Is the Chief Justice in the line of succession to the Presidency?

Matias Defesor said that the Chief Justice “is the most important appointment vested by the Constitution to the President” being fifth in line of succession to the Presidency.

Similarly, in his January 12 column in Manila Standard, Emil Jurado, a veteran journalist and lawyer, stated the following :

But a hiatus in the office of the chief justice poses clear and present danger to the country. There is the order of succession to the presidency: a Chief Justice is fifth in line. If there’s no President, Vice President, Senate President and Speaker of House of Representatives proclaimed by June 30, who will take over the country?

Is the Chief Justice really fifth in order of succession to the Presidency?

The answer in the negative. There is no provision in the Constitution that says expressly or by implication that the Chief Justice is fifth in line of succession to the Presidency.

To be sure, let me quote the relevant provisions of the Constitution on presidential succession.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

Even in the United States, the Chief Justice is not in the line of succession to the Presidency per Presidential Succession Act of 1947.

Appointment of New Chief Justice

Among the arguments proffered by several legal luminaries on whether or not the incumbent president may appoint a new chief justice vis-à-vis the constitutional prohibition against ‘midnight appointment' and command that any vacancy shall be filled within 90 days from the occurrence thereof, the one submitted by Fr. Bernas, which is mainly anchored on the principles of statutory construction, is more convincing.

Bernas sees no conflict between such prohibition (Sec. 15, Art. VII) and command (Sec. 4.1, Art. VIII) of the Constitution if the new president appoints the next chief justice.

Let me reproduce in its entirety the article written by Bernas on this issue, viz :

I had originally planned to continue my dialogue with CHEd on the issue of collegiality, but the issue of who should appoint the next chief justice has grown more sexy. Collegiality can wait.

Since, however, there are so many issues involved regarding the appointment of a chief justice after CJ Puno retires on May 17, I shall write in telegraphic style.
It is important to remember that the prohibition against appointments two months before a presidential election until the end of the incumbent’s term was inspired by the reprobation by the Supreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.
But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.

But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.

However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?

Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until Aug. 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.

The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations.] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.

Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will be by May 17 or soon after.

The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution.)

Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.

Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.

The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.

The JBC is duty-bound to submit a list, but only when there is a vacancy, not necessarily sooner.

However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.

In substantive issues, the chief justice has only one vote out of 15. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the 14 remaining justices will not be able to temporarily run the Supreme Court properly without a chief justice is to insult all of them, one of whom will almost certainly be the next chief justice.

Problems that can arise during the coming elections do not necessarily need a chief justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a chief justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of 15. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not 15.

The only instance I can think of where the presence of the chief justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.

What is dangerous for the nation is not the temporary absence of a chief justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing, weighted as it is by, among others, threatening endless reconsideration of decisions.

My suspicion arising from all of this is that the rush to appoint a chief justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.

A final word. Those who want President Arroyo to appoint the next chief justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt, though, that CJ Puno would want to leave that as his legacy after a distinguished career in law.

Why Ban Airsoft During Election Period?

Starting 9 February 2010 a total gun ban will be in effect nationwide until 9 June 2010 according to Comelec Resolution 8714 dated 14 December 2009.

Many airsoft enthusiasts ask this question : “Are airsoft guns included in the Comelec gun ban?”.

Section 2 of the said Resolution defines “firearm” as follows:

Firearm shall refer to the “firearm” as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real.

Is the Comelec correct in including airsoft guns in the definition of firearm?
Consider the definition of ‘firearm’ in existing laws, rules and regulations.

Section 877 of the Revised Administrative defines “firearm” as follows:

Firearms or arms as herein used, include rifles, muskets, carbines, shotguns, revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot shell, or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles except such as being of small caliber and limited range and use as toys. The barrel of any firearm shall be considered a complete firearm.

PNP Circular No. 8 (13 September 2006) defines airsoft rifle/pistol as follows:

Airsoft rifle/pistol herein used includes battery operated, spring and gas type powered rifles/ pistol which discharge plastic or rubber pellets only as bullets or ammunition.

Airsoft rifle/pistol as a toy shall refer to those manufacture purposely as replica of a real armament with all its specifications and corresponding intellectual property sign or logo.

It is clear from the foregoing definitions that an airsoft gun is classified as a ‘toy airgun’ by PNP regulations and falls under the exception of an existing statute defining what a firearm is.

Since an airsoft gun is not a firearm (but rather a toy airgun), I submit that the Comelec has erred in expanding the definition of firearm which now includes airsoft guns?

Basic is the rule in administrative law that administrative agencies (such as the Comelec) may exercise only such powers as are expressly granted or delegated to them by law. The authority of the Comelec to regulate the carrying and transporting of “firearms” during election period is an express delegation of power derived from law (i.e., Sec. 32 and 33 of R.A. 7166).

The Comelec is supposed to issue rules and regulations that are consistent with existing laws and must act within the confines of its delegated authority under R.A. 7166.

Moot and Academic

Does the lifting of Proclamation No. 1959 render the petitions of Jovito Salonga et. al. challenging the legality of Proclamation No. 1959 which imposed martial law in Maguindanao moot and academic?

A case is considered moot and academic when it ceases to present a justiciable controversy by reason of supervening events. In the case of the present petitions, the supervening event is the lifting of Proclamation No. 1959 on 12 December 2009.

