BAR Questions: Art.VII 2002: M is the Secretary of the Department of Finance.

He is also an ex-officio member of the Monetary Board of the Bangko Sentral ng Pilipinas from which he receives an additional compensation for every Board meeting attended. N, a taxpayer, filed... a suit in court to declare Secretary M's membership in the Monetary Board and his receipt of additional compensation illegal and in violation of the Constitution. N invoked Article VII, Section 13 of the Constitution which provides that the President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. N also cited Article IX-B, Section 8 of the Constitution, which provides that no elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. If you were the judge, how would you decide the following: a) the issue regarding the holding of multiple positions? b) the issue on the payment of additional or double compensation? Suggested Answer: a) If I were the judge, I would uphold the validity of the designation of Secretary M as ex officio member of the Monetary Board, As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991), the prohibition against the holding of multiple positions by Cabinet Members in Article VII, Section 13 of the Constitution does not apply to positions occupied in an ex officio capacity as provided by law and as required by the primary functions of their office. b) If I were the Judge, I would rule that Secretary M cannot receive any additional compensation. As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991), a Cabinet Member holding an ex-officio position has no right to receive additional compensation, for his services in that position are already paid for by the compensation attached to his principal office. 1991: On 3 May 1992, while Congress is on a short recess for the elections, the president appoints Renato de Silva to the rank of General (4-star) in the Armed Forces. She also designates him as Chief of Staff of the AFP. He immediately takes his oath and assumes that office, with the rank of 4-star General of the AFP. When Congress resumes its session on 17 May 1992, the Commission on Appointments informs the Office of the President that it has received from her office only the appointment of De Silva to the rank of 4-star General and that unless his appointment to the Office of the Chief of Staff of the AFP is also submitted, the Commission will not act on the matter. The President maintains that she has submitted to the Commission all that the Constitution calls for. a) Who is correct? b) Did Gen. de Silva violate the Constitution in immediately assuming office prior to a confirmation of his appointment? c) Are the appointment and designation valid? Suggested Answer: (a) The President is correct. Under Presidential Decree No. 360, the grade of four-star general is conferred only upon the Chief of Staff. Hence, the appointment of Renato de

Silva as a four-star general must be deemed to carry with it his appointment as Chief of Staff of the AFP, (b) Gen. Renato de Silva did not violate the Constitution when he immediately assumed office before the confirmation of his appointment, since his appointment was an ad interim appointment. Under Article VI I, Sec. 16 of the Constitution, such appointment is immediately effective and is subject only to disapproval by the Commission on Appointments or as a result of the next adjournment of the Congress. (c) The appointment and designation of Gen. de Silva are valid for reasons given above. However, from another point of view they are not valid because they were made within the period of the ban for making appointments. Under Article VII, Sec. 15 the President is prohibited from making appointments within the period of two (2) months preceding the election for President and Vice President. The appointment in this case will be made on May 3, 1992 which is just 8 days away from the election for President and Vice President on May 11, 1992. For this reason the appointment and designation of Gen. de Silva are after all invalid. 2002: On December 13, 1990, the President signed into law Republic Act No. 6975 (subsequently amended by RA No. 8551) creating the Department of Interior and Local Government. Sections 26 and 31 of the law provide that senior officers of the Philippine National Police (PNP), from Senior Superintendent, Chief Superintendent, Deputy Director General to Director General or Chief of PNP shall, among others, be appointed by the President subject to confirmation by the Commission on Appointments. In 1991 the President promoted Chief Superintendent Roberto Matapang and Senior Superintendent Conrado Mahigpit to the positions of Director and Chief Superintendent of the PNP, respectively. Their appointments were in a permanent capacity. Without undergoing confirmation by the Commission on Appointments, Matapang and Mahigpit took their oath of office and assumed their respective positions. Thereafter, the Department of Budget and Management authorized disbursements for their salaries and other emoluments. Juan Bantay filed a taxpayer's suit questioning the legality of the appointments and disbursements made. Bantay argues that the appointments are invalid inasmuch as the same have not been confirmed by the Commission on Appointments, as required under Sections 26 and 31 of R.A. No. 6975. Determine with reasons the legality of the appointments and the disbursements for salaries by discussing the constitutional validity of Sections 26 and 31 of R.A. No. 6975. Suggested Answer: The appointments of Matapang and Mahigpit are valid even if they were not confirmed by the Commission on Appointments, because they are not among the public officials whose appointments are required to be confirmed by the first sentence of Article VII, Section 16 of the Constitution. According to Manalo v. Sistoza, 312 SCRA 239 (1999), Sections 26 and 31 of Republic Act 6975 are unconstitutional, because Congress cannot by law expand the list of public officials required to be confirmed by the Commission on Appointments. Since the appointments of Matapang and Mahigpit are valid, the disbursements of their salaries and emoluments are valid. 2006: The President issued a Proclamation No. 1018 placing the Philippines under

