the corresponding committee report.

3. The Committee approves the Committee Report andformally transmits the same to the Plenary AffairsBureau.


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SECONDREADING

1. The Committee Report is registered and numberedby the Bills and Index Service. It is included in theOrder of Business and referred to the Committee onRules.

2. The Committee on Rules schedules the bill forconsideration on Second Reading.

3. On Second Reading, the Secretary General reads thenumber, title and text of the bill and the followingtakes place:

a. Period of Sponsorship and Debateb. Period of Amendmentsc. Voting which may be by:

1. viva voce2. count by tellers3. division of the House; or4. nominal voting

THIRDREADING

1. The amendments, if any, are engrossed and printedcopies of the bill are reproduced for Third Reading.

2. The engrossed bill is included in the Calendar ofBills for Third Reading and copies of the same aredistributed to all the Members three days before its

Third Reading.

3. On Third Reading, the Secretary General reads onlythe number and title of the bill.

4. A roll call or nominal voting is called and a Member,if he desires, is given three minutes to explain hisvote. No amendment on the bill is allowed at thisstage.

a. The bill is approved by an affirmative vote of amajority of the Members present.

b. If the bill is disapproved, the same istransmitted to the Archives.

TRANSMITTALOFTHEAPPROVEDBILLTOTHESENATE

The approved bill is transmitted to the Senate for itsconcurrence.

SENATEACTIONONAPPROVEDBILLOFTHEHOUSE

The bill undergoes the same legislative process in

the Senate.

CONFERENCECOMMITTEE

1. A Conference Committee is constituted and iscomposed of Members from each House of Congressto settle, reconcile or thresh out differences ordisagreements on any provision of the bill.

2. The conferees are not limited to reconciling thedifferences in the bill but may introduce new

provisions germane to the subject matter or mayreport out an entirely new bill on the subject.

3. The Conference Committee prepares a report to besigned by all the conferees and the Chairman.

4. The Conference Committee Report is submitted forconsideration/approval of both Houses. Noamendment is allowed.

TRANSMITTALOFTHEBILLTOTHEPRESIDENT

Copies of the bill, signed by the Senate Presidentand the Speaker of the House of Representatives andcertified by both the Secretary of the Senate and theSecretary General of the House, are transmitted to thePresident.

PRESIDENTIALACTIONONTHEBILL

1. If the bill is approved the President, the same isassigned an RA number and transmitted to theHouse where it originated.

2. If the bill is vetoed, the same, together with amessage citing the reason for the veto, is transmittedto the House where the bill originated.

ACTIONONAPPROVEDBILL

The bill is reproduced and copies are sent to theOfficial Gazette Office for publication and distribution tothe implementing agencies. It is then included in theannual compilation of Acts and Resolutions.

ACTIONONVETOEDBILL

The message is included in the Order of Business. Ifthe Congress decides to override the veto, the House and

the Senate shall proceed separately to reconsider the billor the vetoed items of the bill. If the bill or its vetoeditems is passed by a vote of two-thirds of the Members ofeach House, such bill or items shall become a law.**The President has the discretion of when the need ofimmediate enactment is: THERE should be publiccalamity or emergency.- After the third reading of the Bill, it could still bechanged by the Bicameral Conference Committee. Notallowing the Bicameral Conference Committee would bedepriving it of its duty as such Committee.

- Changes could be introduced to the Bill only if theprovisions of the House Bill and the Senate Bill are tooradical and too irreconcilable from each other.

- Readings done of a House Bill and Senate Bill couldcommence simultaneously, except in instances wherethe Bill to be made pertain to those that shouldexclusively originate from the House of Representatives.2

- If the President does not sign the Bill within thirty daysof receipt, the Bill becomes a Law Presidential Inaction

2 appropriation bills, bills increasing public debt, private bills,

revenue bill, tariff bill and local application


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This is allowed so as not to hamper the legislativeprocess which would result to having the Bill beperpetually stuck in the Presidents office.

- This is a way that the President may not infringe intothe prerogatives of the legislators having in mind thatlegislators before passing the law for approval havealready discerned it to be studied thoroughly inaccordance with the laws promulgated for the generalpublic.

PRESIDENTIAL VETO

ArticleVI.Section 27.

1. Every bill passed by the Congress shall, before itbecomes a law, be presented to the President. Ifhe approves the same he shall sign it; otherwise,he shall veto it and return the same with hisobjections to the House where it originated, whichshall enter the objections at large in its Journaland proceed to reconsider it. If, after suchreconsideration, two-thirds of all theMembersof such House shall agree to pass the bill, itshall be sent, together with the objections, to

the other House by which it shall likewise bereconsidered, and if approved by two-thirdsof all theMembers of that House, it shallbecome a law. In all such cases, the votes ofeach House shall be determined by yeas or nays,and the names of the Members voting for oragainst shall be entered in its Journal. ThePresident shall communicate his veto of any billto the House where it originated within thirty daysafter the date of receipt thereof, otherwise, it shallbecome a law as if he had signed it.

2. The President shall have the power to vetoanyparticular item or itemsin anappropriation,

revenue, or tariff bill, but the veto shall notaffect the item or i tems to which he does not object

two-thirds of all the Members of such House shall agreeto pass the bill, it shall be sent, together with theobjections, to the other House by which it shall likewise bereconsidered, and if approved by two-thirds of all theMembers of that House, it shall become a law

- This is the remedy of Congress to the veto ofthe President. These votes shall override the vetoexpressed by the President

- Article VI, Section 27, (2) pertains to ITEM VETO.