As a general rule, such petitions may be dismissed on ground of mootness. However, this general rule admits of exceptions, namely :

1) there is a grave violation of the Constitution.

2) the exceptional character of the situation and the paramount public interest is involved.

3) when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public.

4) the case is capable of repetition yet evading review.

I submit that the above exceptions are present and therefore the Supreme Court is bound to resolve the petitions filed by Salonga and other personalities.

Can GMA Run For Congresswoman?

There is an ongoing debate as to whether President Gloria Arroyo would be considered as having forfeited her position should she run for congresswoman in Pampanga. Let me submit what I understood about this issue.

Before the passage of Fair Election Act (Republic Act No. 9006), any elective official including a President is deemed resigned from his office upon filing of his certificate of candidacy. The Omnibus Election Code (B.P. Blg. 881, Sec. 67) provides :

Sec. 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

In the landmark case of Dimaporo vs. Mitra (G.R. No. 96859, 15 October 1991), the Supreme Court sustained the constitutionality of Speaker Mitras’ administrative act of erasing Ali Dimaporo name from the Roll of the House, pursuant to Sec. 67 of B.P. 881. The High Tribunal underscored the basic concept that a public office is a public trust - it is created for the interest and benefit of the people. As such, the holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his office.

However, Sec. 67 of B.P. 881, was repealed by Sec. 14 of R.A. 9006 in 2001. The repealing clause provides :

Section 14. Repealing Clause. – Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

R.A. 9006 was declared constitutional by no less than the Supreme Court in Farinas vs. Comelec (G.R. No. 152161, 10 December 2003). The SC said that Congress is not precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra, upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws — the fair, honest and orderly election of truly deserving members of Congress — is achieved.

Incidentally, Justice Cruz, argued that the repeal of Sec. 67 of B.P. 881 by Sec. 14 of R.A. 9006 is not valid for being a mere rider in violation of Art. VI, Sec. 26 (1) of the Constitution providing that “every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.” The Fair Election Act deals only with political advertising, like TV commercials and election posters. It has nothing to do with forfeiture of original offices upon the filing of certificates of candidacy for different offices as provided for in Sec. 67.
In conclusion, based on the R.A. 9006 and Farinas ruling, GMA would not be deemed as having forfeited her position should she files her certificate of candidacy for congresswoman or any other positions lower than the Presidency for that matter.

It is however my fervent hope that someone has to challenge anew the constitutionality of Sec. 14 of Fair Election Act in the event GMA files her certificate of candidacy.

Bill of Attainder?

Last week, the Provincial Board (PB) of Pampanga passed a resolution declaring running priest Fr. Robert Reyes as a “persona non grata” or an undesirable person. The PB’s action stemmed from the lambasting it received from Fr. Reyes for the former’s continuing opposition to Gov. Ed Panlilio’s governance.

A prominent lawyer-journalist in Pampanga described the resolution as a bill of attainder saying that such resolution has all the earmarks of a bill of attainder which are, (1) the unwanted characterization is a form of punishment; (2) The PB resolution was a legislative act; and (3) Fr. Reyes was neither invited nor given the opportunity to explain himself before the PB prior to making its “persona non grata” resolution.

I disagree.

One of the constitutive elements of a bill of attainder is that there must be a law enacted by a legislative body. Settled is the rule that a municipal resolution does not partake of the nature of a law. Said the Supreme Court in Municipality of Paranaque vs. VM Realty Corp., G.R. No. 127820, 20 July 1998)

We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently - a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

Absent the most essential element of a bill of attainder (i.e., there must be a law enacted by a legislative body), I submit the view the PB’s resolution on Fr. Reyes does not amount to a bill of attainder.

2008 Bar : Questions in Political Law

Arguably, Political Law is said to be the waterloo of the bar examinees. Many did not pass the bar because they failed on this difficult bar subject. The 2008 bar questions in Political Law are already made available in the Supreme Court website. The Bar Exams Forum, of which I am an active member, has also posted the Political Law questions which are now being discussed and answered by the forum members.

The Political Law questions already answered by the members of Bar Exams Forum are found here. Mind you, these are only suggested answers. The authoritative answers are normally prepared by the Philippine Association of Law Schools (PALS) and the UP College of Law.

Time and money can derail the recall initiative vs. Among Ed

As I write this Among Ed has safety reached Los Angeles for a series of speaking engagements before various Fil-Am organizations. He will also hold dialogue with the civil society groups foremost of which is PamagCUSA, a US-based organization that advances good citizenship through volunteerism.

Back home, the partisan news stories and editorials of Sun Star Pampanga depict that the recall initiative against Among Ed is already gaining ground. This perception is further bolstered by the moral support on the recall move given by a number of mostly controversial priests headed by an equally controversial monsignor, a son of my town Minalin who is believed to be close to the Pinedas of Lubao and Malacanang having had a hand in the appointment of one regional director in Central Luzon.

Let us not lose hope. The recall initiative will likely face formidable challenges along the way. Allow me to explain them.

1. Time Constraint

Per COMELEC Resolution No. 7505, no recall shall be held within one (1) year before the holding of the next regular election. What is the implication of this? This means the holding of a recall election is prohibited by law from 10 May 2009 until 10 May 2010, the date of the next regular election. In other words, the COMELEC has to set the recall election in Pampanga not later than 9 May 2009. After this date, no recall election is allowed by law.

