TP NOTES EPA Part1 PDF

ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
PART 1 Administrative law consists of

pertinent provisions of the Constitution,
ADMINISTRATIVE LAW special legislation, 1987 Administrative
Code and the Revised Administrative
CHAPTER 1 Code
INTRODUCTORY Note: The special legislations prevail
over the two codes.
1.01 Scope Administrative Functions- involve the
regulation and control over the conduct
Part 1- Administrative Law and affair of individual for their own
welfare and promulgation of rules and
Part 2- Law on Public Officers
regulations to better carry out the policy
Part 3- Election Law of the legislature or such devolved upon
the administrative agency by the organic
1.02 Generally law of its existence. (In Re: Rodolfu
Administrative law embraces all the Manzano, 166 SCRA 246)
law that controls, or is intended to 1.04 Administrative Framework
control the administrative operations of The apex of the administrative
government. (1987 Administrative Code framework is the REPUBLIC OF THE
of the Philippines) It covers both internal PHILIPPINES. The GOVERNMENT OF
and external administration. THE RP refers to the corporate
Internal administration considers the governmental entity through which the
legal aspects of public administration as functions of government are exercised
legal concern throughout the country. Government
External administration refers to the includes agencies and instrumentalities.
legal relations between administrative
authorities and private interest. AGENCY, various units of
The chief concern of administrative law Government (Department, Bureau,
is the protection of private rights, the Office, Instrumentality,
subject of which is the nature and mode GOCC,LGU)
of exercise of administrative power and
the system of relief against INSTRUMENTALITIES, any
administrative action. agency of the National
Government; anything used as
1.03 Kinds of Administrative Law means or agency.
Four Kinds of Administrative Law
Agencies and instrumentalities of the
i. Statutes setting up
government are either incorporated or
administrative authorities
non-incorporated,
ii. Decisions and doctrines dealing
INCORPORATED- with or
with the creation of and
without capital, vested by law
regulation of administrative
with juridical personality
authorities
distinct from the Republic; ex.
iii. Rules, regulations or orders of
NPC, PPA, NHA, PNOC
such administrative authorities
Expiration of term:
iv. Determinations, decisions and
Depends on the
orders in settlement of
charter of agency and
1
controversies
Page
as supplement,
Corporation code 1.06 Power to reorganize includes power
NON-INCORPORATED to create or abolish office
agencies or instrumentalities- The legislature delegates to the
no juridical personality distinct President the power to create or abolish
from the Republic; ex. Sugar offices through reorganization.
Regulatory Administration REORGANIZATION, process of
Expiration of term: restructuring the bureaucracy’s
assumed by the RP organizational and functional set up.
This applies to all offices except those
CHARTERED INSTITUTION agency created under Constitution.
organized and operating under specific
charter; includes state universities and 1.07 Reasons for creation of
colleges administrative agencies
ADMINISTRATIVE AGENCIES-
ADMINISTRATION refers to the charged with administering and
aggregate of those persons in whose implementing particular regulations
hand the reins of government for the Reasons for creation
time being. 1. Unclog court dockets
2. Meet the complexity of growing
1.05 Creation and abolition of agencies society
PUBLIC OFFICE- right, authority and 3. Regulation of Ramified activities
duty created and conferred by law by 4. Entrust to specialized agencies in
which for a given period either fixed by specific fields.
law or enduring at the pleasure of the
appointing power an individual is
Congress’ Reasons:
invested with some portion of the
1. Agencies wherein the government is
sovereign functions of the government,
offering some gratuity
to be exercised by that individual for the
2. Agencies seeking carry out certain
benefit of the public
governmental functions
TWO FUNCTIONS:
3. Agencies performing some business
i. Functional unit
service in the public
ii. position held or occupied by
4. Agencies seeking to regulate
individual person
business affected with public interest
Public Office is created by:
5. Agencies regulating the public
a. Constitution (President,
interest and private individuals
ConCom,NEDA)
6. Agencies seeking to adjust individual
b. Statutes (all administrative
controversies
agencies)
7. Agencies seeking to conduct
Note: Primarily, creation of public
investigation and gather evidence and
office is a legislative function. It is
information, and recommendation of
discretionary upon the legislative
crimes
department the creation of additional
offices.
c. Officer or tribunal to which the power
to create the office has been
2
Page
delegated by legislature
Garments and Textile Export Board v CA:

CHAPTER II The power to adjudicate on the question of
an entity’s entitlement to export allocations
was expressly granted by GTEF was
POWER OF ADMINISTRATIVE necessarily implied from the power to cancel
AGENCIES or suspend quota allocations is beyond cavil.
GSIS v CSC: Unless the law otherwise
2. 08 Generally provides, the authority to decide cases is
Administrative agencies fall under executive inutile unless accompanied by the authority
department. They are distinct department of to see what has been decided is carried.
the government. They have powers which
are administrative or ministerial and quasi
legislative or quasi ministerial. They only C. MINISTERIAL AND DISCRETIONARY
have such power pwers are expressly POWER
granted to them by law and those that are
necessary implied in the given thereof. 2.12 Ministerial power.
A ministerial duty is one which is so clear and
2.09 Vesture of powers liberally construed specific as to leave no room for the exercise
Whether an administrative agency has of discretion in its performance.
certain powers, the inquiry should be from
the law itself and the authority given should 2.13 Distinction between Ministerial and
be construed in the light of purposes it was Discretionary power.
created. It is accorded to them to discharge
their assigned duties in accordance with A discretionary power is that which by its
legislative purpose or intent. nature requires the exercise of judgment.
The distinction is important to determine the
The powers of executive or administrative remedy may be availed of by an aggrieved
agencies are either express or implied, party against the nonperformance of duty by
discretionary and ministerial or directory and the officer.
mandatory.
Ministerial-mandamus
B. EXPRESS AND IMPLIED POWERS Discretionary- petition for certiorari.
2.10 Generally
2.14 Discretionary power.
Public Official possess powers not rights.
There must be a grant of authority, whether Discretion, mean a power or right conferred
express or implied, to justify any action taken upon them by law of acting officially, under
by them. A public official must locate in the certain circumstances, uncontrolled by the
statute relied upon a grant of power before judgment or conscience of others.
he can exercise it. It need not be express. It Discretionary powers cannot be delegated.
may be implied from the wording of the law.
D. MANDATORY AND PERMISSIVE

2.11 Grant of Jurisdiction and what is DUTIES
implied therefrom
2.15 Generally
Jurisdiction is conferred only by the The question whether it is permissive or not
Constitution or by Statute. It cannot be depends upon the kind of statute which
3
implied from the language of the statute. granted such power

Page
2.16 Mandatory and directory powers, E.ERRORS IN THE EXERCISE OF

generally. POWERS
Mandatory statute is a statute which
command either positively that something be 2.19 Government not bound by errors of
not done. It contains words of command or public officers
prohibition, the omission to follow renders the
proceeding void or illegal. The state authorizes only legal acts by its
A directory statute, statute which is officers. Unauthorized acts of government
permissive or discretionary in nature and officials are not acts of the state and an
merely outlines the act to be done in such action against the officials by one whose
way that no injury can result from ignoring it. rights have been invaded or violated by such
act for the protection of his rights, not a suit
2.17 When mandatory or directory against the state within the rule of immunity
of the state from the suit.
There is no universal rule or test to determine
when mandatory or directory. The primary 2.20 Government is not estopped by
object is to determin legislative intent. Words mistakes of officers.
of permissive character may be given a
mandatory significance in order to effect the The government can subsequently correct
legislative intent. the mistake or the erroneous application of
the law. A person acquires no vested right in
The language of statute, however mandatory such mistake
in for, may be deemed directory whether the
legislative purpose can be best carried out by 2.21 Presumption of regularity
such construction. Acts done in the performance of official
On the other hand, a provison relating to the duties are protected by the presumption of
essence of the thing to be done, that is to good faith and even mistakes committed by
matters of substance, is mandatory, and such public officers are not actionable as
when a fair interpretation of a statut, which long as it is not shown that they were
direct acts or proceedings to be done in a motivated by malice or gross negligence
certain way shows that the legislature amounting to bad faith.
intended a compliance with such provision to
be essential to the validity of the act or
proceeding or when some antecedent and
prerequisite conditions must exist prior to the
exercise of the power or must be performed
before certain other powers can be
exercised, the statue must be regarded as
mandatory.
2.18 Test to determine nature of statute

and that of power
If no substantial rights depend on it and no
injury can result from ignoring it and the
purpose of the legislature can be
accomplished in a manner other than that
prescribed and substantially the same result
obtained, then the statute will be generally be
directory but if not, it will be mandatory
4
Page
CHAPTER III The president can supplant the rules by

another set entirely different from those
issued by his subordinates.
POWER OF CONTROL, The President power of contro includes the
SUPERVISION AND power to detail an executive officer in the OP.
INVESTIGATION The act of the president cannot be
countermanded by a Dept. Secretary
A. PRESIDENT AS CHIEF EXECUTIVE
AND ADMINISTRATIVE OFFICER 3.25. Doctrine of qualified political agency
3.22. Generally All executive and administrative

President and executive/administrative organizations are adjuncts of the Executive
agencies are granted powers and functions Department, heads of various department
by the Constitution or by statutes to enforce are assistants and agents of the Chief
the laws and to carry out governmental Executive, except in cases where the Chief
functions and policies Exec. Is required by the Constitution or law to
act in person or the exigencies of the
3.23 Executive power of the president. situation demand that he act personally.
President is the Chief administrative Officer 3.26 By Authority of the President.

Administrative power is an adjunct and is Executive Secretary or his deputy or his
designed to complement the effective assistants, acts not for himself but for the
exercise of executive power vested in the president. He can modify, alter, set aside
President. Administrative power of the acts or rulings of a department secretary as
President can be implied by its executive he acts for and on behalf of the President.
power.
3,27 Limitations on the President’s
Marcos v Manglapus, Executive power of the control power
presidents a. power of control; b. power to
execute the laws; c. appointing power; d. The power of control does not include the
commander in chief; e. power to grant following:
reprieves, commutations and pardons; f; 1. The abolition or creation of an
power to grant amnesty; g. power to contract executive office
foreign loans; h. power to enter into treaties; 2. Suspension or removal of career
i. power to submit budget to Congress and j. executive official or employees
power to address the congress without due process of law
3. Setting aside, modification or
3.24 President’s power of control
Means power to alter, modify or nullify or set supplanting of decisions of quasi-
aside what a subordinate officer had done in judicial agencies, including that of the
the performance of his duties and substitute Office or the President
his judgment. It said to be the very heart of GR: Erroneous construction of a law by
the meaning of Chief Executive. administrative officer whose duty is to
enforce it may not give rise to a vested
Araneta v Gatmaitan: SC ruled that since the right
Sec. of Agriculture was empowered to XPN. When he acted in good faith and a
regulate or ban fishing by trawl, the person complies with what the law
President, in the exercise of his power of requires as construed by the officer.
5
control can take over from him such authority

Page
and issue the executive order to exercise it.

Ang-Angco v Castillo: power of control a. Act directly whenever a specific

merely applies to the exercise of control over function is entrusted by law or
the acts of subordinate official and not over regulation to a subordinate
the actor/agent himself of the act. b. Direct the performance of duty
c. Review, approve, reverse or modify
Villaluz v Zaldivar: Being a presidential acts and decisions of officials
appointee belongs to the non-competitive or
d. Determine priorities in the execution
unclassified service of the government and
of plans
as such he can only be investigated and
removed from office after due hearing by the e. Prescribe standards, guidelines and
President plans
Power to remove is inherent in the power to Specifically, administrative supervision is
appoint. limited to the authority of department or
its equivalent to:
Camarines Norte Electric Coop Inc v Torres: a. Oversee the operation of such
The office of the president can no longer
agency
reconsider or modify its final decision as it
has lost jurisdiction. Same is true with regard b. Require the submission of reports
to decisions of quasi-judicial agencies and cause conduct
c. Take necessary actions for the
3.28 President’s power of supervision performance of official functions
Attachment- means lateral relationship
It refers to overseeing or the power to see
between the department and the attached
that the officials concerned performed their
agency or corporation for purposes of policy
duties and if they later fail or neglect to fulfill
and program coordination.
them to take such action or steps as
prescribed the law to make them perform
Phil Gamefoul Commission v IAC: PGC has
their duties.
no power of control.
Rodriguez v Montinola: the power of general
B. POWER OF INVESTIGATION
supervision granted by the President, in the
absence of express provision of law, may not
3.30 Generally.
generally be interpreted to mean that he or
his alter ego.
Investigatory/Inquisitorial, granted by
constitution or legislature.
Taule v Santos: The fundamental lw permits
Investigatory power of some agency is
the CE to wield no more authority than that of
limited only to information gathering or to
checking whether said LG officers thereof
focus public opinion on matters of public
perform their duties as provided by statutory
concern (Human Rights Com)
enactments. Hence, president cannot
Some are limited in the regulation of private
interfere with the LGU so long its officer acts
corporations (SEC)
within the scope.
3.31 Notice and Hearing
3.29 Control, supervision and review by
other executive officials
The right for notice and hearing cannot be
ignored if the law provides for it. If the law is
Control- power to alter modify xxxx
silent, a person is entitled for due process or
Supervision- overseeing or power to see
to notice and hearing depends upon the
Review- reconsideration or re-examination
stage during which the investigation is
6
for purpose of correction

Page
Supervision and control include only:

conducted and the possible consequences to powers of an administrative body which

him of the outcome of investigation better enables it to exercise its quasi judicial
authority. It consists of gathering, organizing
3. 32 Executive power of investigation and analyzing evidence.
President has the power to order the conduct The public officer is not entitled to be
of investigation, not only in proceedings of a informed to be informed of the findings and
legislative or judicial nature, but also in recommendations of said investigating body
proceedings whose sole purpose is to obtain or committee. He is only entitled to be
information upon which future action of a informed of the charges against him, to a
disciplinary, administrative, prosecutor, bearing of said charges, to an opportunity to
legislative or judicial nature may be taken. meet the evidence against him, to present his
own evidence and to furnished with copy of
The president’s investigatory power the administrative decision.
emanates from his power of supervision and
control over all executive departments, 3.34 Investigatory power as main function
bureaus, and offices; his power of
supervision over local government units; and Test: w/n the adjudication signifies the
his power of appointment of presidential exercise of power and authority to adjudicate
appointees which are conferred upon him by upon the rights and obligations of the parties
the Constitution. before it. If the only purpose of the
investigation is to evaluate evidence
Sec 64(c) RAC “To order, when in his opinion submitted before it based on facts and
the good of the public service so requires, an circumstances presented to it; and if the
investigation of any action or the conduct of agency is not authorized to make a final
any person in Gov’t service and in pronouncement affecting the parties, then
connection therewith to designate the official there is an absence of JUDICIAL
committee or person by whom such DISCRETION AND JUDGMENT.
investigation shall be conducted.”
CHR and NBI- only administrative agency
It is enough that the investigation be for a with administrative power
lawfully authorized purpose.
CHR-
The administrative agency has the power of i.) Investigate on its own complaint;
inquisition which is not dependent upon a ii.) adopt its operational guidelines
case or controversy in order to get evidence, iii.) provide appropriate legal measures.
but can investigate merely on suspicion that iv.) exercise visitorial power;
the law is being violated or even just because v.) Continuing program for research and
it wants assurance that it is not. education;
vi.) Recommend effective measure to
In sum, it may be stated that a subpoena promote HR to congress;
meets the requirements for enforcement if vii.) monitors PG’s compliance with
the inquiry is a.) within the authority of the international treaty;
agency; b.) the demand is not too indefinite viii.) Grant immunity from prosecution;
and c.) the information is reasonably relevant ix.) request assistance to any department
x.) appoint its officers; and
3.33 Investigatory powers, as incidents of xi.) perform other duties
main function
Carino v CHR: CHR has no power to
7
Inquisitive power is examining or adjudicate or exercise quasi-judicial power.

