Article VII: Executive Department
Section 1: The executive power shall be vested in the President of the Philippines
Akbayan v. Aquino GR 170516, July 16, 2008
Topics: Executive Privilege
Facts:
 The Petitioners (non-government organizations, Congresspersons,
citizens and taxpayers) demanded the full text of the Japan-Philippines
Economic Partnership Agreement (JPEPA) including the Philippine and
Japanese offers submitted during the negotiation process.
 The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the
Senate grants its consent to it, covers a broad range of topics as follows:
trade in goods, rules of origin, customs procedures, paperless trading,
trade in services, investment, intellectual property rights, government
procurement, movement of natural persons, cooperation, competition
policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final
provisions .
 While the final text of the JPEPA has now been made accessible to the
public since September 11, 2006, respondents do not dispute that, at the
time the petition was filed (January 25, 2005) up to the filing of petitioners’
Reply (June 2005) – when the JPEPA was still being negotiated – the
initial drafts thereof were kept from public view.
 With the Senate deliberations on the JPEPA still pending, the agreement
as it now stands cannot yet be considered as final and binding between
the two States. Article 164 of the JPEPA itself provides that the
agreement does not take effect immediately upon the signing thereof. For
it must still go through the procedures required by the laws of each
country for its entry into force) – BASIN MAG-ASK SI SIR… the
petitioners file this case in the 3rd year of negotiation.
 The respondent alleged that the request of the Petitioners must be denied
on the ground that the issue is under the executive privileged and is due
confidential. The petitioners argue that the contents of the JPEPA are
matter of public interest, and thus it covers by their right to information.
Whether a claim of executive privilege is valid depends on the ground
invoked to justify it and the context in which it is made. In the present
case, the ground for respondents’ claim of privilege is set forth:
x x x The categories of information that may be considered privileged
includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
 The documents on the proposed JPEPA as well as the text which is
subject to negotiations and legal review by the parties fall under the
exceptions to the right of access to information on matters of public
concern and policy of public disclosure. They come within the coverage of
executive privilege. At the time when the Committee was requesting for
copies of such documents, the negotiations were ongoing as they are still
now and the text of the proposed JPEPA is still uncertain and subject to
change. This is in reference to PMPF v. Manglapus .
 The petitioners argue that PMPF v. Manglapus does not apply in the
present case. They stress that PMPF v. Manglapus involved the Military
Bases Agreement which necessarily pertained to matters affecting
national security; whereas the present case involves an economic treaty
that seeks to regulate trade and commerce between the Philippines and
Japan.
Issues:
 W/N the full text/content/negotiation of the JPEPA is under the
executive privileged and thus must be confidential?
Held:
 Respondents’ claim of executive privilege being valid.
In PMPF v. Manglapus -"the [public’s] right to information . . . does not
extend to matters recognized as privileged information under the separation of
powers." What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the public’s right to
information.
The court held that when the Executive has already shown that an
information is covered by executive privilege, the party demanding the
information must present a "strong showing of need," whether that party is
Congress or a private citizen.
However, when the Executive has – as in this case – invoked the privilege,
and it has been established that the subject information is indeed covered by
the privilege being claimed, can a party overcome the same by merely
asserting that the information being demanded is a matter of public concern,
without any further showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a limitation
on the right to information, because then the sole test in such controversies
would be whether an information is a matter of public concern.
By disclosing the documents of the JPEPA negotiations, the Philippine
government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How
would the Philippine government then explain itself when that happens?
Surely, it cannot bear to say that it just had to release the information because
certain persons simply wanted to know it "because it interests them."
Thus, the Court holds that, in determining whether an information is
covered by the right to information, a specific "showing of need" for such
information is not a relevant consideration, but only whether the same is a
matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed
covered by the same, then the party demanding it, if it is to overcome the
privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably
participate in social, political, and economic decision-making.
Diplomatic negotiations have, since the Court promulgated its Resolution
in PMPF v. Manglapus on September 13, 1988, been recognized as privileged
in this jurisdiction and the reasons proffered by petitioners against the
application of the ruling therein to the present case have not persuaded the
Court. Moreover, petitioners – both private citizens and members of the House
of Representatives – have failed to present a "sufficient showing of need" to
overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment
to the present petition, and not during the hearings of the House Special
Committee on Globalization, is of no moment, since it cannot be interpreted as
a waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as
departing from the ruling in Senate v. Ermita that executive privilege should be
invoked by the President or through the Executive Secretary "by order of the
President."
WHEREFORE, the petition is DISMISSED.
Additional Note:
 See page 371 Cruz’ book
Soliven v. Makasiar, GR 82585, Novemeber 14, 1988
Topics: Presidential Immunity
Facts:
This is a consolidated case of Soliven and Beltran, the petitioners in this case.