Stated otherwise, Kambilan has only eight (8) months to complete the whole process of recall initiative which involves gathering of required signatures, filing of petition with the COMELEC, validating the sufficiency of the petition in form and substance and legal battles both in the COMELEC and the Supreme Court. This is a long and tedious process. Unless there’s “kingly” intervention, I don’t think the entire process of the recall initiative could be finished in a span of eight months.

2. Inadequate Budget

When top lawyer Romulo Macalintal downplayed the feasibility of a recall election due to lack of funds for that purpose, I did not believe him. Well, I believe him now after reading Republic Act No. 9498 also known as 2008 General Appropriations Act. In the COMELEC’s budget for fiscal year 2008, an amount of Php 46,894,000 is appropriated for the conduct and supervision of elections and other political exercises.

Out of that amount, only Php 5,000,000 is allocated for recall election that may be held. Incidentally, while Kambilan is yet to file a recall petition with the COMELEC there are about eighteen (18) recall petitions now pending in the COMELEC excluding the recall petition just recently filed against the governor of Sulu.

Given this situation, I do not think a recall election in Pampanga could push through. The COMELEC will have no funds to print ballots, conduct and supervise the election itself and pay the teachers that will man 6,461 precincts in Pampanga.

What happens if COMELEC officially declares that a recall election cannot be enforced because of insufficient or lack of funds? If there’s still time, I think the recall proponents would lobby Congress to pass a bill allocating a special funds for the conduct of a recall election in Pampanga. If this situation occurs, I do not think most of our senators, especially those seeking reelection, would support the measure for a simple reason that Among Ed is largely viewed as a political capital who can influence the political preference of the voters come election time.

I would like to ask a hypothetical question. What if the recall proponents volunteer to fund the recall election? Is there is a law allowing or prohibiting it. I don’t know. What I know is that a leading national newspaper branded the recall initiative as “shameless”. Going to the extent of funding the recall election by the proponents is not only brazen but downright unconscionable.

How ironic! The recall petition can prosper because of sufficient money being used by the proponents in the signature-gathering but the recall election itself cannot prosper because of the lack of it.

Note : Photo courtesy of PamagCUSA website

The Price of Among Ed’s Recall

A recall is a process which begins with the gathering of the signatures, and then proceeds to the filing of a recall petition with the COMELEC, the verification of such petition, the fixing of the date of the recall election, and the holding of the election on the date scheduled by the COMELEC.

History reveals that a recall election may take place within a short span of time or take longer than almost a year from the date of its initiation. In the case of Caloocan City Mayor Rey Malonzo, the recall election was held on 14 December 1996 or barely 5 months from the gathering of the required signatures. The recall of Mayor Jovito Claudio of Pasay City was initiated on 19 May 1999 and the recall election was held on 15 April 2000. On 2 July 2002, the people of Puerto Princesa City initiated the recall of Mayor Dennis Socrates and the COMELEC set the recall election on 14 August 2002.

I foresee that the recall of Among Ed would pass the same route as that of Mayor Claudio. It’s going to be a long protracted legal battle. Among Ed’s legal eagles would surely file opposition to the recall petition before the COMELEC citing Lilia Pineda’s pending election protest as a prejudicial question which must first be resolved before the petition for recall could be given due course. The form and substance of the petition would also be expected to be questioned by his lawyers. Even if the COMELEC would eventually give due course to the recall petition, the legal battle does not end there. The Supreme Court would finally decide whether the recall election shall take place.

The whole recall process is a very expensive exercise. The proponents of the recall of Among Ed would spend millions to buy signatures and more millions to buy votes during the recall election. These exclude the enormous amounts to be spent on election campaign, PR and lawyer’s fee. Among Ed himself would not be spared from the burden of incurring cost involved in a recall. He would certainly need millions to get reelected.


It has been said that an initiative to recall an official is always resisted with stronger vim and venom. The reason is obvious. The incumbent would not like to lose power just recently won. The challenger, often a loser in the previous election, would not want to lose a second time. It foments divisive, wasteful and bloody politics where lives are often lost. Moreover, a recall election would undermine the delivery of basic services to the public. The running of the local government units would slow down as our elected officials would be preoccupied with the recall election campaign. This all augurs ill for the future of Pampanga.

This article is also posted in PamagCUSA website and Kasaup blog

Interpreting a clear provision of law

Verba legis or the “plain meaning rule” in statutory construction is that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation. Verba legis non est recedendum, or from the words of a statute there should be no departure.

There are, however, rare instances where the courts have interpreted statutes that leave no room for doubt and interpretation. One of such instances is the case of Lopez vs. COMELEC (GR No. 182701 dated 23 July 2008) where the Supreme Court interpreted the clear wordings of Section 5(2) of R.A. No. 9225 (Citizenship Retention and Re-acquisition Act of 2003), which states to the effect that those who retain or re-acquire Philippine citizenship under this law and seek elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.”

The above provision is crystal-clear. A dual citizen, as defined under R.A. No. 9225, is not qualified to run for any elective public position in the Philippines unless he or she swears to a renunciation of his or her foreign citizenship at the time of filing the certificate of candidacy.

