basic consti law for undergrads: executive department

ARTICLE VIIARTICLE VII

THE EXECUTIVE DEPARTMENT OF THE EXECUTIVE DEPARTMENT OF

THE REPUBLIC OF THE PHILIPPINESTHE REPUBLIC OF THE PHILIPPINES

ATTY. HARVE B. ABELLA, ESQ.ATTY. HARVE B. ABELLA, ESQ.

STANDARD OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

SEAL OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

THE EXECUTIVE DEPARTMENTTHE EXECUTIVE DEPARTMENTExecutive Power:

•It is vested in the President. Whatever is not legislative, is residual power exercised by the President. (Marcos v Manglapus, 178 SCRA 760)

Art. VII, Sec. 1

•The executive power shall be vested in the President of the Philippines.

•Power to enforce & administer laws

Qualifications:

•Sec. 2. No person may be elected as President unless he is a natural born citizen of the Philippines, a registered voter, able to read and write, at least 40 years of age on the day of the election and a resident of the Philippines for a least 10 years immediately preceeding the election.

MAY NOT BE INCREASED OR REDUCED BY CONGRESS. Applicable rule of interpretation: Expressio unius est exclusio alterius.

These qualifications should be possessed by the candidate on the day of the election regardless of the time he is actually proclaimed.

THE EXECUTIVE DEPARTMENTTHE EXECUTIVE DEPARTMENT

Election:

•Regular – second Sunday of May, every 6 years

•Special –

•Death, permanent disability, removal from office or resignation of both the President & the Vice President

•Vacancies occur more than 18 months before the next regular presidential election

•A law passed by Congress calling for a Special Election to elect a Pres. & VP to be held not earlier than 45 days no later than 60 days from time of such call. (Sec. 10, ART VII)


Election & Proclamation

Canvass of election returns: Conducted in the light of Art. VII, Sec. 4

The returns of every election for P & VP, duly certified by the Board of Canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the COC’s, the President of the Senate shall, not later than 30 days after the day of the election, shall open all certificates in the presence of the Senate & the House of Reps. In joint 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 elected, but in case 2 or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by vote of a majority of all members of both Houses of Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of certificates.

The SC, sitting en banc, shall be the sole judge of all contests relating to election, returns, and qualifications of the P or VP, and may promulgate rules for the purpose.


Term of Office: Sec. 4

6 years: noon on the 30th day of June to end on the 30th of June 6 years after

•Shall not be eligible for any re-election.

•Originally meant to force the P. to devote his time to his position.

•No prohibition against running for a lower position

•Running for the same office after another has been president after him?

•Perpetual disqualification from running for the same office

•“any re-election”

•Can be re-elected. Provided it is not immediately after his term ends.

•No person who has succeeded as president and has served for such for more than 4 years shall be qualified for election to the same office at any time.


The PGMA Question.The PGMA Question.

•PGMA succeeded ERAP on Jan. 20, 2001

•PGMA ran for President in May 2004.

•PGMA became President on June 30, 2004

Was she validly elected as President?

•PGMA ran as congresswoman in May 2010

•PGMA became a congresswoman in June 30, 2010

Was she validly elected as Congresswoman for her district?

STANDARD OF THE VICE PRESIDENT

OF THE REPUBLIC OF THE PHILIPPINES

SEAL OF THE VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES


The VP

Sec. 3.

•Same qualifications as the President.

•Eligible for the position of member of the Cabinet

•Does not need confirmation by Commission on Appointments

•Cannot demand appointment. Cannot be forced to accept appointment.

Sec. 4(2)

•Cannot serve for more than 2 successive terms.

•Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

CAN THE VP BE ALLOWED TO RUN FOR A 3RD TIME ?


Sec. 9 Vacancy in the office of the VP

The president shall nominate a VP from among the Senators and the House of Reps.

He shall assume office upon confirmation by a majority vote of all Members of both Houses of Congress voting separately


RULES ON SUCCESSIONVacancy at the beginning of the term:

•Death or permanent disability of the President-elect

•VP-elect shall become President

•President-elect fails to qualify

•VP-elect shall ACT as president until the President-elect shall have qualified.

•President shall not have been chosen:

•VP-Elect shall ACT as president until a President shall have been chosen & qualified.


No President and VP chosen or qualified, or both have died or No President and VP chosen or qualified, or both have died or become permanently disabled:become permanently disabled:

•SENATE PRESIDENT in an acting capacity

•In case of inability

•SPEAKER OF THE HOUSE in an acting capacity

•Until a president or a VP shall have been chosen and qualified.