Page
investigatory power, one of the determinative Fact finding is not adjudication and cannot be
likened to the judicial function of a court of (2) Direct, upon complaint or at its own
justice or even a quasi judicial agency or instance, any officer or employee of
official the Government, or of any subdivision,
agency or instrumentality thereof, as
well as any government-owned or
NBI- Sec 1 of RA no. 157
controlled corporations with original
i.) undertake investigation of crime charter, to perform and expedite any
ii.) render assistance, whenever properly act or duty required by law, or to stop,
requested in the investigation or prevent, and correct any abuse or
detection of crimes impropriety in the performance of
iii) act as a national clearing house of duties;
criminal
iv.) give technical aid to all prosecuting (3) Direct the officer concerned to take
and law enforcement officers appropriate action against a public
v.) extend its services (administrative officer or employee at fault or who
investigation) neglects to perform an act or discharge
vi.) train representatives a duty required by law, and
recommend his removal, suspension,
vii.) establish up to date scientific crime
demotion, fine, censure, or
lab prosecution, and ensure compliance
viii.) other functions assigned by Sec. of therewith; or enforce its disciplinary
Justice authority as provided in Section 21of
this Act: Provided, That the refusal by
NBI- not judicial or quasi judicial in nature. Its any officer without just cause to
functions are merely investigatory and comply with an order of the
informational in nature; cannot even Ombudsman to remove, suspend,
determine probable cause and findings are demote, fine, censure, or prosecute an
merely recommendatory. officer or employee who is at fault or
who neglects to perform an act or
discharge a duty required by law shall
3.35 Investigatory power of the Ombudsman be a ground for disciplinary action
against said officer;
The Office of the Ombudsman is a creation
of Constitution. It is the protector of the (4) Direct the officer concerned, in any
people against abuses of government appropriate case, and subject to such
officials and employees. See RA 6770 limitations as it may provide in its rules
of procedures, to furnish it with copies
Section 15. Powers, Functions and of documents relating to contracts or
Duties. - The Office of the transactions entered into by his office
Ombudsman shall have the following involving the disbursement or use of
powers, functions and duties: public funds or properties, and report
any irregularity to the Commission on
(1) Investigate and prosecute on its Audit for appropriate action;
own or on complaint by any person,
any act or omission of any public (5) Request any government agency
officer or employee, office or agency, for assistance and information
when such act or omission appears to necessary in the discharge of its
be illegal, unjust, improper or responsibilities, and to examine, if
inefficient. It has primary jurisdiction necessary, pertinent records and
over cases cognizable by the documents;
Sandiganbayan and, in the exercise of
his primary jurisdiction, it may take (6) Publicize matters covered by its
over, at any stage, from any investigation of the matters mentioned
8
investigatory agency of government, in paragraphs (1), (2), (3) and (4)

Page
the investigation of such cases; hereof, when circumstances so

warrant and with due prudence:

Provided, that the Ombudsman under
its rules and regulations may
determine what cases may not be
made public: Provided further, That
any publicity issued by the
Ombudsman shall be balanced, fair
and true;
(7) Determine the causes of

inefficiency, red tape,
mismanagement, fraud, and corruption
in the government and make
recommendations for their elimination
and the observance of high standards
of ethics and efficiency;
(8) Administer oaths, issue subpoena

and subpoena duces tecum, and take
testimony in any investigation or
inquiry, including the power to examine
and have access to bank accounts and
records;
(9) Punish for contempt in accordance

with the Rules of Court and under the
same procedure and with the same
penalties provided therein;
(10) Delegate to the Deputies, or its

investigators or representatives such
authority or duty as shall ensure the
effective exercise or performance of
the powers, functions, and duties
herein or hereinafter provided;
(11) Investigate and initiate the proper

action for the recovery of ill-gotten
and/or unexpired wealth amassed after
February 25, 1986 and the prosecution
of the parties involved therein.
The Ombudsman shall give priority to

complaints filed against high ranking
government officials and/or those
occupying supervisory positions,
complaints involving grave offenses as
well as complaints involving large
sums of money and/or properties.
9
Page
CHAPTER IV
Memorandum orders- acts of the President
on matters of administrative detail or of
QUASI-LEGISLATIVE POWER subordinate interest which only concern a
particular officer or office of the Government.
A. IN GENERAL
Memorandum circulars
4.36 Legislative power, generally
Legislative power is the power to make, alter 4.38 Delegation to the Supreme Court
and repeal laws and it shall be vested by the
Congress of the Philippines. Such power is Section 5.5, Article VIII, Constitution
plenary for all purposes of civil government,
subject only to such limitations as are found Promulgate rules concerning the protection
in the Constitution and enforcement of constitutional rights,
pleading, practice, and procedure in all
US v Barrias: Legislative power cannot be courts, the admission to the practice of law,
delegated as it constitute not only of a right the integrated bar, and legal assistance to
but a duty to be performed by the delegate the under-privileged. Such rules shall provide
by the instrumentality of his own judgment. a simplified and inexpensive procedure for
the speedy disposition of cases, shall be
4.37 Delegation of Legislative power to uniform for all courts of the same grade, and
the President shall not diminish, increase, or modify
substantive rights. Rules of procedure of
The Constitution itself makes the delegation special courts and quasi-judicial bodies shall
of legilstaive power to the President, SC and remain effective unless disapproved by the
LGU
Supreme Court.
Delagation to the President: Sec 23(2) and
28(2) of Art VI of Constitution 4.39 Delegation to LGUs
Presidential issuances are those which Sections 5 and 9, Article X, Constitution

President isssues in the exercise of his
ordinance power.(EO, AO, Proclamations, Section 5. Each local government unit shall
memorandums circulars) have the power to create its own sources of
revenues and to levy taxes, fees and charges
Executive order- acts of the president subject to such guidelines and limitations as
providing for rules or a general or permanent the Congress may provide, consistent with
character in implementation or execution of the basic policy of local autonomy. Such
constitutional or statutory power. taxes, fees, and charges shall accrue
exclusively to the local governments.
Administrative orders- acts of the president
which relate to particular aspects of Section 9. Legislative bodies of local
governmental operations in pursuance of his governments shall have sectoral
duties representation as may be prescribed by law.
Proclamations- acts of the president ofixing a Sangg. Brgy. Brgy. Ordinance

date or declaring a statute or condition of Reviewable by :
public moment or interest, upon the SBayan/SLungsod
10
existence of which the operation of a specific w/n 30 days

Page
law or regulation is made to depend Sangg. Bayan Municipal ordinance

a. affirmative vote of What cannot be delegated are those

majority of members which are purely legislative in nature. He
b. mayor’s approval cannot determine what the law shall be.
w/n 10 days
c. may override the 4.41 Trend in delegation of legislative
veto of the mayor by power
2/3
d. to be submitted to To the many problems attendant upon
SLalawigan (30 present day undertakings, the legislature
days) may not have the competence, let alone the
SanggPanglungsod City ordinance interest and the time, to provide the required
a. affirmative vote of direct and efficacious solutions.
majority of members
b. mayor’s approval 4.42 Rule Making power, generally
w/n 10 days
c. may override the In general:
veto of the mayor by
2/3
1. Nature: What may be granted to an
d. to be submitted to
AA is rule-making power to implement
SLalawigan if a
the law it is entrusted to enforce.
component city
2. Necessity: Impractical for lawmakers
(30days)
to provide general regulation for
Sangg. Panlalawigan City ordinance various AAs
a. vote of majority of
members present
Subordinate legislation is permitted to adapt
(quorum)
to the increasing complexity of modern life
b.governor’s
and variety of public functions.
approval w/n 15 days
c. may override the
veto of the mayor by 3. Conditions
2/3
Valid exception to non-delegation of
4.40 Delegation as exception to legislative power provided two conditions
restricition theron concur:
The doctrine of separation of power - Statute is COMPLETE in itself, setting

precludes is the delegation of those powers forth the policy to be executed by the
which are strictly or inherently and agency; and
exclusively legislative. These exclusively - Statute fixes a STANDARD, mapping
legislative powers consist generally of what out the boundaries of the agency’s
the law shall be, to whom it may be applied. authority to which it must conform.
The delegation to administrative agencies of 4. Binding force and effect

some of the legislative power is necessary,
particularly in modern regulatory enactments A valid rule/regulation duly promulgated by
in which the legislature is incapable of an AA has the force and effect of law and is
defining multitudinous details. binding on the agency and on all those
dealing with the agency.
11
5. Prospective application
Page
Unless intent to the contrary is made or regulation in the courts, including the regional
manifest either by express terms of the trial courts.
statute or by necessary implication.
This is within the scope of judicial power, which
Legislation on the admin level: includes the authority of the courts to determine in
an appropriate action the validity of the acts of the
26
political departments. Judicial power includes
The rule-making power of an AA (the power the duty of the courts of justice to settle actual
to make implementing or interpretative R or controversies involving rights which are legally
R) is legislative in character and results in demandable and enforceable, and to determine
delegated legislation. whether or not there has been a grave abuse of
discretion amounting to lack or excess of
- Rule-making is legislation in the jurisdiction on the part of any branch or
admin level (legislation within the instrumentality of the Government.
confines of the granting statute, as
required by the Consti); also called 4.45 Right to notice and hearing
admin legislation, delegated
legislation, ordinance-making, and The issuance of rules and regulations in the
quasi-legislation. exercise of AA of its quasi-legislative power
does not requires notice and hearing, while
The power conferred upon an AA to issue or adjudication of controversies requires so.
promulgate R or R necessary to carry out its
functions has been held to be an adequate 4.46 Kinds of Rule making power
source of authority to delegate a particular
function. Kinds of rule-making powers
4.43 Distinguished from administrative 1. Supplementary or detailed legislation

functions
Rule-making by reason of particular
The definition of administrative functions delegation of authority
includes the rule-making power. For this
reason, it has been said that while legislation 2. Interpretative legislation
and administration are distinct powers, the
line which separates this exercise is not Rule-making by the construction and
clearly marked interpretation of a statute being administered
4.44 Distinguished from quasi judicial a. interpretation as incident of the execution

power of a law
Smart Communications vs NTC: What is assailed
b. interpretation handed down by Secretary
is the validity or constitutionality of a rule or
regulation issued by the administrative agency in
of Justice
the performance of its quasi-legislative function,
the regular courts have jurisdiction to pass upon c. interpretation in adversary proceedings
the same. The determination of whether a specific
rule or set of rules issued by an administrative 3. Contingent legislation or
agency contravenes the law or the constitution is determination -refers to the
within the jurisdiction of the regular courts. ascertanmment of facts which will
Indeed, the Constitution vests the power of
form the basis for the enforcement of
12
judicial review or the power to declare a law,

treaty, international or executive agreement, a statute.
Page
presidential decree, order, instruction, ordinance,

B. DELEGATION OF LEGISLATIVE in upholding the economic rights of our people

POWER especially from the onslaught of the powerful. Our
defense of the people's economic rights may
appear heartless because it cannot be half-
4.47 Delegation of Legislative power
hearted.
It is the grant of authority by the legislature to

4.51 Completeness test – the law must be
administrative agencies to issue rules and
complete in all its items and conditions when
regulations.
it leaves the legislature such that when it
reaches the delegate, the only thing they will
The reasons for the delegation is the have to do is enforce it
increasing complexity of the task of
government - TEST: W the provision is sufficiently
definite and certain to enable one to
4.48 What cannot be delegated know his rights and obligations
thereunder.
a) Power to make the law
b) determine what the law shall be; and 4.52 Sufficient standard test – to map out
c) to alter or repeal it the boundaries of the delegates’ authority by
defining legislative policy and indicating
4.49 Who may be delegated circumstances under which it is pursued.
Tatad vs Secretary of DOE: The court ruled that 4.53 Presence of a sufficient standard.
RA No. 8180 is declared unconstitutional and ED.
No. 372 void.The rational of the Court annulling
RA No. 8180 is not because it disagrees with
- there must be adequate guidelines or
deregulation as an economic policy but because limitations in the law to map out the
as cobbled by Congress in its present form, the boundaries of the delegated authority
law violates the Constitution. The right call and prevent the delegation from
therefore should be for Congress to write a new running riot.
oil deregulation law that conforms to the - Standard may be express (prescribed
Constitution and not for this Court to shirk its duty by the law itself), or implied (from the
of striking down a law that offends the policy and purpose of the statute
Constitution. Striking down RA. No. 8180 may considered as a whole, other laws).
cost losses in quantifiable terms to the oil
- In the delegation of rate-fixing, the
oligopolists. But the loss in tolerating the
tampering of our Constitution is not quantifiable in
only standard is that the rate be
pesos and centavos. More worthy of protection reasonable and just.
than the supra-normal profits of private
corporations is the sanctity of the fundamental 4.54 There is no uniform application
principles of the Constitution. When confronted by standard
a law violating the Constitution, the Court has no
option but to strike it down dead. Lest it is missed, 4.55 Standard fixed cannot be
the Constitution is a covenant that grants and
enlarged nor restricted
guarantees both the political and economic rights
of the people. The Constitution mandates this
Court to be the guardian not only of the people's 4.56 When standard insufficient- a
political rights but their economic rights as well. statue which prescribes no or inadequate
The protection of the economic rights of the poor standard for the exercise of delegated
and the powerless is of greater importance to legislative power; rules issued are null
them for they are concerned more with the and void
13
exoteric of living and less with the esoteric of

liberty. Hence, for as long as the Constitution
Page
reigns supreme so long will this Court be vigilant

DELEGATION OF LEGISLATIVE POWER Bank v. Central Bank, 146 SCRA 120

[1986])
4.57 Usual issues on validity of
delegation.
4.59 Regulations cannot restrict nor
Issues concerning the validity of the enlarge the law.
delegation of legislative power that may be
raised are the following: Implementing rules cannot add to or
(1) Against the delegating statute itself detract from the provisions of the law it is
- refers to the question as to designed to implement. It must be in
whether or not the requisites of harmony with the provisions of the law they
valid delegation are present are intended to carry into effect. An
(completeness of the statute administrative agency cannot amend an act
making the delegation, presence of Congress.
of sufficient standard)
(2) Against the exercise of the delegated Issuance of an administrative rule or
power regulation must be in harmony with the
- refers to the question as to enabling law. When there is discrepancy, the
whether or not the rule or basic law will prevail over the implementing
regulation conforms with what the rule or regulation.
statute provides and whether the
same is reasonable. If the implementing rules and regulations
are issued in excess of the rule-making
4.58 Rules or regulations, generally. authority of the administrative agency, they
are without binding effect upon the courts.
These are the product of subordinate
legislation. Example applying the principle:
The 13th month pay law defined “basic
If valid – will have the force and effect of salary” as excluding commissions earned for
law, and binding upon executive and extra efforts in consummating sales. An
administrative agencies until set aside. administrative rule including the commission
in the computation of the 13th month pay is
To be valid: invalid as it unduly expanded the scope of
(1) must be germane to the objects and the law. (more examples on pages 73-74)
purposes of the law
(2) must conform to the standards that the 4.60 Rules must be reasonable.
law prescribes
(3) must be reasonable Rules must be fairly adopted to
(4) must be related solely to carrying into secure the end in view. If there is no
effect the general provisions of the law reasonable relation to the purposes for which
(5) must not contradict the law, but must they are authorized to be issued, they must
conform to the standard if prescribes be invalid.
(6) must be limited to what the law
provides 4.61 Rules constituting an offense.
A rule is binding on the courts so long as Administrative bodies have the authority
the procedure fixed for its promulgation is to issue administrative regulations which are
followed and its scope is within the statute penal in nature where the law itself makes
14
granted by the legislature, even if the the violation of the administrative regulation
courts do not agree with the policy stated punishable and provides for its penalty.
Page
therein or its innate wisdom (Tayug Rural

When there is no provision that violation the law will be enforced. The power to
of such rules shall be unlawful and ascertain facts may be delegated.
punishable, and does not prescribe penalty
for such violation, the administrative agency To be valid, the law delegating the power
has no power to penalize violation of such to ascertain facts must provide the standard
rules and regulations. and fix the limits within which the discretion
may be exercised, and define the conditions
4.62 When rules take effect. therefor. Absent the requirements, the law
and the rules issued are void –the former
The term “law” in Section 2 of the New being an undue delegation of legislative
Civil Code includes rules and regulations power and the latter being the exercise of
issued pursuant to a valid delegation and rule-making without legal basis.
designed to enforce or implement an existing
law. 4.64 Prohibition against re-delegation;
exceptions.
GR: The rules must be published to be
effective; the publication must be in full or it is What has been delegated cannot be
no publication at all since its purpose is to delegated (potestas delegate non delegari
inform the public of its contents. protest).
XPN: Reasons
(1) interpretative regulations and those (a) a delegated power constitutes not
merely internal in nature, that is only only a right but a duty to be
regulating the personnel of the performed by the delegate through
administrative agency and not the the instrumentality of his own
public, need not be published. judgment and not through the
(2) letters of instructions issued by intervening mind of another;
administrative superior concerning (b) it would also negate the trust
the rules or guidelines to be followed reposed in the delegate mandated
by their subordinates in the to discharge it directly.
performance of their duties.
Rule is applicable where the power is
Rules are also required to be filed with the discretionary. It is sufficient that the judgment
U.P. Law Center of the University of the and discretion finally exercised are those of
Philippines pursuant to Section 3, Chapter 2, the officer authorized by law.
Book VII of the 1987 Administrative Code.
4.65 Delegation of rate-fixing power.
4.63 Delegation to ascertain facts.
The legislature usually delegates its rate-
The legislature may delegate to an fixing power to administrative agencies for
administrative agency the power to the latter to fix the rates which public utility
determine some fact or state of thing upon companies may charge the public.
which the law makes, or intends to make, its
own action depends, or the law may provide The standard which the legislature is
that it shall become operative only upon the required to prescribe for the guidance of the
contingency of some certain fact or event, administrative authority is that the rate be
the ascertainment of which is left to an reasonable and just. But even in the absence
administrative agency. of an express requirement as to
reasonableness, this standard may be
15
This is permissible because it is not implied.

