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5 1. May the President make temporary appointments involving the

members of the Cabinet while Congress in session or not in session?

Distinguish ad interim appointment and appointment in an acting

capacity.

Yes provided the temporary appointments of cabinet members do not

exceed one (1) year. (SEN. AQUILINO PIMENTEL, et al., vs. EXEC.

SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587)

1. The temporary appointments are valid. The power to appoint is

essentially executive in nature and the legislature may not interfere with

the exercise of this executive power except in those instances when the

Constitution expressly allows it to interfere. The essence of an

appointment in an acting capacity is its temporary nature. It is a stop-gap

measure intended to fill an office for a limited time until the appointment

of a permanent occupant to the office. In case of vacancy in an office

occupied by an alter ego of the President, such as the office of a

department secretary, the President must necessarily appoint an alter ego

of her choice as acting secretary before the permanent appointee of her

choice could assume office. Congress, through a law cannot impose on the

President the obligation of automatically appointing the Undersecretary as

her alter ego. He must be of the President’s confidence and provided that

the temporary appointment does not exceed one (1) year.

There is a need to distinguish ad interim appointments and appointments

in an acting capacity. While both are effective upon acceptance, ad interim

appointments are extended only during the recess of Congress, whereas

acting appointments may be extended any time that there is a vacancy.

Moreover, ad interim appointments are submitted to the Commission on

Appointments for confirmation or rejection; acting appointments are not

submitted to the Commission on appointments. Acting appointments are a

way of temporarily circumventing the need of confirmation by the

Commission on Appointments.

52. What is the “take care power” of the President of the Philippines?

It is the power of the President under Section 17, Art. VII which provides

that The President shall have control of all the executive departments ,

bureaus and offices. He shall ensure that the laws be faithfully executed.

53. What is the power of control of the President. Distinguish it from

power of supervision.

“Control” has been defined as “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

test of the latter.” “Supervision” on the other hand means “overseeing or

the power or authority of an officer to see that subordinate officers

perform their duties. (MONDANO VS. SILVOSA)

54. May the President validly require all officers and employees under the

executive department to maintain ID systems and have ID cards?

Yes in accordance with her power of control under Section 17, Art. VII of

the Constitution. (KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY

EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006) But not for a

national ID system which includes civilians as held in Ople vs. Torres,

supra.

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55. What is the doctrine of qualified political agency?

It simply means that “the President is not expected to perform in person

an the multifarious executive and administrative functions. The Office of

the Executive Secretary is an auxillary unit which assists the President.

Under our constitutional set-up, the Executive Secretary acts for and in

behalf of the President: and by authority of the President, he has

undisputed jurisdiction to affirm, modify, or even reverse any order of

the Secretary of Natural Resources and other Cabinet Secretaries. Where

the Executive Secretary acts “by authority of the President” his decision is

that of the President. (Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895).

 

56. What are the differences between the power of the President to

declare martial law or suspend the privilege of the writ of habeas corpus

under the 1987 Constitution and the previous Constitutions?

Under the 1987 Philippine Constitution, such acts of the President may be

reviewed not only by the Supreme Court but also the Congress of the

Philippines. Previously, such would be considered “political question”

which is beyond the review powers of the courts. Likewise, there is a

definite period for the said suspension unlike before and more

importantly, the grounds are only invasion and rebellion WHEN THE

PUBLIC SAFETY REQUIRES IT. The Supreme Court may review, in an

appropriate proceeding filed by any citizen, the sufficiency of the factual

basis of the proclamation of martial law or suspension of the privilege of

the writ or the extension thereof, and must promulgate its decision

thereon within 30 days from its filing.

A state of martial law does not suspend the operation of the Constitution,

nor supplant the functioning of the civil courts or legislative assemblies,

nor authorize the conferment of jurisdiction on military courts and

agencies over civilians where civil courts are able to function, nor

automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons

judicially charged for rebellion or offenses inherent in or directly connected

with invasion.

During the suspension of the privilege of the writ, any person thus arrested

or detained shall be judicially charged within 3 days, otherwise, he shall be

released.

57. May the President under the 1987 Constitution validly issue decrees

after declaring a state of national emergency. May she direct the take

over of business affected with national interest by reason of the

“emergency” which she herself proclaimed?

 In the case of PROF. RANDOLF S. DAVID, et Al VS. GLORIA MACAPAGAL-

ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, et al., G.R. No.

