Beruflich Dokumente
Kultur Dokumente
Public Corporations
1. Concept
(a) Distinguished from Government-Owned or
Corporations (GOCCs)
2. Classifications
(a) Quasi-Corporations
(b) Municipal Corporations
Controlled
1. Concept:
Public Corporations are those created by the state as its own agency and instrumentality to
help the state in carrying out its governmental functions.
-those formed or organized for the government of a portion of the state. [Corporation Code]
As distinguished from a private corporation, the latter is created by private individuals
(incorporators) for the purpose of obtaining profits from its undertaking. (not all private
corporations are for profit-charitable corporations, corporation sole, religious corporations!!)
Art. XII, Sec. 16., 1987 Constitution:
The Congress shall not, except by a general law, provide for the formation, organization or
regulation of private corporations. (Corporation Code)
This has been consistent with the purpose and intention of the framers of the constitution to
prevent the congress from directly creating private corporations (prohibition from favoring the a
private corporation)
a) Government-Owned or Controlled Corporations (as distinguished from Local Government Units)refers to any agency organized as a stock or non-stock corporation, vested with functions
relating to public needs whether governmental or proprietary in nature, and owned by the
government directly or through its instrumentality either wholly, or, where applicable, as in the case
of stock corporations, to the extent of at least 51% of its capital stock. [Administrative Code of
1987, Sec. 1 (13).
NOTE: when we speak of GOCC, it need not be formed by the direct act of congress it may refer
to a stock corporation and the latter refers to a corporation created under the Corporation Code.
When the Government acquires at least 51% of such Stock Corporation created under the
Corporation Code, it becomes now a GOCC..
As to Corporations which are directly created/formed under the law, CONTROL of the Government
is manifested by the APPOINTMENT OF THE BOARD MEMBERS by the President.. Once majority of
the members of the board are appointed by the president, it can now be considered as GOCC.
Note that which are appointed by the president to the Board need not be the Alter-egos of the
president.. For instance, the board members appointed by the president in the Cultural Center of
the Philippines, only few are cabinet members. Otherwise stated, what is controlling is that
the board members are appointed by the president all appointment need not be the
alterego of the President.. Another instance is the members of the board of MAYNILAD WATERS,
most of them are not cabinet members of the president.... CONTROL is manifested by the FACT
that these Board members are appointed by the President of the Philippines..
Two Kinds (Public Corporations):
1. GOCCs with original charters (created directly by congress by means of a law)
2. Without original charters [subsidiaries] (created under the Corporation Code)
[subsidiaries}- 51% of stocks are owned by the Government. Necessarily mean that at least 51%
of the corporation stocks is owned by other government corporations.. Like the case of PAL
before, majority of its stocks were owned by GSIS, and LandBank.. Hence, SUBSIDIARIES!! Please
note the DISTINCTION between GOCC with ORIGINAL CHARTER and SUBSIDIARIES it is
important to note for instance, the prohibition under the constitution from appointment of
Congressman to any GOCC and Subsidiaries.. Also note the prohibition of appointment of
Presidents relatives in any GOCC and SUBSIDIARIES HOWEVER, DISTINCTION MAY NOW LIE
FOLLOWING:
Why important?
1. Art. IX-B (5) standardization (SALARY) - do not apply to SUBSIDIARIES- the salary thereof is
governed by their own BOARD..
2. Art. IX-B, 2 (1) scope of Civil Service-do not apply to SUBSIDIARIES.. Employees of
SUBSIDIARIES fall within the scope of LABOR CODE
3. Art. IX-D, 2(1) power of COA/pre-audit-SUBSIDIARIES are not subject of PRE-AUDIT.. ONLY
POST AUDIT as distinguished from those with Original Charters
4. Art. XI, 13 (2) power of OMB to stop/prevent acts of impropriety- does not extend to those
working in the SUBSIDIARIES.. Only those working in those with original charter may be
investigated by OMB
NOTE the prohibition in the Omnibus Election Code which provides the FORFEITURE OF
POSITION in the GOCC with Original Charter and SUBSIDIARIES ONCE AN APPOINTIVE
OFFICIAL OF THE GOCC with Original Charter and SUBSIDIARIES FILES A CERTIFICATE OF
CANDIDACY Otherwise stated, if you worked in subsidiaries and you file a COC, you are
deemed resigned!!! HENCE COVERED BY THE OEC..!!! If you work in a private corporation
which is not a SUBSIDIARY, you are governed by the rules of the promulgated by the
BOARD!!!
Some questions:
1. Are employees of chartered state universities which have been granted autonomy under the
jurisdiction of the Civil Service Commission? [UP v. Regino, 221 SCRA 598]-Even if these STATE U
are granted with autonomy and independence pursuant to their Charter, they fall within the
Jurisdiction of the CSC
2. What about the National Housing Corporation which was organized in 1959 under EO No. 399
or the Uniform Charter of Government Corporations? [stocks owned by GSIS, DBP, SSS] [Juco v.
NLRC, 227 SCRA 531]- note that in the case of NHA, its stocks are owned by GSIS, SSS, and DBP,
Hence CONSIDERED SUBSIDIARIES!! While it is considered as a Government Subsidiary, it falls
within the Jurisdiction of NLRC and not CSC!! TAKE NOTE!!! Considered private corporations as
distinguished from UP!!
3. What about water districts formed by resolution of the Sangguniang Bayan as authorized by PD
198? [DCWD v. CSC, 201 SCRA 596]- Note that Water Districts in localities are created pursuant to
a Sangguinan Resolutions!!! THESE WATER DISTRICTS are CONSIDERED GOCCs!!!! Hence, under
the Jurisdiction of the CSC and not NLRC!!! Question was raised as to what are the charter of these
water districts? It was ruled that all of these WD have PD 198 as their own Charter and not
pursuant to their SB Resolutions.. Hence GOCC
4. Liban v. Gordon, Jan. 18, 2011
What about the PNRC which was created by RA No. 95 as a humanitarian organization in
compliance with the countrys obligation under the Geneva Conventions? [In its amended charter,
of the 30 members of the Board, only 6 are appointed by the President.] it was held that PNRC is
a Private Corporation!!! Hence the law creating the same was ruled to be NULL AND VOID to save
GORDON, it has to be considered a Private Corporation!!! Hehehe HOWEVER, UPON MOTION FOR
RECONSIDERATION, THE SC modified its previous ruling..Now the question is HOW ABOUT RA 195
creating PNRC as HUMANITARIAN ORGANIZATION/CORPORATION in compliance with the GENEVA
CONVENTIONS taking into consideration that in its AMENDED CHARTER, only 6 board members of
the total 13 are appointed by the President? SC RULED IN THE FOLLOWING :::::::::::::::::::
PNRC has a sui generic status. Although it is neither a subdivision, agency, or instrumentality
of the government, nor a government-owned or -controlled corporation or a subsidiary thereof, so
as not to lose its character of neutrality and independence such a conclusion does not ipso
facto imply that the PNRC is a private corporation within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code.
5. Boy Scouts of the Philippines v. COA, 651 SCRA 146 (2011)
What about the BSP created as a public corporation under Commonwealth Act No. 111, as
amended by Presidential Decree No. 460? Only the Secretary of Education sits the National
Executive Board of the BSP. The State does not appropriate or invest in the BSP but RA 7278
provides is that the Government or any of its subdivisions, branches and instrumentalities can
donate and contribute funds to the BSP. ?
The BSP is a public corporation or a government agency or instrumentality with juridical
personality, which does not fall within the constitutional prohibition in Article XII, Section 16,
notwithstanding the amendments to its charter. Not all corporations, which are not government
owned or controlled, are ipso facto to be considered private corporations as there exists another
distinct class of corporations or chartered institutions which are otherwise known as public
corporations. Art. 2, par. 2, Civil Code. These corporations are treated by law as agencies or
instrumentalities of the government which are not subject to the tests of ownership or control and
economic viability but to different criteria relating to their public purposes/interests or
constitutional policies and objectives and their administrative relationship to the
government or any of its Departments or Offices.
To summarize: Classes of Corporations
1. Private
2. Public
(a) Municipal Corporations
(b) Government owned-or controlled
Corporations
i. with original charter
ii. w/o original charter [subsidiaries] 51% of its stocks are owned by the
Government
(c) Public Corporations which are created by law although not controlled by the
government but perform public functions [BSP/PNRC] it is because less than 50% of the BOARD
are no longer appointed by the PRESIDENT !!!
2. Classification: (QUASI-means like, similar)
a). Quasi-CorporationsPublic corporations created as agencies of the State for a narrow and limited
purpose. Their power relates to matters of state, as distinguished from municipal concern.
[US: Counties and School Districts/Water Districts (these are only US Jurisprudences)?
Barangays- no longer Quasi Corporation as it is now considered Municipal Corporations!!?] Puroks
have no Juridical Personality!!! They do not exist in law.. It may be a candidate of a quasi
corporations!!!
b). Municipal CorporationsTOPIC B: OUTLINE
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation,
Conversion, Division, Merger or
Dissolution
1. Elements:
a). Legal Creation: The power to create is legislative in nature. (ONLY CONGRESS CAN CREATE
MUNICIPAL CORPORATIONS!!!)
Can it be delegated by Congress to another entity?
i. [Sema v. COMELEC, 558 SCRA 700 (2008)]- It was held that in so far as the CREATION
OF MUNICIPALITIES IS CONCERNED, the delegation of such power to create is valid.. However,
insofar as the creation of a city or a province is concerned, the delegation is not valid as the
creation of the same necessarily entails creation of legislative districts the power of which is
EXCLUSIVELY vested to the CONGRESS!!! HENCE, CREATION OF MUNICIPALITIES ARE NOW
DELEGATED TO ARMM!!
ii. [Sec. 385, LGC of 1991]: by law or by an ordinance of the Sangguniang
panlalawigan or sangguniang panlungsod , subject to the approval by a majority of votes cast in a
plebiscite to be conducted by the COMELEC in the unit or units affected.- CREATION OF
BARANGAYS ARE NOW DELEGATED TO Sangguniang Panglalawigan or Sangguniang Panglungsod!!!
CAN THE POWER TO CREATE SUCH MUNICIPAL CORPORATIONS BE DELEGATED TO THE
PRESIDENT? NO!!!! THE ADMIN CODE OF 1917 PROVIDING SUCH POWER TO THE PRESIDENT WAS
DECLARED NULL AND VOID AS THERE WAS NO SUFFICIENT STANDARDS TO BE FOLLOWED AS
DISTINGUISHED TO THE DELEGATION MADE IN THE LOCAL GOVERNMEN CODE
b. Corporate Name: (2ND ELEMENT)
Sec. 13 of the LGC allows the Sangguniang Panlawigan in consultation with the PHC to
change the name of component cities and municipalities within its territorial jurisdiction.
The Sanggunian of highly urbanized cities and independent component cities,
component cities and municipalities can change the name of their barangays also in
consultation with PHC.
HOW ABOUT THE CHANGING OF NAME OF A PROVINCE? ONLY CONGRESS CAN CHANGE THE SAME
IN VIEW OF THE FACT THAT CHANGING ITS NAME NECESSARILY ENTAILS AMENDMENT OF
CHARTER!!! SO ONLY CONGRESS IS EMPOWERED TO DO THE SAME!!!
c. Inhabitants:
Sec. 9, LGC: A local government unit may be abolished when its income, population or land
area has been irreversibly reduced to less than the minimum standards prescribed for its creation.
WHAT HAPPEN IF IT IS ABOLISHED? IT DOES NOT AUTOMATICALLY DISAPPEAR FROM THE MAP.. IT
MAY SIMPLY BE MERGED WITH NEIGHBORING MUNICIPALITIES OR CITIES AS THE CASE MAY BE!!!
d. Territory: Must be defined by metes and bounds, but see Mariano v. COMELEC, 242 SCRA
211 [present territory of the Municipality of Makati].
Note that the most charters of lgus are defined by metes and bounds (30 degrees south west etc)
However, in the case of Mariano v. COMELEC, 242 SCRA 211, the Charter of MAKATI CITY only
defined the territory as [present territory of the Municipality of Makati SHALL CONSTITUTE THE
CITY OF MAKATI!!]. At that time, Makati had a pending boundary dispute with PASIG. The charter
was questioned.. Held- SC sustained the Charter as AN EXCEPTION TO THE GENERAL RULE!! It was
allowed BY THE SC saying that CONGRESS cannot provide the metes and bounds as it will result to
resolving the boundary dispute with PASIG the resolution of which must be resolved by the
proper court!!!
Classification of Municipal Corporations:
1. Non-existent2. De Facto
3. De Jure
Bar Question 2010, No. 20:
Define/explain the following:
b. De facto municipal corporation (1%)
c. Municipal corporations by estoppel (1%)
Requisites of a De Facto Mun. Corporation: (note: once any of the requisites is missing, Municipal
Corporation becomes NON EXISTENT OR A USURPER!!)
1. Valid law authorizing incorporation
2. Attempt in good faith to organize
Answer: It is de facto in the sense that its legal existence has been recognized publicly and
officially. It was mentioned in BP 129 (A LAW DEFINING COURT JURISDICTIONS-ALWAYS
MENTIONED SINACABAN IN THAT LAW) and Supreme Court Circulars.
As of now (INCLUDING
THE MUNICIPALITY OF STO. TOMAS), it is de jure because of Sec. 442 of the LGC. IT PROVIDED
THAT [Existing municipalities organized pursuant to executive issuances shall be considered
regular municipalities.]-HENCE, CONSIDERED DE JURE MUNICIPAL CORPORATIONS!!!
Why is knowing de facto status important?- IT IS IMPORTANT BECAUSE ONCE IT ACQUIRES
THE STATUS OF DE FACTO, ITS EXISTENCE CANNOT BE ATTACKED COLLATERALLY.IT CAN BE
ATTACKED ONLY BY DIRECT ACTION THROUGH QUO WARRANTO PROCEEDINGS BY THE SOLGEN!!.
FOR INSTANCE IN THE CASE OF MANABANG WHICH WAS DECLARED TO BE NONEXISTENT, IF AM
BEING PROSECUTED FOR VIOLATION OF ITS ORDINANCE, I CAN USE THE DEFENSE THAT THE
ORDINANCE IS NULL AND VOID BECAUSE THE LGU PASSING THE ORDINANCE IS NON EXISTENT..
YOU ARE ATTACKING IT COLLATERALLY!!! HOWEVER, THIS CASE CANNOT BE USED AS A DEFENSE
IF IT IS A DE FACTO MUNICIPAL CORPORATION SINCE ORDINANCE PASSED BY THE SAME ENJOYS
THE PRESUMPTION OF VALIDITY UNTIL DECLARED NULL AND VOID IN QW PROCEEDINGS!!. IT
CANNOT BE ATTACKED COLLATERALLY.. IT CAN BE ATTACKED ONLY BY QUO WARRANTO
PROCEEDINGS!!
ii. Private- it is like a business corporation performing functions not strictly governmental or
political; as such, it acts for its own interests and not as agent of the state
It is important to know these natures because these will determine the Suability, Liability, and
Execution against the Government
Ex. Holding of Fiesta, Kadayawan, having a slaughter house, operating its own schools are not
governmental in nature
Governmental Functions- Holding elections, Peace and order functions
What are municipal corporations in the Philippines?
Constitution, Art. X, Sec. 1: The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as herein provided.
MUNICIPAL CORPORATIONS!!- which carry out the functions of the government (GOVERNMENTAL)
PROVINCES
CITIES
MUNICIPALITIES
BARANGAYS
ARMM
Others:
1.
2.
3. Special Metropolitan Political Subdivisions [Art. X, Sec. 11- subject to plebiscite basic
services] MMDA v. Viron Transportation, 530 SCRA 341 (2007) SBMA the creation of such is
subject to plebiscite.. It is not a Political and Territorial Subdivisions. Its only purpose is to
FACILITATE DELIVERY OF BASIC SERVICES THEY ARE NOT POLITICAL UNITS
4.
Sub-Provinces Art. XVIII, Sec. 9 [convert or revert to mother province]- Theres no more
Sub-Provinces as of the moment!!
Notes:
Others (requirements)
1. Municipalities must comply with the population, area and income requirements
2. All cities must comply with the income requirement, and the population or area requirement
only
3. Provinces must comply with the income requirement, and the population or area requirement
only
4. While RA No. 9009 increased the income requirement for cities, it made no mention of the
income requirement for highly urbanized cities and provinces, which seemed to have created some
discrepancies
Questions:
1. Is a province made up of one or more islands exempted from the land area requirement?
[Navarro v. Ermita, 648 SCRA 400 (2011)]-YES! Notwithstanding the provisions of the LGC
providing no exemption to the creation of province as to land area requirement.. Prevailing
jurisprudence on the creation of province, city, or municipality composed of islands has it that it
need not comply the land area requirement if they are composed of more than 2 islands.
2. Can a law be passed exempting a city from the income requirement as provided in the Local
Government Code? [League v. COMELEC, 643 SCRA 149 (2011)]-yes the SC allowed it by virtue of
the PLENARY POWER of the Congress this is allowed despite the provisions of the LGC that no
Province, City, Municipality can be created unless it shall comply the income requirement.. So
Congress can create a LOCALITY not consistent with the LGC by reason of its PLENARY POWERS!!!!
3.
TYPES OF CITIES
1.
HIGHLY URBANIZED
2.
INDEPENDENT COMPONENT
3.
MIRANDA CASE- This case involved the Cities of Santiago and Isabela.. After the plebiscite, it
became an independent component city.. However, Congress passed a law downgrading such city
from INDEPENDENT COMPONENT TO COMPONENT CITY without ANY REQUIREMENT OF
PLEBISCITE.. ISSUE: W/N A PLEBISCITE BE HAD BEFORE A CITY CAN BE DOWNGRADED TO
SUCH.. HELD: SC held NO!!!.. A Plebiscite must be hadbecause the DOWNGRADING will affects
the rights of the inhabitants of such city!!! For instance, inhabitants of an Component need to vote
for the Governor of the Province!! Also is the fact that Ordinances legislated by COMPONENT
CITIES HAVE TO BE REVIEWED BY THE SANGGUNIANG PANLALAWIGAN!!!! SHARING OF TAXES AS
TO RPTs between the Province and the Component Cities the Governor has administrative
supervision over the mayors of Component Cities. Hence, PLEBISCITE IS A MUST AS THESE
RIGHTS WILL BE AFFECTED:..
NOW, where will be the Plebiscite take place? In the entire city? Or Province? This has not been
settled for the moment observation has it however that all inhabitants in the city and province will
be affected by these.. STRANGE!!!
Bar Question 2011:
31. The Metro Manila Development Authority (MMDA) passed a rule authorizing traffic
enforcers to impound illegally parked vehicles, for the first offense, and confiscate their
registration plates for the second. The MMDA issued this rule to implement a law that
authorized it to suspend the licenses of drivers who violate traffic rules. Is the MMDA rule
valid?
(NOTE: MMDA IS NOT A LOCAL GOVERNMENT UNIT.. CONSEQUENTLY IT HAS NO POLICE POWER)
HOWEVER IT CAN PASS A RULE PURSUANT TO A LAW AUTHORIZING THE SAME HOWEVER, IN
THE INSTANT CASE, THERE IS NO SUCH LAW..
2.
It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art.
X, sec. 2] refers to the administrative autonomy of local government units or, cast in more
technical language, the decentralization of government authority [Villegas v. Subido, 37 SCRA
1; Cordellera Board Coalition v. COA, 181 SCRA 495 (1990)]-refers to DECENTRALIZATION OF
ADMINISTRATION OR ADMINISTRATIVE DECENTRALIZATION!!!
THERE IS STILL A QUARREL NOW AS TO WHAT HAS BEEN REALLY DECENTRALIZED OR
HAS NOT BEEN!!!! JUST TAKE A LOOK TO THE PROVISIONS OF THE LOCAL GOVERNMENT
CODE TO DETERMINE THE SAME
4. Fiscal Autonomy
Art. X, Sec. 6: The local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.
NOTE: THIS PROVISION IS ALMOST THE SAME WITH THE FISCAL AUTONOMY ENJOYED BY THE 3
BRANCHES OF THE GOVERNMENT!!
Bar Question 1999, No. 5
Define devolution with respect to local government units. (DEVOLUTION-Part of the
decentralization of administration)
Sec. 17 (e) of the Local Government Code defines devolution as the act by which the National
Government confers power and authority upon the various local government units to perform
specific functions and responsibilities. (so it is really a decentralization!!)
Province of Batangas v. Romulo, may 27, 2004:
Section 6, Article X of the Constitution reads: . Local government units shall have a just
share, as determined by law, in the national taxes which shall be automatically released to
them. Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of
10 percent of the LGUs' IRA "pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal situation" in the
country?
long as they are reasonably proper to give effect to the express power or the purpose of the
creation of the LGU (IMPLIED POWERS).
MEMO!
Basic Principles:
1. As between the Central Government and an LGU, in case of doubt it is construed in favor of
the latter. IN VIEW OF [principle of (LOCAL) autonomy] (AS TO W/N THE LGU IS CONFERRED WITH
POWER)
2. As between the LGU and the individual, it is construed in favor of the former. IN VIEW OF
[presumption of constitutionality] (BECAUSE THE EXERCISE OF POWER OF THE LGU ENJOYS THE
PRESUMPTION OF REGULARITY OR CONSITITUITONALITY)
TOPIC D(1):
(1) Police Power:
Bases of exercise:
a. General Welfare Clause: MEMO THIS!!!
Section 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. xxx
Within their respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
The General Welfare Clause is very important!!! This is the primary basis of local ordinances!! Note
also the Social Justice Clause!!
b. Social Justice Clause:
The Municipality of Makati passed a resolution authorizing a Burial Assistance program of
P500.00 to those whose income do not exceed P2,000. The COA disallowed disbursement. Is the
resolution valid? Binay v. Domingo, 201 SCRA 511 (1991)
The same is valid!!! The SC validated the same on the basis of Social Justice Clause!!!
Cash Transfer Program of DSWD is based on Social Justice which has been ruled to be valid under
the Social Justice Clause
TOPIC (D) (2):
(2). Eminent Domain
Section 19. Eminent Domain. A local government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose
or welfare for the benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the
power of eminent domain may not be exercised unless a valid and definite offer has been
previously made to the owner, and such offer was not accepted:
Note that the Sangguniang Panlalawigan cannot REVERSE the ordinance of the SB authorizing the
expropriation proceedings except when it is ULTRA VIRES!! MEANING WHEN IT IS BEYOND LGU
POWER!! But note that LGU is conferred with the POWER OF EMINENT DOMAIN SO in the end,
ordinance of the SB authorizing the expropriation proceedings can never be REVERSED on the
ground of ULTRA VIRES!!! BUT LGU has to endorse said ordinance to SP as strictly required by the
Local Government Code
Provided, further, That the local government unit may immediately take possession of the
property upon the filing of the expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be
paid for the expropriated property shall be determined by the proper court, based on the fair
market value at the time of the taking of the property.
i. Requisite for exercise:
1. Exercised by the local chief executive acting pursuant to a valid ordinance (not pursuant to a
Resolution); the barangay can institute expropriation proceedings the BARANGAY CHIEF
EXECUTIVE!!
2. For public use or welfare, for the benefit of the poor and the landless; Usually for socialized
housing!!
3. Only after a valid and definite offer had been made to and not accepted by the owner.
4.
Follow priority of acquisition in the Urban Development and Housing Act [Estate v.
City of Manila, 422 SCRA 551 (2004)] (if the purpose is socialized housing) Private property
the last priority under that law to be expropriated!!! Expropriate and exhaust first public
property!!
Some reminders:
1. Amount required for issuance of writ of possession.
Under the LGC, at least fifteen percent (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated.. Under the Rules of Court, it is the Full
Value of the property based on the Assess Value for taxation purposes!
Now, if it is the LGU expropriating, apply the Local Government Code.. If otherwise, like NPC
others, you apply the RULES OF COURT!!
2. Time of reckoning for just compensation. [City of Cebu v. Sps. Dedamo, 381 SCRA 754
(2002)]
Under the LGC, the amount to be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the taking of the property.. Under
the Rules of Court, , the amount to be paid for the expropriated property shall be determined by
the proper court, based on the fair market value at the time of the taking or the time of filing
of expropriation, which ever comes first!!! Take Note!!! mOreover, in case of LGU, noteworthy
is the fact that Substantive law prevails over procedural law. Hence, LGC should apply!!!
TOPIC D (3):
3. Taxation
Part of Review in Taxation: Local Taxation
1999 Bar Question, No. 5:
Under the 1987 Constitution, what are the main sources of revenues of local government units?
[Taxes, Charges and Fees]
[Taxes, Charges and Fees]
1987 Bar Question , No. 5:
State whether or not the following city ordinances are valid and give reasons in support of your
answer.
a. An ordinance prescribing the use of local dialect as medium of instruction in the primary
grades.- INVALID!>>>the Rule is that FILIPINO IS THE MEDIUM OF INSTRUCTION UNLESS
OTHERWISE PROVIDED FOR BY LAW! Only Congress can abolish the same by means of a law it
cannot be done through an Ordinance!! However, Auxiliary medium of instruction can be done
in LOCAL DIALECT AND NOT AS THE PRINCIPAL MEDIUM OF INSTRUCTION!!!
(b) No such way or place or any part thereof shall be permanently closed without making
provisions for the maintenance of public safety therein. A property thus permanently
withdrawn from public use may be used or conveyed for any purpose for which other real
property belonging to the local government unit concerned may be lawfully used or
conveyed: Provided, however, That no freedom park shall be closed permanently without
provision for its transfer or relocation to a new site.
National road
(c) Any national or local road, alley, park, or square may be temporarily closed
(note: NO POWER TO PERMANENTLY CLOSE THE SAME) during an actual emergency, or
fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public
works and highways, telecommunications, and waterworks projects, the duration of which
shall be specified by the local chief executive concerned in a written order: Provided,
however, That no national or local road, alley, park, or square shall be temporarily closed for
athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the
local government unit concerned.
(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close
and regulate the use of any local street, road, thoroughfare, or any other public place where
shopping malls, Sunday, flea or night markets, or shopping areas may be established and
where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold
and dispensed to the general public.
Due to over-crowding in the public market in Paco, Manila, the city council passed an ordinance
allowing the lease to vendors of parts of the streets where the public market is located, provided
that the lessees pay the city government a fee of P50,000 per square meter of the area occupied
by them. The residents of the area complained to the Mayor that the lease of public streets would
cause serious traffic problems to them. The Mayor cancelled the lease and ordered the removal of
the stall constructed on the streets, Was the act of the Mayor legal?
The principle is that the LGU cannot lease a portion of its PUBLIC street without permanently
closing it!!.. In the instant case, there was no approval of at least 2/3 of the SP declaring the
permanent closure thereof consequently, the street did not cease to be a public property hence
it is outside the commerce of man.. It cannot be subject to lease.. There should have been valid
conversion thereof!!!
TOPIC D (5):
5. Legislative Power
(a) Requisites for Valid Ordinance
(b) Local Initiative and Referendum
TOPIC D (5):
e. Legislative Power (IN GENERAL)
i. Who exercise it?
Section 48. Local Legislative Power. - Local legislative power shall be exercised by the
sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the
sangguniang bayan for the municipality; and the sangguniang barangay for the barangay.
1.
2.
3.
4.
(a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the
sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding
officer shall vote only to break a tie.
1.
2.
3.
4.
same with his objections to the sanggunian, which may proceed to reconsider the same. The
sanggunian concerned may override the veto of the local chief executive by two-thirds (2/3)
vote of all its members, thereby making the ordinance or resolution effective for all legal
intents and purposes.
(b) The veto shall be communicated by the local chief executive concerned to the sanggunian
within fifteen (15) days in the case of a province, and ten (10) days in the case of a city or a
municipality; otherwise, the ordinance shall be deemed approved as if he had signed it.
iii. Grounds for Veto
(a) The local chief executive may veto any ordinance of the sanggunian panlalawigan,
sangguniang panlungsod, or sanggunian bayan on the ground that it is ultra vires or
prejudicial to the public welfare, stating his reasons therefor in writing.
2.
PREJUDICIAL TO THE PUBLIC WELFARE (very broad like that of the President!!)
Note that the grounds for Veto of the President is not provided for by the Constitution.. Hence, it
can be said that he has more grounds to veto as compared to LCE which is limited to the
aforementioned 2 grounds..
(b) The local chief executive, except the punong barangay, shall have the power to veto
any particular item or items of an appropriations ordinance, an ordinance or resolution
adopting a local development plan and public investment program, or an ordinance directing
the payment of money or
Taking a look at the provisions above, the PUNONG BARANGAY has no VETO POWER for
obvious reason that HE IS THE PRESIDING OFFICER OF Sangguniang Barangay!! Otherwise,
absurdity results..
creating liability. In such a case, the veto shall not affect the item or items which are not
objected to. The vetoed item or items shall not take effect unless the sanggunian overrides
the veto in the manner herein provided; otherwise, the item or items in the
appropriations ordinance of the previous year corresponding to those vetoed, if
any, shall be deemed reenacted.
Note that the ITEM VETO POWER of the President applies only to appropriation, tariff or renenue
bills. Here, the LCE has ITEM veto power of the LCE may be had on
1.
appropriation ordinances or
2.
3.
NO MENTION THAT LCE CAN VETO REVENUE ORDINANCES!! IT IS NOT SUBJECT TO ITEM VETO BY
THE LCE!!
(c) The local chief executive may veto an ordinance or resolution only once. The sanggunian
may override the veto of the local chief executive concerned by two-thirds (2/3) vote of all
its members, thereby making the ordinance effective even without the approval of the local
chief executive concerned.
Section 56. Review of Component City and Municipal Ordinances or Resolutions by the
Sangguniang Panlalawigan.
(a) Within three (3) days after approval, the secretary to the sanggunian panlungsod or
sangguniang bayan shall forward to the sangguniang panlalawigan for review, copies of
approved ordinances and the resolutions approving the local development plans and public
investment programs formulated by the local development councils.
(b) Within thirty (30) days after the receipt of copies of such ordinances and resolutions, the
sangguniang panlalawigan shall examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial
attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the
documents, inform the sangguniang panlalawigan in writing of his comments or
recommendations, which may be considered by the sangguniang panlalawigan in making its
decision.
(c) If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the
power conferred upon the sangguniang panlungsod or sangguniang bayan concerned
(ULTRA VIRES), it shall declare such ordinance or resolution invalid in whole or in
part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise
the corresponding city or municipal authorities of the action it has taken.
(d) If no action has been taken by the sangguniang panlalawigan within thirty (30) days
after submission of such an ordinance or resolution, the same shall be presumed consistent
with law and therefore valid.
Note that these provisions apply only in so far as component cities and municipalities
are concerned!! This does not apply to HIGHLY URBANIZED CITIES AND INDEPENDENT
COMPONENT CITIES!!
