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Q What is the essence of due process in administrative proceedings? Explain.

ANS:

In administrative proceedings, due process simply means an opportunity to seek a

reconsideration of the order complained of; it cannot be fully equated to due process in its strict jurisprudential sense. A respondent in an administrative case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard, and to the administrative decision based on substantial evidence. (Vealasquez v. CA, G.R. No. 150732, August 31, 2004, 437 SCRA 357). Note that it is the administrative order, not the preliminary report, which is the basis of any further remedies the losing party in an administrative case may pursue. (Viva Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27, 2005).

Exhaustion of administrative remedies.

The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings. Exceptions (c) and (e) are applicable to the present case. (Rep., et al. v. Lacap, et al., G.R. No. 158253, March 2, 2007).

Exhaustion of administrative remedies.

The underlying principles of the rule on exhaustion of administrative remedies rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly. There are both legal and practical reasons for the principle. The administrative process is intended to provide less expensive and speedier solutions to disputes. Where the enabling statute indicates a procedure for administrative review and provides a system of administrative appeal or reconsideration, the courts for reasons of law, comity, and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum. (Berdin, et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6, 2007, Tinga, J). BAR QUESTIONS IN ADMINISTRATIVE LAW FROM 1989-2003

2001 BAR EXAMINATION

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Philippine Ports Authority (PPA) General Manager issued an administrative order to the fact that all existing regular appointments to harbor pilot positions shall remain valid only up to December 31 of the current year and that henceforth all appointments to harbor pilot positions shall be only for a term of one year from date of effectivity, subject to yearly renewal or cancellation by the PPA after conduct of a rigid evaluation of performance. Pilotage as a profession may be practiced only by duly licensed individuals, who have to pass five government professional examinations.

The Harbor Pilot Association challenged the validity of said administrative order arguing that it violated the harbor pilots' right to exercise their profession and their right to due process of law and that the said administrative order was issued without prior notice and hearing. The PPA countered that the administrative order was valid as it was issued in the exercise of its administrative control and supervision over harbor pilots under PPA's legislative charter; and that in issuing the order as a rule or regulation, it was performing its executive or legislative, and not a quasi-judicial function.

Due process of law is classified into two kinds, namely, procedural due process and substantive due process of law. Was there, or, was there no violation of the harbor pilots' right to exercise their profession and their right to due process of law?

Suggested Answer:

The right of the pilots to due process was violated. As held, in Corona vs. United Harbor Pilots Association of the Philippines, 283 SCRA 31 (1997), pilotage as a profession is a property right protected by the guarantee of due process. The pre-evaluation cancellation of the licenses of the harbor pilots every year is unreasonable and violated their right to substantive due process. The renewal is dependent on the evaluation after the licenses have been cancelled. The issuance of the administrative order also violated procedural due process, since no prior public hearing was conducted. As held in Commissioner r of Internal Revenue vs. Court of Appeals, 261 SCRA 237 (199 , when a regulation is being issued under the quasi-legislative authority of an administrative agency, the requirements of notice, hearing and publication must be observed.

II

TOPIC: JUDICIAL REVIEW

Give the two (2) requisites for the judicial review of administrative decision/actions, that is, when is an administrative action ripe for judicial review?

Suggested Answer:

1. The administrative action has already been fully completed and, therefore, is a final agency action; and 2. All administrative remedies have been exhausted. (Gonzales, Administrative Law, Rex Bookstore: Manila, p. 136 (1979).

2000 BAR EXAMINATION

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Maritime Industry Authority (MARINA) issued new rules and regulations governing pilotage services and fees and the conduct of pilots in Philippine ports. This it did without notice, hearing nor consultation with harbor pilots or their associations whose rights and activities are to be substantially affected. The harbor pilots then filed suit to have the new MARINA rules and regulations declared unconstitutional for having been issued without due process.

Suggested Answer:

The issuance of the new rules and regulations violated due process. Under Section 9, Chapter II, Book VII of the Administrative Code of 1987, as far as practicable, before adopting proposed rules, an administrative agency should publish or circulate notices of the proposed rules and afford interested parties the opportunity to submit their views; and in the fixing of rates, no rule shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two weeks before the first hearing on them. In accordance with this provision, in Commissioner of Internal Revenue vs. Court of Appeals, 261 SCRA 236 (1996), it was held that when an administrative rule substantially increases the burden of those directly affected, they should be accorded the chance to be heard before its issuance.

Alternative Answer:

Submission of the rule to the University of the Philippines Law Center for publication is mandatory. Unless this requirement is complied with, the rule cannot be enforced.

II

TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of Administrative Remedies)

A) Explain the doctrine of exhaustion of administrative remedies. B) Give at least three exceptions to its application.

