the individual remedies for the violations of his rights.
I. ADMINISTRATIVE BODIES OR AGENCIES
- A body, other than the courts and the legislature, endowed with quasi-legislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution.
1. by constitutional provision; 2. by legislative enactment; and 3. by authority of law.
II. POWERS OF ADMINISTRATIVE BODIES:
1.Quasi-legislative or rule-making power;
2.Quasi-judicial or adjudicatory power; and
A. QUASI-LEGISLATIVE OR MAKING POWER
In exercise of delegated legislative power, involving no discretion as to what law shall be, but merely authority to fix details in execution or enforcement of a policy set out in law itself.
1. Legislative regulation
a. Supplementary or detailed legislation, e.g. Rules and Regulations Implementing the Labor Code;
b. Contingent regulation
2. Interpretative legislation, e.g. BIR Circulars
Requisites for valid exercise:
1. Issued under authority of law; 2. Within the scope and purview of the
3. Promulgated in accordance with the prescribed procedure:
certain facts as determined
at an appropriate
ii. the regulation is a settlement of a controversy between specific parties;
considered as an
Administrative Law, p.42
iii. the administrative rule is in the nature of subordinate
legislation designed to implement a law by providing its details (CIR v.
Court of Appeals, 261 SCRA
236). b. publication 4. Reasonable
Requisites for Validity of Administrative Rules With Penal Sanctions:
1. law itself must declare as punishable the violation of administrative rule or regulation;
2. law should define or fix penalty therefor; and
3. rule/regulation must be published.
Doctrine of Subordinate Legislation –
power of administrative agency to promulgate rules and regulations on matters of their own specialization.
Doctrine of Legislative Approval by Re-enactment - the rules and regulations
promulgated by the proper administrative agency implementing the law are deemed confirmed and approved by the Legislature when said law was re-enacted by later legislation or through codification. The Legislature is presumed to have full knowledge of the contents of the regulations then at the time of re-enactment. QUASI-LEGISLATIVE FUNCTIONS QUASI-JUDICIAL FUNCTIONS
applicability 2. applies to a specific situation 3. prospective; it envisages the promulgation of a rule or regulation generally applicable in the future 3. present determination of rights, privileges or duties as of previous or present time or occurrence B. QUASI-JUDICIAL OR ADJUDICATORY POWER
Proceedings partake of nature of
Administrative body granted authority to promulgate its own rules of procedure.
Two necessary conditions:
1. due process; and 2. jurisdiction
Includes the following powers:
1. Prescribe rules of procedure 2. Subpoena power
3. Contempt Power
Administrative Due Process:
1. right to a hearing;
2. tribunal must consider evidence presented;
3. decision must have something to support itself;
4. evidence must be substantial; 5. decision must be based on evidence
adduced at hearing or at least contained in the record and disclosed to parties;
6. board of judges must act on its independent consideration of facts and law of the case, and not simply accept view of subordinate in arriving at a decision; and
7. decision must be rendered in such a manner that parties to controversy can know various issues involved and
accept as adequate to support a conclusion.
Administrative Determinations Where Notice and Hearing Not Necessary:
1. summary proceedings of distraint and levy upon property of delinquent taxpayer;
2. grant of provisional authority for increase of rates, or to engage in particular line of business;
3. cancellation of passport where no abuse of discretion is committed; 4. summary abatement of nuisance per
se which affects safety of persons or property;
5. preventive suspension of officer or employee pending investigation; and 6. grant or revocation of licenses for
permits to operate certain businesses affecting public order or morals.
Administrative Appeal or Review
1. Where provided by law, appeal from administrative determination may be made to higher or superior administrative officer or body. 2. By virtue of power of control of
President, President himself or through Department Head may affirm, modify, alter, or reverse
administrative decision of
3. Appellate administrative agency may conduct additional hearing in appealed case, if deemed necessary.
Res judicata effect of Administritve Decisions
- has the force and binding effect of a final judgment (note: applies only to judicial and quasi judicial proceedings not to exercise of administrative functions, Brillantes vs. Castro 99 Phil. 497)
C. DETERMINATIVE POWERS
1. enabling – permit the doing of an act which the law undertakes to regulate;
3. dispensing – to relax the general operation of a law or to exempt from general prohibition, or relieve an individual or a corporation from an affirmative duty;
4. examining - also called investigatory power;
5. summary – power to apply
compulsion or force against persons or property to effectuate a legal purpose without judicial warrants to authorize such actions.
III. EXHAUSTION OF
Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted.
1. Doctrine of Prior Resort or (Doctrine of Primary Administrative Jurisdiction) – where there is
competence or jurisdiction vested upon administrative body to act upon a matter, no resort to courts may be made before such administrative body shall have acted upon the matter.
1. Doctrine of Finality of Administrative Action – no resort to
courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure.
2. Judicial Relief from Threatened Administrative Action – courts will
not render a decree in advance of administrative action and thereby render such action nugatory. It is not for the court to stop an administrative officer from performing his statutory duty for fear he will perform it wrongly.