In the Lopez case, the Supreme Court affirmed the ruling of the COMELEC nullifying the election of Eusebio Eugenio Lopez, a Filipino-American (a dual citizen), who failed to renounce his American citizenship when he filed his certificate of candidacy for the position of Barangay chairman in an Iloilo town in the last Barangay election held in October 2007. The High Court reiterated the requirement of Section 5(2) of R.A. No. 9225 and further held that Lopez’s victory cannot cure the defect of his candidacy.

Why a very clear, plain and literal provision of law had to be brought up to the Supreme Court for interpretation? Aren't lawyers supposed to know the plain meaning rule?

Are Barangay Kagawads and Lupong Tagapamayapa persons in authority?

This article is also posted in View From The Ground


When I was a freshman in law, I was made to understand that among the barangay officials, only the Punong Barangay (Barangay Captain or Chairman) was expressly considered a person in authority in Art. 152 of the Revised Penal Code, which reads in part :

Art. 152. Persons in authority and agents of persons in authority; Who shall be deemed as such. — In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority.(underscoring mine)

In my second year, however, I came to realize that my understanding above was not entirely correct based on my reading of Sec. 388 of the Local Government Code of 1991(R.A. No. 7160), which provides :

Section 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall be deemed agents of persons in authority. (underscoring supplied)

Sec. 388 of R.A. 7610 expands the import of a person in authority under the Revised Penal Code. In addition to the Punong Barangay provided in Art. 152 of the RPC, the Sangguniang Barangay members (Kagawads) and members of the Lupong Tagapamayapa are now considered as persons in authority. (People v. Felipe Sion, G. R. No. 109617, 11 August 1997)

What are the legal implications of Sec. 388 of R. A. 7160 in relation to some provisions of the Revised Penal Code? Let me cite some of them.

1. An offender may voluntarily surrender himself to a Barangay Kagawad or a member of Lupong Tagapamayapa. Such voluntary surrender is valid in accordance with Art. 13 of the Revised Penal Code.

2. A felony committed with insult or in disregard of the respect due to a person in authority on account of his rank amounts to an aggravating circumstances pursuant to Art. 14 of the Revised Penal Code.

3. In the crimes of Illegal Assemblies and Direct Assaults under Art. 146 and Art. 148 of the Revised Penal Code, respectively, a member of Sangguniang Barangay or Lupong Tagapamayapa is within the contemplation of the phrase “person in authority”.

4. Any person who shall resist or seriously disobey a Sangguniang Barangay member or a member of Lupong Tagapamayapa while engaged in the performance of his official duties may be charged with violation of Art. 151 of the Revised Penal Code.

This is just an opinion of the author. Any views, concurring or dissenting, are most welcome here.

Is the Senate a Continuing Body?

In Neri vs. Senate Committee, the issue of whether publication is necessary to the validity of the Senate rules turned on whether the Senate under the 1987 Constitution is a continuing body.

Is the Senate a continuing body under the 1987 Constitution?

The majority school of thought is that the present Senate under the 1987 Constitution is no longer a continuing legislative body since the present Senate has 24 members, 12 of whom are elected every three years for a term of six years each. Thus, the term of 12 Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress which requires a majority of Senators to constitute a quorum to do business. This point of view was posited by Justice Carpio in his Dissenting and Concurring Opinion in the Neri case, an opinion which, I believe, is shared by former Chief Justice Artemio Panganiban as can be inferred from his article titled “Arroyo Supreme Court?” which I posted here before this.

On the other hand, the dissenting school of thought principally advanced by the respondent Senators in the Neri argued that the Senate is a continuing body. This argument is supported by no less than Chief Justice Reynato Puno in his Dissenting Opinion when he observed that “the Senators have traditionally considered the Senate as a continuing body despite the change of a part of its membership after an election. It is for this reason that the Senate does not cease its labor during the period of such election. Its various Committees continue their work as its officials and employees”.

It is interesting to note that the Senate has raised a new powerful argument in the Motion for Reconsideration filed on 8 April 2008 which reinforces its position that the Senate is a continuing body. The Senate put forward a new argument that the framers of the 1987 Constitution intended the Senate as a continuing body citing the exchange among the framers during the Constitutional Commission deliberations, to wit :

“MR. RODRIGO. x x x.

x x x .

We will have elections every three years under the scheme and we will have a continuing Senate. Every election, 12 of the 24 Senators will be elected, so that 12 Senators will remain in the Senate. In other words, we will have a continuing Senate.

x x x .

MR. DAVIDE

This is just a paragraph of that section that will follow what had earlier been approved. It reads : “Of the Senators elected in the election in 1992, the first twelve obtaining the highest numbers of votes shall serve for six years and the remaining twelve for three years”.

This is to start the staggering of the Senate to conform to the idea of a continuing Senate.

Second Opinion

I have reproduced hereinbelow former Chief Justice Panganiban’s take on Neri vs. Senate Committees which I find mouthful and relevant.


With Due Respect
Arroyo Supreme Court?
By Artemio V. Panganiban
Philippine Daily Inquirer
Posted 03:12:00 03/30/2008

In the olden days, kings and queens ruled their domains absolutely according to their wiles and whims. They were not bound by pre-agreed rules to guide their actions. They simply imposed their wicked ways on the hapless people.