IN THE EVENT OF INABILITY OF BOTH, who shall ACT as President?

•CONGRESS SHALL BY LAW PROVIDE FOR THE CONGRESS SHALL BY LAW PROVIDE FOR THE MANNER IN WHICH ONE WHO IS TO ACT AS MANNER IN WHICH ONE WHO IS TO ACT AS PRESIDENT SHALL BE SELECTED UNTIL A PRESIDENT SHALL BE SELECTED UNTIL A PRESIDENT OR A VP SHALL HAVE QUALIFIED. PRESIDENT OR A VP SHALL HAVE QUALIFIED.

•Does not necessarily follow that the SC CJ shall Does not necessarily follow that the SC CJ shall become acting president.become acting president.


VACANCY DURING THE TERM

•Death, permanent disability, removal from office, or resignation of the President

VP SHALL become President

THE STRANGE CASE OF RESIGNATION OF A PRESIDENT.

-The “DEEMED RESIGNED” case-

Joseph Ejercito Estrada vs Gloria Macapagal-Arroyo, GR No. 146738, 3/2/01

Oath of Office Sec. 5

Not a source of substantive power. Merely intended to deepen the sense of responsibility of the President and ensure a more conscientious discharge of his office.


Death, permanent disability, removal from office, or resignation of President AND Vice president:

•Senate President – acting capacity

•IN CASE OF INABILITY

•Speaker of the House – acting capacity

Until a President or VP shall be elected and qualified.

•Congress, by law, shall provide for the manner which one is to act as President in the event of inability of the officials mentioned above.


TEMPORARY DISABILITY

•When the President TRANSMITS to the SP and the SH

•Written Declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary: such powers and duties shall be discharged by the VP as ACTING President.

•Majority of ALL the Members of the CABINET TRANSMIT to the SP and SH:

•Written Declaration that the P is unable to discharge the powers and duties of his office

•VP IMMEDIATELY assumes the powers and duties of the Office as ACTING PRESIDENT

•President transmits Written Declaration that NO inability exists,

•Reassume the powers of the office of the President


Should a majority of the CABINET MEMBERS transmit within 5 days to the SP and SH

Written declaration that the P is unable to discharge the powers and duties of his office, CONGRESS SHALL DECIDE THE ISSUE.

Congress shall convene, if not in session, within 48 hours.

Within 10 days from receipt of last written declaration or, if not in session, within 12 days after it is required to assemble, Congress determines by a vote of 2/3 vote of both Houses voting Separately, that the president is unable to discharge the powers and duties of his office, the VP shall act as President, otherwise, the President shall continue exercising the powers and duties of his office.


Constitutional Duty of Congress in case of vacancy in the Constitutional Duty of Congress in case of vacancy in the offices of the President and the VP:offices of the President and the VP:

•At 10AM of the 3rd day after the vacancy occurs, Congress shall convene w/o the need of a call, and within 7 days, enact a law calling for a special election to elect a President and VP to be held not earlier than 45 nor later than 60 daysfrom the time of such call.

NO SPECIAL ELECTION SHALL BE CALLED IF THE VACANCY OCCURS WITHIN 18 MONTHS BEFORE THE DATE OF THE NEXT PRESIDENTIAL ELECTION.

Removal of the President: Impeachment. Sec. 2&3, Art. XI


Prohibitions & Inhibitions (Sec. 6 & 13, ART VII)

1. shall not receive ANY OTHER emoluments from the gov’t or any other source

2. Shall not hold any other office or employment unless otherwise provided for by the Consti.

3. Not directly/indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise or special privilege granted by the gov’t. or any subdivision, agency or instrumentality thereof, GOCC’s or their subsidiaries

4. Strictly avoid conflict of interest in the conduct of their office

5. May not appoint a spouse or relatives by cosanguinity or affinity within the 4th civil degree as members of the Consti. Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen/heads of bureaus or offices, including GOCCs and their subsidiaries.

• Guaranty against NEPOTISM.

PUBLIC OFFICE IS A PUBLIC TRUST. (SEC 1. ART XI)


POWERS OF THE PRESIDENTPOWERS OF THE PRESIDENT


1. EXECUTIVE POWER

Power to enforce and administer laws

•The President shall have control of all executive departments, bureaus and offices. He shall ensure that all laws are faithfully executed. (Sec. 17, ART 7)

•Until and unless a law is declared unconstitutional, the President has a duty to execute it regardless of his doubts as to its validity (FAITHFUL EXECUTION CLAUSE) Sec. 1 and 17, Art. 7


2. POWER OF APPOINTMENT

With the Consent of the Commission on Appointments

•Heads of executive departments

•Ambassadors and other public ministers and consuls

•Officers of the AFP from the rank of colonel or naval captain (Sarmiento vs Mison, GR No. 79974, 12/17/1987

•Only appointments under the 1st sentence of Sec. 16, Art. 7 need confirmation of COA.

