ADMIN LAW CLASS (ATTY. ALEJANDRIA) Legislative power is the power to make, alter and repeal laws.

It is a constitution-conferred
power. It is exclusive. The only exception is that reserved for the people by way of
HANDOUT #1
INITIATIVE OR REFERENDUM.
DATE POSTED: JAN. 30
U.S V. BARRIAS, 11 Phil. 327 (1908).
FUNCTIONS OF LOWER EXECUTIVE OFFICERS
DELEGATION OF LEGISLATIVE POWER TO THE PRESIDENT
Executive Secretary
The Constitution makes the delegation of legislative power to the:
. Assist the President in the management of affairs pertaining to the Government of the
. President
Republic of the Philippines
. Supreme Court
Department Secretary . Local government units.
. Advise the President in issuing executive orders, regulations, proclamations and other
Apart from the Constitutional provision authorizing Congress to delegate to the President the
issuances.
exercise of legislative powers on specified subjects therein provided, the Administrative Code
Undersecretaries of 1987 also delegates to the President certain ordinance powers in the form of presidential
. Advise and assist the Secretary in the formulation and implementation of department issuances, like:
objectives and policies. . Executive/administrative orders (rules in implementation or execution of constitutional or
Asst. Secretary statutory powers).
. Perform such functions as may be provided by law or assigned to him by the Secretary. . Proclamations (acts of the President fixing a date or declaring a status or condition of public
POWER OF INVESTIGATION moment or interest).
. Given to executive or administrative officials or agencies for a number of purposes, . Memorandum orders/circulars (acts of the President on matters of administrative detail or
EXAMPLES: of subordinate or temporary interest, which concerns a PARTICULAR officer or office of the
. Information gathering to recommend appropriate action by other agencies, like the Human government; INTERNAL in nature)
Rights Commission. . General/special orders (acts of the President in his capacity as Commander in Chief of the
. For prosecution purposes, like the Office of the Prosecutor. Armed Forces of the Philippines).
. In aid in the exercise of other powers granted them, like the Securities and Exchange DELEGATION OF LEGISLATIVE POWER TO THE SUPREME COURT
Commission. The Constitution vests upon the Supreme Court rule-making powers. This is the delegation of
( Some agencies are given the power of investigation for one or for two/combined legislative power to it. The Supreme-Court's creation of the Rules of Procedure is a product
purpose(s). of this delegation.
The COMELEC is given investigative powers both for the execution of election laws AND for FIRST LEPANTO CERAMICS INC. V. CA 49 SCAD 405 (1994)
prosecution of election offenses. DELEGATION OF LEGISLATIVE POWER TO LOCAL GOVERNMENTS
The Commission on Human Rights and the National Bureau of Investigation are given purely Sec. 48 of the Local Government Code of 1991provides that legislative powers shall be
investigative and informational powers. exercised by the Sangguninang Panlalawigan, Sangguniang Bayan/Panglungsod and
CARINO V. COMM. ON HUMAN RIGHTS 204 SCRA 483 (1991) Sangguniang Barangay.
OMBUDSMAN RULE : LEGISLATIVE POWER CAN BE DELEGATED. HOWEVER, THE DOCTRINE OF
The Office of the Ombudsman is a Constitutional creation. This office protects the people SEPARATION OF POWERS PROHIBITS THE DELEGATION OF THOSE POWERS THAT ARE
against abuses of government officials and employees. STRICTLY OR INHERENTLY AND EXCLUSIVELY LEGISLATIVE.
The Ombudsman has investigative and prosecutorial powers. In short, what the law shall be, to whom it may be applied, or what acts are necessary to
effectuate the law are strictly legislative powers and therefore cannot be delegated.
It may investigate unsigned or unverified complaints.
Delegation of legislative power is the RULE; non-delegation is more the EXCEPTION. The
It can also grant immunity from criminal prosecution.
reason for this is the INCREASING COMPLEXITY OF MODERN LIFE AND MANY TECHNICAL
QUASI-LEGISLATIVE POWER FIELDS OF GOVERNMENTAL FUNCTIONS.
J.M. TUASON V. LAND TENURE ADMINISTRATION 31 SCRA 413 (1970).
MACEDA V. MACARAIG, JR. 197 SCRA 771(1991).
Rule-making power of an Administrative Agency means its power to issue rules and TATAD V. SEC. IF THE DEPT. OF ENERGY 89 SCAD 335 (1997).
regulations. Statutes are generally couched in general terms. Administrative agencies, to COMPLETENESS TEST -the law must be complete in all its items and conditions when it
whom the implementation of the statute are delegated, need to issue rules containing details leaves the legislature such that when it reaches the delegate, the only thing he will have to
or manner of carrying out the law. This is the rule-making power of administrative agencies. do is enforce it.
Rule-making Power is not the same as Administrative Function. Rule-making is the SFFICIENT STANDARD TEST - there must be adequate guidelines or limitations in the law to
promulgation of rules and regulations TO CARRY OUT THE POLICY; administrative function of map out the boundaries of the delegate's authority and prevent the delegation from running
agencies is the REGULATION AND CONTROL of the CONDUCT OF INDIVIDUALS FOR THEIR riot.
OWN WELFARE.