Suggested Answer:

A) The doctrine of exhaustion of administrative remedies means that when an adequate remedy is available within the Executive Department, a litigant must first exhaust this remedy before he can resort to the courts. The purpose of the doctrine is to enable the administrative agencies to correct themselves if they have committed an error. (Rosales vs. Court of Appeals, 165 SCRA 344 (198 . B) The following are the exceptions to the application of the doctrine of exhaustion of administrative remedies. 1. The question involved is purely legal; 2. The administrative body is in estoppel; 3. The act complained of is patently illegal; 4. There is an urgent need for judicial intervention; 5. The claim involved is small; 6. Grave and irreparable injury will be suffered; 7. There is no other plain, speedy and adequate remedy; 8. Strong public interest is involved; 9. The subject of the controversy is private law;

10. The case involves a quo warranto proceeding (Sunville Timber Products, Inc. vs. Abad, 206 SCRA 482 (1992); 11. The party was denied due process (Samahang Magbubukid ng Kapdula, Inc. vs. Court Appeals, 305 SCRA 147 (1999); 12. The decision is that of a Department Secretary (Nazareno vs. Court of Appeals, G. R. No. 131641, February 23, 2000); 13. Resort to administrative remedies would be futile (university of the Philippines Board of Regents vs. Rasul, 200 SCRA 685 (1991) 14. There is unreasonable delay (Republic vs. Sandiganbayan, 301 SCRA 237 (1999) 15. The action involves recovery of physical possession of public land (Gabrito vs. Court of Appeals, 167 SCRA 771 (198 ; 16. The party is poor (Sabello vs. Department of Education, Culture and Sports, 180 SCRA 623 (1989); and 17. The law provides for immediate resort to the court (Rullan vs. Valdez, 12 SCRA 501 (1964).

1999 BAR EXAMINATION I TOPIC: RIGHT TO HEARING AND NOTICE A. Give examples of acts of the state which infringe the due process clause: 1. In its substantive aspect; and 2. In its procedural aspect B. On April 6, 1963. Police Officer Mario Gatdula was charged by the Mayor with Grave Misconduct and Violation of Law before the Municipal Board. The Board investigated Gatdula but before the case could be decided, the City charter was approved. The City Fiscal, citing Section 30 of the city charter, asserted that he was authorized thereunder to investigate city officers and employees. The

case against Gatdula was then forwarded to him, and are-investigation was conducted. The office of the Fiscal subsequently recommended dismissal. On January 11, 1966, the City Mayor returned the records of the case to the City Fiscal for the submission of an appropriate resolution but no resolution was submitted. On March 3, 1968, the City Fiscal transmitted the records to the City Mayor recommending that final action thereon be made by the City Board of Investigators (CBI). Although the CBI did not conduct an investigation, the records show that both the Municipal Board and the Fiscal's Office exhaustively heard the case with both parties afforded ample opportunity to adduce their evidence and argue their cause. The Police Commission found Gatdula guilty on the basis of the records forwarded by the CBl. Gatdula challenged the adverse decision of the Police Commission theorizing that he was deprived of due process. Questions: Is the Police Commission bound by the findings of the City Fiscal? Is Gatdula's protestation of lack or nonobservance of due process well-grounded? Explain your answers. C. On November 7, 1990, nine lawyers of the Legal Department of Y Bank who were all under Fred Torre, sent a complaint to management accusing Torre of abusive conduct and mismanagement. Furnished with a copy of the complaint, Torre denied the charges. Two days later, the lawyers and Torre were called to a conference in the office of the Board Chairman to give their respective sides of the controversy. However, no agreement was reached thereat. Bank Director Romulo Moret was tasked to look further into the matter. He met with the lawyers together with Torre several times but to no avail. Moret then submitted a report sustaining the charges or the lawyers. The Board Chairman wrote Torre to inform him that the bank had chosen the compassionate option of "waiting" for Torre's resignation. Torre was asked, without being dismissed, to turn over the documents of all cases handled by him to another official of the bank but Torre refused to resign and requested for a "full hearing", Days later, he

reiterated his request for a "full hearing", claiming that he had been "constructively dismissed", Moret assured Torre that he is "free to remain in the employ of the bank" even if he has no particular work assignment. After another request for a "full hearing" was ignored, Torre filed a complaint with the arbitration branch of NLRC for illegal dismissal. Reacting thereto, the bank terminated the services of Torre. Questions: (a) Was Torre "constructively dismissed" before he filed his complaint? (b) Given the multiple meetings held among the bank officials, the lawyers and Torre, is it correct for him to say that he was not given an opportunity to be heard? Explain your answers.

SUGGESTED ANSWER: A. 1.) A law violates substantive due process when it is unreasonable or unduly oppressive. For example, Presidential Decree No. 1717, which cancelled all the mortgages and liens of a debtor, was considered unconstitutional for being oppressive. Likewise, as stated in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 SCRA 849, a law which is vague so that men of common intelligence must guess at its meaning and differ as to its application violates substantive due process. As held in Taada v. Tuvera, 146 SCRA 446, due process requires that the law be published. 2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the dismissal of a case without the benefit of a hearing and without any notice to the prosecution violated due process. Likewise, as held in People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of the judge who will decide a case violates procedural due process. B. The Police Commission is not bound by the findings of the City Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was held that the

Police Commission is not prohibited from making its own findings on the basis of its own evaluation of the records. Likewise, the protestation of lack of due process is not well-grounded, since the hearings before the Municipal Board and the City Fiscal offered Gatdula the chance to be heard. There is no denial of due process if the decision was rendered on the basis of evidence contained in the record and disclosed to the parties affected. C. a) Torre was constructively dismissed, as held in Equitable Banking Corporation v. National Labor Relations Commission, 273 SCRA 352. Allowing an employee to report for work without being assigned any work constitutes constructive dismissal. b) Torre is correct in saying that he was not given the chance to be heard. The meetings in the nature of consultations and conferences cannot be considered as valid substitutes for the proper observance of notice and hearing.