They together with others was charged for libel by the president. Cory herself
filed a complaint-affidavit against him and others. Makasiar averred that Cory
cannot file a complaint affidavit because this would defeat her immunity from
suit. He grounded his contention on the principle that a president cannot be
sued. However, if a president would sue then the president would allow herself
to be placed under the court’s jurisdiction and conversely she would be
consenting to be sued back. Also, considering the functions of a president, the
president may not be able to appear in court to be a witness for herself thus
she may be liable for contempt.
Issues:
Whether or not the President, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-affidavit?
Held:
The rationale for the grant to the President of the privilege of immunity from
suit is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office-holder’s time,
also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of
the office and may be invoked only by the holder of the office; not by any other
person in the President’s behalf. Thus, an accused like Beltran et al, in a
criminal case in which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from proceeding against
such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court’s jurisdiction. The choice of
whether to exercise the privilege or to waive it is solely the President’s
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
WHEREFORE finding no grave abuse of discretion amounting to excess or
lack of jurisdiction on the part of the public respondents, the court resolved to
DISMISS the petitions.
David v. Arroyo, GR 171396, May 3, 2006
Topics: Presidential Immunity, Powers of the President,
Facts:
 On February 24, 2006, as the country celebrated the 20th Anniversary of
EDSA People Power I, President Gloria Macapagal-Arroyo issued
Presidential Proclamation No. 1017 (PP 1017) declaring a state of
national emergency. On the same day, she also issued General Order
No. 5 (GO 5) implementing the proclamation. A week later, after these
seven Petitions had been filed before the Supreme Court, she lifted PP
1017 and declared that the national emergency had ceased to exist.
 The factual bases of PP 1017 and GO 5, according to respondents,
comprised a conspiracy to unseat or assassinate President Arroyo. It was
allegedly hatched by some military officers, leftist insurgents, and
members of the political opposition. Respondents justified their moves by
saying that the aim to oust or assassinate the President and to take over
the reigns of government had posed a clear and present danger.
 Following the issuance of PP 1017 and GO 5, the Office of the President
announced the cancellation of all programs and activities related to the
20th anniversary celebration of EDSA People Power I and revoked the
permits to hold rallies issued earlier by local governments. Presidential
Chief of Staff Michael Defensor further announced that “warrantless
arrests and take-over of facilities, including media, can already be
implemented.”
 During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
 The raid, according to Presidential Chief of Staff Michael Defensor, is
"meant to show a ‘strong presence,’ to tell media outlets not to connive or
do anything that would help the rebels in bringing down this government."
The PNP warned that it would take over any media organization that
would not follow "standards set by the government during the state of
national emergency." Director General Lomibao stated that "if they do
not follow the standards – and the standards are - if they would contribute
to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked
for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that
his agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national
security is threatened.
 In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017
on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
 In respondents’ Consolidated Comment, the Solicitor General countered
that: (1) the petitions should be dismissed for being moot; (2) petitioners in
G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.),
171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; (3) it is not necessary for petitioners to implead President
Arroyo as respondent; (4) PP 1017 has constitutional and legal basis;
and (5) PP 1017 does not violate the people’s right to free expression
and redress of grievances.
Issues:
SUBSTANTIVE:
 W/N the petitioner’s can implead the President
 Whether the Supreme Court can review the factual bases of PP 1017.
 Whether PP 1017 and G.O. No. 5 are unconstitutional.
o Facial Challenge
o Constitutional Basis
o As Applied Challenge
Held:
 No. This Court holds that all the petitioners herein have locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question." Incidentally, it is not proper to implead President Arroyo
as respondent. Settled is the doctrine that the President, during his tenure
of office or actual incumbency may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will
degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch,
only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of
the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people but he may be removed from office only in the mode provided
by law and that is by impeachment.
 Yes, there is a factual basis. In Integrated Bar of the Philippines v.
Zamora, the Court considered the President’s “calling-out” power as a
discretionary power solely vested in the Chief Executive’s wisdom.
Nonetheless, it stressed that “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.”
As to how the Court may inquire into the President’s exercise of
power, the standard laid down in Lansang v. Garcia was not correctness,
but arbitrariness. The Court further ruled in Integrated Bar of the
Philippines that the burden was upon the petitioner “to show that the
President’s decision is totally bereft of factual basis,” not upon the Court to
“undertake an independent investigation beyond the pleadings.”
In the present case, petitioners failed to show that President Arroyo’s
exercise of the calling-out power through PP 1017 was factually baseless.
The solicitor general’s Consolidated Comment and Memorandum made a
detailed narration of the events leading to the issuance of the
proclamation. Petitioners presented no contrary allegations; thus, the
Court was convinced that the President was justified in issuing PP 1017.