BOTH TESTS are intended to prevent a total transference of legislative authority to the
Rule-making is also different from Quasi-judicial power of agencies. The latter is the delegate who is not allowed to step into the shoes of the legislature and exercise a power
determination of rights, privileges and duties by an administrative agency resulting in a essentially legislative. EASTERN SHIPPING LINES, INC. V. POEA, 166 SCRA 533(1988).
decision or order.
PELAEZ V. AUDITOR GENERAL 15 SCRA 569 (1965)
When an administrative agency exercises a quasi-legislative power, there is no need for
If a law is incomplete, its delegation for execution to an executive department could be ruled
notice and hearing. When it exercises quasi-judicial act, there is a need for notice and
as invalid for not having met the completeness test.
hearing.
In the case of U.S. V. ANG TANG HO, 43 PHIL 1, it was ruled: "If the law within itself does
AGAIN, WHAT CANNOT BE DELEGATED? The doctrine of Separation of Powers prohibits
not define a crime and it is not complete and some legislative act remains to be done to
delegation of what is PURELY LEGISLATIVE IN NATURE.
make it a law or a crime,x x x the act of delegation is void."
What is purely legislative in nature?
SUFFICIENT STANDARD TEST - The legislature must declare the policy or purpose of the law
. Power to make the law
and must fix the legal principles which are to control in given cases by setting up standards
. To determine what the law shall be
or guides to indicate the extent, and prescribe the limits of the discretion, which must be
. To alter or repeal it.
exercised under the statute by the administrative agency.
Stated differently, determination of whether there should be a law or not, determination of
The standard must be reasonably adequate , sufficient and definite for the guidance of the
what the purpose or policy of the law or fixing the limits of the law cannot be delegated as
administrative agency in the exercise of the power conferred and it must also be sufficient to
these are strictly legislative in nature.
enable those affected to know their rights and obligations.
Example: The need to give LGUs autonomy (this is strictly legislative (hence, the Legislature
Examples of sufficient standards:
came up with the Local Government Code - LGC). What is delegated to LGUs is the power to
. "Fair and equitable employment practices" (Eastern shipping Lines v. POEA)
come up with ordinances elaborating, detailing, implementing the LGC).
. "Public interest" (People v. Rosenthal)
Therefore, where there is ALREADY a statute and what is needed is ONLY to elaborate, . "Public convenience and welfare" (Calalang v. Williams)
clarify, fix, or expound, in order to implement the statute, this is what can be properly . "Simplicity, economy and efficiency" (Cervantes v. Auditor General)
delegated.
What can be delegated?
. Discretion as to how the law shall be enforced
. Issue rules to fill in details
. Ascertain facts on which the law will operate
. Police power
. Fix rates
REMEMBER, a delegation of Legislative Power to be valid must pass two tests, namely:
. COMPLETENESS TEST
. SUFFICIENCY OF STANDARD TEST
In COMPANIA GENERAL DE TABACOS DE FILIPINAS V. BOARD OF PUBLIC UTILITY
COMMISSIONERS, the cardinal rule was enunciated, thus ( in essence): making the law
cannot be delegated; the discretion as to what it shall be and conferring authority or
discretion to its execution, can be.
HANDOUT # 2
DATE POSTED: MARCH 9
DOCTRINE OF PRIMARY JURISDICTION - This doctrine requires that a plaintiff should first
seek relief in an Admin proceeding before he seeks a remedy in court, even though the
matter is properly presented to the court, which is within its jurisdiction.
It applies where a claim is originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an Admin body; in such case, the judicial
process is suspended pending referral of such issues to the Admin body for its resolution.
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES - Under this doctrine, the case
is cognizable in the first instance by an administrative agency alone, judicial interference
being withheld until the Admin agency process has run its course and the agency action is
ripe for review.
Under the doctrine of PRIMARY JURISDICTION, the court proceedings is SUSPENDED until
the matter is threshed out administratively.
The two doctrines are different.
Under the doctrine of PRIMARY JURISDICTION, the case is cognizable BOTH by the court
and the Admin agency.
The doctrine of PRIMARY JURISDICTION does not apply in a case where the admin agency
has NO jurisdiction over the case.
EXHAUSTION OF REMEDIES suggests that recourse thru the courts cannot prosper until ALL
the remedies have been exhausted at the Admin level. The aggrieved party has to go up the
ladder of remedies, before he finally goes to court. If he goes to court without going thru
these remedies, his suit will be dismissed for being premature. However, if the opposite party
fails to object, he is deemed to have waived his right to object and the case will proceed.
The reason for the doctrine of EXHAUSTION is the separation of powers between the
departments. The courts should not interfere with matters primarily within the competence of
the Admin department. Why? Because the Admin Department is in a better position to
resolve questions addressed to their particular expertise and that errors committed by their
subordinates in their resolution may be rectified by their superiors if given a chance to do so.
The doctrine of EXHAUSTION of Admin remedies was held inapplicable where the issue is
imbued with Public interest, THAT IS, where waiting for all Admin remedies to be exhausted
before the court could act, would result in a debilitating uncertainty (Arrow Trans. Corp. v.