1998 BAR EXAMINATION

I TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES The Department of National Defense entered into contract with Raintree Corporation for the supply of ponchos to the Armed Forces of the Philippines (AFP), stipulating that, in the event of breach, action may be filed in the proper court in Manila. Suppose the AFP fails to pay for delivered ponchos where must Raintree Corporation file its claim? Why?

SUGGESTED ANSWER:

Raintree Corporation must file its claim with the Commission on Audit. Under Section 2(1) IX-D of the Constitution, the Commission on Audit has the authority to settle all accounts pertaining to expenditure of public funds. Raintree Corporation cannot file a case in court. The Republic of the Philippines did not waive its immunity from suit when it entered into the contract with Raintree Corporation for the supply of ponchos for the use of the Armed Forces of the Philippines. The contract involves the defense of the Philippines and therefore relates to a sovereign function. In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held: "The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the project are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order: they are not utilized for nor dedicated to commerce or business purposes" The provision for venue in the contract does not constitute a waiver of the State immunity from suit, because the express waiver of this immunity can only be made by a statute. In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled: "Apparently respondent Judge was misled by the terms of the contract between the private respondent, plaintiff in his sala, and defendant Rice and Com Administration which, according to him, anticipated the case of a breach of contract between the parties and the suits that may thereafter arise. The consent, to be effective though, must come from the State acting through a duly enacted statute as pointed out

by Justice Bengzon in Mobil."

ALTERNATIVE ANSWER: In accordance with the doctrine of exhaustion of administrative remedies, Raintree Corporation should first file a claim with the Commission on Audit. If the claim is denied, it should file a petition for certiorari with the Supreme Court.

II Topic: Administrative rulings subject to final determination of the courts Andres Ang was born of a Chinese father and a Filipino mother in Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was naturalized as a Filipino citizen On May 11, 1998. Andres Ang was elected Representative of the First District of Sorsogon. Juan Bonto who received the second highest number of votes, filed a petition for Quo Warranto against Ang. The petition was filed with the House of Representative Electoral Tribunal (HRET). Bonto contends that Ang is not a natural born citizen of the Philippines and therefore is disqual1fied to be a member of the House. The HRET ruled in favor of Ang. Bonto filed a petition for certiorari in the Supreme Court. The following issues are raised: 1. Whether the case is justiciable considering that Article VI. Section 17 of the Constitution declares the HRET to be the sole Judgeof all contests relating to the election returns and disqualifications of members of the House of Representatives. 2. Whether Ang is a natural born citizen of the Philippines. How should this case be decided?

SUGGESTED ANSWER: 1. The case is justiciable. As stated in Lazatin vs.House Electoral Tribunal. 168 SCRA 391, 404, since judicial power includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, the Supreme Court has the power to review the decisions of the House of Representatives Electoral Tribunal in case of grave abuse of discretion on its part. 2. Andres Ang should be considered a natural born citizen of the Philippines. He was born of a Filipino mother on January 20, 1973. This was after the effectivity of the 1973 Constitution on January 17, 1973. Under Section (I), Article III of the 1973 Constitution, those whose fathers or-mothers are citizens of the Philippines are citizens of the Philippines. Andres Ang remained a citizen of the Philippines after the effectivity of the 1987 Constitution. Section 1. Article IV of the 1987 Constitution provides: "The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution:"

III TOPIC: SELF INCRIMINATION Suppose Congress passed a law to implement the Constitutional principle that a public office is a public trust, by providing as follows: "No employee of the Civil Service shall be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in any administrative investigation concerning the office in which he is employed on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture: but his testimony or any

evidence produced by him shall not be used against him in criminal prosecution based on the transaction, matter or thing concerning which is compelled, after invoking his privilege against selfincrimination to testify or produce evidence. Provided, however, that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying nor shall he be exempt from demotion or removal from office. Any employee who refuses to testify or produce any documents under this Act shall be dismissed from the service." Suppose further, that Ong, a member of the Professional Regulatory Board, is required to answer questions in an investigation regarding a LEAKAGE in a medical examination. 1. Can Ong refuse to answer questions on the ground that he would incriminate himself? 2. Suppose he refuses to answer, and for that reason, is dismissed from the service; can he pausibly argue that the Civil Commission has inferred his guilt from his refusal to answer in violation of the Constitution? 3. Suppose on the other hand, he answers the question and on the basis of his answers, he is found guilty and is dismissed. Can he pausibly assert that his dismissa1 is based on coerced confession?

SUGGESTED ANSWER: 1. No. Ong cannot refuse to answer the question on the ground that he would incriminate himself, since the Jaw grants him immunity and prohibits the use against him in a criminal prosecution of the testimony or evidence produced by him. As stated by the United States Supreme Court in Brown vs. Walker, 161 U.S.591, 597, what the constitutional prohibition against self-incrimination seeks to prevent is the conviction of the witness on the basis of testimony elicited from him. The rule is satisfied when he is granted immunity.

