Who will succeed President Duterte if he resigns from office?

President Rodrigo Duterte for the nth time said he was ready to “step down and retire.”

Based on news reports, he made this statement in one of his recent speaking engagements.

Is he serious?

Or is it just one of his jokes?

I cannot say for sure if he is really serious or simply joking this time.

Because only he can say with certainty what is on his mind.

But what if he is serious?

Can he step down and retire?

Is he allowed to resign from office?

The answer is of course a resounding YES.

Now if he later resigns, can he pick his successor?

The answer is a big NO.

Why?

Because the 1987 Constitution, which is the very constitution he is duty-bound to uphold and defend, is quite clear on this matter.

It says that if the President resigns from office, it is the Vice-President who will succeed him.

Reference:

  • Section 8, Article VII (Executive Department) of the 1987 Constitution
Advertisements

Suspension of the privilege of the writ of habeas corpus in Mindanao: 10 things you need to know whenever the President suspends the privilege of the writ of habeas corpus

Photo courtesy of injurycaraccident-la.com

Our Constitution is clear in so far as the suspension of the privilege of the writ of habeas corpus is concerned.

It says in essence that it is not automatic whenever the President declares martial law.

This is why President Rodrigo Duterte also had to order its suspension simultaneously with the declaration of martial law in Mindanao some days ago.

While I may have doubts on the validity of the action taken, I will for now refrain from making any definitive conclusion.

Instead, I will discuss the ten (10) things you need to know whenever the President suspends the privilege of the writ of habeas corpus. 

  1. Invasion or rebellion, when the public safety requires it

There is no question that the President has the power to suspend the privilege of the writ of habeas corpus.

This is clear in our Constitution.

But you need to remember that he can exercise it only in case of invasion or rebellion, when the public safety requires it.

This means he can suspend the privilege of the writ of habeas corpus only if there is either invasion or rebellion plus the public safety requires it.

  1. Sixty (60) days

Like in the declaration of martial law, the suspension of the privilege of the writ of habeas corpus will only be good for 60 days, unless, of course, it is revoked or extended.

  1. Forty-eight (48) hours

Within 48 hours from the suspension of the privilege of the writ of habeas corpus, the President has to submit a report to the Congress either in person or in writing.

By Congress, it refers to both the Senate and the House of Representatives.

  1. Power of Congress to revoke

The Congress may revoke the suspension of the privilege of the writ of habeas corpus by the President.

And it may do so by a joint vote of at least a majority of all its members in a regular or special session.

The President cannot set aside the decision of the Congress to revoke it.

  1. Power of Congress to extend

In the same manner, the Congress may extend the suspension of the privilege of the writ of habeas corpus by the President.

But it may only do so if all of the following are present:

(a)     The extension is upon the initiative of the President,

(b)     The invasion or rebellion persists, and

(c)     The public safety requires it.

It will also be the Congress who will determine the period of extension.

  1. Twenty-four (24) hours

If it is not in session, the Congress has to convene in accordance with its rules and without need of a call within 24 hours following the suspension of the privilege of the writ of habeas corpus.

  1. Power of the Supreme Court to review

In an appropriate proceeding filed by any citizen, the Supreme Court may review the sufficiency of the factual basis of the suspension of the privilege of the writ of habeas corpus or its extension.

  1. Thirty (30) days

The Supreme Court has 30 days from the filing of the appropriate proceeding to promulgate its decision.

  1. Persons judicially charged for rebellion or offenses inherent in or directly connected with invasion

The suspension of the privilege of the writ of habeas corpus applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

  1. Three (3) days

During the suspension of the privilege of the writ of habeas corpus, any person arrested or detained has to be judicially charged within 3 days. Because, if not, he has to be released.

Writ of Habeas Corpus

The court in general issues the writ of habeas corpus to order the person detaining another to produce the body of the person detained at a designated time and place and for him to show that the detention is legal.

[Reference: Article VII (Executive Department), Section 18 of the 1987 Constitution and Rule 102 of the Rules of Court]

Martial law in Mindanao: 10 things you need to know whenever the President declares martial law

Photo courtesy of northboundasia.com

A local terror group known as Maute began its series of attacks in Marawi City on May 23, 2017.

Due to this incident, President Rodrigo Duterte had to cut short his trip abroad and declared martial law in Mindanao.

While I may have doubts on the validity of the action taken, I will for now refrain from making any definitive conclusion.

Instead, I will discuss the ten (10) things you need to know whenever the President declares martial law.

  1.  Invasion or rebellion, when the public safety requires it

There is no question that the President has the power to declare martial law.

This is clear in our Constitution.

But you need to remember that he can exercise it only in case of invasion or rebellion, when the public safety requires it.

This means he can declare martial law only if there is either invasion or rebellion plus the public safety requires it.

  1.  Sixty (60) days

Once declared, martial law will only be good for 60 days, unless, of course, it is revoked or extended.