Martial Law on the ground that a rebellion staged by lawless elements is endangering the public safety. Pursuant to the Proclamation, suspected rebels were arrested and detained and military tribunals were set up to try them. Robert dela Cruz, a citizen, filed with the Supreme Court a petition questioning the validity of Proclamation No. 1018. 1. Does Robert have a standing to challenge Proclamation No. 1018? Explain. 2. In the same suit, the Solicitor General contends that under the Constitution, the President as Commander-in-Chief, determines whether the exigency has arisen requiring the exercise of his power to declare Martial Law and that his determination is conclusive upon the courts. How should the Supreme Court rule? 3. The Solicitor General argues that, in any event, the determination of whether the rebellion poses danger to public safety involves a question of fact and the Supreme Court is not a trier of facts. What should be the ruling of the Court? 4. Finally, the Solicitor General maintains that the President reported to Congress such proclamation of Martial Law, but Congress did not revoke the proclamation. What is the effect of the inaction of Congress on the suit brought by Robert to the Supreme Court? Suggested Answers: 1. Yes, Robert has standing. Under Article VIII, Section 17 of the 1987 Constitution, 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. As citizen therefore, Robert may file the petition questioning Proclamation No. 1018. 2. Supreme Court should rule that his determination is not conclusive upon the courts. The 1987 Constitution allows a citizen, in an appropriate proceeding, to file a petition questioning the sufficiency of the factual basis of said proclamation. Moreover, the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitate safeguards by Congress and review by the Supreme Court (IBP v. Zamora, G.R. No. 141284, August 15, 2000). 3. Judicial power includes the duty of the courts of justice 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 part of any branch or instrumentality of the Government (Art. Vin, Sec. 1, par. 2,1987 Constitution). When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom. 4. The inaction of Congress has no effect on the suit brought by Robert to the Supreme Court as Article VIII, Section 18 provides for checks on the President's power to declare martial law to be exercised separately by Congress and the Supreme Court. Under said provision, the duration of martial law shall not exceed sixty days but Congress has the power to revoke the proclamation or extend the period. On the other hand, the Supreme Court has the power to review the said proclamation and promulgate its decision thereon within thirty days from its filing (Article VIII, Section 18). 1997: Governor A was charged administratively with oppression and was placed under preventive suspension from office during the pendency of his case. Found guilty of the