ALTERNATIVE ANSWER:

1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108, if Ong is being cited merely as a witness, he may not refuse to answer. However, if the question tends to violate his right against self-incrimination, he may object to it. On the other hand, under the ruling in Chavez vs. Court of Appeals. 24 SCRA 663, 680, if be is a respondent, Ong may refuse to answer any question because of his right against self-incrimination.

SUGGESTED ANSWER: 2. No Ong cannot argue that the Civil Service Commission inferred his guilt from his refusal to answer. Be was not dismissed because of his involvement in the leakage in the medical examination but for his refusal to answer. This is a violation of the law. He could be compelled to answer the question on pain of being dismissed in case of his refusal, because he was granted immunity.

In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States Supreme Court said: "Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Shilitani vs. United States, 384 US 364, 16 L Ed 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of

employment." 3. Yes, Ong can argue that his dismissal was based on coerced confession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the United States Supreme Court held: "We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of the body politic."

IV TOPIC: LIMITATIONS OF POWER The police had suspicions that. Juan Samson, member of the subversive New-Proletarian Army, was using the mail for propaganda purposes in gaining new adherents to its cause. The Chief of Police of Bantolan., Lanao del Sur ordered the Postmaster of the town to intercept and open all mail addressed to and coming from Juan Samson in the interest of the national security. Was the order of the Chief of Police valid?

SUGGESTED ANSWER: No, the order of the Chief of Police is not valid, because there is no law which authorizes him to order the Postmaster to open the letters addressed to and coming from Juan Samson. An official in the Executive Department cannot interfere with the privacy of correspondence and communication in the absence of a law authorizing him to do so or a lawful order of the court. Section 3(1), Article III of the Constitution provides: "The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."

IV

TOPIC: JURISDICITON Suppose a Commissioner of the COMELEC is charged before the Sandiganbayan for allegedly tolerating violation of the election laws against proliferation of prohibited billboards and election propaganda with the end in view of removing him from office. Will the action prosper?

SUGGESTED ANSWER: No, the action will not prosper. Under Section 8 Article Xl of the Constitution. the Commissioners of the Commission on Elections are removable by impeachment. As held in the case of In re Gonzales, 160 SCRA 771,774-775, a public officer who is removable by impeachment cannot be charged before the Sandiganbayan with an offense which carries with it the penalty of removal from office unless he is first impeached. Otherwise, he will be removed from office by a method other than impeachment.

1997 BAR EXAMINATION I TOPIC: ADMINISTRATIVE CODE Are the government-owned or controlled corporations within the scope and meaning of the "Government of the Philippines"? Suggested Answer: Section 2 of the Introductory Provisions of the Administrative Code of 1987 defines the government of the Philippines as the corporate governmental entity through which the functions of government are

exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. Government-owned or controlled corporations are within the scope and meaning of the Government of the Philippines if they are performing governmental or political functions. II TOPIC: ADMINISTRATIVE CODE FLAG CEREMONY Section 28, Title VI, Chapter 9, of the Administrative Code of 1987 requires all educational institutions to observe a simple and dignified flag ceremony, including the playing or singing of the Philippine National Anthem, pursuant to rules to be promulgated by the Secretary of Education, Culture and Sports. The refusal of a teacher, student or pupil to attend or participate in the flag ceremony is a ground for dismissal after due investigation. The Secretary of Education, Culture and Sports issued a memorandum implementing said provision of law. As ordered, the flag ceremony would be held on Mondays at 7:30 a.m. during class days. A group of teachers, students and pupils requested the Secretary that they be exempted from attending the flag ceremony on the ground that attendance thereto was against their religious belief. The Secretary denied the request. The teachers, students and pupils concerned went to the Court to have the memorandum circular declared null and void. Decide the case. Suggested Answer: The teachers and the students should be exempted from the flag ceremony. As held in Ebralinag vs. Division Superintendent of Schools of Cebu, 251 SCRA 569 , to compel them to participate in the flag ceremony will violate their freedom of religion. Freedom of religion cannot be impaired except upon the showing of a clear and present

danger of a substantive evil which the State has a right to prevent. The refusal of the teachers and the students to participate in the flag ceremony does not pose a clear and present danger.

1996 BAR EXAMINATION I TOPIC: ADMINISTRATIVE REMEDIES 1. Distinguish the doctrine of primary jurisdiction from the doctrine of exhaustion of administrative remedies. 2. Does the failure to exhaust administrative remedies before filing a case in court oust said court of jurisdiction to hear the case? Explain. Suggested Answer: 1. The doctrine of primary jurisdiction and the doctrine of exhaustion of administrative remedies both deal with the proper relationships between the courts and administrative agencies. The doctrine of exhaustion of administrative remedies applies where a claim is cognizable in the first instance by an administrative agency alone. Judicial interference is withheld until the administrative process has been completed. As stated in Industrial Enterprises, Inc. vs. Court of Appeals, 184 SCRA 426, the doctrine of primary jurisdiction applies where a case is within the concurrent jurisdiction of the court and an administrative agency but the determination of the case requires the technical expertise of the administrative agency. In such a case, although the matter is within the jurisdiction of the court, it must yield to the jurisdiction of the administrative case.

2. No, the failure to exhaust administrative remedies before filing a case in court does not oust the court of jurisdiction to hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384,

the failure to exhaust administrative remedies does not affect the jurisdiction of the court but results in the lack of a cause of action, because a condition precedent that must be satisfied before action can be filed was not fulfilled.