delegation of what the law shall be, but how
Page
The act must both be non-confiscatory 4.67 Power to fix rate cannot be re-
and must have been established in the delegated.
manner prescribed by the legislature.
Otherwise, in the absence of a fixed GR: The power delegated to an
standard, the delegation of power becomes administrative agency to fix rates cannot be
unconstitutional. delegated to another.
XPN: there is a law authorizing it.
However, the agency is limited by the
requirements of public safety, public interest, CONTEMPORARY CONSTRUCTION
reasonable feasibility and reasonable rates,
which conjointly satisfy the requirements of a 4.68 Administrative rule and interpretation
valid delegation of legislative power. distinguished.
4.66 Rate-fixing: quasi-legislative or In administrative rule or regulation, when

quasi-judicial; when hearing required. an administrative agency promulgates rules
and regulations, in the exercise of its rule
The function of prescribing rates may making power delegated to it by the
either be: legislature, it “makes a new law with the force
(1) Legislative function – where the grant and effect of a valid law.” These rules are
of prior notice and hearing to the binding on the courts.
affected parties is not a requirement
of due process; when the rules/rates When it renders an opinion or gives a
are meant to apply to all enterprises statement of policy, it merely interprets a pre-
of a given kind throughout the country existing law.
(2) Adjudicative function – prior notice
and hearing are essential to the On the other hand, administrative
validity of such rates; when interpretation of the law, it is at best merely
rules/rates imposed apply exclusively advisory for it is the courts that finally
to a particular party based upon a determine what the law means.
finding of fact.
Q. When is a rule considered a law and when
The question as to whether the issuance it is merely an interpretation of the law?
of a rule or order by an administrative body
requires prior notice and hearing depends In the case of Victorias Milling Co. vs.
upon the nature of the power exercised - Social Security Commission, the Court held
whether it is quasi-legislative or quasi- that rules and regulations when promulgated
judicial. in pursuance of the procedure or authority
conferred upon the administrative agency by
GR: Notice and hearing are not essential to law partake of the nature of a statute and
the validity of administrative action where the compliance therewith may be enforced by a
administrative body acts in the exercise of penal sanction provided by law.
executive, administrative or legislative
functions. Why? Because statutes are usually
XPN: a public administrative body acts in a couched in general terms, after expressing
judicial or quasi-judicial matter, and its acts the policy, objectives, remedies and
are particular and immediate rather than sanctions intended by the legislature. The
general and prospective, the person whose details and the manner of carrying out the
rights or property may be affected by the law as often times left to the administrative
16
action is entitle to notice and hearing, agencies entrusted with its enforcement.
Page
It has been said that rules and 3. Interpretation handed down in an

regulations are the product of the delegated adversary proceeding in the form of a ruling
power to create a new or additional legal by an executive officer exercising quasi-
provisions that have the effect of a law. judicial power
This rule is binding on the courts so long E.g the labor arbiter interpreting provisions of
as the procedure fixed for its promulgation is the labor code.
followed and its scope is within the statutory
authority granted by the legislature. 4.70 Forms of interpretation.
4.69 Executive construction, generally; Administrative practice - includes formal

kinds of. or informal act of the admin agency by which
it construes, interprets, or applies the law.
Executive and administrative officers are
generally the very first to interpret the law, In the absence of a previous judicial
preparatory to its enforcement. interpretation of a statute by the supreme
court, courts will accord weight to
These interpretations are in the form of: construction by admin or exec agencies of
1. rules and regulations; the government.
2. circulars;
3. directives; Any kind of interpretation or practical
4. opinions; construction of and ambiguous or uncertain
5. rulings. statute by the exec department charged with
Types of executive interpretation its administration is entitled to consideration
and the highest respect from the courts
1. Construction by an executive officer especially when the interpretation is long
directly called to implement the law continued and uniform or is
contemporaneous with the first workings of
Express or implied the statue
If it is embodied in a circular, directive or However, an action by an admin agency

regulation, it is an express interpretation. may be set aside by the judicial department if
there is an error of law, abuse of power, lack
If it is manifested as a practice or a of jurisdiction or grave abuse of discretion
mode of enforcement or applying it in a clearly conflicting with the spirit and letter of
particular manner, it is an implied the law.
interpretation
4.71 Publication is not required.
2. Construction the secretary of justice in his
capacity as the chief legal adviser Publication is not required because they
of the government are not law. Internal rules concerning the
personnel of the administrative agency and
It is in the form of opinions issued upon legal opinions, which are best advisory, need
request of administrative or executive not be published to be effective.
officials who enforce the law. In the absence
of a judicial ruling and unless re probated by 4.72 Weight accorded to
the president, the opinions of the secretary of contemporaneous construction.
justice are generally controlling among
17
administrative and executive officials of the Where there is a doubt as to the proper
government. interpretation of a statue, the uniform
Page
construction placed upon it by the executive

or admin agency charged with its Forms of approval

enforcement will be adopted, in necessary to
resolve the doubt. 1. When it reenacts a statute previously
given a contemporaneous construction.
Because it may be the true expression of 2. Use words similar in their import to the
the legislature especially if it is followed for a language of an earlier law that has received
considerable length of time. It is entitled to practical interpretation.
great weight and respect from the courts. 3. Amends a prior statue without, in the
Unless it is shown to be clearly erroneous. amending act, providing anything which
would restrict, change or nullify the previous
4.73 Construction of rules and contemporaneous construction place upon
regulations. the prior law.
4. When the legislature appropriates money
An administrative agency has the power for the officer designated t perform a task
to interpret its own rule because it is the one pursuant to an interpretation of the statue.
who issued it. This interpretation becomes 5. Mere silence is considered as consent to
part of the rule itself. continue in practice to an implementation of
the interpretation of a statue by an admin
4.74 Reasons why contemporaneous officer if the legislature has knowledge of
construction is given much weight. such interpretation.
Because it emanates from the particular 4.76 Reenactment by legislature.

branch of government called upon to
implement the law. Common type of approval is
reenactment of a statute previously given a
Executive officials are presumed to have contemporaneous construction because it is
familiarized themselves with all the a persuasive indication of the adoption of the
considerations pertinent to the meaning and legislature of the prior construction
purpose of the law, and to have formed and
independent, conscientious and competent To be applicable, the earlier law must
expert opinion thereon. have been reenacted and not merely
amended and the contemporaneous
The following are the factors why: construction thereof must be in the form of
regulation to implement the law and duly
1. Competence published and not merely admin ruling
2. Expertness embodied in a letter to a specified individual
3. Experience and not published.
4. Informed judgment
5. And the fact that they frequently are the When this happens, it is accorded great
drafters of the rules they interpret. weight than the contemporaneous
construction prior to its ratification and hence
Moreover, when a law is passed, it will it is presumptively the correct interpretation
take some time before the construction of the of the law.
statue, in light of the regulation, will come
before the courts. In the meanwhile, people Why? Because there is an agreement
will go on living and transactions will be between the two departments to the meaning
concluded under the statue. of the law. However, the rule does not
operate to freeze a meaning which is in
18
4.75 Legislative approval of administrative evident conflict with the clearly express ed
construction. legislative intent.
Page
4.77 When contemporaneous

construction disregarded.
This type of construction is not

controlling nor binding upon the court
because the duty and power to interpret the
law is primarily a judicial function.
The court may disregard it when there is no
ambiguity, clearly erroneous, and where the
court has previously given a different
interpretation.
4.78 Erroneous construction creates no

rights; exceptions.
The doctrine of estoppel does not

preclude correction of the erroneous
construction by the officer himself, by
successor in office, or by the court in an
appropriate case.
As a rule, erroneous construction

creates no vested right on the part of those
who relied upon it. The goverment is never
estopped by the mistake or error on the part
of its agents.
Its exceptions are in the interest of

justice and fair play.
e.g
In tax cases where the interpretive circular
addressed to internal revenue officers by the
commissioner on internal revenue is
rendered necessary because the tax statue
to be enforced is to hard to understand and
where, in reliance on such circular, a
taxpayer faithfully complied with the
obligation of paying the tax required by it. In
such a case, the taxpayer may not be
required to pay additional tax during the
period that said circular had not been
rescinded by a subsequent circular correcting
the erroneous interpretation.
19
Page
CHAPTER V: QUASI-JUDICIAL (1) previously established rules and

POWER principles;
(2) concrete facts, whether past or
present, affecting determinate
QUASI-JUDICIAL POWER IN individuals;
GENERAL (3) decision as to whether these facts are
governed by the rules and principles.
5.79 Definition. An administrative agency, clothed with

quasi-judicial power and in the exercise
(1) Quasi-judicial: actions or discretions of thereof, receives evidence, ascertains the
public administrative officers or bodies facts therefrom, determines what the law is
required to investigate facts, or ascertain the and what the legal rights of the parties are,
existence of facts, hold hearings, and draw and on the basis of all these decides the
conclusions from them, as a basis for their controversy and renders judgment thereon.
official action, and to exercise discretion of a
judicial nature. 5.82 Distinguished from administrative
function.
(2) Quasi-judicial body: an organ of
government other than a court and other than Judicial function accompanied by first,
a legislature, which exercises adjudicative the ascertainment of all the material and
power affecting the rights or private persons. relevant facts from the pleading and from the
Basic function includes adjudicating claims evidence by the parties, and the second after
and/or determining rights, and unless its that determination of the facts has been
decisions is reasonably appealed to the completed, the by application of the law
proper reviewing authority, the same attains thereto the end that the controversy may be
finality and becomes executory. settled with finality and becomes executory,
precluding a re-opening and making the
5.80 Quasi-judicial power, generally. principle of res judicata applicable. The
second part of its function makes the agency
It may refer to other than that which a a quasi-judicial body similar to a court of
court of justice performs; it is necessary that justice.
there be a law that gives rise to some
specific rights or persons or property under 5.83 Distinguished from quasi-legislative
which adverse claims to such rights are functions.
made, and the controversy ensuing
therefrom is brought, in turn, before the The distinction between a rule or
tribunal, board or officer clothed with power regulation issued by an administrative
and authority to determine what that law is agency in the exercise of its quasi-judicial
and thereupon adjudicate the respective power and that in its quasi-legislative power
rights of the contending parties. is important because in the former notice and
hearing are required while in the latter, notice
5.81 Quasi-judicial adjudication. and hearing are not necessary, in
administrative agency actions. Also, a judicial
Adjudication means an agency process action to question a decision of a quasi-
for the formulation of a final order, which judicial agency in the exercise of its quasi-
presupposes compliance with such judicial power is filed with the Court of
requirements before such final order is Appeals, whereas in its quasi-legislative
20
issued. power, cases are filed with the Regional Trial

Court.
Page
The function requires:

5.84 Reasons for creation of quasi-judicial JURISDICTION

agencies. 5.86 Definition.
(1) Increasing variety of powers and Jurisdiction is derived from the latin
functions given to administrative agencies. words “juris” and “dico” which mean “I speak
(2) The call for technical knowledge and by the law.”
speed in countless controversies which
cannot be handled by regular courts. Jurisdiction means the power or capacity
(3) Growing complexity of modern society. conferred by the Constitution or by law to a
(4) Need for specialized administrative court or tribunal to entertain, hear and
boards or commissions with special determine certain controversies, and render
knowledge, experience and capability to hear judgment thereon. It is determine by the
and determine promptly disputes on technical statute in force at the time of the
matters or essentially factual matters, subject commencement of the action.
to judicial review in appropriate cases has
become indispensable. Jurisdiction over the subject matter
(5) To unclog the dockets and to enable the refers to the nature of the cause of action
court to decide more cases falling within its and of the relief sought, which is vested by
jurisdiction. law and which is not acquired by consent or
acquiescence of the parties not by the
5.85 Voluntary arbitrator a quasi-judicial unilateral assumption thereof by a tribunal.
officer.
Arbitration is the reference of a dispute Jurisdiction over the person of the
to an impartial third person for determination petitioner or plaintiff is acquired by the latter’s
on the basis of evidence and arguments filing the initiatory pleading and paying the
presented by the parties who have bound required docket or filing fees; where
themselves to accept the decision. jurisdiction over the person of the respondent
or defendant is acquired by the service of
Involuntary arbitration is one compelled summons or by his voluntary submission to
by the government to accept the resolution of the authority of the court or tribunal.
the dispute through the arbitration of a third
party. 5.87 Extent of jurisdiction.
Voluntary arbitration is the referral of a An administrative body with quasi-

dispute by the parties pursuant to a voluntary judicial power is a tribunal of limited
arbitration clause or agreement to an jurisdiction and as such it could wield only
impartial third person or panel for final such powers as are specifically granted to it
resolution. by its enabling statute.
Voluntary arbitrator, whether alone or in Its jurisdiction is interpreted in strictissimi

a panel makes him acquire the status of a juris based on the principle that an
quasi-judicial agency, as he acts as a quasi- administrative agency or officer can exercise
judicial officer who determines the rights of only such powers as are expressly granted
the parties and renders decision, which is as well as those which are necessarily
appealable by petition for review to the Court implied therefrom.
of Appeals. The award or decision becomes
final after a certain period from receipt of the The grant of quasi-judicial power
copy of the award or decision by the parties. includes the authority to determine issues
21
incident thereto.
Page
5.88 Re-statement of the rule.

- An administrative agency may exercise ADMINISTRATIVE PROCEDURE

only such powers as have been expressly or 5.91 Rules of procedure, generally.
impliedly granted by the statute. 5.92 Rules subject to Supreme Court
- The grant of quasi-judicial power modification.
should not be the only power conferred, but 5.93 Technical rules not applicable.
should instead be only incidental to the 5.94 Procedure prescribed by Book VII of
administrative agency’s main task of 1987 Administrative Code.
implementing the law in the specific fields of 5.95 Justiciable controversy; contested
its expertise; otherwise, the agency becomes case.
a specialized court of justice under the 5.96 Institution of proceedings.
judicial branch. 5.97 Forum shopping.
- Split jurisdiction is not favored. All 5.98 Test to determine forum shopping.
controversies relating to the subject matter 5.99 Acquisition of jurisdiction.
pertaining to its specialization are deemed to 5.100 Pre-trial conference.
be included within its jurisdiction. 5.101 Default in administrative case.
- The delegation of quasi-judicial powers 5.102 Administrative proceeding; hearing.
to administrative agencies has been 5.103 Subpoena and contempt of court.
accepted in modern governments and cannot 5.104 Evidence.
be considered violative of the due process of 5.105 Hierarchy of evidence values.
law as long as the cardinal rights of due 5.106 Substantial evidence.
process in administrative proceedings are 5.107 Delegation of quasi-judicial power.
observed. 5.108 Delegation to receive evidence.
5.89 Estoppel to deny jurisdiction. DUE PROCESS IN QUASI-JUDICIAL

PROCEEDINGS
GR: Jurisdiction over the subject matter is
conferred by the Constitution or by law, and 5.109 Generally.
may not be conferred by agreement of the 5.110 Cardinal primary requirements of
parties, nor can it be waived due process, generally.
XPN: instances when a party may be 5.111 Requisites of due process,
estopped to question the jurisdiction of a generally.
quasi-judicial agency such as when a party 5.112 Cold-neutrality of impartial judge.
would deny the jurisdiction to escape penalty 5.113 Impartial and competent tribunal.
imposed by the appellate agency. 5.114 Notice and hearing.
5.90 Party cannot take inconsistent Prior notice and hearing required.
positions. In administrative cases, the GR is that prior
notice and hearing are necessary only where
A party cannot take a position in court the law so requires. “In any contested case
different from that which he took before an all parties shall be entitled to notice and
administrative body because of the hearing. The notice shall be served at least 5
underlying requirement of the exhaustion of days before the date of the hearing and shall
administrative remedies where administrative state the date, time and place of hearing.”
authorities had the prior opportunity to decide
controversies within its competence and in E.G. Before the Sandiganbayan can
much the same way, on the judicial level, preventively suspend a public official charged
issues not raised in the lower court cannot be with a crime before it, there must first be a
raised for the first time on appeal. hearing to determine the validity of the
22
information, and a finding that the information

is valid, makes it mandatory for the court to
Page
preventively suspend the accused for a The twin rights are dispensable in the ff:
period not exceeding 90 days. *Preventive suspension of public servant
facing administrative charges;
When prior notice not required. *Summary distraint and levy of the property
Where the law is silent on prior notice and of a delinquent taxpayer, and the
hearing before an agency action, compliance replacement of a temporary appointee (there
with the requirement depends upon the is tentativeness of administrative action, that
nature of the power to be exercised or the is, where the respondent is not precluded
end to be achieved. Generally, where what is from enjoying the right to notice and hearing
to be exercised is police power duly at a later time without prejudice to the person
delegated to an administrative officer, or affected);
where what is sought to be prevented or *Extraditee- there being no law or provision
achieved requires immediate action for the of the treaty requiring the twin rule, the
public good or interest, prior notice or hearing extradited is only entitled to notice and
is not necessary for the validity of the action hearing after the extradition case is filed in
taken, so long as the aggrieved party is court.
subsequently accorded hearing on the action
taken, by the administrative agency setting Notice minimum requirement in summary
the case for hearing or upon motion or dismissal.
petition by the aggrieved party. Summary dismissal proceedings- authorized
by law to be instituted against erring police
E.G. Withdrawal, suspension, or annulment officers.
of a license may be effected without hearing
and notice, in cases of willful violation of Charges specified in writing and affidavits in
pertinent laws, rules and regulations or when support thereof attached to the complaint
public security, health or safety so require. PLUS allowance of reasonable opportunity to
respondent to answer the charges=
Prior notice not required in the exercise of MINIMUM REQUIREMENTS OF DUE
police power. PROCESS.
Two Kinds of Nuisances:
(1) Nuisance per se- recognized under any Notice and hearing in rate-facing.
and all circumstances because it GR: A public utility must be afforded some
constitutes a direct menace to public opportunity to be heard as to the propriety
health or safety, and for that reason, may and reasonableness of rates fixed for its
be abated summarily, without legal services by a public service commission.
proceedings and without hearing, under
the undefined law of necessity or under Prior notice in issuance of ex parte or
the police power. Prior notice may be preliminary order.
given to the affected party not to give him i.e. provisional reliefs(TRO’s, cease or desist
the opportunity to be heard, but to give orders)
him the opportunity to remove it or the
same may be abated at his expense. GR: Notice and hearing not required
(2) Nuisance per accidens- cannot be Opportunity to be heard.

