The Residual Power of the President of the Philippines

 

As declared by the Supreme Court, the residual power it is the power borne by the President’s duty to preserve and defend the Constitution.  It may also be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed.  (Marcos v. Manglapus, 177 SCRA 668) 

Suarez (2015) cited Hyman where the latter advanced the view that an allowance of discretionary power is unavoidable and is best lodged in the President. 

This power has been further enunciated by the Supreme Court where it stated that “The Presidents power to conduct investigations to aid him in ensuring the faithful execution of laws in this case, fundamental laws on public accountability and transparency is inherent in the President’s powers as the Chief Executive.”    Thus, the Executive Department is given much leeway in ensuring that our laws are faithfully executed.  (Biraogo et al. vs. The Philippine Truth Commission of 2010, G.R. Nos. 192935 and 193036, December 7, 2010). 

As Nolledo (1993) explains:  “The President is enjoined to do justice to every man.  The President must consecrate himself to the service of the Nation.  He holds the highest position within the gift of his people, the latter trusting that he is offering himself to the service of the whole nation, not to the service of himself or those close to him.    In no case must the President violate the sacred duties of being the Head of State and Government.  His service belongs to the people.   He holds the highest and exalted position of the land as a trust.  If he becomes unworthy of that trust, he must resign because he becomes a disgrace to the presidency.”

In the exercise of the power to enforce and administer laws, the President of the Philippines assumes a plenitude of authority.   This corresponding awesome responsibility makes him the most influential person in the land.  In the hands of a Magsaysay or Quezon, it can be an instrument to uplift a common man; in the hands of a Marcos, it can deprave and pervert it into a bludgeon of oppression.    Indeed, the impact of the Presidency upon the nation is tremendous.  (Cruz, 1991).

Can the residual powers of the President of the Republic of the Philippines be the subject of abuse? 

A study was conducted on how the President’s "implied" and "residual" powers can be constitutionally questioned. First, the President can issue executive orders without prior legislative sanction;  Second,  the President can unilaterally reorganize government agencies without regard for the functional objectives and constitutional independence of other institutions; Third, the President can control appointments to key public offices originally intended to counterbalance executive authority; Fourth, the President can largely sought to insulate himself/herself from accountability for impasses that resulted from institutional deadlocks which himself/herself has created;  Fifth, the President can withhold funds already appropriated when “revenues are scarce”;  Sixth, the President can control the national budget and delay the release of the local government units’ just share in the national taxes (Internal Revenue Allotment or IRA) to use the same as a political leverage to attract potential allies and pressure local opponents.

The residual power of the President of the Philippines can result to a strong President but a weaker legislature and judiciary. The system may suffer from limited or ineffective constitutional checks on the Executive branch.   The President may often aggrandize his/her power by referring to the separation of powers to justify assertions of authority and to avoid oversight from other branches or governmental bodies.  

In the case of Romulo L. Neri vs. Senate Committee on Accountability of Public Officers and Investigations et al. (En Banc), G.R. No. 180643, September 4, 2008, Romulo Neri, the Secretary of the National Economic Development Authority (NEDA), testified before the Senate that he was offered a bribe to endorse a particular procurement contract. When Senators asked about the President's involvement in approving the contract, Neri invoked the executive privilege afforded to him by E.O. No. 464.    After the Senate ordered his arrest for refusing to answer its questions, Neri filed a petition with the Supreme Court. The Court upheld the claim of executive privilege. 

In this case, the Supreme Court relied on a conception of broad residual executive power to justify the expansion of the privilege, even against constitutional rights to public information.

References:

Rose-Acherman S., Desierto D. & Volosin N. (2010), “Hyper-Presidentialism:  Separation of Powers without Checks and Balances in Argentina and the Philippines”  Berkeley Journal of International Law, Vol. 29 Issue 1, University of California School of Law.

 

Cruz, I. (1991).  Philippine Political Law.   Central Law Book Publishing, Inc.

 

Nolledo, J. (1993).  The 1987 Constitution with Explanations.  1993 Revised Edition. National Bookstore, Inc.

Suarez, R. (2015).  Statutory Construction.  Rex Bookstore, Rex Printing and Publishing Inc.

 

The Awesome Appointive Power of the President of the Philippines

The power of appointment has traditionally been recognized as executive in nature and is vested by the Constitution in the President of the Philippines under Article VII Section 16.  The legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere (Pimentel et al. vs.  Ermita et al., G.R. No. 164978, En Banc, October 13, 2005).

In Sarmiento III v. Mison, 156 SCRA 149, the President can appoint four groups of officers:  (a)  heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;  (b) all other officers of the Government whose appointments are not otherwise provided for by law; (c) those whom the President may be authorized by law to appoint; (d) officers lower in rank whose appointments Congress may by law vest in the President alone.    Only those covered under the first group of officers require confirmation by the Commission on Appointments, while the other group of officers do not need confirmation. 

Hence, the Commissioner of the Bureau of Customs and the Chairman of the Commission on Human Rights (Bautista v. Salonga, 172 SCRA 160, April 13, 1989) are not covered under the first group of officers, hence do not need confirmation by the Commission on Appointments.  

As a rule the President seeks to appoint his/her allies to important positions in the executive branch and in agencies, courts, and other nominally independent bodies.   In the Philippines, the President has considerable influence over appointments under the 1987 Constitution.  Only two institutions limit the President's power to appoint: Congress, through  the Commission on Appointments (COA), and the seven-member Judicial and Bar Council (JBC).       As held in Pimentel et al. vs.  Ermita et al., G.R. No. 164978, En Banc, October 13, 2005, the President can also make a temporary appointments to fill an office for a limited time until the appointment of a permanent occupant to the office.  This broad interpretation of the President's appointment power limits the Commission on Appointments from acting as a meaningful check on the President. 

            Under the 1987 Constitution, the President appoints officials who are intended to check the use of his/her appointing authority such as the members of the Supreme Court, the Office of the Ombudsman, and the Civil Service Commission.      This by itself creates a clout of influence by the President to these presidential appointees.    

Political appointments permeate the civil service.  The President directly appoints 3,500 third-level officers and another 6,500 lesser officials that are not reviewed by the Commission on Appointments.  This is now the condition where the president appoints more people throughout the bureaucracy – to the point where the President of the Philippines has more appointments to make than the president of the United States – some 10,000 compared to 9,000. 

Reference:

Rood, S. (2012). “Have Philippine Presidents Overcome the Governance Impact of the ‘Hollywood Years?’”  The Asia Foundation