Constitutional democracy. As time went by, absolute rulers were deposed and new ones democratically selected. The chosen took the place of the kings but their powers were severely limited by constitutions and laws crafted by elected representatives. The rule of law prevailed when the chosen leader ran the country pursuant to the constitution and statutes, no longer by unpredictable wiles and whims.

In our country, the elected ruler who took the place of the king is the president. As in all constitutional democracies, not all the kingly powers are vested on the President. The authority to make laws is with Congress. The Supreme Court reviews executive acts to assure the reign of the rule of law. To further restrict the kingly prerogatives, the Constitution has created several other agencies like the Commission on Elections, the Commission on Audit, and the Ombudsman.

At present, President Macapagal-Arroyo, by her lonesome, commands the armed forces and the police. She spends more than 95 percent of the national budget, controls more than 95 percent of all national employees and supervises all provinces, cities, towns and barangays. Although the Supreme Court, Comelec, COA, and OMB are designed to be independent, the President appoints all their members.
Awesome powers. Indeed, the powers of the president are awesome. She could run the country by herself, without need of the Supreme Court, Congress, Comelec, etc., as ably demonstrated by Ferdinand Marcos. In fact, a repressive and corrupt president could use his or her prerogatives to subdue these agencies and thus enable him or her to rule the nation like the monarchs of old.

This is why the vitality of our democracy is dependent on the courage and competence of these agencies and their members to review and check presidential actions. This is also why there is unease, if not teeth-gnashing, when these agencies, especially the Supreme Court, unreasonably expand executive prerogatives, or inexplicably fail to check abuses.

“Neri vs Senate Committee on Accountability,” promulgated last March 25, is a case in point. I have read the 35-page ponencia of Justice Teresita Leonardo de Castro plus the concurrences of Justices Renato C. Corona (21 pages), Dante O. Tinga (14 pages), Presbitero J. Velasco Jr. (nine pages), Antonio Eduardo B. Nachura (15 pages) and Arturo D. Brion (nine pages), as well as the stirring dissents of Chief Justice Reynato S. Puno (120 pages), Consuelo Ynares-Santiago (seven pages), Antonio T. Carpio (36 pages), and Conchita Carpio Morales (31 pages).

With due respect, I believe that the majority decision failed to check presidential abuse; worse, it imprudently expanded executive privilege to cover wrongdoings.

First, to justify Secretary Romulo Neri’s refusal to answer the three questions linking President Arroyo to the ZTE-NBN mess, the majority considered “conversations that take place in the President’s performance of (her) official duties… presumptively privileged.” It deemed the bare, proof-less claim of Executive Secretary Eduardo Ermita that Neri’s disclosures “might impair our diplomatic as well as economic relations” with China. It faulted the Senate with rank failure to explain a “critical or compelling need for the answers.”

By shifting the burden of proof to the Senate, the nine-member majority reversed the much-acclaimed “Senate vs Ermita,” issued just two years ago, that unanimously placed the duty of proving the need for secrecy on the president. Disclosure is the rule because the Constitution expressly mandates transparency and accountability for all officials.

Second, by giving the “presidential communications privilege” presumptive confidentiality, the majority inexplicably expanded kingly prerogatives. It unreasonably suppressed the truth.

Third, executive privilege is not expressly provided in the Constitution. There is no sentence or clause mentioning the privilege directly. The Supreme Court merely implied it from other presidential powers. In contrast, the power to investigate in aid of legislation is expressly granted by the Constitution to Congress. In a clash between these two prerogatives, the choice is clearly in favor of the express grant.

Fourth, the majority agreed with the Senate that executive privilege should not be used to hide a crime or wrongdoing. Well and good. Yet, it still ruled against disclosure on the convoluted argument that “US vs Nixon” involved a “pending criminal action,” while the Neri petition related to a “legislative inquiry.” As I see it, this American case is simply inapplicable. The majority should have relied on the constitutional mandate requiring transparency and accountability of officials. Its decision would have been a great landmark.

An epochal Supreme Court is endearingly named after its chief, like the Davide Court or the Teehankee Court. However, when it unduly legitimizes kingly excesses, it is derisively named after the president it serves, like the Marcos Supreme Court. As a retired chief justice, I would like to believe that the Neri decision is a mere aberration and would not suffice to label the present tribunal as the Arroyo Supreme Court. But then, it must quickly choose what it wants to do. Is it to serve or to check President Arroyo?

The Great Dissenters

In the case of Romulo Neri vs. Senate Committee On Accountability of Public Officers and Investigations, et. al. (G.R. No. 180643, 25 March 2008), six (6) members of the Supreme Court namely Chief Justice Puno and Justices Carpio, Azcuna, Carpio-Morales, Martinez and Ynares-Santiago ruled that the three questions that Neri had refused to answer in the Senate probe are not covered by executive privilege. I do admire these six gallant dissenters who ruled on the strength of their blind loyalty to the Constitution and firm reverence to the doctrines of separation of powers and checks and balances. The minority ruling in effect wanted to uphold and legitimize the constitutional power of the Senate to compel a witness who refuses to heed a subpoena and reject the Executive Department’s resistance to the Senate’s power of inquiry which is coextensive with the power to legislate.







I salute you, Your Honor!