abated without due hearing thereon in a
tribunal authorized to decide whether For as long as the parties were given the
such thing does constitute a nuisance opportunity to be heard before judgment was
depending upon certain conditions or rendered, the demands of due process were
23
circumstances which are a question of sufficiently met.

fact.
Page
But even if there is notice or opportunity to be and no duty rests on such a body to furnish
heard, there is still violation of due process the person being investigated with counsel.
which renders the decision or ruling of the
administrative agency invalid, where: The right to counsel is not imperative in
administrative investigations because such
(1) No evidence to support decision; inquiries are conducted merely disciplinary
(2) evidence other than that presented measures against erring public officers and
during the proceedings or disclosed in employees, with the purpose of maintaining
the records was taken into account in the dignity of the government service.
rendering the ruling;
(3) the quasi-judicial body or officer did not E. DECISION, APPEAL AND JUDICIAL
possess the cold neutrality of an impartial REVIEW
judge; and
(4) the administrative office or body acted Decision defined.
with gave abuse of discretion amounting The whole or any part of the final disposition,
to lack or excess of jurisdiction. not of an interlocutory character, whether
affirmative, negative, or injunctive in form, of
Where there is no denial of due process. a quasi-judicial agency in any matter,
A party who has been notified of the hearing, including licensing, rate fixing and granting of
but failed to attend the same or refrained rights and privileges.
from participating in the agency proceedings
cannot complain that he has been denied Period to render decision.
due process. The “agency shall decide each case within
30 days following its submission.”
Informal proceeding proscribed. A case is deemed submitted for decision
A very informal conduct of an administrative after both parties shall have concluded
proceeding, consisting of not informing or presentation of their evidence or upon the
furnishing the respondent of a complaint that filing of their respective memoranda, if
initiate the case is prohibited. required or if they so ask and the same is
granted.
Motion for reconsideration cures
procedural due process defects; XPNS NOTE: Use of word “shall” does not connote
GR: MR has the effect of curing whatever command; 30-day-period is merely directory.
irregularity has been committed in the
proceedings. Form of decision.
XPNS: *Any of the other requirements has Although the constitutional provision that ”No
not been observed. decision shall be rendered by any court
*Investigating body did not include as a without expressing therein clearly and
member a representative from an distinctly the facts and the law on which it is
organization specifically required by law to be based is not applicable to decision issued by
represented therein. quasi-judicial bodies, the Administrative
* Decision against respondent has nothing to Code requires that “Every decision rendered
support itself. by the agency in a contested case shall be in
writing and shall state clearly and distinctly
Right to counsel, not a due process the facts and the law on which it is based.
requirement
A party in an administrative inquiry may or Publication of Decisions
may not be assisted by counsel, irrespective Every agency shall publish and make
24
of the nature of the charges and of the available for public inspection all decisions or
respondent’s capacity to represent himself, final orders in the adjudication of contested
Page
cases. It shall be the duty of the records

officer of the agency or his equivalent - National Telecommunications Commission

functionary to prepare a register or - COA
compilation of those decisions or final orders
for use by the public. - CSC
- COMELEC
Relief and sanction.
A quasi-judicial agency can grant a Final decisions not reviewable.
particular relief or impose a specific sanction A final resolution or decision of an
only where the enabling law authorizes the administrative agency also binds the Office of
agency to do so and the evidence presented the President even if such agency is under
or facts adduced substantially justify it. he administrative supervision and control of
the latter.
Finality of decision.
The decision of the agency shall become When the decision of the Office of the
final 15 days after the receipt of a copy President has become final and executory
thereof by the party adversely affected pursuant to its rules of procedure, it can no
unless within that period an administrative longer change or modify its decision.
appeal or judicial review, if proper, has been
perfected. One MR may be field, which shall Appeal in contested cases.
suspend the running of the said period. In the absence of any specific rules
applicable to a particular agency, the appeal,
Promulgation of decision. if allowed by law, should comply with what
Promulgation- delivery of the decision to the Book VII of the 1987 Administrative Code,
clerk of court for filing and publication. It is which provides for the appeal procedure. Its
the process by which a decision is pertinent provisions read:
published,officially announced, made known
to the public or delivered to the clerk of court SECTION 19. Appeal.—Unless otherwise
for filing, coupled with notice to the parties or provided by law or executive order, an
their counsel. appeal from a final decision of the agency
may be taken to the Department head.
NOTE: If at the time of the promulgation of a SECTION 20. Perfection of Administrative
decision or resolution, a judge or member of Appeals.—(1) Administrative appeals under
a collegiate court or quasi-judicial agency this Chapter shall be perfected within fifteen
who had earlier signed or registered his vote (15) days after receipt of a copy of the
for the decision, has vacated his office, his decision complained of by the party
vote is automatically withdrawn or cancelled. adversely affected, by filing with the agency
which adjudicated the case a notice of
Notice of decision. appeal, serving copies thereof upon the
1. personally prevailing party and the appellate agency,
2. by registered mail and paying the required fees.
(2) If a motion for reconsideration is denied,
Decision by collegiate body; vote the movant shall have the right to perfect his
required. appeal during the remainder of the period for
The powers and duties of boards and other appeal, reckoned from receipt of the
collegiate bodies may not be exercised by resolution of denial. If the decision is
individual members separately. Their acts reversed on reconsideration, the aggrieved
are official only when done by the members party shall have fifteen (15) days from receipt
convened in session, upon the concurrence of the resolution of reversal within which to
25
of at least a majority. perfect his appeal.

Page
E.G. of Collegiate Bodies:

(3) The agency shall, upon perfection of the Administrative Review

appeal, transmit the records of the case to Review- reconsideration or re-examination of
the appellate agency. a decision or ruling of a subordinate officer
by a superior officer or higher administrative
SECTION 21. Effect of Appeal.—The appeal agency.
shall stay the decision appealed from unless Purpose- to determine whether it is
otherwise provided by law, or the appellate necessary to correct the acts of a
agency directs execution pending appeal, as subordinate and to see to it that he performs
it may deem just, considering the nature and his duties in accordance with law.
circumstances of the case. May be done: a) moto proprio b) on party’s
appeal.
SECTION 22. Action on Appeal.—The When to review- upon a clear showing error.
appellate agency shall review the records of
the proceedings and may, on its own NOTE:
initiative or upon motion, receive additional GR: evidence not formally submitted during
evidence. the hearing before an administrative agency
may not be submitted, for the first time, on
NOTE: appeal and the reviewing body may not
GR: Appellant should assign errors therefore, consider it.
committed; the appellate body may not pass XPN: An issue was not raised before the
upon errors not assigned. lower administrative agency and evidence in
XPNS: (an appellate court is accorded a connection therewith was not accordingly
broad discretionary power to waive the lack presented, but which issue was resolved by
of assignment of errors and consider errors the latter in its decision, the adverse party, on
not assigned) appeal, is entitled to present rebuttal
evidence.
(a) Grounds not assigned as errors but
affecting the jurisdiction of the court over the NOTE: During appeal, hearings on facts are
subject matter; allowed.
(b) Matters not assigned as errors on appeal
but are evidently plain or clerical errors within Presumption of legality.
contemplation of law; GR: Administrative proceedings are
(c) Matters not assigned as errors on appeal presumed regular.
but consideration of which is necessary in XPN: Regularity of any administrative action
arriving at a just decision and complete which results in depriving a taxpayer of his
resolution of the case or to serve the property through tax sale.
interests of a justice or to avoid dispensing
piecemeal justice; Finality of decision of appellate agency.
(d) Matters not specifically assigned as errors In any contested case, the decision of the
on appeal but raised in the trial court and are appellate agency shall become final and
matters of record having some bearing on executory fifteen (15) days after the receipt
the issue submitted which the parties failed by the parties of a copy thereof, unless an
to raise or which the lower court ignored; MR is seasonably filed or a petition for review
Supreme f such decision is filed with the CA within 15
(e) Matters not assigned as errors on appeal days from receipt of the decision or of the
but closely related to an error assigned; denial of the MR.
(f) Matters not assigned as errors on appeal
but upon which the determination of a Res Judicata
26
question properly assigned, is dependent. The doctrine of res judicata certainly applies
to adversary administrative proceedings.
Page
When res judicata disregarded.
*There are supervening events.

*The doctrine has been waived or has not
been timely raised as a defense.
* The principle of res judicata does not
operate between persons who, having
been co-parties (defendants or plaintiffs) in
the first case, are opposing parties in the
second case. The XPN is where the
individual claims of such co-parties in the
first case were raised in issue, litigated and
determined res judicata applies to such co-
parties.
Power to issue writ of execution to

enforce judgment.
Administrative agencies have power to issue
writs of execution.
27
Page
CHAPTER VI a waiver thereof and justifies the court to

DOCTRINES OF PRIMARY JURISDICTION proceed to conclusion.
AND EXHAUSTION OF ADMINISTRATIVE
REMEDIES Court proceedings should be suspended.
The doctrine of primary jurisdiction requires
A. PRIMARY JURISDICTION that if the case has been filed in court, the
latter should suspend the judicial
Nature and scope. proceedings until the matter shall have been
Doctrine of primary jurisdiction- requires that vested with authority to resolve the same.
a plaintiff should first seek relief in an
administrative proceeding before he seeks a One of the purposes of the doctrine of
remedy in court, even though the matter is primary jurisdiction is not one to give the
properly presented to the court, which is administrative agency the opportunity to
within its jurisdiction. decide the controversy by itself but also to
prevent unnecessary and premature resort t
The doctrine of primary jurisdiction applies the court.
where a claim is originally cognizable in the
courts, and comes into play whenever When doctrine does not apply.
enforcement of the claim requires the For while the two doctrines are different, they
resolution of issues which, under a regulatory are interchangeably used in their practical
scheme, have been placed within the special application by the courts, such that the
competence of an administrative body; in exceptions in one are applicable in the other.
such case, the judicial process is suspended
pending referral of such issues to the Doctrine does not apply where the
administrative body for its resolution. administrative agency has no jurisdiction.
Distinguished from exhaustion of B. DOCTRINE OF EXHAUSTION OF

administrative remedies. ADMINISTRATIVE REMEDIES
Doctrine of exhaustion of administrative
remedies applies where a claim is cognizable Exhaustion of remedies, generally.
in the first instance by the administrative GR: Recourse through court action cannot
agency alone, judicial interference being prosper until all the remedies have been
withheld until the administrative process has exhausted at the administrative level.
run its course and the agency action is ripe
for review. NOTE: The party aggrieved by a decision of
an administrative official should first apply for
GR: The principle of primary jurisdiction review of such decision by higher
applies in cases filed with the trial court, administrative authority before seeking
which suspends the proceedings until referral judicial relief, otherwise his court suit may be
to the administrative agency, while the dismissed for prematurity or lack of cause of
doctrine of exhaustion of administrative action.
remedies is invoked in petitions for certiorari
filed with the CA, or in few instances in the Effect of failure to exhaust remedies.
trial court, which resolves the case on the Failure to observe the doctrine does not
merit, where the case falls under any of the affect the jurisdiction of the court. The only
exceptions to the doctrine of exhaustion of effect of non-compliance with rule is that it
administrative remedies. will deprive the complainant of a cause of
action, which is a ground for a motion to
28
NOTE: Non-compliance with the doctrine of dismiss.

primary jurisdiction is not jurisdictional, and
Page
the failure to timely object thereto amounts to

Reason for the rule. (7) when to require exhaustion of

For sound practice and policy. administrative remedies would be
unreasonable,
It ensures an orderly procedure which favors (8) when it would amount to a
a preliminary shifting process, particularly nullification of a claim,
with respect to matters peculiarly within the (9) when the subject matter is a
competence of the administrative agency. It private land in land case proceedings,
also unclogs court dockets. (10)when the rule does not provide a
plain, speedy and adequate remedy, and
The administrative process is intended to (11)when there are circumstances
provide less expensive and more speedy indicating the urgency of judicial
solutions to disputes. It is also to give the intervention.
administrative agency the opportunity to act
and correct the errors committed in the Not applicable where public interest
administrative forum. requires immediate court resolution.
Another reason: Doctrine of separation of Not applicable where administrative act is

powers. a nullity.
Where the acts of a quasi-judicial agency are
The theory is that the administrative patently illegal, the doctrine of exhaustion of
authorities are in a better position to resolve administrative remedies does not come into
questions addressed to their particular play.
expertise and that errors committed by
subordinates in their resolution may be Foremost among the exceptions to the rule of
rectifies by their superiors if given a chance exhaustion of administrative remedies is
to do so. when the assailed act, order or decisions is
patently illegal or was performed or issued
XPNS to the rule, generally. without jurisdiction or in excess of
The premature invocation of court’s jurisdiction.
intervention is fatal to one’s cause of action.
Accordingly, absent any finding of waiver or Not applicable where administrative
estoppel the case is susceptible of dismissal remedy is not adequate.
for lack of cause of action. The fact that the law is silent as to the
remedy of appeal from a decision of a
The doctrine is disregarded: department secretary on a specific matter to
(1) when there is a violation of due the President does not mean that the
process, President may not review the action of the
(2) when the issue involved is purely a secretary.
legal question,
(3) when the administrative action is But whether an aggrieved party should
patently illegal amounting to lack or exhaust administrative remedy of appealing
excess of jurisdiction, to the Office of the President before seeking
(4) when there is estoppel on the part judicial relief depends upon whether such
of the administrative agency concerned, appeal is effective, adequate and
(5) when there is irreparable injury, expeditious. Where the decision of the
(6) when the respondent is a department secretary is, by law, executory
department secretary whose acts as an after a certain fixed period, the aggrieved
alter ego of the President bears the party need not exhaust administrative
29
implied and assumed approval of the remedy.

latter,
Page
Not applicable where judicial relief is action without violating the doctrine of
required to prevent violence. exhaustion of administrative remedies
because his action, as the President’s alter
Not applicable where agency acted with ego, deemed to be that of the President.
no jurisdiction.
Not applicable where issue is purely legal.
E.G. Agency acted without jurisdiction or with E.G. of purely legal questions
grave abuse of discretion in taking *W/N the abolition of a position is in
cognizance of a belated appeal from decision accordance with law.
of a lower level administrative body which * W/N a statute or ordinance, pursuant to
had become final and thereafter reversing it. which a public officer has been dismissed
is unconstitutional.
Not applicable where there is yet no * W/N the assessor has the authority, acting
administrate order. solely and independently, to impose an
It is a well-settled rule that, for prohibition to assessment.
lie against an executive officer, the petitioner
must first exhaust administrative remedies. Issues of law cannot be resolved with finality
This doctrine rests upon the assumption that by the administrative officer.
the administrative body, board or officer, if
given the chance to correct its/his mistake or Not applicable where administrative
error, may amend its/his decision on a given remedy is permissive.
matter. The doctrine does not apply where, by the
terms or implications of the statute
Not applicable where there is estoppel. authorizing an administrative remedy, such
Exhaustion is not necessary where there is remedy is permissive only.
estoppel on the part of the party invoking the
doctrine or on the part of the administrative Not applicable where doctrine will result
agency concerned. in nullification of claim.
Or where the administrative agency has no
Not applicable where there is urgency or power to grant the relief sought in civil action,
irreparable damage. such as the claim for damages.
One of the exceptions to the doctrine of
exhaustion of administrative remedies is the Not applicable to quo warrants cases.
urgency of judicial intervention, as when a While it may be desirable that administrative
writ of preliminary injunction is sought in remedies be first resorted to, no one is
which the petitioner has shown that there is compelled or bound to do so; and as said
substantial controversy between the parties remedies neither are prerequisites to nor bar
and the respondent is committing an act or the institution of quo warrant proceedings, it
threatening the immediate commission of an follows that he who claims the right to hold a
act that will cause irreparable injury or public office usurped by another and who
destroy the status quo of the controversy desires to seek redress in the courts, should
before a full hearing can be had on the merits file the proper judicial action within the
of the case, which relief may not be available reglementary period. For public interest
in the administrative proceedings. requires that the rights to a public office
should be determined as speedily as
Not applicable where qualified political practicable.
agency applies.
Pursuant to this doctrine, a party aggrieved Not applicable where there is no law
30
by an order or decision of a department requiring remedies.

secretary may directly file the appropriate Not applicable where agency has no
Page
action against the department secretary’s jurisdiction.