  1.  Whole or any part of the country

The whole or any part of the country may be placed under martial law.

In so far as the martial law recently declared is concerned, it is limited only to Mindanao.

  1.  Forty-eight (48) hours

Within 48 hours from the declaration of martial law, the President has to submit a report to the Congress either in person or in writing.

By Congress, it refers to both the Senate and the House of Representatives.

  1.  Power of Congress to revoke

The Congress may revoke the martial law declared by the President.

And it may do so by a joint vote of at least a majority of all its members in a regular or special session.

The President cannot set aside the decision of the Congress to revoke it.

  1.  Power of Congress to extend

In the same manner, the Congress may extend the martial law declared by the President.

But it may only do so if all of the following are present:

(a)     The extension is upon the initiative of the President,

(b)     The invasion or rebellion persists, and

(c)     The public safety requires it.

It will also be the Congress who will determine the period of extension.

  1.  Twenty-four (24) hours

If it is not in session, the Congress has to convene in accordance with its rules and without need of a call within 24 hours following the declaration of martial law.

  1.  Power of the Supreme Court to review

In an appropriate proceeding filed by any citizen, the Supreme Court may review the sufficiency of the factual basis of the declaration of martial law or its extension.

  1.  Thirty (30) days

The Supreme Court has 30 days from the filing of the appropriate proceeding to promulgate its decision.

  1.  State of martial law

Finally, a state of martial law does not suspend the operation of the Constitution.

Neither does it supplant the functioning of the civil courts or legislative assemblies.

Nor does it authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function.

And it does not automatically suspend the privilege of the writ of habeas corpus.

[Reference: Article VII (Executive Department), Section 18 of the 1987 Constitution]

When can the President suspend the privilege of the Writ of Habeas Corpus?

habeas-corpusWhile delivering a speech in one event in Davao City some days ago, President Rodrigo Duterte has threatened to suspend the privilege of the writ of habeas corpus.

This is, he warned, if the state of lawlessness, particularly the problem on illegal drugs, continues in the country.

Writ of Habeas Corpus

The court in general issues the writ of habeas corpus to order the person detaining another to produce the body of the person detained at a designated time and place and for him to show that the detention is legal.

1987 Constitution

But does the 1987 Constitution even allow the President to suspend the privilege of the writ of habeas corpus? Yes.

If this is so, does it allow him to suspend it in all cases? No.

In case of invasion or rebellion, when the public safety requires it

Then when can he suspend it? Only in case of invasion or rebellion, when the public safety requires it.

But you need to remember that invasion or rebellion alone is not enough.

Why? Because it is also essential that the public safety requires it.

This means the President can suspend the privilege of the writ of habeas corpus only if there is either invasion or rebellion plus the public safety requires it.

If the public safety does not require it, he cannot suspend it even when there is a clear case of invasion or rebellion.

But what if there is neither invasion nor rebellion and yet it is shown that the public safety requires it. Can the President suspend the privilege of the writ of habeas corpus? No.

Why? Because our constitution is clear in that without invasion or rebellion, he cannot suspend it even when the public safety requires it.

[Reference: Article VII (Executive Department), Section 18 of the 1987 Constitution, Rule 102 of the Rules of Court, and rappler.com]

Which Presidential appointments require CA confirmation?

Photo courtesy of comappt.gov.ph
Photo courtesy of comappt.gov.ph

Four groups of officers whom the President shall appoint

There are four groups of officers whom the President shall appoint.

These are the following:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him (President) in this (1987) Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and,

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

Who are the “other officers whose appointments are vested in him (President) in this (1987) Constitution” referred to in the first group?

Among the first group are the “other officers whose appointments are vested in him (President) in this (1987) Constitution.”

These officers include the Chairmen and Members of the Constitutional Commissions (such as the Civil Service Commission, the Commission on Elections and the Commission on Audit) and the Regular Members of the Judicial and Bar Council.

These officers used to include the sectoral (party-list) representatives to the House of Representatives since our Constitution had given the President the power to fill up by appointment the seats reserved for them until a law is passed.

Only the appointments of the officers belonging to the first group require the confirmation (consent) of the Commission on Appointments (CA)

Our Constitution and several Supreme Court decisions are clear in that only the appointments of the officers belonging to the first group require CA confirmation (consent).

Stages in the appointments of the officers belonging to the first group

The appointments of these officers are initiated by a nomination. If the CA confirms (consents), the President then appoints.

Of course, the nominees have to accept their appointments to complete the process.

In other words, the appointments of these officers go through the following stages: (a) nomination by the President; (b) confirmation (consent) by the CA; (c) appointment by the President; and, (d) acceptance of the appointment by the nominee.

When is there acceptance by the nominee?

There is acceptance by the nominee when he takes the oath of office and assumes the duties of that office.