WHAT IS AN ITEM?

- Distinct and severable part of the Bill. The part of thebill that indicates an allocation of amount and theprovisions under such allocation.

AMOUNT + PROVISION RELATING TO THE ITEMExample:Appropriation of Php 1, 000, 000.00 for the improvementof Aircraft Materials. From the Php 1, 000, 000.00, Php

300, 000.00 is allocated then for the purchase of theAircrafts Windshield.

- Vetoing the appropriation of Php1,000,000.00 without vetoing the allocationof Php 300,000.00 for the AircraftWindshield is an invalid veto. Such cannotbe considered an ITEM VETO; but an invalidGENERAL VETO.

- Vetoing Php 300,000.00 for the Aircraft,without having to veto the appropriation ofPhp 1,000,000 for the Improvement ofAircraft Materials is a valid ITEM VETO.

D. LIMITATIONS TO POWER OF LEGISLATIONEXPRESS LIMITATIONS

1. Bill of Rights (ArticleIII)2. Appropriations Bills (ArticleVI, Section 26)3. Taxation Laws (Article XIV, Section 4[3], Article

VI, Section 28 and 29)

4. Constitutional Appellate Jurisdiction of theSupreme Court (ArticleVI, Section 30)

5. Grant of Royalty(ArticleVI, Section 31)IMPLIED LIMITATIONS

Non-delegation ofLegislative Powers

- As a general rule, legislative powers cannot bedelegated, what can be delegated is theexecution of the laws under acceptable standardslimiting discretion of the executive. The Constitution,

however, provides certain specific exemptions.

- This is could be qualified by the Test oSubordinate Legislation.

The tests of Subordinate Legislation:- The Completeness Test- Sufficiency of Standard Test

THE COMPLETENESS TEST

- A law itself is complete in all its details. Rules made bya delegate is simply made to enforce that which isalready complete, exudes no delegation of legislativepower; but only an act of enforcement of the furtherance

of a law that already exists.

SUFFICIENCY OF STANDARD TEST

- standards in a statute guide government agencies topromulgate rules, so rules pursuant to such standard isnot a piece of legislation, so there is no delegation oflegislative power.

Delegation to the President


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- The President is vested by Congress to carry out adeclared national policy. He cannot delegate this on hisown. Taking in to consideration that he is but to carryout such declaration means that emergency powers donot inherently come from his office, but it is merelydelegated to him. (ArticleVI, Section 23)

-Congress may also authorize the President to fix taxesso as to put limitations and restrictions on tariff rates,import and export quotas, tonnage and wharfage dues.(ArticleVI, Section 28)

Delegation to the People

- Such is exhibited in the possibility of Initiative andReferendum

Delegation toLGUs

- Delegation follows the Doctrine of SubordinateLegislation.

Prohibition on PassageIrrepealableLaws

-this is a prohibition since, if it were true that there may

be irrepealable laws, then there would be no futuregeneration of laws, as they as barred from passagebecause of laws in the past that are deemed absoluteand cannot waiver from its letter and intent.

E. AIDS TO LEGISLATIONQUESTION HOUR

Art. VI, Sec. 22. The heads of departments may upontheir own initiativewith the consent of the President,or upon the request of either House, as the rules of eachHouse shall provide, appear before and be heard by suchHouse on any matter pertaining to their departments.

Written questions shall be submitted to thePresident of the Senate or the Speaker of the Houseof Representatives at least three days before theirscheduled appearance. Interpellations shall not belimited to written questions, but may cover matters relatedthereto. When the security of the State or the publicinterest so requires and the President so states in writing,the appearance shall be conducted in executive session

The Question Hour occurs when there is a need toquestion heads of matters pertaining to theirdepartments.

-The heads of department shall provide, appear before,and be heard, by any house, on any matter pertaining to

their departments:

(i)upon their own initiative, with the consent ofthe President; or

(ii)upon request of either house, as the rules ofthat house shall provide.

- It is submitted that a member of the Cabinet may notrefuse to appear before the house. If he refuses asummons, he can be cited for contempt.

- If the President forbids his appearance, still he mustappear if asked by Congress. Under 1935, it was anexcuse for the President to certify that the interest ofpublic security justifies the refusal; under 1987, theremedy is an executive session not refusal to appear.

-When the security of the State or the public interest sorequires, and the President so states in writing, theappearance shall be conducted in executive session.

**It must be noted then that the Presidentcannot disallow the appearance but canonly ask for a closed door session.

LEGISLATIVE INVESTIGATIONS

The Legislative Department is vested with the power oinquiry categorizing such as an inherent power tolegislate. This has already been recognized by the courtsin the case of Arnault vs. Nazareno. The power of inquiryis essential and an appropriate auxiliary to the legislativefunction;such power is needed because the legislaturecould not legislate well if not for information acquired inlegislative investigations. Requesting for information has

usually been found to be unavailing, or if notvolunteered information has not always been accurate orcomplete, thus, compulsion is deemed necessary toobtain what is needed.

Although the aforementioned power is inherent in thelegislature, such is expressly stated in the 1987Constitution as follows:

Section 21. The Senate or the House ofRepresentatives or any of its respective committeesmay conduct inquiries in aid of legislation in accordancewith its duly published rules of procedure. The rights ofpersons appearing in, or affected by, such inquiries shal

be respected.

