1

OFFICE OF THE PRESIDENT

Of the Philippines

MEMORANDUM FOR THE PRESIDENT

From: CAREN Q. VINIEGRA

Chief Presidential Legal Counsel

Subject:

Recommended Action to Restore Peace and Order in the Country

Date: 7 April 2018

I. Preliminary Statement

Attached herewith are recommendations to the President to restore

peace and order as to address the issues surrounding the country
coupled by the facts and incidents that transpired.

II. Summary of Facts

1. There were many opposing responses with the President’s war
against drugs campaign. A lot are in favor, however, a lot are on
the also against it. Drug lords have been reported to be
retaliating, thus resulting to the killing of many low-level
policemen as well.
2. The Senate Blue Ribbon committee conducted a hearing in aid
of legislation. They had issued subpoenas to generals from the
PNP and the AFP, and members of the President’s cabinet, to
give light to the foregoing incidents surrounding the legality of the
actions taken by the President in the furtherance of the campaign
against drugs.
3. The President instructed the Executive Secretary to issue an
administrative order for all employees under the Executive
Branch that may be required to attend the legislative inquiry to
seek the approval of the Office of the President first.
4. The leadership of the Communist party has called all its
supporters and its armed wing, the People’s Liberation Army, to
intensify efforts to “liberate the country from oligarchs and
fascists.”
5. There are several rumors that an unholy alliance between the
drug syndicates and the communists has been formed to
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assassinate the President, although this rumor is not yet proven

to be true.
6. The president also received confidential reports for the
Department of National Defense and the National Security
Adviser that there has been a new established group named
“Renew the Armed Forces Movement.” However, the objectives
of the group are still unknown.
7. The Chief Justice resigned and all the members of the Supreme
Court, except for the Senior Associate Justice, have applied for
the position.
8. Some members of the administration party in the Senate have
been resigning, and are transferring to another political party.
9. Information has been obtained that a senator from the opposition
party will deliver a privileged speech to expose Malacañang
maneuvering the recently concluded impeachment proceedings
against the Chief Justice.
10. There are reports which state the the Vice President is planning
to hold a “Truth and Accountability Caravan” that will go around
the country to show the people a united opposition front.
11. A mall in the President’s hometown was bombed.
12. The President issued EOs prohibiting OFWs from being
deployed in all Arab countries because of rampant abuse.
13. There is a possibility of entering into a mutual defense treaty with
the Chinese government to which the President had secretly
consented with the Secretary of Foreign Affairs.

III. Applicable laws, rules and regulations, and jurisprudence

1. Faithful-execution clause – The President shall have control of
all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.1
2. Powers of the President – The President shall be the
Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a

1 PHIL. CONST. art. VII, § 17.
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majority of all its Members in regular or special session, may

revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public
safety requires it.2
3. Factual bases – In determining the sufficiency of the factual basis
of the declaration and/or the suspension, the Court should look
into the full complement or totality of the factual basis, and not
piecemeal or individually. Neither should the Court expect
absolute correctness of the facts stated in the proclamation and
in the written Report as the President could not be expected to
verify the accuracy and veracity of all facts reported to him due
to the urgency of the situation. To require precision in the
President's appreciation of facts would unduly burden him and
therefore impede the process of his decision-making. Such a
requirement will practically necessitate the President to be on the
ground to confirm the correctness of the reports submitted to him
within a period that only the circumstances obtaining would be
able to dictate. 3
4. Withholding from legislative inquiry – the SC holds 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. At the
same time, any chamber of Congress which seeks the
appearance before it of a military officer against the consent of
the President has adequate remedies under law to compel such
attendance.4
5. Executive Privilege – the President may not issue a blanket
requirement of prior consent on executive officials summoned by
the legislature to attend a congressional hearing. In doing so, the
Court recognized the considerable limitations on executive
privilege, and affirmed that the privilege must be formally invoked
on specified grounds. 5
6. Legislative Power - the Court ruled that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the

2 PHIL. CONST. art. VII, § 18.
3 Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, available at

https://www.lawphil.net/judjuris/juri2017/jul2017/gr_231658_2017.html (last accessed

