Tácticas de PNL - Programación neurolingüística

CAPÍTULO III: MARCO TEÓRICO

3.2 Herramientas del cambio

3.2.2 Programación neurolingüística

3.2.2.3 Tácticas de PNL

Executive Department and Powers of the President Q: What are the prohibitions/inhibitions applicable to the President?

A: 1. Prohibition against the change of the President’s salary either by reduction or increase during his/her term

- “The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved.” (Art. VII, Sec. 6)

2. Prohibition against receiving emoluments from the government or any other source during the President’s tenure

- emolument – refers to any compensation received for services rendered or from possession of an office

- This means that the President cannot accept other employment elsewhere, whether in the government or in the private sector, and must confine himself/herself to the duties of his/her office. (Note that the Vice-President may be appointed to the Cabinet but he/she may not receive additional compensation in his/her capacity as Member of the Cabinet because of the ABSOLUTE prohibition in Art. VII, Sec. 6.

3. Prohibition against holding any other office or employment during his/her tenure

- “The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.” (Art. VII, Sec. 13)

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 30

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

Members: Kent Limpot, Yadj Juanico, Kevin Leus, Marben Silva, Allen Sopoco, King Defante, Justin Abraham, Nate Rebudal, Francis Geronimo, Monico Aggabao, Mikko Escoto, Jireh Bringas, Sockie Averia, Nur Dimapanat, Koko Quadra, RJ Baclig, Raven Libunao, Bennet Veloya, Mark Tamayo, Kiel Rivera, James Culla, Jupi Malabanan, Dring Ferrer, Gelle Obas, Daryl Plan, Rovin Feliciano, Atea Zara, Raven Libunao, Rommel Amador, Gregg Namin, Richard Siccion, Ali Manuel, Jim Alberto, Jasper Aquino

- This inhibition is in line with the principle that a public office is a public trust and should not be abused for personal advantage.

- - Except for the Vice-President who may be appointed to the Cabinet, and the Secretary of Justice who is made ex officio member of the Judicial and Bar Council, the officials enumerated in Section 13 may not hold another office. But they may be given additional functions which are intimately related to their primary office. Such conferment of additional functions does not constitute a new appointment. Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should again be nominated and appointed. Incidentally, when an Undersecretary sits for a Secretary in a function for which the Secretary may not receive additional compensation, the prohibition on the Secretary also applies to the Undersecretary. It should also be noted that the stricter prohibition is imposed on “Members of the Cabinet”. It therefore applies not just to department secretaries, but to anyone who is a Member of the Cabinet even if he/she is not a head of a department.

4. Prohibition against practicing any other profession, participating in any business, or being financially interested in any contract with, or in any franchise, or special privilege granted by the Government

- “They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.” (Art.

VII, Sec. 13)

- This will discontinue the lucrative practice of Cabinet members occupying seats in the boards of directors of affluent corporations owned or controlled by the government from which they derive substantial income in addition to their regular salaries.

- Prohibited participation in a contract with the government can include being a member of a family corporation which has dealings with the government

- Reasons for the prohibition:

(1) to avoid conflict of interest; and

(2) to force the officials to devote full time to their official duties.

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 31

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

5. Prohibition against nepotism

- “The spouses and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commission, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.” (Art. VII, Sec. 13)

- This is essentially an anti-nepotism provision which even in statutes normally goes up to the fourth degree of consanguinity or affinity. If fourth degree relatives, however, are already in office when a President assumes office, the relatives are not thereby ousted from their positions. What is prohibited is appointment or reappointment and not uninterrupted continuance in office.

6. Prohibition against conflict of interest

- “They shall strictly avoid conflict of interest in the conduct of their office.” (Art. VII, Sec.

13)

*Beyond the constitutional prohibitions there also is the rule on incompatible offices. Thus, since the Chief Presidential Legal Counsel has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving other presidential appointees, he may not occupy a position in any of the offices whose performance he must review. Such would involve occupying incompatible positions. Thus, he cannot be Presidential Commission on Good Government (PCGG) Chairman and at the same time head of the PCGG since the PCGG answers to the President.

Q: What is a Cabinet?

A: It is an extra-constitutionally created institution which essentially consists of the heads of departments who through usage have formed a body of presidential advisers who meet regularly

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 32

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

with the President. Although they are the principal officers through whom the President executes the law, the President, through his/her power of control over them and his/her power to remove them at will, remains the chief of administration. Cabinet members as individuals and the Cabinet as institution possess no authority over the President. They serve at the behest and pleasure of the President.