As emphasized above, legislative investigationscan be done by the Senate or the House ofRepresentatives or any of its respective committees[D]uly published rules of procedure should be thoserules that have been published by the current Congressas a new set of members get elected into officePublication of rules, whether there would be changes ornot, should occur thereafter.3

PURPOSE

The purpose of legislative inquiry may be a reexamination of a law or the rights of the citizens vested

to them by the Constitution.4In the assigned exercise, we believe that the legislativeinquiry done before the drafting of the Freedom ofInformation Bill was due to a re-examination of thesocial conditions of the provisions of the Constitutionnamely, Sec. 28 of Article II and Sec. 7 of Article III; ful

3 G.R. No. 180643, Neri vs. Senate Committee on Accountability ofPublic Officers and Investigations, September 4, 2008.4 Section 1, Rules of Procedure Governing Inquiries in Aid of

Legislation.


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public disclosure of transactions pertaining to publicinterest and right to information, respectively.

MECHANICS

Legislative investigations are initiated by theSenate or any of its committees, so long as the matter iswithin its competence. As exemplified in cases such as,Senate vs. Ermita and Standard Chartered Bank vs.Senate Committee on Banks, some resolutions are madeby virtue of a privilege speech that urges for suchlegislative investigation. Privilege Speeches, however, donot always assail legislative investigations; this isexhibited in the case of Bengzon vs. Senate Blue RibbonCommittee. The privilege speech done prior to the lattercase did not urge any legislative investigation; instead itmerely called upon the Senate to look into possibleviolations of Section 5, Republic Act No. 30195.

In informing persons called upon to be resourcespeakers and witness, invitations are furnished.Invitations contain the following: (1) the name of theperson being called upon, (2) the possible needed statutewhich prompted the need for the inquiry, (3) the usualindication of the subject inquiry and (4) the questions

relative to and in furtherance of the investigation.6 Theinvitations are in such format because people who arecalled upon to appear before the hearing should beadequately informed about the matter that are to becovered by the inquiry; giving them a chance to preparethe pertinent information and documents.7

Individuals who may be compelled to appear inlegislative investigations can be classified into twopersonalities: (1) military officers/members of theexecutive body and (2) ordinary citizens (privatepersons); those exempted from appearing are thePresident and incumbent Justices of the Supreme Court.

Military Officers/Member of the Executive:

In the exercise assigned, we opted to focus on the casewhere a military officer is called upon to appear in theinvestigation; similarly, this was deduced from the caseof Gudani vs. Senga.

When military officers who are invited to an investigationdo not appear in the same, due to the Presidents refusalfor them to do so, they could not be compelled to attendsuch investigation by virtue of a subpoenae adtestificandum, no matter how weighty the informationsought may be. The remedy of the legislative in thiscircumstance would be to seek judicial relief.

To elucidate: since the President is the Commander-in-chief, by virtue of the Constitution, of military officers inthe situation being discussed, they have the duty tosuccumb to the mandate of their superior. 8 The

5 G.R. No. 167173, Standard Chartered Bank vs. Senate

Committees on Banks, December 27, 2007.6 G.R. No. 89914, Bengzon vs. Senate Blue Ribbon Committee,November 20, 1995.7 G.R. No. 1806438 Section 18, Article VII, 1987 Constitution

Congress may not interfere with the Presidents power ascommander-in-chief; similarly, the President cannot, aswell, interfere with the right of Congress to conductlegislative inquiries. If it happens that both branchescould not reach an agreement of such dispute, the onlyconstitutional recourse is to the courts, as the finaarbiter of the said dispute.9

Ordinary Citizens (Private Persons):

If they are found to have not attended the investigationthey were invited to, they are served a subpoenae adtestificandum so as to compel them to join the nextscheduled hearing for the same subject of inquiryFurthermore, if they still do not attend they can be heldin contempt.

Power toContempt

In several cases brought to the Supreme Courtthe contempt power of the legislative department hasbeen assailed to be invalid; that such power is not to beexercised by the legislative since in it is a power that is

judicial in nature. However, the Court upholds thpower of the legislatives power of contempt stating that:

While the Constitution does not expressly vest Congresswith the power to punish non-members for legislativecontempt, the power has nevertheless been invokedby the legislative body as a means of preserving itsauthority and dignity10

The abovementioned statement emphasizes thathe power to punish contempt is based on the principleof self-preservation of the branches of the governmentand the court states further that:

xxxhow could the authority and power becomecomplete if for every act of refusal, every act of defiance

every act of contumacy against it, the legislative bodymust resort to the judicial department for the appropriateremedy, because it is impotent by itself to punish or deatherewith, with affronts committed against its authority odignity xxx11

To hold persons in contempt in a legislativinvestigation, a vote of a majority of the members ofSenate or Committee holding the investigation is neededto punish for contempt any witness before it whodisobeys any order of the Committee or refuses to besworn or to testify or to answer a proper question by theCommittee xxx12 In addition to that, when a person isheld in contempt, he can be detained indefinitely so longas his punishment is in congruence with his right to due

process. This is so because the Senate, as a continuingbody, does not cease upon periodical dissolution of theCongress or of the House Representatives during election

9 G.R. No. 170165, Gudani vs. Senga, August 15, 200610 G.R. No. L-3820 Arnault vs. Nazareno, July 18, 195011 G.R. No. L-6749, Arnault v. Balagtas, July 30, 195512 Section 18, Rules of Procedure Governing Inquiries in Aid of

Legislation.