1995 BAR EXAMINATION I TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY The Municipality of Binangonan, Rizal passed a resolution authorizing the operation of an open garbage dumpsite in a 9-hectare land in the Reyes Estate within the Municipality's territorial limits. Some concerned residents of Binangonan filed a complaint with the Laguna Lake Development Authority (LLDA) to stop the operation of the dumpsite due to its harmful effects on the health of the residents. The LLDA conducted an on-site investigation, monitoring, testing and water sampling and found that the dumpsite would contaminate Laguna de Bay and the surrounding areas of the Municipality. The LLDA also discovered that no environmental clearance was secured by the Municipality from the Department of Environment and Natural Resources (DENR) and the LLDA as required by law. The LLDA therefore issued to the Binangonan Municipal Government a cease and desist order to stop the operation of the dumpsite. The Municipality of Binangonan filed a case to annul the order issued by the LLDA. 1. Can the Municipality of Binangonan invoke police power to prevent its residents and the LLDA from interfering with the operation of the dumpsite by the Municipality? Explain. 2. Can the LLDA justify its order by asserting that the health of the residents will be adversely affected? Explain. Suggested Answer: 1. No, the Municipality of Binangonan cannot invoke its police

power. According to Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA is mandated to promote the development of the Laguna Lake area, including the surrounding Province of Rizal, with due regard to the prevention of pollution. The LLDA is mandated to pass upon and approve or disapprove all projects proposed by local government offices within the region. 2. Yes, the LLDA can justify its order. Since it has been authorized by Executive Order No. 927 to make orders requiring the discontinuance of pollution, its power to issue the order can be inferred from this. Otherwise, it will be a toothless agency. Moreover, the LLDA is specifically authorized under its Charter to issue cease and desist orders.

1991 BAR EXAMINATION I TOPIC: ADMINISTRATIVE BODIES OR AGENCY On July 1991, the Energy Regulatory Board (ERB), in response to public clamor, issued a resolution approving and adopting a schedule for bringing down the prices of petroleum products over a period of one (1) year starting 15 August 1991, over the objection of the oil companies which claim that the period covered is too long to prejudge and foresee. Is the resolution valid? Suggested Answer: No, the resolution is not valid, since the Energy Regulatory Board issued the resolution without a hearing. The resolution here is not a provisional order and therefore it can only be issued after appropriate notice and hearing to affected parties. The ruling in Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an order provisionally reducing the rates which a public utility could charge, could be issued without previous

notice and hearing, cannot apply. 1990 BAR EXAMINATION I TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquino created the Presidential Commission on Good Government (PCGG) and empowered it to sequester any property shown prima facie to be illgotten wealth of the late President Marcos, his relatives and cronies. Executive Order No. 14 vests on the Sandiganbayan jurisdiction to try hidden wealth cases. On April 14, 1986, after an investigation, the PCGG sequestered the assets of X Corporation, Inc. (1) X Corporation, Inc, claimed that President Aquino as President, could not lawfully issue Executive Orders Nos. 1, 2, 14, which have the force of law, on the ground that legislation is a function of Congress. Decide. (2) Said corporation also questioned the validity of the three executive orders on the ground that they are bills of attainder and, therefore, unconstitutional. Decide Suggested Answer: (1) The contention of X Corporation should be rejected. Executive orders Nos. 1, 2 and 14 were issued in 1986. At that time President Corazon Aquino exercised legislative power Section 1, Article II of the Provisional Constitution established by Proclamation No. 3, provided: "Until a legislature is elected and convened under a new constitution, the President shall continue to exercise legislative power." In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas, Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that the Provisional Constitution and the 1987 Constitution, both recognized the power of the President to exercise legislative powers until the first Congress created under the 1987 Constitution was convened on

June 27, 1987. (2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. A bill of attainder is a legislative act which inflicts punishment without trial. On the contrary, the expressly provide that any judgment that the property sequestered is ill-gotten wealth is to be made by a court (the Sandiganbayan) only after trial. II TOPIC: LAW ON PUBLIC OFFICERS A. After 2 February 1987, the Philippine National bank (PNB) grants a loan to congressman X. Is the loan violative of the Constitution? Suppose the loan had instead been granted before 2 February 1987, but was outstanding on that date with a remaining balance on the principal in the amount of P50,000, can the PNB validly give Congressman X an extension of time after said date to stele the obligation? B. For being notoriously undesirable and recidivist, Jose Tapulan, an employee in the first level of the career service in the Office of the Provincial Governor of Masbate, was dismissed by the Governor without formal investigation pursuant to Section 40 of the Civil Service Decree (P.D. No. 807) which authorizes summary proceedings in such cases. As a lawyer of Jose what steps, if any, would you take to protect his rights? Suggested Answer: A. whether or not the loan is violative of the 1987 Constitution depends upon its purpose, if it was obtained for a business purpose, it is violative of the Constitution. If it was obtained for some other purpose, e.g. for housing, it is not violative of the Constitution because under Section 16, Article XI, Members of Congress are prohibited from obtaining loans from government-owned banks only if it is for a business purpose. If the loan was granted before the effectivity of the Constitution on

February 2, 1987, the Philippine National Bank cannot extend its maturity after February 2, 1987, if the loan was obtained for a business purpose. In such case the extension is a financial accommodation which is also prohibited by the Constitution. B. Section 40 of the Civil Service Decree has been repealed by republic Act No. 6654. As a lawyer of Jose Tapulan, I will file a petition for mandamus to compel his reinstatement. In accordance with the ruling in Mangubat vs. Osmea, G.R. No. L-12837, April 30, 1959, there is no need to exhaust all administrative remedies by appealing to Civil Service Commission, since the act of the governor is patently illegal.