Effect of Failure to Exhaust Administrative Remedies: as a general
rule, jurisdiction of the court is not affected but the complaint is vulnerable
department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter); except where law expressly provides exhaustion; 2. administrative remedy is fruitless; 3. where there is estoppel on part of
administrative agency; 4. issue involved is purely legal;
5. administrative action is patently illegal, amounting to lack or excess of jurisdiction;
6. where there is unreasonable delay or official inaction;
7. where there is irreparable injury or threat thereof, unless judicial recourse is immediately made; 8. in land case, subject matter is
9. where law does not make exhaustion a condition precedent to judicial recourse;
10. where observance of the doctrine will result in nullification of claim; 11. where there are special reasons or
circumstances demanding immediate court action; and
12. when due process of law is clearly violated.
IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS When made:
1. to determine constitutionality or validity of any treaty, law, ordinance, executive order, or regulation;
2. to determine jurisdiction of any administrative board, commission or officer;
3. to determine any other questions of law; and
4. to determine questions of facts when necessary to determine either:
a. constitutional or jurisdictional issue;
b. commission of abuse of authority; and
2. Non-statutory – inherent power of the court to review such proceedings upon questions of jurisdiction and questions of law; 3. Direct proceeding;
4. Collateral attack.
General Rule: Findings of facts of
Administrative Agencies accorded great weight by the Courts.
Exceptions to the Rule:
1. factual findings not supported by evidence;
5. grave abuse of discretion, arbitrariness or capriciousness is manifest.
Brandeis Doctrine of
Assimilation of Facts – one
purports to be finding of fact but is so involved with and dependent upon a question of latter,courts will review the entire case including the latter. law as to be in substance and effect a decision on the .
LAW ON PUBLIC OFFICERS
- right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at pleasure of creating power, and individual is vested with some sovereign functions of government to be exercised by him for the benefit of the public.
(Fernandez vs Sto Tomas, 234 SCRA
Elements of Public Office: (LSDIP)
1. created by law or ordinance authorized by law;
2. possess sovereign functions of government to be exercised for public interests;
3. functions defined expressly or impliedly by law;
4. functions exercised by an officer directly under control of law, not under that of a superior officer unless they are functioned conferred by law upon inferior officers, who by law, are under control of a superior; (duties performed independently) and
5. with permanency or continuity, not temporary or occasional.
-Public office is a public trust.
-Public office is not property and is outside the commerce of man. It cannot be subject of a contract. (Cruz, Law on
Public Officers, p.5) II. PUBLIC OFFICERS
- individuals vested with public office
Classification of Public Officers:
1. Executive, legislative and judicial officers;
2. Discretionary or ministerial officers; 3. Civil or military officers;
4. Officers de jure or de facto; and 5. National, provincial or municipal
Eligibility and qualification:
1. may refer to endowments,
qualities or attributes which
make an individual eligible for public office;
2. may refer to the act of entering into performance of functions of public office.
Authority to prescribe qualification:
1. when prescribed by Constitution,
ordinarily exclusive, the legislature may not increase or reduce
qualifications except when
Constitution itself provides
otherwise as when only minimum or no qualifications are prescribed( ex: Art XIII Sec 17 (2), Art VIII Sec 7 (2) Consti) ;
2. when office created by statute, Congress has generally plenary power to prescribe qualification but such must be:
a. germane to purpose of office; and
b. not too specific so as to refer to only one individual.
III. DE FACTO OFFICERS
- one who has reputation of being an officer that he assumes to be, and yet is not an officer in point of law. - a person is a de facto officer where
the duties of the office are exercised under any of the following circumstances:
1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or
2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond);
3. Under color of a known election or appointment, void because: a. the officer was not eligible; b. there was a want of power in
the electing or appointing body;
c. there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. 4. Under color of an election or an
appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.
Note: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby)
1. valid existing office;
2. actual physical possession of said office;
3. color of title to office;
4. by reputation or acquiescence; 5. known or valid appointment or
election but officer failed to conform with legal requirements; 6. known appointment or election but
void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to public; and 7. known appointment or election
pursuant to unconstitutional law
before declaration of
OFFICER DE FACTO OFFICER 1. rests on the right 1. on reputation 2. has lawful or title to the office 2. has possession and performs the duties under color of right without being technically qualified in all points of law to act 3. cannot be removed in a direct proceeding 3. may be ousted in a direct proceeding against him. DE FACTO OFFICER INTRUDER 1. officer under any of the 4 circumstances mentioned
1. one who takes possession of an office and undertakes to act officially without any authority, either actual or apparent 2. has color of right or title to office 2. has neither lawful title nor color of right or title to office
3. acts are valid as to the public until such time as his title to the office is adjudged insufficient 3. acts are absolutely void and can be impeached in any proceeding at any time unless and until he continues to act for so long a time as to afford a presumption of his right to act 4. entitled to compensation for services rendered 4. not entitled to compensation
Legal Effects of Acts
- valid insofar as they affect the public
Entitlement to Salaries
General Rule: rightful incumbent may
recover from de facto officer salary received by latter during time of wrongful tenure even though latter is in good faith and under color of title.(Monroy v. CA, 20 SCRA 620)
Exception: when there is no de jure
entitled to salaries for period when he actually discharged functions. (Civil Liberties Union v. Exec. Sec., 194 SCRA 317)
Challenge to a De Facto Officer: must be
in a direct proceeding where the title will be the principal issue
IV. COMMENCEMENT OF OFFICIAL RELATIONS:
1. by appointment; or 2. by election
Appointment – selection, by authority
vested with power, of individual who is to perform functions of a given office.
Essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the
only condition being that the
appointee should possess the
minimum qualification requirements prescribed by law
for the position (Nachura,
Reviewer in Political Law, p.
Commission – written evidence of
Designation – imposition of additional duties, usually by law, on a person already in public office.
Classification of Appointments: 1. Permanent – extended to person
qualification for the position and thus enjoys security of tenure;
2. Temporary – acting
appointment, given to a non-civil service eligible is without a definite tenure and is dependent upon the pleasure of the appointing power;
3. Provisional- is one which may
be issued upon prior
authorization of the
Commissioner of Civil service in accordance with the provisions of the Civil Service Law and the rule and standards to a person who has no t qualified in an appropriate examination but who otherwise meets the
requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of those who are eligible at the time of appointment;
4. Regular – made by President
while Congress is in session and becomes effective after nomination is confirmed by the Commission on Appointments and continues until the end of term; and
5. Ad-interim –
a. Recess -- made while
Congress is not in session, before confirmation, is immediately effective, and ceases to be valid if disapproved or bypassed by CA upon next adjournment of Congress;
b. Midnight – made by the President before his term expires, whether or not this is confirmed by the Commission on Appointments. Regular appointment Ad interim appointment Made during the
Made during the recess
Made only after the nomination is confirmed by the Commission on Appointments (CA) Made before such confirmation Once confirmed by the CA continues until t he end of the term of the appointee Shall cease to be valid if disapproved by the CA or upon the next adjournment Nepotism – all appointments in the
national, provincial, city and municipal governments or in any branch or instrumentality thereof, including GOCC, made in favor of a relative of the (1) appointing or (2)
recommending authority or of the (3) chief of the bureau or office or of the (4) persons exercising immediate supervision over him. A relative is one within the 3rd degree either of
consanguinity or affinity
Vacancy – when an office is empty
and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and performs its duties.
Classifications of vacancy:
1. original – when an office is
created and no one has been appointed to fill it;
2. constructive – when the
incumbent has no legal right or claim to continue in office and can be legally replaced by another functionary; 3. accidental – when the
incumbent having died, resigned, or been removed; 4. absolute – when the term of
an incumbent having expired and the latter not having held over, no successor is in being who is legally qualified to assume the office.
V. POWERS AND DUTIES OF A PUBLIC OFFICER:
1. Ministerial – discharge is imperative and requires neither judgment nor discretion, mandamus will lie; and 2. Discretionary – imposed by law
wherein officer has right to decide how and when duty shall be performed, mandamus will not lie.
II. LIABILITY OF PUBLIC OFFICER General Rule: not liable for injuries
sustained by another as a consequence of official acts done within the scope of his authority, except as otherwise provided by law.
A Public Officer shall not be civilly liable for acts done in the performance of his duties
1. statutory liability under the Civil Code (Arts. 27, 32 and 34);
2. When there is a clear showing of bad faith, malice or negligence (Administrative Code of 1987); 3. liability on contracts; and 4. liability on tort .
Threefold Liability Rule – wrongful
acts or omissions of public officers may give rise to civil, criminal, and
administrative liability. (CAC liability
Liability of Ministerial Officers:
1. Nonfeasance – neglect or refusal to perform an act which is officer’s legal obligation to perform;
2. Misfeasance – failure to use that degree of care, skill and diligence required in the performance of official duty; and
3. Malfeasance – doing, through ignorance, inattention or malice, of an act which he had no legal right to perform.
Doctrine of Command Responsibility A superior officer is liable for acts of
a subordinate when: (ERCAL)
1. he negligently or willfully employs or retains unfit or incompetent subordinates;
2. he negligently or willfully fails to require subordinate to conform to prescribed regulations;
3. he negligently or carelessly oversees business of office as to furnish subordinate an opportunity for default;
4. he directed or authorized or cooperated in the wrong; or
5. law expressly makes him liable. Under the Revised Admin. Code of
1987, A Superior Officer shall be liable for acts of subordinate officers only if he has actually authorized be written order the specific act or misconduct complained.
Subordinate officers are also liable for willful or negligent acts even if he acted under orders if such acts are contrary to law, morals, public policy and good customs
- a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. Peralta, 18 SCRA 223)
- need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa
v. Vasquez, 243 SCRA 497)
- the period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 90-1066)
PENDING INVESTIGATION [Sec.51, E.O.292] PENDING APPEAL [Sec.27(4), E.O. 292] 1. not a penalty but only a means of enabling the disciplinary authority to conduct an unhampered investigation. 1. Punitive in character 2. no compensation due for the period of suspension even if found innocent of the charges. 2. If exonerated, he should be reinstated with full pay for the period of suspension. Rules on Preventive Suspension: 1. Appointive Officials
Not a Presidential Appointee (Secs.
41-42, P.D. 807):
a. by whom – the proper
disciplining authority may preventively suspend;
b. against whom – any subordinate officer or employee under such authority;
c. when – pending an investigation; d. grounds – if the charge against
such officer or employee involves:
ii. oppression or grave misconduct;
iii. neglect in the performance of duty; or
iv. if there are reasons to believe that respondent is guilty of the charges which would warrant his removal from the service
e. duration – the administrative investigation must be terminated within 90 days; otherwise, the
respondent shall be
automatically reinstated unless the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, in which case the period of delay shall not be counted in computing the period of suspension.