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of the members of the same; there is no limit as to timeto the Senates power to punish for contempt.13

Inasmuch as the contempt power is inherent inthe legislative branch of the government, it cannot bedelegated to local legislative bodies. They cannotclaim to possess it since the contempt power attachesitself to the legislative branch not because of legislativefunctions per se, but because of the character of thelegislative branch in being one of the three independentand coordinate branch of the government.14

In holding legislative investigations, the rule isthat persons who are called to appear in the same aregiven the benefit of the rights granted to them by theConstitution. As to the right of self-incrimination, thiscould only be properly invoked in cases where theperson called to appear is subjected to a criminalproceeding and when he is the accused in suchproceeding. Persons called in a legislative investigation,however, remain only as witnesses or resource speakersand are not subject to any punishment by virtue ofinformation they divulge in the investigation.

Legislative questions are limited to questions not

dealing with the following issues:

a. state secrets (regarding military, diplomaticand other security matters)b. identity of government informersc. information related to pending investigationsd. presidential communicationse. deliberative process

** the preceding articles are covered byExecutive Priviedge.

Question Hour(Art. VI, Sec. 22) and LegislativeInvestigation(id., Sec. 21)

a. As to persons who may appear:22: Only a department head21: Any person

b. As to who conducts the investigation22: Entire body21: Committees

c. As to subject-matter22: Matters related to the department only21: Any matter for the purpose of legislation.

F. OTHER POWERS OF THE LEGISLATIVE(1) As Board Canvassers in Election for President

and Vice-President.(Article VII, Section 4)

(2) Call Special Election for President and Vice-President. (Article VII, Section 10)

13 G.R. No. L-382014 G.R. No. 72492, Negros Oriental II Electric Cooperative vs.

Sangguniang Panlunsod, Nov. 5, 1987

(3) Revoke/Extend Suspension of privilege of writ ofhabeas corpus, Declaration of Martial Law (ArticleVII, Section 18)

[SUSPENSION OF THE PRIVILEGE]* OF [WRIT OFHABEAS CORPUS]*

*Order to bring the body of the subject of the issue inquestion

*The suspension pertains to the privilege and not of thewrit. The writ may be issued but, it may bedisregarded/suspended when the body to be broughtwas detained in the first place by reason of a charge ofrebellion and of none other than REBELLION oroffenses inherent in or directly connected withINVASION.

MARTIAL LAW

- does not suspend the operation of the Constitution,nor supplant the functioning of the civil courts orlegislative assemblies, nor authorize the conferment of

jurisdiction on military courts and agencies over civilianswhere civil courts are able to function, nor automatically

suspend the privilege of the writ.

(4) Approve Presidential Amnesties (Article VII,Section 19)

- amnesties granted by the President should have theconcurrence of majority of Congress.

(5) Confirm certain appointments (Article VII, Section9 and 16)

(6) Concur in treaties (Article VII, Section 21)- No treaty or international agreement shall be valid andeffective unless concurred in by at least two-thirds of allthe Members of the Senate.

(7) Declare war and delegate emergency powers(Article VI, Section 23)

- The power vested in Congress is the power to declarethe existence of a war. Emergency powers, however,are still with Congress, but it can be delegated to thePresident.

(1)There must be a war or other emergency.(2)The delegation must be for a limited period only.(3)The delegation must be subject to such

restrictions as the Congress may prescribe.(4)The emergency powers must be exercised to

carry out a national policy declared by theCongress.

Power to declare war is vested in the President he beingthe Commanded-in-Chief.

Power to declare the existence of a state of war is vestedin the Congress. Such declaration of the existence of war


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is an acknowledgement of the Presidents declaration ofwar.

WHAT HAPPENS IF THE PRESIDENT DECLARES ASTATE OF EMERGENCY?

Nothing. It is just an acknowledgment of astate/condition of emergency although it is a pre-boardfor Congress to exercise its legislative power. There isnothing so sacrosanct about it.

(8) Judge Presidents fitness (Article Vii, Sec 11 [4])(9) Power of Impeachment (Art XI)

also known as Political Justice. Power ofimpeachment is lodged in a political body, Congress.

WHO CAN BE IMPEACHED?

1.President2.Vice- President3.Justices of the Supreme Court (Not the Justices of the

Court of Appeals or the Judges of Court)4.Members of the Constitutional Commission5.Ombudsman (Not the Assistant Ombudsman)* No law can be passes naming other persons who canbe impeached. The list is exclusive.

GROUNDS FOR IMPEACHMENT:

1.Culpable violation of the Constitution (Cannot be anyother violation. It must be culpable, wilful. It must besomething which was intended to be done.)

2.Treason3.Bribery4.Graft and Corruption5.High Crimes6.

Betrayal of Public Trust (No exact definition. It can beanything one can make it appear to be.)

* There can be more grounds for impeachment so long asit falls within the betrayal of public trust.

PROCEDURE:

A. Initiation StageIf initiated by less than 1/3 of the Members of the HoR:

1.Verified complaint filed with the HoR:o Member of the HoRo Citizen can file a resolution for impeachment. It

can draft the Articles of Impeachment and have itendorsed by a member of the HoR to adhere to theConstitutional mandate that the AOI is initiatedby HoR.