Board of Trans, 63 SCRA 198)
In another case (Begosa v. Chairman, 32 SCRA 466), where the administrative act is patently
illegal, the doctrine of EXHAUSTION was ruled inapplicable.
The doctrine of exhaustion was ruled inapplicable in the ff cases:
. Where the Admin remedy is not adequate
. Where judicial relief is required to prevent violence
. Where the Admin agency acted with no jurisdiction
. Where irreparable damage could ensue
. Where the question is purely legal
. There were many other SC rulings to the effect that the doctrine of exhaustion did not
apply.
JUDICIAL REVIEW - means that a court, in the exercise of their judicial power, can in an
appropriate case, re-examine an act, rule or decision instituted by a party aggrieved by act,
rule or decision of the Admin agency. In the judicial review, the court may decide if the
questioned act, rule or decision has been was validly issued or not or whether the same
should be nullified, affirmed, or modified.
What are subject to judicial review? As a general rule, all Agency action are reviewable.
These are agency rule, order, license, sanction, relief, etc.issued or done by an Admin
agency.
Methods of review (It varies)
. The law itself provide the kind of review that could be done.
. Where the law is silent as to the kind of review, the review could be done under Rule 65 of
the Rules of Court, namely, thru certiorari, prohibition or mandamus (special civil actions).
LIMITATIONS ON JUDICIAL REVIEW
Purely administrative and discretionary functions may not be interfered with by the courts.
Reason: courts gave no supervising power of very administrative agencies.
However, where there is abuse of authority or judgment, the courts may review such abuse
of authority or judgment.
Three inquiries could be made in judicial review, namely:
. Whether the rule is within the delegated authority of the Admin agency
. Whether it is reasonable
. Whether it was issued using proper procedure.
In judicial review, findings of fact by the Admin agency is generally respected. Re questions
of law, however, courts are free to make its review.
Presidential discretion not subject to judicial review. Basis: Separation of Power.
PETITION FOR REVIEW UNDER RULE 43 OF RULES OF COURT - This is the ORDINARY
APPEAL from a final order of the Administrative tribunal/Baird/agency. This appeal is filed
with the Court of Appeals.
On the other hand, CERTIORARI under Rule 65 of the Rules of Court, is a SPECIAL CIVIL
ACTION, seeking to nullify or modify an order or resolution of an Admin body performing
judicial or quasi-judicial functions, which acted without or in excess of jurisdiction or with
grave abuse of discretion. Certiorari is filed if there is NO appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
Period of appeal - 15 days from notice of the award, judgment, final order or resolution.
Appeal is done by verified petition for review. The petition shall contain a certification against
forum shopping.
CA may require Respondent to COMMENT (not file a motion to dismiss) within ten days from.
When all requirements done, resolution ( whips is either giving due course to the petition or
dismissing the petition) follows.
SUBSTANTIAL EVIDENCE WITH FINDINGS ARE GENERALLY BINDING. There are also Test to determine if there was forum shopping - use the res judicata rule, (same cause of
exceptions to the substantial evidence rule. action in first and second actions).
Quasi Judicial Power - it means actions or discretions of administrative officers/bodies Jurisdiction over the person is acquired:
required to investigate facts, hold hearings and draw conclusions from them. Voluntary appearance of party
Quasi-Judicial bodies are organs of government, other than a court and other than a Filing of pleadings
legislature, which exercise adjudicative power affecting the rights of private persons. Paying fine
Other means
Ex. of person/admin body with quasi-Judicial power - A fiscal or prosecutor. Also, the Public
Service Commission. Procedural Steps in Admin cases:
.Complaint
In administrative hearing, strict application of legal technicalities is dispensed with.
.Acquisition of Jurisdiction
Reason for the delegation of quasi-judicial powers : the Legislature, in giving a variety of (Subpoena, contempt)
powers and functions to admin agencies, recognizes the need for these agencies, which .Pretrial Conference
possess technical knowledge and speed not possessed by regular courts, to have quasi- .Default (failure to: appear, file responsive pleading, present evidence)
Judicial powers. .Hearing
Arbitration is the referral of a dispute to an impartial third person for determination, on the Substantial evidence - this is the burden of proof that must be overcome to win in Admin
basis of evidence and arguments presented by the parties, who have bound themselves to cases, which means quantum of evidence must be enough to provide substantial basis on
accept the decision. which to infer fact or truth.
Arbitration could be: voluntary or compulsory Delegation of Quasi-Judicial power - According to the 1987 Admin Code, every agency must
Voluntary is based on agreement of parties have such number of lawyers as hearing officers, etc. This, in effect, confers quasi-judicial
Involuntary is one compelled by the government, for example - Under the Labor Code powers upon Admin agencies.
arbitration is compulsory where the validity of a collective bargaining agreement is in issue. Due Process
Jurisdiction is the power conferred by law on courts and admin agencies with quasi-Judicial . Procedural ( right to notice and hearing)
power to hear and determine certain controversies. . Substantive ( the rules/laws must be fair, and just, otherwise they don't satisfy due process
requirements.
The matter of Jurisdiction could relate to:
. The nature of the action Right to a hearing includes:
. The subject matter of the contest . Right to present one's case
. To the parties to the case. . Right to present one's evidence which should be accorded fair consideration (not arbitrarily
ignored or set aside)
Jurisdiction of the court or Admin agency cannot be conferred by the parties. It can only be
. Decision should be supported
conferred by law. It is not also capable of being waived.
