Removal Power

Control Power

“Take-Care” Clause

*Powers of the President

*Removal Power

*It presupposes a forcible and permanent separation of the incumbent from office before the expiration of his term.

*It is exercised only by the President with which cause is provided by law, in accordance with the prescribed administrative procedure.

*Exceptions:

Officials Term of office Separation from office

Members of the Cabinet or other Executive Officials

Determined at the pleasure of the President

Not affected by removal but by the expiration of their term

REMOVAL POWER

*Not all officials appointed by the President are also removable by him since the Constitution prescribes methods for separation of some officers from public service.

*Examples:

-Supreme Court members-Constitutional Commission-Ombudsman

Removed by impeachment in accordance with Article XI

Judges of inferior courts

Subject to disciplinary authority and removal by the Supreme Court

REMOVAL POWER

r vs. Alba

Facts

Alajar was appointed as vice-mayor and may hold office at the pleasure of the President as provided in the city charter. Alajar served for more than one year until he was required by the Office of the President to vacate his post in favor of Alba.

Issues

Whether or not Alajar: 1. may invoke constitutional security of tenure; and 2. was unlawfully removed, considering that there was no administrative charge filed or proved against him.

Ruling

SC held that there was no removal but a mere expiration of the term of office. According to Justice Concepcion, Alajar’s term has expired and his right to office was extinguished, with the same legal effect as if the term has been fixed by the Congress. In other word, Alajar was not removed from office, for ‘to remove an officer is to oust him from office before the expiration of his term.

Alajar vs. Alba

*Control Power

Article VII, Sec. 17:

“The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.”

*CONTROL – is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.

*Control is a stronger power than mere supervision.

*SUPERVISION – is overseeing or the power or authority of an officer to see that subordinate officers perform their duties.

Elaborated distinction between Control and Supervision:

Control Supervision

• An officer lays down the rules in the doing of an act.

• If rules are not followed – The officer may order the act undone or re-done by his subordinate, or even decide to do it himself.

• Supervisor merely sees to it that the rules are followed, but he may not lay down such rules, nor modify or replace these rules.

• He also may not prescribe his own manner of doing the act.

• He has no judgment except to see to it that the rules are being followed.

*Doctrine of qualified political agency

Acts performed and promulgated are, unless disapproved or reprobated by the President, presumptively the acts of the President.

*Doctrine of exhaustion of administrative remedies

A party aggrieved by an order of an administrative official should first appeal to the higher administrative authority before seeking judicial relief.

* Doctrine of Qualified Political Agency

Acts performed and promulgated are, unless disapproved or reprobated by the President, presumptively the acts of the President.

*In Manubay vs. Garilao, it was declared that a further appeal from a decision of a cabinet secretary may be taken to the Office of the President before resorting to judicial relief (Doctrine of exhaustion of administrative remedies.)

*Manubay vs GarilaoFACTS:

*Petitioners owned a 124-hectare land in Camarines Sur.

* In November 1994, the Municipal Agrarian Reform Officer (MARO) of Pili issued a notice of coverage placing the property under CARP.

*Petitioners did not protest the notice and filed an application at the DAR for conversion of the property from agricultural to residential.

*The Sangguniang Bayan of Pili passed a Resolution approving the Pili Comprehensive Zoning Ordinance of 1996, reclassifying the subject property from agricultural to highly urbanized intended for mixed residential and commercial use.

*Thereafter, petitioners requested the DAR Regional Director to set aside the November 1994 notice of coverage, pointing out that the land had been reclassified and the property was no longer suitable for agricultural purposes.

*Manubay vs GarilaoFACTS:

*The request was denied, on the ground that petitioners had already been given notices of coverage which must have been lifted first either because of retention or exemption.

*Respondent denied petitioners’ application for conversion, considering that the property had already been placed under the CARP. Petitioners filed a petition for certiorari in the CA assailing the denial of their application for conversion, averring that respondent acted with grave abuse of discretion when he denied their application.

ISSUE:

*WON the act of a department secretary may be directly challenged in a petition for certiorari.

*Manubay vs GarilaoHELD:

*Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him.

* Thus, as a rule, an aggrieved party affected by the decision of a cabinet secretary need not appeal to the OP and may file a petition for certiorari directly in the Court of Appeals assailing the act of the said secretary.

* In a petition for certiorari premised on grave abuse of discretion, it must be shown that public respondent patently and grossly abused his discretion and that such abuse amounted to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law. In other words, the public respondent exercised his power arbitrarily and despotically by reason of passion or hostility.

* Doctrine of Qualified Political Agency

*It is not applicable to acts of cabinet secretaries done in their capacity as ex officio board directors of a government-owned or controlled corporation of which they became members not by appointment of the President but by authority of law.

