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This reviewer has two parts: 1. Outline based laws and cases 2. Discussion based Transcriptions ___________________________________________ Outline Based Laws and Cases III. COMMISSION ON ELECTIONS a. Composition and Qualifications Art. IX, C, Sec. 1 (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. 1 chairman 6 commissioners Qualifications: Natural-born citizen - Who are natural-born citizens? 1. citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship. 2. Those who elect Philippine citizenship under Art. IV, Sec 1(3). @ least 35 years old College degree Must NOT have been candidates for any elective position in the immediately preceeding elections. Chairman: member of Phil. Bar & practiced law for @ least 10 years @ least majority of commissioners member of Phil. Bar & practiced law for @ least 10 years Term: 7 years without reappointment, inorder to assure the independence of comelec. -Must not be engage in any other profession. -Salary is fixed by law and cannot be increased during tenure. Has fiscal autonomy and there is assurance that approval of annual appropriations shall be automatic and regular. -Removable only by impeachment. Art. VII, Sec. 13, par. 2 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Cayetano vs. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give
Art. IX, C, Sec. 1(2) - The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. b.1. Disqualifications Art. IX, A, Sec. 4 - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b.2. Salary Art. XVIII, Sec. 17 - Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the VicePresident, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each. Art. IX, A, Sec 3 - The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure. b.3. Appointment of personnel Art. IX, A, Sec. 4 - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b.4. Removal Art. XI, Sec. 2 - The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
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Does not apply to the election of the Federation of Associations of Barangay Councils (as in this case) or SK officials, so comelec does not have jurisdiction Election of SK officials fall under the DILG
Other examples of this power to enforce and administer laws: o Power of comelec to look into issues regarding the determination of location of polling places, appointment of official and inspectors registration of voters
Note: constitutional prohibition that the right to vote is not part of comelec power --- no law can ever be passed transferring the inclusion or exclusion cases from the courts to comelec o Constitutional mandate that the right to vote is excluded from comelec powers because the disposition pertaining to rights is inherently judicial Thus, tegistration of voters, annulment of list of voters belongs to comelec bu the determination of whether a person has the right to vote is with the MTC
Taule v Santos The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. Administrative Powers c.1 Enforce election laws (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. c.2 Decide administrative questions pertaining to elections, except the right to vote [Art 9, C, Sec 2(3)] (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of
c.3. Petition for inclusion or exclusion of voters [Art 9, C, Sec 2(6)] upon a verified complaint or on its own initiative, file petitions in court for the inclusion and exclusion of voters c.4. Prosecute election law violators [Art 9, C, Sec 2(6)]; BP 881, Sec 265; E.O. 134 Sec 11 investigate and prosecute (where appropriate) cases of violation of election laws including acts or omissions constituting election frauds, offenses and malpractices Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. Sec. 11. Prosecution. The Commission shall, through its duly authorized legal officers, have
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Comelec vs Tagle It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. 11 The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC. In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the votebuying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the "vote-buyers" and put in
c.5. Recommend pardon, amnesty, parole, or suspension of sentence of election law violators [Art 9, C, Sec 5] favorable recommendation from the comelec to the President is required c.6. Deputize law enforcement agents and recommend their removal for violation of its orders [Art 9, C, Sec 2(4&8)] deputize with the concurrence of the president o law enforcement agencies and instrumentalities of the government o including AFP o for free, orderly, honest, peaceful and credible elections recommend to president the removal of any officer or employee it has deputized o imposition of any other disciplinary action for violation or disregard of or disobedience to its directive, order or decision c.7. Registration of political parties, organizations and coalitions and accreditation of citizens arms [Art 9, C, Sec 2(5); Sec 6,7,8; Art 6, Sec 5(2)] register after sufficient publication present their platform or program of government religious denominations and sects shall not be registered refuse registration to those o which seek to achieve goals through violence and unlawful means or o refuse to uphold and adhere to the constitution or