. Evidence must be "substantial"
In a case where there was prior Admin case, and which is now lodged before the court, a . Decision must be based on evidence, which must appear on record
party cannot take a position before the court which is different from the position he took . Decision must be clear to the parties
before the admin board. . Hearing officer must have jurisdiction
Some rules of procedure in admin cases: "Cold neutrality of an impartial judge" means impartial and disinterested hearing officer.
. Technicalities are not followed
The extent of "Prior notice and hearing" requirement must be on the nature of the power to
. Rules of Court are of suppletory
be exercised or the end to be achieved. (To illustrate: notice and hearing are not required in
application. Substantial compliance with the Rules is enough.
cases involving police power, which are so dire and urgent. Also full notice and hearing
. Substantial evidence satisfies the burden of proof.
requirement are not required in cases of nuisance abatement; in cases involving summary
. The 1987 Admin Code applies
dismissal, only minimum notice and hearing is required)
How cases are instituted? By filing a complaint or petition.
In one case, the SC said that a Motion for Reconsideration cures an alleged defect of lack of
Forum Shopping - Improper practice of going from one court to another in the hope of notice and hearing, as the MR affords the movant an oppurtunity to explain his side.
securing a favorable relief.
"Decision" in Admin cases means the whole judgment, which is final, not interlocutory.
Decision must be issued within 30 days of case submission for resolution. This "time
provision" of 30 days is "directory" (not mandatory) according to the SC.
Decision must state clearly the facts
and the law on which same is based, otherwise invalid.
There is a requirement for Admin decisions to be published in a register and be open for
public inspection.
The decision must either be a:
. Relief - something granted
. Sanction -something prohibited
Finality of decision - 15 days after receipt of a copy by party affected, unless there be an
appeal or a judicial review.
Final decisions are not reviewable anymore.
Only one MR is allowed in Admin cases.
Decision by a collegiate body. The collegiate body must decide as such (As a collegiate body)
or as a whole. A decision by a director only or by one member only is void.
Presumption of legality is quite strong re administrative agencies, except in case where a
taxpayer is deprived of his property.
Doctrine of res judicata applicable to Admin case which have become final.
In GSIS v. Civil Service Commission, it was held that the Admin agency which decided the
case has also the
power to issue a writ of execution, even if such power was not specifically given. The SC
added, otherwise, the power given to it to decide would be inutile.
HANDOUT #3 Where the law is silent as to who is the appointing power, the rule is, the President has the
DAET POSTED: MARCH 24ADMIN LAW aappointing power.
Creation of Pub. offices - Generally, a Legislative Power. The Commission on Appointments is composed of the Senate President (as chairman) and 12
and 12 Senators and Congressmen, respectively.
But, may be created by:
1. Constitution, The Commission on Appts.has the duty and power to confirm appointments of Heads of the
2.by law or Executive Dept., members of the diplomatic Corps, members of the military with the rank of
3.by authority of law. colonel and above, and other positions specifically mentioned by law.
How are pub. offices filled? Ad-interim appointments are those made by the Pres. during recess of the Congress, which
. By appointment are valid until disapproved by the Comm. on Appts. or until the next adjournment of
. By election Congress.
. By contract Pres. has the power to issue temporary designations.
. Other modes authorized by law Pres. shall not make appt. in the last 60 days before the end of his term, unless it be
Pub. offfices defined/explained - a public office is one that is occupied by a public officer. extremely necessary. This is called MIDNIGHT APPOINTMENTS. If he does, the appt. could
Public office is a public trust. It is a fiduciary relationship between the officer and the people. be revoked by the incoming Pres.within 90days after the latter has assumed office.
In short, public officers are accountable to the people. Primary purpose of the Civil Service Office is to create a merit system in the selection of
Public office is not property, therefore there can be no vested right to public office. public officials and employees.
Public office is personal to the public officer, therefore, it is not transmissible to his heirs. Civil service covers all branches of government, including government-owned and controlled
PUB. OFFICER refers to a person who performs the duties of his office, not being clerical or corporations.
manual nature, and involves the use of discretion. Open career positions are those that require eligibility on the part of the appointee.
An EMPLOYEE is inferior to the import of a public officer. Strictly speaking, an employee uses Closed career positions are positions that require scientific or highly technical qualifications.
no discretion in undertaking his employment. Non-career positions are those that don’t require eligibility or usual test of merit, or are co-
Pub. Officer could be: terminus or those limited to the duration of a particular project.
. Appointive An appointment is PERMANENT: if the the appointee is eligible, has all the qualifications and
. Elective meets all the requirements of the position.
. Constitutional
Temporary appointments are those which the appointee has no eligibility, but meets all the
. Career
qualifications of the positions, but his stay in the job is good only for a maximum of
. Non-career
12months.
Where the position requires “natural born” requirement, it means the appointee or occupant
Requisites for a valid appointment:
of the position has to be a Filipino citizen from birth, without having to perform any act to
. Appointing authority. Use exist at the time the appointment is made
acquire or perfect his Phil. Citizenship. Or, he must have been born before Jan. 17, 1973, or
. Appointee must be qualified
that he must have a Filipino mother, but elected Phil. Citizenship upon reaching the age of
. There should be a vacancy.
majority.