Esperon's extension of tour of duty unconstitutional

The extension of the tour of duty of Armed Forces of the Philippines (AFP) chief Gen. Hermogenes Esperon Jr. is patently unconstitutional. Here’s the commandment of the Constitution prohibiting such extension.

The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. (Sec. 5, para. 7, Art. XVI, 1987 Constitution)

Clearly, there’s no war in our midst and no national emergency declared by Congress that may allow the extension of the tour of duty of AFP chief of staff. By extending the chief of staff’s term, GMA may be held liable for culpable violation of the Constitution, a ground for impeachment.

EDSA Dos - extra constitutional or not?

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. (Joseph Estrada vs. Gloria Macapagal Arroyo, G.R. No. 146710-15, 2 March 2001)

Recall of Gov. Ed Panlilio

Democratic experience, here and abroad, shows that the right of recall is a double-edged sword. Rightly used, it can promote the greater good. Wrongly used, it can result in greater evil. (Chief Justice Reynato Puno)

The recall bid against Gov. Ed Panlilio is carried by PDI today. I’m sure this issue will be the talk of the town in the days to come.

Here are the FAQs on recall for ease of understanding and reference.

What is a recall in the context of Local Government Code of 1991 (RA 7160)?

A recall is a power granted to the electorate to remove an elected official for loss of confidence.

What does loss of confidence mean?

Loss of confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by the same electorate.

Whether or not the electorate has lost confidence in an incumbent is a political question. It belongs to the realm of politics where only the people are the judge. (Evardone vs. COMELEC et. al., GR No. 94010, 2 December 1991)

What is the purpose of recall?

While recall was intended to be an effective and speedy remedy to remove an official who is not giving satisfaction to the electorate regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates, it is a power granted to the people who, in concert, desire to change their leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people, not just by one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its purpose as a direct remedy of the people shall be defeated by the ill motives of a few among them whose selfish resort to recall would destabilize the community and seriously disrupt the running of government. (Angobung v. COMELEC, 269 SCRA 245 [1997])

The bottomline is that our law intends recall as a mechanism of good government. It can never fulfill that intent if we allow its use to foment too much politics. (Claudio vs. COMELEC et. al, G.R. No. 140560, 4 May 2000)

How shall the recall of a governor be commenced?

The recall of a governor shall be commenced by a petition of a registered voter in the province concerned and supported by at least 10% of registered voters, provided, however, that in no case shall the required petitioners be less than 45,000. (Section 1, RA 9244)

Obiter

In the case of Pampanga, the required petitioners must be at least 98,703 which represent 10% of the total number of registered voters in Pampanga as of 20 April 2007 based on the records of COMELEC (www.comelec.gov.ph).

In other words, Guaio et. al. may require at most 98,703,000 pesos (if the signature of a petitioner is priced at 1,000 pesos per person) just to commence the recall of Among Ed. This excludes the hundreds of millions of pesos to be used to buy votes during the recall election itself.

What happens next after the commencement of a recall?

The process of recall shall be effected in accordance with the following procedures:

1. A written petition for recall duly signed by the representatives of the petitioners shall be filed in the COMELEC provincial office.

2. If the petition is found to be sufficient in form, the Comelec shall form the issuance of the certification, provide the official sought to be recalled a copy of the petition, cause its publication in a national newspaper of general circulation and a newspaper of general circulation in the locality.

3. The Comelec shall proceed independently with the verification and authentication of the signatures of the petitioners and registered voters contained therein. The filing of any challenge or protest shall be allowed which shall be ruled upon with finality within 15 days from the date of filing of such protest or challenge.

4. The Comelec shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

5. The Comelec shall set the date of the recall election, which shall not be later than 45 days upon the completion of the procedure outlined above. The official sought to be recalled shall automatically be considered as duly registered candidate to the position to be voted upon.

6. The official sought to be recalled may file petition for certiorari and prohibition before the Supreme Court seeking the nullification of the resolution of the COMELEC giving due course to the petition for the recall.

What are the limitations of a recall?

1. Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (para. a, Section 74, RA 7160)

2. No recall shall take place within 1 year from the date of the official's assumption to office or 1 year immediately preceding a regular local election. (para. b, Section 74, RA 7160)

If no recall shall take place within 1 year from the date of the official's assumption to office or 1 year immediately preceding a regular local election, does it mean that Among Ed cannot be recalled until after 30 June 2008?

In the case of Claudio vs. COMELEC et.al., supra, the Supreme Court held that the term "recall" refers to the recall election and not to initiation of recall proceeding. The initiation of recall "merely sets the stage for the official concerned before the tribunal of the people so he can justify why he should be allowed to continue in office." Hence, a recall election for governor in Pampanga cannot be held until after 30 June 2008. However, the initiation of recall proceedings (commencement, filing of petition with the COMELEC and etc.) is not prohibited within the one-year period.

In other words, what is forbidden are : (1) the holding of recall election within one year from the date the official assumed office, and (2) holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras vs. COMELEC (264 SCRA 48, 54 [1996]), para. (b)construed together with para. (a) of Section 74, RA 7160 "merely designate the period when such elective local official may be subject to recall election, that is, during the second year of office."

When shall a recall take effect?

The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.(Section 72, RA 7160)

All About Curfew

During the medieval age, a CURFEW signifies the ringing of a bell at fixed time in the evening as an order to cover the hearths (fireplace) and prepare for sleep. The intention was to prevent the untended fires from conflagrations. The definition of curfew had however been expanded by modern writers. The modern extended sense of "periodic restriction of movement" had evolved by 1800s.