This can be related to what happen to the tax ordinance passed by the City of Tagum.. It
forwaded the same to the Sangguniang Panlalawigan for review.. Surprisingly, the Provincial
SP had it forwarded back to the City Sangguniang with a comment/or suggestion for
rectification.. The problem now is that the City is committed to implement the same since
SP has not declare the same to be invalid and taking into consideration that it has not been
acted by the SP within 30 days from submission thereof.. It only commented for
rectification..!! The problem now arises as there was no clear statement of the SP as to
whether or not IT DECLARED SUCH ORDINACE INVALID IN WHOLE IN PART!! BUT NOTE
HOWEVER IT CANNOT BE SAID THAT THE SAID ORDINANCE ENJOYS THE PRESUMPTION OF
VALIDITY SINCE THERE WAS AN ACTION FROM THE SP DURING THAT PERIOD WHEN IT
FORWARDED THE SAME WITH A COMMENT FOR RECTIFICATION.. WHILE THERE WAS NO
DECLARATION OF DISAPPROVAL, THERE WAS AN ACTION MADE BY THE SP WHEN IT
FORWARDED BACK THE SAME WITH THE SAID COMMENT FOR RECTIFCATION!!! THIS IS A
BIG PROBLEM!!!
3. How can an ordinance vetoed by a local chief executive become a law without it being
overridden by the local legislative assembly?
2 possible answers!!
1.
When the LCE vetoes an ordinance for the 2nd Time because he is only allowed to veto
once!! His 2nd veto can be considered null and void!!!
2.
When the LCE failed to communicate his veto within fifteen (15) days in the case of a
province, and ten (10) days in the case of a city or a municipality to the concerned
Sanggunian.. Consequently, it is as if the ordinance is approved by him
determine the feasibility of putting up a legalized red light district, the city council conducted an
inquiry and invited operators of the closed funhouses to get their views. No one honored the
invitation. The city council issued subpoenas to compel attendance of the operators but which
were completely disregarded. The council declared the operators guilty of contempt and issued
warrants for their arrest.
ordinance could have been considered illegal as it would contravene the EO!! A cursory reading of
the entire provision of the EO, there seems to be no provisions on WHAT METHODS are allowed or
not allowed!!hence, it can be said that such ordinance violates no law or regulation as it only
regulates the manner of operating mining!!!.. It only prohibits open pit mining!!. It DOES NOT
PROHIBIT MINING AT ALL!!
Penalties
For initiation before the Sanggunian, you need the required signatures prescribed by the
If not acted upon by the Sanggunian, Gather the signatures of at least 10% of the
registered voters of which at least 3% represents from every barangay in order to submit
the questions to the people!!
3.
It the no. 2 is complied with, we will now have the referendum By which the proposed
legislation shall be approved by majority of the registered voters!! The ordinance shall take
effect WITHIN 15 days after COMELEC CERTIFICATION!!!
Take note! In the constitution, the law passed through initiative or referendum takes effect on the
day of its ratification!!! When it comes to laws pass through congress, it shall take effect 15 days
from publication in the newspaper of general circulation or in the official gazzete
In local legislation through initiative, it shall take effect within 15 days after COMELEC
CERTIFICAITON!!!
ii. Limitations: (local initiative and referendum)
1. It can extend only to matters within the power of the Sanggunian;
2. The power shall not be exercised more than once a year [but 2 or more propositions are
allowed in one initiative] so a law can be repealed only initiative once a year!!!
Remember the limitations of initiative and referendum in national legislation.
1.
It can extend to any matter except that when there is a law giving emergency powers to the
president which cannot be repealed by initiative within 6 months from the time it takes
effect!!
2.
Laws can be passed through initiative as often as it can be but you cannot amend the
constitution more than once in every 5 years!!!
iii. Repeal:
Sec. 125. Any proposition or ordinance approved through the system of initiative and
referendum as herein provided shall not be repealed, modified or amended by the Sanggunian
concerned within 6 months from the date of the approval thereof, and may be amended, modified
or repealed by the Sanggunian within 3 years thereafter by a vote of of its members, Provided,
that in the case of the barangays, the period shall be 18 months from the approval thereof.
Freedom Period:
Province, City, Municipality:
-------------/---------------------------------------------/------------6 months
after 3 years
Barangay:
--------------------/------------------------/-----------18 months
after 3 years
(a) Every local government unit, as a corporation, shall have the following powers:
(6) To exercise such other powers as are granted to corporations, subject to the limitations
provided in this Code and other laws.
Rules:
1. Provinces and cities must have legal officers (MANDATORY); hiring of lawyers by
municipalities is optional; [City Fiscal]
2. Municipalities will be represented by the Provincial Legal Officer; THE MUNICIPALITY CANNOT
HIRE PRIVATE LAWYER.. OTHERWISE, PRIVATE LAWYER CANNOT BE PAID FOR THE SERVICES
THAT MAY BEEN RENDERED!!
3. If disqualified, the Provincial Prosecutor represents the municipality
This happens when the Provincial Legal Officer is in a situation where he is not allowed or cannot
represent the Municipality as when he is a relative to any of the party, or as when the suit is
between the Provincial Government and Municipality THE PROVINICIAL PROSECUTOR represents
the municipality
Note that when the City of Panabo was newly created, the City Fiscal represents the City as
provided in its charter. As experienced by DEAN..
4. If provincial prosecutor is disqualified [suit between province and municipality, or between
executive and legislative of the province] request the Department of Justice to assign an
acting provincial prosecutor or hire a private lawyer .
THIS IS ONLY THE INSTANCE WHERE THE MUNICIPALITY CAN HIRE A PRIVATE LAWYER WITHOUT
BEING DISALLOWED BY COA!!! THIS IS THE ONLY EXTREME MEASURE WHERE PRIVATE LAWYERS
ARE ALLOWED TO BE HIRED..!!
Mancenido v. CA, 330 SCRA 419 (2000)
School teacher filed a case for mandamus to compel payment of their salaries and damages
against the provincial governor and the Sangguniang Panglungsod. The teachers won the case and
the provincial officials filed a notice of appeal through a private counsel. The teachers moved
dismiss the appeal claiming that the province can only be represented by the Provincial Legal
officer, or in his absence the provincial prosecutor. Can they hire private counsel. [Who is sought to
be held liable?]
WHAT REALLY HAPPENED IN THIS CASE WAS THAT THE PLAINTIFFS SUED FOR MANDAMUS AND
DAMAGES AGAINST THE GOVERNOR AND SP MEMBERS IN THEIR PERSONAL CAPACITY HENCE,
IT WAS RULED BY THE SC THAT THE DEFENDANT PROVINCIAL GOVERNOR AND THE SP MEMBERS
CAN HIRE PRIVATE LAWYERS AS THE OUTCOME OF THE CASE COULD RESULT TO PERSONAL
LIABILITY!!
HELD: CONSIDERING THAT THE PLAINTIFFS ARE SUING FOR DAMAGES, THE DEFENDANTS CAN
HIRE PRIVATE LAWYERS AS THE OUTCOME OF THE CASE COULD RESULT TO THIER PERSONAL
LIABILITY.. OTHERWISE, THE DEFENDANTS COULD BE DEPRIVED OF THEIR PROPERTY
WITHOUTDUE PROCESS OF LAW IF NOT ALLOWED TO HIRE THEIR OWN COUNSEL..
THE RULE IS THAT SUITS FOR MANDAMUS OR INJUCTION, YOU CANNOT HIRE PRIVATE LAWYERS!!
b/c). To Acquire and Sell Property and Enter into Contracts:
Sec. 22 (c) Unless otherwise provided in this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit without prior authorization by the
sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in
the provincial capitol or the city, municipal or barangay hall.
Section 23. Authority to Negotiate and Secure Grants. - Local chief executives may, upon
authority of the sanggunian, negotiate and secure financial grants or donations in kind, in
support of the basic services or facilities enumerated under Section 17 hereof, from local
and foreign assistance agencies without necessity of securing clearance or approval therefor
from any department, agency, or office of the national government of from any higher local
government unit: Provided, That projects financed by such grants or assistance with
national security implications shall be approved by the national agency concerned: Provided,
further, That when such national agency fails to act on the request for approval within thirty
(30) days from receipt thereof, the same shall be deemed approved.
The local chief executive shall, within thirty (30) days upon signing of such grant agreement
or deed of donation, report the nature, amount, and terms of such assistance to both
Houses of Congress and the President.
2.
IMPLIED RATIFICATION.. Provincial Board of Cebu case-- THIS HAPPENS WHEN THE
COUNCIL OR SANNGUNIAN ACCEPTS BENEFITS UNDER THE CONTRACT
The municipal council passed a resolution to manage the town Fiesta. It appropriated
amounts for the construction of a stage for the zarzuela. During the night of the fiesta, due to
overweight, the stage collapse killing one person. Is the municipality liable? Are the councilors
liable?
SPONSORING OR MANAGING TOWN FIESTA IS A PROPRIETARY FUNCTION- HENCE, THE LGU CAN
BE HELD LIABLE!!
ARE THE COUNCILORS PERSONALLY LIABLE? NO! THIS PREMISED ON THE SETTLED RULE THAT
THE LGU IS A CORPORATE ENTITY WITH DISTINCT AND SEPARATE PERSONALITY FROM ITS
OFFICIALS OR MEMBERS OF THE SANGGUNIAN.. HENCE NOT PERSONALLY LIABLE!!
As to councilors, Art. 27 of the Civil Code applies only to non-feasance, not to malfeasance or
negligence. They are simply like members of the Board of a private corporation which has a
separate personality.
[Art. 27 provides for the liability of the local government unit for refusal or neglect of officials to
perform duty without just cause.
To summarize, old cases made a distinction between torts [intentional or negligent acts
causing damagee to third persons], between governmental and proprietary acts.
Exceptions: 1. Art. 2189 of the Civil Code, (MUNICIPAL GOVERNMENTS OR LGU) they are liable
for defective conditions of roads under their control and supervision [ ISSUE HERE IS not
ownership] Guilatco v. City, 171 SCRA 382 (1989) (HERE, THE DISTINCTION AS TO W/N THE LGU
EXERCISES PROPRIETARY OR GOVERNMENT FUNCTION IS NOT APPLICABLE) HERE, IF YOU FALL
TO A MANHOLE UNDER THE THE CONTROL AND SUPERVISION OF LGU, THE LATTER CAN BE HELD
LIABLE!! OR WHEN YOU MET ACCIDENT BY REASON OF DEFECTIVE ROAD CONDITIONS..
2. Art. 2180 provides that the state is liable when it acts through a special agent. Paras
says it applies both to the central and local government. It acts through a special agent
when the officer or employee does an act foreign to his usual duties. A driver of LGU met
an accident, the former does not act FOREIGN TO HIS USUAL DUTIES!- SO HERE THE DRIVER IS
NOT A SPECIAL AGENT, HE WILL BE HELD PERSONALLY LIABLE!! AND NOT THE LGU!!.. HOWEVER ,
WHEN A CLERK IS MADE TO DRIVE AND MET AN ACCIDENT, THE LGU WILL BE HELD LIABLE!!
New Case
Mayor Miguel of Koronadal, South Cotabato, was on board the Isuzu pick-up truck
driven by Fidel Lozano, an employee of the Municipality of Koronadal assigned to the Mayor,
when it hit and killed a pedestrian. The pick-up truck was registered under the name of
Rodrigo Apostol. The driver borrowed the pick-up truck from Simbulan to bring Miguel to
Buayan Airport at General Santos City to catch his Manila flight. There was no doubt that
Lozano was driving at a very high speed. Is Mayor Miguel or the the Municipality of
Koronadal, as the employer of Lozano, liable for the death of the victim?
Held: Mayor Miguel cannot be held liable because it was the Municipality of
Koronadal which was the lawful employer of Lozano at the time of the accident. It
is uncontested that Lozano was employed as a driver by the municipality. That he was
subsequently assigned to Mayor Miguel during the time of the accident is of no moment.
Unfortunately, the municipality may not be sued because it is an agency of the
State engaged in governmental functions and, hence, immune from suit
(SOMETHINGS WRONG HERE, TAKE NOTE THAT THE LGU CAN SUE AND BE SUED).
This immunity is illustrated in Municipality of San Fernando, La Union v. Firme, where this
Court held: It has already been remarked that municipal corporations are suable because
their charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental functions
and can only be held answerable only if it can be shown that they were acting in
proprietary capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant was not acting in governmental
capacity when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot recover. (THERE SEEMS
TO BE CONFUSION BETWEEN SUABILITY AND LIABILITY)
APPARENTLY, SC APPLIED THE DISTINCTION AS TO W/N THE LGU was acting in governmental
capacity when the injury was committed OR IN ITS PROPRIETARY FUNCTION.. IT
DISREGARDED THE EXPRESSED PROVISION ON Liability of LGUs: Section 24. Liability for
Damages. - Local government units and their officials are not exempt from liability for
death or injury to persons or damage to property (WITHOUT ANY DISTINCTIONGOVERNMENTAL OR PROPRIETARY).
2. Liability for Contracts:
-Martin seems to assume that they are liable whether the contract is governmental or
proprietary.
-In the Torio case(FOLLOW THIS ONE.. PREVAILING JURISPRUDENCE) [above] the statement
appears that municipal corporations are liable in their proprietary functions, ex contract and ex
delicto.
NOTE: IF THE CONTRACT ENTERED INTO BY THE LGU IS PROPRIETARY, IT WAIVES ITS IMMUNITY
FROM SUIT.. HENCE LIABLE.. DISTINCTIONS MUST BE HAD
City v. IAC, 179 SCRA 428 (1989):
The City of Manila owns a burial ground and it leased a portion of the same for 50 years to
Irene Sto. Domingo. Believing that the lease was only for 5 years, the city mayor ordered the
bodies exhumed after the period and proceeded to lease the property to another who also turned it
into a burial ground. Is the city liable for damages. [patrimonial property liable to third persons
ex contracto]
TAKE NOTE THAT OPERATING A CEMETERY IS NOT GOVERNMENTAL FUNCTION.. IT IS ACTUALLY
PATRIMONIAL IN NATURE.. HENCE LIABLE TO THIRD PERSON EX CONTRACTO!!
Province v. IAC, 147 SCRA 451 (1987)
An LGU is liable for accepting benefits under a contract for legal services which was improperly
entered into by the governor, without objection from the Sanggunian.
-also liable for implied contracts THIS IS A CLEAR CASE OF IMPLIED RATIFICATION WHEN THE
SANGGUNIAN ACCEPTS BENEFITS UNDER THE CONTRACT..
-Enforcement of Decisions:
1.
As to property not subject to execution, except property held in its proprietary capacity
[Toco v. Municipal Council of Iloilo, 49 Phil. 52] NOTE THE EXCEPTION THAT PROPERTIES
HELD BY IN ITS LGUS PROPRIETARY CAPACITY CAN BE SUBJECT TO EXECUTION!!
2.
As to funds not subject to execution, except if there was a prior appropriation ordinance.
[Pasay City v. CFI,132 SCRA 156]
securing a judgment therefor, seek a writ mandamus against the municipal council and
the municipal mayor to compel the enactment and approval of the appropriation
ordinance necessary therefor.
FILE MANDAMUS!! TAKE NOTE THIS CASE!!
Held: The general rule spelled out in Section 3, Article XVI of the Constitution is that the
state and its political subdivisions may not be sued without their consent. In the case of
LGUs, consent is given in Book I, Title I, Chapter 2, Section 22 of the Local Government
Code of 1991, which vests local government units with certain corporate powers --one of
them is the power to sue and be sued. But suability is distinct from liability. Where
the State gives its consent to be sued by private parties either by general or
special law, it may limit claimant's action "only up to the completion of
proceedings anterior to the stage of execution". The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects. With this in
mind, the Court holds that the writ of preliminary attachment must be dissolved. It
is useless and unnecessary under the premises, since the property of the municipality
may not, in the event that plaintiff's claim is validated, be subjected to writs of
execution and garnishment -- unless, of course, there has been a corresponding
appropriation provided by law.
Bar Questions:
72. A collision occurred involving a passenger jeepney driven by Leonardo, a cargo truck
driven by Joseph, and a dump truck driven by Lauro but owned by the City of Cebu.
Lauro was on his way to get a load of sand for the repair of the road along Fuente
Street, Cebu City. As a result of the collision, 3 passengers of the jeepney died. Their
families filed a complaint for damages against Joseph who in turn filed a third party
complaint against the City of Cebu and Lauro. Is the City of Cebu liable for the tort
committed by its employee?
A. The City of Cebu is not liable because its employee was engaged in the
discharge of a governmental function. (NOTE THAT WE STILL HAVE TO MAKE
DISTINCTION NOTWITHSTANDING THE PROVISIONS OF THE LGC)
B. The City of Cebu is liable for the tort committed by its employee while in the discharge of
a non-governmental function.
C. The City of Cebu is liable in accord with the precept of respondeat superior.
The Municipality of Pinatukdao is sued for damages arising from injuries sustained by
a pedestrian who was hit by a glass pane that fell from a dilapidated window
frame of the municipal hall. The municipality files a motion to dismiss the complaint,
invoking state immunity from suit. Resolve the motion with reasons. (3%)
MOTION MUST BE DENIED.. LGU CAN BE SUED PURSUANT TO THE LGC PROVISIONS..
SUABILITY IS NOT ANYMORE AN ISSUE!! HOWEVER, AS TO ITS LIABILITY, WE MAY APPLY
The Municipality of Antipolo expropriated the property of Juan Reyes. The municipal
council appropriated P1,000,000 for the purchase of the lot but the RTC fixed the value of
P2,000,000.
1. Can Juan Reyes ask the RTC to garnish the municipalitys account with the Land Bank?
YES BUT ONLY TO THE EXTENT OF 1,000,000.00 THAT HAS BEEN APPROPRIATED!!
2. What legal action can Juan Reyes take to collect the balance? FILE A MANDAMUS TO
COMPEL THE LGU THROUGH THE SB FOR THE APPROPRIATION AND SUBSEQUENT RELEASE
OF THE REMAINING BALANCE!!
(a) Boundary disputes involving two (2) or more barangays in the same city or
municipality shall be referred for settlement to the sangguniang panlungsod or
sangguniang bayan concerned.
(b) Boundary disputes involving two (2) or more municipalities within the same
province shall be referred for settlement to the sangguniang panlalawigan
concerned.
(d) Boundary disputes involving a component city or municipality on the one hand
and a highly urbanized city on the other, or two (2) or more highly urbanized
cities, shall be jointly referred for settlement to the respective sanggunians of the
parties.
e) In the event the sanggunian fails to effect an amicable settlement within sixty (60)
days from the date the dispute was referred thereto, it shall issue a certification to
that effect. Thereafter, the dispute shall be formally tried by the sanggunian
concerned which shall decide the issue within sixty (60) days from the date of the
certification referred to above.
Section 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any
party may elevate the decision of the sanggunian concerned to the proper Regional Trial
Court having jurisdiction over the area in dispute. The Regional Trial Court shall
decide the appeal within one (1) year from the filing thereof. Pending final resolution
of the disputed area prior to the dispute shall be maintained and continued for all legal
purposes.(REMAIN STATUS QUO!!)
The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof- SOMETHING IS WRONG HERE THE CONSITUTION MANDATES RTC TO
DISPOSE A CASE WITHIN 90 DAYS MOREOVER, THE CONGRESS CANNOT BY
MEANS OF A LAW INTRUDE THE RULE MAKING POWER OF THE JUDICIARY!! MUCH
LESS AMENDING THE CONSTITUTION!!!
(1.) There was a boundary dispute between Dueas, a municipality, and Passi, an
independent component city, both of the same province. State how the two local
government units should settle their boundary dispute. (5%)
LOCAL GOVERNMENT
PART II
Outline of Topics: Based on 2012 Bar Syllabus
A. Public Corporations
1. Concept
(a) Distinguished from Government-Owned or
Controlled Corporations (GOCCs)
2. Classifications
(a) Quasi-Corporations
(b) Municipal Corporations
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation, Conversion, Division,
Merger or Dissolution
C. Principles of Local Autonomy
D. Powers of Local Government Units (LGUs)
1. Police Power (General Welfare Clause)
2. Eminent Domain
3. Taxing Power
4. Closure and Opening of Roads
5. Legislative Power
(a) Requisites for Valid Ordinance
(b) Local Initiative and Referendum
6. Corporate Powers
(a) To Sue and Be Sued
(b) To Acquire and Sell Property
(c) To Enter Into Contracts
(i) Requisites
(ii) Ultra Vires Contracts
7. Liability of LGUs
8. Settlement of Boundary Disputes
9. Succession of Elective Officials
10. Discipline of Local Officials
(a) Elective Officials
(1) Grounds
(2) Jurisdiction
(3) Preventive Suspension
(4) Removal
(5) Administrative Appeal
(6) Doctrine of Condonation
(b) Appointive Officials
11. Recall
12. Term Limits
TOPIC (D) (9):
9. Succession of Elective Officials
a. In the Executive- Governor, Mayor, and Punong Barangay!!
i.
Permanent Vacancies
i.
ii.
refuses to assume,
is removed,
vi.
resigns or
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay member or, in case of his permanent inability, the
second highest ranking sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by
the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills
a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of
his office.
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall
be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each district in the immediately
preceding local election. MEMO!
Temporary vacancies
ii.
1. the same procedure, but the temporary successor can only appoint, suspend, or
dismiss if the absence exceeds 60 days [What can acting executive do?] as distinguished in
CONSTI LAW where the temporary president can do anything pending the qualification and election
of the president. His acts of appointment is temporary and may be revoked by the REAL
PRESIDENT which must be done within 90 days!! So the Governor can veto ordinances as the
limitation is confined only to appointment, suspension or dismissal of employee..
2. if absence is due to travel within the country not exceeding 3 days, he can designate
somebody. [except power to appoint, suspend or dismiss] this cannot be done and exercise by
one designated
Here there is no automatic succession by the next lower ranking officials!! He can designate any
member of the sangguniang or his administrator!! The law does not tell us who can be designated
3. If he did not designate, No. 2 will come in on the 4th day of his absence
If the mayor did not designate, the vice mayor will fill in on the 4th day of his absence!!
..Highest ranking sanggunian member WILL FILL IN ..
Victoria v. COMELEC, 229 SCRA 269 (1994)
After the Governor of Albay was suspended and the Vice Governor took over, the latter office
became vacant. SP member Calisin got 28,835 votes in the first district [21.78%, while SP
member Victoria got 32,918 in the second district [21.19%]. Who is the highest ranking entitled to
succession? Must it be based on the number who actually voted or the registered voters?
SP member Calisin who got 28,835 votes in the first district [21.78%,- look at the
percentage votes garnered in his legislative district!!! This is based on the number who actually
voted!!
b. In the Legislative
(a) Permanent vacancies in the sanggunian where automatic succession provided above
do not apply shall be filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in the case of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the sangguniang panlungsod of component cities
and the sangguniang bayan;
(3) The city or municipal mayor, in the case of sangguniang barangay, upon
recommendation of the sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the nominee of the political party under
which the sanggunian member concerned had been elected and whose elevation
to the position next higher in rank created the last vacancy in the sanggunian
shall be appointed in the manner hereinabove provided. The appointee shall come
from the same political party as that of the sanggunian member who caused the vacancy
and shall serve the unexpired term of the vacant office. In the appointment herein
mentioned, a nomination and a certificate of membership of the appointee from the
highest official of the political party concerned are conditions sine qua non, and any
appointment without such nomination and certification shall be null and void ab initio and
shall be a ground for administrative action against the official responsible therefore.
(c) In case or permanent vacancy is caused by a sanggunian member who does not
belong to any political party, the local chief executive shall, upon recommendation of the
sanggunian concerned, appoint a qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the youth and the barangay in the
sanggunian, said vacancy shall be filled automatically by the official next in rank of
the organization concerned.
which created the vacancy, therefore, the appointee should come from his party. Who caused the
last vacancy?
It was held that the first councilor who was elevated to the position of vice mayor, caused the LAST
VACANCY HENCE, the Governor WAS CORRECT IN appointing Navarro who belonged to
the same party as that of Tamayo. The vacancy was created by the FIRST COUNCILOR
when he was elevated to Vice mayor position.. Therefore, the one that should be
nominated should come from the party of the first councilor who caused the vacancy!!!
THE RATIONALE OF THIS MEASURE IS TO MAINTAIN THE BALANCE OF PARTY
REPRESENTATION!! OR PARTY REPRESENTATION OR THE WILL OF THE PEOPLE!!
ii. Caused by one with no political party
Farinas v. Barba, 256 SCRA 398 (1996)
When a seat in the SB (INDEPENDENT COMPONENT CITY) became vacant arising from the
death of a member with no political party, the Governor appointed Barba, while the Mayor
appointed Palafox to fill it. Who is the local chief executive referred to by the Code?
Held: The appointing authority is the same as in cases where there is a political party.
But in this case, there must be a recommendation from the sanggunian concerned, or
where the vacancy exists.
(THIS CASE REALLY INVOLVED A INDEPENDENT COMPONENT CITY.. HENCE, SC HELD
THAT IT SHOULD BE THE PRESIDENT WHO MUST APPOINT TO FILL IN THE VACANCY
PROVIDED THAT A RECOMMENDATION FROM THE SANGGUNIANG CONCERNED IS HAD
Question: Is the appointing authority limited to those recommended? DISCRETIONARY
Held: The appointing authority is not bound to appoint anyone recommended to him by the
Sanggunian. The power to appoint is a discretionary power. On the other hand, neither is the
appointing power vested with so large a discretion that he can disregard the recommendation.
Gamboa v. Aguirre, July 20, 1999
Gamboa was elected Vice-Governor of Negros Occidental. When the Governor was abroad for
an official trip abroad, Gamboa was designated as acting Governor. Can he continue presiding in
the regular sessions of the Sangguniang Panlalawigan despite his designation as Acting Governor?
[LGC does not provide for succession in the office of the Vice Governor in case of temporary
vacancy.] [But Sec. 49 (b) discusses possibility of inability of Presiding Officer.]
NO! HE CANNOT.. SC HELD THAT WHEN YOU ARE ACTING GOVERNOR, YOU ARE REALLY A QUASI
GOVERNOR!! SO YOU CAN NO LONGER EXERCISE THE POWER OF THE VICE GOVERNOR FOR THAT
MOMENT HE CANNOT PRESIDE THE LEGISLATION AND AT THE SAME TIME VETO THE SAME
AS TO WHO SHALL PRESIDE THE SP IN VIEW OF THE TEMPORARY DESIGNATION OF THE VG AS
GOVERNOR, THE SANGGUNIANG MEMBERS AMONG THEMSELVES SHALL ELECT THE ACTING
PRESIDING OFFICER
On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesar succeeded him by
operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang
Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the
office of Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created.
IT MUST BE DISTINGUISHED!! IF THE PERSON WHO CAUSED THE VACANCY IS A MEMBER OF THE
POLITICAL PARTY, THE PRESIDENT SHALL APPOINT UPON RECOMMENDATION OF SUCH POLITICAL
PARTY ANY MEMBER THEREOF..
IF OTHERWISE, A RECOMMENDATION OF THE SANGGUNIANG CONCERNED WHERE THE VACANCY
OCCURRED!!
Will B the Municipal Vice Mayor, be performing executive functions? Why? YES!! AS
temporary successor, he can only appoint, suspend, or dismiss if the absence
exceeds 60 days.. Hence he will be allowed in the case at bar
b. Will B at the same time be also performing legislative functions as presiding officer of the
Sangguniang Bayan? NOT FOR THAT TIME BEING!! HE CANNOT EXERCISE EXECUTIVE
FUNCTIONS AND LEGISLATIVE ONE SIMULTANEOUSLY!!
Bar Question, 2001
No. 15. A vacancy occurred in the Sangguniang Bayan of a municipality when X, a
member died. X did not belong to any political party.
To fill up the vacancy, the provincial governor appointed A upon recommendation of the
Sangguniang Panlalawigan. On the other hand, for the same vacancy, the municipal mayor
appointed B upon the recommendation of the sangguniang bayan.
Which of these appointments is valid?
THE GOVERNOR SHALL APPOINT UPON THE RECOMMENDATION OF THE SANGGUNIANG BAYAN
CONCERNED!!
TOPIC 5 (J):
j. Discipline of Local Officials
(1) Elective Officials
(a) Grounds
(b) Jurisdiction
(c) Preventive Suspension
(d) Removal
(e) Administrative Appeal
(f) Doctrine of Condonation
a.
Grounds
Section 60. Grounds for Disciplinary An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan,
and sangguniang barangay; (THESE DOES NOT APPLY TO SANGGUNIANG MEMBERS
BECAUSE THEY ARE ONLY REQUIRED TO REPORT DURING SESSION DAYS!! THIS APPLY TO
MAYOR OR GOVERNOR!!
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and (THIS IS IMPORTANT BECAUSE CITIZENSHIP AND
RESIDENCY IS A CONTINUING REQUIREMENTS TO LOCAL ELECTIVE POSITION..
NON COMPLIANCE THEREOF AMOUNTS TO LOSS OF POSITION!!
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court.
b. Jurisdiction
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court. - it must be noted that courts have no
adminstrative power and supervision over public officials.. The only administrative
supervision the SC has pertains to its own employees!! The EFFECT is that removal
from office of these public officials may only be had as BOTH PRINCIPAL AND
ACCESSORY PENALTY as a consequence of criminal convictions!! THE PROCEDURE
IS YOU FILE A CRIMINAL ACTION AGAINST THESE PUBLIC OFFICIALS AS THE
OUTCOME THEREOF MAY RESULT TO REMOVAL FROM OFFICE!! NOTE YOU CANNOT
FILE AN ADMIN CASE BEFORE THE SANDIGANBAYAN WHICH IS A SPECIAL
CRIMINAL COURT WITH NO ADMINSITRATIVE JURISDICTION OVER ANYBODY!!
1.
Art. 67 (b): over elective officials of provinces, highly urbanized and independent component
cities.
According to Sec. 67, Decisions of the office of the President are final and executory. But certiorari
is always available
NOTE THAT FINAL AND EXECUTORY CANNOT BE SUBJECT TO ORDINARY APPEAL BUT ALWAYS
SUBJECT TO REVIEW BY MEANS OF CERTIORARI IF THERE IS A GRAVE ABUSE OF DISCRETION!!
3. Sangguniang Panlalawigan
-for municipal officials and component cities (mayor, vice mayor and councilor)
Where do you appeal? YOU APPEAL TO THE OFFICE OF THE PRESIDENT!
They were
charged before the Ombudsman and investigated for violating RA No. 3019 and Art. 170 and 171
of the RPC. They argued that the Office of the President under Sec. 61 and Sec. 63 of the LGC, the
Office of the President has sole jurisdiction over administrative complaints against elective officials
of provinces and highly urbanized cities and independent component cities.
Held:
The power of the Ombudsman under the Constitution and RA No, 6770 to investigate all public
officials has not been modified or repealed by the Local Government Code. The two statutes are
not inconsistent.
SO THE OMB STILL HAS JURISDICTION TO INVESTIGATE LOCAL ELECTIVE OFFICIALS!
What can these bodies impose as penalty?
1.
C. Preventive Suspension
Section 63. Preventive Suspension. (THIS IS THE SUSPENSION WHILE THE CASE IS
STILL GOING ON!!)