As a rule, all appointments are to be approved by the Civil Service Commission. This includes
Appointment to a pub. position must be in writing.
original or promotional positions.
APPOINTMENT is the selection by a proper authority of an individual to exercise the functions
The power of the Civil Service Comm. to approve or disapprove appts. does not include the
of a given office.
authority to make appts. or direct the appointing authority to change the employment status
DESIGNATION is the imposition of additional duties upon a person who is already in the of an employee.
public service.
Any person who feels aggrieved by the appt. of a person may file a protest against the appt.
Appointing authority -
The protest must be “for cause”. That is “legal cause”, like (1.) the appointee is not qualified,
1. The president,
(2.) That the appointee is not the next in rank, and (3.) in case of appointment by transfer,
2. courts, heads of depts., agencies, commissions, or boards and
3. such other persons who may be delegated the authority to appoint by the legislature.
reinstatement or by original appt., that the Protestant is not satisfied with the reasons given Double appt. , IF NOT INCOMPATIBLE, is permitted. What is prohibited is DOUBLE
by appointing authority. COMPENSATION.
In one case, it was held that the mere fact that the Protestant is more qualified than the
protestee was ruled as not sufficient cause for the protest.
Revocation or recall of an appt. The general rule is that, once an appt. is made, it is
irrevocable and not subject to reconsideration .
To be successful, a revocation must be made before the appt. is completed or before it has
been approved by the Civil Service Comm.
When is an appt. considered complete? When all requisites are met, when there is a written
appt. and when said appt. has been accepted by the appointee (such as when he has taken
his oath or had started to discharge the functions of the position.
Oath is indispensable.
Term is applied in temporary appts. Term means the length of actual time served.
Tenure and terms are used interchangeably. Such interchangeable use is wrong.
Kinds of TERM:
1.Fixed by Constituion or by law
2. During good behavior and until the officer reaches retirement age.
3. Indefinite term or one that ends at the pleasure of the appointing authority.
Holdover concept - It is a situation where an officer holds onto the position until his
successor is elected or appointed and qualified.
Promotion under the Civil Service require merits, qualifications, devotion to duty and loyalty
to the service.
Reinstatement is technically issuance of a new appt.
Nepotism -Favoritism of the appointing power, in favor of an appointee who is his relative
within the 3rd degree, whether of affinity or consanguinity. Any violation of this rule means
that the appt. could be contested.
Exceptions to nepotism:
1. Appointee appointed to a confidential capacity.
2. Teachers
3. Armed Forces
4. Prohibited
Relationship was gained after the appt.
5. Those appointed in govt-owned or controlled corporations which are organized under the
corporation law.
A void appt. (like one obtained thru forgery) confers no rights. This is under the Doctrine of
DE FACTO OFFICER.
A person who has retired from service could be reappointed
1. If exigencies of the service requires
2. If the appointee has special qualifications not possessed by other officers
3.position cannot be filled by promotion.
HANDOUT #4
DATE POSTED: APRIL 13
ADMIN LAW LECTURE
DOUBLE APPTS are not prohibited, if the positions are not incompatible. What is prohibited is
receiving additional or double compensation, unless same is specifically allowed or authorized
by law.
GENERAL RULE RE CIVIL SERVICE REQUIREMENTS: Appts. shall be in accordance with
merits and fitness, requirements, except with respect to these positions:
1. policy determining positions
2. primarily confidential positions
3. highly technical positions
What determines if the position falls into any of the above is the NATURE OF THE POSITION,
not how it is called or designated.
“NEXT IN RANK” under Civil Service rules, the position next in rank gets priority over others
when it comes to promotion.
NEXT IN RANK means, that which is next or closest to the position being filled, that which
has close relationship to it, or the one next to the position being filled as depicted by the
organizational chart. In most cases, it is the position next in salary grade to the position
being filled.
The Next in Rank employee gets PREFERENCE in promotion. However, it still allows and
respects the DISCRETION on the part of the appointing authority. This means that the
person. Ext in rank does. It have a vested right to the position being filled.
A person aggrieved by the appt. of one who is perceived as less qualified is APPEAL to the
Commission on Civil Service. If he is still unsatisfied with the latter’s ruling, the aggrieved
party can file a petition for CERTIORARI to the Court of Appeals, and from the Court of,
Appeals to the Supreme. Court.
LIABILITY FOR ILLEGAL APPTS.:
. Both appointee and appointing power could be liable (civil and/or. Criminal). depending on
the circumstances of each case.
. Appointee could be denied pay or salary.
. Appointing power could be held answerable for the salary of the appointee.
CAREER EXECUTIVE SERVICE (CES)
. The President has the Authority to appoint people who will compose the CES.
. The President will base his appointment’s from a list of career executive eligible
recommended by the Board.
QUO WARRANTO is the remedy for ousting the holder of a public position if such holder has
no well founded claim to such position or if he has forfeited his right to enjoy the privilege.
QUO WARRANTO is a special civil action challenging the occupant’s right to the position.