•Officers whose appointments are vested in him by the Constitution


2. POWER OF APPOINTMENT

•With prior recommendation or nomination by the Judicial and Bar Council

•Members of the Supreme Court and all lower courts. Sec 9, Art. 8

•Ombudsman & his deputies

•Requiring nominations by multi-sectoral groups

•Regional consultative commission (Sec. 18, Art. X)

•Party list representatives (prior to enactment of Party-list Law (Sec. 7, Art. XVIII)

•Appointment of the VP as member of the Cabinet


Appointment solely by the President

•Those vested by the Constitution on the President alone

•Those whose appointments are not otherwise provided for by law

•Those whom he may be authorized by law to appoint

•Those other officers lower in rank whose appointment is vested by law in the President alone.

Limitations

Appointments made by an acting president shall remain effective unless revoked w/in 90 days from assumption of office by elected President (Sec. 14, ART. VII)

Appointment BAN. 2 months immediately before the next Presidential elections and up to the end of his term when continued vacancy will prejudice public service or endanger public safety (Sec. 15, Art VII)

Power to make appointments during the recess of the Congress, whether voluntary or compulsory – effective until disapproved by COA / until next adjournment of the Congress (Sec. 16, par 2. Art. VII


3. Power of Removal

Implied from the power to appoint.

EXCEPTION

Those appointed by him where the Constitution provides certain methods for separation from public service (e.g. impeachment)

4. Power of Control

Power of an officer to

•Alter

•Modify

•Nullify

•Set aside what a subordinate has done in the performance of his duties and to substitute his judgment to that of the former (Mondano vs. Silvosa, 97 Phil. 143)


5. Military Powers (sec. 18, ART VIII)

Commander-in-chief clause

•To call out the armed forces to prevent lawless violence, invasion, or rebellion

•To organize courts martial for the discipline of members of the armed forces, and create military commissions for the punishment of war criminals


Suspension of the Privilege of the Writ of Habeas Corpus and Declaration of Martial Law

Grounds: invasion or rebellion, when the public safety requires it

Duration: not more than 60 days following which it shall be lifted, unless extended by Congress

President to report to Congress: w/in 48 Hours personally or in writing

Authority of Congress to revoke/extend effectivity of proclamation: majority vote of ALL its members voting jointly

Authority of SC: inquire into sufficiency of the factual basis for such action, at the instance of ANY CITIZEN. Decision must be promulgated w/in 30 days w/in its filing

Proclamation does not affect the right to bail

Suspension (H.Corpus) applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion

Persons charged must be charged w/in 3 days if not, they must be released

•PROCLAMATION DOES NOT SUPERSEDE CIVILIAN AUTHORITY.


Effects of Proclamation of Martial Law

The President can

•Legislate

•Order the arrest of people who obstruct the war effort

•The FF cannot be done

•Suspend the operation of the constitution

•Supplant the functioning of the civil courts and the legislative assemblies

•Confer jurisdiction upon military courts, where civil courts are able to function

OPEN COURT DOCTRINE – civilians cannot be tried by military courts if civil courts are open and functioning

Automatically suspends the privilege of the writ of habeas corpus (Sec. 18, Art. 7)


6. Pardoning Power

•Discretionary, may not be controlled by the legislature or reversed by the court unless there is a constitutional violation

•In granting the power of executive clemency upon the President, Sec. 19 Art. 7 does not distinguish between criminal and administrative cases

Limitations

•Cannot be granted in cases of impeachment

•Cannot be granted in violations of election laws w/o the favorable recommendations by the COMELEC

•Can be granted only after conviction by final judgment (except amnesty)

•Cannot be granted in cases of legislative contempt or civil contempt

•Cannot absolve convict of civil liability

•Cannot restore public offices forfeited


Pardon – act of grace which exempts the individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed

Classification of Pardon

•Plenary or partial

•Absolute or conditional

Commutation – reduction or mitigation of the penalty

Reprieve – postponement of sentence or stay of execution

Parole – release from imprisonment but without full restoration of liberty, as parolee is in the custody of the law although not in confinement

Amnesty – act of grace, concurred by the Legislature, extended to classes of persons who committed political offenses., which puts into oblivion the offense itself.