House of Representatives Exclusive power to initiatean impeachment case (Articles of Impeachment[AOI])

2.Complaint included in the Order of Business within10 session days upon receipt (to prohibit any delay).

3.Not later than 3 session days, including thecomplaint in the order of Business, it must bereferred by the Speaker to the proper committee(usually the Committee on Justice and Order).

4.Committee has 60 session days from receipt ofreferral to conduct hearings (to see if there is aprobable cause), to vote by an absolute majority, andto submit report and its resolution to the House.

5.Resolution shall be calendared for consideration andgeneral discussion by the House within 10 sessiondays from receipt.

6.After the discussion, vote is taken. A vote of 1/3 of alMembers of the House is needed to affirm afavourable resolution with the AOI of the Committeeor to override its contrary resolution.

o 1/3 votes approving the AOI sent to Senate fortrial.

If initiated by 1/3:Verified complaint or resolution of impeachment is filed

by at least 1/3 of all the Member of the HoR, the sameconstitutes the AOI, and trial by the Senate shalproceed.

B. Trial Stage1.AOI is forwarded to Senate for trial.- Senate has the sole power to try and decide all casesof impeachment.

2.Senators under oath or affirmation3.President of the Senate presides over the

impeachment trial. But if the President of thePhilippines is on trial, the Chief Justice of the SCshall be the presiding officer, but he shall not vote.

4.2/3 vote of all the Members of Senate (16 senators) tocarry out a conviction. If less than 2/3, effect isacquittal.

- Judgment of Senate is a political question and cannotbe reviewed by the Courts.

- If one of the Members of Senate is absent, the basis ofvoting is still the 2/3 ofALLthe members whether somemembers are outside the coercive jurisdiction oCongress.

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INITIATE means filing an impeachment complaintand referring it to a proper committee.

Two impeachment complaints filed and taken ualtogether is equal to one impeachment complaint.

But, if one impeachment complaint is filed andreferred one after another, then there are 2


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impeachment cases which are taken up against oneperson in a year. Such is unconstitutional.

EFFECTS OF SUCCESSFUL IMPEACHMENT

1. Removal2. Disqualification to hold any office under the RP

** Resignation of the person being impeachedrenders the case moot and academic only in theaspect of removal. The effects of impeachment aretwo-fold. Mere resignation should not render theimpeachment proceedings moot and academic.

There is a need to render judgment for the secondeffect of impeachment.

(10)Power to amend the Constitution-in such case the legislative exercises its ConstituentPowers. That is why Congress would need to assemble acommittee to better dispose of their functions ofamending the Constitution in a more tedious mannerthan that of regular legislation.

EXECUTIVE DEPARTMENT (PRESIDENT)

A. QUALIFICATIONS, ELECTION, TERM OATHArticleVII

Section 1. The executive power shall bevested in thePresident of the Philippines.

Section 2. No person may be elected President unless heis anatural-born citizen of the Philippines, aregistered voter, able toread and write, at leastfortyyearsof age on the day of the election, and aresident ofthe Philippines for at leastten yearsimmediatelypreceding such election.

Section 3. There shall be a Vice-President who shallhave the same qualifications and term of office and beelected with, and in the same manner, as the President.He may be removed from office in the same manner as thePresident.The Vice-President may be appointed as a Member of theCabinet. Such appointment requires no confirmation.

Section 4. The President and the Vice-President shall beelected bydirect vote of the people for a term of sixyearswhich shall begin atnoon on the thirtieth day ofJune next following the day of the electionand shallend at noon of the same date, six years thereafter. ThePresident shall not be eligible for any re-election. No

person who has succeeded as President and has servedas such for more than four years shall be qualified forelection to the same office at any time.No Vice-President shall serve for more than two successive

terms. Voluntary renunciation of the office for any lengthof time shall not be considered as an interruption in thecontinuity of the service for the full term for which he waselected.Unless otherwise provided by law, the regular election forPresident and Vice-President shall be heldon the secondMonday ofMay. xxx

- The executive power is vested exclusively in thePresident and no one else. The Department heads arebut alter-egos of the President, that is why the titleCHIEF EXECUTIVE exists. This is by virtue of theDoctrine of Qulified Political Agency.

Doctrine of Qualified Political Agency. Executivepower is vested to just one person. The variousdepartments are considered adjuncts to the office of onePresident and the Secretaries to be his alter-egos. Sowhen they act, their actuations are not considered astheir own but that of the President. They are not giventheir own personalities but rather, considered asextensions of the personality of the President; unlessotherwise reprobated by him.

TERM- 6 years, beginning at noon on the 30th day of June nextfollowing the day of the election

** The President shall not be eligible for any re-election

* No person who has succeeded the President and whohas served for more than four years shall be qualified

to run again in the same office at any time. (As in thecase of GMA.)

B. PRIVILEDGE, SALARYPRIVILEGE:

- Official residence- Immunity from suit (Not enshrined in the Constitution

but is borne out of practice since time immemorial).

EXECUTIVE IMMUNITY

-This is to assure that the President may carry out hisfunctions without any hindrance or distraction. If the

President were to face all of the suits against him, thenit could foster distrust in the persona of the President Tendency of this occurrence would lead to disrespecand disorder in the office of the President.