Quo Warranto can also be the remedy against an ELECTIVE official on the ground of
ineligibility or disloyalty of the latter to the state.
Quo Warranto and Mandamus distinguished:
. Quo Warranto is for the ouster of the occupant.
. Mandamus is to enforce the legal right of the person who has a rightful claim to the office.
Title to public office can only be attacked DIRECTLY (by specific action of quo Warranto); not
collaterally.
Quo Warranto can be FILED by the (1)solicitor general or (2) public prosecutor upon
instruction of the president or by request of any person or (3) by the person himself who
claims to be entitled to the position.
Clear legal right to the position constitutes the cause of action, otherwise the case is
dismissible.
Some requirements re Quo Warranto:
. to be filed within a year from the onset of the cause of action. This time limit does not
apply if delay in filing the case was caused by the responsible government agency.
. Must be resolved expeditiously.
DE FACTO OFFICER - one who assumed office under a color of a known appt. or election,
but which appt. or election is void because the appointee or person elected was ineligible, or
the appointing power has no authority to appoint, or by reason of some defect or irregularity
in the exercise of the appointment or election and such ineligibility, want of power or
irregularity being unknown to the public.
DE JURE OFFICER - Person rightfully appointed or elected. He is therefore the legitimate
officer by appt. or by election.
If the officer, who is not a legitimate or de jure officer, assumes the office WITHOUT ANY
COLOR OF RIGHT he is NOT a de facto officer; he is a USURPER.
Elements of a de facto officer:
1.existence of a DE JURE OFFICE.
2.COLOR of right or authority
3.ACTUAL PHYSICAL POSSESSION of an office IN GOOD FAITH.
4.RECOGNITION OF THE PUBLIC of the exercise of the right to act.
REASON for the Doctrine of de Facto Officer - public interest demands that acts of persons
holding an office under color of title, the office having been created by a valid statute, the
acts shall be deemed valid insofar as the public is concerned.
VALIDITY OF ACTS - Acts of a de facto officer are VALID in so far as THIRD PARTIES are
concerned. (Example: a judge who has resigned, conti use to act before receiving formal
acceptance e of his resignation, is a de facto officer whose acts are valid - he is also entitled
to his compensation).
COMPENSATION, BENEFITS AND PRIVILEGES
Terms usually associated with compensation are
. Salary
. Per diem
. Honorarium
SALARY - base pay for the position
PER DIEM - daily allowance for working out of the home base
Honorarium - something given not as a matter of obligation but in appreciation for service
rendered.
RIGHT TO COMPENSATION - Right of an employee to compensation and allowances which
attach to an office or position is a STATUTORY RIGHT.
SALARY OF A PUBLIC OFFICER/EMPLOYEE:
. Is considered an incident of office
. It Cannot be garnished ( salary not yet actually received by the employee is still money of
the government; the government is sovereign and cannot be sued without its consent).
GOVERNMENT POLICY ON COMPENSATION - REQUISITES:
. Equal pay for substantially equal work (this is the basis of the policy).
. All government personnel to be paid just and equitable wages.
. Compensation of government personnel should be comparable to those in the private
sector.
. Total compensation for government personnel must be maintained at a reasonable level in
proportion to the national budget.
. Review of salaries, for inflation indexing, must be periodic.
POSITION CLASSIFICATION FOR SALARY GRADING ARE DIVIDED INTO FOUR CATEGORIES:
. Professional supervisory- means positions which are managerial, part if management,
requires professional, technical, or scientific knowledge
. Professional non-supervisory -performance of function requires application of profession or
knowledge acquired thru training and/or special knowledge.
. Sub professional supervisory - entails supervision over employees short or below
professional work.
. Sub professional non-supervisory - generally known as support staff.
SALARY GRADES - Study this on your own.
CONSTITUTIONAL RESTRICTIONS ON COMPENSATION
GENERAL RULE re salaries of:
. MEMBERS OF CONGRESS (cannot pass a law increasing or decreasing their salary and be
affected by such law, pro or con, during their term). . . . . PRESIDENT AND VICE PRESIDENT
( their salaries cannot be increased or decreased during their term of office).
. CHIEF JUSTICE AND ASSOCIATE JUSTICES ( their salaries cannot be decreased during their
term.
. CONSTITUTIONAL OFFICERS ( no decrease in salary during their term).
. OMBUDSMAN AND DEPUTIES ( no decrease in salary during their term).
. ELECTIVE OR APPOINTIVE PUBLIC OFFICERS ( cannot receive DOUBLE, ADDITIONAL, OR
INDIRECT COMPENSATION, unless authorized by law( NOTE): Pensions or gratuities are not
considered additional, double or indirect compensation.
PER DIEMS - The Commission On Audit generally allows Per Diems to be paid to members of
government boards.
HONORARIA are generally payable to:
. Resource persons
. Researchers, technical and support personnel
. Government officials on official/special detail or assignment in another office
. Public officers who are on committees or special projects.
. Public officers in detail to foreign-assisted projects.
VACATIONS AND SICK LEAVES - Appointive Government officers are allowed vacation and
sick leaves on a commutative basis. If these benefits are not taken during the year, they
could be carried over to the next year.