NOTE THE PECULIARITY OF THE POWER OF THE GOVERNOR AND MAYOR TO IMPOSE
PREVENTIVE SUSPENSION!! BECAUSE THEY ARE NOT THE DISCIPLINARY AUTHORITY TO
INVESTIGATE. IT IS ACTUALLY THE PROVINCIAL BOARD (FOR OFFICIALS OF
COMPONENT CITY OR MUNICIPALITY OR THE SANGGUNIAN CONCERNED (FOR
BARANGAY OFFICIALS) AS THE CASE MAY BE!! WE HAVE NO PROBLEM IN SO FAR AS THE
PRESIDENT IS CONCERNED BECAUSE HE IS THE ONE INVESTIGATING AND IMPOSES
PREVENTIVE SUSPENSTION!! DO NOT GET CONFUSED!!
(b) Preventive suspension may be imposed at any time after the issues are joined,
when the evidence of guilt is strong, and given the gravity of the offense, there is
great probability that the 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: Provided, That, any single preventive suspension of local elective officials shall
not extend beyond sixty (60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot be preventively
suspended for more than ninety (90) days within a single year on the same ground or
grounds existing and known at the time of the first suspension.
any time after the issues are joined-MEANS THAT AFTER THE RESPONDENT HAS
MADE HIS ANSWER TO THE OFFENSE LEVELLED AGAINST HIM, THE ISSUES ARE
JOINED THERE! THIS IS ONLY APPLIED IN LOCAL ELECTIVE OFFICIALS UNDER
THE LOCAL GOVERNMENT CODE!! THIS IS NOT APPLIED TO APPOINTIVE LOCAL
OFFICIALS
(c) Upon expiration of the preventive suspension, the suspended elective official shall be
deemed reinstated in office without prejudice to the continuation of the proceedings against
him, which shall be terminated within one hundred twenty (120) days from the
time he was formally notified of the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect, or request(REQUEST FOR
POSTPONEMENT AT HIS INSTANCE), other than the appeal duly filed, the duration of such
delay shall not be counted in computing the time of termination of the case.
(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as
abuse of authority.
Preventive Suspension:
COMMITTED BY A PUBLIC OFFICER) of the Revised Penal Code or for any offense involving fraud
upon government or public funds or property, whether as a simple or as a complex offense and in
whatever stage of execution and mode of participation, is pending in court, shall be suspended
from office.
NOTE THAT THIS 90 DAY PREVENTIVE SUSPENTION APLIES ONLY WHEN A PUBLIC OFFICIAL
IS FACING CRIMINAL CASE IN COURT FOR VIOLATION OF ANTI GRAFT LAW AND FOR
CRIMES COMMITTED BY PUBLIC OFFICERS!!
THERE WAS THIS CASE WHERE A PERSON WAS USING GOVT PROPERTY DURING ELECTION
PERIOD AND CHARGED FOR VIOLATION OF OMNIBUS ELECTION CODE!! SO HE WAS
SUSPENDED.. HE IMPUGNED THE SAME PREMISING THE SAME THAT HE WAS NOT
CHARGED UNDER TITLE 7 OF RPC.. HELD: WHEN YOU ARE USING A GOVERNMENT
PROPERTY FOR ELECTION PURPOSES, THAT IS RELATED TO OFFENSES COMMITTED BY
PUBLIC OFFICIALS.. SO THE SUSPENSION WAS UPHELD
ONCE THERE HAS BEEN AN ARRAIGNMENT, THE FISCAL WILL MOVE FOR THE
PREVENTIVE SUSPENSION!! AND THE ACCUSED CAN NO LONGER MOVE TO
DETERMINE THE VALIDITY OF THE INFORMATION IN VIEW OF HIS
ARRAIGNMENT!!
May a local elective official facing a criminal case for violation of the Anti-Graft law be suspended
for 90 days under Sec. 13 of RA No. 3019?
Rios v. Sandiganbayan, 279 SCRA 583[What should apply is Sec. 63 of the LGC -60 days only.]
But Layus v. Sandiganbayan, Dec. 8, 1999 should not exceed 90 days
This case involved miriam santiago who was charged for violations committed
during her former stint as immigration commissioner.. Later she was elected
senator, can she be suspended preventively? Held yes! THE TERM BE SUSPENDED
FROM OFFICE DOES NOT DISTINGUISH WHAT OFFICE!!
The term be suspended from office does not distinguish what office.
85. When an elective official's preventive suspension will result in depriving his constituents
of his services or representation, the court may
d. Removal [Penalies]
(a) The investigation of the case shall be terminated within ninety (90) days from
the start thereof. Within thirty (30) days after the end of the investigation, the
Office of the President or the sanggunian concerned shall render a decision in
writing stating clearly and distinctly the facts and the reasons for such decision.
Copies of said decision shall immediately be furnished the respondent and all
interested parties.
(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense, nor shall
said penalty be a bar to the candidacy of the respondent so suspended as long as he meets
the qualifications required for the office.
SO TAKE NOTE WITH THIS, IF YOU ARE REMOVED UNDER THE LOCAL
GOVERNMENT CODE, YOU CANNOT RUN FOR ANY ELECTIVE OFFICE .. AND
IF YOU ARE REMOVED FROM AN ADMIN CASE OTHER THAN UNDER THE LGC, YOU
CANNOT RUN FOR ANY ELECTIVE LOCAL POSITION ONLY!!! TAKE NOTE THE
DISTINCTION!!!
administrative case ARE disqualified from running for any elective local position
NOTE: HAD THIS CASE BEEN DISPOSED AFTER THE CASE OF Pablico v. Villapando, July
31, 2002, the DECISION OF THE SANGGUNIANG PANLALAWIGAN ORDERING HIS
REMOVAL FROM OFFICE WOULD NOT BE VALID!!!
But See-Salalima v. Guingona, supra [Footnote]
The Office of the President is without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in the last paragraph of the
aforequoted Section 60. Parenthetically, it may be observed that Article 125, Rule XIX of the Rules
and Regulations Implementing the Local Government Code of 1991 grants to the disciplining
authority the power to remove an elective local official. Paragraph (b) of the said Article
provides as follows:
(b) An elective local official may he removed from office on the grounds enumerated in
paragraph (a) of this Article [The grounds enumerated in Section 60, The Local Government
Code of 1991] by order of the proper court or the disciplining authority whichever first
acquires jurisdiction to the exclusion of the other. (Italics supplied)
This grant to the disciplining authority of the power to remove elective local
officials is clearly beyond the authority of the Oversight Committee that prepared
the Rules and Regulations.
TAKE NOTE THAT THE PRESIDENT HAS NO POWER TO REMOVE ERRING OFFICIALS SINCE
SUCH POWER IS VESTED ONLY TO PROPER COURTS!!
PROPER COURTS
2.
OMBUDSMAN!!!
But see: LGC, SEC. 66. Form and Notice of Decision. - (a) The investigation of the case shall
be terminated within ninety (90) days from the start thereof. Within thirty (30) days after
the end of the investigation, the Office of the President or the sanggunian concerned shall
render a decision in writing stating clearly and distinctly the facts and the reasons for such
decision. Copies of said decision shall immediately be furnished the respondent and all
interested parties.
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense, nor shall said penalty be a bar to
the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.
position.
AGAIN, THE OFFICE OF THE PRESIDENT AND THE SANGGUNIAN CONCERNED HAS
NO POWER TO REMOVE ERRING LOCAL ELECTIVE OFFICIALS!!!!
e. Administrative Appeals
Section 67. Administrative Appeals. - Decisions in administrative cases may, within thirty
(30) days from receipt thereof, be appealed to the following:
(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod
of component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan
and the sangguniang panlungsod of highly urbanized cities and independent component
cities.
Decisions of the Office of the President shall be final and executory. (IT IS APPEALABLE TO
THE COURT OF APPEALS)
TAKE NOTE WORD RECENLY USED THAT THE DECISIONS OF THE PRESIDENT OR
SANNGUNIANG CONCERNED ARE FINAL AND EXECUTORY IS USELESS IN VIEW OF
HERETO PROVISIONS PROVIDING THE ADMINISTRATIVE APPEALS NOTE THAT
WHILE THE CASE IS PENDING APPEAL, YOU CONTINUE TO BE SUSPENDED OR
REMOVED WITHOUT PREJUDICE TO SUCH APPEAL!!
2. Suppose as mayor I was charged (ADMINISTRATIVELY) and I ran and won as councilor? One
district? CONDONATION REFERS TO THE SAME POSITION OF WHICH HE IS REELECTED!!!
HENCE HERE THE DOCTRINE OF CONDONATION CANNOT APPLY!!! THIS IS ON THE VIEW
THAT THE ELECTORATE REELECTED YOU TO THE SAME POSITION WITH KNOWLEDGE OF
YOUR PERSONAL LIFE AND CHARACTER!!
3. Suppose as mayor I was charged and I won as Congressman? But lost in my town? Or won
overwhelmingly in my townCONDONATION REFERS TO THE SAME POSITION OF WHICH HE
IS REELECTED!!! HENCE HERE THE DOCTRINE OF CONDONATION CANNOT APPLY!!! THIS
IS ON THE VIEW THAT THE ELECTORATE REELECTED YOU TO THE SAME POSITION WITH
KNOWLEDGE OF YOUR PERSONAL LIFE AND CHARACTER!!
Pascual v. Hon. Provincial Board of Nueva Ecija: "[t]he underlying theory is that each
term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the
right to remove him therefor.
When the people elect[e]d a man to office, it must be assumed that they did this
with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason
of such faults or misconduct[,] to practically overrule the will of the people.
b. Investigate both charges since the anomalous contract commenced after the election
c.
B. No, Governor Paloma's reelection cannot extinguish his liability for malfeasance in office.
C. No, Governor Paloma's reelection does not render moot the administrative case already
pending when he filed his certificate of candidacy for his reelection bid.
Also asked in Bar Exam, 2000, No. 6, based on Malinao v. Reyes, 255 SCRA 616 (1996)
2. Appointive Officials:
Appointive officials
(a) The local chief executives may preventively suspend for a period not exceeding
sixty (60) days and subordinate official or employee under his authority pending
investigation if the charge against such official or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty, or if there is reason to believe
that the respondent is guilty of the charges which would warrant his removal from the
service.
With that, once there is admin complaint, the LCE may automatically preventively
suspend you without having the issues joined or waiting the answer of the respondent
appointive official
IN BOTH CASES, YOU CANNOT INVOKE DUE PROCESS AS THIS ONLY A PREVENTIVE
SUSPENSION
(b) Upon expiration of the preventive suspension, the suspended official or employee
shall be automatically reinstated in office without prejudice to the continuation of the
administrative proceedings against him until its termination. If the delay in the
proceedings of the case is due to the fault, neglect or request of the respondent, the
time of the delay shall not be counted in computing the period of suspension herein
provided.
Section 87. Disciplinary Jurisdiction. - Except as otherwise provided by law, the local chief
executive may impose the penalty of removal from service, demotion in rank,
suspension for not more than one (1) year without pay, fine in an amount not
exceeding six (6) months salary, or reprimand and otherwise discipline
subordinate officials and employees under his jurisdiction. If the penalty imposed
is suspension without pay for not more than thirty (30) days, his decision shall be
final (this can be appealed via certiorai on GAD). If the penalty imposed is heavier than
suspension of thirty (30) days, the decision shall be appealable to the Civil Service
Commission, which shall decide the appeal within thirty (30) days from receipt thereof.
Section 88. Execution Pending Appeal. - An appeal shall not prevent the execution of a
decision of removal or suspension of a respondent-appellant. In case the respondentappellant is exonerated, he shall be reinstated to his position with all the rights and
privileges appurtenant thereto from the time he had been deprived thereof.
2.
In the former, the penalty of suspension cannot exceed 6 months while in the
latter, the same may be for a period not exceeding 1 year
3.
There is also no penalty of fine or reprimand in the former while there is in the
latter.
k. Recall
l. Term Limits
TOPIC 5 (K):
K. Recall
(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of
the local government unit to which the local elective official subject to such recall belongs.
[Republic Act No. 9244, February 19 2004: AN ACT ELIMINATING THE
PREPARATORY RECALL ASSEMBLY AS A MODE OF INSTITUTING RECALL OF
ELECTIVE LOCAL GOVERNMENT OFFICIALS]
(d) Recall of any elective provincial, city, municipal, or barangay official may also
be validly initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned during the
election in which the local official sought to be recalled was elected.
(1) A written petition for recall duly signed before the election registrar or his representative,
and in the presence of a representative of the petitioner and a representative of the official sought
to be recalled and, and in a public place in the province, city, municipality, or barangay, as the case
may be, shall be filed with the COMELEC through its office in the local government unit concerned.
The COMELEC or its duly authorized representative shall cause the publication of the petition in a
public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20)
days, for the purpose of verifying the authenticity and genuineness of the petition and the
required percentage of voters.
(2) Upon the lapse of the aforesaid period, the COMELEC or its duly authorized
representative shall announce the acceptance of candidates to the position and thereafter
prepare the list of candidates which shall include the name of the official sought to be
recalled.
Section 71. Election on Recall. - Upon the filing of a valid resolution or petition for recall with the
appropriate local office of the COMELEC, the Commission or its duly authorized representative shall
set the date of the election on recall, which shall not be later than thirty (30) days after the
filing of the resolution or petition for recall in the case of the barangay, city, or municipal
officials. and forty-five (45) days in the case of provincial officials. The official or officials
sought to be recalled shall automatically be considered as duly registered candidate or candidates
to the pertinent positions and, like other candidates, shall be entitled to be voted upon.
Section 72. Effectivity of Recall. - The recall of an elective local official shall be effective
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.
Section 73. Prohibition from Resignation. - The elective local official sought to be
recalled shall not be allowed to resign while the recall process is in progress.
(a) Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.
Freedom Period:
-------------------------/----------------/------------6/30/10-----6/30/11
4/13/12 /5/13/13
Assumption
Election
NOTE THE PROCEDURE.. FIRST THERE MUST BE A PETITION FILED BEFORE THE
COMELEC, THEN THE LATTER SHALL CAUSE THE PUBLICATION AND POSTING OF
THE SAME.. AFTER THAT, THE COMELEC HAS TO GARNER AT LEAST 25% OF THE
REGISTERED VOTERS.. WITH THIS, IT WILL BE REDUNDANT IF 25% HAS TO SIGN
THE INITIATORY PETITIOIN AND WILL SIGN AGAIN AFTER THE POSTING OF THE
SAME..
XXII. Governor Diy was serving his third term when he lost his governorship in a recall election.
(a) Who shall succeed Governor Diy in his office as Governor? (1%) THE ONE WHO WINS THE
RECALL ELECTION!!!
(b) Can Governor Diy run again as governor in the next election? (2%) TO BE ANSWERED IN THE
TOPIC OF PUBLIC OFFICERS!!!
(c) Can Governor Diy refuse to run in the recall election and instead resign from his position as
governor? (2%) NO! The elective local official sought to be recalled shall not be allowed to
resign while the recall process is in progress.
2011 Bar Exam:
81. Anton was the duly elected Mayor of Tunawi in the local elections of 2004. He got 51%
of all the votes cast. Fourteen months later, Victoria, who also ran for mayor, filed with the
Local Election Registrar, a petition for recall against Anton. The COMELEC approved the
petition and set a date for its signing by other qualified voters in order to garner
at least 25% of the total number of registered voters or total number of those
who actually voted during the local election in 2005, whichever is lower. Anton
attacked the COMELEC resolution for being invalid. Do you agree with Anton?
A. No, the petition, though initiated by just one person, may be ratified by at least
25% of the total number of registered voters.
B. No, the petition, though initiated by just one person may be ratified by at least 25% of
those who actually voted during the 2004 local elections.
C. Yes, the petition should be initiated by at least 25% of the total number of registered
voters who actually voted during the 2004 local elections.
D. Yes, the petition should be initiated by at least 25% of the total number of registered
voters of Tunawi.
TOPIC 5 (L):
L. Term Limits
Constitution, Art. X: Sec. 8: The term of office of local elective officials, except barangay officials,
which shall determined by law, shall be three years and no such official shall serve more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Michael Abas Kida v. Senate, October 18, 2011
Can Congress pass a law postponing elections which will effectively lengthen the term of
incumbent, and/or shorten the term of the next set of local officials?
NO! BY EXPRESS PROVISION OF THE CONSTITUTION!! THE CONGRESS HAS NO
BUSINESS OF LENGTHENING OR MUCH LESS SHORTENING THE TERM OF LOCAL
OFFICIALS
The term of office of local elective officials, except barangay officials, which shall
determined by law, shall be three years and no such official shall serve more than three
consecutive terms
REMEMBER THAT THE SCHEDULE OF ELECTION SHALL BE ON THE 2ND MONDAY OF MAY
UNLESS THE CONGRESS PROVIDES OTHERWISE HOWEVER, IT CANNOT SET ON THE
OTHER DAY IN SUCH A WAY THAT WE CANNOT HAVE ELECTED OFFICIALS BY JUNE 3O AS
IT WILL VIOLATE THE ABOVE PROVISIONS OR LENGHTENING OR SHORTENING THE
TERM THEREBY AMENDING THE CONSTITUTION!!!!!
Local Government Code:
(a) The term of office of all local elective officials elected after the effectivity of this Code
shall be three (3) years, starting from noon of June 30, 1992 or such date as may be
provided for by law, except that of elective barangay officials: Provided, That all local
officials first elected during the local elections immediately following the ratification of the
1987 Constitution shall serve until noon of June 30, 1992.
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.
counted?
Held: No. The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms.
Taboga was not elected for 3 consecutive terms having lost in the 1998 election. Nor did
he fully serve the 1998 term because he only completed the unfinished term when he
won the recall election.
Socrates v. COMELEC, Nov. 11, 2002
Hagedorn was Mayor of Puerto Pricesa for 3 consecutive terms. He was succeed by Socrates
who was subjected to recall during his first term. Can Hagedor be a candidate in the recall
election?
Held: What the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after
the end of the third consecutive term. A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate reelection after the third
term.
Lonzanida v. COMELEC, July 28, 2009
Lonzanida won as Mayor of San Antonio, Zambales, in 1988 and 1992 elections. He ran, won
and assumed office again in 1995 but his opponent filed a protest so that he was unseated on Feb.
27, 1998, or just 4 months before the end of the term (BECAUSE HE REALLY DID NOT
WIN). Can he ran again for the same position in the May 11, 1998 elections?
YES!! HE CAN RUN.. The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms.
IN THE CASE AT BAR, LONZANIDA HAS NOT BEEN ELECTED FOR 3 CONSECUTIVE TERMS
AS MAYOR AS HE LOST IN 1998 ELECTION MOREOVER HE HAS NOT FULLY SERVED THE
3 CONSECUTIVE TERMS AS HE WAS UNSEATED 4 MONTHS BEFORE THE END OF HIS 3RD
TERM!
Ong v. Alegre, Jan. 23, 2006
Ong was proclaimed and served as Mayor of San Vicente, Camarines Norte in the 1995,
1998 and 2001 elections. However, his election in 1998 was protested, but the decision
came out only declaring that he lost the election came out only on July 4, 2001 or after
the term ended, which he fully served. Can he run in 2004 for the same position? [counted as a
full term]
NO MORE!!! The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms
True, Ong he has not been elected for 3 consecutive terms but It is evident that he has
already served 3 consecutive terms notwithstanding the declaration that he lost on the
3rd term the SC COUNTED THE SAME AS FULL TERM AS THE DECISION CAME OUT ONLY
AFTER SERVING THE FULL 3RD TERM OTHERWISE, THE PURPOSE OF THE PROHIBITION
WOULD NOT BE SERVED AND ATTAINED IF HE WILL BE ALLOWED TO RUN AGAIN!!
HELD: NO! HE CANNOT RUN ANYMORE!! Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.
State whether or not the following laws are constitutional. Explain briefly.
A law fixing the terms of local elective officials, other than barangay officials, to 6
years. 2%
35. Alfredo was elected municipal mayor for 3 consecutive terms. During his third term, the
municipality became a city. Alfredo ran for city mayor during the next immediately
succeeding election. Voltaire sought his disqualification citing the 3 term limit for elective
officials. Will Voltaire's action prosper?
A. No, the 3 term limit should not apply to a person who is running for a new position title.
B. Yes, the 3 term limit applies regardless of any voluntary or involuntary interruption in the
service of the local elective official.
C. Yes, the 3 term limit uniformly applies to the office of mayor, whether for city
or municipality. LATASA CASE!!
D. No, the 3 term limit should not apply to a local government unit that has assumed a
different corporate existence.
61. Adela served as Mayor of Kasim for 2 consecutive terms. On her third term,
COMELEC ousted her in an election protest that Gudi, her opponent, filed against her.
Two years later, Gudi faced recall proceedings and Adela ran in the recall election against
him. Adela won and served as Mayor for Gudi's remaining term. Can Adela run again for
Mayor in the next succeeding election without violating the 3 term limit?
A. No, she won the regular mayoralty election for two consecutive terms and the recall
election constitutes her third term.
B. A. No, she already won the mayoralty election for 3 consecutive terms.
C. Yes, her ouster from office in her third term interrupted the continuity of her
service as mayor.
D. Yes, the fresh mandate given her during the recall election erased her disqualification for
a third term. NOT GOOD REASON!!!!
provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the
City of Tuba. In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor
(FOR THE 4TH TIME!!). He disclosed, though, that he had already served for three consecutive
terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of
candidacy that he is running for the position of Mayor for the first time now that Tuba is a city.
Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had
already served for three consecutive terms as Mayor. The petition was not timely acted
upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after Manuel took his oath
and assumed office that the COMELEC ruled that he was disqualified for having ran
and served for three consecutive terms.
(a) As lawyer of Manuel, present the possible arguments to prevent his disqualification and
removal. YOU WILL BE FORCED TO ARGUE THAT THE POSITION HE IS RUNNING IS
NOT THE SAME POSITION IN VIEW OF THE CONVERSION OF THE MUNICIPALITY
INTO A CITY DURING HIS LAST TERM
(b) How would you rule on whether or not Manuel is eligible to run as Mayor of the newlycreated City of Tuba immediately after having already served for three (3) consecutive
terms as Mayor of the Municipality of Tuba?
General Principles
a. Public Office the right, authority and duty (it has no physical existence), created and
conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portions of the sovereign functions of the
government, to be exercised by that individual for the benefit of the public. [Sto. Tomas case]
Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
Used in 2 Senses:
1. To any major fundamental unit of a department (OFFICE OF THE OMBUDSMAN, OFFICE
OF THE COURT ADMINSTRATOR)
2. To a position held or occupied by an individual (OFFICE OF THE MAYOR)
b. Public Officer one who holds a public office
A public officer is a person whose duties involve the exercise of discretion in the
performance of the functions of government.
Employees (ARE THOSE WHO ONLY PERFORM MINISTERIAL DUTIES)
RPC, Art. 203 Crimes Committed by Public Officers [IT INCLUDES OR COVERS
employees]
RA No. 3019 [also includes employees, including government owned or controlled
corporations with original charters as well as subsidiaries
Is salary an element of public office? NO!! IT IS NOT AN ELEMENT OF PUBLIC OFFICE AS
LAWYERS AND NOTARIES ARE PUBLIC OFFICERS AND YET THEY DO NOT RECEIVE
SALARY FROM THE GOVERNMENT!!
-lawyers
-notaries
Laurel v. Desierto, April 12, 2002
President Aquino issued AO No. 233 constituting a committee for the National Centennial
Celebration of 1998. Subsequently, President Ramos named Salvador Laurel as chair. Later he
was charged with violating rules on public bidding in the award of centennial contracts.
Laurel claims that he is not a public officer and the NCC was not a public office. Does the OMB
have jurisdiction over him?
Held: Yes. As Chair of the NCC, Laurel is a public officer. The characteristics of a public office
include delegation of sovereign functions, its creation by law and not by contract, an
oath salary and continuance of the position. While it may be true that Laurel received no
compensation, salary is a mere incident and forms no part of the office. The position of an
NCC chair may be characterized as an honorary, as opposed to a lucrative office.
SO SALARY IS NOT AN ELEMENT OF PUBLIC OFFICE!!
Is continuity a requirement?
Art. VI. Section 13. No Senator or Member of the House of Representatives may hold any
other office or employment in the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries, during his
term without forfeiting his seat.
Other Characteristics:
1. Not a property right protected by the Bill of Rights, but protected by due process [Bince
case](EMPHASIS IS THAT IT IS NOT PROTECTED BY THE BILL OF RIGHTS IN THAT IT CAN
BE ABOLISHED WHERE YOU CANNOT CLAIM THAT YOU WERE NOT GIVEN PRIOR
NOTICE.. HOWEVER, ONCE THERE IS A DISPUTE BETWEEN TWO PERSONS CLAIMING AN
OFFICE, EACH PARTY IS ENTITILED WITH DUE PROCESS BEFORE COMELEC IN THE CASE
OF A LOCAL ELECTIVE OFFICIAL..
2. Not transmissible upon death [De Castro case] FPJ CASE WHERE SUSAN ROCES WAS MADE
A SUBSTITUTE TO REPLACE FPJ IN AN ELECTION PROTEST.. IT CANNOT BE DONE AS IT
IS NOT TRANSMISSIBLE!!
Bar Question, 2011
59. A private person constituted by the court as custodian of property attached to secure a
debt sought to be recovered in a civil proceeding is
A. a private sheriff.
C. a private warehouseman.
i.
The Regional Director, Police Command No. 7, submitted a list of 5 for the Mayor to choose
from. The Mayor did not choose because he wanted someone not in the list. The RTC ordered the
Regional Director to include the name in the list.
Held: Under Sec. 51 of RA 6975, the Mayor must choose from the list of 5 given to him,
then the Regional Police Director appoints that person. Mayor has no power to appoint,
much less can he require the Regional Police Director to include the name of any officer.
c. Prohibitions on appointments [Constitution]
1. Art. IX no designation in a temporary or acting capacity to the 3 Commissions
2. Art. VIII no designation of justices of the Supreme Court and judges of lower
courts to an agency performing judicial and quasi-judicial function
3. Art. XV no member of the AFP in active service shall be appointed or designated to
a civilian position
(1) The President may temporarily designate an officer already in the government
service or any other competent person to perform the functions of an office in the
executive branch, appointment to which is vested in him by law, when: (a) the
officer regularly appointed to the office is unable to perform his duties by reason
of illness, absence or any other cause; or (b) there exists a vacancy;
(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.
2. BP Blg. 881:Section 12 Disqualifications. - Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been sentenced to a penalty of
more than eighteen months or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.
SO YOU CANNOT RUN FOR PRESIDENT IF FALL UNDER THIS CATEGORY.. NOTE THE WORD
DISQUALIFIED TO BE A CANDIDATE AND TO HOLD ANY OFFICE!!
3. Revised Penal Code penalties providing for disqualification from office in case of conviction.
Pimentel v. COMELEC RA No. 9165
Section 36. Authorized Drug Testing. .. The following shall be subjected to undergo drug
testing: xxx
(g) all candidates for national or local government shall undergo a mandatory drug test.
ILLEGAL!
OBSERVATION: CRITICSM
1.
2.
2.
Age
3.
4.
Register voter
5.
6.
Profession
7.
2.
Loser in a previous election within one year [Art. IX-B] LAME DUCK PROVISION WHERE
YOU ARE BARRD FROM BEING APPOINTED WITHIN ONE YEAR FROM THE DATE OF
PREVIOUS ELECTION WHERE YOU LOSE!!
3.
4.
5.
During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP
checkpoint for carrying highpowered firearms in his car. He was charged and convicted for
violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for
executive clemency. Acting on the favorable recommendation of the Board of Pardons and
Parole, the President granted him pardon. Is he eligible to run again for an elective position?
Explain briefly. (5%)
RA No. 6713 - SEC. 9. Divestment.-A public official or employee shall avoid conflicts of
interest it all times. When a conflict of interest arises, he shall resign from his
position, in any private business enterprise within thirty (30) days from his
assumption of office and/or divest himself of his shareholdings or interest within
sixty (60) days from such assumption.
The same rule shall apply where the public official or employee is a partner in a
partnership.
Dean shared about his client, a DECS official, who used to borrow loan from a rural
bank pursuant to an agreement for automatic deduction of amortization in her
salary. NO CONFLICT INTEREST THERE the client has no substantial interest in
such bank nor he has a share there!!!
PD 807, Section 49. Nepotism. (a) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including governmentowned or controlled corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are
those related within the third degree either of consanguinity or of affinity.
TAKE NOTE THAT THIS INCLUDE GOCC WITHOUT ANY DISTINCTION AS TO W/N IT
IS WITH ORIGINAL CHARTER OR NOT
IT APPLIES TO SUBSIDIARIES!!!!
Elements:
1.
note: that the degree of relation in Nepotism is very loose as it only covers relatives
within 3rd civil degree as distinguished to that prohibitition on the appointment of
Presidents relatives under the constitution and that of the LCE under LGC which are
limited up to 4th civil degree which is MORE RESTRICTIVE!!! Take note!!!
WHEN THE MAYOR APPOINTS, THE PROVISIONS OF THE LOCAL GOVERNMENT CODE
SHALL APPLY!! IF THE PRESIDENT APPOINTS, THE PROVISION OF THE CONSTITUTION
SHALL APPLY!
Exceptions:
(1) persons employed in a confidential capacity, BROTHER OF THE MAYOR MAY BE
APPOINTED AS HIS ADMINSTRATOR!
(2) teachers,
44. The School Principal of Ramon Magsaysay High School designated Maria, her
daughter, as public school teacher in her school. The designation was assailed on
ground of nepotism. Is such designation valid?
A. No, because the law prohibits relatives from working within the same government unit.
B. Yes, because Marias position does not fall within the prohibition. TEACHERS
ARE ONE OF THE EXCEPTIONS THIS MUST BE DISTINGUISHED IN DACOYCOY
CASE AS THE PERSONS APPOINTED THERE ARE NOT FOR TEACHER POSITION BUT
THAT OF A UTILITY AND DRIVER HAHAHAHAHA
D. No, because Maria is related to the supervising authority within the prohibited degree of
consanguinity.
The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer from
among tree (3) employees of the city considered for the said position. Prior to said
promotion, Amelia had been an Assistant City Treasurer for ten (10) years, that is,
even before she married the City Mayor. Should the Civil Service Commission
approve the promotional appointment of Amelia? Why or why not?
Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including Government-owned or controlled
corporations or their subsidiaries.
FOR ELECTIVE OFFICIAL, THEY ARE ABSOLUTELY PROHIBITED FROM HOLDING
ADDITIONAL POSITION IN THE GOVERNMENT!!!
Summary:
1. Elective official absolutely prohibited TO HOLD OTHER POSITIONS!!
2. Appointive only if allowed by law and the primary functions of his office.
Bar Question, 1995
No. 10. A City Mayor in Metro Manila was designated as Member of the Local Amnesty Board as
allowed under the Implementing Rules of Amnesty Proclamation 34. The LAB is entrusted
with the function of receiving and processing applications for amnesty and recommending to the
National Amnesty Commission approval or denial of the applications. The term of the Commission
and the Local Amnesty Boards under it expires upon the completion of its assigned tasks as may be
determined by the President.
May the City Mayor accept his designation without forfeiting his elective position in the light
of the provision of Sec. 7, Art. IX-B of the 1987 Constitution?