A Presidential Appointee:
a. can only be investigated and removed from office after due notice and hearing by the President of the Philippines under the principle that “the power to remove is inherent in the power to appoint” as can be implied from Sec. 5, R.A.2260 (Villaluz v. Zaldivar, 15 SCRA 710).
b. the Presidential Commission
Against Graft and Corruption
(PCAGC) shall have the power to
complaints against presidential appointees in the executive department of the government, including GOCCs charged with graft and corruption involving one or a combination of the following criteria:
i. presidential appointees with the rank equivalent to or higher than an Assistant Regional Director;
ii. amount involved is at least P10M;
iii. those which threaten grievous harm or injury to the national interest; and
iv. those which may be assigned to it by the President (E.O.
No. 151 and 151-A).
2. Elective Officials: (Sec 63, R.A.
a. by whom – against whom
i. President – elective official of a province, a highly urbanized or an independent component city;
ii. Governor – elective official of a component city or municipality;
iii. Mayor – elective official of a barangay
b. when – at any time after the issues are joined;
i. reasonable ground to believe that the respondent has committed the act or acts complained of;
ii. evidence of culpability is strong;
iii. gravity of the offense so warrants;
iv. continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence
i. single administrative case – not to extend beyond 60 days;
ii. several administrative cases – not more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension - Section 24 of the Ombudsman
Act (R.A. 6770) expressly provide that “the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than 6
months without pay.” The
preventive suspension for 6 months without pay is thus according to law (Lastimosa v.
Vasquez, 243 SCRA 497)
- R.A. 3019 makes it mandatory for the Sandiganbayan to suspend, for a maximum period of 90 days
unless the case is decided within a shorter period, any public officer against whom a valid information is filed charging violation of: 1. R.A. 3019;
2. Book II, Title 7, Revised Penal Code; or
3. offense involving fraud upon government or public funds or property (Cruz, The Law of
Public Officers, pp. 86-87) VII. RIGHTS OF PUBLIC OFFICERS:
1. Right to Office – just and legal claim to exercise powers and responsibilities of the public office.
Term – period during which
officer may claim to hold office as a right.
Tenure – period during which
officer actually holds office.
2. Right to Salary
Basis: legal title to office and
the fact the law attaches compensation to the office.
Salary – compensation provided
to be paid to public officer for his services.
Preventive Suspension – public
officer not entitled during the period of preventive suspension, but upon exoneration and reinstatement he must be paid full salaries and emoluments during such period.
Back salaries are also payable to
an officer illegally dismissed or otherwise unjustly deprived of his office the right to recover accruing from the date of deprivation. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year. (Cruz,
Law on Public Officers, p126-126)
Forms of Compensation:
a. salary – personal
compensation to be paid to public officer for his services
and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the service he may render; b. per diem – allowance for
days actually spent in the performance of official duties;
c. honorarium – something given as not as a matter of
obligation, but in
appreciation for services rendered;
d. fee – payment for services rendered or on commission on moneys officially passing through their hands; and e. emoluments – profits arising
from the office, received as compensation for services or which is annexed to the office as salary, fees, or perquisites.
3. Right to Preference in Promotion
Promotion – movement from one
position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.
Next-in-Rank Rule – the person
next in rank shall be given preference in promotion when the position immediately above his is vacated. But the appointing authority still exercises his discretion and is not bound by this rule.
Appointing officer is only required to give special reasons for not appointing officer next in rank if he fills vacancy by promotion in disregard of the next in rank rule. (Pineda vs. Claudio, 28 SCRA 34)
Automatic Reversion Rule – all
appointments involved in chain of promotions must be submitted simultaneously for approval by the Commission, the disapproval of the appointment of a person
proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions.
4. Right to vacation leave and sick leave with pay;
5. Right to maternity leave; 6. Right to pension and gratuity;
Pension – regular allowance paid
to an individual or a group of individuals by the government in consideration of services rendered or in recognition of merit, civil or military.
Gratuity – a donation and an act
of pure liberality on the part of the State.
7. Right to retirement pay;
8. Right to reimbursement for expenses incurred in performance of duty;
9. Right to be indemnified against any liability which they may incur in bona fide discharge of duties; and 10. Right to longevity pay.
11. Right to Self-Organization
Art III, Sec 8 1987Consti. Note: Civil servants are now given the right to self organize but they may not stage strikes (see: SSS Employees Assoc. vs. CA, 175 SCRA 686)
VIII. MODES OF TERMINATION OFFICIAL RELATIONSHIP: (TR3A3P DIFC2IT)
1. expiration of term or tenure; 2. reaching the age limit; 3. resignation;
4. recall; 5. removal; 6. abandonment;
7. acceptance of incompatible office; 8. abolition of office;
9. prescription of right to office (within one year after the cause of ouster or
the right to hold such office or position arose);
10. impeachment; 11. death;
12. failure to assume elective office within 6 months from proclamation; 13. conviction of a crime; and
14. filing of certificate of candidacy.
When public officer holds office at pleasure of appointing power, his replacement amounts to expiration of his term, not removal.(Alajar vs
Alba, 100 Phil 683)
Principle of Hold-Over – if no express or
implied Constitutional or statutory provision to the contrary, public officer is entitled to hold office until successor has been chosen and shall have qualified.