1989 BAR EXAMINATION I TOPIC: LAW ON PUBLIC OFFICERS An existing law grants government employees the option to retire upon reaching the age of 57 years and completion of at least 30 years of total, government service. As a fiscal retrenchment measure, the Office of the President later issued a Memorandum Circular requiring physical incapacity as an additional condition for optional retirement age of 65 years. A government employee, whose application for optional retirement was denied because he was below 65 years of age and was not physically incapacitated, filed an action in court questioning the disapproval of his application claiming that the Memorandum Circular is void. Is the contention of the employee correct? Explain. Suggested Answer: Yes, the contention of the employee is correct. In Marasigan vs. Cruz, SCRA , it was held that such memorandum circular is void. By introducing physical capacity as additional condition for optional retirement, the memorandum circular tried to amend the law. Such power is lodged with the legislative branch and not with the

executive branch. II TOPIC: LAW ON PUBLIC OFFICERS In 1986, F, then the officer-in-charge of Botolan, Zambales, was accused of having violated the ANTI-Graft and Corrupt Practices Act before the Sandigan Bayan. Before he could be arraigned, he was elected Governor of Zambales. After his arraignment, he put under preventive suspension by the Sandiganbayan " for the duration of the trial". (1) Can F successfully challenge the legality of his preventive suspension on the ground that the criminal case against him involved acts committed during his term as officer-in-charge and not during his term as Governor? (2) Can F validly object to the aforestated duration of his suspension? Suggested Answer: (1) No, F cannot successfully challenge the legality of his preventive suspension on the ground that the criminal case against him involve acts committed during his term as OIC and not during his term as governor because suspension from office under Republic Act 3019 refers to any office that the respondent is presently holding and not necessarily to the one which he hold when he committed the crime with which he is charged. This was the ruling in Deloso vs. Sandiganbayan, 173 SCRA 409 (2) Yes, F Can validly object to the duration of the suspension. In Deloso vs. Sandiganbayan, 173 SCRA 409, it was held that the imposition of preventive suspension for an indefinite period of time is unreasonable and violates the right of the accused to due process. The people who elected the governor to office would be deprived of his services for an indefinite period, and his right to hold office would be nullified. Moreover, since under Section 42 of the Civil Service Decree the duration of preventive suspension should be

limited to ninety (90) days, equal protection demands that the duration of preventive suspension under the Anti-Graft and Corrupt Practices Act be also limited to ninety (90) days only.

ELECTION LAWS QUESTIONS AND ANSWERS

Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,

Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor filed a petition to annul/nullify his certificate of candidacy and/or to disqualify on the ground that Cayat has been convicted of a crime involving moral turpitude. Twenty three days before the election, Cayats disqualification became final and executory. He, however won and was proclaimed and assumed office. Palileng filed an electoral protest contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and contended that he should succeed Cayat in case he is disqualified because Palileng was only a second placer, hence, he cannot be declared as the winner. Is the contention of the Vice-Mayor correct? Why?

ANS: No, because there was no second placer, hence, Palileng should be proclaimed as the winner on the following grounds:

First, the COMELECs Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty-three days before the election day, Cayat was already disqualified by final judgment to run for Mayor in the 10

May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsans favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayats disqualification became final only after the elections. (Cayat v. COMELEC, April 27, 2007).

It was contended that the doctrine of rejection of the second placer laid down in

Labo v. COMELEC should apply. Is the contention correct? Why?

ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the second placer, does not apply because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases because the judgment declaring the candidates disqualification in Labo and the other cases had not become final b efore the elections. Labo and other cases applying the doctrine on the rejection of the second

placer have one common essential condition the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case. (Cayat v. COMELEC).

Reason in Labo.

In Labo, Labos disqualification became final only on 14 May 1992, three days after the 11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the case of Cayat he was disqualified by final judgment 23 days before the 10 May 2004 lections. On election day, Cayat was no longer legally a candidate for mayor. In short, Cayats candidacy for Mayor was legally non-existent in the 10 May 2004 elections.

What is the effect if a candidate is disqualified by final judgment? Explain.

ANS: The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

Any candidate who has been declared by final judgment to be disqualified shall not be

voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8, 164 votes cast in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper because he was the sole and only candidate, second to none. (Cayat v. COMELEC).

Why is the proclamation of Cayat void? Explain.

ANS: Cayats proclamation is void because the decision disqualifying him had already become final on 17 April 2004. There is no longer any need to ascertain whether there was actual knowledge by the voters of his disqualification when they casted their votes on election day because the law mandates that Cayats votes shall not be counted. There is no disenfranchisement of the voters. Rather, the voters are deemed by law to have deliberately voted for a non-candidate, and thus their votes are stray and shall not be counted. (Cayat. v. COMELEC).

Is the intervention of the Vice-Mayor proper? Why?