CHAPTER VII and/or mandamus under Rule 65 of the

JUDICIAL REVIEW Rules of Court.
*The mode of judicial review depends on
A. JUDICIAL REVIEW GENERALLY what the administrative agency does.
Generally. Ordinary action for injunction.

Review- re-consideration or re-examination An ordinary complaint for injunction filed with
for purposes of correction. the RTC is the usual remedy against a purely
administrative act of an administrative
Judicial review of an act, rule or decision of agency or against a rule or regulation issued
an executive or administrative agency or in the exercise of its rule-making power as
quasi-judicial body is a re-examination or differentiated from a ruling or decision
determination by the courts in the exercise of promulgated in the exercise of its quasi-
their judicial power. judicial or adjudicatory power.
Through the power of judicial review, courts Appeal.

may determine the legality or propriety of the May be resorted to only when the enabling
exercise of discretion by the political statute specifically provides.
department of the government.
LIMITATIONS ON JUDICIAL REVIEW
Purpose- to keep the administrative agency
within its jurisdiction and protect substantive Limitations, generally.
rights of parties affected by its act, rule or It is a well-recognized principle that purely
decision. The review is part of the system of administrative and discretionary functions
checks and balances. may not be interfered with by the courts. In
general, courts have no supervising power
What are subject to review. over the proceedings and actions of the
Agency actions which may either be: administrative departments of the
a) Non-judicial- purely administrative or government. This is generally true with
executive acts and rules and regulations respect to acts involving the exercise of
b) Quasi-judicial- final orders or decisions judgment or discretion, and findings of fact. It
rendered by the agency in the exercise of is only when there is a grave abuse of
its quasi-judicial power. discretion which is equivalent to a "capricious
and whimsical exercise of judgment" or
Methods of judicial review. "where the power is exercised in an arbitrary
GR: Follow statute. or despotic manner by reason of passion,
prejudice or personal hostility amounting to
Modes of judicial review vary according to an evasion of positive duty, or to a virtual
the statutes and the nature of the agency refusal to perform the duty enjoined, or to act
action sought to be reviewed which are an: at all in contemplation of law" that, as pointed
-ordinary court action out by Justice Barrera, there is a justification
-appeal for the courts setting aside the administrative
-petition for review determination reached.
-petition for writ of certiorari
-petition for prohibition Exercise of review power subject to
-petition for mandamus. certain guideposts.
Review is justified when there has been:
NOTE: Where the statute is silent, the *denial of due process
31
remedies that may be availed of, are the * mistake of law

special civil actions for certiorari, prohibition, * fraud or collusion
Page
* arbitrary action
* lack of supporting evidence and in accordance with the provision of law.

Failure to do so will cause loss of the right to
Judicial review of rules and regulations. appeal and render the decision final.
In considering a legislative rule, a court is
free to make three inquiries: The decisions and orders of administrative
1) W/N the rule is within the delegated agencies, rendered pursuant to their quasi-
authority of the administrative agency; judicial authority, have upon their finality, the
2) W/N it is reasonable; and force and binding effect of a final judgement
3) W/N it was issued pursuant to a proper within the purview of the doctrine of res
procedure. judicata.
Judicial review of administrative PETITION FOR REVEW UNDER RULE 43

decisions, generally. OF RULES OF COURT
GR: Interference is proscribed.
Rationale: administrative authorities are in a Petition for review as mode of appeal.
better position to resolve questions A petition for review isa mode of appeal from
addressed to their particular expertise. the decisions or final orders of quasi judicial
agencies exercising quasi-judicial functions
Interference with administrative filed with the CA pursuant to Sec. 9, B.P. Blg.
discretion, to be avoided. 129 and Rule 43 of the Revised Rules of
Court.
Findings conclusive, exceptions.
In reviewing administrative decisions, the Note: Excluded from the coverage of Rule 43
finding of fact made therein must be are decisions of the COA, COMELEC, whose
respected as long as they are supported by decisions may be questioned by means of s
substantial evidence, even if not petition for certiorari under Rules 54 and 65
overwhelming or preponderant. of the Rules of Court filed with the SC within
30 days from notice thereof.
Judicial interference in technical matters.
Since technical matters are not questions of Where to appeal; exhaustion of remedies
law, the prohibition against interference required.
applies in technical matters. It does not, An appeal under this Rule may be taken to
however, apply to questions of law or to the CA within the period and manner
matters which do not involve discretionary provided. Questions of fact, of law, or mixed
acts or technical matters, nor to anomalies questions of fact and law may be raised.
committed by administrative officers or to
non-compliance with bidding requirements. Petition for review and petition for certiorari
distinguished.
Judicial Review of Presidential discretion. A petition for review under Rule 43 is an
GR: President’s judgment based on ordinary appeal while a petition for certiorari
discretion on a matter is not subject to is a special civil action where questions of
judicial review, even if the same is fact may not be raised.
erroneous.
Where, however, the question refers to the Substantial evidence rule; findings are
validity of the exercise of discretionary generally binding.
power, the Court may exercise it judicial The substantial evidence rule is a limitation
power of review. upon scope of judicial review in
administrative cases. Under this rule, the
32
Final decision beyond judicial review. courts are not supposed to reassess the
The right to appeal is merely a statutory right evidence, determine its preponderance of
Page
and may be exercised only in the manner either side, and substitute its own findings for
those of the administrative agency. All that 10. When the findings are premised on the
the court does is to inquire from the record if absence of evidence but such findings
the findings are based on substantial are contradicted by evidence on record.
evidence. If so, the findings are deemed
conclusive. An action or ruling of an administrative
agency or officer may be set aside where the
latter acted:
ADMINISTRATIVE LAW
JUDICIAL REVIEW 1. without jurisdiction - there is no authority
conferred by law to hear and decide the
C. PETITION FOR REVIEW UNDER RULE case;
43 OF RULES OF COURT 2. exceeded its jurisdiction - respondent
has the legal power to decided the case
Exceptions to substantial evidence rule but oversteps his authority; or
3. committed grave abuse of discretion -
While factual findings of administrative respondent acts in a whimsical,
agencies are generally not disturbed on capricious, arbitrary or despotic manner
appeal, their findings of facts are not in the exercise of his judgment
conclusive and may be reviewed and set amounting to lack of jurisdiction.
aside in the following instances:
Transmittal of record
1. When the factual findings of the
administrative agency and the initial fact- The CA may require the court or agency
finding agency are conflicting; concerned that the original records be
2. When the findings are grounded entirely transmitted to it or it may decide the case on
on speculation, surmises, or conjectures; the merits, without the records being brought
3. When the inference made by the quasi- before it, on the basis of facts and
judicial agency from its findings of fact is admissions of the parties.
manifestly mistaken, absurd, or
impossible; Effect of appeal; execution pending
4. When there is grave abuse of discretion appeal
in the appreciation of facts;
5. When the administrative agency, in The law does not allow execution pending
making its findings, goes beyond the appeal, unless the applicable law so provides
issues of the case, and such findings are or when the CA stays the execution upon
contrary to the admissions of parties; such terms as it may deem just.
6. When the judgment of the administrative
agency is premised on misapprehension Submission for decision
of facts;
7. When the administrative agency fails to If the petition is given due course, CA may
notice certain relevant facts which, if set the case for oral argument or require the
properly considered, will justify a different parties to submit memoranda within a period
conclusion; of 15 days from notice. The case shall be
deemed submitted for decision upon the filing
8. When the findings of fact are themselves
of the last pleading or memorandum required
conflicting
by these Rules or by the CA.
9. When the findings are conclusions
without citation of the specific evidence
The decision or final resolution of CA is
on which they are based; and
33
appealable to SC by petition for review under

Rule 45 of the Rules of Court.
Page
D. PETITION FOR CERTIORARI, 1. It is directed against a tribunal, board or

PROHIBITION, AND MANDAMUS officer exercising judicial or quasi-judicial
functions.
Petition for certiorari
Judicial or quasi-judicial function — the
Certiorari — a special civil action directed determination of what the law is, and what
against any tribunal, board or officer the legal rights of the parties are, with
exercising judicial or quasi-judicial functions respect to the matter in controversy, and, on
which is alleged in a verified petition in the the basis thereof and the facts obtaining, the
proper court to have acted without jurisdiction adjudication of the respective rights of the
or in excess of jurisdiction or with grave contending parties.
abuse of discretion, there being no appeal,
nor any plain, speedy and adequate remedy Where an administrative agency or officer
in the ordinary course of law for the purpose does not exercise judicial or quasi-judicial
of annulling or modifying the proceeding. power, certiorari does not lie.
Questions of facts cannot be raised in an 2. The tribunal, board or officer has acted
original action for certiorari; only established without or in excess of jurisdiction or with
or admitted facts may be considered. grave abuse of discretion.
It is a remedy designed to correct errors of Error of jurisdiction — one where the act
jurisdiction and not errors of judgment. An complained of is issued by the court, officer,
error of judgment is not correctable through or quasi-judicial body without or in excess of
the original special civil action of certiorari, jurisdiction, or with grave abuse of discretion
but by appeal. amounting to lack or excess of jurisdiction.
GR: Where a lower court has jurisdiction over A petition for certiorari seeks to correct errors
the matter, orders or decisions pertaining of jurisdiction, while a petition for review
thereto may not be corrected by certiorari, seeks to correct errors of judgment, which
but by appeal. include errors of procedure or mistakes in the
court’s findings.
XPNs:
1. When public welfare and advancement of GR: Where the court has jurisdiction over the
public policy so dictate; person and subject matter, errors committed
2. When the broader interests of justice so in the exercise of such jurisdiction are errors
require; of judgment.
3. When the writs issued are null and void
or amount to an oppressive exercise of XPN: Where in the course of its proceedings,
judicial authority; or the court committed grave abuse of
4. When appeal is satisfactorily shown to be discretion amounting to lack of jurisdiction,
an inadequate remedy under the the errors are errors of jurisdiction and the
circumstances. remedy of certiorari may be availed of.
Purpose of certiorari 3. There is no appeal nor any plain, speedy

and adequate remedy in the ordinary course
To annul or modify the questioned act or of law.
ruling.
If appeal is available, certiorari cannot be
34
Requisites of certiorari resorted to.

Page
XPNs:
1. When public welfare and advancement of The fact that the law does not provide for an
public policy so dictate; appeal from a decision of an administrative
2. When the broader interests of justice so agency or that it makes its decision “final and
require; unappealable” does not preclude judicial
3. When the writs issued are null and void review of such decision.
or amount to an oppressive exercise of
judicial authority; or When writ may not issue
4. When appeal is satisfactorily shown to be
an inadequate remedy under the It is not available to correct errors of
circumstances. procedure or mistakes in the court’s findings
or conclusion. Errors of fact or law do not
In any of such instances, the special civil involve jurisdiction and may be corrected
action for certiorari may be availed of even only by ordinary appeal. Evaluation of
during pendency of the case, after judgment, evidentiary matters is also beyond the
when appeal has been availed of, or where province of certiorari.
appeal is not adequate, speedy and
effectual. GR: Only errors of jurisdiction or grave abuse
of discretion may be corrected in a petition
A special civil action of certiorari may not be for certiorari.
used as a substitute for lapsed appeal except
when its rigid application will result in a XPN: Where apart from the allegation of lack
manifest failure or miscarriage of justice. or excess of jurisdiction or grave abuse of
discretion on part of the trial court in issuing
When the remedy of appeal has been lost the questioned decision or order, the
due to petitioner’s own neglect or error, petitioner had raised factual issues the
certiorari will not lie as a substitute or tool to resolution of which the appellate court had to
shield the petitioner from its adverse examine the facts, the court may do so and
consequences. make its findings, as basis whether to grant
the writ.
The remedies of certiorari and appeal are
mutually exclusive, except where the interest Motion for reconsideration required;
of justice requires or the dictates of public exceptions
welfare and the advancement of public
demand. The availability of appeal does not A motion for reconsideration must be filed
foreclose recourse to the extraordinary before the remedy of certiorari may be
remedies of certiorari or prohibition where availed of.
appeal is not adequate, or equally beneficial,
speedy and sufficient. XPNs:
(a) where the order is a patent nullity, as
When certiorari may issue where the court a quo has no jurisdiction;
(b) where the questions raised in the
The propriety of certiorari is determined by certiorari proceedings have been duly
inadequacy—not the mere absence—of all raised and passed upon by the lower
other legal remedies and the danger of court, or are the same as those raised
failure of justice without the writ. and passed upon in the lower court;
(c) where there is an urgent necessity for the
A petition for certiorari under Rule 65 may be resolution of the question and any further
treated by the SC as an appeal under Rule delay would prejudice the interests of the
35
45, when the interests of justice so require. Government or of the petitioner or the
subject matter of the action is perishable;
Page
(d) where, under the circumstances, a accomplished act, except where the wrong
motion for reconsideration would be act is continuing or the questioned act is a
useless; nullity, done without or in excess of
(e) where petitioner was deprived of due jurisdiction, or with grave abuse of discretion,
process and there is extreme urgency for and there being no appeal or other plain,
relief; speedy and adequate remedy in the ordinary
(f) where, in a criminal case, relief from an course of law.
order of arrest is urgent and the granting
of such relief by the trial court is Only issues affecting the jurisdiction of the
improbable; tribunal, board or office may be resolved on
(g) where the proceedings in the lower court the basis of undisputed facts.
are a nullity for lack of due process;
(h) where the proceedings was ex parte or in Petition for mandamus
which the petitioner had no opportunity to
object; When any tribunal, corporation, board, officer
(i) where the issue raised is one purely of or person unlawfully neglects the
law or where public interest is involved; performance of an act which the law
specifically enjoins as a duty resulting from
(j) where judicial intervention is urgent;
an office, trust, or station, or unlawfully
(k) where its application may cause great excludes another from the use and
and irreparable damage;
enjoyment of a right or office to which such
(l) failure of a high government official from other is entitled, and there is no other plain,
whom relief is sought to act on the speedy and adequate remedy in the ordinary
matter; course of law, the person aggrieved thereby
(m) when the issue of non-exhaustion of may file a verified petition in the proper court,
administrative remedies has been alleging the facts with certainty and praying
rendered moot; and where special that judgment be rendered commanding the
circumstances warrant immediate and respondent, immediately or at some other
more direct action. time to be specified by the court, to do the
act required to be done to protect the rights
Petition for prohibition of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
When the proceedings of any tribunal, wrongful acts of the respondent.
corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial Mandamus lies under any of the following:
function, are without or in excess of its 1. Against any tribunal which unlawfully
jurisdiction, or with grave abuse of discretion neglect the performance of an act which
amounting to lack or excess of jurisdiction, the law specifically enjoins as a duty;
and there is no appeal, nor any plain, speedy 2. In case any corporation, board or person
and adequate remedy in the ordinary course
unlawfully neglects the performance of
of law, person aggrieved thereby may file a an act which the law enjoins as a duty
verified petition in the proper court, alleging
resulting from an office, trust or station;
the facts with certainty and praying that
3. In case any tribunal, corporation, board
judgment be rendered commanding the
or officer unlawfully excludes another
respondent to desist from further
from the use and enjoyment of a right or
proceedings in the action or matter specified
office to which such other is legally
therein, or otherwise granting such incidental
entitled;
reliefs as law and justice may require.
36
In any of these instances, there is no other

Prohibition restrains the doing of some act
plain, speedy and adequate remedy in the
Page
about to be done. It does not lie against an

ordinary course of law.
Mandamus may not interfere with

Requisites for mandamus to issue exercise of discretion
1. The applicant must have a clear legal GR: Mandamus will not issue to compel a
right to the thing demanded. discretionary act.
Clear legal right — one founded or granted XPNs:

by law. 1. grave abuse of discretion,
2. manifest injustice,
2. The corresponding duty of the defendant 3. palpable excess of authority equivalent to
to perform the required act must also be denial of a settled right to which
clear and specific. petitioner is entitled, and there is no other
3. The duties to be enforced by mandamus plain, speedy and adequate remedy.
must be such as are clearly and
peremptorily enjoined by law or by Instances when mandamus may or may
reason of official station. not lie
4. The respondent must also have the
power to perform the act. Mandamus will not lie:
1. to compel a course of conduct;
Mandamus is simply a command to exercise 2. to compel an official to do anything which
a power already possessed and to perform a is not his duty to do;
duty already imposed. 3. to give the applicant anything which he is
not entitled by law;
5. There must be unreasonable delay in the 4. to compel performance of an act
performance of the duty, notwithstanding prohibited by law;
the demand to perform it. 5. to fulfill contractual obligations.
Ministerial or discretionary power Unlawfully excluded from office or
position
Mandamus will lie to compel the doing of a
ministerial act. It does not lie to control A person who has been excluded from the
discretion, although it may issue to compel use and enjoyment of a right or office to
the exercise of discretion but not the which he is entitled may file a petition for
discretion itself. mandamus, where there is no appeal, nor
any plain, speedy and adequate remedy in
Purely ministerial act or duty — one which an the ordinary course, commanding the board
officer or tribunal performs in a given state of or person that unlawfully excluded him to
facts, in a prescribed manner, in obedience reinstate him to such offie or enjoyment of
to the mandate of legal authority, without such right.
regard to the existence of his own judgment,
upon the propriety or impropriety of the act There must be a clear legal right to the office
done. The duty is ministerial only when the and that he is illegally excluded therefrom.
discharge of the same requires neither the
exercise of official discretion nor judgment. Where the position is disputed by two
persons who both claim thereto, mandamus
Discretion — a power or right conferred upon will not lie to oust the person occupying it and
by law of acting officially, under certain exercise its function. The remedy is an action
circumstance, uncontrolled by the judgment for quo warranto which tests the titles to
37
or conscience of others. one’s office claimed by another and to oust