Purpose: to prevent hiatus in public
office. (But subject to Art. 237 of RPC)
Members of Judiciary : 70 years of age
Other government officers and employees : 65 years of age
Optional retirement age: after rendition of minimum number of years of service.
Accepting Authority for Resignation:
1. to competent authority provided by law;
2. If law is silent and public officer is appointed, tender to appointing officer;
3. If law is silent and public officer is elected, tender to officer authorized by law to call election to fill vacancy:
a. President and VicePresident -Congress
b. Members of Congress -respective Chambers
e. Governors, Vice Governors, Mayors and Vice Mayors of HUC’s and independent component cities - President.
f. Municipal Mayors and Vice Mayors/City Mayors and Vice Mayors of component cities -Provincial Governor;
g. Sanggunian Members –
Sanggunian concerned; and h. Elective Barangay Officials –
Municipal or City Mayors
Recall - termination of official
relationship for loss of confidence prior to expiration of his term through the will of the people.
Limitations on Recall:
1. any elective official may be subject of a recall election only once during his term of office for loss of confidence; and
2. no recall shall take place within one year from date of the official’s assumption to office or one year immediately preceding a regular local election.
Procedure for Recall (Secs. 70-72, R.A. 7160)
1. Initiation of the Recall Process: a. by a Preparatory Recall
Assembly (PRA) composed of:
i. Provincial – mayors, vice mayors and sanggunian (sg)
members of the
ii. City – punong barangay and (sg) barangay members; iii. Legislative District:
iiia. SG Panlalawigan – municipal officials in the district; iiib. SG Panglunsod – barangay officials in the district;
iv. Municipal - punong barangay and (sg) barangay members;
majority of the PRA members shall convene in session in a public place;
recall of the officials concerned shall be validly initiated through a resolution adopted by a majority of all the PRA members concerned b. by the Registered Voters (RV) in
the province, city, municipality or barangay (LGU) concerned -at least 25% of the total number of RV in the LGU concerned during the election in which the
local official sought to be recalled was elected;
i. written petition filed with the COMELEC in the presence of the representative of the
petitioner and a
representative of the official sought to be recalled, and in a public place of the LGU; ii. COMELEC shall cause the
publication of the petition in a public and conspicuous place for a period of not less than 10 days nor more than 20 days
iii. upon lapse of the said period, COMELEC shall announce the acceptance of candidates and shall prepare the list of candidates which shall include the name of the official sought to be recalled
3. Election on Recall – COMELEC shall set the date of the election on recall:
a. for barangay, city or municipal officials – not later than 30 days after the filing of the resolution or petition;
b. for provincial officials - not later than 45 days after the filing of the resolution or petition; 4. Effectivity of Recall – only upon the
election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall.
Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.
- right to vote in election of officers chosen by people and in the determination of questions submitted to people. It includes: 1.election;
2.plebiscite; 3.initiative; and 4.referendum.
Election – means by which people
choose their officials for a definite and fixed period and to whom they entrust for time being the exercise of powers of government.
1. Regular election – one provided by law for election of officers either nationwide or in certain subdivisions thereof, after expiration of full term of former members; and
2. Special election – one held to fill vacancy in office before expiration of full term for which incumbent was elected.
Failure of Elections – there are only 3 instances where a failure of elections may be declared, namely:
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 had been suspended before the hour fixed by law for the closing of the voting
on account of force
terrorism, fraud, or other analogous causes; and 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. (Joseph
Peter Sison v. COMELEC,
G.R. No. 134096, March 3, 1999)
What is common in these three instances is the resulting failure to elect. In the first instance, no election is held while in the second, the election is suspended. In the third
attending the preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means nobody emerged as a winner. (Pasandalan vs.
Comelec, G.R. No. 150312, July 18, 2002)
The causes for the
declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166)
The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. (Sec. 6, B.P. 881)
In such election, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. (Cawasa vs. Comelec, G.R. No. 150469, July 3, 2002)
Postponement of Elections - An
election may be postponed by the COMELEC either motu proprio or upon a verified petition by any interested party when there is violence, terrorism, loss or destruction of
election paraphernalia or records,
force majeure, or other analogous
cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. (Sec. 5, B.P.
The COMELEC shall call for the holding of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. (Sec. 5, B.P. 881)
Qualification for Suffrage:
1. Filipino citizen;
2. At least 18 years of age;
3. Resident of the Philippines for at least one year;
4. Resident of place where he proposes to vote for at least 6 months; and 5. Not otherwise disqualified by law.
1. person convicted by final judgment to suffer imprisonment for not less than 1 year, unless pardoned or granted amnesty; but right reacquired upon expiration of 5 years after service of sentence; 2. person adjudged by final judgment
of having committed any crime involving disloyalty to government or any crime against national security; but right is reacquired upon expiration of 5 years after service of sentence; and
3. insane or incompetent persons as declared by competent authority (Sec. 118, OEC).
II. POLITICAL PARTY
- organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate in public office.
(Bayan Muna v. Comelec, GR No. 147613, June 28, 2001)
To acquire juridical personality and to entitle it to rights and privileges granted to political parties, it must be registered with COMELEC
policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate in public office. (Bayan Muna v. Comelec, GR No. 147613, June 28, 2001)
To acquire juridical personality and to entitle it to rights and privileges granted to political parties, it must be registered with COMELEC.