Apr. 6, 2018)
4 Gudani v. Sena, G.R. No. 170165, August 15, 2006, available at

http://sc.judiciary.gov.ph/jurisprudence/2006/august2006/G.R.%20No.%20170165.htm
(last accessed Apr. 6, 2018)
5 Senate v. Ermita, G.R. No. 169777, April 20, 2006, available at

http://sc.judiciary.gov.ph/jurisprudence/2006/april2006/G.R.%20No.%20169777.htm
(last accessed Apr. 6, 2018)
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authority to promulgate “decrees.” Legislative power is peculiarly

within the province of the Legislature.6
7. State of Rebellion – the President, in declaring a state of rebellion
and in calling out the armed forces, was merely exercising a
wedding of her Commander in Chief powers. 7
8. Right to Travel – the right to return and right to travel are two
separate and distinct things. The right to return is covered by
territorial rules covered by the country’s respective border laws
and is bound to limitations of national security. The right to travel
is one that pertains to freedom of movement. In this case, Marcos
has the right to travel to any country however his right to return
to Philippines is prohibited.8
9. Executive power - The executive power shall be vested in the
President of the Philippines.9
10. Residual Powers of the President - it seems that whatever power
inherent in the government that is neither legislative nor judicial
has to be executive.10
11. Executive Privilege - It has been defined as “the power of
Government to withhold information from the public, the courts,
and the Congress,” as well as “the right of the President and high-
level executive branch offices to withhold information from
Congress, the courts, and ultimately the public.”11
12. Political Question - connotes what it means in ordinary parlance,
namely, a question of policy. It refers to those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary
authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.12
13. Foreign relations – The President as the head of state is the sole
organ and authorized in the external relations and he is also the

6 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, available at

http://sc.judiciary.gov.ph/jurisprudence/2006/may2006/G.R.%20No.%20171396.htm
(last accessed Apr. 6, 2018)
7 Sanlakas v. Reyes, G.R. No. 159085, February 3, 2004, available at

http://sc.judiciary.gov.ph/jurisprudence/2004/feb2004/159085.htm (last accessed Apr. 6,

2018)
8 Marcos v. Manglapus, G.R. No. 88211, September 15, 1989 available at

https://www.lawphil.net/judjuris/juri1989/sep1989/gr_88211_1989.html (last accessed

Apr. 6, 2018)
9 PHIL. CONST. art. VII, § 1.
10 Marcos, G.R. No. 88211
11 Ermita, G.R. No. 169777
12 Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957 available at

https://www.lawphil.net/judjuris/juri1957/feb1957/gr_l-10520_1957.html (last accessed

Apr. 6, 2018)
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country's sole representative with foreign nations, He is the

mouthpiece with respect to the country's foreign affairs.13
14. Treaty-making – the President has the sole authority to negotiate
with other states and enter into treaties but this power is limited
by the Constitution with the 2/3 required vote of all the members
of the Senate for the treaty to be valid.14
15. Military Bases - After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of
America concerning military bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.15
16. Right to Information - Intended as a splendid symmetry to the
right to information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution which
provides that subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public disclosure
of all its transactions involving public interest.16
17. Social Justice - The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 17
18. Human Rights – Constitution provide appropriate legal measures
for the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection.18
19. President’s Immunity from suit - 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

13 Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005, available at

http://sc.judiciary.gov.ph/jurisprudence/2005/jul2005/158088.htm (last accessed Apr. 6,

2018)
14 Id.
15 PHIL. CONST. art. XVIII, § 25.
16 Province of North Cotabato vs. GRP, G.R. No. 183591, October 14, 2008, available at

http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/183591.htm (last accessed

Apr. 6, 2018)
17 PHIL. CONST. art. XIII, § 3.
18 PHIL. CONST. art. XIII. § 17 ¶ 3
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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.19

IV. Discussion
1. The President cannot prevent the employees from the Executive
Department from attending the legislative inquiry to shed light to
the President’s war against drugs.20 It has been held that even if
the President had earlier disagreed for such officers to attend the
hearing, he is nonetheless obliged to comply with the final orders
of the court. Such refusal of the President is still subject to judicial
relief. The Constitution grants the legislative to conduct inquiries
in aid of legislation. It is recognized that the Congress may not
interfere with the President’s commander-in-chiefship, and by
virtue of the separation of powers doctrine granted by the
Constitution, the President may not interfere as well with the
Congress’ right to conduct legislative inquiries.
2. However, there are some employees or officers to which the
President may invoke the Executive Privilege. Privilege is
properly invoked in relation to specific categories of information
and not to categories of persons.21 Also, The President has
constitutional authority to prevent a member of the armed forces
from testifying before a legislative inquiry, 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.22
3. Executive privilege, whether asserted against Congress, the
Courts, or the public, is recognized only in relation to certain
types of information of a sensitive character. The extraordinary
character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of
disclosure.23 Thus, officers may invoke such privilege but still
subject to judicial review depending on the information being
inquired upon.
4. As to the the bombing incident, the president may exercise his
power as Commander-in-Chief. The president has a set of
prerogatives depending on the situation, and each power must
be concurred by certain requisites for it to be valid.