Page
the holder from it enjoyment

RTC — if the challenged act relates to acts

Common requisites of petitions for or omissions of a lower court or of a
certiorari, prohibition and mandamus corporation, board, officer or person.
1. The petition must be verified. Lower rank — where its decision is

appealable to a higher administrative
A pleading is verified by an affidavit that the agency such as a bureau or department
affiant has read the pleading and that the whose decision is subject to appeal to the
allegations therein are true and correct of his department head.
knowledge and belief. A pleading required to
be verified which contains a verification CA — if it involves the act or omission of a
based on "information and belief", or upon quasi-judicial agency. Applies where the
"knowledge, information and belief", or lacks agency which issued the challenged act is
a proper verification, shall be treated as an co-equal with RTC. Unless otherwise
unsigned pleading. provided by law or Rules of Court.
2. When and where to file petition. Same rank — where its decision is no
longer appealable to a higher
The petition shall be filed not later than sixty administrative agency.
(60) days from notice of the judgment, order
or resolution. In case a motion for The hierarchy of courts must be followed. But
reconsideration or new trial is timely filed, the SC has the full discretionary power to
whether such motion is required or not, the take cognizance of the petition filed directly
sixty (60) day period shall be counted from with it if compelling reasons, or the nature
notice of the denial of said motion. and important of the issues raised, warrant
as clearly and specifically set out in the
The petition shall be filed in the Supreme petition.
Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board, 4. Who should be respondents
officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area When the petition filed relates to the acts or
as defined by the Supreme Court. It may also omissions of a judge, court, quasi-judicial
be filed in the Court of Appeals whether or agency, tribunal, corporation, board, officer
not the same is in aid of its appellate or person, the petitioner shall join, as private
jurisdiction, or in the Sandiganbayan if it is in respondent or respondents with such public
aid of its appellate jurisdiction. If it involves respondent or respondents, the person or
the acts or omissions of a quasi-judicial persons interested in sustaining the
agency, unless otherwise provided by law or proceedings in the court; and it shall be the
these Rules, the petition shall be filed in and duty of such private respondents to appear
cognizable only by the Court of Appeals. and defend, both in his or their own behalf
and in behalf of the public respondent or
No extension of time to file the petition shall respondents affected by the proceedings,
be granted except for compelling reason and and the costs awarded in such proceedings
in no case exceeding fifteen (15) days. in favor of the petitioner shall be against the
private respondents only, and not against the
3. Jurisdiction to issue writ judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person
The SC, CA and RTC have original and impleaded as public respondent or
38
concurrent jurisdiction to issue a writ of respondents.

certiorari, prohibition and mandamus.
Page
Unless otherwise specifically directed by the proceeding, he must state the status of the
court where the petition is pending, the public same; and if he should thereafter learn that a
respondents shall not appear in or file an similar action or proceeding has been filed or
answer or comment to the petition or any is pending before the Supreme Court, the
pleading therein. If the case is elevated to a Court of Appeals, or different divisions
higher court by either party, the public thereof, or any other tribunal or agency, he
respondents shall be included therein as undertakes to promptly inform the aforesaid
nominal parties. However, unless otherwise courts and other tribunal or agency thereof
specifically directed by the court, they shall within five (5) days therefrom.
not appear or participate in the proceedings
therein. The certification must be executed by the
petitioner himself, not his lawyer, unless the
5. Contents of petition petitioner cannot personally sign the same
and his lawyer must state that he has
The petition shall contain the full names and personal knowledge of the facts stated and
actual addresses of all the petitioners and give justifiable reason for petitioner’s failure
respondents, a concise statement of the to execute the certification.
matters involved, the factual background of
the case, and the grounds relied upon for the Injunctive relief
relief prayed for.
The court may issue a status quo order to
It shall be filed in seven (7) clearly legible maintain the last, actual, peaceable and
copies together with proof of service thereof uncontested status of things which precede
on the respondent with the original copy the controversy.
intended for the court indicated as such by
the petitioner, and shall be accompanied by a It may also grant a TRO or a Writ of
clearly legible duplicate original or certified Preliminary Injunction for preservation of
true copy of the judgment, order, resolution, rights of the parties pending the proceedings.
or ruling subject thereof, such material
portions of the record as are referred to E. APPEAL BY CERTIORARI TO THE
therein, and other documents relevant or SUPREME COURT
pertinent thereto.
Decisions of the CA may be elevated to SC
It shall be accompanied by a sworn for review by a petition for review on
certification against forum shopping. certiorari under Rule 45 of the Revised Rules
Petitioner shall pay the corresponding docket of Court.
and other lawful fees and deposit of 500.00
for costs. Appeal by certiorari is discretionary
Failure to comply with the requirements shall A petition for review on certiorari or an
be a sufficient ground for dismissal. appeal to the SC by certiorari from judgment
or final order of the CA, Sandiganbayan, and
6. Non-forum shopping certification RTC or other courts is a matter of sound
discretion. SC may deny due course when it
The petitioner shall submit together with the finds that the appeal is without merit,
petition a sworn certification that he has not prosecuted manifestly for delay, or raises
theretofore commenced any other action questions which are too unsubstantial to
involving the same issues in the Supreme require consideration.
39
Court, the Court of Appeals or different

divisions thereof, or any other tribunal or Appeal under Rule 45 and a special civil
Page
agency; if there is such other action or action of certiorari under Rule 65 are
mutually exclusive. The former is a (a) the conclusion is a finding grounded

continuation of the judgment complained of, entirely on speculation, surmise and
while the latter is an original independent conjecture;
action. The special civil action of certiorari (b) the inference made is manifestly
cannot substitute for failure to timely file a mistaken;
petition under Rule 45. (c) there is grave abuse of discretion;
(d) the judgment is based on a
The petition shall be filed within fifteen (15) misapprehension of facts;
days from notice of the judgment or final (e) the findings of fact are conflicting;
order or resolution appealed from, or of the (f) the collegial appellate courts went
denial of the petitioner's motion for new trial beyond the issues of the case, and their
or reconsideration— findings are contrary to the admissions of
both appellant and appellee;
1. by filing the verified petition sufficient in (g) the findings of fact of the collegial
form and substance as prescribed, with appellate courts are contrary to those of
proof of service thereof on the lower the trial court;
court and on the adverse party and
(h) said findings of fact are conclusions
containing a sworn certification against
without citation of specific evidence on
forum shopping, and
which they are based;
2. by paying the corresponding docket and
(i) the facts set forth in the petition as well
other lawful fees to the clerk of court of
as in the petitioner’s main and reply
the SC and depositing 500.00 for costs.
briefs are not disputed by the
respondents;
Upon motion duly filed and served and full
payment of the fees and deposit before the
(j) the findings of fact of the collegial
expiration of the 15-day period, SC may for appellate courts are premised on the
justifiable reasons grant an extension of 30 supposed evidence, but are contradicted
by the evidence on record; and
days to file the petition.
(k) where the decision contains merely a
Issues or questions of law raised restatement of the evidence but does not
make any findings of fact.
The petition must raise only questions of law
because findings of fact of the lower courts When petition may be given due course
are generally binding upon the SC.
(a) When the court a quo has decided a
GR: In petitions for review on certiorari, SC question of substance, not theretofore
takes the findings of fact of the lower courts determined by the Supreme Court, or
as entitled to great respect and at times even has decided it in a way probably not in
finality. accord with law or with the applicable
decisions of the Supreme Court; or
XPN: Where the lower courts manifestly (b) When the court a quo has so far
overlooked, ignored or misinterpreted certain departed from the accepted and usual
facts or circumstances of weight and course of judicial proceedings, or so far
significance which, if considered, would alter sanctioned such departure by a lower
the result of the case. court, as to call for an exercise of the
power of supervision.
Cases when SC may review findings of
fact of the CA and other lower courts Minute resolution; full blown decision
40
Failure of petitioner to clearly demonstrate

Page
any of the errors of the lower court will justify

the Supreme Court to deny due course to the

petition, usually in the form of minute
resolution.
A minute resolution denying a petition for

review of a decision of the CA means that SC
agrees with or adopts the findings and
conclusions of CA. It constitutes an
adjudication on the merits of the controversy
or subject matter of the petition and operates
as a res judicata.
41
Page
PART II given period either fixed by law or enduring

LAW ON PUBLIC OFFICERS at the pleasure of the creating power, an
individual is invested with some portion of the
CHAPTER 1 sovereign functions of government to be
NATURE AND ELEMENTS OF PUBLIC exercised by that individual for the benefit of
OFFICE the public.
Creation of public office
Incumbent — a person in present possession
Public offices are creations of the of an office; legally authorized to discharge
Constitution and of the law. Except such the duties of an office.
offices as created by the Constitution, the
creation of offices is primarily a legislative The right to hold a public office is not a
function. The legislative department has the natural right. It exists by virtue of law.
discretion to determine whether additional Excepting constitutional offices which provide
offices shall be created, or whether these for some immunity as regards salary and
duties shall be attached to and become ex- tenure, there can be no vested right in an
officio duties of existing offices. office or its salary.
A public office may be created by the Public office is a public trust

Constitution, by law, or by authority of law.
Congress can delegate the power to create All government officials and employees must
positions. Congress has enacted at all times be accountable to the people,
reorganization laws which authorize the serve them with utmost responsibility,
President to create, abolish or merge offices integrity, loyalty, and efficiency, act with
in the executive department, which he patriotism and justice and lead modest lives.
himself exercise by issuing appropriate No untoward conduct on his part affecting
decree or order or by authorizing executive morality, integrity and efficiency while holding
departments or agencies to do so. office should be left without proper and
commensurate sanction. public service
Public offices are filled up either by requires utmost integrity and strictest
appointment, by election, by contract or by discipline. A public servant must exhibit at all
some other modes authorized by law. times the highest sense of honesty and
integrity.
Public office defined
Personal feelings must never be allowed to
A public office is a public trust. A public trust compromise the public-trust character of a
implies a fiduciary relationship between a public office which binds public officers to a
public officer, who is a trustee, and the continuing accountability to the people.
people who are the beneficiaries, of a public
office. Public office is not a property
A public office refers to either of two Public office is a protected right although it is
concepts: not property and cannot acquire vested right
1. as a functional unit of government — any to public office. Thus, a person who has been
major functional unit of a department or proclaimed elected to an office, has taken his
bureau oath, and assumed the position, cannot be
2. as a position — any position held or deprived by the COMELEC by annulling or
occupied by individual persons suspending the proclamation without due
42
notice and hearing. The incumbent of a

Public office — right, authority and duty, public office for a definite term carrying a
Page
created and conferred by law, by which for a fixed salary has a property interest which
requires that he not be deprived of it without 3. Senators

due process of law. 4. Members of the House of
Representatives
The right to office is a right protected by the
security of tenure provision of the All other elective officials are local officials.
Constitution.
Appointive officers created by the
A public office is personal to the public officer Constitution:
and is not transmissible to his heirs upon his 1. Chief Justice of the Supreme Court and
death. Associate Justices
2. Chairmen and Members of Constitutional
There is no vested right or interest or estate Commissions (CSC, COMELEC, COA)
in an office; neither is there an absolute right 3. Ombudsman and his Deputies
to hold it.
Public officers may also be classified into
Public officer and employee defined executive, legislative, judiciary.
Executive officers — execution and
• 1987 Administrative Code enforcement of the laws.
Legislative officers — enact laws or
Officer — a person whose duties, not being ordinances.
of a clerical or manual nature, involves the Judicial officers — exercise judicial power.
exercise of discretion in the performance of
the functions of the government. When use Civil Service Officers and Employees
with reference to a person having authority to — all appointive officers or employees.
do a particular act or perform a particular — either presidential (appointment is not
function in the exercise of governmental subject to approval by CSC) or non-
power, “officer” includes any government presidential appointees (appointment is
employee, agent or body having authority to subject to approval by CSC)
do the act or exercise that function.
The Civil Service Law classifies
Employee — includes any person in the employment in Government into career
service of the government or any of its and non-career service.
agencies, divisions, subdivisions or
instrumentalities. Career Service
Who are the public officers 1. entrance based on merit and fitness, to
be determined as far as practicable by
Broadest classification: competitive examination, or based on
1. civil (civilian or civil service) and highly technical qualifications
2. military (those in military uniform) 2. opportunity for advancement to higher
career positions
Public officers or employees are either 3. security of tenure
national or local, elective or appointive,
whose offices or positions are either created Positions under Career Service
by Constitution or by statutes.
1. Open Career positions for appointment to
Elective national officials created by the which prior qualification in an appropriate
Constitution: examination is required;
43
1. President 2. Closed Career positions which are

2. Vice-President
Page
scientific or highly technical in nature;

these include the faculty and academic 2. Department Heads and other officials of
staff of state colleges and universities, Cabinet rank who hold positions at the
and scientific and technical positions in pleasure of the President and their
scientific or research institutions which personal or confidential staff(s);
shall establish and maintain their own 3. Chairman and members of commissions
merit systems; and boards with fixed terms of office and
3. Positions in the Career Executive their personal or confidential staff;
Service; namely, Undersecretary, 4. Contractual personnel or those whose
Assistant Secretary, Bureau Director, employment in the government is in
Assistant Bureau Director, Regional accordance with a special contract to
Director, Assistant Regional Director, undertake a specific work or job,
Chief of Department Service and other requiring special or technical skills not
officers of equivalent rank as may be available in the employing agency, to be
identified by the Career Executive accomplished within a specific period,
Service Board, all of whom are appointed which in no case shall exceed one year,
by the President; and performs or accomplishes the
4. Career officers, other than those in the specific work or job, under his own
Career Executive Service, who are responsibility with a minimum of direction
appointed by the President, such as the and supervision from the hiring agency;
Foreign Service Officers in the and
Department of Foreign Affairs; 5. Emergency and seasonal personnel.
5. Commissioned officers and enlisted men
of the Armed Forces which shall maintain
a separate merit system;
6. Personnel of government-owned or
controlled corporations, whether
performing governmental or proprietary
functions, who do not fall under the non-
career service; and
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled.
Non-Career Service
1. entrance on bases other than those of

the usual tests of merit and fitness
utilized for the career service; and
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.
Non-Career Service officials and

employees:
44
1. Elective officials and their personal or

Page
confidential staff;
overwhelmingly and clearly expressed, all

CHAPTER II possible doubts should be resolved in favor
APPOINTMENT OF PUBLIC of the candidate’s eligibility to uphold the will
of the people.
OFFICERS
When eligibility must exist to qualify for
(1) QUALIFICATIONS OF APPOINTIVE
office
OFFICERS
The Constitution or the statute usually fixes
Generally
the time when the qualifications must be
possessed by the appointee or elective
To entitle a public officer to hold public office,
candidate for office, either expressly or
he must possess all the qualifications and
impliedly.
none of the disqualifications prescribed by
law for the position not only at the time of his
Appointive officers must have the
election or appointment but also during his
qualifications and none of the
incumbency.
disqualifications as of the date of their
appointment. When the appointee lacks the
Qualification for office — possession of the
required qualifications or is otherwise
qualities or circumstances which are
disqualified to hold office on the date of his
inherently and legally necessary to render
appointment, his appointment is invalid. The
him eligible to fill an office or to perform a
subsequent acquisition of qualifications by
public duty or function.
the officer will not validate the void
appointment. Another appointment will be
To be eligible means legally qualified by law
necessary to qualify him for office.
to hold an office.
The qualifications are continuing
Qualifications or disqualifications for a public
requirements and must be possessed not
office are mandatory. If a person does not
only at the time of appointment or election or
possess the required qualifications or is
assumption of office but also during the
otherwise disqualified to hold it, his
officer’s entire term; once any of them are
appointment or election to a public office is
lost, title to the office is deemed forfeited.
null and void.
Qualifications of appointive constitutional
Ineligible — legally or otherwise disqualified
officers
to hold office; disqualified to be elected to an
office; or disqualified to hold an office if
Chief Justice or a Member of the Supreme
elected or appointed to it.
Court
Power of Congress to prescribe
qualifications
1. natural-born citizen of the Philippines
Congress has the power, consistently with 2. at least forty years of age
the constitutional provisions, to prescribe 3. must have been for fifteen years or
qualifications for appointive or elective more a judge of a lower court or
positions and define who are disqualified engaged in the practice of law in the
therefrom. Philippines
4. must be a person of proven
Laws prescribing qualifications and competence, integrity, probity, and
disqualifications for office should be liberally independence.
45
construed in favor of eligibility. Where a