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c.9. Rule-making [Art 9, A, Sec 6] commission en banc may promulgate own rules concerning pleadings and practice before it or before any of its offices such rules shall not diminish, increase or modify substantive rights Aruelo vs CA Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art. VIII, Sec. 5 [5]). Petitioner filed the election protest (Civil Case No. 343-M-92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. c.10. Adjudicatory [Art 9, C, Sec 2(2)]; 3 exclusive jurisdiction over all contests relating to elections, returns and qualifications of all elective regional, provincial and city officials appellate jurisdiction over all contests involving elective municipal officials decided by RTC or involving elective barangay officials decided by MTCs decide except the right to vote all questions affecting elections (c.2.) comelec may sit en banc or in 2 divisions and shall promulgate its rules of procedure in order to expedite disposition of election cases including preproclamation controversies all such election cases shall be heard and decided in division motions for reconsideration of decisions shall be decided by the commission en banc Javier vs Comelec In making the Commission on Elections the sole judge of all contests involving the election,
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Bagong Bayani vs Comelec Give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. c.8 Regulation of public utilities and media of information [Art 9, C, Sec 4; Sec 9] supervise/ regulate franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concessions granted by the government or any subdivision, agency, or instrumentality thereof NPC vs Comelec The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." o Limited in the duration of its applicability and enforceability o Limited in the scope of application o Exempt from prohibition the purchase or donation to the Comelec The limitation bears a clear and reasonable connection with constitutional objective
SWS vs Comelec
c.11. Review of decisions [Art 9, C, Sec 2(2)]; Art 9, A, Sec 7] appellate jurisdiction over all contests involving elective municipal officials decided by RTC or involving elective barangay officials decided by MTCs decisions, final orders or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable shall decide by a majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution deemed submitted for decision or resolution upon fling of the last pleading, brief or memorandum any decision or ruling may be brought to the SC on certiorari w/in 30 days from receipt of a copy thereof Flores vs Comelec the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra.
Garces vs CA This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the COMELEC's resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., must pertain to an election dispute. the settled rule is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7, Art. IX-A are those relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers involving "elective regional, provincial and city officials". In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. D. Fiscal Autonomy (Art 9, A, Sec 5) enjoy fiscal autonomy approved annual appropriations shall be automatically and regularly released IV. Fundamental Principle A. Peoples choice as consideration; 2nd placer rule fundamental
Geronimo vs Ramos it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
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Domino vs Ocampo Thus, the votes cast for Domino were presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes cannot be treated as stray, void, or meaningless. It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate
Ocampo vs Crespo there must be final judgment before the election for the votes of a disqualified candidate to be considered stray hence, 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
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elective and appointive officials and employees, permanent or temporary whether in the classified, unclassified or exempt service [ now career and noncarrier] receiving compensation, nominal from the government even
Art. 203, RPC Public officer is any person who by direct provision of law, popular election or appointment by competent authority shall take part in the performance of public functions in the government of the Phils. or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official of any rank or class
1. created by law or by authority of law 2. possess a delegation of a portion of the sovereign powers of government, public to be exercised for the benefit of the
3. powers conferred and duties imposed must be defined, directly or impliedly, by the legislature or by authority legislative
4. duties must be performed independently and without the control of a superior power other than the law Unless they be those of an inferior or subordinate office created or authorized by the legislature And by it placed under the general control of a superior office or body 5. must have permanence or continuity Creation
1. constitution (office of the president) 2. valid statutory enactments ( office of the insurance commissioner) 3. by authority of law (david commission) Laurel vs Desierto
salary is not a necessary element of public office the element of continuity cannot be considered as indispensable for public office Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not
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either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit thus, unless the powers so conferred are of this nature, the individual is not a public officer The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. NCC performs executive functions; created by an Executive order; Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. 24 But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed
At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, whether the office expires as soon as the one act is done, or is to be held for years or during good behavior." Our conclusion that petitioner is a public officer finds support in In Re Corliss. 26 There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not restrictive. 28 The AntiGraft and Corrupt Practices Act is just one of several laws that define "public officers."