19 David, G.R. No. 171396
20 Ermita, G.R. No. 169777
21 Id.
22 Gudani, G.R. No. 170165
23 Ermita, G.R. No. 169777
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5. Suspending the Writ of Habeas Corpus - Two conditions must

concur for the valid exercise of the authority to suspend the
privilege of the writ (a) there must be an invasion, insurrection, or
rebellion or imminent danger thereof, and (b) public safety must
require the suspension of the privilege.24
6. Declaring a state of rebellion - The constitution requires the
concurrence of two conditions namely 1) an actual invasion or
rebellion and that 2) public safety requires the exercise of such
power. The President’s authority to declare a state of rebellion
springs in the main from her powers as chief executive and draws
strength from the commander-in-chief powers.25
7. Declaring Martial Law - President's power to declare martial law
is not subject to any condition except for the requirements of
actual invasion or rebellion and that public safety requires it. 26
8. However, whichever power exercised by the President may be
questioned upon the instance of a person suing in his capacity
as a citizen. Under the third paragraph of Section 18, Article VII,
a petition filed pursuant therewith will follow a different rule on
standing as any citizen may file it.27 Such person may question
the validity and sufficiency of the factual basis of the President’s
exercise of his emergency powers.
9. The constitutional validity of the President’s proclamation of
martial law or suspension of the writ of habeas corpus is first a
political question in the hands of Congress before it becomes a
justiciable one in the hands of the Court. If the Congress
procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it,
then the Court can step in, hear the petitions challenging the
President’s action, and ascertain if it has a factual basis. If the
Court finds none, then it can annul the proclamation or the
suspension.28
10. To reiterate what has been discussed in the applicable laws
above, political question connotes what it means in ordinary
parlance, namely, a question of policy. It refers to those
questions which, under the Constitution, are to be decided by
the people in their sovereign capacity; or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with

24 Lansang v. Garcia, G.R. No. L-33964, December 11, 1971 available at

https://www.lawphil.net/judjuris/juri1971/dec1971/gr_33964_1971.html (last accessed

Apr. 6, 2018)
25 Sanlakas, G.R. No. 159085
26 Lagman, G.R. No. 231658
27 Id.
28 Fortun v. Arroyo, G.R. No. 190293, March 20, 2012, available at

http://sc.judiciary.gov.ph/jurisprudence/2012/march2012/190293.htm (last accessed Apr.

6, 2018)
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issues dependent upon the wisdom, not legality, of a particular

measure.29
11. Also, the validity of declaration will depend upon the sufficiency
of factual bases. Several events transpired that shall validate
exercise of the President’s emergency powers:
a. The leadership of the Communist Party has called all its
supporters and its armed wing, the People's Liberation
Army, to intensify efforts to “liberate the country from
oligarchs and fascists.
b. Rumors are rife that an unholy alliance between the drug
syndicates and the communists has been formed to
assassinate the President and to capture key officials of
the administration.
c. The Secretary of the Department of National Defense
and the National Security Adviser also gave a
confidential report to the President that a retired general,
who also served as the superintendent of the Philippine
Military Academy, has been recruiting cadets in the
Academy to join a newly established group named
“Renew the Armed Forces Movement.”
d. A mall in the President's hometown in the Southern
Philippines was bombed.
12. In the incident wherein a Filipino judge in the International
Criminal Court (ICC) tipped the Philippine ambassador to the
United Nations that the preliminary examination that was
conducted by the Chief Prosecutor of the ICC is about to be
concluded due to the rampant human right violations has no leg
to stand on the Philippines. Although the President had signed
the Rome Statute, it did not transmit the signed copy of it to the
Senate for ratification.30 Such act of the President was upheld
because he may exercise his discretion as the power to ratify
treaties is a recognized function of the President, subject only to
the concurrence of the Congress. The signature is primarily
intended as a means of authenticating the instrument and as a
symbol of the good faith of the parties. It is usually performed by
the states authorized representative in the diplomatic mission.
Ratification, on the other hand, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representative.31 The signature does not signify the final consent
of the state to the treaty. It is the ratification that binds the state
to the provisions thereof. Therefore, the Rome Statute which
created the International Criminal Court (ICC), not being ratified
by the Philippines, cannot acquire jurisdiction.