Groups Disqualified for Registration:
1. religious denominations or sects; 2. those who seek to achieve their
goals through violence or unlawful means;
3. those who refuse to uphold and adhere to Constitution; and
4. those supported by foreign governments.
Grounds for Cancellation of Registration:
1. accepting financial contributions from foreign governments or their agencies; and
2. failure to obtain at least 10% of votes casts in constituency where party fielded candidates.
Party System – a free and open party
system shall be allowed to evolve according to free choice of people.
no votes cast in favor of political party, organization or coalition shall be valid except for those registered under the party-list system provided in the Constitution;
political parties registered under party-list system shall be entitled to appoint poll watchers in accordance with law; and
part-list representatives shall constitute 20% of total number of representatives in the House.
Guidelines for screening party-list participants
1. The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Sec. 5 of RA 7941. Majority of its member-ship should belong to the marginalized and underrepresented; 2. While even major political parties
are expressly allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of “Filipino citizens belonging to marginalized and under-represented sectors to be elected to the House of Representatives”. Thus, they must show that they represent the interest of the marginalized and underrepresented.
3. That religious sector may not be represented in the party-list system; except that priests, imam or pastors may be elected should they represent not their religious sect but the indigenous community sector; 4. A party or an organization must not
be disqualified under Sec. 6, RA 7941 as follows:
a. it is a religious sect or denomination, organization or association organized for religious purposes;
b. it advocates violence or unlawful means to seek its goals;
c. it is a foreign party or organization;
d. it is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;
e. it violates or fails to comply with laws, rules or regulation relating to elections;
f. it declares untruthful statements in its petition;
g. it has ceased to exist for at least one (1) year; or
h. it fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections for the constituency in which it has registered.
5. the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government.
6. the party, including its nominees must comply with the qualification requirements of section 9, RA 7941 as follows: “No person shall be
nominated as party-list
representative unless he is: (a) natural-born citizen of the Philippines; (b) a registered voter; (c) a resident of the Philippines for a period of not less than one year immediately preceding the day of the election; (d) able to read and write; (e) a bona fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election; and (f) at least 25 years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his terms”;
7. not only the candidate party or organization must represent marginalized and underrepresented sectors, so also must its nominees; 8. while lacking the a well-defined
political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole. (Ang
COMELEC, GR No. 147589, June 26,
III. DISQUALIFICATION OF CANDIDATES:
1. declared as incompetent or insane by competent authority;
2. convicted by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of 18 months imprisonment;
3. convicted by final judgment for crime involving moral turpitude; 4. any person who is permanent
resident of or immigrant to a foreign country; and
5. one who has violated provisions on: a. campaign period;
b. removal, destruction of lawful election propaganda;
c. prohibited forms of propaganda; d. regulation of propaganda
through mass media; and e. election offenses.
- When a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. (Codilla vs. Hon. Jose De
Venecia, G.R. No. 150605, December
– COMELEC may motu propio or upon petition of interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed:
1. to put election process in mockery or disrepute;
2. to cause confusion among voters by similarity of names of registered candidates;
3. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful
determination of true will of electorate.
IV. FAIR ELECTIONS ACT OF 2001 (RA 9006)
Lawful election Propaganda (sec. 3):
1. Written/Printed Materials (does not exceed 8 ½ in. width by 14 in. length)
2. Handwritten/printed letters 3. Posters (not exceeding 2 x 3 ft.)
3 by 8 ft. allowed in announcing, at the site and on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.
4. Print Ads
¼ page in broadsheets and ½ page in tabloids thrice a week per newspaper,
magazine or other
publication during the campaign period
5. Broadcast Media (i.e. TV and Radio)
POSITIONS POSITIONSLOCAL 1. 120 minutes
for TV 1. 60 minutesfor TV 2. 180 minutes
for Radio 2. 90 minutesfor Radio Prohibited Campaign
1. Public exhibition of movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period; 2. Public exhibition of a movie,
cinematograph or documentary portrayed by an actor or media personality who is himself a candidate;
3. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party;
Limitation on Expenses: 1. for candidates:
President and Vice President = P10/voter;
Other candidates, if with party = P3/voter;
Other candidates, if without party = P5/voter.
2. for political parties = P5/voter
Statement of Contribution and Expenses
every candidate and treasurer of political party shall, within 30 days after day of election, file offices of COMELEC the full, true and itemized statement of all contribution and expenditures in connection with election.
The SC held that Sec. 5.4 of the Fair Election Act prohibiting publication of survey results 15 days immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech, expression, and the press because:
it imposes a prior restraint on the freedom of expression;
It is a direct and total suppression of a category of expression even though such suppression is only for a limited period; and
the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather
Station v. Comelec, G.R. No.
147571 May 5, 2001)
Substituted and Substitute Candidate
- In case of valid substitutions
after the officials ballots have been
printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide for spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided,
however, That if the substitute
candidate is of the same family name, this provision shall not apply.(Sec.12)
V. PRE-PROCLAMATION CONTROVERSY
Any question pertaining to or affecting proceedings of Board of Canvassers which may be raised by any candidate or by a registered political party or coalition of political parties before the board or directly with COMELEC or any matter raised under Sections 233, 234, 235, and 236, in relation to
receipt, custody and
appreciation of election returns.