In the Philippines, the imposition of curfew by parents, especially on minor children, has been in our culture as far as memory could recall. It used to be a family affair without any interference from the State. The duty to enforce curfew regulations devolved upon the parents or guardians. When I was little I remember we were forbidden to be in the streets at a prescribed time. We obediently adhered to the rules for fear of parental reprimand or corporal punishment. In our neighborhood no minors were allowed to stay outdoors before the stroke of midnight. That’s how disciplined we were scores of years ago.

On 22 September 1972, however, the cultural context of curfew had changed. Marcos, who both wielded executive and legislative powers, had criminalized curfew. The late dictator issued General Order No. 4 ordering the enforcement of a curfew throughout the Philippines between the hours of twelve midnight and four o’clock in the morning during which no person shall be allowed to move outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-charge.

Not contended, he promulgated Presidential Decree No. 603 on 10 December 1974 enjoining all city or municipal councils to prescribe curfew hours for children as may be warranted by local conditions.

With the lifting of Martial Law years later, the curfew imposed upon all persons had automatically been revoked. But PD 603 had remained in force. In fact, it has been so until now as this law has not been repealed.

Under our present legal system, is the imposition of a curfew legal? Yes, PD 603 allows it subject to certain conditions, which are : 1) the curfew hours shall be imposed upon minors only, 2) a local ordinance imposing a curfew shall be enacted, and 3) it is warranted by local situations.

Was GMA’s imposition of curfew upon ALL PERSONS in Manila and Regions 3 and 4-A on 29 November 2007 legal? Here are the views of some of our noted lawyers on the legality of curfew imposition.

1. As an inherent and extraordinary power of the State, police power is exercised through legislation. A curfew imposed without any law or legal order is illegal and unconstitutional. (Atty. Theodore Te)

2. The President has no authority to curtail freedom of movement. Also, such a directive needs to be in writing and has to be published. (Atty. Marichu Lambino).

3. The curfew imposition is unlawful and contrary to the Constitution — our right to liberty, our right to travel, our constitutionally guaranteed rights that cannot be curtailed or disregarded by executive order. Even curfews imposed in town and barangays need local ordinance. (Sen. Francis Pangilinan)

Meantime, Atty. Fred Pamaos has raised some interesting questions in his blog as regards curfew imposition, viz :

xxxx there are two legal questions that should be addressed: (1) Can the President impose a curfew without any delegation of powers from Congress?; and (2) If such delegation is not required and the imposition of curfew is authorized under the Commander-in-Chief powers of the President, did the President comply with the constitutional requirements (the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power)?

Personally, I feel the recent curfew was imposed without clear legal basis. There’s no law empowering the President to impose curfew on ALL PERSONS. What we have is curfew regulations on minors only. GMA had consciously overstepped the limitations of her constitutional powers at the expense of curtailing our freedom to travel and move outside our home; our freedom to watch last full show movie at SM cinema, our liberty to listen to music at a nearby bar, our freedom to enjoy our friends' birthdays and etc. Even under her commander-in-chief powers she has no authority to impose curfew on all citizens. A curfew on ALL PERSONS can only be imposed if there is a law enacted by Congress to that effect delegating to the President the police power to executive the same.

Obviously, GMA treated the curfew imposition as a test case. The curfew has ruffled a lot of feathers but no one has lifted a finger to question its legality before the Supreme Court. Unless the curfew is judicially challenged, GMA may reimpose it again and again. Some may say the complaint will not prosper because the curfew was already lifted and, therefore, it is now moot and academic. I disagree. The Supreme Court will not render the complaint moot and academic. Said the Supreme Court in Randolf David vs. Arroyo :

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

Ergo, will someone rise and judicially challenge the legality of GMA’s curfew imposition?

I beg your pardon?

Much has been said about the presidential pardon on former president Joseph Estrada. While the presidential act is legally defensible, the majority of the Filipinos believe it is morally wrong because it was dictated by political considerations. It was said the granting of pardon was not an act of grace but an act of disgrace to the Presidency. It demeaned the gracious privilege of executive clemency.
For reference, here are some of the FAQs on pardon.

1. What is the legal definition of pardon?

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. (U.S. vs. Wilson, 7 Pet. 150)

It is an act of pure generosity of the executive and it is his to give or to withdraw before it is completed. No legal power can compel the executive to give it (De Leon vs. Director of Prisons, 31, Phil. 60)

2. What is absolute and conditional pardon?

Absolute pardon is the total extinction of the criminal liability of the individual to whom it is granted without any condition; it restores to the individual his civil and political rights and remits the penalty imposed for the particular offense of which he was convicted.

Conditional pardon is an exemption of an individual, within certain limits or conditions, from the punishment which the law inflicts for the offense he had committed resulting in the partial extinction of his criminal liability.

3. Who may grant pardon?

The 1987 Constitution vests the power to grant pardon only to the President.

4. What are the constitutional provisions on pardon?

Article VII
Executive Department

SEC. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

Article IX
Constitutional Commissions

C. The Commission on Elections

SEC. 5. No pardon, amnesty, parole, or suspension of sentence for violation of election rules, and regulations shall be granted by the President without a favorable recommendation of the Commission.