Segovia vs Noel
Though there is no vested right to an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated. Public office cannot be regarded as the property of the incumbent. A public office is not a contract. Ordinarily, a public official should not be removed from office without notice, charges, a trial, and an opportunity for explanation. ITC: we are dealing with an administrative proceeding and not with a judicial proceeding Due process of law is not necessarily judicial process; much of the process by means of which the Government is carried on, and the order of society maintained, is purely executive or administrative, which is as much due process of law, as is judicial process. While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise since they rest upon different principles.
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Cornejo vs Gabriel
Abeja vs Tanada
B. KINDS OF PUBLIC OFFICERS DE JURE By right; by right in law validly appointed an officer who exercises the duties of an office for which the holder has fulfilled all the qualifications DE FACTO BLACKs
An officer who exercises the duties of an office under the color of an appointment or election but who has failed to qualify for office for any one of various reasons as by being under the required age, having failed to take oath having not furnished a required bond or having taken office under a statute later declared unconstitutional
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w/o appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people w/o injury to submit or invoke his action supposing him to be an officer officer not eligible want of power appointing body in election or
one acting under color of right and with apparent authority but who is not legally a corporate officer the corporation is bound by all acts and contracts of an officer de facto in the same way as it is with those if de jure officer
[d] one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular may have reputation of being an officer he assumes to be but is not a good office in the point of law appointment is valid on its face one who continues in the exercise of the functions and duties of the office without legal authority or after his term or title has ended one who performs the functions of the officer in good faith and under color of right to the position involved policy and purpose o protection of the public and individuals insofar as they become involved in the official acts of person discharging the duties of an office without being lawful officers
Sampayan vs Daza ITC, congressman was a greencard holder and did not renounce his status as a permanent resident of US Appropriate remedy was to cancel COC or quo warranto But term already expired
As de facto officers, he cannot be made to reimburse the funds disbursed during his term of office because his acts were valid as those of a de jure officer. As de facto officer, he is entitled to emoluments for actual services rendered.
C. WHO MAY BE PUBLIC OFFICERS: ELIGIBILITY AND QUALIFICATIONS Qualification: 1. may refer to endowments, qualities or attributes which make an individual eligible for public office (e.g. citizenship) 2. may refer to the act of entering into the performance of the functions of public office (e.g. taking the oath of office) C.1. WHO MAY PRESCRIBE QUALIFICATIONS
When the qualifications are prescribed by the Constitution, they are generally exclusive, except where the constitution itself provides otherwise Relative to public offices created by statute, Congress has virtually plenary powers to prescribe qualifications, provided that
Must possess the qualifications AT THE TIME OF APPOINTMENT or ELECTION AND CONTINUOUSLY for as long as the official relationship continues
Frivaldo vs Comelec LGC does not specify the date when the candidate must possess Filipino citizenship Philippine citizenship is required in order to ensure that no alien shall govern our people
it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter much less a validly registered one if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he
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Art 9, B, C, Sec 1(1) Civil Service Commission o o o o o Chairman and 2 commissioners Natural born Philippines citizens of the
At least 35 years of age at the time of their appointment With proven capacity for public administration Must not have been candidates for any elective position in the elections immediately preceding their appointment Appointed by the president with the consent of the commission on appointments Term of 7 years w/o reappointment Chairman 7 years, a commissioner for 5 years and another for 3 years No member shall be appointed/ designated in a temporary or acting capacity
C.3. USUAL QUALIFICATIONS Art. 6, Sec 2 & 6 Senate o 24 senators elected at large by qualified voters of the Philippines as may be provided by law
At least 25 years of age on the day of election Able to read and write Except the party list representatives, a registered voter in the district in which he shall be elected Resident thereof for a period of not less than one year immediately preceding the day of the election