* Doctrine of Exhaustion of Administrative Remedies

A party aggrieved by an order of an administrative official should first appeal to the higher administrative authority before seeking judicial relief.

*It is not necessary or required when there exists a special law that provides for a different mode of appeal. Thus, the “executive control” cannot be considered as absolute, and may effectively limited by the Constitution.

*Angeles vs GaiteFACTS:

*Petitioner was given custody of her grand niece, Maria Vistan. She became attached to Maria and took care of her as her own. Petitioner also gave the same attention to Michael Vistan, half-brother of Maria.

*At one incident, Micahel took his half-sister away. He brought her to different provinces while he asked the help of certain individuals to mislead the petitioner and the police.

*The petitioner filed a complaint against Michael Vistan for five counts of Violation of Section 10 (a), Article VI of RA 7610, otherwise known as the Child Abuse Act.

* Angeles vs Gaite

*The provincial prosecutor issued a decision to dismiss the case.

*Petitioner filed a petition for review with USEC. Teehankee but was denied.

*Petitioner then filed a petition for review with SEC Perez and was also denied.

*She tried appealing to the Office of the President but was dismissed by such on the ground of Memorandum Circular No. 58 which bars an appeal or a petition for review of decisions/orders/resolutions of the Secretary of Justice except those involving offenses punishable by reclusion perpetua or death.

*Petitioner went to the CA which sustained the dismissal

*Petitioner contends that such Memo Circular was unconstitutional since it diminishes the Power of Control of the President.

*Angeles vs. Gaite

ISSUE:

Whether or not Memorandum Circular No. 58 is unconstitutional since it diminishes the power of the President.

RULING:

Memorandum Circular No. 58 does not diminish the power of the President. The SC upheld the validity of the said memorandum since it would be unreasonable to impose upon the President the task of reviewing all preliminary investigations decided by the Secretary of Justice. To do so will unduly hamper other important duties of the President.

* Lacson-Magallanes Co., Inc. (LMC) vs. Pano

FACTS:

*Jose Magallanes was permitted to use and occupy a land used for pasture in Davao. The said land was a forest zone which was later declared as an agricultural zone. Magallanes then transfered his rights to Lacson-Magallanes Co., Inc. (LMC) of which he is a co-owner.

*Jose Pano, who was a farmer, asserted his claim over the same piece of land. The Director of Lands denied Pano’s request.  The Secretary of Agriculture likewise denied his petition hence it was elevated to the Office of the President.

* Lacson-Magallanes Co., Inc. (LMC) vs. Pano

*Executive Secretary Juan Pajo ruled in favor of Pano. LMC averred that the earlier decision of the Secretary of Agriculture is already conclusive hence beyond appeal. He also averred that  the decision of the Executive Secretary is an undue delegation of power.

*The Constitution, LMC asserts, does not contain any provision whereby the presidential power of control may be delegated to the Executive Secretary. It is argued that it is the constitutional duty of the President to act personally upon the matter.

ISSUE:

Whether or not the administrative decision could still be appealed to the President of the Philippines.

* Lacson-Magallanes Co., Inc. (LMC) vs. Pano

RULING:

*It is true that as a rule, the President must exercise his constitutional powers in person. However, the president may delegate certain powers to the Executive Secretary at his discretion.

*The president may delegate powers which are not required by the Constitution for him to perform personally. The reason for this allowance is the fact that the President is not expected to perform in person all the multifarious executive and administrative functions. The office of the Executive Secretary is an auxiliary unit which assists the President.

*The rule which has thus gained recognition is that “under our constitutional setup the Executive Secretary who acts for and in behalf and by authority of the President has an undisputed jurisdiction to affirm, modify, or even reverse any order” that the Secretary of Agriculture and Natural Resources, including the Director of Lands, may issue.

*The act of the Executive Secretary, acting as the alter ego of the President, shall remain valid until reversed, disapproved, or reprobated by the President. In this case, no reprobation was made hence the decision granting the land to Pano cannot be reversed.

* Hutchison Ports Philippines Limited (HPPL) vs. Subic Bay Metropolitan Authority (SBMA)

HPPL won a public bidding made by the SBMA. The project was to develop and operate a modern marine container terminal within the Subic Bay Freeport Zone. The SBMA Board of Directors already declared HPPL as the winner, but later on, the Office of the President reversed the decision of the Board and ordered a rebidding. In the rebidding however, HPPL was no longer among the qualified bidders.

ISSUE:

Whether or not HPPL has the right to file an injunction case against SBMA.

* Hutchison Ports Philippines Limited (HPPL) vs. Subic Bay Metropolitan Authority (SBMA)

RULING:

Its was held that the declaration made by the SBMA Board declaring HPPL as the winning bidder was neither final nor unassailable. Under Letter of Instruction No. 620, all projects undertaken by the SBMA are subject to the approval of the Office of the President. Hence, the Board of SBMA is under the control and supervision of the President of the Philippines. Therefore, the declaration made by the Board did not vest any right in favor of HPPL.