charge, the President suspended him from office for ninety days. Later, the President granted him clemency by reducing the period of his suspension to the period he has already served. The Vice Governor questioned the validity of the exercise of executive clemency on the ground that it could be granted only in criminal, not administrative, cases. How should the question be resolved? Suggested Answer: The argument of the Vice Governor should be rejected. As held in Llamas vs. Orbos, 202 SCRA 844. the power of executive clemency extends to administrative cases. In granting the power of executive clemency upon the President, Section 19, Article VII of the Constitution does not distinguish between criminal and administrative cases. Section 19, Article VII of the Constitution excludes impeachment cases, which are not criminal cases, from the scope of the power of executive clemency. If this power may be exercised only in criminal cases, it would have been unnecessary to exclude impeachment cases from this scope. If the President can grant pardons in criminal cases, with more reason he can grant executive clemency in administrative cases, which are less serious. 2005: Bruno still had several years to serve on his sentence when he was conditionally pardoned by the President. Among the conditions imposed was that he would "not again violate any of the penal laws of the Philippines." Bruno accepted all of the conditions and was released. Shortly thereafter, Bruno was charged with 2 counts of estafa. He was then incarcerated to serve the i expired portion of his sentence following the revocation by the President of the pardon. Bruno's family filed a petition for habeas corpus, alleging that it was error to have him recommitted as the charges were false, in fact, half of them were already dismissed. Resolve the petition with reasons. Suggested Answer: The petition should not be given due course. The grant of pardon and the determination of the terms and conditions of a conditional pardon are PURELY EXECUTIVE ACTS which are not subject to judicial scrutiny. The acceptance thereof by the convict or prisoner carried with it the authority or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. Where the President opts to revoke the conditional pardon given, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, is a purely executive act, not subject to judicial scrutiny. (Torres v. Gonzales, G.R. No. 76872, July 23, 1987) 1998: Suppose the President submits a budget which does not contain provisions for CDF (Countrywide Development Funds), popularly known as the pork barrel, and because of this Congress does not pass the budget. 1. Will that mean paralization of government operations in the next fiscal year for lack of an appropriation law?

2. Suppose in the same budget, there is a special provision in the appropriations for the Armed Forces authorizing the Chief of Staff, AFP, subject to the approval of the Secretary of National Defense, to use savings in the appropriations provided thereto to cover up whatever financial losses suffered by the AFP Retirement and Separation Benefits System (RSBS) in the last five (5) years due to alleged bad business judgment. Would you question the constitutionality validity of the special provision? Suggested Answers: 1. No, the failure of Congress to pass the budget will not paralyze the operations of the Government. Section 25(7), Article VI of the Constitution provides: "If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. 2. Yes, the provision authorizing the Chief of Staff, with the approval of the Secretary of National Defense, to use savings to cover the losses suffered by the AFP Retirement and Separation Benefits System is unconstitutional. Section 25(5], Article VI of the Constitution provides: "No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriation law for their respective offices from savings in other Items of their respective appropriations." In Philippine Constitution vs Enriquez, 235 SCRA 506, 544, the Supreme Court held that a provision in the General Appropriation Act authorizing the Chief of Staff to use savings to augment the funds of the AFP Retirement and Separation Benefits Systems was unconstitutional. "While Section 25(5) allows as an exception the realignment of savings to augment items in the general appropriations law for the executive branch, such right must and can be exercised only by the President pursuant to a specific law." 2010 BAR True or False. A treaty which provides tax exemption needs no concurrence by a majority of all the Members of the Congress. FALSE. It is Congress that has full power to exempt any person or corporation or class of property from taxation, its power to exempt being as broad as its power to tax. Therefore a treaty providing for tax exemption without the concurrence of a majority of all the Members of the Congress is invalid and illegal as it is unconstitutional. 2010 BAR True or False. A proclamation of a state of emergency is sufficient to allow the President to take over any public utility.

FALSE. The 'taking over' is just another facet of the emergency powers generally reposed upon Congress. Thus, when the Constitution states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Hence, the emergency powers clause the Court is referring to is the clause which authorizes Congress to grant emergency powers to the President in times of war or other national emergency. 2010 BAR A was a career Ambassador when he accepted an ad interim appointment as Cabinet Member. The Commission on Appointments bypassed his ad interim appointment, however, and he was not reappointed. Can he re-assume his position as career Ambassador? No he cannot re-assume his post. An Ad-interim appointment is permanent such that acceptance will lead to the forfeiture of another position in government. This being the case here, the Ambassador had lost his post in the foreign service when he accepted the Cabinet appointment. The Supreme Court has settled this issue in Pimentel vs. Ermita by drawing a clear distinction between designation and adinterim appointment. The former does not lead to forfeiture of primary office, but the latter does.