Art. 7, Sec 2,3 President o o o o o Natural born Philippines Registered voter Able to read and write At least 40 years of age on the day of election A resident of the Philippines for at least ten years immediately preceding such election citizen of the
At least 35 years of age at the time of their appointment Holders of a college degree Must not have been candidates for any elective position in the immediately preceding elections A majority including the chairman shall be members of the Philippine bar who have been engaged in the practice of law for at least 10 years Appointed by the president with the consent of the commission on appointments
Maquera vs Borra Property qualifications may not be imposed for the exercise of the right to run for public office The law is declared unconstitutional for requiring each candidate to post a bond of P20,000 upon the filing of COC, subject to forfeiture if he did not obtain at least 10% of the total votes cast in the constituency where he ran Republic Act NO. 4421 requires a candidate to post a surety bond equivalent to one-year salary of the position to which he is a candidate, which bond shall be forfeited in favor of the government, if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office, there being not more than four candidates for the same office. The effect of said Republic Act No. 4421 is to impose property qualifications in order that a person could run for a public office, which property qualifications are inconsistent with the nature and essence of the Republican system ordained in the Constitution and the principle of social justice underlying the same. Consequently, Republic Act No. 4421 is unconstitutional and hence null and void. That the effect of said Republic Act No. 4421:
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36 (g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. Sec. 36 (g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36 (g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test". Viewed, therefore, in its proper context, Sec. 36 (g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one
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C.4. DISQUALIFICATIONS c.4.1 under the constitution No candidate who lost in the election shall, w/in 1 year after such election be appointed to any office in the government (sec 6, art 9b) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure ( sec 7(1), art 9b) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other position in government (sec 7(2), art 9b) o Like when another office is held by a public officer in an ex officio capacity as provided by law and as required by the primary functions of his office because such other office does not comprise any other position The ex officio position is actually and in legal contemplation part of the principal office
c.4.2 under local government code c.4.3 other laws Provided that disqualifications do constitution o the not prescribed violate the
Law declared unconstitutional for being contrary to the constitutional presumption of innocence: when laws said the filing of a criminal information for disloyalty was a prima facie proof of guilt (dumlao vs comelec)
The president, VP, members of the cabinet ad their deputies or assistants shall not, unless otherwise provided in the constitution hold any other office or employment during his tenure (sec 13, art 7)
c.5. Effect of pardon Pardon is forgiveness and not forgetfulness hence it will not bring restoration to the civil and political rights of the person being pardon. Civil and political rights can only be restored when it is expressly stated in the pardon or when the pardon states that the
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distinguished
from
d. Formation of Relations
II. POWERS, DUTIES, PRIVILEGES AND PROHIBITIONS Two things that would stand out in Lo Cham case: 1. Germane 2. Essential Lo Cham from being head of medico department to assist prosecutor in signing information accused said it is not valid, he is asked to assist prosecution but SC said the power to sign is inherent or essential to the performance to assisting the prosecutor. It is necessary implied from the express function of assisting the prosecutor. What if authority granted is only to issue subpoena. Can you cite in contempt? No. this power to cite a person in contempt is inherently judicial/coercive. Inherently judicial but still exercisable by other agencies. Not exclusive to courts also exercised by legislative bodies. Citing in person in contempt is germane and essential. One expressly authorize subpoena, no express cite person in contempt a. Authority of Public Officers consist of those powers which are: 1. Expressly conferred upon him by the act appointing him 2. Expressly annexed to the office by law 3. Attached to the office by common law as incidents to it b. Doctrine of Necessary Implication All powers necessary for the effective exercise of the express powers are deemed impliedly granted. c. Kinds of Authority: Ministerial vs Discretionary Ministerial: one the discharge of which by the officer concerned is imperative and required neither judgment nor discretion. The exercise of which may be compelled. Ex. Sheriffs role to execute judgment.
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c.