TERMINAL LEAVE PAY- Defined as the cash value of the accumulated leave credits of a
retiree. Terminal leave pay is paid to an employee who has retired or has severed his
connection with his employer.
MERIT AND MONETARY AWARD SYSTEM - Incentive or motivational pay to personnel in
order to inspire good performance.
INJURY ALLOWANCE - Disability pay (maximum of 6 months) to an employee who has been
injured or hurt while in the performance of his duty.
DEATH BENEFITS - Reasonable burial expense allowance and 6 months salary ( minimum is
one thousand pesos) will be given to the surviving spouse or members of the family of the
employee who dies or is killed in line of duty.
The state/government has provided an Employees’ Compensation Program which prescribes
benefits to officers and employees who get injured, become sick or die.
SOME RULES ON RETIREMENT/ RETIREMENT BENEFITS:
. Retirement benefits of government officers and employees are prescribed by GSIS rules
.Completion of 30 yrs. upon reaching age 57 - optional retirement
. 30 yrs. of service, regardless of age - employee may retire; annuity is payable.
. 20 yrs of service, regardless of age - may be allowed to retire: employee contributions paid
by the retiree are returned to him.
. 65 yrs of age -retirement is AUTOMATIC AND COMPULSORY. Lump sum of 5 yrs. plus
pension benefits are payable.
Where an officer or employee has filed for optional retirement, he cannot UNILATERALLY
withdraw it.
Computation of retirement benefits is based on “HIGHEST RATE” received. Highest
rate/salary means the highest monthly salary the retiree received during his active
employment and excludes per diems, bonuses, allowances and the like that he received.
Retirement of MEMBERS OF THE JUDICIARY - 70 yrs of age.
The nature of retirement benefits is that of a reward to government officers/employees for
giving the best years of their lives to the service of their country.
PENSION is not a gratuity but a form of deferred compensation for service performed and
becomes VESTED at retirement.
Retirement rules are construed LIBERALLY.
Retirement benefits not liable to pay debts and not subject to garnishment
General rule is that double pension is not allowed. A retiree, if entitled to more than one, DUTY OF PUBLIC PROSECUTOR - His duty is to prosecute with earnestness and vigor. He
should choose only one. NOTE: The exception is when there is a law that expressly must be fair. His duty is to ensure that justice is done.
authorizes it. The 1987 Constitution authorizes it. The conduct required of government lawyers is the same as that of all government
OTHER PRIVILEGES employees. The Code of Professional Responsibility shall apply to them.
. Public officials are entitled to be represented by the Solicitor General in a suit, which
includes a claim for damages arising NOT FROM A CRIME but from the performance of his
duties. Local government officials are entitled to be represented by government lawyers if
they are sued in their official capacity and no damages are sought which could make them
personally liable.
. A senator or member of congress shall, in all offenses punishableby not more than six yrs.,
be privileged from arrest while Congress is in session.
. A senator or member of Congress has immunity from civil and criminal action for speech or
debate, including statements made, votes cast in the halls of Congress, while it is in session.
. Impeachable Officers cannot be suspended or removed, except by impeachment.
CODE OF CONDUCT AND DISABILITIES
Basically, all public officials must serve with responsibility, integrity and efficiency. Basis:
PUBLIC OFFICE IS A PUBLIC TRUST.
NORMS OF CONDUCT
1. Commitment to public interest
2. Professionalism
3. Justness and sincerety
4. Political neutrality (reason why electioneering is prohibited of public employees)
5. Responsiveness to the public
6. Nationalism and patriotism
7. Commitment to democracy
8. Simple living
Public officers have the duty to act promptly:
. 15 days to act on letters and requests
. 45 days from the end of year to file performance reports
. Processing of official documents and papers within a reasonable time
. Act immediately on public’s personal transactions.
PUBLIC RECORDS MUST BE ACCESSIBLE TO PUBLIC, except:
. State secrets
. Military secrets
. Diplomatic secrets
. Other similar matters (known as confidential or classified information)
SALN (Statement of Assets and Liabilities) -to be filed every April of every year by all public
officials and employees, including those of the governmet corporations and semi- public
corporations ).
DIVESTMENT -A public officer must divest himself of private business interest or position in a
private business that could, conflict with his incumbency. This is to avoid any CONFLICT OF
INTEREST.
HANDOUT # 5
DATE POSTED: MAY 3
BASIC ELECTION LAW
. Omnibus Election Law or Batas Pambansa 881 is the basic election law in the Phil.
Elections - selection of candidates to public office, which is done by popular votes.
The Election Code covers listing of votes up to proclaiming the winner.
Purposes of the Election Code:
. Selection of public officers
. Prevention of fraud
. Preserving the purity of election
Commission on Elections - This is the body that enforces election laws.
The Constitution ensures the COMELEC is an independent commission.k
COMPOSITION
. Chairman and 6 commissioners
. Chairman and a majority of the Commissioners must be lawyers.
. Term of 7 years without reappointment.
.removable by impeachment'
The COMELEC:
. Independent body
. As enforcer of the Election Code, it has the power to issue rules and regulations.
. exercises adjudicatory and administrative powers
. May sit in banc or in two divisions.