ANS: No. The petition-in-intervention should be rejected because the doctrine on the rejection of the second placer does not apply to this case. The doctrine applies only if the winning candidates disqualification has not yet become final and executory before the election. In this case, the disqualification was final and executory before the election, hence, there was no second placer. (Cayat v. COMELEC).

Three-term limit; even if as caretaker.

Mayor Marino Morales ran for a fourth term despite having served for three (3)

consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel his certificate of candidacy, he alleged that while he served his second term, he did it as

a caretaker of the office or as a de facto officer because he was suspended by the Ombudsman from January 16, 1999 to July 15, 1999 and that his proclamation was declared void and which became final and executory on August 6, 2001. The COMELEC declared him disqualified. Before the Supreme Court, he contended that his second term from July 1, 1999 to June 30, 2001 may not be counted since his proclamation was void. Is the contention correct? Why?

ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full term, hence, the three-term limit rule applies to him. This is especially so that he assumed office. He served as mayor up to June 30, 2001. He was mayor for the entire period notwithstanding the decision in the electoral protest case ousting him as mayor. As held in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473, such circumstance does not constitute an interruption in serving the full term. In Ong, he served the full term even as there was a declaration of failure of election.

Section 8, Article X of the Constitution provides that the terms of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x

Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no local official shall serve for more than three consecutive terms in the same position.

Morales has been mayor of Mabalacat continuously without any break since July 1, 1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and

Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).

Explain the reason for the maximum term limit.

ANS: The framers of the Constitution wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms.

As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601, the three-term limit is an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and companion case, May 9, 2007).

Is not the case of Morales similar to the case of Lonzanida v COMELEC?

Explain.

ANS: No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily vacated when there was a declaration of failure of election. He did not fully serve the term, hence, he was qualified to run for a third term.

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of failure of election, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void. As ruled, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. There is no reason why this ruling should not also apply to Morales who is similarly situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007).

Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?

ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by virtue of the principle of succession, he being the vice-mayor. He was not therefore, elected even if he served the rest of the term of the mayor, hence, his assumption of the office of the mayor upon the death of the incumbent mayor may not be regarded as a term.

Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90, it was held that assumption of the office of mayor in a recall election for the remaining term is not the term contemplated under Section 8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local Government Code). There was a break in the service of the mayor. He was a private citizen for a time before running for mayor in the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).

Q What is the effect if the certificate of candidacy of a candidate is cancelled? Explain.

ANS: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. (Secs. 6 and 7, RA

6646).

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus Election Code).

Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him should not be counted and must be considered stray votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007).

It was contended that since Morales was disqualified, the second placer should

be proclaimed as the winner. Is the contention correct? Why?

ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate cannot be proclaimed as a substitute winner.

The rule is that, the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

As a consequence of ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Sec. 44 of the Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297).

What are the requirements which must concur for the three-term limit to apply?

ANS: For the three-term limit to apply, the following two conditions must concur:

1)

that the official concerned has been elected for three consecutive terms in the

same local government post; and

2)

that he has fully served three consecutive terms. (Lonzanida v. COMELEC,

G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473; Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).

Effect if there is a tie.

What is the proper procedure to be resorted to in case of a tie? Explain.

ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of votes. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March 2, 2007).

Withdrawal of certificate of candidacy.

Hans Roger filed his certificate of candidacy but withdrew the same. He was

substituted by Joy Luna but the COMELEC denied due course to her certificate on the ground that Hans being under age, he could not have filed a valid certificate of candidacy. There was, however, no petition to deny Hans certificate of candidacy. Did the COMELEC act correctly? Why?

ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. (Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v. Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due court to or cancel the certificate of candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a

valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Lunas certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Rogers certificate of candidacy and declared the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983, April 24, 2007).

Pre-proclamation controversy; extent of power of COMELEC.

What is the extent of the power of the COMELEC in pre-proclamation

controversy? Explain.

ANS: It is a well-established rule in pre-proclamation cases that the Board of Canvassers is without jurisdiction to go beyond what appears on the face of the election return. The rationale is that a full reception of evidence aliunde and the meticulous examination of voluminous election documents would run counter to the summary nature of a pre-proclamation controversy. However, this rule is not without any exception. In Lee v. Commission on Elections, it was held that if there is a prima facie showing that the return is not genuine, several entries having been omitted in the questioned election return, the doctrine does not apply. The COMELEC is thus not powerless to determine if there is basis for the exclusion of the questioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al. v. COMELEC, et al., G.R. No. 171882, April 3, 2007).

Handwritings have only one general appearance.

May the COMELEC invalidate certain ballots merely on a finding that the writings

have the same general appearance and pictorial effect? Explain.

ANS: No. General resemblance is not enough to warrant the conclusion that two writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).

In order to reach the conclusion that two writings are by the same hand there must not only be present class characteristics but also individual characteristics or dents and scratches in sufficient quantity to exclude the theory of accidental coincidence; to reach the conclusion that writings are by different hands we may find numerous likeness in class characteristics but divergences in individual characteristics, or we may find divergences in both, but the divergence must be something more than mere superficial differences. (Osborns Questioned Documents, p. 244; Delos Reyes v. COMELEC, et al., G.R. No. 170070, February 28, 2007).

Neighborhood rule.