- May be invoked or waived only by the President andnot by any other person on his behalf. The exercise orwaiver of such privilege is dependent upon thePresidents prerogative and cannot be assumed orimposed by other person.

Doctrine ofExecutiveImmunity. The President, duringhis incumbency/tenure, is immune from suit, but notbeyond. After the end of the Presidents tenure/term, hemay be litigated for civil and criminal cases.

- If an impeachment proceeding is filed against thePresident and before rendering final judgment orconviction the President resigns, the resignation wouldrender the impeachment case moot and academic in theaspect of removal. However, the criminal and civiaspects may continue in ordinary courts.

- Immunity from civil damages covers only official acts.

- Cover even acts of the President outside the scope oofficial duties. He will be protected from personal liability


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for damages not only when he acts within his authoritybut also when he is without authority, provided heactually used discretion and judgement, that is, the

judicial faculty, in determining whether he had authorityto act or not.

- As to include not only the President but also otherpersons, be they government officials or privateindividuals, who acted upon orders of the President.

- Immunity from suit is not immunity from liability

- Non-sitting president is not immune from suit forcriminal acts committed during his incumbency.

- Executive immunity applied only during theincumbency of a President. It could not be used to shielda non-sitting President from prosecution for allegedcriminal acts done while sitting in office.

EXECUTIVE PRIVILEGE

It is the right of the President and high-levelexecutive branch officials to withhold information fromCongress, the courts and the public. It is a privilege of

confidentiality which applies to certain types ofinformation of a sensitive character that would beagainst the public interest to disclose. Executiveprivilege is based on the constitution because it relatesto the Presidents effective discharge of executive powers.Its ultimate end is to promote public interest and noother.

But the privilege is not absolute. Any claim ofexecutive privilege must be weighed against otherinterests recognized by the constitution, like (1) the statepolicy of full public disclosure of all transactionsinvolving public interest, (2) the right of the people toinformation on matters of public concern, (3) the

accountability of public officers, (4) the power oflegislative inquiry, and (3) the judicial power to secureevidence in deciding cases.

TYPES OF EXECUTIVE PRIVILEGE

a. state secrets (regarding military, diplomatic and othersecurity matters)

b. identity of government informersc. information related to pending investigationsd. presidential communicationse. deliberative process

WHEN EXECUTIVE PRIVILEGE IS RECOGNIZED

The claim of executive privilege is highly recognized incases where the subject of inquiry relates to a powertextually committed by the constitution to the President,such as the commander-in-chief, appointing, pardoning,and diplomatic powers of the President. Informationrelating to these powers may enjoy greater confidentialitythan others.

KINDS OF EXECUTVE PRIVILEGE

- presidential communication privilege

- deliberative process privilege.

Presidential communications privilege

applies to decision-making of the President. Itpertains to communications, documents or othermaterials that reflectpresidential decision-making anddeliberations and that the President believes shouldremain confidential.

Deliberative Process Privilege

applies to decision-making of executive officials. Itincludes advisory opinions, recommendations anddeliberationscomprising part of a processby whichgovernmental decisions and policies are formulated.

** Unlike the deliberative process privilege, thepresidential communications privilege applies todocuments in their entirety, and covers final and

post-decisional materials as well as pre-deliberative ones.

-Presidential communications are presumptivelyprivileged. The presumption is based on the Presidents

generalized interest in confidentiality. The privilege isnecessary to guarantee the candor ofpresidentialadvisors and to provide the President and those whoassist him with freedom to explore alternatives in theprocess of shaping policies and making decisions and todo so in a way many would be unwilling to expressexcept privately.

- The presumption can be overcome only by mereshowing ofpublic need by the branch seeking accessto presidential communications.

COVERED BY THE PRIVILEGE

Aside from the President, the presidentialcommunications privilege covers senior presidentialadvisors or Malacanang staff who have operationalproximity to direct presidential decision-making.

Doctrine of Operation Proximity. The availabilityof executive privilege is limited only to those whostand in close proximity to the President, not onlyby reason of their function, but also by reason otheir positions in the Executives organizationastructure.

ELEMENTS OF PRESIDENTIAL COMMUNICATIONPRIVILEGE

a. The protected communication must relate to aquintessential and non-delegable presidential power.

b. The communication must be authored or solicitedand received by a close advisor of the President or thePresident himself. The advisor must be in operationalproximity with the President.

c. The privilege is a qualified privilege that may beovercome by a showing of adequate or compellingneed that would justify the limitation of the


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privilege and that the information sought isunavailable elsewhere by an appropriateinvestigating agency.

- The privilege covers only those functions which formthe core of presidential authority. These are functionswhich involve quintessential and non-delegablepresidential powers such as the powers of thepresident as commander-in-chief(i.e., to call out thearmed forces to suppress violence, to declare martial law,or to suspend the privilege of the writ of habeas corpus),the power to appoint officials and remove them, thepower to grant pardons and reprieves,the power toreceive ambassadors, and the power to negotiatetreaties and to enter into execute agreements.

IN THE CASE OF NERI v. SCAPOI

The communications elicited by the three questions arecovered by the presidential communications privilegebecause:

a. First, the communications relate to the power of thePresident to enter into an executive agreement withother countries.

b. Second, the communications are received by Neri,who as a Cabinet member can be considered a closeadvisor of the President.

c. Third, the Senate Committees have not adequatelyshown a compelling need for the answers to the threequestions in the enactment of a law and of theunavailability of the information elsewhere by anappropriate investigating authority.