Issues which may be raised in a Pre-Proclamation Controversy:
1. Illegal composition or proceedings of the board of Canvassers;
2. Canvassed election returns are incomplete, contain material defects, appears to be tampered with or falsified; or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sec. 233,234,235 and 236 of BP 881;
3. Election returns were prepared under duress, threat, coercion, or intimidation, or they are obviously manufactured or not authentic; and 4. When substitute of fraudulent
returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.
III. ELECTION CONTESTS
Nature: special summary proceeding
object of which is to expedite settlement of controversies between candidates as to who received majority of legal votes.
Purpose: to ascertain true will of people
and duly elected officer, and this could be achieved by throwing wide open the appeal before the court.
Contest: any matter involving title or
claim of title to an elective office, made before or after proclamation of winner, whether or not contestant is claiming office in dispute.
Election, Returns and qualification –
refers to all matters affecting validity of the contestee’s title to the position.
Election – conduct of the polls,
including the registration of voters, holding of election campaign, and casting and counting of votes.
Returns – include the canvass of
returns and proclamation of winners, together with questions concerning composition of Board of Canvassers and authenticity of election returns.
Qualifications – matter which could
be raised in a quo warranto proceedings against the proclaimed winner, such as his disloyalty to the Republic or his ineligibility or inadequacy of his certificate of candidacy.
Original Exclusive Jurisdiction Over Election Contests
1. President and VicePresident -Supreme Court en banc
2. Senator - Senate Electoral Tribunal 3. Representative - HR Electoral Tribunal 4. Regional/Provincial/City - COMELEC 5. Municipal - RTC 6. Barangay - MTC Appellate Jurisdiction:
1. For decisions of RTC and MTC
appeal to COMELEC whose decision shall be final and executory;
2. For decisions of COMELEC
petition for review on Certiorari with SC within 30 days from receipt of decision on ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process;
3. For decisions of Electoral Tribunal
petition for review on Certiorari with SC on ground of grave abuse
of discretion amounting to lack or excess of jurisdiction or violation of due process.
Actions Which May Be Filed: 1. Election Protest
- May be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same officer; Grounds: a. fraud; b. terrorism; c. irregularities; or d. illegal acts
committed before, during, or after casting and counting of votes
Time to file: within 10 days from
proclamation of results of election.
2. Quo warranto
- Filed by any registered voter in the constituency
a. ineligibility; or b. disloyalty to Republic.
Time to file: within 10 days from
proclamation of results of election.
QUO WARRANTO IN ELECTIVE OFFICE QUO WARRANTO IN APPOINTIVE OFFICE 1. determination is eligibility of candidate-elect 1. determination is legality of appointment 2. when person elected is declared ineligible, court cannot declare 2nd placer as elected, even if eligible 2. court may determine as to who among the parties has legal title to office
IV. ELECTION OFFENSES Vote-Buying and Vote-Selling
(1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any
person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.
(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (Sec. 261, B.P. 881)
One of the effective ways of preventing the commission of vote-buying and of
committing it is the grant of
immunity from criminal liability in favor of the party (person/s) whose vote was bought. This grant of
immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. (Comelec vs. Hon.
Tagle, G.R. Nos. 148948 & 148951, February 17, 2003)
LAW ON PUBLIC CORPORATION
I. LOCAL GOVERNMENT CODE OF 1991
(R.A. 7160) Effectivity: January 1, 1992
Government Code: Applicable to: 1. all provinces, 2. cities, 3. municipalities, 4. barangays;
5. and other political subdivisions as may be created by law; and 6. to the extent provided in the
Local Government Code: a. to officials,
b. offices, or
c. agencies of the National Government.
Local Autonomy – in its constitutional
sense, to polarize LGU’s from over dependence on central government and do not make LGU’s mini-republics or
imperium in imperia.
Decentralization of Administration –
central government delegates
administrative powers to political subdivisions in order to broaden base of government power and in process make LGU’s more responsive and accountable and ensure their fullest development as self-reliant communities and make them effective partners in the pursuit of national development and social progress.
Decentralization of Power – involves
abdication of political power in favor of LGU’s declared autonomous.(Limbona v.
Mengelin, 170 SCRA 786).
Devolution – act by which national
government confers power and authority upon various LGU’s to perform specific functions and responsibilities.[Sec.17(e), par.2, LGC].
Declaration of Policy:
1. Territorial and subdivisions of State shall enjoy genuine and meaningful local autonomy to enable them to attain fullest development and make them more effective partners in attaining national goals;
2. Ensure accountability of LGU’s through institution of effective
mechanisms of recall, initiative and referendum; and
3. Require all national agencies and offices to conduct periodic consultations with appropriate LGU’s, NGO’s and People’s Organizations and other concerned sector of community before any project or program is implemented in their respective jurisdictions.
Rules on Interpretation:
1. provision on power: liberally interpreted in favor of LGU; in case of doubt, resolved in favor of devolution of powers;
2. ordinance or revenue measure: construed strictly against LGU enacting it and liberally in favor of tax payer;
3. tax exemptions, incentive or relief granted by LGU: construed against person claiming;
4. general welfare provisions: liberally interpreted to give more powers to LGU’s in accelerating economic development and upgrading quality of life for people in community; 5. rights and obligations existing on
date of effectivity of LGC of 1991 and arising out of contracts or any other source of prestation involving LGU, shall be governed by original terms and conditions of said contracts or law in force at time such rights were vested; and
6. resolution of controversies arising under LGC of 1991 where no legal provision or jurisprudence applies, resort may be had to customs and traditions in place where controversies take place.