*Gudani vs. Senga

FACTS:

*The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the surfacing of the “Hello Garci” tapes. 

*PGMA, through AFP Chief of staff Gen. Senga, issued E.O. No. 464 prohibiting officials of the executive department including the military establishment (Gen. Gudani and company) from appearing in any legislative inquiry without her consent. 

*Gudani vs. Senga

However, Gen. Gudani and Col. Balutan appeared before the Senate in spite the fact that a directive has been given to them.

As a result, the two were relieved of their assignments for allegedly violating the Articles of War and the time honored principle of the “Chain of Command.” Gen. Senga ordered them to be subjected before the General Court Martial proceedings for willfully violating an order of a superior officer.

ISSUE:

Whether or not the President has the authority to issue an order to the members of the AFP preventing them from testifying before a legislative inquiry.

RULING:

The SC hold that President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence, a military officer who defies such injunction is liable under military justice.

*Gudani vs. Senga

*Gudani vs. Senga

If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute.

The refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions is the conduct of inquiries in aid of legislation.  

*Gudani vs. Senga

Inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s right to conduct legislative inquiries.

Even if the President has earlier  disagreed with the  notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.

*“Take-Care” Clause

*The power to take care that the laws be faithfully executed makes the President a dominant figure in the administration of the government.

*The energy or indifference with which he discharges this power will determine the measure of his success as Law Enforcer.

*“Take-Care” Clause

*The law he is supposed to enforce includes:

*Constitution

*Statutes

*Judicial decisions

*Administrative rules and regulations

*Municipal ordinances

*Treaties

*“Take-Care” Clause

*The President is not obliged to enforce a law which in his belief is unconstitutional because it would create no rights and confer no duties, being totally null and void.

*Until and unless a law is declared unconstitutional, he has the duty to execute it regardless of his doubts on its validity.

*Pichay vs. ODESLA, IAD

FACTS:

*Initially,  PGMA issued EO No. 12 creating the Presidential Anti-Graft Commission (PAGC) and vesting it with the power to investigate cases for possible graft and corruption against presidential appointees and to submit its report and recommendations to the President.

*It was at the time of President Benigno Aquino III when EO No. 13 was issued which abolished the PAGC and transferred its functions to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA), more particularly to its newly-established Investigative and Adjudicatory Division (IAD).

*Pichay vs. ODESLA, IAD

*Finance Secretary Purisima filed before the IAD-ODESLA a complaint for grave misconduct against Pichay, Jr., Chairman of the Board of Trustees of the Local Water Utilities Administration (LWUA), as well as the incumbent members of the LWUA Board of Trustees, due to the purchase by the LWUA of 445k shares of stock of Express Savings Bank, Inc.

* Pichay was ordered by Executive Secretary Ochoa, Jr. to submit their respective written explanations under oath.

* Pichay filed a Motion to Dismiss stating that a same case is already pending before the Office of the Ombudsman.

*Pichay vs. ODESLA, IAD

ISSUE:

*WON E.O. 13 is unconstitutional for usurping the power of the legislature (to create a public office, to appropriate funds).

RULING:

(1) Usurpation of the power of the Legislature

*According to the SC, the President has continuing authority to reorganize the Executive Department as provided by E.O. 292 (Admin Code of 1987) under Sec 31 in order to achieve simplicity, economy and efficiency. E.O. 292 sanctions the following actions:

*Restructure the internal organization of the Office of the President Proper, including the immediate Offices by abolishing or merging units thereof or transferring functions from one unit to another.

*Pichay vs. ODESLA, IAD

*Transfer any agency under the Office of the President to any other Department or Agency as well as transfer agencies to the Office of the President from other departments or agencies.

*Pichay contends issuance of E.O. 13 did not involve the abolition of an office but the creation of one which is not included in the legal definition of reorganization by the Court.

*The abolition of the PAGC did not require the creation of a new, additional and distinct office as the duties and functions that pertained to the defunct anti-graft body were simply transferred to the ODESLA, which is an existing office within the Office of the President Proper.

*The reorganization required no more than a mere alteration of the administrative structure of the ODESLA through the establishment of a third division – the Investigative and Adjudicatory Division – through which ODESLA could take on the additional functions it has been tasked to discharge under E.O. 13.

*SC held that there is no usurpation of the legislative power to appropriate public funds, since in the chief executive dwell the powers to run government. Placed upon him is the power to recommend the budget necessary for the operation of the Government, which implies that he has the necessary authority to evaluate and determine the structure that each government agency in the executive department would need to operate in the most economical and efficient manner.

Pichay vs. ODESLA, IAD