THE CITY MAYOR IS ABSOLUTELY PROHIBITED FROM HOLDING SUCH ADDITIONAL
FUNCTIONS.. IN FACT, IT IS ONLY AN IRR THAT AUTHORIZES THE DESIGNATION OF THE
CITY MAYOR TO THE LAB!! IT IS NOT EVEN ALLOWED BY THE LAW ITSELF!! EVEN
GRANTING ARGUENDO THAT ITS IS ALLOWED BY LAW, IT DOES NOT APPLY ELECTIVE
OFFICIAL!!! IT APPLIES ONLY TO APPOINTIVE OFFICIALS!!
e. Prohibition on Double Compensation
Art. IX, B
RA No. 6713- Section 7. Prohibited Acts and Transactions. - In addition to acts and
omissions of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
( (b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:
Some considerations:
1. Teaching- you just secure the consent of the head of office.. There is no problem in
private employment!
2. Notarization- omb prosecutors, clerk of court are not allowed but there are some
lawyers working in the government are authorized to notarize like lawyers of Philhealth
and Comelec by securing permit from appropriate agency!!
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public official and employee and are
hereby declared to be unlawful:
( (b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided, that such practice will not conflict or tend to conflict
with their official functions;
provided, that such practice will not conflict or tend to conflict with their official
functions does not refer to conflict of interest it is more broader.. For
instance, you practice law at day time!! It will conflict you time which should have
been devoted to public office..
A clerk of court cannot make pleadings or legal advises without without a law
authorizing the same.. Best way to practice law for a COC is to seek permission
from COURT ADMINSTRATOR
LGC, Section 90. Practice of Profession (IN THE LOCAL GOVERNMENT UNIT). -
(a) All governors, city and municipal mayors are prohibited from practicing their
profession or engaging in any occupation other than the exercise of their functions
as local chief executives.
(b) Sanggunian members (including Vice Mayor since he is a member of the SB SP)
may practice their professions, engage in any occupation, or teach in schools
except during session hours: Provided, That sanggunian members who are also
members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government
unit or any office, agency, or instrumentality of the government is the adverse
party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national
or local government is accused of an offense committed in relation to his office.
(3) Collect any fee for their appearance in administrative proceedings involving the local
government unit of which he is an official; and xxx
(c) Doctors of medicine may practice their profession even during official hours of work
only on occasions of emergency: Provided, That the officials concerned do not derive
monetary compensation therefrom.
1. Art. 1492, Civil Code - Art. 1491. The following persons cannot acquire by purchase,
even at a public or judicial auction, either in person or through the mediation of another:
(4) Public officers and employees, the property of the State or of any subdivision thereof, or
of any government-owned or controlled corporation, or institution, the administration of
which has been intrusted to them; this provision shall apply to judges and government experts
who, in any manner whatsoever, take part in the sale;
A. a discretionary duty.
D. a rule-making duty.
True or False.
a.
Right to organize
-guaranteed by Sec. 8 of the Bill of Rights, including those in the public and private sectors.
-but no labor-management committees for AFP, PNP, Jail Guards and FiremenBar Question, 2000
No. 12: Are employees in the public sector allowed to form unions? To strike? Why? THE
RIGHT TO FORM UNION IS GUARANTEED BY THE CONSTITIUTION!!! BUT NOT YET TO
STRIKE AS PROVIDED FOR BY LAW
b. To compensation
-the right to compensation springs from law, not from contract, unlike in private
employment. [no strike to improve terms and conditions of employment] THERE IS NO RIGHT
TO STRIKE BECAUSE THE TERMS AND CONDTIONS OF EMPLOYMENT OF PUBLIC
OFFICERS ARE FIXED BY LAW!!!
-Requisites for right:
1. legal title
2. law fixing compensation
Protections ON SALARY!!:
1. cannot be garnished or attached or executed to satisfy a judgment BECAUSE
- in the hands of the disbursing officer, it is still government funds
-forbidden by public policy because it is fatal to public service.. OFFICIALS AND
EMPLOYEES MAY NO LONGER BE WILLING TO WORK!!
-garnishment or attachment is tantamount to a suit against the state
2. Assignment of anticipatory salary is void.
c.
1. LGC, Sec. 81- Elective officials are entitled to the same leave privileges as appointive local
officials
2. Administrative Code, Bk. IV, Ch. 5, Sec. 27- leave without pay not beyond one year
LEAVE WITH OR WITHOUT PAY CANNOT GO BEYOND 1 YEAR.. OTHERWISE, YOU CAN BE
DROPPED WITHOUT NOTICE AND HEARING!!! THAT IS CONSIDERED ABANDONMENT!!
d. To retirement benefits
To be entitled to pension:
1. at least 60 years, and
2. at least 15 years in government service
Section 41. Preventive Suspension. The proper disciplining authority may preventively
suspend any subordinate officer or employee under his authority pending an investigation,
in the charge against such officer or employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty, or if there are reasons to believe that the
respondent is guilty of charges which would warrant his removal from the service.
Section 24. Preventives Suspension. The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay, except when the
delay in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.
[MAXUMUM OF 6 MONTHS]
NOTE ALSO HERE THAT THE OMB CAN IMPOSE PREVENTIVE SUSPENSION
WITHOUT HAVING THE ISSUES JOINED.. OTHERWISE STATED, IT CAN BE
IMPOSED WITHOUT WAITING THE ANSWER OF THE RESPONDENT!!
NOTE THAT THE REQUIREMENT THAT THE ISSUES MUST BE JOINED BEFORE
PREVENTIVE SUSPENSION MAY BE IMPOSED APPLIES ONLY TO LOCAL ELECTIVE
OFFICIALS WHICH MUST NOT BE MORE THAN 60 DAYS WHERE THE DISCIPLINING
AUTORITY IS THE SANGGUNIAN OR THE LCE
Garcia v. Mojica, 314 SCRA 207 (1999)- OMB can preventively suspend even before the
filing of an answer. It is merely a preliminary step in an administrative investigation and
not the final determination of the guilt of the official
Note: The requirement that respondent has filed his answer seems to apply only to
elective officials, where the disciplining authority is either the Sanggunian or the Office
of the President.
As to them, preventive suspension is only 60 days
Back Salaries: Entitled
1. RA No. 3019 [which applies to preventive suspension in criminal cases] has a provision
that the employees or officer is entitled to his salaries in the event of acquittal.
REMEMBER THAT COURT IS ARE MANDATED TO IMPOSE PREVENTIVE SUSPENSION FOR
OFFICIALS FACING CRIMINAL CASES FOR VIOLATION OF ANTI-GRAFT LAW.
2. Local Government Code (PREVENTIVE SUSPENSION UNDER LGC)Section 64. Salary of Respondent Pending Suspension. - The respondent official preventively
suspended from office shall receive no salary or compensation during such suspension; but
upon subsequent exoneration and reinstatement, he shall be paid full salary or
compensation including such emoluments accruing during such suspension.
2. For preventive suspension under the Civil Service Law, the rule is that a public
officer or employee is not entitled to compensation, regardless of the outcome of the
case. This is based on the principle that one is entitled to compensation only for services
actually rendered. [Civil Service Law is silent]
1.
OMB
2.
CSC
THIS IS BECAUSE THE CSC LAW IS SILENT AS TO W/N YOU ARE ENTITLED TO
BACK WAGES IN THE EVENT OF ACQUITTAL!!!
2.
OTHERWISE STATED, IF YOU ARE SUSPENDED PENDING APPEAL AND IN THE END
YOU ARE ACQUITTED , YOU ARE ENTITLED TO SALARIES DURING SUCH
SUSPENSION PENDING APPEAL BECAUSE YOU ARE REALLY INNOCENT!!
A. Yes, the reduction of the penalty means restoration of his right to back salaries.
B. No, the penalty of one month suspension carries with it the forfeiture of back salaries.
C. No, he is still guilty of grave misconduct, only the penalty was reduced. NOTE
THAT HE WAS NOT ACQUITTED.. HE WAS STILL FOUND GUILTY ONLY THAT THE
PENALTY WAS REDUCED.. SAME PRINCIPLE ALSO APPLIES WHEN CONVICTED BUT
UPON APPEAL, HE IS ONLY REPRIMANDED..
D. Yes, corresponding to the period of his suspension pending appeal less one
month.
33. X, an administrative officer in the Department of Justice, was charged with grave
misconduct and preventively suspended for 90 days pending investigation. Based on the
evidence, the Secretary of Justice found X guilty as charged and dismissed him
from the service. Pending appeal, X's dismissal was executed. Subsequently, the Civil
Service Commission (CSC) reversed the Secretarys decision and the reversal
became final and executory. What is the effect of X's exoneration?
A. X is entitled to reinstatement and back salaries both during his 90 day preventive
suspension and his suspension pending appeal.
B. X is entitled to reinstatement and back salaries corresponding only to the period of delay
caused by those prosecuting the case against him.
Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretary's
decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA
reversed the CSC decision, exonerating Maximino. The Secretary of Education then
petitions the Supreme Court (SC) for the review of the CA decision.
[a] Is the Secretary of Education a proper party to seek the review of the CA decision
exonerating Maximino? Reasons. (2%) PREVAILING JURISPRUDENCE HAS IT THAT
ANY PARTY TO THE PROCEEDINGS CAN APPEAL INCLUDING THE GOVERNMENT!!
HENCE SECRETARY OF EDUCATION IS A PROPER PARTY!!
[b] If the SC affirms the CA decision, is Maximino entitled to recover back salaries
corresponding to the entire period he was out of the service? Explain your answer.
(3%)
PUBLIC OFFICERS
Part II
9. Immunity of Public Officers
10. De Facto Officers
11. Termination of Official Relation
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal
Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
9. Immunity of Public Officers
Public officers enjoy limited or qualified immunity, that is to protect them in the performance
of their official duties.
Public officers derived this immunity from the Doctrine of State Immunity.. If the state is
immune, the officers who act in the name of the STATE also enjoy LIMITED IMMUNITY!!
In general, they are entitled to immunity if:
1.
2.
THIS IS IMPORTANT TO ENSURE THESE PEOPLE WILL WORK FOR THE GOVERNMENT!!
OTHERWISE STATE, IF THEY WILL NOT BE CLOTHED WITH THIS IMMUNITY, THEY MAY
NO LONGER BE INTERESTED TO WORK IN THE GOVERNMENT!! ONCE THESE 2
REQUISITES ARE PRESENT, YOU ENJOY PROTECTION OF THE IMMUNITY!!
Notes: PRINCIPLES
1. The principle is that public officials are not liable for acts done in good faith.
2. Immunity does not apply in suits to restrain or enjoin them to perform certain
acts, since it involves no personal liability on the part.- this involves suits for injuction or
mandamus!! Because that cases involve no personal liability on the part of the public
officer. With that, you are not immune from suit
Are officials liable for enforcement of a law which turned out to be unconstitutional?
Ynot v. IACPresumption of constitutionality
No! the law is presumed to be constitutional until declared otherwise.. Hence, any acts
for the enforcement the same prior to its declaration of unconstitutionality, shall be
considered legal and constitutional.. Hence, no liability can be imputed for the
enforcement of the same!!
The reverse side of Immunity is suability coupled with liability. So when are they liable?
-They are liable for acts done in bad faith, or in excess of their functions if it results
to injury to third parties.
2011 Bar Exam:
80. Executive Secretary Chua issued an order prohibiting the holding of rallies along
Mendiola because it hampers the traffic flow to Malacanang. A group of militants
questioned the order for being unconstitutional and filed a case against Secretary
Chua to restrain him from enforcing the order. Secretary Chua raised state immunity
from suit claiming that the state cannot be sued without its consent. Is the claim correct?
A. No, public officers may be sued to restrain him from enforcing an act claimed to
be unconstitutional. Hence, he can be sued for the suit involves no personal
liability
C. No, only the president may raise the defense of immunity from suit.
D. Yes, Secretary Chua cannot be sued for acts done in pursuance to his public office.
70. Amor sued for annulment of a deed of sale of Lot 1. While the case was ongoing,
Baltazar, an interested buyer, got a Certification from Atty. Crispin, the Clerk of
Court, that Lot 1 was not involved in any pending case before the court. Acting on
the certification, the Register of Deeds canceled the notice of lis pendens annotated
on Lot 1s title. Amor filed a damage suit against Atty. Crispin but the latter invoked good
faith and immunity from suit for acts relating to his official duty, claiming he was not yet the
Clerk of Court when Amor filed his
action. Decide.
A. Atty. Crispin is immune from suit since he enjoys the presumption of regularity of
performance of public duty.
C. Atty. Crispin's defense is valid since he was unaware of the pendency of the case.
D. As Clerk of Court, Atty. Crispin enjoys absolute immunity from suit for acts relating to his
work.
The Secretary of Public Works, after an investigation, ordered the demolition of the fish
pond of X as a nuisance per se on the ground that it encroached on navigable rivers. The
Supreme Court later found that the rivers were manmade and were constructed on private
Governor designated him as Acting Provincial Treasurer. He serve such position.. Remember
that LCE has no authority to designate acting provincial treasurer is the appointing authority
himself. IS HE A DE FACTO OFFICER? HELD: NO! YOU ARE A LESS THAN A DE FACTO!!! YOU
HAVE NO COLOR OF RIGHT HENCE, YOU ARE NOT ENTITLED TO THE SALARY OF SUCH
POSITION!!
ordered execution pending appeal. COMELEC reversed the RTC, after term expired. What is
the status of Malaluan?
MALALUAN IS A DE FACTO OFFICER BY REASON OF THE RTC DECISION WHICH WAS ORDERED
EXECUTED PENDING APPEAL!!
4. Appointed under illegal statute [Flores v. Drilon [Gordons appointment declared void] What
is his status? [modern view] (this has reference to that law creating SBMA and providing
that the Chairman should be the Mayor of Olongapo which was later declared
unconstitutional!! NOTE THAT WHAT WAS DECLARED ILEGAL WAS NOT THE OFFICE OF
SBMA CHAIRMAN BUT THE MANNER OF FILLING IN THE SAME..) GORDON WAS DE FACTO
OFFICER!!
also CLU v. Executive, 194 SCRA 317
THIS REFERS TO THE EO ISSUED BY CORY PROVIDING THAT THE CABINET MEMBERS
MAY HOLD OTHER OFFICE IN ADDITION TO HIS OFFICE.. IT WAS DECLARED
UNCONSTITUIONAL.. ARE THEY DE FACTO OFFICERS? YES THEY ARE DE FACTO
OFFICERS.. THE DEFECT THERE IS THE MANNER OF APPOINTING THEM INTO OFFICE!!
THE OFFICE ITSELF IS VALIDLY CREATED PURSUANT TO A LAW EO WHICH ENJOYED THE
PRESUMPTION OF VALIDITY UNTIL DECLARED OTHERWISE!! DE FACTO OFFICER@!!
-Serving without any appointment?
DEAN CONVEYED THAT SITUATION WHERE FORMER SOJ BELLO APPOINTED FISCALS WHICH
TURNED OUT TO BE WITHOUT AUTHORITY! AND THESE FISCALS STARTED TO PERFORM THEIR
FUNCTIONS AS FISCAL LIKE ISSUING RESOLUTION FINDING PROBABLE CAUSE DEAN OBSERVED
THAT THEM TO BE USURPER BECAUSE THEIR APOINTMENT WAS REALLY NOT VALID.!!! THE
IMPLICATION ON THE RESOLUTIONS ISSUED BY THEM WOULD BE IN QUESTION OR EVEN
WITHOUT EFFECT..
4. Service beyond the term allowed by law-Gaminde v. Commission on Audit, 347 SCRA
665 (2000)
Gaminde was appointed by the President as Civil Service Commissioner on June 11, 1993
and she assumed office on June 22, 1993. While the Commission on Appointment informed her
that her term of office was until Feb. 2, 1999, she continued serving in office until Feb. 2,
2000 due to an opinion of the Chief Presidential Legal Counsel. When did Gamindes 7-year
term expire? What kind of officer was she?
She is de facto!! This has been the exception to the general rule hold over capacities are
prohibited pursuant to the expressed provisions of the constitutions
3. Physical possession
-exercise the duties of the office
Compensation of de Facto Officers:
They are entitled to salaries already received for services actually rendered, if there
is no de facto officer.
Malaluan-he is entitled to the salary received for the services rendered as mayor of
kidapawan until the decision declaring him winner was reversed!! You cannot recover
salary from malalauan even if you are the de jure
Flores-Gordon as SBMA Chair is due to him for the services already rendered as such..
How to question title of de facto officers? Who can initiate? [Tarrosa v. Singson, 232 SCRA 553]
IF YOU ARE A DE FACTO OFICER, YOUR TITLE CAN ONLY BE QUESTIONED ONLY IN A
DIRECTED PROCEEDINGS. IN QUO WARRANTO PROCEEDINGS!! IT CANNOT BE
COLLATERALLY ATTACKED..
IT CAN BE INITIATED BY THE SOLGEN OR THE PERSON CLAIMING BETTER TITLE FOR
SUCH OFFICE!! ANY ONE WHO DOESNT HAVE ANY CLAIM FOR BETTER TITLE CANNOT
INITIATE!!
Monroy v. CA, 20 SCRA 622 (1967): Monroy was Mayor of Navotas. He filed his certificate
of candidacy for Congress but withdrew it 3 days later (IN THE OLD DAYS, WHEN FILE
COC FOR ANOTHER ELECTIVE POSITION, YOU ARE DEEMED RESIGNED!!).
Meanwhile, Vice Mayor del Rosario took his oath of office, but Monroy reassumed his
position. It was del Rosario [de jure] who received the salary. As de facto officer,
can Monroy recover from the de jure? [De facto doctrine is for the protection of the public,
not the officer.]
B. She was not a public officer because she had no valid existing public office.
C. She was a de jure officer since she completed her term before she was disqualified.
D. She was a de facto officer since she was elected, served, and her
disqualification only came later.
99. Mayor Lucia of Casidsid filed her certificate of candidacy for congresswoman of the
district covering Casidsid. Still, she continued to act as mayor of Casidsid without collecting
her salaries as such (REFER TO MONROY CASE) THERE WAS N0 DE JURE OFFICER HERE
(CONFUSING BECAUSE MONROY CASE IS NOT APPLICABLE HERE AS FILING OF CANDIDACY
FOR ANOTHER ELECTIVE POSITION HERE DOES NOT RESULT TO FORFEITURE OF OFFICE
SO LUCIA SHOULD BE ENTITLED TO RECEIVE). When she lost the election and a new mayor
assumed office, she (LUCIA) filed an action to collect the salaries she did not get while
serving as mayor even when she ran for congresswoman. Is her action correct?
B. No, because her acts as de facto officer are void insofar as she is concerned.
C. Yes, public policy demands that a de facto officer enjoy the same rights of a de jure
officer.
D. A. Yes, it is but just that she be paid for the service she rendered. THIS SHOULD
BE THE ANSWER!!! SHE IS DE JURE!!!
True or False.
(a) A person who occupies an office that is defectively created is a de facto officer. (0.5%)
FALSE BECAUSE THERE IS NO SUCH THING AS DE FACTO OFFICE.. HENCE, HE IS NOT A
DE FACTO OFFICER!!
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)
[b] A de facto public officer is, by right, entitled to receive the salaries and emoluments
attached to the public office he holds.
TRUE!! They are entitled to salaries already received for services actually rendered, if
there is no de facto officer.
NOTE: WE ARE ALREADY SETTLED THAT THE ACTS OF THE DE FACTO OFFICERS ARE
VALID AND THEY ARE ENTITLED TO SALARIES FOR THE SERVICES RENDERED
TO ANSWER QUESTIONS, JUST REMEMBER THE REQUISITES
11. Termination of official relations
Modes of Termination:
a. Natural Causes
b. Voluntary Causes
c. Involuntary Causes
a.
Natural Causes
i. Death
ii. Reaching age limit (THIS IS NOT APPLICABLE IN THE CASE OF ELECTIVE OFFICIALS)
NO LIMIT AS IN THE CASE OF ENRILE!!!
-not uniform
-does not apply to elective
-Can a person who has retired or reached the retirement age be appointed to a coterminus/trust and confidence position?- [MC No. 37, S, 1992] Ambassadors? Secretaries?
DAVIDE CASE-THE LAW GOVERNING FOREIGN SERVICES PROHIBITS THE APPOINTMENT
OF THOSE WHO HAVE ALREADY REACHED RETIREMENT AGE OR 65 , YOU ARE NO
LONGER ALLOWED TO BE APPOINTED AS AMBASSADOR OR ANY ANY FOREIGN SERVICE
POSITION..
SECRETARY- REFERENCE WITH SEC. GONZALES AS DOJ SECRETARY.. THE CASE AGAINST
HIM HOWEVER WAS DISMISSED FOR LACK OF STANDING ON THE PART OF THE
PLAINTIFF..
HOWEVER, CSC MC. NO. 37- ALLOWS THOSE WHO HAVE ALREADY REACHED THE
RETIREMENT AGE TO BE APPOINTED SO LONG AS IT IS A COTERMINUS OR TRUST AND
CONFIDENCE POSITION!!
b. Voluntary causes
i. Resignation: Requisites
1. intention to relinquish
2. acts of relinquishment
3. acceptance/RPC- THIS IS IMPORTANT BECAUSE IF YOU START LEAVING YOUR
JOB BEFORE THE ACCEPTANCE, YOU MAY BE HELD LIABLE UNDER THE RPC FOR
ABANDONMENT)
Who shall accept the resignation?
1. The Officer authorized by law
2. The appointing officer
Senator, Congressmen, President?
[Estrada v. Desierto No form required, express or implied]
REMEMBER WHEN THEN CONGRESSMAN DUTERTE TENDERED HIS RESIGNATION AS
SUCH AND NOTE THAT THERE IS NO PROVISION IN THE CONSTITUTION AS TO SHALL
RECEIVE SUCH RESIGNATION BUT IS SEEMS TO BE THE SPEAKER WHO MUST ACCEPT
IT
AS TO ESTRADA, HE DID NOT REALLY SUBMITTED HIS RESIGNATION BUT HE WAS
(a) Resignations by elective local officials shall be deemed effective only upon
acceptance by the following authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vicemayors of highly urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city
mayors and city vice-mayors of component cities;
B. No, estoppel precludes Director Sison from disclaiming the resignation he freely tendered.
C. Yes,for so long as no one has yet been appointed to replace him, Director Sison may still
withdraw his resignation.
D. Yes, Director Sison merely complied with the order of the head of office; the
element of clear intention to relinguish office is lacking.
Requisites:
1. intention to abandon
2. external acts by which the intention is carried into effect
Forms of abandonment:
1. accepting an appointment to another office, but not designation (BECAUSE IT IS
ONLY CONSIDERED AN additional functions)
2. taking a leave for more than one year, with or without pay [Borromeo Case]
3. AWOL
Lecaroz v. Sandiganbayan, 305 SCRA 396 (1999) Absent an express or implied constitutional
or statutory prohibition to the contrary, an officer is entitled to stay in office until his successor
is appointed or chosen and has qualified. The legislative intent on not allowing holdover
must be clearly expressed or at least implied in the legislative enactment, otherwise it is
reasonable to assume that the law-making body favors the same. The law abhors a vacuum in
public offices by reason of public policy. [Chairman of KB]
IMPLIED OR EXPRESS CONSTITUITONAL PROHIBITION- THE TERM OF THE PRESIDENT SHALL
NOT EXCEED SIX YEARS- MEANING HE HAS TO GO AFTER THAT..
JUSTICES AFTER REACHING THE AGE OF 70- THEY HAVE TO GO THERE IS NO HOLD
OVER POSITION!!
Michael Abas Kida v. Senate, G.R. No. 196271, October 18, 2011
Issue: Can Congress pass a law postponing the elections and permitting local government officials
or ARMM officials to occupy their position until their successors shall have been elected and
qualified?
NO! BECAUSE THE CONSTITUTION provides that THE TERM OF THE LOCAL GOVERNMENT
OFFICIALS SHALL BE 3 YEARS- IMPLIED PROHIBITION OF HOLD OVER
_ THERE IS NO HOLDOVER CAPACITY EVEN IN LOCAL ELECTIONS!!
TERM OF LOCAL ELECTIVE OFFICIALS IS LIMITED TO 3 YEARS!!! THIS IS AN IMPLIED
PROHIHITION ON HOLDOVER!!
[not to Barangay officials]
THE TERM OF BARANGAY OFFICIALS IS NOT PROVIDED BY THE CONSTITUTION.
CONGRESS CAN PASS A LAW EXTENDING IT AND ALLOWING HOLDOVER
ARMM RULING!
Held: It is not competent for the legislature to extend the term of officers by providing that they
shall hold over until their successors are elected and qualified where the constitution has in
effect or by clear implication prescribed the term and when the Constitution fixes the
day on which the official term shall begin, there is no legislative authority to continue
the office beyond that period, even though the successors fail to qualify within the time.
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
Civil Service Commission
- Three members, like the COA
- serve 7 year terms on a staggered basis [rotational scheme
-no temporary or acting capacity
Qualifications:
1. natural-born
2. 35 years old
3. proven capacity for public administration [no degree or profession requirement]
4. did not run in the immediately preceding election (LAME DUCK PROVISION)
Function: Sec. 3: shall establish a career service and adopt measures to promote morale,
efficiency, integrity, responsiveness in the civil service
1. it acts (attests/approves) appointments (to ensure that minimum qualifications are
met] (ministerial)
2. it administers examination and confers the corresponding grade of eligibility
3. it conducts administrative investigations and discipline officials under it
Not within its disciplinary jurisdiction:
1. judges and court personnel (UNDER THE SUPREME COURT)
2. elective officials (UNDER THE PRESIDENT, THE SANGGUNIANG CONCERNED)
3. Presidential appointees (BY THE PRESIDENT)
4. soldiers, jail guard, police and firemen
Nature of Attestation, etc:
1. it is ministerial and cannot be withheld once the appointee meets the minimum
qualification.
2. the Commission cannot direct that someone else more qualified will be appointed
[Aquino v. CSC, 208 SCRA 293] (BECAUSE THE POWER TO APPOINT IS DISCRETIONARY)
3. it can revoke appointments, only if it is null and void [Gayatao v. CSC, 210 SCRA 185]
4. it can order the reinstatement of an employee/officer illegally removed [Mathay Jr. v.
CA, 320 SCRA 703 (1999)
Tomali v. CSC, 238 SCRA 576 What is the status of an appointment which has not been
approved.
Incomplete may be revoked or recalled by the appointing authority.
Tomali_- he was appointed by the mayor his appointment was not submitted to the
CSC for attestation a new mayor now comes in, and revoked his appointment.. HELD:
CONSIDERING THAT THE APPOINTMENT OF TOMALI IS WITHOUT ATTESTATION, HE CAN
BE REVOKED OR RECALLED BY THE APPOINTING AUTHORITY
NOTE: TOMALI WAS CONSIDERED DE FACTO .. HIS ACTS IS VALID.. AND HE IS ENTITLED
WITH HIS SALARY
Exempted from attestation:
1. Presidential appointees
2. Armed Forces personnel
3. police, firemen and jail guards
-court employees? THEY ARE NOT UNDER THE DISCIPLINARY AUTHORITY OF THE CIVIL
SERVICE COMMISSION!!
a.
Scope:
The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters.
GOCC without original charter- these are SUBSIDIARIES NOT COVERED BY THE
CSC . YOU FILE YOUR CASE BEFORE THE LABOR ARBITER UNDER THE LABOR
CODE
MEMO
2. Closed Career positions which are scientific or highly technical in nature; these include
the faculty and academic staff of state colleges and universities, and scientific and technical
positions in scientific or research institutions which shall establish and maintain their own
merit systems;
4. Career officers, other than those in the Career Executive Service, who are appointed
by the President, such as the Foreign Service Officers in the Department of Foreign
Affairs;
5. Commissioned officers and enlisted men of the Armed Forces which shall maintain
a separate merit system;
PD 807, Sec. 6.
B. The Non-Career Service shall be characterized by:
(1) entrance on bases other than those of the usual tests of merit and fitness utilized for the
career service;
(2) tenure which is limited to a period specified by law, or which is coterminous with that of
the appointing authority or subject to his pleasure, or which is limited to the duration of a
particular project for which purpose employment was made.
2. Department Heads and other officials of Cabinet rank who hold positions at the
pleasure of the President and their personal or confidential staff(s);
3. Chairman and members of commissions and boards with fixed terms of office
and their personal or confidential staff;
accomplishes the specific work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency; and
2.
Non-competitive not by any competitive examination, but by other means [Delos Santos
v. Mallare, 87 Phil. 289] (THIS HAS REFERENCE TO CABINET MEMBERS WHO ARE
NOT GIVEN EXAMINATIONS FOR THE SUCH POSITION)
-meteorologist
-nuclear scientist
-molecular biologist
HENCE, THE CSC CANNOT REQUIRE EXAMINATION FOR THE QUALIFICATION FOR THESE
POSITIONS. VERY HIGHLY TECHNICAL
Astraquillo v. Manglapus, 190 SCRA 280
A was appointed by the President as Ambassador Extraordinary and Plenipotentiary to the UEA.
After someone accused him in a letter of improper interference in the function of a Labor Attache,
his services were terminated by the President and another was appointed in his place. HE
QUESTIONED IT
HELD: SC HELD THAT HE WAS A POLITICAL APPOINTEE HE WAS A NON CAREER
APPOINTEE HENCE, GENERALLY HE CAN BE REMOVED BY THE PRESIDENT WITHOUT
NOTICE AND HEARING BECAUSE BELONG TO THE NON CAREER SERVICE. (MAYBE ON THE
GROUND OF LOSS OF TRUST AND CONFIDENCE)
Two types of officers in the Foreign Service:
1. Non-career appointment not based on usual test of merit and fitness utilized for career
service. Tenure is co-terminus with appointing authority, or subject to his pleasure. [Foreign
Service Examination]
EX. APPOINTMENT OF AMBASSADORS- THEY ARE POLITICAL APPOINTEES.. SUBJECT TO
THE DISCRETION OF THE PRESIDENT MAY BE REMOVED ANYTIME
2. Career- THESE PEOPLE HAVE TO GO THROUGH THE USUAL TEST OF MERIT AND
FITNESS LIKE EXAMINATION QUALIFICATIONS
LIKE CONSULS. THEY CANNOT BE REMOVED BASED ON TRUST AND CONFIDENCE AS
THEY ENJOY SECURITY OF TENURE
Do non-career officers enjoy security of tenure?
(THE SC CAME UP WITH THIS DECISION BECAUSE OF THE CONFUSION AS TO WHETHER
OR NOT NON CAREER APPOINTEES ENJOY THE SECURITY OF TENURE IN LIGHT OF THE
CONSTITUTIONAL PROVISIONS THAT ALL MEMBERS OF THE CIVIL SERVICE ENJOY
SECURITY OF TENURE
Corpus v. Cuaderno, 13 SCRA 591 (1965) They are exempted only from the requirement of
a competitive exam, but not from the operation of the principle of security of tenure. All
of them can be removed only for cause as provided by law. However, those who hold
primarily confidential position are a special case. Their term is co-terminus with the
confidence reposed on them. Their cessation from office involves no removal but
EXPIRATION of the term of office. In a sense, their term is unknown or indefinite, but
becomes definite when the appointing power decides to put an end to their services.