II. PUBLIC CORPORATION
- one formed and organized for the government of a portion of the State.
Elements of Public Corporation:
1. legal creation or incorporation; 2. corporate name;
3. inhabitants; and 4. territory.
Classes of Corporation:
1. Quasi-corporation – public
State for narrow and limited purposes.
2. Municipal corporation – body politic and corporate constituted by incorporation of inhabitants of city or town purposes of local government thereof or as agency of State to assist in civil government of the country.
3. Quasi-public corporation – private corporation that renders public service or supplies public wants.
PUBLIC CORPORATION PRIVATE CORPORATION 1. established for purposes of administration of civil and local governments
1. created for private aim, gain or benefit of members 2. creation of State either by special or general act 2. created by will of incorporators with recognizance of State 3. involuntary consequence legislation 3. voluntary agreement by and among members
III. DE FACTO MUNICIPAL CORPORATION Requisites:
1. valid law authorizing incorporation; 2. attempt in good faith to organize
3. colorable compliance with law; and 4. assumption of corporate powers.
IV. TERRITORIAL AND POLITICAL SUBDIVISIONS ENJOYING LOCAL AUTONOMY:
1. Province – cluster of municipalities, or municipalities and component cities, and serves as dynamic mechanism for developmental processes and effective governance of LGU’s within its territorial jurisdiction.
2. City – composed of more urbanized and developed barangays, serves as
a general purpose government for coordination and delivery of basic, regular and direct services and effective governance of inhabitants within its territorial jurisdiction; 3. Municipality – consisting of group of
barangays, serves primarily as a general purpose government for coordination and delivery of basic, regular and direct services and effective governance of inhabitants within its territorial jurisdiction; 4. Barangay – basic political unit which
serves as primary planning and implementing unit of government policies, plans, programs, projects and activities in community, and as a forum wherein collective views of people may be expressed, crystalized and considered and where disputes may be amicably settled;
5. Autonomous Regions – created for decentralization of administration or decentralization of government; and 6. Special metropolitan political
subdivisions – created for sole
purpose of coordination of delivery of basic services.
Creation of Municipal Corporations 1. For province, city or municipality,
only by Act of Congress;
2. For barangays, ordinance passed by
Plebiscite Requirement – approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit/s directly affected (Sec. 10, R.A. 7160)
Based on verifiable
indicators of viability and projected capacity to provide services (Sec. 7, R.A. 7160) [Note: see Annex C]
upon election and qualification of its chief executive and majority of members of its Sanggunian, unless some other time is fixed therefore by law or ordinance creating it.
Mode of Inquiry to Legal Existence of LGU: Quo warranto which is reserved to State or other direct proceedings
Abolition of LGU:
When income, population, or land area of LGU has been reduced to less than minimum standards prescribed for its creation. The law or ordinance abolishing LGU shall specify the province, city, municipality or barangay with which LGU sought to be abolished will be incorporated or merged.
Division and Merger of LGU’s
shall comply with same
1. shall not reduce income, population or land area of LGU concerned to less than the minimum requirements prescribed;
2. income classification of original LGU shall not fall below its current income classification prior to division;
3. Plebiscite be held in LGU’s affected. 4. Assets and liabilities of creation shall
be equitably distributed between the LGU’s affected and new LGU. When municipal district of other territorial divisions is converted or fused into a municipality all property rights vested in original territorial organization shall become vested in government of municipality.
V. POWERS OF LGUs
Classification of Powers of Local Government Units
1. Express, implied and inherent; 2. Public or governmental, private or
3. Intramural and extramural; and 4. Mandatory and directory; ministerial
Governmental Powers of LGU:
1. General Welfare – (Sec. 16, R.A. 7160) statutory grant of police power to LGU’s. It is limited to: a. territoriality;
b. equal protection clause; c. due process clause; and d. must not be contrary to law. 2. Delivery of basic services and
facilities – (Sec. 17, of R.A. 7160); 3. Power to generate and apply
resources – (Sec. 18, of R.A. 7160); 4. Eminent Domain – (Sec. 19, of R.A.
Additional Limitations for Exercise by LGU:
a. exercise by local chief executive pursuant to an ordinance; b. for public use, purpose or
welfare for benefit of poor and landless;
c. payment of just compensation; and
d. only after valid and definite offer had been made to, and not accepted by owner.(Municipality
of Parañaque v. V.M. Realty Corp., 292 SCRA 678)
5. Reclassification of Lands – (Sec. 20 of RA 7160)
Limited by following percentage of total agricultural land area:
a. for HUC and independent component cities: 15%;
b. for component cities and 1st to
3rd class municipalities: 10% ;
c. for 4th to 6th class municipalities:
6. Closure and opening of roads – (Sec. 21 of RA 7160)
In case of permanent closure: a. adequate provision for public
safety must be made; and b. may be properly used or
conveyed for any purpose for which other real property may be lawfully used or conveyed; provided no freedom park be permanently closed without provisions or transfer to new site.
7. Local legislative power – (Secs. 48-59 of RA 7160)