ART.IX-B SEC.8 1987 Constitution No elective or appointive public office or employee shall receive additional, double or indirect compensation unless specifically authorized by law, nor accept without consent of Congress, any present, emolument, office or title of any kind from any foreign government. Pension or gratuities shall not be considered as additional, double or indirect compensation. d.3 Presidential Immunity from Suit Immunity from civil damages cover only official acts. This privilege us enjoyed only during tenure. After tenure, he cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. She may not be prevented from initiating suit. d.4 Doctrine of Official Immunity see transcriptions d.5 Preference in Promotion d.6 Leave of Absence d.7 Retirement Pay e. Prohibitions (Sec.5 (3),8 ART.IX-B 1987 Constitution) Armed forces shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. Only active members, not those in the reserve force, are covered by prohibition. III. LIABILITIES OF PUBLIC OFFICERS a. Presumption of good faith and regularity in the performance of duties Sec.38 a public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or negligence Sec.39 no subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instruction of his superiors. b. Kinds of Liability b.1 nonfeasance neglect or refusal to perform an act which is the officers legal obligation to perform b.2 misfeasance failure to use that degree of care, skill and diligence required in the performance of official duty
SAN LUIS V CA - It is well-settled that when a public officer goes beyond the scope of his duty, particularly when acting tortiously, he is not entitled to protection on account of his office, but is liable for his acts like any private individual [Palma v. Graciano, 99 Phil. 72 (1956)]. Thus, in Mendoza v. De Leon [33 Phil. 508 (1916)], it was held: Nor are officers or agents of the Government charged with the performance of governmental duties which are in their nature legislative or quasi-judicial liable for the consequences of their official acts, unless it be shown that they act wilfully and maliciously and with the express purpose of inflicting injury upon the plaintiff. Accordingly, applying the principle that a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith, the Court holds that petitioner Felicisimo T. San Luis, the Provincial Governor of Laguna who has been sued both in his official and private capacities, must be held personally liable to Berroya for the consequences of his illegal and wrongful acts. Chavez vs Sandiganbayan - The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. Domingo vs Rayala - Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others. This rule applies with full force to sexual harassment.
Hernandez v. Villegas Official and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case, their cessation from office involves no removal but merely the expiration of the term of office. c. Retirement a. Conditions for entitlement to retirement benefits (R.A. No. 8291) b. he has rendered at least fifteen (15) years of service; c. he is at least sixty (60) years of age at the time of retirement; and d. he is not receiving a monthly pension benefit from permanent total disability. e. Compulsory Retirement f. Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least 65 years of age with at least 15 years of service; Provided that if he has less than 15 years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. NOTE: different in Nachura Reviewer: Compulsory Retirement Age is 70 yrs for the members of the Judiciary and 65 yrs for
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cannot legally repossess it even by forcible re-occupancy. Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. The officer should manifest a clear intention to abandon the office and its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient.
Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an acting judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time. g. Incompatible Office He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule. And even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected. If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition. Incompatibility of offices exists where: There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated. The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there
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3. Transfer from One Position to Another May or May Not Constitute Violation of Security of Tenure A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, he may appeal to the SC. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, however that any movement from the non-career service to the career service shall not be considered a transfer. The intended transfer to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from office in Negros. Since the transfer is considered a removal, such should be for cause in order for the other person to legally occupy the office in Negros. There was no cause for Lacsons removal. He therefore remains as fiscal of Negros (Lacson v. Romero). g. Others Recall The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987 Constitution) The procedure for recall is provided in Sections 69-75 of the Local Government Code. Prescription of Right to Office Unabia v. City Mayor Any person claiming a right to a position in the civil service is required to file his petition for
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All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. Remedy available to the aggrieved party Findings of facts by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one months salary shall be final and unappealable. In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within
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1. WON
the Ombudsman has prosecutorial powers 2. WON respondent Casaclang as Deputy Ombudsman for Military Affairs has the authority to conduct a preliminary investigation involving civilian personnel of the Government must first be resolved. Ruling:
Ruling:
Transcriptions 1 What is the nature of Comelec? Is it something created by the Constitution? This one is mandated by the Constitution. What is the composition of Comelec? Chair and 6 commissioners. Term of office? is it possible for Comelec Larazabal to reappointed by Aquino? Cannot. But how they are appointed? President cannot appoint unless appointee is recommended by COMELEC. There also has to be consent of Commission on Appointment. COA is within Congress. So youve got President appointing COMELEC to be confirmed by COA by serving 7 years without reappointment. Qualification: you must not have an elective position in the immediately preceeding elections.There is also requirement that you must be a lawyer. member of the bar. There is requirement that a chair as well as the majority
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Is there a liability in subordination? Yes there is even if he simple obeys order. Because we are presumed to know the law. Ignorance will not excuse no one. Ex. Youve got this mayor interpreting ordinance by himself. And taking it so wrongly it implemented it against by law. Should the mayor being the superior here be held liable? While administrative code provides for liability, in cases of bad faith, malice or gross negligence, you cannot equate these 3 with mistake of law / mistake of fact. In the case of FAROLAN this is about shipment of substance propylene film. What did the member of the team of bureau of customs do? They withheld the substance because it was allegedly a stronger substance than declared. What made them think that way? They were simply acting in their own interpretation. The issue here do you hold the one who committed a mistake liable? SC said it is plain and simple mistake and not tainted with bad faith, malice and gross negligence. Sc said they acted erroneously but not whimsically. What happens now to the damage sustained? Who is to bear the loss? There is damage but it cant be attributed to bureau of customs. What did SC say? What happened to damage? Farolan vs Solmac But even granting that the petitioners committed a mistake in withholding the release of the subject importation because
The retiree must have rendered at least 15 years of service and must be at least 60 years if age upon retirement.
Why is retirement acknowledge? Case of Beronilla. We said we want to maintain efficiency in the government. The other reason is to enjoy the remainder of his life. The compulsory retirement of government officials and employees upon their reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompense, inadequate perhaps for their long service and devotion to. the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. Needless to say, therefore, the officials charged with the duty of implementing this policy cannot be too careful in insuring and safeguarding the correctness and integrity of the records they prepare and keep. In this case, all that the Board has done is to set aside what it found to be an erroneous decision of the General Manager in approving the change of date of petitioner's birth, because from the evidence before it, the Board was convinced that the originally recorded date of birth should not be disturbed. We cannot see where the charged inequity of such action of the Board could lie. 3. ABOLITION OF OFFICE or ORGANIZATION find mostly in local government unit. Ex. You competed with incumbent and he again won and at the end of the day, your position became vacant and suddenly youve been we are reorganizing or abolishing the office when you know the reason is political. Busakay vs Buena - office collapsed and he was terminated and few months after it was rebuilt
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Sec. 47 what is important to remember CSC can be preventively suspend. Distinguish the power of CSC to preventively suspend vs power of Ombudsman and president of LCG to preventively suspend. Sec. 51 of CS code, It says, CSC may preventively suspend an employee under his authority pending investigation if the charge involves dishonesty, oppression, grave misconduct, neglect in the performance of duty or there is reason to believe that respondent is guilty of charges which would warrant removal from service. Under this, you can be preventively suspended for 90 days (3months). Can you preventively suspended, without hearing or having heard? Yes. It is not violation of due process. Also, because it is not a penalty. It can be imposed without having heard you first, it can be heard without violating due process. And it is for a maximum period of 90 days. What about elective officials? They can be removed if they are impeachable officers under Art. XI. List of impeachable officers is exclusive. For Local officials Sec.60-69 will come in. See Admin Discipline Local Government Code. If its a complaint against elective official of a province, highly organized city it is the office of president that has authority to sit on your complaint. For a case against municipal it should be sangguniang panlalawigan. For elective barangay officials it should be file to sanggunian panglungsod concerned. Can you as an elective official can you be preventively suspended? LGC has a different requirement. You can only be preventively suspended only after issues have been joined. If the issues have been joined which means you have already been answered. And the period is 60 days max. However if you are facing several charges it cannot exceed 90 days within a single year. Lets look at Ombudsman it has jurisdiction over the conduct of all public officials. Ombudsman has jurisdiction over all acts done by government officials including GOCCs. What if the act of the officer has got nothing to do with his function? Concubinage? Has it anything to do with public office? There are acts not related to performance of an office, would OMB still has jurisdiction? Yes. OMB has still jurisdiction in all acts whether or not done in relation to the performance of functions. On all acts of government official whether or not related to official duty.
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