Appointments of the officers belonging to the second, third, and fourth groups require no CA confirmation (consent)

In stark contrast, the appointments of the officers belonging to the second, third, and fourth groups, such as the Commissioner of the Bureau of Customs, the Chairman and Members of the Commission on Human Rights, and the Chairman and Members of the National Labor Relations Commission, require no CA confirmation (consent).

This holds true even if they may be higher in rank compared to some officers belonging to the first group.

For instance, the appointment of the Central Bank (now Bangko Sentral ng Pilipinas) Governor requires no CA confirmation (consent) even if he is higher in rank compared to that of a colonel of the Armed Forces of the Philippines or a consul in the Consular Service.

Does the President have the prerogative to voluntarily submit the appointments of the officers belonging to the second, third, and fourth groups to the CA for confirmation?

The President has no prerogative to voluntarily submit the appointments of the officers belonging to the second, third, and fourth groups to the CA for confirmation.

Neither does the CA have the prerogative to accept and subject the appointments of these officers for confirmation upon the President’s voluntary submission.

Why?

Because, as the Supreme Court had said in one case, “neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none.”

May Congress by law require CA confirmation on the appointments of the officers belonging to the second, third, and fourth groups?

Congress may not by law require CA confirmation on the appointments of the officers belonging to the second, third, and fourth groups.

If such law is passed, it will be struck down for being unconstitutional to the extent of such requirement, because, as the Supreme Court had essentially said in another case, it will amend the Constitution by legislation, which is evidently not allowed.

[References: Section 16, Article VII of the 1987 Constitution, Ulpiano P. Sarmiento III and Juanito G. Arcilla vs. Salvador Mison, et. al. (G.R. No. 79974, December 17, 1987), Mary Concepcion Bautista vs. Senator Jovito R. Salonga, et. al. (G.R. No. 86439, April 13, 1989), Peter John D. Calderon vs. Bartolome Carale, et. al. (G.R. No. 91636, April 23, 1992), Article IX of the 1987 Constitution, Teresita Quintos-Deles, et. al. vs. The Commission on Constitutional Commissions, et. al. (G.R. No. 83216, September 4, 1989), Paragraph 2, Section 5, Article VI, in relation to Section 7, Article XVIII, of the 1987 Constitution, Section 8, Article VIII of the 1987 Constitution, http://comappt.gov.ph/, and CA Primer]

When can the President declare martial law?

beforeitsnews-com
Photo courtesy of beforeitsnews.com

Although quick to add it was not feasible, President Rodrigo Duterte admitted days before his 100th day in office that there were times when he was tempted to declare martial law due to our country’s problem on illegal drugs.

He made such admission while delivering a speech during his visit to the Jewish Association of the Philippines in a synagogue in Makati City.

You will recall that this was already the second time he made his desire to declare martial law known to the public.

The first was in August 2016, where he angrily said in response to the criticism of Chief Justice Maria Lourdes Sereno: Would you rather I declare martial law?

image-slidesharecdn-com
Photo courtesy of image.slidesharecdn.com

But does the 1987 Constitution even allow the President to declare martial law? Yes.

If this is so, does it allow him to declare it in all cases? No.

Then when can he declare it? Only in case of invasion or rebellion, when the public safety requires it.

But you need to remember that invasion or rebellion alone is not enough.

Why? Because it is also essential that the public safety requires it.

This means the President can declare martial law only if there is either invasion or rebellion plus the public safety requires it.

If the public safety does not require it, he cannot declare it even when there is a clear case of invasion or rebellion.

But what if there is neither invasion nor rebellion and yet it is shown that the public safety requires it. Can the President declare martial law? No.

Why? Because our constitution is clear in that without invasion or rebellion, he cannot declare it even when the public safety requires it.

[Reference: Article VII (Executive Department), Section 18 of the 1987 Constitution]

Is it correct for the Senate to cancel an impeachment trial due to the resignation of an impeached public officer?

Remember former Ombudsman Merceditas Gutierrez? In March 2011, the House of Representatives voted to impeach her for betrayal of public trust.

Her case was then sent for trial to the Senate sitting as an impeachment court.

But days before her trial, she resigned from office, which the President accepted.

Because of her resignation, the Senate cancelled her trial.

But is it correct for the Senate to cancel an impeachment trial due to the resignation of an impeached public officer?

While there is no prohibition to this effect, it is preferred for the Senate to proceed with the trial.

Why? In order to know the truth, which is important, because, if innocent, she should be acquitted, and, if guilty, she should be convicted.

Above all, if guilty, for her to surely suffer all the penalties fixed for impeachment.

Bear in mind that the penalty for impeachment is not only removal from office.

It also includes disqualification to hold any office under the Republic of the Philippines.

[References: Section 2 and Section 3(7) of Article XI (Accountability of Public Officers) of the 1987 Philippine Constitution]