 Yes, both are unconstitutional.
To summarize: The assailed PP1017 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 "the legislative power shall be vested in the Congress
of the Philippines, which shall consist 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. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws", she cannot call the military to
enforce or implement certain laws such as customs laws, laws governing
family and property relations, laws on obligations and contracts, and the like.
She can only order the military under PP1017, to enforce laws pertinent to its
duty to suppress lawless violence.
Lengthy Discussion:
Facial Challenge to PP 1017
Overbreadth. On petitioners’ facial challenge of PP 1017, the
Court held that a review of the issuance through the use of the
overbreadth doctrine was uncalled for. First, that doctrine was an
analytical tool developed for testing “on their faces” statutes in free
speech cases. A plain reading of PP 1017 showed that it was not
primarily directed to speech or even speech-related conduct. It was
actually a call upon the AFP to prevent or suppress all forms of lawless
violence.
Second, the facial invalidation of laws was considered a “manifestly
strong medicine” to be used “sparingly and only as a last resort,” and was
“generally disfavored.” A challenge using the overbreadth doctrine would
require the Court to examine PP 1017 to pinpoint flaws or defects, not on
the basis of its actual effect upon petitioners, but on the assumption or
prediction that it might cause others who are not before the Court to
refrain from exercising free speech or expression.
Third, in a facial challenge on the ground of overbreadth, a
petitioner is required to establish that there can be no instance when the
assailed law might be valid. Petitioners did not even attempt to show
whether that situation existed.
Void for Vagueness. The Court held that a facial review on the
ground of vagueness was likewise unwarranted. The “void for vagueness
doctrine” holds that “a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application.”
The petitioner must show that the statute is vague in all its possible
applications. Again, petitioners did not attempt to show that PP 1017 was
vague in all its applications, and that persons of common intelligence
could understand its meaning and application.
Powers of the President part
Operative Portion of PP 1017
In establishing the constitutional basis of PP 1017, the ponencia
divided the operative portion of PP 1017 into these three important
provisions:
First provision:
“[B]y virtue of the power vested upon me by Section 18, Artilce VII x x
x [I] do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion”
Second provision:
“and to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction;”
Third provision:
“as provided in Section 17, Article XII of the Constitution [ I ] do hereby
declare a State of National Emergency.”
 First Provision: Calling-Out Power
The first provision pertains to the President’s calling-out power. In
Sanlakas v. Executive Secretary, the Court held that Section 18 of Article
VII of the Constitution granted the President, as Commander-in-Chief, a
“sequence” of graduated powers. From the most to the least benign,
these were the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare martial law.
Citing Integrated Bar of the Philippines v. Zamora, the Court ruled that
the only criterion for the exercise of the calling-out power was “whenever it
becomes necessary x x x to prevent or suppress lawless violence,
invasion or rebellion.” Owing to the vast intelligence network of her office,
the President was in the best position to determine the actual condition of
the country.
Under the calling-out power, the President may summon the armed
forces to aid her in suppressing lawless violence, invasion and rebellion
through ordinary police action. But every act beyond the President’s
calling-out power is considered illegal or ultra vires.
There is a distinction between the authority to declare a “state of
rebellion” and the authority to proclaim a state of national emergency.
The first emanates from the President’s powers as Chief Executive, as
provided under Section 4 Chapter 2, Book II of the Administrative Code of
1987. President Arroyo’s declaration of a “state of rebellion” was
merely an act declaring a status or condition of public moment or
interest.
In declaring a state of national emergency, the President did not
rely only on Section 18 of Article VII of the Constitution; but likewise on
Section 17 of Article XII, a provision on the State’s extraordinary power to
take over any privately owned public utility or business affected with public
interest. Certainly, PP 1017 called for the exercise of an awesome
power; thus, it could not be deemed harmless, without legal significance,
or not written, as in the case of Sanlakas.
Nonetheless, the Court stressed that PP 1017 was not a
declaration of martial law. Hence, it could not be used to justify acts
that could be done only under a valid declaration of martial law, such
as (1) arrests and seizures without judicial warrants, (2) ban on
public assemblies, (3) press censorship and takeover of news media
and agencies, and (4) issuance of presidential decrees.
Second Provision: Faithful Execution of Laws
The second provision pertained to the power of the President to
ensure that the laws be faithfully executed, as provided in Section 17,
Article VII of the Constitution. The enabling clause, however, provides
that the President may “enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon
my direction.”
The Court ruled that President Arroyo could not issue decrees
similar to those of former President Ferdinand Marcos under martial law.