Page
candidate has received popular mandate,

Chairman and Members of the Civil

Service Commission 1. natural-born citizens of the Philippines
2. at the time of their appointment, at least
1. natural-born citizens of the Philippines forty years old
2. at the time of their appointment, at least 3. of recognized probity and
thirty-five years of age, independence
3. with proven capacity for public 4. members of the Philippine Bar
administration, and 5. must not have been candidates for any
4. must not have been candidates for any elective office in the immediately
elective position in the elections preceding election.
immediately preceding their 6. The Ombudsman must have for ten
appointment. years or more been a judge or engaged
in the practice of law in the Philippines.
Chairman and Members of the
Commission on Elections Qualifications of civil servants
1. natural-born citizens of the Philippines Qualification standards — expresses the

2. at the time of their appointment, at least minimum requirements for a class of
thirty-five years of age positions in terms of education, training and
3. holders of a college degree experience, civil service eligibility, physical
4. must not have been candidates for any fitness, and other qualities required for
elective position in the immediately successful performance. The degree of
preceding elections. qualifications of an officer or employee shall
5. A majority thereof, including the be determined by the appointing authority on
Chairman, shall be Members of the the basis of the qualifications standard for the
Philippine Bar who have been engaged particular position.
in the practice of law for at least ten
years. Duly approved qualification standards for a
class of positions are a prerequisite to the
Chairman and Members of the appointment or promotion to said positions.
Commission on Audit Any appointment extended by the appointing
authority to the position in the absence of
1. natural-born citizens of the Philippines such qualification stands or in disregard
2. at the time of their appointment, at least thereof maybe revoked by the CSC.
thirty-five years of age
3. certified public accountants with not Citizenship requirement
less than ten years of auditing
experience, or members of the Natural-born citizens
Philippine Bar who have been engaged
in the practice of law for at least ten 1. citizens of the Philippines from birth
years without having to perform any act to acquire
or perfect Philippine citizenship.
4. must not have been candidates for any
• parents are Filipino citizens
elective position in the elections
• fathers or mothers are citizens of the
immediately preceding their
Philippines
appointment.
• born out of wedlock of Filipino mothers
5. At no time shall all Members of the
• born out of wedlock of a foreign mother
Commission belong to the same and a Filipino father who has
46
profession.
acknowledged the child as his own
Page
Ombudsman and his Deputies

2. those born before January 17, 1973, of Appointment distinguished from

Filipino mothers, who elect Philippine designation
citizenship upon reaching the age of majority;
Filipino citizen APPOINTMENT DESIGNATION
1. Those who are citizens of the Selection by the Imposition of
Philippines at the time of the adoption proper authority of an additional duties,
of this Constitution; individual who is to usually by law,
2. Those whose fathers or mothers are exercise the functions upon a person
citizens of the Philippines; of a given office. who is already in
3. Those born before January 17, 1973, of the public service
Filipino mothers, who elect Philippine by virtue of an
citizenship upon reaching the age of earlier
majority; and appointment or
4. Those who are naturalized in election.
accordance with law.
Filipino citizenship is a continuing A person may also
qualification requirement for any public office. be designated in
Philippine citizenship can only be reacquired an acting capacity,
after compliance with the requisites of law as when he is
and not by election. called upon to fill a
vacancy pending
Pursuant to R.A. 9225, a natural born citizen the selection of a
who lost his Philippine citizenship may re- permanent
acquire his citizenship by taking the required appointee thereto
oath. or, more usually,
the return of the
B. APPOINTMENT GENERALLY regular incumbent.
Connotes Implies
Appointment
permanency. temporariness and
does not confer
— selection by the authority vested with the
security of tenure.
power, of an individual who is to exercise the
functions of a given office.
Cannot be removed May be replaced at
— act of designation by the executive officer,
except for cause will by the
board or body, to whom that power has been
provided by law. appointing
delegated, of the person who is to exercise
authority or his
the duties and responsibilities of the given
designation lapses
position.
upon the
— should generally be in writing. It should be
appointment of
authenticated in a way that the public may
another person in
know when and in what manner the duty has
his place.
been performed.
The confirmation of appointment by the In determining whether or not an act is a

Commission on Appointments presupposes a designation or appointment, intent will
valid nomination or recess appointment. control. However, appointment, when used in
its generic sense, includes designation in an
47
acting capacity.
Page
Nature of appointment Appointing authority
— essentially an executive function — officer or body vested by the Constitution

— essentially discretionary power and must or by law with the power to make
be performed by the officer in which it is appointments of public officers and
vested according to his best lights, the only employees to public officer or positions.
condition being that the appointee should
possess the qualifications required by law. 1. President of the Philippines
— the appointment cannot be faulted on the 2. Courts
ground that there are others better qualified 3. Heads of departments
who should have been preferred. 4. Agencies
— a political question involving 5. Commissions
considerations of wisdom which only the 6. Boards
appointing authority can decide.
7. Such other officers as the power to
appoint may be delegated by the
It is different where the Constitution or the
legislature
law subject the appointment to the approval
of another officer or body, like the COA.
C. PRESIDENT’S APPOINTING POWER
Appointments made by the President had to
be confirmed by that body and could not be
Constitutional prerogative to appoint
issued or were invalid without such
confirmation. Further, COA could review the
The appointing power is the exclusive
wisdom of the appointment and power to
prerogative of the President, upon which no
refuse to concur with it even if the President’s
limitations may be imposed by Congress,
choice possessed all the qualifications
except those resulting from the need of
prescribed by law. On the contrary, the CSC
securing the concurrence of the COA and
is limited only yo the non-discretionary
from the exercise of the limited power to
authority of determining whether or not the
prescribe the qualifications or
person appointed meets all the true required
disqualifications to a given appointive office.
conditions laid down by law.
Except as he may be restricted by the
Constitution, the President shall appoint all
Thus, the CSC shall have the power to:
other officers of the government whose
“Approve all appointments, whether original
appointments are not otherwise provided by
or promotional, to positions in the civil
law, and those whom he may be authorized
service, except those of presidential
by law to appoint.
appointees, members of the Armed Forces of
the Philippines, police forces, firemen, and
Where the law is silent, the appointing
jailguards, and disapprove those where the
authority is understood to be the President.
appointees do not possess the appropriate
Where a statute does not specify how an
eligibility or required qualifications.”
officer is to be appointed, appointment must
be made by the President because the
— the Commission is only allowed to check
appointing power is essentially the exclusive
whether or not the appointee possesses the
prerogative of the President. The instrument
appropriate civil service eligibility or the
evidencing the appointment may be signed
required qualifications. No other criterion is
by the President himself or by the Executive
permitted by law to be employed by the
Secretary by Authority of the President.
Commission.
Legislative grant of additional duties
48
Page
The grant by law of additional duties to public Members of the COMELEC, CSC, COA,
officers does not constitute and and Sectorial Representatives)
encroachment on the President’s appointing 2. Second, all other officers of the
power. The imposition of new duties Government whose appointments are not
constitutes neither the creation of an office, otherwise provided for by law.
nor the appointment of an officer. 3. Third, those whom he may be authorized
by law to appoint; and
Appointments subject to confirmation by 4. officers lower in rank whose
Commission on Appointments appointments the Congress may by law
vest in the President alone.
Commission on Appointments — agency
tasked to act on all appointments which Only appointments in the first group require
require its approval. the consent of COA.
Composition: Ad interim appointments

1. President of the Senate — as ex officio “in the meanwhile”
Chairman
2. 12 Senators and 12 Members of the — made by the President during the recess
House of Representatives — elected by of Congress of officials whose confirmation
each House on the basis of proportional by the COA is required by the Constitution.
representation from the political parties — these appointments are permanent:
and parties or organizations registered (a) until disapproval by the COA or
under the party-list system represented (b) until the next adjournment of the
therein. Congress — either regular or special
session
The Chairman of the Commission shall act — the termination of ad interim appointment
on all appointments submitted to it within of an officer by any of the modes does not
thirty session days of the Congress from their preclude the President from extending to him
submission. The Commission shall rule by a another ad interim appointment. However, an
majority vote of all the Members. ad interim appointee, who has been rejected
by the COA, cannot be re-appointed to the
The Commission on Appointments shall be same position.
constituted within thirty days after the Senate — To be valid, an ad interim appointment
and the House of Representatives shall have must be released to and accepted by the
been organized with the election of the appointee and he must be qualified to the
President and the Speaker. The Commission position.
on Appointments shall meet only while the — not descriptive of the nature of the
Congress is in session, at the call of its appointment but denotes the manner in
Chairman or a majority of all its Members, to which appointment is made.
discharge such powers and functions as are — may also refer to the appointment
herein conferred upon it. extended by recommending authority when
the appointing body is unable to act.
Officers whom the President shall appoint
Where the confirming authority confirms an
1. First, (a) heads of the executive appointment, it is acting on an ad interim
departments; (b) ambassadors, other appointment. If it was mere designation, it
public ministers and consuls; (c) officers needs no confirmation.
of the armed forces from the rank of
49
colonel or naval captain (d) other officers An ad interim appointment is one made
whose appointments are vested in him in during the time when the confirming body is
Page
this Constitution. (e.g. Chairman and not in session and there is an existing clear
and present urgency caused by an accordance with the procedure laid down
impending obstruction or paralyzation of the by law.
functions assigned to the office if no
immediate appointment is made. Two months immediately before the next
presidential elections and up to the end
Power to issue temporary designation of his term, a President or Acting
President shall not make appointments,
The President may temporarily designate an except temporary appointments to
officer already in the government service or executive positions when continued
any other competent person to perform the vacancies therein will prejudice public
functions of an office in the executive branch, service or endanger public safety.
appointment to which is vested in him by law,
when: (a) the officer regularly appointed to 2. The President can only appoint Members
the office is unable to perform his duties by of the Supreme Court and judges of
reason of illness, absence or any other lower courts from among the list of at
cause; or (b) there exists a vacancy; least 3 members for each position
prepared and recommended by the
In no case shall the appointment exceed 1 Judicial and Bar Council.
year.
3. The President cannot appoint officials
The person designated shall receive the and employees of the Judiciary, as the
compensation attached to the position, power to appoint them belongs to the SC
unless he is already in the government in accordance with the civil service law.
service in which case he shall receive only 4. The President cannot appoint any person
such additional compensation as, with his who lost in any election within 1 year
existing salary, shall not exceed the salary after such election to any office in the
authorized by law for the position filled. The Government or any government-owned
compensation hereby authorized shall be or controlled corporations or in any of
paid out of the funds appropriated for the their subsidiaries.
office or agency concerned.
5. The President can only appoint the
Limitations on the President’s power to Ombudsman and Deputies from among
appoint the list of at least 6 nominees prepared
and recommended by the Judicial and
1. Appointments extended by an Acting Bar Council.
President shall remain effective, unless
revoked by the elected President within 6. The officials and employees of the Office
ninety days from his assumption or of the Ombudsman, other than the
reassumption of office. Deputies, shall be appointed by the
Ombudsman according to the civil
When the Vice-President or other officer service law, and not by the President.
named therein will act as Acting
President, the appointments extended by 7. The Commission on Human Rights shall
him shall remain effective, unless appoint its officers and employees in
revoked by the elected President within accordance with law, precluding the
90 days from his assumption or President from doing so.
reassumption. After 90 days, the
appointments become irrevocable and 8. The Congress may, by law, vest the
50
the appointees may only be removed appointment of lower in rank in the

depending upon the nature of the courts, or in the heads o departments,
Page
appointment or for causes and in agencies, commissions or bars.

The Civil Service Commission, as the central

9. No elective official shall be eligible for personnel agency of the Government, shall
appointment or designation in any establish a career service and adopt
capacity to any public office or position measures to promote morale, efficiency,
during his tenure. integrity, responsiveness, progressiveness,
and courtesy in the civil service. It shall
Unless otherwise allowed by law or by strengthen the merit and rewards system,
the primary functions of his position, no integrate all human resources development
appointive official shall hold any other programs for all levels and ranks, and
office or employment in the Government institutionalize a management climate
or any subdivision, agency or conducive to public accountability (Sec. 3,
instrumentality thereof, including Art. IX-B, 1987 Constitution).
government-owned or controlled
corporations or their subsidiaries. The Civil Service System rests on the
principle of the application of the merit
An elective official cannot be appointed system instead of the spoils system in the
to another position and at the same time matter of appointment and tenure of office.
maintain his elective position. An
appointive official may be appointed or Its general purpose is to insure and promote
designated to another appointive position the general mandate requiring appointments
if a specific law allows or where his only according to merit and fitness, and
primary functions require in an ex officio provide within the public service a
capacity. progressive system of personal
administration to insure the maintenance of
10. Except for the Vice-President who may an honest and efficient progressive and
be appointed as cabinet member, the courteous civil service in the Philippines.
President cannot appoint as cabinet
member, any of his deputies or They are designed to eradicate the system of
assistants to another position. However, appointment to public office based on
it does not prohibit these executive political considerations and to eliminate as
officials from holding additional positions far as practicable the element of partisanship
in ex-officio capacities and as required by and personal favoritism in making
their primary functions but without appointments.
additional compensation in whatever
form. The Administrative Code of 1987 grants
the CSC with the following powers and
functions.
D. CIVIL SERVICE COMMISSION AND
APPOINTMENTS IN THE CIVIL SERVICE SEC. 12. Powers and Functions. — The
Commission shall have the following
2. 23. Civil Service Commission powers and functions:
The Civil Service Commission is the central (1) Administer and enforce the constitutional
personnel agency of the Government which and statutory provisions on the merit
is composed of a Chairman and two system for all levels and ranks in the Civil
Commissioners, appointed by the President Service;
with the consent of the Commission on
Appointments, for a term of 7 years without (2) Prescribe, amend and enforce rules and
51
reappointment. regulations for carrying into effect the

provisions of the Civil Service Law and
Page
other pertinent laws;

(3) Promulgate policies, standards and

guidelines for the Civil Service and adopt (11) Hear and decide administrative cases
plans and programs to promote instituted by or brought before it directly
economical, efficient and effective or an appeal, including contested
personnel administration in the appointments, and review decision and
government; actions of its offices and the agencies
attached to it. Officials and employees
(4) Formulate policies and regulations for the who fail to comply with such decisions,
administration, maintenance and orders, or rulings shall be liable for
implementation of position classification contempt of the Commission. Its
and compensation and set standards for decisions, orders or rulings shall be final
the establishment, allocation and and executory. Such decisions, orders, or
reallocation of pay scales, classes and rulings may be brought to the Supreme
positions; Court or certiorari by the aggrieved party
within thirty (3) days from receipt of a
(5) Render opinions and rulings on all copy thereof;
personnel and other Civil Service matters
which shall be binding on all heads of (12) Issued subpoena and subpoena
departments, offices and agencies and duces tecum for the production of
which may be brought to the Supreme documents and records pertinent to
Court on certiorari; investigations and inquires conducted by
it in accordance with its authority
(6) Appoint and discipline its officials and conferred by the Constitution and
employees in accordance with law and pertinent laws;
exercise control and supervision over the
activities of the Commission; (13) Advise the President on all matters
involving personnel management in the
(7) Control, supervise and coordinate Civil government service and submit to the
Service examinations. Any entity or President an annual report on the
official in government may be called upon personnel programs;
by the Commission to assist in the
preparation and conduct of said (14) Take appropriate action on all
examinations including security, use of appointments and other personnel
buildings and facilities as well as matters in the Civil Service including
personnel, and transportation of extension of Service beyond retirement
examination materials which shall be age;
exempt from inspection regulations;
(15) Inspect and audit the personnel
(8) Prescribe all forms for Civil Service actions and programs of the departments,
examinations, appointments, reports and agencies, bureaus, offices, local
such other forms as may be required by government units and other
laws, rules and regulations; instrumentalities of the government
including government-owned or controlled
(9) Declare positions in the Civil Service as corporations; conduct periodic review of
may properly be primarily confidential, the decisions and actions of offices or
highly technical or policy determining; officials to whom authority has been
delegated by the Commission as well as
(10) Formulate, administer and evaluate conduct of the officials and the
52
programs relative to the development and employees in these offices and apply
retention of qualified and competent appropriate sanctions whenever
Page
workforce in the public service; necessary;