. The Constitution grants the COMELEC the power to decide all questions affecting elections,
except those involving the right to vote.
. It has the right of supervision and control of all elections officials.
. It has the power to suspend or annul canvass and proclamation including registry list off
voters.
. It has the power to register political parties.
. It can investigate and prosecute election offenses.
. It can subpoena and grant immunity from criminal prosecution.
. It can punish for contempt
. It has to important role of acting as a board of canvassers for senators.
COMELEC has no jurisdiction over disqualification cases of Barangay candidates filed before
the elections. MCs and MTCs have jurisdiction over these cases.
A 2-1 decision of a division of COMELEC is valid.
As a general rule, any decision, order or ruling of the COMELEC in the exercise of its quasi-
judicial functions may be brought to the Supreme Court on certiorari.
The COMELEC has exclusive appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction.
Qualifications for President and Vice President:
. Natural born citizen
. Ability to read and write
. At least 40 years of age
. Ten-year residence in the Phil. immediately preceding the election.
Qualifications for members of Congress:
. Natural born citizen
. 25 yrs of age
. Know how to read and write ability
. Registered voter in the place where he is a candidate and a resident thereof for at least 6
months preceding the election.
Age qualification for other positions:
. Gov., Vice gov., board member, AND Mayor, Vice Mayor, Councilor of HUCs - 25 yrs. of age
. Mayor, Vice Mayor of municipalities and cities other than HUCs -21yrs of age.
. Members of Sangguniang Panglungsod ang Sangguniang Pambayan - 18 yrs of age.
Disqualifications:
. Those sentenced by final judgment for an offense with moral turpitude component, or for
crimes punishable by 1 yr. or more, within 2yrs after serving sentence.
. Those removed from office as a result of an admin. case
. Those convicted by final judgment for violating oath of allegiance to the republic
. Dual citizens
. Fugitives from justice
. Permanent residents of foreign countries
. Insane or feeble-minded.
Citizenship:
. By Birth
. By Naturalization
Dual citizenship means citizenship of a person who is a citizen of two or more countries.
Reason for disqualification in running for office of dual citizens - Dual allegiance.
Residence requirement is aimed at preventing a stranger or newcomer unacquainted with the
conditions and needs of a community from seeking an election in that community.
Residence means domicile or a person’s permanent home; a place from where a person may
be absent for pleasure or business but with intention to return there. The facts and
circumstances of each case have to be examined where residence is an issue.
Note: Owning a house is not required to establish residence. Living with a friend or relative
or renting a house could qualify as residence.
Three-term disqualification is common to most elective positions. The presidency is one
notable exception, whose term is 6 years with no reelection.
Substitution of a candidate in elections is valid. There are requirements that have to be
complied with. Valid certificate of candidacy of the party substituted is required. President
Duterte was a candidate substituted for a another candidate who made way for him
(Duterte).
Petition for a disqualification of a candidate: Election propaganda are strictly regulated and monitored.
. Could be filed by any citizen or by any registered political party or group.
. For any ground recognized as valid reason for disqualifying candidates.
. Should be filed anytime after the last day of filing COCs, but not later than the date of
proclamation.
. The petition is resolved in a summary proceeding.
Effect of disqualification - A candidate who has been disqualified by Final judgment shall not
be voted for. Votes cast in his favor shall not be counted. If the disqualification case has not
been decided upon before the election, the case shall continue, but if the final counting
shows he has won, he is entitled to be proclaimed. Filing a case is not final judgment and
does not prevent the proclamation of the candidate who has garnered the most number of
votes.
If the candidate who garnered the highest number of votes is disqualified, the candidate with
the second highest number of votes is not entitled to be proclaimed.
Nuisance candidate:
. Is defined as a candidate whose candidacy was filed simply to cause confusion, put the
election into mockery or disrepute, and the candidate has no chance of winning.
. Any interested party or the COMELEC may motu propio file a verified petition to refuse to
give due course to the COC of such person.
. The proceedings to declare a candidate a nuisance candidate is only summary in nature.
Petition to cancel candidacy:
. A verified petition to cancel the candidacy of a candidate can be filed by anyone on the
ground that the COC contains material representation that is false.
The candidacy of an ineligible or disqualified candidate can also be blocked by filing a petition
for cancellation of such COC.
Registration (to vote) of an illiterate person can be done with the help of the Election Officer.
Oath and a few simple questions will be respectively administered and done as part of the
process.
Only persons with names on the List of Voters will be allowed to vote. The List of Voters
requires posting or publication before same is considered as the final list.
Absentee Voting:
. RA 9189 allows absentee voting for Filipino Citizens, who are outside the Philippines, at
least 18yrs of age, not otherwise disqualified, to vote for President, Vice President, Senators
and Party-List Representatives.
. Overseas Absentee Voters Act of 2003 gives the right to qualified Filipino citizens to
personally apply for registration to vote in the Phil. They have to apply for registration in
Philippine embassies or commissions in the foreign place where they temporarily reside.
There are procedures to be followed.
CAMPAIGN AND EXPENDITURES
The law provides campaigning is allowed only during campaign period. At all other times, no.
Foreigners are prohibited to aid any candidate or political party, or to take part, directly or
indirectly, in Philippine elections.