OTHERWISE STATED, CONFIDENTIAL APPOINTEES OR NON CAREER ONES STILL ENJOY
SECURITY OF TENURE BUT ONCE THE TRUST AND CONFIDENCE REPOSED IN THEM IS
REMOVED, THEIRTERM ENDS..
What kind of security of tenure are enjoyed by those in Career Executive Service?
Cuevas v. Bacal, 347 SCRA 339- Their security of tenure is with respect to rank, not to
position. The concept of security of tenure as to position applies only to first and second
level employees.
Ex. Undersecretary or Assistant Secretary while the holder thereof may be removed from such
office, he must be provided with substantially equivalent position. Meaning his rank remain the
same.. Emphasis is that the Security of tenure is on the RANK.. Take note also that there
are some ambassadors or undersecretaries who belong to the career and some in the
non career
Examples of confidential employee/trust and confidence:
1. City or Municipal Attorney (including provincial) co terminus with the Mayor Hilario v.
Appointments
Appointments in the civil service shall be made only according to merit and fitness
to be determined, as far as practicable, and, except to positions which are policydetermining, primarily confidential, or highly technical, by competitive examination.
Kinds of Appointments:
Section 25. Employment Status. Appointment in the career service shall be permanent or
temporary.
(a) Permanent status. A permanent appointment shall be issued to a person who meets
all the requirements for the positions to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof.
(b) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary appointment shall be issued to a person who
meets all the requirements for the positions to which he is being appointed except the appropriate
civil service eligibility: Provided, That such temporary appointment shall not exceed twelve
months, but the appointee may be replaced sooner if a qualified civil service eligible becomes
available.
JOB ORDER APPOINTMENT FALLS HERE
Provisional v. Temporary Appointments:
Provisional appointment is extended to:
(1) one who has not qualified in an appropriate examination
(2) otherwise meets the requirement to a regular position
(3) the filling of the vacancy is necessary in the interest of public service
(4) there is no appropriate roster of eligibles [Regis v. Osmena, 187 SCRA 311
Take note that in both PROVISIONAL AND TEMPORARY APPOINTMENTS, THE APPOINTEE IS NOT
ELIGIBLE
Temporary:
1. there are no appropriate eligibles
2. necessity in the public interest to fill a vacancy,
3. appointee meets all the requirements for the positions to which he is being appointed except
the appropriate civil service eligibility
4. Appointment shall not exceed twelve months, but the appointee may be replaced sooner if a
qualified civil service eligible becomes available.
THE ONLY DIFFERENCE BETWEEN THE TWO IS THE PERIOD That such temporary appointment
shall not exceed twelve months.. NO SUCH PROVISION IS PROVIDED IN PROVISIONAL
APPOINTMENT
Note:
Whether permanent or temporary, becoming an eligible does not render automatically
permanent the appointment.
BECAUSE APPLY FOR THE SAME AND NEW APPOINTMENT MUST BE ISSUED NO
AUTOMATIC RIPENING FROM TEMPORARY OR PROVSIONAL INTO PERMANENT
3. Personnel Action [Sec. 24, PD 807]
a. appointment through certification
b. promotion,
c. transfer,
d. reinstatement,
e. re-employment,
f. detail,
g. reassignment,
h. demotion
i. and separation.
PERSONNEL ACTION
-any action denoting the movement or progress of personnel in the civil service shall
be known as personnel action.
IT CAN BE DOWNWARD OR UPWARD OR SIDEWARD IN THE CASE OF TRANSFER
(a) Appointment through certification. An appointment through certification to a position in the
civil service, except as herein otherwise provided, shall be issued to a person who has been
selected from a list of qualified persons certified by the Commission from an appropriate register of
eligibles, and who meets all the other requirements of the position.
All such persons must serve a probationary period of six months following their
original appointment and shall undergo a thorough character investigation in order
to acquire permanent civil service status. A probationer may be dropped from the
service for unsatisfactory conduct or want of capacity any time before the expiration of the
probationary period: Provided, That such action is appealable to the Commission.
(b) Promotion. A promotion is a movement from one position to another with an increase
in duties and responsibilities as authorized by law and usually accompanied by an increase
in pay. The movement may be from one department or agency to another, or from one
It shall 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 his case to the
Commission. (MEANS THAT IT CAN BE PART OF PERSONNEL ACTION OR
DISCPLINARY IN THE SENSE THAT IT IS MADE A PENALTY FOR SOME
VIOLATIONS..BUT THERE CAN BE TRANSFER WITHOUT BEING DISCIPLINARY
ONE)
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.
(d) Reinstatement. Any person who has been permanently appointed to a position in the
career service and who has, through no delinquency or misconduct, been separated
therefrom, may be reinstated to a position in the same level for which he is qualified.
(PRESUPPOSES ILLEGAL DISMISSAL OR ILLEGAL REMOVAL)
(e) Re-employment. Names of persons who have been appointed permanently to positions
in the career service and who have been separated as a result of reduction in force and/or
reorganization, shall be entered in a list from which selection for reemployment shall be
made.
(f) Detail. A detail is the movement on an employee from one agency to another without
the issuance of an appointment and shall be allowed, only for a limited period in the case of
employees occupying professional, technical and scientific positions. If the employee
believes that there is no justification for the detail, he may appeal his case to the
Commission. Pending appeal, the decision to detail the employee shall be executory unless
otherwise ordered by the Commission.
Some Considerations:
1. Reassignment is recognized as a management prerogative vested in the Civil Service
Commission and any department or agency. It does not constitute removal without cause, even if
the reassignment is without consent
Reassignment can be done with or without cause While you can refuse promotion or
transfer, you cannot refuse reassignment because it is an exercise of management
prerogative..
When can we consider it REASSIGNMENT OR TRANSFER?
Fernando v. Sto. Tomas, 234 SCRA 548
Petitioners were appointed as Med Arbiters in the National Capital Region.
They were
assigned later with the Secretary Labor. With their new assignment, they could no longer decide
labor cases. They did not report and were charged with insubordination. Held: Reassignment in
good faith and in the interest of the service is valid. Presumption of regularity applies.
The limitation is when the reassignment is intended to harass or coerce the employee or
officer.
SO, UNLESS IT IS INTENDED TO HARASS OR COERCE, YOU CANNOT REFUSE
REASSIGNMENT!!
2. Transfer- A movement from one position to another which is equivalent in rank, level or salary,
without break in service.
Distinctions:
1. Transfer requires a new appointment, but (REASSIGNMENT) does not.
2. Transfer requires you (TO BE) outside the agency or geographical unit stated in
your appointment, but reassignment does not.
3. Transfer requires the consent of the employee, but reassignment does not
So when is it transfer or reassignment?
So when is it a transfer and when is it a reassignment?
1. judges/prosecutors
A judge of RTC Tagum has to undergo new application and appointment proceedings
before he can be appointed or transfer to RTC Davao otherwise stated, REASSIGNMENT
is not allowed to judges! It has to be TRANSFER because you have to undergoes to the
process again!!even if there is no promotion the rank is still the same.. As to
PROSECUTORS, if is appointment is specific provided for tagum only, I cannot be
assigned or move to Panabo or Samal without being transferred or going through the
process of applying again or nomination and appointment. So it has to be transfer!!!
2. teachers/Provincial Engineer I
Teacher and Police Officers can be moved anywhere in the province..
For instance, your appointment is PROVINCIAL ENGINEER 1 OF DAVAO DEL NORTE
assignment at PGO later on, an new governor comes in intending to move you from
PGO since you are known to be the formers governor man He now transfer you to
TALAINGOD.. Can you complain about that or refuse? NO!! Taking into consideration of
the appointment, that is only a REASSIGNMENT and not TRANSFER.. Note that the
movement is within Davao del norte only it did not go out from the terms of the
appointment
3. Policemen/soldiers/State Prosecutors
This is known as abusive PNP personnel are REASSIGNED TO MAGUINDANAO!note that
their appoinment is PO3.. HENCE CAN BE TRANSFERRED ANYWHERE!! IT IS ONLY A
REASSIGNMENT.. IN OTHERWORDS, IF THE MOVEMENT DOES NOT CHANGE THE TERMS
AND TENOR OF YOUR APPOINTMENT, IT IS ONLY A REASSIGNMENT you cannot
complaint there!!.. If otherwise, then it is TRANSFER. You can refuse the same..
4. Ambassadors and Consuls
Their appointment is AMBASSADOR 1 OR CONSUL 2. SO THE Y CAN BE MOVED OR
TRANSFERRED FROM ONE PLACE TO ANOTHER WITHOUT CHANGING THE TERMS OF
THEIR APPOINTMENT!!
Notes:
1. A transfer that results in promotion or demotion, advancement or reduction, or a
transfer that aims to lure the employee away from his permanent position, cannot be
done without the employees consent, for that would constitute removal without cause.
2. However, a transfer without his consent is valid if it is a consequence of disciplinary
measure. Take note it is one of the impossible penalties in an administrative proceedings.
What is the next-in-rank rule? (DEAN ACTUALLY SAID THAT THERE IS NO NEXT IN
RANK RULE BUT THERE ARE RIGHTS UNDER THE SAME!!!
PD 807, Sec. 19 (2): When a vacancy occurs in a position in the first level of the Career Service as
defined in Sec. 8, the employees in the department who occupy the next lower positions
is classified, and in other functionally related occupational groups and who are
competent, qualified and with appropriated civil service eligibility shall be considered for
the position.
6. A qualified next-in-rank employee shall have the right to appeal initially to the
department head and finally to the Office of the President an appointment made (1) in
favor of another next-in-rank employee who is not qualified (IN CASE THIS PERSON
ENTERED INTO THE GOVERNMENT TOGETHER WITH YOU BUT DOES NOT HAVE MASTERS
WHICH IS QUALIFICATION), or (2) in favor of one who is not next-in-rank, or (3) in
favor of one who is appointed by transfer and not next-in-rank, or by reinstatement, or
by original appointment if the employee making the appeal is not satisfied with the
written special reason or reasons given by the appointing authority for such
appointment:
Provided, That final appeal shall be to the department head concerned if the appointment
is issued to a qualified next-in-rank employee. Before deciding a contested appointment, the
Office of the President shall consult the Civil Service Commission. For purposes of this Section,
"qualified next-in-rank" refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy proposed to be filled
and who meets the requisites for appointment thereto as previously determined by the
appointing authority and approved by the Commission.
Rights of the Next-In-Rank:
1. Right to be considered to the vacant position
2. Right to appeal the appointment of another (NOTE THE GROUNDS) BUT THIS DOES
NOT MEAN THAT IF YOUR GROUND IS FOUND TO BE WITH MERITS, YOU WILL BE THE
ONE TO BE APPOINTED TO THE POSITION!! THIS IS WITHOUT GUARANTEE THAT YOU
WILL BE APOINTED TO THE POSITION!!
[YOU CANNOT APPEAL TO THAT WHO IS BUT A QUALIFIED NEXT IN RANK)(but not
against another who is a qualified next in rank]
Garces v. CA, 259 SCRA 101
Garces was Election Registrar of Liloy, Zamboanga, Davao del Norte, who was transferred by
the COMELEC to Gutalac without her consent. She did not leave her station so that the new
appointee in her stead could not assume.
Held: Her transfer amounts to a removal without cause which is illegal.
THIS IS REALLY A TRANSFER THOUGH IT IS FOR AN EQUAL RANK!!!!! HIS APPOINTMENT
IS ELECTION REGISTRAR OF LILOY.. HE CANNOT BE MOVED OUTSIDE LILOY WITHOUT
VIOLATING THE TERMS OF HIS APPOINTMENT.. COMELEC HAS NO BUSINESS OF
TRANSFERRING HER WITHOUT HER CONSENT!!
This Ruling might have a problem now!! Prevailing law governing elections officers now
has it that they can be moved from one municipality or city after serving more than 3
years there!!
Carino v. executive, April 2, 2002
Carino was appointed as Accountant III in the Office of the Northern Cultural
Communities, Region II. In 2006, he was reassigined by the Executive Director to the Position
of Technical Assistant of the Economic Division of the Agency. In 1997, she was directed to report
of the ONCC Region II office, refused and was dropped from the list of employees. Was her
dismissal valid?
YES!!! HER DISMISSAL WAS VALID SHE CAN BE MOVED WITHIN THE REGION
PROVIDED THAT HER RANK IS NOT CHANGE OR SUBJECT TO DIMINUTION!!
Some other Principles:
1.
Regents, on nomination of the UP President. His appointment as such Dean was for a five
year term, "effective May 16, 1967 until May 17, 1972, unless sooner terminated. Effective
July 23, 1969, due to students protests, the Dean removed him and placed someone in his stead.
Sta. Maria was made special assistant with the rank of dean without reduction in salary. Was his
security of tenure validated? [appointed to a specific position, unless sooner removed has to be for
cause]
IT WAS HELD THAT SINCE HIS APPOINTMENT WAS FOR A SPECIFIC POSITION OF Dean
of the College of Education. YOU CANNOT MOVED HIM TO ANOTHER POSITION EVEN TO
THAT WITH EQUIVALENT RANK!!OTHERWISE, IT WILL BE A TRANSFER WHICH CANNOT
BE DONE WITHOUT HIS CONSENT AND WILL CONSEQUENTLY AMOUNT TO REMOVAL
FROM SERVICE!! YOU WILL BE ALTERING THE TERMS OF HIS APPOINTMENT
UNLESS SOONER TERMINATED- IT HAS TO BE FOR A CAUSE!!
Who can appeal an adverse decision in and administrative case?
PNB v. Garcia, Sept. 9. 2001:
A decision of the Civil Service reversed by the Court of Appeals may be challenged by
the former. The term aggrieved party can apply to it. [Mendez v. CASC, 204 SCRA 965,
abandoned by Dacoycoy v. CSC, 306 SCRA 425] Decisions are reviewed by CA on certiorari.
THE TERM AGGRIEVED PARTY APPLIES TO ANYONE! EVEN CSC IS A PROPER PARTY TO APPEAL A
DECISION ADVERSE TO IT!!
Bar Question,1994,
No. 4.
1) When is an appointment in the civil service permanent? IF YOU POSSESS ALL THE
QUALIFICATIONS AND YOU ARE HOLDER OF A REQUIRED ELIGIBILITY!!
2) Distinguish between an appointment in an acting capacity from an ad interim appointment.
APPOINTMENT IN AN ACTING CAPACITY IS DEFINITELY TEMPORARY IN NATURE!! AD
INTERIM APPOINTMENT REQUIRING CONFIRMATION IS ONE MADE BY THE PRESIDENT
WHEN THE CONGRESS IS NOT IN SESSION OR DURING RECESS-PERMANENT NATURE!!
3) Distinguish between a provisional and a temporary appointment.
NOTE THAT PROVISIONARY APPOINTMENT HAS BEEN ABOLISHED BY RA 6040!!! ONLY
UNDER MAGNA CARTA FOR TEACHERS WHERE PROVISIONAL APPOINTMENT IS ALLOWED
FOR PUBLIC SCHOOL TEACHERS!! HOWEVER, NO AUTOMATIC REGULAR APPOINTMENT
ONCE ONE QUALIFIES AND ACQUIRES ELIGIBILITY!!
Note: Provisional appointments have been abolished by RA No. 6040. Now it applies only to
teachers under the Magna Carta of Public School Teachers.]
Bar Question, 1993, No. 10.
How may the following be removed from office;
officers and employees in the Civil Service- YOU CAN ONLY BE REMOVED FOR CAUSE AS
PROVIDED FOR BY LAW!!!
Bar Question, 1999, No. 9:
A. What is the meaning and guarantee of security of tenure? YOU CAN ONLY BE REMOVED
FOR CAUSE AS PROVIDED FOR BY LAW!!!
B. What characterizes the career service and what are included in the career service?
READ THE ENUMERATION IN THE PRECEDINGS SLIDES!!!
Bar Question, 1994, No,15.
Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant position, the City Mayor
appointed Jose Reyes, a civil engineer who formerly worked under Cruz but had been assigned to
the Office of the Mayor for the past 5 years.
Vicente Estrada, the Assistant City Engineer filed a protest with the Civil Service Commission
claiming that being the officer next in rank he should have been appointed as City Engineer.
NOTE THAT NO ONE HAS A BETTER RIGHT TO THE POSITION IN THE CASE AT BAR!!
ESTRADA HAS ONLY THE RIGHT TO BE CONSIDERED TO THE POSITION AND THE RIGHT
TO APPEAL TO CSC ON THE GROUND PROVIDED FOR BY LAW THE NEXT IN RANK RULE
DOES NOT PROVIDE HIM BETTER TITLE TO THAT POSITION!!
1) Who has a better right to be appointed to the position? NO ONE HAS A BETTER RIGHT!!
ONCE APPLICANTS POSSESS ALL THE QUALIFICATIONS AND REQUIREMENTS, THEY ARE
ALL QUALIFIED!!
2) Can the Civil Service Commission revoke an appointment by the appointing authority and
direct the appointment of an individual of its choice? NO!! IT CAN ONLY APPROVED OR
DISAPPROVE APPOINTMENT SUBMITTED BEFORE IT MINISTERIAL IN NATURE
Bar Question, 2011
3. Where A is set for promotion to Administrative Assistant III and B to the post of
Administrative Assistant II vacated by A, the appointing authority must
A. submit to the CSC the two promotional appointments together for approval.
C. submit to the Civil Service Commission (CSC) the second appointment after its approval
of the first.
9. An appointment held at the pleasure of the appointing power (AT THE PLEASURE
CONNOTES TRUST AND CONFIDENCE!!)
D. is co-extensive with the term of the public officer who appointed him. NOT THIS ONE
BECAUSE HE CAN BE REMOVED BY THE APPOINTING AUTHORITY ANYTIME EVEN
BEFORE THE LATTERS TERM ENDS OR THE TRUST AND CONFIDENCE CEASES.. IT
IS CO-TERMINUS WITH THE TRUST AND CONFIDENCE REPOSED ON YOU!!
27. A temporary appointee to a public office who becomes a civil service eligible during his
tenure
True or False.
D. Acquisition of civil service eligibility during tenure of a temporary appointee does not
automatically translate to a permanent appointment. (0.5%)
TRUE!!
Bar Question, 2005, No.5
(2.) Ricardo was elected Dean of the College of Education in a State University for a
term of five (5) years unless sooner terminated. Many were not pleased with his
performance. To appease those critical of him, the President created a new position, that of
Special Assistant to the President with the rank of Dean, without reduction in salary, and
appointed Ricardo to said position in the interest of the service. Contemporaneously, the
University President appointed Santos as Acting Dean in place of Ricardo.
(a) Does the phrase unless sooner terminated mean that the position of Ricardo is
terminable at will? NO!! IT HAS TO BE FOR A CAUSE!!
(b) Was Ricardo removed from his position as Dean of the College of Education or merely
transferred to the position of Special Assistant to the President? Explain. HE WAS REALLY
REMOVED AND AT THE SAME TIME HE WAS ALSO TRANSFERRED because the
appointment is specific!!
PUBLIC OFFICERS
Part III
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
13. Accountability of Public Officers
[a. Impeachment]
Art. XI, Sec. 1, 1987 Constitution:
Public officers and employees must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead
modest lives.
13. a. Ombudsman
An independent constitutional body. He has 5 deputies but only the Ombudsman himself is
impeachable.
-appointed by the President from a list of 3 prepared by the JBC (a list of 3- meaning it
cannot be more than 3). (note that the nomination to be made by the JBC as to JUDGES
OR JUSTICES IS AT LEAST 3)
-reappointment is prohibited
Qualifications:
1. 40 years old
2. natural-born citizens
3. members of the Philippine Bar [ (only) Ombudsman himself -10 years in practice (must at
least 10 years in practice)]
4. recognized probity and independence
Functions: [Guardian of Good Government]
1. Investigate all complaints of wrong-doing by government officials (fact-finding side) THIS
IS ONLY TO FIND OUT W/N THERE IS WRONG DOING GOING ON
2. Hear administrative complaints against all public officials [disciplinary cases disciplinary side]-
Almonte v. Vasquez- any form or manner [like NBI or CHR]- HERE ALMONTE COMPLAINED
WHY WAS HE BEING INVESTIGATED BY OMB AT THE INSTANCE OF AN ANONYMOUS
LETTER IT WAS RULED THAT PURSUANT TO THE CONSTITUTION, OMB IS EMPOWERED
TO CONDUCT INVESTIGATION IN ANY FORM OR MANNER NOTE THAT THIS
PROVISION IN ANY FORM OR MANNER IS LIMITED ONLY TO NO. 1 THE POWER TO
INVESTIGATE AND NOT TO ADMIN CASES OR NO. 2 BECAUSE THERE HOW CAN YOU BE
CHARGED FOR ADMIN CASE WHEN YOU DO NOT KNOW WHO IS CHARGING YOU HERE
IT NEED NOT BE IN A FORMAL OR SPECIFIC FORM OF COMPLAINT OR UPON A VERIFIED
PETITION OR IN ANY MANNER.. INVESTIGATION HERE MAY BE BY MEANS OF
INVESTIGATIONS THROUGH EXAMINATION OF BOOKS OF ACCOUNTS OR OTHER
DOCUMENTS.
-everyone including gathering of evidence against impeachable officer
NOTE THAT THIS POWER TO INVESTIGATE EVEN COVERS TO THOSE IMPEACHABLE
OFFICIALS.. LIKE WHAT HAPPENED TO CORONA WHERE HE WAS BEING INVESTIGATED
BY GUTIERREZ BY VIRTUE OF THIS POWER BUT NOTE THAT OMB CANNOT DO THAT IN
EXERCISE OF ITS POWER UNDER NO. 2 FOR PURPOSES OF ADMINISTRATIVE
INVESTIGATION!! OMB WAS ONLY INVESTIGATING CORONA NOT FOR THE PURPOSES OF
REMOVING HIM OR ADMIN INVESTIGATION BUT UNDER NO. 1 FOR PURPOSES OF
GATHERING INFORMATION OR EVIDENCE!!
2. Administrative/Disciplinary Jurisdiction (HERE YOU ARE ALREADY CHARGING THE
CONCERNED GOVT EE OR OFFICIAL)
Both appointive and elective, except:
a. impeachable officers [Gonzales case]
b. members/employees of the judiciary [Dolalas case] [CSC v. Andal, 608 SCRA 370 (2009)
(ONLY SC CAN CONDUCT ADMINISTRATIVE INVESTIGATIONS OF ALL EMPLOYEES AND
OFFICIALS OF THE JUDICIARY EVEN THEIR JANITORS CANNOT BE INVESTIGATED
ADMINISTRATIVELY BY OMB AND CSC!!)
c. members of the Congress [Who disciplines them?] (IT IS THE HOUSE ITSELF WHO CAN
DISCIPLINE OR EXPEL YOU)
1. Can the Ombudsman order payment of back wages?
Orcullo v. Gervacio, 314 SCRA 452 (1999)
Councilor Orcullo was the Chair of the Committee of Women and the SP. Morales was named as
team leader of a study group to conduct a study of the DSWD. Due to financial constraints, Orcullo
suspended the project. Morales sought the assistance of the OMB who ordered Orcully to pay
Morales back wages amounting to P70,800.00. Is it proper?
HELD: NO! OMB HAS NO JURISDICTION OVER MONEY CLAIMS!! MAY BE YOU FILE IT
BEFORE THE THE PROPER COURT!! OMB CANNOT ORDER THE PAYMENT OF BACKWAGES!!
Held: No. The OMB has no jurisdiction over money claims. If it was a personal liability of Orcullo,
the claim should be filed in court. If that of the city government, jurisdiction is with the SP. RA
No. 6770 only authorizes the OMB to request another government agency for assistance
and information. It has no power to order payment of claims, wages and salaries to the
aggrieved party.
NOTE THAT CSC HAS THE POWER TO AWARD BACKWAGES IN CASE OF ILLEGAL
DISMISSAL OR REMOVAL!!
Preventive Suspension: RA 6779, Sec. 23- (OMBUDSMAN LAW)!
The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay, except when the delay in
the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.
Yasay v. Desierto, 300 SCRA 495 (1998)
Yasay was preventively suspended for 90 days pending investigation. He opted for a formal
hearing. When it became apparent that it could not be completed within the period, the OMB
suspended him for another 90 days. Is it valid?
Held: No. The non-completion of the investigation within 90 days cannot be construed
as fault or negligence of respondent. When the OMB made the initial determination
of the period of suspension, he should have taken into account the nature of the charge,
the evidence of the parties and the issues involved.
YOU CANNOT DO IT BY INSTALLMENT!!!
Penalties.
(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules
provided therein shall be applied.
(2) In other administrative proceedings, the penalty ranging from suspension without pay
for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand
pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that mitigate or
aggravate the liability of the officer or employee found guilty of the complaint or charges
NOTE ALSO THAT FINE CANNOT BE IMPOSED UNDER THE LOCAL GOVERNMENT
CODE OMB CAN IN VIEW OF THE ABOVE!!
B. For his part, the OMB moved to dismiss WOWs petition. According to the OMB the evidence
of guilt of WOW is strong, and petitioner has failed to exhaust administrative remedies. WOW
admitted that he filed no motion form reconsideration, but only because the order suspending him
was immediately executory.
Should the motion to dismiss be granted or not? Discuss briefly.
YOU NEED TO EXHAUST ADMINSTRATIVE REMEDIES AND BEFORE A CERTIORARI CAN BE
ENTERTAINED, A MOTION FOR RECONSIDERATION MUST BE HAD FIRST!!
B. Sandiganbayan
I.
Other offenses committed by the public officials and employees mentioned in subsection a
of this section in relation to their office. THIS IS THE CATCH ALL PHRASE!!
IF YOU ARE HIGH RANKING OFFICIAL WITH SG 27 OR HIGHER AND ALLEGED TO HAVE
COMMITTED OTHER OFFENSES IN RELATION TO YOUR OFFICE.. APPARENTLY, WHILE
MALVERSATION IS NOT LISTED IN SEC. 2 CHAPTER 2, IT WILL FALL UNDER THIS
CATEGORY SINCE MALVERSATION IS COMMITTED IN CONECTION WITH THE OFFICE!!
6. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
+
b. Position or Rank of the Offender:
(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors engineers and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;
"(2) Members of Congress and officials thereof classified as Grade'27'and up under the
Compensation and Position Classification Act of 1989;
"(3) Members of the judiciary without prejudice to the provisions of the Constitution;
"(5) All other national and local officials classified as Grade'27'and higher under the
Compensation and Position Classification Act of 1989.
Geduspan v. People, 451 SCRA 187Is the General Manager of Philhealth, who is only Grade 26, under the jurisdiction of the SDGN?
[by express provision of law (g)]
Alzaga v. SDGN, 505 SCRA 849 What about Vice Presidents or Assistants Vice Presidents of
GOCCs? [higher than managers]
If less than SG 27, which court has jurisdiction? Same:
a. Not more than 6 years- MTC
b. 6 years and 1 day up- RTC
Appeals:
MTC>>>>>RTC>>>>SDGN>>>SC
[Apparently applicable only where the crimes is included in the above list.]
C. Office of the Special Prosecutor:
RA 6770, Sec. 11:
(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his
prosecution staff. The Office of the Special Prosecutor shall be an organic component of the
Office of the Ombudsman and shall be under the supervision and control of the
Ombudsman.
(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
the authority of the Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan;
[Special Prosecutor:]
-government officials with salary grade of 27 and above
DOJ Prosecutors
-ordinary citizens in regular courts
-government officials before regular courts
[OMB has also a pool of prosecutors appearing in regular courts]
95. The Office of the Special Prosecutor may file an information against a public officer for
graft
(5) The complaint was filed after one year from the occurrence of the act or omission
complained of.
[Jumawan case: it is permissive.]
Can there be pardon from conviction in an administrative case?
PD No. 807:
Section 43. Removal of Administrative Penalties or Disabilities. In meritorious cases and upon
recommendation in the Commission, the President may commute or remove administrative
penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such
terms and conditions as he may impose in the interest of the service.
Since the President cannot pardon a court employee administratively penalized by the Supreme
Court because of separation of powers, who can pardon him?
(1) Judicial Review in Administrative Proceedings
(2) Judicial Review in Penal Proceedings
a.
1.
a. EO No. 1 created the PCGG and authorized it to sequester and provisionally take over all
properties and business belonging to Marcos, his family, relatives, close associates and
subordinates here and abroad.
EO No. 2. President Aquino freeze all their assets to prevent transfer and conveyance.
EO No. 14/14A. Authorized the PCGG to file civil and criminal cases and the Sandiganbayan
to assume jurisdiction
PCGG
-not a constitutional body but allowed by the Constitution to exist
-under the transitory provision, it was allowed to sequester for an additional 18 months, unless
Congress, upon recommendation of the President, authorizes it
-allowed to continue old cases and pursue ill-gotten wealth
[Cojuangco v. Roxas, 195 SCRA 799 (1991)]
-it can sequester, take-over and issue freeze orders
-it can only exercise acts of administration, not ownership
-it cannot vote sequestered shares in order to change company policy or replace management
officials
-the powers are mere provisional remedies intended to prevent the disposal and dissipation of
assets
-it must institute judicial proceedings within 6 months
-it can compromise civil cases
-it can grant immunity from prosecution to witnesses, not principal accused
2. Ill-Gotten Wealth of others
RA No. 1379 Law on Forfeiture of Ill-gotten Wealth=
-does not punish possession or acquisition of ill-gotten wealth only forfeiture
-RA 3019 provides for the administrative aspect of removal or suspension, not confiscation
-proceedings is before the RTC where respondent resides.
-reversed presumption applies/prima facie
Some Decisions:
1.
2.
Does the right of the state to prosecute crimes involving ill-gotten wealth prescribe?
3.
First Question:
1987 Constitution, Art. XI, Sec. 15: The right of the state to recover properties unlawfully
acquired by public officials or employees shall not be barred by prescription.
RA 1379, June 24, 1955
Section 11. Laws on prescription. The laws concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property
unlawfully acquired by him.
Question 2:
PAHFFC v. Desierto , 317 SCRA 272 (1999) The above provision does not apply to crimes.
RA No. 3019: Section 11. Prescription of offenses. All offenses punishable under this Act shall
prescribe in fifteen (15) years.
How is prescription computed? in Act No. 3326, Section 2:
"SECTION 2. Prescription shall begin to run from the day of the commission of the violation
of the law, and if the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment.
PUBLIC OFFICERS
Part III
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
13. Accountability of Public Officers
[a. Impeachment]
Ombudsman
An independent constitutional body.
He has 5 deputies but only the Ombudsman himself is impeachable.
-appointed by the President from a list of 3 prepared by the JBC
(a list of 3- meaning it cannot be more than 3).
4 Qualifications:
1. 40 years old
2. natural-born citizens
3. members of the Philippine Bar [ (only) Ombudsman himself -10 years in practice (must at
least 10 years in practice)]
4. recognized probity and independence
**FUNCTIONS EXPLAINED**
1.