AMNESTY

1. Political offenses

2. Granted to CLASSES of persons

3. Requires concurrence of Congress

4. Public act to which the may take judicial notice

5. Looks backward and puts into oblivion the offense itself

6. May be granted even before trial

PARDON

1. Infraction of peace/common crimes

2. Granted to INDIVIDUALS

3. Does not require concurrence of Congress

4. Private act which must be pleaded and proved

5. Looks forward and relieves the pardonee of the consequences of the offense

6. Can be granted ONLY AFTER conviction


7. Borrowing Power Sec. 20, Art. 7

8. Diplomatic Power Sec. 21, Art. 7

•No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of the SENATE

9. Budgetary Power Sec. 22, Art. 7

•W/in 30 days from opening of every regular session, President shall submit to Congress a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures

10. Informing Power Sec. 23, Art. 7

•President shall address Congress at the opening of its regular session. President may also appear before it at any other time.


Other Powers

IMMUNITY FROM SUIT DURING HIS TENURE IS DEEMED IMPLED IN THE

CONSTITUTION•The immunity does not extend to non-official acts for wrongdoing. Estrada vs Desierto GR Nos. 146710-15, 3/2/01


Conditions for the Exercise of Emergency Powers

1. War or national emergency

2. There must be a law authorizing the President to exercise emergency powers

3. Exercise must be for a limited period

4. Must be subject to restrictions that Congress may provide

5. Exercise must be necessary and proper to carry out a declared national policy (Sec. 23(2), Art. 6)

THE JUDICIAL DEPARTMENT OF THE REPUBLIC OF THE PHILIPPINES

THE JUDICIAL DEPARTMENT

JUDICIAL POWER

Judicial power includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of government. Sec. 1, Par. 2, ART VIII

•Vested in

•One Supreme Court; and

•Such lower courts as may be established by law (Sec. 1, ART 8)


Jurisdiction

From Latin :

•Juris – “right law”

•Dictionem (nom. Dictio) = “a saying”

The power to hear and decide a case and execute the decision thereof

•Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts but not deprive the SC of its jurisdiction over cases enumerated in Sec. 5, ART 8

•No law shall be passed increasing the appellate jurisdiction of the SC as provided in the Consti without its advice and concurrence Sec. 30, Art. 6


Safeguards that guarantee INDEPENDECNE OF THE JUDICIARY

•Constitutional body and may not be abolished by law

•Members are removable by impeachment

•SC may not be deprived of its minimum & appellate jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence

•SC has administrative supervision over all inferior courts

•SC has exclusive power to disciple judges/justices of inferior courts

•Members enjoy security of tenure

•Members of the judiciary may not be designated to any agency performing quasi-judicial or administrative FXNS.

•Salaries of judges may not be reduced, judiciary enjoys fiscal autonomy

•SC alone may order temporary detail of judges

•SC can appoint all officials and employees of the Judiciary


Qualifications of CJ and AJ of the SC

•Natural Born Citizen

•At least 40 years of age

•15 years or more as a judge of a lower court or has been engaged in the practice of law in the Philippines for the same period

•A person of proven competence, integrity, probity and independence

Presiding Justice and AJ of the CA

•Same qualifications as those of the SC


Qualifications of RTC Judges

•Citizen of the Philippines

•At least 35 years of age

•Has been engaged in the practice of law for at least 5 years or has held public office requiring admission to the practice of law as an indispensable requisite

•A person of proven competence, integrity, probity and independence

Qualifications of MTC/MTCC/MCTC

•Citizen of the Philippines

•At least 30 years old

•Has been engaged in the practice of law for at least 5 years or has held public office requiring admission to the practice of law as an indispensable requisite•A person of proven competence, integrity, probity and independence


Procedure for Appointment

•Appointed by the President among a list of at least 3 nominees prepared by the JBC for every vacancy

•For lower courts, President shall issue the appointment 90 days from submission of the list.