PROPER INVOCATION OF EXECUTIVE PRIVILEGE

For the claim to be properly invoked, there must be a

formal claim by the President stating thep

recise andcertain reason for preserving confidentiality. Thegrounds relied upon by Executive Secretary Ermita arespecific enough, since what is required is only that anallegation be made whether the information demandedinvolves military or diplomatic secrets, closed-doorCabinet meetings, etc. The particular ground must onlybe specified, and the following statement of grounds byExecutive Secretary Ermita satisfies the requirement:The context in which executive privilege is beinginvoked is that the information sought to be disclosedmight impair our diplomatic as well as economicrelations with the Peoples Republic of China.

- Executive privilege is in derogation of the search for

truth. However, the decision recognized Presidentialcommunications as presumptively privileged. Hence, theparty seeking disclosure of the information has theburden of overcoming the presumption in favor of theconfidentiality of Presidential communications.

- This presumption is inconsistent with the Courtsearlier statement in Senate vs. Ermita (April 20, 2006)that the presumption inclines heavily against executivesecrecy and in favor of disclosure. It is also inconsistentwith constitutional provisions on transparency in

governance and accountability of public officers, and theright of the people to information on matters of publicconcern.

FORMAL AND VALID CLAIM OF EXECUTIVEPRIVILEGE:1.There must be a formal claim of privilege, lodged by

the head of the department which has control overthe matter.

2. Must be in writing3.There must be a specific designation and description

of the documents within its scope as well as preciseand certain reasons for preserving theirconfidentiality

* The privilege belongs to the government andmust be asserted by it. It can neither be claimednor waived by a private party.

* Congress must not require the executive tostate the reasons for the claim with suchparticularity as to compel disclosure of theinformation which the privilege is meant to

protect.

C. PROHIBITIONSPROHIBITIONS COVER THE:- PRESIDENT- OFFICIAL FAMILY

**Vice President, Members of the Cabinet and theirDeputies or Assistants.

- Holding any other office or employment during theirtenure in GSAI or GOCCS (whether in Government orprivate sector)

- Directly or indirectly practice any other profession-

Participate in any business- Be financially interested in any contract with, or in

any franchise or special privilege granted in GSAI orGOCCS

- No additional/increase in compensationIT WILL NOT BE ANY OTHER OFFICE IF:- Required by law or Constitution by primary function

of their office. It is not considered as another officebut another duty to the same office. [ex-officio]

WHAT ARE THE INSTANCES WHEN THECONSTITUTION ALLOWS THE MEMBERS OF CABINET

TO HOLD OTHER OFFICES WITHOUT VIOLATING THECONSTITUTION?

1.President assuming a Cabinet post2.President as Chairman of NEDA3.VP as Member of the Cabinet (i.e. DILG Secretary)4.Secretary of Justice as an ex-officio member of the

Judicial and Bar Council


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5.VP acting as PresidentPOWERS AND FUNCTIONS OF THE PRESIDENT

A. EXECUTIVE POWER Is the sum total of all the specified powers in the

Constitution plus those unstated residual powers ofpromoting the general welfare.

It is not the power to defeat legislation but to enforcethe law. Executive power cannot be exercised todefeat legislative enactments, like to repeal a law.

PRESIDENT HAS CONTROL OVER:1. All the executive departments2. Bureaus and offices

B. POWER OF CONTROL-President has the power to substitute the judgment ofhis own subordinate even if the judgment be the wisest,most prudent decision. The President can substitute hiswill over those of the secretaries and they cannotcomplain, their departments being mere adjuncts of theoffice of the President. (Object of the power: Judgment

and not the actor)

C. POWER OF GENERAL SUPERVISION OVER LGUs- President has the power or authority to see to it thatthe subordinate acts within the limits of the law. Ifthe subordinate committed something against thebounds of the law, the President can sanction disciplineas he has certain disciplinary authority over localofficials. Such is part of his supervisory authority.However, if the subordinate acts within its jurisdiction,the President cannot in any way substitute his own

judgment for that of the subordinate. Supervision doesnot include the overruling of the decision of the

subordinate.

D. POWER OF APPOINTMENT THOSE THAT NEED CONFIRMATION FROM THECOMMISSION ON APPOINTMENTS:

1.Heads of the Executive Departments2.Ambassadors, other public ministers and consuls3.Officers of the AFP from Colonel to Naval Captain4.Other officers whose appointments are vested in the

President in the Constitution:a.Chairman and the members of the

Constitutional Commissionsb.Regular members of the Judicial and Bar

Councilc.Sectoral Representatives

THOSE THAT NEED NO CONFIRMATION FROM THECOMMISSION ON APPOINTMENTS/ APPOINTMENTSSOLELY BY THE PRESIDENT:

1.All other officers otherwise not provided by lawReason: In the absence of a person named by lawto appoint, since it is an executive function,

President will appoint. He is the defaultappointing authority. If unconstitutional, thePresident is also the default appointing authority

2.Those who, he may be authorized by law to appoint

WHAT ARE THE STEPS TO BE TAKEN IF IT IS THEKIND OF APPOINTMENT THAT NEEDS CONFIRMATIONBY THE COMMISSION ON APPOINTMENTS?