5. What are the specific limitations on the pardoning power?

1) Pardon can be exercised only after final conviction.

2) Pardon can be granted for election offenses only upon the recommendation of the COMELEC.

3) Pardon may not be granted in cases of impeachment.

4) Pardon cannot be granted in cases of civil and legislative contempt.

6. Was GMA’s granting of pardon to former president Estrada legal?

Yes, because : 1) Estrada was convicted by final judgment; 2) he was not impeached; 3) he did not violate election laws, rules and regulation; and 4) he was not cited for contempt.

7. There is a school of thought that Estrada should not have been pardoned because he was impeached. It this correct?

No. According to eminent constitutionalist Fr. Bernas, prohibition regarding cases of impeachment can have applicability only if the impeachment process had ended in the imposition of a punishment, which it did not. Joseph Estrada received no punishment from the impeachment that was started against him. The impeachment process was never concluded. In fact, even if it had been concluded, the only punishment he could have received would have been removal from office and disqualification from holding office in the government.

7. May a judicial challenge to the validity of pardon of Estrada prosper?

Fr. Bernas offers the following explanation :

We do have that provision in the Constitution which says that judicial power includes the power “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any instrumentality of agency of the government.” We know and we have seen this applied to independent bodies like the Commission on Elections, the Commission on Appointments and the Electoral Tribunals. It can be applied by the Court to the President even if ever so gingerly.

Did President Arroyo commit such grave abuse of discretion? If we must go by the prescriptions of the Supreme Court, as indeed we must, we will see that it is not easy to commit such mortal sin.

Ponder how the Supreme Court has defined such grave abuse. “By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.”

Anyone challenging the validity of the pardon of Estrada will have to measure the action of President Arroyo against this definition. It will not be a walk in the park.

Amnesty is such a lonely word

GMA issued Proclamation No. 1377 on 6 September 2007 granting amnesty to members of the Community Party of the Philippines-New People’s Army-National Democratic Front (CPP-NPA-NDF) and other communist rebel groups in the country.

The proclamation shall come into force upon concurrence by a majority of all the members of Congress. (Sec. 19, Art. VII, 1987 Phil Constitution).

What is amnesty?

It’s an action of a government by which all persons or certain groups of persons who have committed a criminal offense, usually of a political nature that threatens the sovereignty of the government, are granted immunity from prosecution. Amnesty allows the State to "forget" criminal acts, usually before prosecution has occurred.

In our jurisdiction, it is defined as an act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

What are the crimes covered by amnesty?

Section 2 of the proclamation provides that the amnesty “shall cover the crime of rebellion and all other crimes included therein or incident thereto in pursuit of political belief as defined by jurisprudence, whether punishable under the Revised Penal Code or special laws.”

Crimes against chastity, rape, torture, kidnapping for ransom, use and trafficking of illegal drugs and other crimes for personal ends and violations of international law or convention and protocols, even if alleged to have been committed in pursuit of political beliefs are not covered.

What is the difference between amnesty and pardon?

According to eminent constitutionalist Fr. Bernas, the juridical distinction between pardon and amnesty was clearly drawn.

“Amnesty may be granted before conviction or even before charges are filed, whereas pardon can be granted only after final conviction. Pardon after conviction is now at the discretion of the President, but amnesty may be granted by the President only with the concurrence of a majority of all the members of Congress. Pardon is generally granted to individuals irrespective of the kind of offenses they may have committed; amnesty on the other hand is offered to a group who generally are political offenders. Amnesty therefore is more clearly a peace and reconciliation instrument.”

In U.S. jurisdiction, there is no specific legislative or constitutional mention of amnesty, making its nature somewhat ambiguous. The difference between amnesty and pardon is particularly vexing. In theory, an amnesty is granted before prosecution takes place, and a pardon after. However, even this basic distinction is blurry— Remember President Ford granted a pardon to President Nixon before the latter was charged with any crime. American courts allow the two terms to be used interchangeably.

Must a person admit his guilt of the offense when a person applies for amnesty?

The earlier doctrine was that a plea of guilty was not needed for availing of amnesty. Now, when a person applies for amnesty he must admit his guilt of the offense which is the subject of such amnesty. If his application is denied, he can be convicted based on this admission of guilt. Many believe that this doctrine should be abandoned especially now in the context of fabricated charges of rebellion or sedition. Fr. Bernas opined that when a person signifies his intention to avail of amnesty, he should be seen as welcoming either relief from punishment for guilt, if truly guilty, or, if innocent, relief from the trouble of having to prove innocence

May the Congress directly grant amnesty?

Under our Constitution, the President shall have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.
In effect, the President alone cannot grant amnesty for it needs the concurrence by majority of all members of Congress.

It appears there’s a blending of power in the manner of the granting of amnesty, that is, the President proclaims the granting of amnesty and the Congress approves such proclamation. By implication, the Congress cannot issue a proclamation granting amnesty to certain individuals and concur on it at the same time. That runs contrary to the letter of the Constitution.

However, I am of the view that Congress may directly grant amnesty. The power to grant amnesty is vested in the legislature and is exercised by legislative grant. Granting of amnesty for strictly political offenses is in the nature of a public law, thus it has the same effect as the repeal of a law punishing an offense.