Power to Investigate
(FACTFINDING)
NOTE:
THAT THIS POWER TO INVESTIGATE EVEN COVERS TO THOSE IMPEACHABLE
OFFICIALS.. LIKE WHAT HAPPENED TO CORONA WHERE HE WAS BEING INVESTIGATED
BY GUTIERREZ BY VIRTUE OF THIS POWER
BUT NOTE THAT OMB CANNOT DO THAT IN EXERCISE OF ITS POWER UNDER NO. 2 FOR
PURPOSES OF ADMINISTRATIVE INVESTIGATION!! OMB WAS ONLY INVESTIGATING
CORONA NOT FOR THE PURPOSES OF REMOVING HIM OR ADMIN INVESTIGATION BUT
UNDER NO. 1 FOR PURPOSES OF GATHERING INFORMATION OR EVIDENCE!!
2.
Administrative/Disciplinary Jurisdiction
(HERE YOU ARE ALREADY CHARGING THE CONCERNED GOVT EE OR OFFICIAL)
impeachable officers
b.
[Gonzales case]
Andal, 608 SCRA 370 (2009) (ONLY SC CAN CONDUCT ADMINISTRATIVE INVESTIGATIONS
OF ALL EMPLOYEES AND OFFICIALS OF THE JUDICIARY EVEN THEIR JANITORS
CANNOT BE INVESTIGATED ADMINISTRATIVELY BY OMB AND CSC!!)
c.
1.
for assistance and information. It has no power to order payment of claims, wages and salaries
to the aggrieved party.
NOTE:
Preventive Suspension:
The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay,
except when the delay in the disposition of the case by the Office of the Ombudsman is due
to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted
in computing the period of suspension herein provided.
Yasay v. Desierto,
Yasay was preventively suspended for 90 days pending investigation. He opted for a formal
hearing. When it became apparent that it could not be completed within the period, the OMB
suspended him for another 90 days. Is it valid?
Held: No. The non-completion of the investigation within 90 days cannot be construed
as fault or negligence of respondent. When the OMB made the initial determination
of the period of suspension, he should have taken into account the nature of the charge,
the evidence of the parties and the issues involved.
YOU CANNOT DO IT BY INSTALLMENT!!!
Penalties.
(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules
provided therein shall be applied.
(2) In other administrative proceedings, the penalty ranging from suspension without pay
for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand
pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that mitigate or
aggravate the liability of the officer or employee found guilty of the complaint or charges
NOTE:
NOTE:
2.
3.
Preliminary Investigation
to determine probable cause-
impeachable officers
b.
A.
of the Sandiganbayan, it is concurrent with DOJ Prosecutors [Office v. Enoc, 374 SCRA 691
(2002) [see Uy v. Sandiganbayan, 354 SCRA 651 (2001) decision was in effect from Aug. 9, 1999
to March 20, 2001]
REMEMBER THE JURISDICTION OF SANDIGANBAYAN EXTENDS ONLY TO PEOPLE OR
GOVERNMENT OFFICIALS WITH SALARY GRADE 27 OR ABOVE!! PUT IT DIFFERETLY, IF
YOU BELONG TO THESE CATEGORY, THE ONLY BODY WHO CAN INVESTIGATE YOU FOR
PURPOSES OF PRELIMINARY INVESTIGATION IS OMB.. THAT IS EXCLUSIVE !! NOT DOJ
PROSECUTORS.. BUT IF YOUR SG IS BELOW SG 27 OR THE CRIME ALLEGED TO HAVE
BEEN COMMITTED IS NOT IN RELATION TO YOUR OFFICE, YOU CAN BE INVESTIGATED
BY REGULAR DOJ PROSECUTORS OR PROVINCIAL FISCAL OR AT THE SAME TIME BY THE
OMB!!!! THIS IS WHAT WE CALLED CONCURRENT JURISDICTION..
b. -regardless of whether it is related or unrelated Deloso v. Domingo, 191 SCRA 547 [Governor
was suspect in ambush-killing. The crime was unrelated to his functions]
-RELATED OR UNRELATED TO HIS OFFICE, THE OMBUDSMAN CAN CONDUCT
PRELIMINARY INVESTIGATION!!
THE OMBUDSMAN HAS EXCLUSIVE JURISDICTION TO INVESTIGATE IF YOUR SG IS 27 OR
ABOVE AND THE CRIME IS RELATED TO YOUR FUNCTION!! IT HAS CONCURRENT
JURISDICTION IF YOUR SG IS BELOW 27 OR THE CRIME ALLEGED TO HAVE BEEN
COMMITTED IS UNRELATED!!
1. Related/SG 27 -Exclusive
2. Unrelated Concurrent with DOJ
2. Can the Deputy Ombudsman for the Military conduct an investigation involving policemen
considering that the police force under the Constitution is civilian in character?
Held: The OMB has control of his deputies. He can refer cases involving non-military
men. Besides, the principle of civilian supremacy is not violated. The Deputy for the
Military is not a member of the armed forces.
Questions:
1. Can the Ombudsman dismiss employees of other departments or only recommend their
dismissal?
Some decisions stated it is only recommendatory. ButOMB v. Delijero, Oct. 20, 2010:
The Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or
employee is not merely advisory or recommendatory but is actually mandatory.
Implementation of the order imposing the penalty is, however, to be coursed through the proper
officer.
REGARDLESS APPOINTIVE OR ELECTIVE!
Bar Question, 2005, No. 5:
(3.) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with
violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust
judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer
the complaint to the Supreme Court to determine whether an administrative aspect was involved in
the said case. The Ombudsman denied the motion on the ground that no administrative case
against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in
his office. State with reasons whether the Ombudsmans ruling is correct. (4%)
OMBS RULING IS WRONG! NOTE THAT THE COMPLAINT FILED AGAINS THE JUDGE IS
Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment.. IT
HAS RELATION IN THE DISCHARGE OF HIS FUNCTION WITH THAT, IT SHOULD BE
REFERRED FIRST THE MATER TO THE SUPREME COURT!!
Bar Question, 2004, No. 6:
Director WOW failed the lifestyle check conducted by the OMBs Office because WOWs
assets were grossly disproportionate to his salary and allowances. Moreover, some assets
were not included in his SALN. He was charged of graft and corrupt practices and pending
completion of investigation, he was suspended from office for 6 months.
A. Aggrieved, WOW petitioned the CA to annul the preventive suspension order on the ground
that the OMB could only recommend but not impose the suspension. Moreover, according to WOW,
the suspension was
imposed without any notice or hearing, in violation of due process.
Is the petitioners contention meritorious? Discuss briefly. [Also asked in 1996, No. 10b]
OMB HAS THE POWER PLACE THE GOVERNMENT OFFICIAL OR EMPLOYEE UNDER
PREVENTIVE SUSPENSION. IT CAN EVEN SUSPEND OR DISMISS.. IT CANNOT ONLY
RECOMMEND!! AS TO THE REQUIREMENT OF DUE PROCESS, THERE IS NO NEED THAT THE
ISSUES BE JOINED BEFORE A PERSON CAN BE PLACED UNDER PREVENTIVE SUSPENSION
AS DISTINGUISHED TO THAT DISCIPLINE OF LOCAL OFFICIALS.. REFER THIS TO
PREVIOUS DISCUSSIONS!
B. For his part, the OMB moved to dismiss WOWs petition. According to the OMB the evidence
of guilt of WOW is strong, and petitioner has failed to exhaust administrative remedies. WOW
admitted that he filed no motion form reconsideration, but only because the order suspending him
was immediately executory.
Should the motion to dismiss be granted or not? Discuss briefly.
B. Sandiganbayan
I.
ACQUINO- THIS HAS REFERENCE WITH THE ILL GOTTEN WEALTH OF THE MARCOS
FAMILY!! This is the ONLY CIVIL CASE THAT CAN BE HANDLED BY THE
SANDIGANBAYAN.. HENCE, IT IS STILL CORRECT TO SAY THAT THE SANDIGAN
BAYAN IS STILL A SPECIAL CRIMINAL COURT WITH THE SINGLE EXCEPTION OF
EO 1,2,14 AND 14-A (CIVIL CASE)
+
b. Position or Rank of the Offender:
THESE MUST CONCUR!
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
TAKE NOTE HERE THAT THE ENUMERATION ARE NOT EXCLUSIVE! NOTE THAT THERE ARE
2 CATEGORIES THERE, EITHER YOU BELONG TO THOSE WITH SALARY GRADE 27 OR
ABOVE OR YOU BELONG TO THE ENUMERATION!!
THE ENUMERATION THERE DOES NOT PERTAIN ONLY TO SG 27 OR ABOVE AS SOME OF
THEM PERTAIN TO THOSE BELOW SG 27.. WE ARE ALREADY SETTLED HERE HA SO THE
FOLLOWING ARE THE ENUMERATIONS!!!
(c) Officials of the diplomatic service occupying the position of consul and higher;
(NOTE THAT THE APPOINTMENTS OF THESE OFFICIALS REQUIRE THE
CONFIRMATION OF THE COMMISSION ON APPOINTMENTS) CONSUL AND VICE
CONSUL
(d) Philippine army and air force colonels, naval captains, and all officers of
higher rank; (NOTE THAT THE APPOINTMENTS OF THESE OFFICIALS REQUIRE THE
CONFIRMATION OF THE COMMISSION ON APPOINTMENTS)
(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; SO INCLUDED
ARE ALL PROSECUTORS WHETHER CHIEF OR ASSISTANT PROSECUTORS BUT NOT
APA OR OTHERWISE KNOWN AS ASSISTANT PROSECUTION ATTORNEY! THEY ARE
NOT COVERED BECAUSE THEY HAVE LESS THAN 5 YEARS IN THE PRACTICE OF
LAW! THESE APA ARE APPOINTED ONLY BY THE SECRETARY!! AS DISTINGUISHED
TO THE ABOVE ENUMERATED WHO ARE APPOINTED BY THE PRESIDENT!
"(5) All other national and local officials classified as Grade'27'and higher under
the Compensation and Position Classification Act of 1989. THAT IS WHY
MUNICIPAL MAYORS AND OFFICIALS ARE NOW FALLING UNDER SANDIGANBAYAN
JURISDICTION!!
Geduspan v. People, 451 SCRA 187Is the General Manager of Philhealth, who is only Grade 26, under the jurisdiction of the SDGN?
[by express provision of law (g)]
Alzaga v. SDGN, 505 SCRA 849 What about Vice Presidents or Assistants Vice Presidents of
GOCCs? [higher than managers]
YES! THEY ARE HIGHER THAN MANAGERS.. HENCE WITH MORE REASON THEY SHOULD
BE UNDER SANDIGANBAYANS JURISDICTION!!
NOTEWORTHY ALSO IS THAT EVEN IF YOU ONLY A LOWLY GOVERNMENT EMPLOYEE OR
EVEN A CIVILIAN, IF YOU CONSPIRE WITH THESE ENUMERATED OFFICIALS IN THE
COMMISSION OF AN OFFENSE OR CRIME, YOU ALSO FALL UNDER THE JURISDICTION OF
THE SANDIGANBAYAN!!
If less than SG 27, which court has jurisdiction? Same:
a. Not more than 6 years- MTC
b. 6 years and 1 day up- RTC
SO HERE WE NOW FOLLOW THE LAW ON JURISDICTION!!
Appeals:
MTC>>>>>RTC>>>>SDGN>>>SC
NOTE THAT IT DOES NOT PASS THROUGH THE COURT OF APPEALS!!
[Apparently, THESE PROCEDURE IS applicable only where the crimes is included in the
above list.]
MEANING, IF YOU ARE SG IS BELOW 27 OR IS NOT INLCLUDED IN THE ENUMERATED
LIST IN THE PRECEDING SLIDES, YOU END UP WITH REGULAR PROCEDURE.. MTC-RTCCA-SC WE ARE SETTLED WITH THIS NA HA!!!
C. Office of the Special Prosecutor:
RA 6770, Sec. 11:
(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his
prosecution staff. The Office of the Special Prosecutor shall be an organic component
of the Office of the Ombudsman and shall be under the supervision and control of
the Ombudsman.
(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
the authority of the Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan;
SO THEY DO NO APPEAR IN THE RTCS HERE.. THEY ONLY APPEAR BEFORE THE
SANDIGAN BAYAN.. SO THE CASES FILED BY OMBUDSMAN BEFORE THE RTC ARE
95. The Office of the Special Prosecutor may file an information against a public officer for
graft
Sec. 20, RA No. 6770: The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission or omission if it believes that: xxx
(5) The complaint was filed after one year from the occurrence of the act or omission
complained of.
[Jumawan case: it is ONLY permissive.]
NOTE THE WORD MAY SO IT MAY CONDUCT!! IN THE END, IT IS WITHIN THE
DISCRETION OF THE OMB W/N TO CONDUCT NECESSARY INVESTIGATION EVEN IF THE
ACT OR OMISSION COMPLAINED OF OCCURRED MORE THAN 1 YEAR! MOREOVER, NO
PRESCRIPTION IN ADMIN CASES!!
Can there be pardon from conviction in an administrative case?
PD No. 807: (CIVIL SERVICE LAW)
Section 43. Removal of Administrative Penalties or Disabilities. In meritorious cases and upon
TO THE
COURT OF APPEALS
IN THE CASE OF FABIAN, SEC. 27 OF 6770 PROVIDING THE APPEAL OF THE DECISION OF
THE OMB DIRECTLY TO THE SC WAS VOIDED AS IT ADDED THE APPELLATE
JURISDICTION OF THE SC WITHOUT ITS CONSENT.. PREVALING RULING RIGHT NOW IS
THAT ALL DECISION OF THE OMB IN ADMIN/DISCIPLINARY CASES SHALL BE APPEALED
TO THE COURT OF THE APPEALS!!
a. Criminal/Preliminary Investigation law is silent- Certiorari [grave abuse] Rule 65
YOU CAN RAISE IT BEFORE THE SC UNDER RULES 65 ON THE GROUND OF GRAVE ABUSE
OF DISCRETION!! HENCE, VERY DIFFICULT TO OBTAIN REVERSAL!!
d.
2. by others/not be reason of closeness with him (EX. CORONA YOU ARE NOT RELATED TO
MARCOS.. YOU FALL HERE)
Outline:
1. procedure for recovery
2. prescription
EO No. 2. President Aquino (AUTHORIZES TO) freeze all their assets to prevent transfer
and conveyance.
EO No. 14/14A. Authorized the PCGG to file civil and criminal cases and the Sandiganbayan
to assume jurisdiction
= PCGG
-not a constitutional body but allowed by the Constitution to exist
-under the transitory provision, it was allowed to sequester for an additional 18 months, unless
Congress, upon recommendation of the President, authorizes it (SO IT CONTINUES TO EXIST
BUT NOT MORE SEQUESTRATION POWERS)
-allowed to continue old cases and pursue ill-gotten wealth
[Cojuangco v. Roxas, 195 SCRA 799 (1991)]
(WE FOLLOW)
-does not punish possession or acquisition of ill-gotten wealth BUT only (AUTHORIZES)
forfeiture
-RA 3019 provides for the administrative aspect of removal or suspension, not
confiscation
IF YOU HAVE ILL GOTTEN WEALTH, YOU CAN BE PUNISHED UNDER THE ANTI GRAFT
LAW DEPENDING ON HOW YOU ACQUIRE IT!! BUT THERE IS NO PROCEDURE UNDER RA
3019 AS TO THE MANNER OF RECOVERY.. HENCE, YOU HAVE TO GO BACK TO RA 1379
-proceedings is before the RTC where respondent resides. (NOT SANDIGANBAYAN AS
DISTINGUISHED TO THAT ILLGOTTEN WEALTH OF MARCOS)
-reversed presumption applies/prima facie
Some Decisions:
1. Cabal v. Kapunan right against self-incrimination (IN PROCEEDINGS FOR
ILLGOTTEN WEALTH) is a prohibition of inquiry-SAME IN CRIMINAL CASES
2. Katigbak v. Solicitor General prohibition on ex post facto applies- GIVING RETROACTIVE
EFFECT TO FORFEITURE OF ILL GOTTEN WEALTHE WILL BE EX POST FACTO LAW !!
1. Does the right of the state to recover ill-gotten wealth prescribe? NO!
2. Does the right of the state to prosecute crimes involving ill-gotten wealth prescribe?
3. How is prescription computed?
First Question:
1987 Constitution, Art. XI, Sec. 15: The right of the state to recover properties
unlawfully acquired by public officials or employees shall not be barred by prescription.
RA 1379, June 24, 1955
Section 11. Laws on prescription. The laws concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property
unlawfully acquired by him.
IN OTHER WORDS, THERE IS ALREADY A LAW PROVIDING THE IMPRESCRIBTIBILITY ON
THE RECOVERY OF ILLGOTTEN WEATLH.. BUT THE FRAMERS OF THE CONSTITUION HAD
"SECTION 2.
and the institution of judicial proceedings for its investigation and punishment.
NOTE:
WE
prescription be counted?
Held: it is well-nigh impossible for the government, the aggrieved party, to have known the
violations committed at the time of the questioned transaction were made because both parties
to the transaction were allegedly in conspiracy to commit fraud against the government .
The alleged anomalous transactions could only have been discovered after the February 1986
Revolution when one of the original respondents, President Marcos, was ousted from office. Prior
to said date, no person would have dared to question the legality or propriety of those transactions.
which would have been between February 1986 after the EDSA Revolution and 26 May 1987 when
the initiatory complaint was filed.
NOTE THAT HERE IT WAS NOT THE ACTUAL DISCOVERY THAT WAS BEING APPLIED BUT THE
PRESUMPTIVE DISCOVERY!!.. HENCE, THE CASE WAS FILED MORE THAN 15 YEARS FROM
THE COMMISSION OF THE CRIME!!
Law on Plunder-
Committed by any public officer who amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section in the pesos
(P75,000,000.00), aggregate amount or total value of at least Seventy-five million
ELECTION LAWS
K. Election Laws [2012 Bar Exam Syullabus]
2.
3.
4.
5.
1. Suffrage
Qualification and Disqualification of Voters
Registration of Voters
Inclusion and Exclusion Proceedings
Political Parties
6. Candidacy
a. Qualifications of Candidates
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
Kinds of Election:
1. Regular/General provided by the Constitution or by law for the election of public officials
throughout the country, after expiration of the full term of public officials [2nd Monday of May]
2. Special one provided by law under special circumstances, such as:
a) when there was postponement of election
b) when there was failure of election
c) in case of permanent vacancy upon expiration of term. (THIS APPLIES ONLY TO
NATIONAL ELECTIONS NEVER TO LOCAL ELECTIONS WHERE THERE IS PERMANENT
VACANCY IN THE OFFICE OF THE PRESIDENT AND VICE PRESIDENT IN CASE OF DEATH,
INCAPACITY OR DISQUALIFICATION SIMULTANEOUSLY..
d) when some question or proposition is submitted to a vote (this has more reference
with REFERENDUM!)
Election Period: - (REGULAR ELECTION) 90 days before and 30 days after, except in special
ELECTION PERIOD WILL LAST 30 DAYS AFTER THE ELECTION! BUT NOT TO
CAMPAIGN PERIOD SINCE THERE IS NO CAMPAIGN THERE ALREADY AS
DETERMINATION OF W/N YOU WON THE ELECTION IS ALREADY DETERMINED ON
THE ELECTION DAY!!
NOTE:
Other forms of popular participation (SOMETIMES WE CALL THIS ELECTION FOR THE REASON
THAT WE ALSO CAST OUR VOTE IN THIS EVENT!!):
1. Plebiscite
2. Referendum-IT HAS BEEN HELD THAT GENERALLY IT IS CONSULTATIVE IN
CHARACTER.. NOT BINDING
3. Initiative
4. Recall
THESE ARE DIRECTS ACTS OF PARTICIPATION!! THESE ARE EXERCISE OF POLITICAL
RIGHTS-PEOPLES DIRECT PARTICIPATION IN THE AFFAIRS OF THE GOVERNMENT!!
Sanidad v. COMELEC, 73 SCRA 333 (1976)
[Consultative in character] REFERENDUM
Election laws are liberally construed to the end that the will of the people in the choice of public
officers may not be defeated by mere technical objections. (THIS IS THE PRINCIPLE TO BE
APPLIED IN THE INTERPRETATION OF ALL ELECTION LAWSTHIS IS THE CONSTRUCTION OR
BIAS)
IT IS APPLIED IN THE FOLLOWING:
-ballot appreciation- TO ENSURE THAT THE BALLOT IS COUNTED!!
-time to file brief- EVEN IF IT IS DELAYED, THE COURT WILL ACCOMMODATE YOU
-docket fee-LATE PAYMENT OR INSUFFICIENT DOCKET FEE- THE COURT RELAX ITS
(THIS IS THE ONE THAT ORIGINATES IN COURTS!! THIS IS THE ONLY INSTANCE WHERE
THE CASE IS ORIGINALLY FILED IN COURTS BUT APPEALED IN QUASI-JUDICIAL BODY
OR COMELEC!!) AS DISTINGUISHED TO THE NORMAL PROCESS WHERE YOU START IN
COURT AND YOU END UP IN COURT!!!
b. Pre-proclamation qualifications of all candidates [Poe v. COMELEC] (APPLIES FROM
BARANGAY TO THE PRESIDENT) QUALIFICTIONS OF FPJ UPON FILING!! YOU HAVE TO
CHALLENGE IT BEFORE THE COMELEC.. IT HAS THE POWER TO REVIEW THE
QUALIFICATIONS OF ALL CANDIDATES.. SC OR PET CANNOT EVEN DO THAT EXCEPT
AFTER PROCLAMATION!!
c. Decide all questions, except the right to vote, affecting elections [Composition of BOC]
WE WILL LEARN LATER THAT ISSUES ON THE RIGHT TO VOTE SHALL BE DETERMINED
AND DECIDED BEFORE THE MTC!! IT IS WELL PROVIDED IN THE CONSTITUITON TO
ENSURE THAT COMELEC WILL NOT ASSUME JURISDICTION OVER THE SAME ISSUE!!!
d. Issue extraordinary writs [certiorari, prohibition, mandamus] but only in aid of its appellate
jurisdiction
e. punish for contempt
Exercise of Quasi-Judicial Power:
DISTINGUISH THE SAME WITH THE SUPREME COURT ALSO IN THE FOLLOWING!!
Since one member of the division inhibited himself, the Division issued an order
elevating the case to the Commission en banc. Is it valid?
The COMELEC is mandated by the Constitution to decide the case first in division, and
en banc only upon motion for reconsideration. [COMELEC division exercises original
jurisdiction, not the COMELEC en banc.
Can the COMELEC investigate a city prosecutor [a presidential appointee] who served as ViceChair of the BOC for alleged misconduct while serving as such?
USUALLY CITY FISCALS ARE ENJOINED TO SERVE AS VICE CHAIR OF BOC AS DELEGATED
BY THE COMELEC! TAN HERE WAS ACCUSED OF COMMITTING SOME ANOMALIES AND THE
COMELEC CONSEQUENTLY CONDUCTED INVESTIGAITON IN RELATION TO THAT!! HELD:
41. The Commission on Elections is an independent body tasked to enforce all laws relative
to the conduct of elections. Hence, it may
A. conduct two kinds of electoral count: a slow but official count; and a quick but unofficial
count.
B. make an advance and unofficial canvass of election returns through electronic transmission.
C. undertake a separate and unofficial tabulation of the results of the election manually.
D. authorize the citizens arm to use election returns for unofficial count.
REMEMBER THE CASE OF BRILLANTES WHERE THE COMELEC INTENDED TO CONDUCT
UNOFFICIAL COUNT FOR PRESIDENTIAL VOTES!! SC PROHIBITED THE SAME ON THE
GROUND
1. IT CANNOT DISBURSE MONEY WITHOUT APPROPRIATE APPROPRIATION!!
2. 2. CANVASSING OF VOTES FOR PRESIDENT AND VP IS WITHIN THE EXCLUSIVE
DOMAIN OF THE CONGRESS IN JOINT SESSION!!
14.
The Comelec en banc cannot hear and decide a case at first instance
EXCEPT when
60.
SUFFRAGE HERE
IS ONLY A RIGHT!!!
EMPHASIS SHOULD BE PLACED THAT SUFFRAGE ***DOES NOT INCLUDE THE RIGHT TO
BE VOTED FOR. THERE IS NO RIGHT TO BE VOTED FOR AS IT IS ONLY A PRIVILEGE!!
AS DISTINGUISHED FROM THE RIGHT TO VOTE!!
2. Qualification and Disqualification of Voters
I.
in the place wherein they propose to vote for at least 6 months immediately preceding the
election.
No literacy, property or other substantive requirement shall be imposed on the exercise of
suffrage.
1. Citizens of the Philippines
5. Resident of the place where they propose to vote for at least 6 months
RA No. 9189:
An immigrant or a permanent resident
who is recognized as such in the host country,
unless he executes an affidavit
declaring that he shall ***resume actual physical residence in the Philippines not later
than 3 years from approval of his registration.
1. Filipino citizen
2. 18 years old
In all cases,
NOTE THAT THE CONSTITUTION DOES NOT PROVIDE THAT YOU MUST BE A REGISTERED
VOTER BEFORE ONE CAN EXERCISE THE RIGHT TO VOTE!! BUT THAT CAN BE SUSTAINED
THAT IT IS A PROCEDURAL REQUIRMENT NOT A SUBSTANTIVE ONE!!! THE
CONSTITUTION DOES NOT ALLOW THE ADDING OF SUBSTANTIAL REQUIREMENT!!
B.
NO! THERE IS
NO SUCH REQUIREMENT THE LAW ONLY PROVIDES
ELIGIBLE TO RUN FOR A LOCAL OR NATIONAL POSITION)?***
IT APPLIES ONLY
ELECTIVE POSITION!!
***ONLY REGISTRATION IS REQUIRED AND NOT
ACTUAL VOTING!
3.
Registration of Voter
The act of listing the names of qualified voters.
a. Election Officer
b. Most senior public school official
c. Local Civil Registrar
NOTE ALSO THAT THE COMPOSITION OF ELECTION REGISTRATION BOARD IS TOTALLY
DIFFERENT TO THE COMPOSITION OF BOARD OF CANVASSERS!!
3 Prohibitions on Registration:
1. within
Jurisdiction:
Appeals are filed within 5 days with the RTC whose decisions are final and
executory. ****No motion for reconsideration shall be entertained by the courts.
Q: Can the MTC inquire into the citizenship of a voter in an exclusion case?
A: DEFINITELY YES! ONE QUALIFICATION IS YOU MUST BE A FILIPINO
CITIZEN!!!
Q:Is the decision conclusive as to his status?
=NO! IT IS NOT CONCLUSIVE AS TO HIS STATUS BECAUSE SUCH
PROCEEDING
IS SUMMARY IN NATURE!!
*** MEANING IF LATER I FOUND OUT THAT YOU ARE NOT REALLY A FILIPINO CITIZEN,
I AM NOT BARRED FROM FILING A CASE CHALLENGING YOUR CITIZENSHIP!!
On Jan. 18, 1998, however, the Metropolitan Trial Court in Quezon City decided in an
exclusion proceedings that Domino was a resident of Sarangani and ordered the
transfer of his registration to Alabel, Saranggani.
5.
Sec. 6 of RA No. 7941 allows the COMELEC to cancel the registration of national,
regional or sectoral party on the following grounds:
Among the party-list organizations affected for the 2010 election was Philippine
Guardians Brotherhood, Inc. (PGBI). It was de-listed by the COMELEC because it
failed to get 2% of the votes cast in 2004 and it did not participate in the 2007
elections. Is the COMELEC correct?
SC HELD THAT THEY ARE DISQUALIFIED!!! THE PGBI MUST HAVE KNOWN THE
PROVISIONS OF THE LAW THAT:
Some Questions:
1. Is
block-voting
THIS HAPPENED WHERE ALL CANDIDATES OF THE PARTY VOTED AND WON WILL
IS NOT
ALLOWED ANYMORE UNDER THE PRESENT
CONSTITUTION!!
BE DECLARED WINNER IN ONE INSTANCE!!.. ***THIS
2.
Is turn-coatism a crime?
NO!
MERITS:
IF IT IS A GENUINE PARTY,
SO CHANCES ARE MORE IDEAS WILL COME IN WITH THE END VIEW OF
ENRICHING THE POLITICAL SYSTEM OF THE COUNTRY:
6.
Candidacy
a. Qualifications of Candidates
[Disqualifications]
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
(4) Petition to Deny or Cancel Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates
Who is a candidate?
A
candidate is one who seeks or aspires to serve office or privilege or who offers himself
Sec. 79, OEC, Candidate" refers to any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties;
a.
Qualifications:
2. Registered voter of the place where he intends to run (SO THE QUALIFICATION
APPLYING TO A VOTER APPLIES ALSO TO THOSE WHO ARE RUNNING FOR ELECTIVE
POSITION) (OTHERWISE STATED, YOU HAVE TO BE ACTUALLY A REGISTERED VOTER!!
3. Resident for at least one year immediately preceding
HERE MEANS DOMICILE, NOT THAT TEMPORARY ONE)
4. Able to read and write Filipino or any principal dialect (NOTE THAT IN
NATIONAL ELECTIVE POSITION, THERE IS NO REQUIREMENT OF LANGUAGE OR
DIALECT) IF YOU SPEAK ONLY ENGLISH, YOU CANNOT RUN FOR ANY LOCAL ELECTIVE
POSITION.. BUT YOU CAN RUN FOR PRESIDENT!!
5.
Age, as follows:
NOTE:
PRESIDENT- AT LEAST 40
SENATOR-AT LEAST 35
CONGRESSMAN AT LEAST 25
a.
b.
c.
Citizenship:
Frivaldo v. COMELEC, 257 SCRA 727 (1996)
At 2PM of June 30, 1995, Frivaldo took his oath of allegiance as a repatriated Filipino
citizen under PD 725. At 8:30 in the evening of the same date, his opponent who garnered the
second highest number of votes was proclaimed as Governor of Sorsogon. At one point must a
local elective official possess Philippine citizenship?
GOVERNOR?
SC HELD THAT ****IT IS ENOUGH THAT YOU POSSESS OR YOU ARE FILIPINO CITIZEN
ON JUNE 30! NOT ON THE DAY OF ELECTION AND CERTAINLY NOT ON THE DAY OF
FILING OF COC!!!
REASONS:
1. THIS IS PREMISED ON THE FACT THAT THE REQUIREMENT PROVIDED BY THE
LOCAL GOVERNMENT CODE IS ***QUALIFICATIONS OF LOCAL ELECTIVE
OFFICIAL: CITIZEN OF THE PHILIPPINES IT DOES NOT PROVIDE THAT
QUALIFICATION FOR CANDIDATES. HAD THE LATTER BEEN PROVIDED,
FRIVALDO COULD NOT HAVE QUALIFIED SINCE HE MUST BE A FILIPINO CITIZEN
ON UPON FILING OF COC.. YOU CAN ONLY BE CONSIDERED CANDIDATE ONLY
UPON FILING OF CANDIDACY!
2. THE PURPOSE OF THE LAW IS TO*** PROHIBIT ALIEN FROM GOVERNING
= A: YOU ONLY GOVERN ON JUNE 30-THAT IS THE START OF YOU TERM.. SO YOU ARE
NO FILIPINO BY THAT TIME ..WE ARE NOW SETTLED WITH THIS HA!