Q: What do you mean by ex-officio?

A: The term ex-officio means “from office; by virtue of office.” It refers to an “authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position.” Ex-officio likewise denotes an “act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.” An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. (Example: By express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority.

The prohibition against holding any other office must not be construed as applying to posts occupied by the executive officials without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of the said official’s office. The reason is that the posts do not comprise “any other office” within the contemplation of the constitutional prohibition, but properly an imposition of additional duties and functions on said officials. To illustrate, the Secretary of Transportation and Communications is the ex officio Chairman of the Board of Philippine Ports Authority. The ex officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in said position. The reason is that these services are already paid for and covered by the compensation attached to the principal office. (National Amnesty Commission v. COA, 2004)

Q: Distinguish executive privilege (presidential immunity from suit) from legislative privilege (privilege from arrest and privilege of speech and debate).

A: The President is immune from suit during his/her tenure while Congressmen have the privilege from arrest and the privilege of speech and debate while the Congress is in session.

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 33

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

The Constitution does not expressly provide for the immunity of the President. It is a necessary corollary of the fact that in a presidential system, the presidency includes many other functions than just being executive. The president is the [symbolic and] ceremonial head of the government of the [Philippines].

*session – refers to the entire period from the Congress’ initial convening until its final adjournment

Rules on Immunity during Tenure

1. The President is immune from suit during his/her tenure.

2. An impeachment complaint may be filed against the President.

3. The President may not be prevented from instituting suit.

4. The President may waive the presidential immunity.

5. Heads of departments cannot invoke the presidential immunity.

Rules on Immunity after Tenure

Once out of office, even before the end of the six year term, immunity for non-official acts is lost. Such was the case of Joseph Estrada. (See Bernas Commentary, p 804 (2003 ed.) It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. (Estrada v. Disierto; See Romualdez v. Sandiganbayan)

Note: In David v. Arroyo, the Court held that it is improper to implead President Arroyo as respondent. However, it is well to note that in Rubrico v. Arroyo, Min. Res., GR No, 180054, October 31, 2007, the Supreme Court ordered the respondents, including President Arroyo, to make a return of the writ: “You, respondents President Macapagal Arroyo….are hereby required to make a return of the writ before the Court of Appeals…”

Reasons for the Presidential Immunity 1. Separation of powers

- The separation of powers principle is viewed as demanding the executive’s independence from the judiciary, so that the President should not be subject to the judiciary’s whim.

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 34

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

2. Public convenience

- By reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.

(Soliven v. Makasiar)

*“The President during his tenure of office or actual incumbency, may not be sued in ANY civil or criminal case. 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.” (David vs. Ermita)

Q: What is executive power?

A: It is the power to enforce and administer the laws.

Q: To whom is executive power vested?

A: It is vested in the President of the Philippines.

Q: What are the characteristics of executive power?

A: It is plenary and complete.

Q: What are the powers of the president (powers vested by the Constitution)?

A: (1) Appointing power (2) Removal power (3) Control power

(4) Power to take care that the laws be faithfully executed (5) Military power

(6) Pardoning power (7) Borrowing power (8) Diplomatic power (9) Budgetary power (10) Informing power

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence.

There’s no other way but the BTX Way. Page 35

Disclaimer: BTX is not a fraternity. It is just what we call our brotherhood composed of former Legal Management students of San Beda College-Manila.

(11) Other powers – power to call the Congress to special session, power to approve or veto bills, power to consent to the deputization of government personnel by the Commission on Elections and to discipline its deputies, power to exercise emergency and tariff powers

Q: What are those powers of the President not vested by the Constitution?

A: Residual powers which are those which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. (See the case of Marcos vs.

Manglapus)

Q: What is the appointing power?

A: Appointment is the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.288 It is distinguished from designation in that the latter simply means the imposition of additional duties, usually by law, on a person already in the public service. It is also different from the commission in that the latter is the written evidence of the appointment.

Q: What are the limitations on the appointing power?

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office.

Section 15. Two months immediately before the next presidential elections and up to the end of

In document Coaching para potencializar las capacidades del personal del área de sistemas de Transportes FTR. (página 86-94)