Her ordinance power was limited under Chapter 2, Book III of Executive
Order No. 292 (the Administrative Code of 1987). On the other hand,
presidential decrees were laws that were of the same category and
binding force as statutes, because they were issued in the exercise of the
President’s legislative power during the period of martial law under the
1973 Constitution. Under our present Constitution, legislative power
specifically belongs to Congress. Neither martial law nor a state of
rebellion or of emergency could justify President Arroyo’s exercise of
legislative power through the issuance of decrees. With respect to “laws,”
the President could order the military to enforce only laws pertinent to its
duty to suppress lawless violence, but not civil laws, customs laws, and
the like.
Third Provision: State of National Emergency
No Takeover of Privately Owned Utilities. . Section 17 of Article XII
of the Constitution provides for the takeover or direction of the operation
of any privately owned public utility or business affected with public
interest.
Clearly, the exercise of emergency powers, such as the takeover of
any privately owned public utility or business affected with public interest,
requires a delegation from Congress.
Section 17 of Article XII must be understood as an aspect of the
emergency powers clause generally reposed upon Congress. Whether
the President may exercise this power is dependent on whether Congress
would delegate it to the Chief Executive through a law prescribing
reasonable terms.
The Court emphasized that while the President alone could declare a
state of national emergency without legislation, she had no power to take
over a privately owned public utility or business affected with public
interest. The Chief Executive could not decide whether exceptional
circumstances existed that would warrant the takeover of private facilities
affected with public interest. Neither could she determine when those
exceptional circumstances had ceased.
Likewise, without legislation, the President had no power to determine
what types of business affected with public interest should be taken over.
Void-as-Applied Doctrine Void-as-Applied Doctrine
Finally, on the challenge that PP 1017 was void as applied, the
Court asked, “Does the illegal implementation of a law render it
unconstitutional?”
 Settled is the rule that courts are not at liberty to declare statutes
invalid, although those statutes may have been abused and “misabused”
or may have afforded an opportunity for abuse in the manner of
application. PP 1017 was merely an invocation of the President’s calling-
out power. Its general purpose was to command the AFP to suppress all
forms of lawless violence, invasion or rebellion. But nothing in it allowed
the police, expressly or impliedly, to conduct an illegal arrest or to
search or violate the citizens’ constitutional rights.
Constitutionality of GO 5 and Acts of Terrorism
President Arroyo issued GO 5 to carry into effect the provisions of PP
1017. The order mandated the AFP and the PNP to carry out immediately
the “necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.”
The term “lawless violence” is unarguably extant in our statutes and
Constitution. The term is invariably associated with “invasion, insurrection
or rebellion.” On the other hand, Congress has yet to enact a law defining
and punishing “acts of terrorism.” It must be remembered that an act can
only be considered a crime if there is a law defining it as such and
imposing the corresponding penalty.
Since there is no law defining “acts of terrorism,” President Arroyo
alone, under GO 5, has the discretion to determine what acts constitute
terrorism. Her judgment on this aspect is absolute, without restriction.
Consequently, upon the invocation of GO 5, there can be indiscriminate
arrests without warrant, incidents of breaking into offices and residences,
takeover of media enterprises, and prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. These acts
go far beyond the calling-out power of the President. Certainly, they
violate the due process clause of the Constitution. Thus, the Court
declared that the “acts of terrorism” portion of GO 5 was
unconstitutional.
insufficient basis for charging him with inciting to sedition. Further, it was
not even known whether he was the leader of the rally.
The Court likewise considered the dispersal and arrest of the members of
KMU et al. unwarranted. Apparently, the dispersal was done merely on
the basis of Malacañang’s arbitrary directive cancelling all permits
previously issued by local governments. The wholesale cancellation of all
permits to rally was a blatant disregard of the principle that “freedom of
assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the
State has a right to prevent.” Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and
present danger may the State deny the citizens’ right to exercise it, a fact
that respondents utterly failed to show.
Moreover, under BP 880, the authority to regulate assemblies and rallies
is lodged with local governments. They have the power to issue permits
and to revoke those permits after due notice and hearing. In this case,
petitioners were not even notified of, much less heard on, the revocation
of their permits. The absence of notice was a fatal defect.
 There are seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
 See pages 379, 383 and 387 in Cruz book.

Additional Note:
 Unconstitutional Actions
The warrantless arrest of Petitioner David cannot be justified. During
the inquest for the charges against him (violation of Batas Pambansa
Bilang 880 and inciting to sedition), all that the arresting officers could
invoke was their observation that some rallyists were wearing t-shirts
with the words “Oust Gloria Now” and their erroneous assumption that
he was the leader of the rally. Consequently, the inquest prosecutor
ordered David’s immediate release (after his seven-hour detention) on the
ground of insufficiency of evidence. It was noted that he was not wearing
the subject T-shirt and, even if he were, that fact would have been an