1. CONGRESS IN SESSION REGULARAPPOINTMENT

Procedure:a.President nominatesb.Confirmation by Commission on Appointmentc.Appointment properd.Acceptance by appointee

2. CONGRESS IN RECESS AD INTERIMAPPOINTMENT

Procedure:a.Appointment properb.Acceptance by appointeec.Confirmation (when Congress resumes in

session)

E. PARDONING POWERPARDON- An act of grace granted by the President which

exempts the individual from the punishment the lawinflicts for the crime he has committed. It is aremission of guilt, a forgiveness of the offense.

- Can be granted only upon final judgment oconviction even if the one convicted has not served

sentence not even for one second.

- Pardoning power exists to check the harshapplication of the law. It is one aspect of checks andbalances.

- It is discretionary in character but may be subject tochallenge later on. It cannot be delegated because fuldiscretionary authority has been given to the ChieExecutive by the people. It is exercised by thePresident alone and cannot be forced against him. Soif for example you have a relative who you feel likedeserves a pardon, you cannot file a petition forcertiorari against the President. Moreover, when thePresident exercises this power, one cannot file grave

abuse of discretion.

KINDS OF PARDON1.Absolute/ Conditional

yAbsolute Pardon extended without stringsattached. No conditions to be complied with. Itdoesnt even need the consent of the pardonee(Dissent: But why cant one refuse the Presidentskindness?)


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yConditional Pardon one which the convict isrequired to comply with certain requirement. It hasto be accepted by the pardonee.

2.Plenary/Partialy Plenary Pardon extinguishes all the penalties

imposed upon the offender including accessorypenalties. It relieves the offender of all the effects/legal consequences of his conviction.

y Partial Pardon Only imprisonment is taken outbut one may still suffer some penalties.

IF A PARDONEE VIOLATES THE CONDITIONS OF APARDON, TWO REMEDIES CAN BE RESORTED TO:

1.Pardonee can be prosecuted for the violation on theterms of the pardon. Such needs a judicialdeclaration of violation.

2.President can order his immediate recommitmentunder the Revised Administrative Code. Owndetermination of the President is sufficient and thereis no need for a separate finding.

LIMITATIONS OF POWER TO PARDON

1.Can be granted only after final judgment of conviction2.Cannot be granted to those who have been

impeached (except in cases of impeachment)3.Cannot be granted if it involves an election offense

unless if there is prior favorable recommendationfrom COMELEC.

- No other limitations to pardoning power.PROBATION disposition under which a defendant afterconviction and sentence is released subject to conditionsimposed by the court and to supervision of a probationofficer

PARDON PROBATIONThere must be a final judgment of conviction

Convict must be exempted from service of sentence

Granted by the President

Granted by the court

after investigation by aprobation officer only forcases where the penaltyimposed does not exceed6 years and 1 day, wherethe crime is not againstthe security of the State,where there was noprevious conviction foran offense punished byarresto mayor, andwhere there was noprevious availment ofprobation; Can only begranted if one did notappeal courts decision.

Offender is a free man Offender is not finallyand completelyexonerated

In absolute pardon,sentence and its effects

Restoration of theprobationer to his civil

including accessorypenalties, are abolished.

rights takes place onlyafter his final dischargeafter the period of hisprobation.

PAROLE suspension of the sentence of a convict

PARDON PAROLE

Granted by the President

after final judgment of

conviction even beforeservice

Granted by the Board of

Pardons and Parole

under the IndeterminateSentence Law only afterthe convict has servedthe minimum term of hissentence

Free man Not totally free becausealthough he is releasedfrom the custody of law,he must submit toperiodic exams by theBoard of Parole

AMNESTY

PARDON AMNESTY

Granted after conviction Granted even before trial(no need of trial) buttheres got to be anacknowledgment ofguilt/ plea of guiltybefore amnesty can begranted

Granted for commoncrimes

Granted for politicalcrimes

Granted to individuals Granted to a group,

class or community ingeneral

Looks forward and

relieves the offender fromthe consequences of anoffense of which he hasbeen convicted;Forgiveness but notforgetfulness; Erasesthe penalty but not thecrime

Looks backward and

abolishes and puts intooblivion the offense itself; Forgiveness andforgetfulness; Offenderstands clean in the eyesof the law as if he hasnot committed a crime atall

Private act of thePresident which must bepleaded and proved bythe person because thecourts do not take

judicial notice of it

A public act of which thecourts take judicialnotice. Hailed to courtfor the same crime towhich you were grantedamnesty.

Does not require theconcurrence of Congress Requires concurrencewith a majority vote of allthe members ofCongress

F. MILITARY POWERS- The way the powers of the President are state

reflects of the gravity of such powers.

- President may:


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i. Call out AFP to prevent or suppress lawlessviolence, invasion or rebellion

-Benign power not subject to so muchscrutiny.

- If there is no lawless violence, President maycall out precisely to prevent or suppresslawless violence.

-Robbery, ransom President can call out.ii. Suspend the privilege of the writ of habeas

corpus- Can only be suspended when there is

invasion or rebellion and when public safetyrequires it.

- Invasion or rebellion must be actual and thatPUBLIC SAFETY REQUIRES IT. For even ifthe invasion or rebellion is actual, if publicsafety does not require it, President cannotsuspend privilege.

- Not exceed 60 days including martial law-

iii. Proclaim martial law over the Philippines orany part thereof.

legislative power to executive department

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