171396, May 3, 2006, it was held that in declaring a state of national

emergency, President Arroyo did not only rely on Section 18, Article VII of

the Constitution, a provision calling on the AFP to prevent or suppress

lawless violence, invasion or rebellion. She also relied on Section 17,

Article XII, a provision on the State’s extraordinary power to take over

privately-owned public utility and business affected with public interest.

The Supreme Court ruled that the assailed PP 1017 is unconstitutional

insofar as it grants President Arroyo the authority to promulgate

“decrees.” Legislative power is peculiarly within the province of the

Legislature. Section 1, Article VI categorically states that “[t]he legislative

power shall be vested in the Congress of the Philippines which shall consist

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of a Senate and a House of Representatives.” To be sure, neither Martial

Law nor a state of rebellion nor a state of emergency can justify President

Arroyo’s exercise of legislative power by issuing decrees.

Likewise, the exercise of emergency powers, such as the taking over of

privately owned public utility or business affected with public interest, is

also unconstitutional. This requires a delegation from Congress.

58. What are the requisites of judicial review?

Courts may exercise the power of judicial review only when the following

requisites are present: first,there must be an actual case or

controversy; second, petitioners have to raise a question of

unconstitutionality; third, the constitutional question must be raised at the

earliest opportunity; andfourth, the decision of the constitutional question

must be necessary to determination of the case itself.

59. When may the courts still validly decide moot and academic cases?

A moot and academic case is one that ceases to present a justiciable

controversy by virtue of supervening events,[1] so that a declaration

thereon would be of no practical use or value. Generally, courts decline

jurisdiction over such case[2] or dismiss it on ground of mootness.

The “moot and academic” principle is not a magical formula that can

automatically dissuade the courts in resolving a case. Courts will decide

cases, otherwise moot and academic, if:

first, there is a grave violation of the Constitution (Province of Batangas vs.

Romulo

second, the exceptional character of the situation &paramount public

interest is involved (Lacson vs. Perez

 third, when constitutional issue raised requires formulation of controlling

principles to guide the bench, the bar, and the public (Province of

Batangas vs. Romulo); and

fourth, the case is capable of repetition yet evading review

60. Define locus standi.

 Locus standi is defined as “a right of appearance in a court of justice on a

given question.”[3] In private suits, standing is governed by the “real-

parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules

of Civil Procedure, as amended. It provides that “every action must be

prosecuted or defended in the name of the real party in interest.”

Accordingly, the “real-party-in interest” is “the party who stands to be

benefited or injured by the judgment in the suit or the party entitled to

the avails of the suit.”[4] Succinctly put, the plaintiff’s standing is based on

his own right to the relief sought.

Introduction to extraordinary presidential powersTO help enlighten the public on the nagging issue of an impending national emergency declaration, we enumerate the extraordinary presidential powers at Gloria Macapagal-Arroyo’s disposal culled from a briefing paper prepared by the Free Legal Assistance Group. The President’s extraordinary powers, FLAG says, generally fall under three classes — powers vested by virtue of being the Commander-in-Chief, emergency powers granted by Congress, and emergency powers as provided for in the 1987 Constitution.

A. Commander-in-Chief Powers (Art. VII, Sec. 18, 1987 Constitution) a. Call out Armed Forces

o To suppress lawless violence, invasion or rebelliono Not subject to congressional approval or judicial review

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o President vested with full discretionary power to determine factual basis for calling out armed forces.

Note:1. In IBP v. Zamora, the Supreme Court held: "When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."

o Power exercised by President Joseph E. Estrada on 24 January 2000, ordering the Marines and the PNP to conduct joint visibility patrols to prevent and suppress crime. Power upheld by Supreme Court

o Power exercised by President Gloria Macapagal Arroyo on 1 May 2001 through General Order No.1, directing the AFP and PNP to suppress and quell the rebellion

Notes:1. Hold departure orders issued and implemented2. Persons arrested without warrants and specific charges3. Checkpoints set up4. Order issued to disperse groups of 5 or more massing up near palace

b. Suspend the privilege of the writ of habeas corpuso i. In cases of rebellion or invasion and when public safety so requireso ii. Applies only to persons judicially charged for rebellion or offenses

inherent in or directly connected with invasion

Note:1. Refers specifically and categorically to those facing criminal charges filed in court, not to those facing investigations, preliminary or otherwise, before the fiscaL prosecutor or DOJ

o Persons arrested or detained must be judicially charged within 3 days, otherwise must be released

o For period not exceeding 60 days; may be extended by Congress throughmajority vote of all members of Congress voting jointly, upon initiative of President if invasion or rebellion persists and public safety requires

o No congressional concurrence required, but Congress has power of revocation through majority vote of all members of Congress voting jointly; revocation cannot be set aside by PresidentNotes:1. 236 members of House of Representatives; 23 Senators. 259 total members of Congress.2. Majority vote required for revocation or extension – 1313. No rules on joint voting in Senate or House

o Subject to judicial review; decision must be promulgated within 30 days from filing

o If Congress is in session, President required to submit a report to Congress in person or in writing within 48 hours from suspension

o If Congress is not in session, all members required to convene without need of call within 24 hours from suspension