3. MOREOVER,
FILIPINO CITIZEN ONLY ON THE DAY YOU TAKE YOUR OATH OF ALLEGIANCE!!
NOW, LET US DISECT!
=HE
For purposes of complying with the residency requirement, must the wife and
the husband who are not separated legally or actually have the same domicile?
THIS CASE INVOLVED IMELDA MARCOS WHO WAS MARRIED TO MARCOS, A RESIDENT
OF ILOCOS IS SHE QUALIFIED TO RUN FOR CONGRESSWOMAN IN LEYTE OR IS IT NOT
A FACT THAT THE WIFE FOLLOW THE HUSBANDS DOMICILE PURSUANT TO THE FAMILY
CODE PROVSION?
TEMPORARY,
Kananga, had she reacquired residency for the purpose of satisfying the LGC?
HAD SHE
3.
From 2001 to 2010, Mitra was the Representative for the 2nd District of Palawan.
He was a resident of Puerto Princesa (WHICH IS A LATER CONVERTED INTO HIGHLY
URBANIZED CITY, HENCE VOTERS THEREIN DO NOT VOTE FOR PROVINCIAL
OFFICIALS) which was part of the 2nd District. In March 2007, before the end of his
second term, Puerto Princesa City was reclassified as a highly urbanized city,
and thus ceased to be a component city of the Province of Palawan . The direct legal
consequence of this new status was the ineligibility of Puerto Princesa City residents from
voting for candidates for elective provincial officials. On March 20, 2009, with the intention
of running for the position of Governor, Mitra applied for the transfer of his Voter's
Registration Record from Precinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City, to
Sitio Maligaya, Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He subsequently
filed his COC for the position of Governor of Palawan as a resident of Aborlan. Is he
qualified?
TAKE NOTE HOWEVER THAT IF YOU ARE A CONGRESSMAN AND YOU WANT TO
TRANFER TO ANOTHER DISTRICT, IT MAY RESULT TO FORFEITURE OF YOUR SEAT
IN THE DISTRICT YOU ARE REPRESENTING ON THE PREMISE THAT RESIDENCY IS
A CONTINUING REQUIREMENT THE MOMENT YOU ABANDON YOUR RESIDENCE!!
When Fernandez filed for candidacy as Representative of the First Legislative District of
the Province of Laguna, he indicated his address as Sta. Rosa City, Laguna. However, during
previous elections, when he ran for other positions, he declared Pagsanjan, Laguna, as his
address, which is within the 4th Legislative District. While he won with a margin of
35,000 votes over his closest opponent, the HRET annulled his proclamation for
lack of residency for at least one year before the day of the elections. The HRET
decision, among others, states that a contract of lease with "a fixed period of one
year ... negates the concept of permanency that would suffice to prove
abandonment of respondent's previous residence or domicile at Pagsanjan." To
prove change of domicile, must one purchase property in the new locality? NO
Age:
Garvida v. Sales, 271 SCRA 773 (1997)
Petitioner was born June 11, 1974. On May 6, 1996 she ran and won as chair of the SK. Under
the LGC, members of the Katipunan ng Kabataan have to be 15 but not more than 21, while
officers should not be more than 21 on election day. Is he qualified?
One born on the first day of the year is consequently deemed to be one year old on the 365th
day after his birth -- the last day of the year. In computing years, the first year is reached after
completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle
begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on
and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This
means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this
birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day
of the next 365-day cycle and he turns 22 years old on the 365th day.
IN THE CASE AT BAR. HE IS NO LONGER QUALIFIED HAVING BEEN 21 YEARS AND 6 MONTHS
OLD.. HENCE DISQUALIFIED TO RUN FOR THE SK POSITION!!! NO STANDARD HAS BEEN LAID
DOWN.. CONFUSING!!
[Art. VIII, Sec. 11: Judges and justices shall hold office until they reach the age of 70
years] Grageda Case- HE IS NOT ABLE TO GET HIS RETIREMENT BECAUSE OF AN ADMIN
CASE FILED AGAINST HIM FOR RENDERTING DECISION ON HIS 70TH BIRTHDAY!! OR THE
DAY OF HIS RETIREMENT!!
-1996, No. 9: A, an associate justice of the Supeme Court reached the age of seventy on July 1,
1996 (ACTUAL BIRTHDAY!). There was a case for deliberation on that day where the vote of A was
crucial. Can A hold over the position and participate in the deliberation?
YOU CAN NO LONGER PARTICIPATE IN THE DELIBERATION ON THE DAY HE REACH 70
NO HOLD OVER STATUS THE CONSTITUTION.. ALL POSITIONS ARE DEEMED
TERMINATED EITHER ON YOUR BIRTHDAY OR ON THE EXPIRATION DAY OF YOUR TERM!!
SO APPARENTLY, IT IS THE PRACTICE IN THE JUDICIARY THAT ON THE DAY OF YOUR
BIRTHDAY, YOU ARE ALEADY 70 YEARS OLD! HENCE, NO LONGER ALLOWED TO
PARTICIPATE!! THE IDEA SIMPLY IS THAT NO HOLDOVER IN CONSTITUTIONAL
POSITIONS!!
Disqualifications: (NEGATIVE TRAITS THAT RENDER ONE UNFIT FROM RUNNING PUBLIC
OFFICE)
Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude (even if the
penalty is 30 days) or for an offense punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence; NOTE : VOTING IS WITHIN 5 YEARS
STRANGE.. I CAN RAN AFTER 4 YEARS BUT I CANNOT STILL VOTE AT THAT TIME
ABSURD TO THE PRINCIPLE THAT YOU CAN ONLY RUN FOR PUBLIC OFFICER IF
YOU ARE ALLOWED BY LAW TO VOTE
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(treason, rebellion)
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
Moreno was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and
Four (4) Months. He applied for probation which was granted by the RTC. He was discharged on
Dec. 18, 2000. On July 15, 2002, or less that 2 years after his discharge, he ran for Barangay
Captain on Dec. 20, 2000. The COMELEC disqualified him. Is he qualified?
[Can he run during the period of probation?]
HELD: ONCE YOU APPLIED AND ADMITTED TO PROBATION, YOU ARE QUALIFIED TO
RUN!! THE LAW SAYS THAT YOU CANNOT RUN within two (2) years after serving
sentence NOTE THAT ONCE YOU ARE ADMITTED TO PROBATION, YOU ARE NO LONGER
SERVING SENTENCE!! HENCE, YOU CAN RUN.. YOU CAN EVEN RUN DURING THE PERIOD
OF PROBATION!!
Other Grounds: Sec. 681. Having given money or other material consideration for votes
2. Committed acts of terrorism to enhance candidacy
3. Excessive spending
4. Solicitation, receipt of prohibited contribution
5. Violation of rules on prohibited election propaganda
Removal from Office:
Osorio v. COMELEC, May 6, 2004
Osorio was elected barangay captain in 2002. However, he was previously was found guilty of
dishonesty by the Civil Service Commission (CSC) while holding an appointive office. Does the
disqualification in the Local Government public office. Said CSC decision was final. Does the
disqualification from running in any elective position of those removed from office as a result of an
administrative case apply only those removed from an elective office?
HELD: THE LAW DOES NOT DISTINGUISH!! YOU ARE DISQUALIFIED FROM RUNNING
LOCAL ELECTIVE POSITION ON THE GROUND Those removed from office as a result of
an administrative case;
Grego v. COMELEC, 274 SCRA 486On Oct. 31, 1991, Grego was dismissed from the service by the SC as sheriff with prejudice to
reinstatement to any local or national position. On Jan. 1, 1992, the LGC was enacted
disqualifying persons who had been removed as a result of an administrative case from running for
an elective post. In May 1992, he ran and won as Councilor of Manila. Is he qualified?
YES!! HE IS QUALIFIED.. TAKE NOTE THAT THE LGC TOOK EFFECT ON JANUARY 1, 1992..
HE WAS CONVICTED ON OCTOBER 1991 IT CANNOT BE GIVEN RETROACTIVE EFFECT!!
HENCE, ALLOWED TO RUN AND SERVE THIS DISQUALIFICATION AS A RESULT OF
REMOVAL DUE TO ADMIN CASE APPLIES ONLY UPON THE EFFECTIVITY OF LGC!! NO
RETROACTIVE APPLICATION!!
IF YOU ARE CONVICTED FOR A CRIME, YOU CAN STILL RUN AFTER THE LAPESE OF 2
YEARS FROM SERVICE OF SENTENCE, BUT YOU CAN NO LONGER RUN IF YOU ARE
REMOVED FROM OFFICE IN AN ADMIN CASE!!!
Fugitive from Justice:
Rodriguez v, COMELEC, 259 SCRA 298 (1996):
On June 25, 1985 Rodriguez left the US to return to the Philippinmes. On Nov. 12, 1985, he
was charged before a Los Angeles Municipal Court for grand theft and warrants were issued
against him on the same day. In 1992 and 1995, he run and won as Governor of Quezon Province.
Is he a fugitive from justice?
HELD: NO!! A fugitive from justice includes not only those who flee after conviction to avoid
punishment, but likewise those who, after being charged, flee to avoid prosecution.
IN THE CASE AT BAR, HE WAS ONLY CHARGED AFTER HE FLED!! HE WAS NOT CHARGED WHEN HE
FLED! HE IS QUALIFIED
Green Card-Holder:
Caasi v. COMELEC, 191 SCRA 230 [1996]
Miguel was a green card holder issued by the Immigration of the US. But he was elected as
Mayor of Bolinao, Pangasinan. He claims that he got the green card so that he can freely enter the
country for medical check up and to visit his children. Is he disqualified?
YES! DISQUALIFIED. GREEN CARD IS AN INDICATION THAT YOU ARE A PERMANENT
RESIDENT OF ANOTHER COUNTRY OR US THE PRINCIPLE IS THAT ONCE YOU
ACQUIRED A NEW DOMICILE, YOU ARE DEEMED TO HAVE LOST OR ABANDONED THE OLD
ONE!! A CLEAR VIOLATION OF THE RESIDENCY REQUIREMENT RENDERING HIM
DISQUALIFIED TO RUN AND HOLD ANY ELECTIVE OFFICE!!!
Dual Citizens:
Valles v. COMELEC, Manzano v. COMELEC
THIS REFERS TO DUAL CITIZENSHIP BY BIRTH OR BY SOME OTHER REASON- MERE
FILING OF CERTIFICATE OF CANDIDACY RESULTS TO WAIVER OR RENUNCIATION OF
YOUR OTHER CITIZENSHIP!!
Latest: GR No. 198742, Sobejana-Condon v. COMELEC, August 10, 2012
THIS REFERS TO DUAL CITIZENSHIP UNDER RA 9225- MEANING YOU ARE A FILIPINO
BUT GO NATURALIZED IN ANOTHER COUNTRY AND YOU TOOK OATH OF ALLEGIANCE
UNDER RA 9225 YOU ARE A DUAL- IF YOU RUN FOR PUBLIC OFFICE, YOU ARE ACTUALLY
REQUIRED TO MAKE SWORN RENUNCTION OF YOUR OTHER CITIZENSHIP
Distinction between dual citizens by birth and those who became such under RA No. 9225.
Villaber v. COMELEC, Nov. 15, 2001:
Does conviction for violation of BP Blg. 22 involve Moral Turpitude? YES!.. THAT IS AN
ACT OF DISHONESTY.. YOU CAN EVEN BE DISBARRED FOR VIOLATING BP 22
An act of baseness, vileness, or depravity in the private duties which a man owes his fellow
men, or to society in general, contrary to the accepted and customary rule of right and duty
between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. In In
re Vinzon,the term moral turpitude is considered as encompassing everything which is done
contrary to justice, honesty, or good morals.
Malum prohibitum vs. Mala en se? Illegal cutting of coconuts? Fishing with the use of
dynamite? Concubinage? llegal possession of firearms? Drugs? THE POINT SIMPLY IS THAT
AN OFFENSE OR CRIME CHARACTERIZED AS MALA PROHIBITUM OR MALA INSE IS NOT A
FACTOR TO DETERMINE AS BEING INVOLVING MORAL TURPITUDE!! EX. WHILE
RECKLESS IMPRUDENCE IS PUNISHED UNDER RPC OR CONSIDERED MALA INSE, IT DOES
NOT INVOLVE MORAL TURPITUDE!! IT INVOLVES NO DISHONESTY OR IMMORALITY!!
YOU CAN RUN AFTER HAVING BEEN CONVICTED OF THE SAME!!
ILLEGAL COCONUT-DOES NOT INVOLVE MORAL TURPITUDE
CONCUBINAGE- INVOLVES
ILLEGAL POSSESSION- DOES NOT INVOLVE!
DRUGS- INVOLVES CRIMES AGAINST MORALS!!
(1.) In the May 8, 1995 elections for local officials whose terms were to commence on June
30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of
Governor of Laguna. He won, but his qualifications as an elected official was questioned. It
is admitted that he is a repatriated Filipino citizen and a resident of the Province
of Laguna. To be qualified for the office to which a local official has been elected, when at
the latest should he be:
(b) A resident of the locality? Explain. (5%) AT LEAST 1 YEAR IMMEDIATELY PRECEEDING
THE ELECTION!!
that Ferdie is a green card holder, which in its face identifies Ferdie as a resident alien and on
the back there if is clearly printed: Person identified by this card is entitled to reside
permanently and work in the United States. Jose filed a case to disqualify Ferdie from
assuming the mayorship of Makahoy.
Questions:
(a) Whether or not a greencard is proof that the holder is a permanent resident of the United
States. YES! ONCE YOU ACQUIRED GREEN CARD YOU ARE DEEMED TO HAVE LOST YOU
DOMICILE IN THE PHILIPPINES!!
(b) Whether or not Ferdies act of filing his certificate of candidacy constitutes waiver of his
status as a permanent resident of the United States.
NO! MERE ACT OF FILING COC DOES NOT CONSTITUTE WAIVER OF HER ALIEN
RESIDENCY!! AS DISTINGUISHED TO DUAL CITIZENS (BY BIRTH OR FOR SOME OTHER
REASON) WHO, BY MERE ACT OF FILING COC, SHE IS DEEMED TO HAVE RENOUNCED HER
ALIEN RESIDENCY!!
ELECTION LAWS
Part II
6. Candidacy
a. Qualifications of Candidates
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
(4) Petition to Deny or Cancel Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates
7. Campaign
a. Premature Campaigning
b. Prohibited Contributions
8. Board of Canvassers
9. Remedies and Jurisdiction in Election Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto
10. Prosecution of Election Offenses
b. Filing of Certificates of Candidacy
1. Effect of Filing
Note THAT THE PERIOD OF WHEN TO FILE COC IS NOT GOVERNED BY LAW.. THE
PROMULGATION OR SETTING OF WHICH IS LODGED TO THE COMELEC
Date of Filing: RA 7941, Sec. 7: not later than the day before the date fixed for the
beginning of his campaign period.
OTHERWISE STATED THE PERIOD OF FILING COC MUST BE BEFORE THE CAMPAIGN
PERIOD! IN FACT, EVERY ELECTION, THE COMELEC ISSUES A RESOLUTION PROVIDING
THE DATE OF PERIOD OF FILING COC!!
"Sec. 5. Period for filing Certificate of Candidacy. - The certificate of candidacy shall be filed
from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon, beginning November 20,
2009 up to November 30, 2009, and up to midnight on December 1, 2009, inclusive of Saturdays,
Sundays and Holidays.
BP Blg. 881: EFFECTS OF FILING!
Sec. 66. Candidates holding appointive office or positions. - Any person holding a
public appointive office or position, including active members of the Armed Forces
of the Philippines, and officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
Sec. 67. Candidates holding elective office. - Any elective official, whether national
or local, running for any office other than the one which he is holding in a
permanent capacity, except for President and Vice-President, shall be considered
ipso facto resigned from his office upon the filing of his certificate of candidacy.
ALREADY MODIFIED!!
AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE
ELECTIONS THROUGH FAIR ELECTION PRACTICES
Section 14. Repealing Clause. Section 67 and 85 of the Omnibus Election Code (Batas
Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed.
Is there violation of the equal protection clause? Quinto v. COMELEC, 613 SCRA 385 (2010)
Held: Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in
a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority. Another substantial distinction between the two sets
of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil service, are strictly prohibited
from engaging in any partisan political activity or take part in any election except
to vote. Under the same provision, elective officials, or officers or employees holding
political offices, are obviously expressly allowed to take part in political and electoral
activities.
the day before the election and mid-day of election day, said certificate may be filed with any board
of election inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the Commission.
Rules on Substitution:
A. With a Party
-Substitute must belong to the same party and must be nominated by the same party
-Must file at anytime before midday of the day of election with BEI, or COMELEC for national
positions
B. With No party?
THE LAW DOES NOT SAY ANYTHING IF CANDIDATE HAS NO PARTY, HE CANNOT BE
SUBSTITUTED OR REPLACED BY ANYBODY..
REMEMBER THE DISTINCTION WITH SUBSTITUTION OF SANGGUNIANG BAYAN MEMBERS
WHERE THE PARTY CAN RECOMMEND IF HE IS A MEMBER THEREOF.. IF HE HAS NO
PARTY, THE CONCERNED SANGGUINANG MAY RECOMMEND.. BUT HERE, IF YOU HAVE NO
PARTY, YOU CAN NO LONGER BE SUBSTITUTED!!
Bar Question, 1995, No. 7:
The Vice Mayor of Municipality filed his certificate of candidacy for the same office in the last
elections. The Municipal Mayor was also running for reelection. Both were official candidates of the
same political party. After the last day for the filing of certificates of candidacy, the Mayor died.
(3) Is there any legal impediment to the Vice Mayor running instead as Mayor to replace the
reelectionist Mayor who died?
NO PROBLEM HERE THEY BELONG TO THE SAME PARTY WHAT IS ONLY REQUIRED IS
NOMINATION AND RECOMMENDATION BY THE PARTY FOR THE SUBSTITUTION!! HE MAY
STILL FILE BUT NOT LATER ON THE MIDDAY OF ELECTION DAY!!!
NOTE HOWEVER, IF THE MAYOR DIED ON THE ELECTION DAY AND HE WINS, HE HAS TO
BE PROCLAIMED AND THE VICE MAYOR SHALL ASSUME OFFICE BY SUCCESSION!!
6. (b) 3. Nuisance Candidates
Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified
petition of an interested party, refuse to give due course to or cancel a certificate
of candidacy if it is shown that said certificate has been filed to put the election
process in mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other circumstances or
acts which clearly demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate.
The Commission on Elections refused to give due course to the Certificate of Candidacy
for President of Rev. Elly Velez Pamatong for the 2004 national elections. Along with 35
other candidates, the COMELEC found that he was a nuisance candidate. Did the act of the
COMELEC violate petitioners right to equal access to opportunities for public service under
Held: No. There is no constitutional right to run for or hold a public office. Sec.
26, Art. II of the Constitution neither bestows such a right nor elevates the
privilege to the level of an enforceable right. The provisions under Art. II are
generally considered not self-executing, and there is no plausible reason for
according a different treatment to the equal access provision.
Period- within 5 days from last day of filing. BUT WE FIND NO PROBLEM HERE
BECAUSE THE COMELEC CAN DECLARE A CANDIDATE NUISANCE MUTO PROPIO
Amora Jr. vs. COMELEC, 640 SCRA 273 (2011) May a candidate be disqualified on the ground that
his COC was defectively filed, e.g., only CTC, not a competent evidence of identity as required by
the Notarial Rules of 2004, was presented to the notary?
NO! THAT IS NOT A GROUND TO DISQUALIFY HIM!!
Bar Question, 2011
50. Where a candidate for the Senate stated in his certificate of candidacy that he is single,
when he is very much married, though separated, his certificate of candidacy
A. may be canceled.
b) For Senatorial elections, ninety (90) days before the day of the election, and)
c) For the election of Members of the House of Representatives and local elective
provincial, city and municipal officials forty-five (45) days before the day of the elections.
UNCONSTITUTIONAL- THE CONGRESS CANNOT LENGTHEN THE CAMPAIGN
PERIOD!!! NOTE THAT [Sec. 9, C, Art. IX OF THE CONSTITUTION PROVIDES
ELECTION PERIOD OF 90 days before and 30 days after, except in special cases
which may be fixed by the Commission. IN THE END ACTUALLY, RA 7065
INCREASES THE CAMPAIGN PERIOD LONGER THAN THE ELECTION PERIOD..
WHICH CANNOT BE DONE!!.
February 9 to May 8, 2010 - the election of President, Vice President, Senators and PartyList Representatives; and
March 26 to May 8, 2010 - the election of members of the House of Representatives and
elective provincial, city and municipal officials.
PREMATURE CAMPAIGNING
OEC, Sec. 80. Election campaign or partisan political activity outside campaign period.
- It shall be unlawful for any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period: Provided, That political parties may hold
political conventions or meetings to nominate their official candidates within thirty days
before the commencement of the campaign period and forty-five days for Presidential
and Vice-Presidential election.
Premature Campaigning:
Penera v. COMELEC, G.R. No. 181613, November 25, 2009
Penera filed her COC as Mayor of Sta. Monica, Surigao del Norte. One day before the start of
the campaign period, she conducted motorcade. Is she liable for premature campaigning?
NOTE: YOU CAN ONLY CAMPAIGN DURING THE CAMPAIGN PERIOD LAID DOWN BY THE COMELEC
THROUGH ITS RESOLUTION!!
Held: No. Section 79(a) of the Omnibus Election Code defines a "candidate" as any person
aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The
second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369,
provides that "[a]ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy." The immediately succeeding proviso in the same
third paragraph states that "unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period.
Summary:
1. Premature campaign is the act of campaigning by a candidate before the campaign
period;
2. However, before the campaign period no one can be considered a candidate yet;
3. Therefore, campaigning before the campaign period is not premature campaigning.
[What happened to Osmena?]
TAKE NOTE OBSERVATION!!! THE SC SEEMS TO FORGET THE PRINCIPLE LAID DOWN IN THE
OSMENA CASE WHERE IT WAS RULED THAT YOU CANNOT PASS A LAW INCREASING THE
CAMPAIGN PERIOD BECAUSE YOU ARE ACTUALLY INCREASING THE ELECTION PERIOD!! BUT
WHEN PENERA CASE COME OUT, THE SC SEEMS TO SAY THAT THERE IS NO LONGER A CAMPAIGN
PERIOD!! BECAUSE YOU CAN CAMPAIGN ANYTIME WITHOUT VIOLATING THE PROHIBITION OF
PREMATURE CAMPAIGNING!! IN THE END, THE LAW PROHIBITING THE PREMATURE CAMPAIGNING
WOULD BE RENDERED INUTILE AS IT INDIRECTLY INCREASES THE CAMPAIGN PERIOD WITH NO
MORE PARAMETERS.. IN THE FIRST GLANCE, THERE IS A LAW PROHIBITING IT, BUT IN THE END
b. Prohibited Contributions
BP Blg. 881, Sec. 95-97
(a) Public or private financial institutions: Provided, however, That nothing herein
shall prevent the making of any loan to a candidate or political party by any such
public or private financial institutions legally in the business of lending money,
and that the loan is made in accordance with laws and regulations and in the
ordinary course of business;
(c) Natural and juridical persons who hold contracts or sub-contracts to supply the
government or any of its divisions, subdivisions or instrumentalities, with goods or
services or to perform construction or other works;
(d) Natural and juridical persons who have been granted franchises, incentives,
exemptions, allocations or similar privileges or concessions by the government or
any of its divisions, subdivisions or instrumentalities, including governmentowned or controlled corporations;
Prohibited:
1. financial institutions [banks and lending entities]
2. public utilities and those exploiting natural resources [mining firms]
3. contractors of public works and services
4. those granted franchises, incentives, exemptions, allocations or similar privileges or
concessions
(e) Natural and juridical persons who, within one year prior to the date of the election, have
been granted loans or other accommodations in excess of P100,000 by the government or any of
its divisions, subdivisions or instrumentalities including government-owned or controlled
corporations;
(f) Educational institutions which have received grants of public funds amounting to no less than
P100,000.00;
(g) Officials or employees in the Civil Service, or members of the Armed Forces of the
Philippines; and
(h) Foreigners and foreign corporations.
In the Philippines, are corporations, as such, prohibited from making political donations? NO!
ONLY THOSE PUBLIC UTILITIES, OR ENGAGE IN THE EXPLOITATION OF NATURAL
RESOURCES, OR GRANTED LOANS OR FRANCHISES BY THE GOVERNMENT.. READ
PRECEDING LISTS!!
In the United States---Citizens United v. Federal Election Commission
(2010)- laws prohibiting corporate and union political expenditures were unconstitutional. The US
Supreme Court held that corporation and unions share the first amendment right to free speech
that individuals do under the US Constitution.
- PACs may not make contributions to candidate campaigns or parties, but may engage in
unlimited political spending independently of the campaigns. They can raise funds from
corporations, unions and other groups, and from individuals, without legal limits.
8. Board of Canvassers
Canvass the opening and examination of the election returns and compilation of the
election returns and compilation of a summarized statement showing the result of the election in
a particular area.
PLEASE DO NOT BE CONFUSED CANVASS WITH COUNTING AS THE LATTER IS THE
ACTUAL COUNTING OF VOTES CONDUCTED IN THE PRECINCT..
SO THE PROCEDURE IS THAT YOU HAVE ELECTION RETURNS FROM THE PRECINCTS
WHICH SHALL BE SUBJECT TO CANVASS IN THE MUNICIPALITY SUCH CANVASS SHALL
BE SUBJECT TO CANVASS IN THE PROVINCIAL LEVEL..
Nature of the Canvass: PRINCIPLE GOVERNING CANVASS!!
1. Ministerial - add up the returns and declare a result. As long as they are not forged or
spurious and signed, the Board cannot reject. [mathematical and mechanical]
-voters were bribed? NO! YOU CANNOT CLAIM THAT THE VOTERS WERE BRIBED!!
BECAUSE IT DOES NOT APPEAR ON THE CANVASS!!
-voters were flying voters? NO! IT CANNOT BE CLAIMED IT DOES NOT APPEAR THERE!!
-only evidence is certificate of canvass, it cannot go beyond
BOC EXERCISES ALSO QUASI-JUDICIAL FUNCTION BECAUSE IT CAN DETERMINE W/N
THE ELECTION RETURNS ARE GENUINE! BUT SUCH DETERMINATION HAS TO BE LIMITED
ON THE FACE OF THE RETURN!!
HOWEVER, YOU CAN RAISE BEFORE THE COC THAT THE RETURNS HAS TOO MANY
ERASURES OR ENTRIES THEREIN ARE VERY POOR OR IT HAS NO SIGNATURES OF THE
AUTHORIZED PERSON OR ONE OF THE RETURNS IS FAKE
2. quasi-judicial it can determine if the returns are genuine
-erasures
-no signatures
-2 returns are submitted
3. An ad hoc body, under the control and supervision of the COMELEC
-as such, it can be ordered by the latter to stop the canvassing, annul a proclamation made
by it, or change the members. Courts cannot interfere with its functions.
AD HOC BODY- MEANS IT DISAPPEAR AS SOON AS THE CANVASS IS OVER!! IT EXIST ONLY THE
MOMENT THE CANVASS STARTS AND CEASES WHEN THE SAME OR THE FUNCTIONS ARE
FINISHED!!
Republic Act No. 9369, January 23, 2007 (NEW RULES OF CANVASSING)!!
"SEC. 25. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - The City
or Municipal board of canvassers shall canvass the votes for the president, vice-president, senators,
and parties, organization or coalitions participating under the party-list system by consolidating
the electronically transmitted results contained in the data storage devices used in the
printing of the election returns. Upon completion of the canvass, it shall print the certificate of
canvass of votes for president, vice-president, senators and members of the House of
Representatives and elective provincial officials and thereafter, proclaim the elected city or
municipal officials, as the case may be.
WITH THE PASSAGE OF THE ELECTRONIC VOTING LAW, CANVASS MAY NOW BE DEFINED
AS THE ACT OF consolidating the electronically transmitted results contained in the data
storage devices used in the printing of the election returns..
What will happen is that after the voting ends, part of the machine will be pressed and a
certificate of canvass shall be printed!! Such canvass shall be forwarded to the
municipality.. With that, you can no longer object anymore as the mere pressing the
machine will result to printing of certificate of canvass!! So there can be no more
objections as to such canvass.. Now, CANVASS IS CONSOLIDATING.
Board of Canvassers:
1) Congress for President and Vice-President
-sits in joint public session
-may it be delegated to a Joint Committee? YES
Proclamation? -Pimentel v. Joint Committee of Congress, GR No. 163783, June 22, 2004
HERE THE CONGRESS CREATED A JOINT COMMITTEE AS IT USED TO BE FOR THE
PREVIOUS ELECTIONS..HELD: SC SUSTAINED THE VALIDITY OF SUCH COMMITTEE IT
HAS BEEN STANDARD PRACTICE OF THE CONGRESS!!
RA No. 9369- (CANVASS DONE IN CONGRESS)
"SEC. 28. Congress as the National Board of Canvassers for President and Vice-President. - The
Senate and the House of Representatives in joint public session shall compose the national board
of canvassers for president and vice-president. The certificate of canvass for president and
vice-president duly certified by the board of canvassers of each province or city, shall be
electronically transmitted to the Congress, directed to the president of the Senate. Upon receipt of
the certificates of canvass, the President of the Senate shall, not later than thirty (30) days after
the day of the election, open all the certificates in the presence of the Senate and the House of
representatives in joint public session and the Congress upon determination of the authenticity and
the due execution thereof in the manner provided by law, canvass all the results for president
and vice-president and thereafter, proclaim the winning candidates.
NOTE: THE CANVASSING IN PROVINCE OR CITIES ARE DONE ELECTRONICALLY BY
SIMPLY PRESSING THE MACHINE AND THERE A CERTIFICATE OF CANVASS IS PRINTED!!
HERE IN THE CONGRESS, THEY HAVE TO OPEN THE CERTIFICATES IN THE PRESENCE..
THEY HAVE TO DO IT MANUALLY.. THE REASON IS THE SAME IS CONSTITUTIONALLY
MANDATED..
2. Commission on Elections National Board of Canvassers [including absentee-voting returns]
a. Senators
b. Party-list Representatives
c. ARMM Officials
3. Provincial Board for:
a. Members of the House of Representatives
b. Provincial Officials
Members of the Board:
-Provincial Election Supervisor
-Provincial Prosecutor
-DECS Provincial Superintendent
4. District Board of Canvassers- APPLIES ONLY IN METRO MANILA!!
5. City Board of Canvassers- for city officials
Members:
a. City Election Registrar
b. City Prosecutor
c. Division Superintendent
c. after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, the election results in a failure to elect
2. The failure or suspension of election would affect the result of the election-THIS
USUALLY HAPPEN THE FAILURE OCCURRED ONLY IN ONE PRECINCT!!. DEFINITELY THAT
CANNOT AFFECT THE RESULTS OF THE NATIONAL ELECTION! BUT THERE CAN BE A
FAILURE OF ELECTION IN ONE PRECINCT IN BARANGAY ELECTION SINCE VOTES
RESULTS THERE COULD BE VERY NARROW 1 OR 2 VOTES!!