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a candidate for the wrong or inexistent office. In appreciating such votes, the COMELEC may applied the neighborhood rule. As used by the Court, this nomenclature, loosely based on a rule of the same name devised by the House of Representatives Electoral Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34, June 16, 1989, 1 HRET Rep. 138), refers to an exception to the rule on appreciation of misplaced votes under Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

Section 211(19) is meant to avoid confusion in the minds of the election officials as to the candidates actually voted for and to stave off any scheming design to identify the vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of our election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)). Section 211(19) also enforces Section 195 of the Omnibus Election Code which provides that in preparing the ballot, each voter must fill his ballot by writing in the proper place for each office the name of the individual candidate for whom he desires to vote.

Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire series of names intended to be voted for the successive offices appearing in the ballot (Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152 Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5

SCRA 438) misplacement of names where such names were preceded or followed by the title of the contested office or where the voter wrote after the candidates name a directional symbol indicating the correct office for which the misplaced name was intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a name written (a) off-center from the designated space (Mandac v. Samonte, 54 Phil. 706 (1930)), (b) slightly underneath the line for the contested office (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)), (c) immediately above the title for the contested office ((Villavert v. Fornier, 84 Phil. 756 (1949)), or (d) in the space for an office immediately following that for which the candidate presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496 SCRA 505 and Ferrer v. Commission on Elections, 386 Phil. 431 (2000)). In these instances, the misplaced votes are nevertheless credited to the candidates for the office for which they presented themselves because the voters intention to so vote is clear from the face of the ballots. This is in consonance with the settled doctrine that ballots should be appreciated with liberality to give effect to the voters will. (Velasco v. COMELEC, et al., G.R. No. 166931, February 22, 2007).

Marked ballot.

When is a ballot considered as marked? Explain.

ANS: In order for a ballot to be considered marked, in the sense necessary to invalidate it, it must appear that the voter designedly place some superfluous sign or mark on the ballot which might serve to identify it thereafter. No ballot should be

discarded as a marked ballot unless its character as such is unmistakable. The distinguishing mark which the law forbids to be placed on the ballot is that which the elector may have placed with the intention of facilitating the means of identifying said ballot, for the purpose of defeating the secrecy of suffrage which the law establishes. Thus, marked ballots are ballots containing distinguishing marks, the purpose of which is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010, February 8, 2007, Tinga, J).

Failure of election.

When is there failure of election?

ANS: There are three instances where a failure of elections may be declared, thus:

(a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or

(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes.

In all three instances, there is a resulting failure to elect. In the first instance, the election has not been held. In the second instance, the election has been suspended. In the third instance, the preparation and the transmission of the election returns give rise to the consequent failure to elect; the third instance is interpreted to mean that nobody emerged as a winner. (Mutilan v. COMELEC, et al., G.R. No. 171248, April 2, 2007).

Note:

None of the three instances is present in this case. In this case, the elections took place. In fact, private respondent was proclaimed the winner. Petitioner contests the results of the elections on the grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable results. Petitioner alleges that no actual election was conducted because the voters did not actually vote and the ballots were filled up by non-registered voters.

May an interlocutory order of a COMELEC Division be the subject of certiorari to

the SC? Explain.

ANS: As a rule, No. The exception is in an unusual case where the petition for certiorari questioning the interlocutory order of a COMELEC Division was pending before the SC, the main case which was meanwhile decided by the COMELEC En Banc was likewise elevated to the Court. Thus, there was a situation where the petition for certiorari questioning the interlocutory orders of the COMELEC Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were consolidated. The issues raised in the petition for certiorari were also raised in the main case and therefore there was actually no need to resolve the petition assailing the interlocutory orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., et al. v. COMELEC, et al., G.R. No. 164496-505, April 2, 2007).

Note:

The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to the SupremeCourt through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc.

Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor

can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division issued a temporary restraining order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary period, which is the Kho case.

The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that it is the decision, order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be brought to the Supreme Court on certiorari. The exception provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory orders of the COMELEC First Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case the petition for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were already consolidated.

The Court also notes that the COMELEC First Division has already issued an Order dated 31 May 2005 dismissing the protests and counter-protests in EPC Nos. 2004-36, 2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-

45 for failure of the protestants and protestees to pay the required cash deposits. Thus, the Court have this peculiar situation where the interlocutory order of the COMELEC First Division is pending before the Court but the main case has already been dismissed by the COMELEC First Division. This situation is precisely what the Court are trying to avoid by insisting on strict compliance of the rule that an interlocutory order cannot by itself be the subject of an appeal or a petition for certiorari.

Misrepresentation in a certificate of candidacy; effect.

Q When is misrepresentation in a certificate of candidacy material? Explain.

ANS: A misrepresentation in a certificate of candidacy is material when it refers to a qualification for elective office and affects the candidates eligibility. Second, when a candidate commits a material misrepresentation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidates certificate of cand idacy to be denied due course or cancelled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007).

Q If a candidate misrepresents his profession, is he disqualified? Explain.

ANS: No. No elective office, not even the office of the President of the Republic of the Philippines, requires a certain profession or occupation as a qualification.

Profession or occupation not being a qualification for elective office, misrepresentation of such does not constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from running for office under Section 78 as his or her certificate of candidacy cannot be denied due course or canceled on such ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007).