TENURE OF JUSTICES/JUDGES

•SC = 70 years of age or become incapacitated to discharge their duties. May be removed only through impeachment

LOWER COURT

•70 years of age or become incapacitated to discharge their duties

•SC en Banc, majority vote, shall have the power to discipline judges of lower courts or order their dismissal

•No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members Sec. 2, Art. 8

THE SUPREME COURT OF THE PHILIPPINESTHE SUPREME COURT OF THE PHILIPPINES


Composition

CJ and 14 AJ

•May sit en banc

•Sit in divisions of 3, 5, 7 members – discretionary

•Any vacancy shall be filled within 90 days from occurrence thereof, but in no case shall appointment be made 2 months before the next presidential election and up to the end of the term of the president

•The SC ruled that the APPOINTMENT BAN 2 months before the next presidential election does not apply to the SC but only to the EXECUTIVE DEPARTMENT

POWERS OF THE SUPREME COURT

ORIGINAL JURISDICTION

•Over cases affecting ambassadors, other public ministers and consuls

•Over petitions for Certiorari, Prohibition, Mandamus, Quo Warranto, and Habeas Corpus; and

•Review of the factual basis for the declaration of Martial Law or suspension of the privilege of the writ of habeas corpus.

APPELLATE JURISDICTION

•Over final judgment and orders of the lower courts in all cases which the constitutionality or validity of any treat, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question

•Legality of tax impost, assessment, toll, any penalty imposed in relation thereto

•All cases in which the jurisdiction of any lower court is in issue

•All criminal cases in which the penalty imposed is reclusion perpetua or higher

•All cases in which only a QUESTION OF LAW IS INVOLVED. (sec. 5, Art. 8)


•Electoral Tribunal for Presidential and VP Contest sitting en banc, over all contests relating to the election, returns and qualification of the P or VP Sec. 4(7) Art. 7

•Temporary Assignments of judges of lower courts to other stations as public interest may require. Not to exceed 6 months without the consent of the judge concerned

•Order a change of venue or place of trial, to avoid miscarriage of justice

•Rule making power: promulgates the rules concerning the protection and enforcement of constitutional rights; pleading, practice, and procedures in all courts, admission to the practice of law, IBP, and legal assistance to the underprivileged

•Simplified, inexpensive procedure for speedy disposition of cases

• uniform for all courts in the same grade

•Shall not diminish, increase, modify substantive rights


Power of Appointment

•Appoints all officials and employees of the Judiciary in accordance with the Civil Service Law

Power of administrative Supervision

•Administrative supervision over all courts and the personnel thereof

•A mere division of the SC may discipline a judge of the lower court

•The SC is required to decide a case en banc only when the dismissal of a judge is involved


POWER OF JUDICIAL REVIEW

•The power of the courts to test the validity of executive and legislative acts in light of their conformity with the constitution. This is not an assertion of superiority by the courts over the other departments, but merely an expression of the supremacy of the Constitution. (Angara vs Electoral Commission, 63 Phil 139)

DOCTRINE OF JUDICIAL SUPREMACY

•When the Judiciary allocates constitutional boundaries, it neither asserts superiority nor nullifies an act of the legislature. It only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties an actual controversy the rights which that instrument secures and guarantees to them. (Laurel, Angara vs Electoral Commission, 63 Phil 139)


Requisites of Judicial Review

Actual case or controversy

•A conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination

One who has sustained or is in imminent danger of sustaining an injury as a result of the act complained of

TAX PAYER SUIT. All elements must concur

•Public finds are disbursed by a political subdivision or instrumentality

•A law is violated or some irregularity is committed, and that the petitioner is directly affect by the ultra vires act (Anti-Graft League of the Philippines vs. CA, 260 SCRA 250)

Constitutional question must be raised at the earliest opportunity

Determination of Constitutionality of the statute must be necessary to a final determination of the case (People vs Vera, 65 Phil. 56)


GRAVE ABUSE OF DISCRETION AMOUNTING OF LACK OF JURISDICTION

Capricious and whimsical exercise of judgment. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a ritual refusal to perform a duty enjoined by law, or to act at law in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (Intestate Estate of Carmen de Luna vs IAC, 170 SCRA 246)


JUSTICIABLE QUESTION

A definite and concrete dispute touching on the legal relations of the parties having adverse legal interests which may be resolved through the application of a law.

Cutaran v DENR, GR No. 134958

1/31/01

POLITICAL QUESTION

Two Aspects

•To those questions which, under the Constitution, arte to be decided by the people in their sovereign capacity

•In regard to which full discretionary authority has been delegated to the legislature or executive branches of government

(Tanada vs Cuenco, 100 Phil. 1101)


FXNs of JUDICIAL REVIEW

Checking

•Invalidating a law or executive act that is found to be contrary to the Constitution

Legitimating

•Upholding the validity of the law that results from a mere dismissal of a case challenging the validity of the law

Symbolic

•To educate the bench and bar as to the controlling principles and concepts on matters of grave public importance for the guidance of and restraint upon the future. Salonga vs Cruz Pano, 134 SCRA 438

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