Notes:1. Congress on recess since 13 October 2005; Senate resumes 24 October 2005 while House resumes 7 November 20052. No rule in Senate on convening without need of call; Rule 84, House of Representatives, replicates constitutional provision

c. Declare martial law

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o In cases of rebellion or invasion and when public safety so requireso Does not suspend Constitutiono Does not supplant functioning of civil courts or Congresso Does not authorize conferment of jurisdiction on military courts and

agencies over civilians where civil courts are able to functiono Does not automatically suspend writ of habeas corpuso For period not exceeding 60 days; may be extended by Congress

throughmajority vote of all members of Congress yoting jointly, upon initiative of President if invasion or rebellion persists and public safety requires

o No congressional concurrence required, but Congress has power of revocation through majority vote of all members of Congress voting jointly; revocation cannot be set aside by President

Notes:1. 236 members of House of Representatives; 23 Senators. 259 total members of Congress.2. Majority vote required for revocation or extension – 1313. No rules on joint voting in Senate or House

o Subject to judicial review; decision must be promulgated within 30 days from filing

o If Congress is in session, President required to submit a report to Congress in person or in writing within 48 hours from declaration

o If Congress is not in session, all members required to convene without need of call within 24 hours from declarationNotes:1. Congress on recess since 13 October 2005; Senate resumes 24 October 2005 while House resumes 7 November 20052. No rule in Senate on convening without need of call; Rule 84, House of Representatives, replicates constitutional provision

B. Congressional Grant of Emergency Powers (Art. VI, Sec. 23, 1987 Constitution)

o In times of war or other national emergencyNote:i. There must be a "compact" relationship between the declaration of war and powers granted to President

o By two-thirds of both Houses, voting separately in joint sessionNotes:i. 236 members of House of Representatives; 157 votes needed to declare existence of war or national emergencyii. 23 Senators; 15 votes needed to declare existence of war or national emergency

o For limited periodNote:i. In Araneta v. Dinglasan, the Supreme Court held: "The words ‘limited period’ as used in the Constitution are beyond question intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency powers, ‘must be temporary or it can not be said to be an emergency.’"

o Subject to restrictions Congress may prescribeo Unless withdrawn by Congress, powers cease at next adjournmento Emergency powers granted to President Corazon C. Aquino on 20

December 1989 through Republic Act 6826Notes:i. RA 6826 granted the President powers to:

30. Protect people from hoarding, profiteering, injurious speculations, price manipulation, product deception, cartels, etc. of food, clothing, medicines, office and school supplies, fuel, fertilizers, etc. whether imported or manufactured locally

31. Purchase any articles or commodities mentioned for storage, sale or distribution

32. Fix maximum ceiling prices of articles or commodities mentioned

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33. Regulate fees charged by establishments in connection with production, milling, storage and distribution of articles or commodities mentioned

34. Seize and confiscate hoarded foodstuffs and commodities, provided goods wrongfully seized shall be subject to payment of just compensation

35. Call upon and designate recognized NGOs and peoples organizations, and LGUs to assist government

36. Temporarily take over or direct the operation of any privately owned public utility or business affected with public interest that violates the declared national policy

37. Liberalize importation and grant incentives for manufacture, assembly, reconditioning or importation of vehicles or vessels for public transport

C. Emergency Powers (Art. XII, Sec. 17, 1987 Constitution)o In times of national emergency when public interest so requires

Note:i. National emergency may refer to threats from external aggression, calamities, natural disasters, strikes only when they are of such proportion as would paralyze government service, military national emergency, or economic dislocations

o State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interestNotes:i. State refers to executive branch of governmentii. Business affected with public interest refers to businesses that have the characteristics of a public utility, with mass-based consumer group. "Entire business operations which are not treated as public utilities do not fall under the public utility regulation, but may already be so massive in terms

of its consumption, especially as regards the low-income groups, that they should also be subject of the specific section."

o Does not authorize sequestrationo For duration of emergencyo State prescribes reasonable terms

i. The phrase "under reasonable terms prescribed by it" does not serve to stop the State from taking over the operation of any privately owned public utility or business