29 Tañada, G.R. No. L-10520
30 Pimentel, G.R. No. 158088
31 Id.
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13. The President may validly issue Executive Orders to protect the
welfare of labor, local and overseas.32 Furthermore, this could
also fall under his exercise of his residual powers which is
enshrined in our Constitution.33 It may be said that whatever
power inherent in the government that is neither legislative nor
judicial has to be executive.34 It is also the prime duty of the
Government is to serve and protect the people"35 and that "the
maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.36 The power involved is the President's residual
power to protect the general welfare of the people.37 Moreover,
even if the right to travel is a right vested upon the people, it is
still subject to the interest of national security, public safety, or
public health, as may be provided by law.38 This matter is
different from when President Arroyo’s PP 1107 was declared
unconstitutional insofar as it grants President Arroyo the
authority to promulgate “decrees.” Legislative power is peculiarly
within the province of the Legislature. The President issued
Executive Orders, which is an exercise of his executive powers
as granted to him.39 With this, the President is merely
implementing the provisions of the Constitution.
14. 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.40
15. As held in the Constitution, foreign bases shall not be allowed in
the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for
that purpose.41 This means that even after the expiration of the
agreement between the US and the Philippines, the country may
still validly enter into defense treaties provided that it be made
under a treaty. However, such matter must be addressed to the

32 PHIL. CONST. art. XII, § 3.
33 PHIL. CONST. art. VII, § 1.
34 Marcos, G.R. No. 88211
35 PHIL. CONST. art. II, § 4.
36 PHIL. CONST. art. II, § 5.
37 PHIL. CONST. art. VII, § 1.
38 PHIL. CONST. art. III, § 6.
39 PHIL. CONST. art. VII, § 1.
40 David, G.R. No. 171396
41 PHIL. CONST. art. XVIII, § 25.
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public as it involves a transaction involving public interest.42

The policy of full public disclosure enunciated in Section 28 of
Article II which complements the right of access to information on
matters of public concern found in the Bill of Rights.43 The right
to information guarantees the right of the people to demand
information, while Article II Section 28 recognizes the duty of
officialdom to give information even if nobody demands.44

V. Recommendations
1. Senate Legislative Inquiry

Recommendation: Invoke Executive Privilege

- It has been discussed that the President may invoke executive

privilege when it requires. It is recommended that the President
should require all government employees under the Executive
Branch to seek permission first from the Office of the President
before proceeding to any legislative inquiry, and let the Court
decide upon the validity of the privilege invoked.
- The President has the constitutional right to require such
employees to seek permission first from the Office. Therefore,
the executive branch is afforded with protection from the
possibility that privileged information may be extracted through
the inquiries
- However, such prerogative of the President is still subject to
judicial review. If it may be proven that the information requested
in the inquiry in aid of legislation is not covered by the executive
privilege, the President may not prevent the employees from
attending such legislative inquiry upon order of the court. It must
also be stressed that privilege is based on information to be
extracted, and not over the person.45

2. Rebellious Acts

The President is recommended to perform the following action in a

chronological manner beginning from the most to the least benign if
such action taken does not effect its purpose. These are granted as a
sequence of graduated powers by the Constitution.

First Action: Declare State of rebellion and call out the armed forces

42 PHIL. CONST. art. II, § 28.
43 PHIL. CONST. art. III, § 7.
44 Province of North Cotabato, G.R. No. 183591
45 Ermita, G.R. No. 169777
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- This is the most benign out of the emergency powers

granted to the President. It is to suppress the lawlessness
in such places where it requires the assistance of the
armed forces. The President, in declaring a state of
rebellion and in calling out the armed forces, was merely
exercising a wedding of her Commander in Chief powers.46

Second Action: Suspend the Writ of Habeas Corpus

- As established from the jurisprudence discussed above,

this requires the element of invasion or rebellion. And that
the public safety requires it. A negative side of the action
may lead to the abuse of powers by low-ranking officials as
the suspension means warrantless arrests shall be made.

Third Action: Declare Martial Law

- This is what is held to be the least benign. This action is

however only recommended when the situation calls for it
and when the action preceded to it did not solve the
lawlessness in the country.

3. Preliminary Examination in the International Criminal Court

Recommendation: Take no action.

- The International Criminal Court has no jurisdiction upon

the country as the Rome Statute was not ratified. The
President merely signed the statute and such does not
signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof.47

4. Executive Orders prohibiting OFWs from being deployed in

Arab countries and calling state leaders as “stinky and
inutile sex addicts.”

Recommendation: Refrain from making degrading and inappropriate

remarks.

46 Sanlakas, G.R. No. 159085
47 Pimentel, G.R. No. 158088
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- The President validly issued the Executive Orders. With

regards to the remarks made, the President may not be
held liable for such as he is immune from suit.48 The
downside of such remarks made might make international
relations at stake. It is recommended that he maintains
good relationships with other countries as the President
represents the country.

5. Possibility of a mutual defense treaty with China

Recommendation: Enter into treaty and address it to the public.

- The President may do so as the country may still validly

enter into defense treaties provided that it be made under
a treaty.49 However, such matter must be addressed to the
public as it involves a transaction involving public interest.50

For the President’s consideration.

(SGD.) CAREN Q. VINIEGRA

Chief Presidential Legal Counsel

48 David, G.R. No. 171396
49 PHIL. CONST. art. XVIII, § 25.
50 PHIL. CONST. art. II, § 28