- 3. The failure was due to force majeure, violence, terrorism, fraud, or other
analogous causes the
Questions:
1. Supposed that after a peaceful voting where a big majority voted, but almost all the PCOS
machines malfunctioned? NO! THERE CAN BE NO FAILURE OF ELECTION! WHILE THERE IS
PCOS MACHINE MALFUNCTIONING, THE VOTES ARE STILL THERE.. IT CAN BE MANUALLY
COUNTED AND TALLIED.. OTHERWISE STATED, THE VOTES CAN STILL BE ASCERTAINED!!
IT IS STILL IN THE BALLOTS!! REQUISITES NO. 1-C DID NOT HAPPEN!!
2. Supposed after a peaceful voting, only 3 people showed up to vote in Tagum City and 2 voted
for you and one for me, is there a failure of election? NO! THERE IS NO FAILURE OF
ELECTION!! YOU WON!! THERE IS NO REQUIREMENT THAT AT LEAST MAJORITY SHOULD
HAVE VOTED OR CAST THEIR VOTES!!.. ELECTION IS DETERMINED BY MAJORITY OF THE
VOTES CAST REGARDLESS OF HOW MANY PEOPLE WHO ACTUALLY VOTED!!
Questions:
1. Who can file a petition?
Any interested party APPARENTLY YOU HAVE TO BE CANDIDATE!!
2. Can the COMELEC declare a failure of election on its own initiative? NO! IT MUST BE AT THE
INSTANCE OF THE INTERESTED PARTY!!
3. In what unit can a failure of election be declared? THERE CAN BE A PRECINCT LEVEL
DECLARATION OF FAILURE OF ELECTION PROVIDED IT CAN AFFECT THE RESULT OF THE
ELECTION!!
c. Pre-Proclamation Controversy
Any question pertaining to or affecting the proceedings of the Board of Canvassers
which may be raised by any candidate or registered political party in relation to the
preparation, transmission, receipt custody and appearance of election returns.
In effect, it is any dispute prior to proclamation but pertaining to decisions of the
Board of Canvassers whether or not to include a return in the canvass or even its
composition.
-appreciation of ballots? IT DOES NOT INCLUDE APPRECIATION OF BALLOTS BECAUSE
SUCH IS DETERMINED IN THE PRECINCT LEVEL!! WHAT YOU DO IN CANVASS HAS ONLY
RELATION TO THE preparation, transmission, receipt custody and appearance of election
returns. YOU SHOULD HAVE RAISED IT IN THE PRECINCT LEVEL WHERE THE COUNTING
AND APPRECIATION OF BALLOTS ARE MADE BUT YOU CAN STILL RAISE THE QUESTION
OF APPRECIATION OF BALLOTS IN AN ELECTION PROTEST!!
(THAT THE ER IS FAKE, FORGERY, OR TAMPERED-THESE ARE PRE-PROC ISSUES IN THE
OLD DAYS.. AFTER THAT THE BOC SET ASIDE THE SUBJECT ER AND THE BOC SHALL RULE
ON THE QUESTION.. IF RULED AGAINST YOU, APPEAL CAN BE HAD WHICH THE COMELEC
SHALL DECIDE)
-nuisance candidate? NOT A PRE PROCLAMATION CONTROVERSY BECAUSE IT DOES
NOT APPEAR ON THE FACE OF THE ER!!!
-qualification? NOT A PRE PROCLAMATION CONTROVERSY BECAUSE IT DOES NOT
APPEAR ON THE FACE OF THE ER!!!
RA No. 9369, SEC.38. Section 15 of Republic Act No.7166 is hereby amended to read as
follows: (MORE RECENT LAW)
"SEC.15. Pre - proclamation Cases in Elections for President, Vice-President, Senator, and
Member of the House of Representatives. - For purpose of the elections for president, vice president, senator, and member of the House of Representatives, no pre-proclamation
cases shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates of canvass,
as the case may be, expect as provided for in Section 30 hereof. However, this does
not preclude the authority of the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct manifest errors in the
certificate of canvass or election before it.
"Any objection on the election return before the city or municipal board of canvassers, or
the municipal certificates of canvass before the provincial board of canvassers or district
board of canvassers in Metro Manila Area, shall specifically notice in the minutes of their
respective proceeding.
RA No. 9369, SEC. 30. Section 31 of Republic Act No. 8436 is hereby amended to read as
follows:
"SEC. 37. Rules and Regulations. - The Commission shall promulgate rules and regulation
for the implementation and enforcement of this Act.
Sec. 24. Issues that may be raised during the consolidation/canvass. Issues affecting the
composition or proceedings of the Boards may be initiated by filing a verified petition before
the Board or directly with the Commission.
If the petition is filed directly with the Board, its decision may be appealed to the
Commission within three (3) days from issuance thereof. However, if commenced directly
with the Commission, the verified petition shall be filed immediately when the board begins
to act illegally, or at the time of the appointment of the member of the board whose
capacity to sit as such is objected to.
SUMMARY
Issues affecting the composition or proceedings of the Boards may be initiated by filing a
verified petition before the Board or directly with the Commission.
Rule 4:
TO DATE, ONLY THE COMELEC CAN APPOINT THE MEMBERS OF THE BOC!!- THIS
CAN BE SUBJECT TO THE ISSUE OF APPOINTMENTS!!
a) precipitate canvassing; (MEANING, THE TIME FOR VOTING HAS NOT YET LAPSE BUT YOU
STARTED TO CANVASS)
b) terrorism;
c) lack of sufficient notice to the members of the BOC's; LAWYERS SHOULD BE NOTIFIED
B. Board of Canvassers
- Questions affecting the preparation, transmission, receipt and custody and appreciation of
election returns and certificates of canvass. THIS CANNOT BE ANYMORE SUBJECT TO PRE-PROC
CONTROVERSY REVIEW WITH OTHER SLIDES!!
Allarde v. COMELEC, ____ SCRA 633
Petitioner filed with the COMELEC A petition for suspension of canvassing and annulment of
results of the canvass on the ground of massive fraud, falsified returns, vote buying, statistical
improbability. Is it proper for a pre-proclamation controversy?
IN THE OLD DAYS, SOME ARE PROPER AND SOME ARE NOT!! FALSIFIED RETURNS
STATISTICAL IMPROBABILITY CAN BE SUBJECT TO PRE-PROCLAMATION CONTROVERSY
AS THESE CAN BE DETERMINE IN THE FACE OF THE ER!! HOWEVER, MASSIVE FRAUD AND
VOTE BUYING CANNOT BE SUBJECT TO THAT AS IT CANNOT BE SEEN IN THE ER!!
2011 Bar Question: 55. Xian and Yani ran for Congressman in the same district. During the
canvassing, Yani objected to several returns which he said were tampered with. The board of
canvassers did not entertain Yani's objections for lack of authority to do so. Yani questions the law
prohibiting the filing of pre-proclamation cases involving the election of Congressmen since the
Constitution grants COMELEC jurisdiction over all pre-proclamation cases, without distinction. Is
Yani correct?
A. Yes, the Constitution grants jurisdiction to COMELEC on all pre-proclamation cases, without
exception.
B. No, COMELECs jurisdiction over pre-proclamation cases pertains only to elections
for regional, provincial, and city officials. EVEN FOR THE POSITIONS OF MAYORS AND
OTHER LOCAL OFFICIALS, THERE IS NO MORE PRE PROCLAMATION CONTROVERSIES
Held: No. Section 15 of Republic Act No. 7166, as amended by Republic Act No. 9369, prohibits
any pre-proclamation case relating to the preparation, transmission, receipt, custody
and appreciation of election returns or certificates of canvass, was prohibited in
elections for President, Vice-President, Senators and Members of the House of
Representatives. Proceedings which may delay the proclamation of the winning candidate beyond
the date set for the beginning of his term of office must be avoided, considering that the effect of
said delay is, in the case of national offices for which there is no hold over, to leave the office
without any incumbent. It may well be true that public policy may occasionally permit the
occurrence of "grab the proclamation and prolong the protest" situations. For those who disagree
with that public policy, the appropriate recourse is not to ask this Court to abandon case law, which
merely interprets faithfully existing statutory norms, to engage in judicial legislation. The remedy
is the ask Congress to amend the law
NO PRE-PROCLAMATION TO THOSE POSITIONS!! EVEN PIMENTEL PREDICATED THE
PREPROC CONTROVERSY ON ILLEGAL PROCEEDINGS, SC DID NOT CONSIDER THE SAME
A valid pre-proc delays proclamation. For how long?
Sec. 17, RA 7166: All pre-proclamation case pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings of the boards of
canvassers concerned shall be deemed affirmed without prejudice to the fling of a regular election
protest by the aggrieved party. However, proceedings may continue when on the basis of evidence
thus far presented the Commission determines that the petition appears meritorious and
accordingly issues an order for the proceedings to continue or when appropriate order ahs been
issued by the Supreme Court in a petition for certiorari.
GENERALLY, ALL PRE-PROCLAMATION CONTROVERSIES ARE DEEMED TERMINATED ON JUNE 3O
WITH THE EXCEPTION OF THE ABOVE!
Exceptions: It may proceed1. when the Commission determines that the petition appears meritorious/issues an
order for the proceedings to continue
2. when an appropriate order has been issued by the Supreme Court in a petition for
certiorari.
Can the COMELEC annul a proclamation?
Duremdes v. COMELEC, 178 SCRA 748:
YES! SINCE THE BOC IS UNDER THE CONTROL OF THE COMELEC, IT CAN ANNUL THE
PROCLAMAITON MADE BY THE FORMER!!
The BOC under the control of the COMELEC. If the proclamation is void, it is as if there is no
proclamation.
[Despite pending protests over some ERs, the Board proclaimed a winner without COMELEC
authority.]
Resolution No. 8804: Rule 4
Section 6. Illegal Proceedings Discovered after Proclamation. - If the illegality of the
proceedings of the BOC is discovered after the official proclamation of the supposed results, a
verified petition to annul the proclamation may be filed before COMELEC within ten (10)
days after the day of proclamation. Upon receipt of the verified petition, the Clerk of the
Commission shall have the same docketed and forthwith issue summons to the parties to be
affected by the petition, with a directive for the latter to file their answer within five (5) days from
receipt. Thereafter the case shall be deemed submitted for resolution, which shall not be later
seven (7) days from receipt of the answer.
Benito v. COMELEC, 235 SCRA 437
While the canvassing was going on, Murad, who was running for Mayor of Balabagan was killed
in an ambush. He won but since he was dead, the Board proclaimed Benito, his opponent. The
COMELEC annulled the proclamation and ordered the Board to make a new COC
indicating that Murad won, but is dead. Correct?
YES!!! REFER TO DANGS RECORDINGS!!
Librados v. Casar, 234 SCRA 13:
To avoid alleged bloodshed and revival of Muslim-Christian conflict and MTC judge in Lanao del
Norte issued an order restraining the canvassing of ER from a precinct until the COMELEC or the
RTC could act on a petition filed. Valid?
NO! THE MTC HAS JURISDICTION TO ISSUE INJUNCITON!! ONLY THE COMELEC CAN
STOP THE PROCEEDINGS OF THE BOC- REFER THIS TO DANGS RECORDINGS!!
Bar Question, 1995, No. 6:
Due to violence and terrorism attending the casting of votes in a municipality in Lanao del Sur
during the last May 8, 1995 elections, it became impossible to hold therein free, orderly and honest
elections. Several candidates for municipal positions withdrew from the race. One candidate for
Mayor petitioned the COMELEC for the postponement of the elections and the holding of special
elections after the causes of such postponement or failure of elections shall have ceased.
1. How many votes of the COMELEC commissioners may be cast to grant the petition? Explain.
IF THE COMELEC DECIDES A CASE IN DIVISION, THE VOTE OF 2 WILL BE BINDING!! IF
THE COMELEC EN BANC DECIDES, THE LEAST NO. OF COMMISSIONERS WHO CAN SIT IS
4.. HENCE THE VOTE OF 3-1 WILL DO!!
2. A person who was not a candidate at the time of the postponement decided to run for an
elective position and filed a certificate of candidacy prior to the special elections. May his certificate
of candidacy be accepted? Explain. NO! THE REASON IS THAT NO PERSON SHALL BE
ALLOWED TO FILE A COC BEYOND THE DEADLINE.. ONLY THOSE WHO WERE ABLE TO
FILE COC ON TIME FOR THE REGULAR ELECTION CAN FILE COC IN CASE THERE IS
SPECIAL ELECTION!!
3. Suppose he ran as a substitute for a candidate who previously withdrew his candidacy, will
your answer be the same? Explain. IT WILL BE DIFFERENT NOW!! THIS IS ONLY THE
INSTANCE WHERE A PERSON SUBSTITUTING ONE WHO WITHDREW HIS CANDIDACY CAN
FILE COC NOT LATER THAN MIDDAY OF THE ELECTION DAY!!
OEC, Sec. 5. Postponement of election. - When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and
other analogous causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of the
election or failure to elect.
WHO CAN FILE?
1. THE COMELEC MOTU PROPIO
2. ANY INTERESTED PARTY UPON VERIFIED PETITION!!
THIS CAN BE DISTINGUISHED FROM FAILURE OF ELECTION WHERE ONLY THE
INTERESTED PARTY UPON VERIFIED COMPLAINT CAN FILE!! THE COMELEC CANNOT
MAKE IT MOTU PROPRIO
See, Cua v. COMELEC, 156 SCRA 582
Votes Required:
1. Division 2/1
2. En Banc -3/2
d. Election Protests:
An election protest (ELECTION CONTEST) proposes to oust the winning candidate from
office. It is strictly a contest between the defeated and the winning candidates, based on the
grounds of electoral frauds and irregularities, to determine who between them has
actually obtained the majority of the legal votes cast and is entitled to hold the office. It
can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for
in the preceding elections. [Lokin v. COMELEC, June 22, 2010]
-it can be pursued only after one candidate has been proclaimed by the appropriate Board of
Canvassers.
TAKE NOTE THE DISTINCTION OF ELECTION PROTEST AND QUO WARRANTO.. BOTH ARE
REMEDIES THAT MAY BE AVAILED ONLY AFTER PROCLAMATION!!
Nature: (OF ELECTION PROTEST)
1. It is neither criminal, nor civil, nor administrative but a special statutory proceedings.
2. It does not involve only the personal interests of rival candidates, but also public interests, as
it involves the determination of the will of the people [no abated by death, [except Poe v. GMA]
(HENCE DEATH DOES NOT RESULT TO ABANDONMENT OF PROTEST WITH THE SINGLE
EXCEPTION IN THE CASE OF POE VS. GMA FOR THE REASON THAT THERE WAS NO VALID
SUBSTITUTION OF THE PERSON OF FPJ BY SUSAN ROCES.)
3. Rules regulating it are liberally construed so that technical and formal objections may be
disregarded to ascertain the will of the people [Kahilan v. Tabalba, 230 SCRA 208]
B. Appellate Jurisdiction
1. MTC and RTC to COMELEC (FROM MTC IS APPEALED DIRECTLY TO COMELEC.. SAME
WITH RTC DIRECT TO THE COMELEC)
RA 6679 which authorizes appeals from MTC to RTC is unconstitutional [Flores v, COMELEC,
184 SCRA 848]
1. MTC to RTC
Cases heard by the MTC involving Kabataang Barangay officials should be to the RTC.
[Mercado v. Board, 243 SCRA 423]
In all cases, appeals to the COMELEC is 5 days. MR is prohibited.
3. COMELEC
Decisions of these agencies may be reviewed by the Supreme Court on certiorari within 30
days as provided in the Constitution.
SET/HRET-60 DAYS BASED ON GRAVE ABUSE OF DISCRETION!!
Grounds for Election Protest:
1. Fraud
2. terrorism, (NOTE THAT YOU CANNOT RAISE TERRORISM IN A PRE-PROC AS THE
BOC HAS POWER TO DETERMINE THE SAME BUT IF YOU LOST, YOU CAN FILE AN
ELECTION PROTEST DEMANDING RECOUNT OR HOLDING OF NEW ELECTIONS!!)
3. Illegal acts committed before, during or after the casting and
4. counting of votes
In an election protest:
1. Can you raise issue to authenticity of ballots? YES! YOU CAN RAISE IT .. YOU CAN EVEN
DEMAND FOR RECOUNT!! IF IT TURNS OUT THAT THE BALLOTS THERE ARE FAKE, YOU
CAN EVEN DEMAND TO EXCLUDE THEM FROM COUNTING
2. That unregistered voters were allowed to vote? YES IT CAN BE DETERMINED!! BECAUSE
ONLY REGISTERD VOTERS CAN VOTE!! FOR INSTANCE, THIS CAN BE DEMONSTRATED AS
WHEN THERE ARE ONLY 200 REGISTERED VOTERS WHEN THERE ARE ACTUALLY 499
VOTERS!!! HENCE, THERE ARE REALLY UNREGISTERED VOTERS THERE, YOU CAN ANNUL
THE RESULT THERE!!!
3. That disqualified people were allowed to register? THIS IS NOT ALLOWED THIS TIME..
NOTE THAT THE LIST OF VOTERS IS CONCLUSIVE!! YOU SHOULD HAVE FILED PETITION
FOR INCLUSION AND EXCLUSION PROCEEDINGS!! THIS CANNOT BE A GROUND FOR
ELECTION PROTEST!! OR ANNULMENT OF LIST OF VOTERS!!
Can there be execution pending appeal? YES!! UNDER Good reasons, under Rule 39 of the Rules
of Court, not COMELEC Rules. Good reasons:
1. Term is about to end;
2. Public interest and
3. Filing of bond [required]
SUPPOSE I LOST THE ELECTION, AND I FILED AN ELECTION PROTEST BEFORE THE
COMELEC WHERE IT WAS RULED THAT I WON.. OBVIOUSLY YOU WILL APPEAL THIS
TIME I CAN FILE A PETITION FOR EXECUTION PENDING APPEAL SO THAT I CAN HOLD
THE POSITION BEING DECLARED THE WINNER IN THE PROTEST!!
When to file? During period to file an appeal only. Relampagos v. Cumba, 243 SCRA 690.. IF
THE COMELEC RENDERS THAT DECISION, YOU CAN ONLY FILE THE PETITION THERE!!
YOU FILE IT BEFORE THE TRIBUNAL WHICH RENDERED THE DECISION IN FAVOR OF
YOU!!! YOU CANNOT FILE IT AFTER THE LAPSE OF PERIOD TO APPEAL!!
PET Rules: Rule 14.
Election protest.
Quo warranto.
- A verified petition for quo warranto contesting the election of the President or VicePresident on the ground of ineligibility or disloyalty to the Republic of the Philippines
may be filed by any registered voter who has voted in the election concerned within ten
days after the proclamation of the winner. (R15a)
RULE 15.Quo Warranto. A verified petition for quo warranto contesting the
The objective of the action is to unseat the ineligible person from the office, but not
to install the petitioner in his place.
***Any voter may initiate the action, which is, strictly speaking, not
a contest where the parties strive for supremacy. [Lokin v. COMELEC, June 22,
2010] [3 other situations were quo warranto is proper]
UNDER THE RULES ON SPECIAL PROCEEDINGS,
NOTE:
ALSO THAT IN
-vote-buying
-illegal
election propaganda
Questions:
1. Can you file both? Luison v. Garcia, May 20, 1957 YES! EP AND QW CAN BE FILED
SIMULTANEOUSLY BECAUSE ASIDE FROM THE FACT THAT YOU CHEATED DURING THE
ELECTIONS, YOU ARE ALSO DISQUALIFIED TO HOLD SUCH OFFICE!!
2. Can you join them? De la Rosa v. Yonson, 52 Phils. 446 NO! YOU HAVE TO FILE THEM
SEPARATELY!!
3. What happens if you join them? Pascal v. Ramos, 81 Phil 30. YOU WILL BE ORDERED TO
SPLIT THE TWO DIFFERENT CAUSES OF ACTION!!
Periods:
The period to file a petition (10 DAYS) for quo warranto or
election protest is suspended by:
1. a valid pre-proclamation controversy
2. petition to suspend or annul proclamation.
Period: Frivaldo v. COMELEC,
The period (OF 10 DAYS FROM PROCLAMATION) may not be observed where the ground is:
1. arose after proclamation; or (THIS HAPPENS WHEN A SENATOR IN THE MIDDLE OF
HIS TERM ACQUIRED FOREIGN CITIZENSHIP.. HERE THE PERIOD OBVIOUSLY DO NOT
APPLY AND NOTE THAT THE REQUIREMENT OF CITIZENSHIP IS A CONTINUING
REQUIREMENT)
2. evidence is discovered late.(THIS HAPPENS WHEN YOU HAVE BEEN ALIEN ALL ALONG
BUT IT WAS ONLY DISCOVERED AFTER PROCLAMATION OR IN THE MIDDLE OF YOUR
TERM) THE REQUIREMENT OF CITIZENSHIP IS A CONTINUING REQUIREMENT
Limkaichong v. COMELEC, 583 SCRA 1 (2009) (PERIOD OF 10 DAYS Does not apply to
citizenship (AS WELL AS RESIDENCY AS THESE ARE CONTINUING REQUIREMENTS).
Loong v. COMELEC, 216 SCRA 768 (1992) DOES NOT APPLY TO OR not to disloyalty to the
Republic ..HOWEVER, [THE PERIOD APPLIES TO age]-AFTER THE LAPSE OF 10 DAYS, YOU
CANNOT FILE IT ANYMORE!!
Effect of proclamation on petition for disqualification:
1. All pending appeals with the Supreme Court/COMELEC are dismissed if they involve members
of Congress or the President and Vice-President; THE PRINCIPLE HERE IS THAT SET, HRET OR
THE PET IS THE SOLE JUDGE ON MATTERS RELATING TO THE QUALIFICATIONS OF
MEMBERS OF CONGRESS OR THE PRESIDENT OR VP AFTER HAVING BEEN PROCLAIMED
AS THE CASE MAY BE!! SUCH CASES SHALL HAVE TO BE DISMISSED AND A NEW
PETITION SHALL BE FILED WITH THE PROPER TRIBUNAL
2. Those before the COMELEC and the Supreme Court involving local officials?
IN THE ABSENCE OF THE LAW PROVIDING A SOLE JUDGE ON SUCH MATTERS RELATING
TO DISQUALIFICATION OF A LOCAL ELECTIVE OFFICIAL, IT IS BELIEVED THAT THE
PENDING DISQUALIFICATION CASE BEFORE THE COMELEC SHALL CONTINUE!!
Supreme Court Rules on Election Protests/Quo Warranto before MTC and RTC
SEC. 10. COMELEC judgment in disqualification case. - A decision of the Commission on
Elections, either in division or en banc, in a disqualification case shall not bar the filing of a
petition for quo warranto based on the same ground, except when the Supreme Court
has affirmed the COMELEC decision.
MEANING THE DECISION OF THE COMELEC DOES NOT CONSTITUTE RES JUDICATA!! NOTE THE
EXCEPTION!!
4. ______________________
Despite lingering questions about his Filipino citizenship
and his one-year residence in the district, Gabriel filed his certificate of candidacy for
congressman before the deadline set by law. His opponent, Vito, filed a case to disqualify
him before the Commission on Election. The COMELEC decided in Gabriels favor, which
decision became final. During the election, Gabriel won. Vito filed a case before the House
of Representatives Electoral Tribunal raising the same issues of citizenship and residency.
The HRET should: [2 points]
a. Dismiss the case for lack of jurisdiction
b. Dismiss the case for forum shopping
c. Refer the case to the Supreme Court
d. Assume jurisdiction because it is the sole judge of such
contests
Gonzales v. COMELEC, 644 SCRA 761 (2011) Ineligibility of the candidate receiving
the highest number of votes does not entitle the one getting the second highest
number of votes. Exception is allowed if the two requisites are present:
1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the realm of
notoriety, but would nonetheless cast their votes in favor of the ineligible candidate.
NOTORIOUS OR WIDELY KNOWN TO BE DISUALIFIED AND YET ELECTORATES
STILL VOTED FOR HIM!!
FOR EXAMPLE, WE KNOW PACQUIAO IS ONLY 32 YEARS OLD BUT HE RAN FOR VICE
PRESIDENT AND WON THIS TIME, IF HE IS DECLARED DISQUALIFIED, THE ONE
RECEIVING THE HIGHEST NUMBER OF VOTES IS ENTITLED TO SUCH POSITION!!
Can one obtain damages in an election protest or quo warranto?
1. Moral damages? [metal anguish, sleepless nights, besmirched reputation] NEVER!!!
2. Actual damages? expenses, attorneys fees in accordance with law YES HE IS ALLOWED
WITH THIS IN ACCORDANCE WITH THE CIVIL CODE!
Malaluan v. COMELEC, 254 SCRA 400 (1996)
Bar Question, 2006: No. 5
Differentiate an election protest from an action for quo warranto. 2.5% REFER TO THE
DISTINCTION LAID DOWN BY THE AUTHORITY!!
Bar Question, 2001: No. XVII
Under the Omnibus Election Code, briefly differentiate an election protest from a quo warranto
case, as to who can file the case, and the respective grounds therefor.
1. As to ground, election protest pertains to disputes connected with the conduct of
election, counting of votes, and canvass of votes, while QW pertains to the eligibility of the
winning candidate sought to be disqualified; (IF THERE IS NO PROCLAMATION, THE
REMEDY IS DISQUALIFICATION)!
2. As to who can initiate, an election protest can be filed only by a losing candidate, but a
quo warranto may be filed by a candidate or a voter;
3. As to effect, an election protest can result to the proclamation of the protestant, but a
quo warrantO cannot result to proclamation of the person who filed the case.
Bar Question, 1997, No. 17:
State how (a) pre-proclamation controversies, on the one hand, and (b) election protests, on
the other hand, are initiated, heard and finally resolved.
1. THE FORMER IS FILED BEFORE PROCLAMATION WHILE THE LATTER MUST BE
FILED AFTER PROCLAMATION!!
2. YOU FILE A PROCLAMATION BEFORE THE BOC OR THE COMELEC AS SOON AS THE
GROUND BECOMES APPARENT WHILE THE LATTER MUST BE FILED BEFORE THE
MTC, RTC COMELEC AS THE CASE MAY BE
(2.) Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and
1998. He fully served his first two terms, and during his third term, the municipality was
converted into the component City of Tuba. The said charter provided for a hold-over and so
without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In the 2001
elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed,
though, that he had already served for three consecutive terms as elected Mayor when Tuba
was still a municipality. He also stated in his certificate of candidacy that he is
running for the position of Mayor for the first time now that Tuba is a city. Reyes,
an adversary, ran against Manuel and petitioned that he be disqualified because he had
already served for three consecutive terms as Mayor. The petition was not timely acted
upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after Manuel took his oath and
assumed office that the COMELEC ruled that he was disqualified for having ran and served
for three consecutive terms. (NOTE THAT THE DISQUALIFICATION CONTINUES THE
PROCLAMATION OF MANUEL DID NOT RENDER THE PETITION MOOT AND
ACADEMIC)
(c) Assuming that Manuel is not an eligible candidate, rebut Reyes claim that he should be
proclaimed as winner having received the next higher number of votes. (5%)HELD: IT
HAS BEEN SETTLED THAT Ineligibility of the candidate receiving the highest
number of votes does not entitle the one getting the second highest number of
votes. Exception is allowed if the two requisites are present:
1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the
realm of notoriety, but would nonetheless cast their votes in favor of the ineligible
candidate
IN THE CASE AT BAR, THE DISQUALIFICATION OF MANUEL IS NOT REALLY THAT
NOTORIOUS AS TO BE CONSIDERED AN EXCEPTION TO THE GENERAL RULE!
Bar Question, 1996, No. 13:
A and B were the only candidates for mayor of Bagaa, Bulacan, in the 1995 local elections. A
obtained 10,000 votes as against 3,000 votes of B. In the same elections, X got the highest
number of votes among the candidates for SB of the same town. A died on the day before his
proclamation.
(1) Who should the Board of Canvassers proclaim as elected mayor, A, B or X. THE BOC
SHOULD PROCLAIM A AS MAYOR THE RULE IS THAT IF THE RESULTS HAS BEEN
ALREADY DETERMINED AND THE WINNER DIES BEFORE HE COULD BE PROCLAIMED
THE BOC MUST PROCLAIM THE WINNER OR THAT DEAD PERSON AND INDICATE THAT HE
DIED
(2) Who is entitled to discharge the office of the mayor, B or X? IT WILL BE NOW THE
ELECTED VICE MAYOR WHO IS ENTITLED TO DISCHARGE THE OFFICE OF THE MAYOR BY
VIRTUE OF SUCCESSION!!
IT HAS BEEN SETTLED THAT Ineligibility of the candidate receiving the highest
number of votes does not entitle the one getting the second highest number of
votes. Exception is allowed if the two requisites are present:
1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the
realm of notoriety, but would nonetheless cast their votes in favor of the ineligible
candidate
Bar Question, 2008: - X - The 1st Legislative District of South Cotabato is composed of
General Santos and three municipalities including Polomolok. During the canvassing
proceedings before the District Board of Canvassers in connection with the 2007
congressional election, candidate MP objected to the certificate pf canvass for
Polomolok on the ground that it was obviously manufactured, submitting as
evidence the affidavit of a mayoralty candidate of Polomolok. The certificate of
canvass for General Santos was likewise objected to by MP on the basis of the confirmed
report of the local NAMFREL that 10 election returns from non-existent precincts were
included in the certificate. MP moved that the certificate of canvass for General Santos be
corrected to exclude the the result from the non-existent precincts. The District Board of
Canvassers denied both objections and ruled to include the certificate of canvass. May MP
appeal the rulings to the COMELEC? Explain. (6%)
(a) As counsel for a protestant, where will you file an election protest involving a contested
elective position in:
1. the barangay? MTC
2. the municipality RTC
3. the province COMELEC
4. the city COMELEC (NOTE THERE IS NO MORE DISTINCTION W/N IT IS A
INDEPENDENT COMPONENT CITY OR HIGHLY URBANIZED CITY)
5. the House of Representatives HRET
(b) Give 3 issues that can properly be raised and brought in a pre-proclamation contest.
1. ILLEGAL COMPOSITIONS OF THE BOARD AND
2. ILLEGAL PROCEEDINGS OF THE BOARD!!
10. Prosecution of Election Offenses
NOTE AS TO WHEN CAN THEY BE COMMITTED HAS NOT BEEN UNIFORMED!
AS WHEN TRANSFER OF OFFICER, CARRYING OF FIREARMS APPLIES TO ELECTION PERIOD!!
But see, RA No. 9369, SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follow: (NEW LAW)!!
"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers,
have the power, concurrent with the other prosecuting arms of the government, to
conduct preliminary investigation of all election offenses punishable under this Code, and
prosecute the same"
51. A candidate who commits vote buying on Election Day itself shall be prosecuted by the
A. COMELEC.
B. Secretary of Justice.
C. police and other law enforcement agencies.
D. City or Provincial Prosecutor.
NOTE THAT THE POWER TO PROSECUTE ELECTION OFFENSE OF THE COMELEC IS NOW
CONCURRENT WITH THE PROSECUTING ARMS OF THE GOVERNMENT!!
Thank you again JUDGE GIL DE LA BANDA!!!!!