(16) Delegate authority for the (1) policy determining — one vested with the
performance of any function to power of formulating a method of action
departments, agencies and offices where for the government or any of its
such functions may be effectively subdivisions.
performed;
(17) Administer the retirement program for (2) primarily confidential — one where the
government officials and employees, and duties are not merely clerical but are such
accredit government services and as especially devolve upon the head of
evaluate qualifications for retirement; an office, which, by reason of his
numerous duties, he is compelled to
(18) Keep and maintained personnel delegate to others, the performance of
records of all officials and employes in the which requires skill, judgment, trust,
Civil Service; and confidence and involves the responsibility
of the other which he represents; or
(19) Perform all functions properly
belonging to a central personnel agency (3) highly technical — if it requires skill or
and such other functions as may be training in the highest degree.
provided by law.
2.25 Appointive positions in the civil
2.24. Coverage of the Civil Service service and in CES
The 1987 Constitution provides that the Civil The Civil Service Law classifies positions in
Service shall embrace all branches, the civil service into career and non-career
subdivisions, instrumentalities and agencies service positions.
of the Government, including government-
owned or controlled corporations with original Career Service is characterized by:
charters. (1) entrance based on merit and fitness to be
determined as far as practicable by
GOCCs with original charters are those competitive examinations, or based on
organized pursuant to special laws of highly technical qualifications;
charters enacted by Congress. These are
governed by the Civil Service Laws. (2) Opportunity for advancement to higher
career positions; and
GOCCs which are organized under the
Corporation Code of the Philippines, whose (3) Security of tenure.
shares of stock are owned or controlled by
the government or corporations with original
charters, fall outside the coverage of the Civil Positions under the Civil Service are the
Service Laws. following:
GR: Appointments in the Civil Service shall (1) Open Career positions, appointment to
be made only according to merit and fitness which prior qualification in an appropriate
to be determined as far as practicable by examination is required;
competitive examination.
(2) Closed Career position which are
XPN: Entries to these positions do not scientific or highly technical in nature;
require competitive examination of civil these include the faculty and academic
service eligibility. Appointments to positions staff of state colleges and universities,
53
which are: and scientific and technical positions in

scientific or research institutions which
Page
shall establish and maintain their own (2) tenure which is limited to a period
merit systems; specified by law, or which is coterminous
with that of the appointing authority or
(3) Positions in the Career Executive subject to his pleasure, or which is limited
Service, namely, Undersecretary, to the duration of a particular project for
Assistant Secretary, Bureau Director, which purpose employment was made.
Assistant Bureau Director, Regional
Director, Assistant Regional Director, NOTE: These officers nonetheless enjoy the
Chief of Department Service and other constitutional guarantee that they cannot be
officers of equivalent rank as may be removed except for cause and after due
identified by the Career Executive Service hearing.
Board, all of whom are appointed by the
President1; The officials and employees under the
non-career service are the following:
(4) Career officers other than those in the
Career Executive Service, who are (1) Elective officials and their personal or
appointed by the President, such as the confidential staff;
Foreign Service Officers in the
Department of Foreign Affairs; (2) Secretaries and other officials of Cabinet
(5) Commission officers and enlisted men of rank who hold their positions at the
the Armed Forces which shall maintain a pleasure of the President and their
separate merit system; personal or confidential staff(s);
(6) Personnel of government-owned or (3) Chairman and members of commissions

controlled corporations, whether and boards with fixed terms of office and
performing governmental or proprietary their personal or confidential staff;
functions, who do not fall under the non-
career service; and (4) Contractual personnel or those who
employment in the government is in
(7) Permanent laborer, whether skilled, semi- accordance with a special contract to
skilled, or unskilled.: undertake a specific work or job, requiring
special or technical skills not available in
Non-career Service is characterized by: the employing agency, to be
(1) entrance on bases other than those of the accomplished within a specific period,
usual tests of merit and fitness utilized for which in no case shall exceed one year,
the career service; and and performs or accomplishes the
specific work or job, under his own
responsibility with a minimum of direction
and supervision form the hiring agency;
1
Appointment to appropriate classes in the career
and
service are appointed by the President from a list of
career executive eligibles recommended by the board. (5) Emergency and seasonal personnel.
The President may, however, in exceptional cases,
appoint any person who is not a career executive
A similar classification of officers exists under
service eligible, provided that such appointee shall
subsequently take the required career service the Career Service Corps of the DFA,
examination and that he shall not be promoted to a namely, those career officers whose
higher class until he qualifies in such examination. A appointment requires passing competitive
person appointed to a career position who is not examinations and certification by the
eligible under the exception cannot claim that his
54
appointment is permanent and guaranteed him security

Secretary of Foreign Affairs as to his
of tenure in said position. eligibility, who cannot be removed except for
Page
cause as provided by law; and those so

called political “appointees” who do not (1) Presidential Appointees — those

possess such qualifications and whose appointed by the president which the
tenure is coterminous with the appointing Constitution or the law requires him to
authority or subject to his pleasure. make. NOTE: Presidential appointees are
not subject to approval by the CSC.
NOTE: Except elective officials in the non- GR: Suspension or removal of presidential
career service, all other officers and appointees is a presidential prerogative, with
employees in the career and non-career or without cause as against the Cabinet
service are appointive. members and those occupying primarily
confidential positions, or for cause after due
Three levels of positions in the career hearing with respect to those in career
service: service holding permanent positions.
XPN: Except as expressly provided by the
(1) First — includes clerical, trades, crafts Constitution.
and custodial service positions involving
non-professional or sub-professional work (2) Non-presidential Appointees — those
in a non-supervisory or supervisory appointed by the appointing authorities of
capacity requiring less than four years of the government in accordance with the
collegiate studies; civil service law.
(2) Second — includes professional, Only Two Kinds of Appointments under the
technical and scientific positions involving Administrative Code of 1987. No more
professional, technical, or scientific work provisional appointment.
in a non-supervisory or supervisory
capacity requiring at ;east four years of (1) Permanent Status — issued to a person
college work up to division chief level; who meets all the requirements for the
and position to which he is being appointed,
including the appropriate eligibility
(3) Third — includes positions in the career prescribed, in accordance with the
executive service which consists of provisions of law, rules and standards
undersecretary, assistant secretary, promulgated in pursuance thereof;
regional director, assistant regional
director, chief of department service and (2) Temporary Status — issue to a person
other officers of equivalent rank as may who meets all the requirements for the
be identified by the Career Executive position to which he is being appointed
Service Board, all of which are appointed except the appropriate civil service
by the President. eligibility. It shall not exceed 12 months,
but the appointee may be replaced
Entrance to first two levels shall be through sooner if a qualified civil service eligible
competitive examinations, while entrance to becomes available.
the third level shall be prescribed by the
Career Executive Service Board. Coterminous Employee — issued to a person
whose entrance in the service is
NOTE: Eligibility is a sine qua non to characterized by confidentiality by the
acquiring a permanent appointment, except appointing authority or that which is subject
those positions which are not required by law to his pleasure or co-existent with his tenure.
to be filled with civil service eligibles. Further classified as follows:
(a) Coterminous with the project;
55
2. 26. Kinds of appointive officers; of (b) Coterminous with the appointing

appointments authority;
Page
(c) Coterminous with the incumbent; and

(d) Coterminous with a specific period. the government service, provided that it is
done in good faith for the best interest of the
public service.
Requisites of appointment; exercise of
discretion Appointee must be qualified.
(1) Appointing authority is vested with power Except where the position does not require
to make appointment at the time such is civil service eligibility, the term “permanent
made; appointment” implies appropriate civil service
(2) Appointee possesses all the eligibility on the part of the appointee. Absent
qualifications, including appropriate civil such eligibility, the “permanent appointment”
service eligibility and none of the extended to him as approved by the CSC is
disqualifications prescribed by law for the considered provisional, subject to
position; replacement by a person with the required
(3) The position is vacant; eligibility.
(4) Appointee has been approved by the
CSC; and There should be vacancy.
(5) The appointee accepts the appointment There is vacancy when there is no person
by taking the oath and entering the lawfully authorized to assume and exercise
discharge of his office. at present the duties of office. The term
appointment is equivalent to filling a vacancy.
Lack of one requisite, the appointment is Where there is no vacancy, there can be no
invalid and the officer discharging such valid appointment thereto.
functions is merely a de facto officer.
The appointment extended to a person in a
Appointing authority; exercise of non-vacant position is null and void, and the
discretion same could not be validated or revived by a
Appointment is essentially an exercise of subsequent act, although he may be
discretionary power so long as the requisites extended another appointment after the
are complied with. A valid appointment position has become vacant.
cannot be faulted on the ground that there
are others better qualified who should have Power of CSC to approve appointments.
been preferred. It is a political question. GR: Appointments in the civil service
requires the approval of the CSC. The CSC
Such cannot even be controlled by the Court has the power to approve all appointments,
as long as it is exercise properly by the whether original or promotional, to positions
appointing authority. in the civil service and to disapprove those
where the appointees do not possess the
NOTE: A person with temporary appointment appropriate eligibility or required
is not entitled, as a matter of right, to be qualifications.
appointed or re-appointed in a permanent
capacity after he acquired a civil service XPN: Presidential appointees, members of
eligibility. Acquisition of eligibility is not the the AFP, police forces, firemen, jailguards.
sole factor for reappointment. Performance,
degree of education, work experience, etc The CSC determines, in the main, whether
must be considered. Also, the law requires the proposed appointee is qualified to hold
that permanent employees, who have been the position and whether or not the rules
removed following a valid reorganization, be pertinent to the process of appointment are
given preference in the appointment to new followed. Its authority is limited to reviewing
56
positions in the reorganized office, but it does appointments on the basis of the civil service
not preclude the appointing authority to law. When the appointee is qualified and all
Page
infuse new blood or necessary talents into the other legal requirements are satisfied, the
Commission has no choice but to attest to is better qualified for that would constitute an
the appointment. After that function is encroachment on the discretion vested solely
discharged, its participation in the appointing in the appointing authority. For the CSC is
process ceases. not empowered to determine the kind of
nature of the appointment extended by the
The appointment shall take effect appointing officer, its authority being limited
immediately upon its issuance by the to approving or reviewing the appointment in
appointing authority if the appointee assumes the light of the requirements of the civil
his duties immediately and shall remain service law.
effective until it is disapproved by the CSC, if
this should take place, without prejudice to Also, it has no authority to inquire into the
the liability of the appointing authority for right of the appointing officer to hold office,
appointments issued in violation of existing which is a function of quo warranto
laws or rules. proceeding that may only be initiated by the
Solicitor General or by the person claiming to
An appointment not submitted to the be entitled to the position.
Commission within 30 days from the date of
issuance, which shall be the date appearing However, the commission may inquire
on the face of the appointment, shall be whether the office itself or the appointing
ineffective. officer possesses the prerogative to issue the
appointment, and in the negative to
The appointment process. disapprove the appointment.
Under the Civil Service law, the appointment
to the civil service must be submitted to the An appointment approved by the CSC
CSC for approval, i.e., for determination “subject to the availability of funds” is a
whether the proposed appointee is qualified permanent, not conditional appointment.
to hold the position, and whether or not the Every appointment to the position in the civil
pertinent rules have been followed in making service presupposes the existence of a
the appointment. An appointment is not final corresponding item or fund in the budget, be
and complete until after the same is it national, provincial, city or municipal, from
approved by the CSC. After such approval which the salary of the appointee is to be
and assumption of office of the appointee, drawn.
the appointment made and approved should
not be disturbed, even if some violation of However, an appointment extended to an
office rules have been committed due to appointee, which is subject to certain
inadvertence. Unless the appointment is a conditions, such as that there is no pending
nullity, or in the absence of fraud on the part administrative case against him, no pending
of the appointee, the irregularity must be protest against his appointment, nor any
deemed cured by the absolute appointment decision by the competent authority that will
of the appointee and should be considered adversely affect the approval of appointment,
conclusive. is bot a complete appointment. Until the
conditions are met, the appointment cannot
2.29 Limitations on the power to approve confer any permanent status.
appointments.
The power of the CSC does not include the
authority to make the appointment itself or to 2.30. Opposition to the appointment.
direct the appointing authority to change the Protest is a mode of action that may be
employment status of an employee. availed of by the aggrieved party to contest
57
the appointment of another to a particular

It has no authority to revoke an appointment position. It must be for a “legal cause” based
Page
simply because it believes that the protestant on the following grounds:

the appointment or by removal, except for

(1) that the appointee is not qualified; cause and after previous notice and hearing.
(2) that the appointee is not the next-in-rank;
and The CSC has the power to recall, on its
(3) in the case of appointment by transfer, initiative, an appointment initially approved
reinstatement or by original appointment, on any of the following grounds:
that the protestant is not satisfied with the
written special reason/s given by the (1) Non-compliance its the
appointing authority. procedures/criteria in the agency’s merit
promotion plan;
NOTE: The fact that the protestant is more (2) Failure to pass through the agency’s
qualified than the protestee in terms of selection/promotion board;
education, experience and training does not (3) Violation of the existing collective
fall within the meaning of “for cause”, which agreement between management and
would warrant the revocation of the employees relative to promotion; or
appointment. (4) Violation of other existing civil service
law, rules and regulations.
Due process must however be given to the
protestee and not merely be dismissed from An appointment secured though fraud or
office or employment. The interested parties issued in violation of law may be void from
must be given an opportunity to present their the beginning. It cannot give rise to security
case and the decision or resolution should be of tenure on the part of the holder of such
supported by substantial evidence presented appointment. His appointment can be
by the affected parties before the tribunal. recalled.
Protest cases are decided in the first 2.32. When appointment is complete;
instance by the head of the department or acceptance of appointment necessary.
agency, subject to appeal to the Civil Service An appointment is complete where all its
Commission. requisites for the position have been met.
Absence of any one of these makes the
2.31. Revocation or recall of appointment. appointment incomplete and invalid.
GR: An appointment once made is
irrevocable and not subject to Taking of the oath is indispensable. It is a
reconsideration. The rule is qualified, where qualifying requirement for public office; a
assent, confirmation or approval of some prerequisite to the full investiture with the
other officer or body is needed before office. Only when the public officer has
appointment may issue and be deemed satisfied the prerequisite of oath that his right
complete. to enter into the position becomes plenary
and complete. Until then, he has none at all.
Revocation of an appointment, to be
successful must be made before the The taking of an oath and the entry into the
appointment is completed or before its discharge of the duties of office amount to an
approval by the CSC in case of appointments acceptance of the position, and acceptance
in the civil service. is indispensable to complete the
appointment.
After completion of the appointment and the
appointee has assumed the position, he Thus, it has been held that as between two
acquires the legal, not merely equitable right, appointments, one in favor of a person who
58
which is protected not only by the statute, but immediately took his oath and began to
also by the Constitution, and it cannot be discharge of his duties, and the second one
Page
taken away from him, either by revocation of in favor of a person who waited until the CSC
has approved it, the former prevails. The fact occupies a primarily confidential position.
that the latter appointment was confirmed by It ends upon the loss of confidence,
the CSC does not complete it since because their term lasts only as long as
confirmation or attestation by the confidence in them endures. When such
Commission, although an essential part of pleasure turns into displeasure, the
the appointing process, serves merely to incumbent is not removed or dismissed
assure the eligibility of the appointee. form office — his term merely expired.
2.33. Permanent Appointment. Tenure is limited to a period specified by law,

A permanent appointment can only be issued or is coterminous with that of appointing
to a person who meets all the requirements authority or subject to his pleasure, or is
for the position to which he is being limited to the duration of a particular project
appointed, including appropriate eligibility for which purpose employment is made.
prescribed.
An appointment which has a definite period
A person who does not have the requisite and is renewable for a definite period expires
qualifications cannot be appointed in the first when it is not renewed; it does not involve a
place or, only as an exception, may be dismissal but an expiration of the term.
appointed to it merely in an acting capacity in
the absence of appropriate eligibles. The An appointment in favor of an appointee for a
appointment to him cannot be regarded as fixed term, “unless sooner terminated,”
permanent even if it may be so designated. implies that he can be removed only for
causes as provided by law and after due
2.34. Term and tenure. hearing.
A permanent appointment carries a term,
while a temporary appointment implies a NOTE: Where the law fixes the term of an
mere tenure. officer, he cannot be removed from office,
except for cause as provided by law. Fixity of
Term — the period during which an office tenure destroys the power of removal at
may be held. pleasure otherwise incident to the appointing
power.
Tenure — the period during which the
incumbent actually holds the office, which The term of office of a Senator is 6 years
may be shorter than the term. while that of a Member of the House of
Representatives is 3 years. Their tenure may
A term may be classified into three (3) kinds: be shortened, as provided in the Constitution
(1) Term expressly fixed in duration by the in the following instances:
Constitution or the law. Thus, the
Chairman and members of the (1) Forfeiture of his seat by holding any other
Constitutional Commissions have fixed office or employment in the government
terms of seven years. or any subdivision, agency or
(2) Term during good behavior until reaching instrumentality thereof, including
retirement age. For instance, members of government-owned or controlled
the Supreme Court and judges of the corporations or subsidiaries, pursuant to
lower courts shall hold office during good Sec 13, Art. VI.
behavior until they reach the age of 70 (2) Expulsion as a disciplinary action for
years or become incapacitated to disorderly behavior, in accordance with
discharge the duties of their office. Sec. 16 (3), Art. VI.
59
(3) Indefinite term which terminates at the (3) Disqualification as determined by the
pleasure of the appointing authority. — resolution of the Electoral Tribunal in an
Page
This is the term of office of one who election contest, per Sec. 17, Art. VI.
(4) Voluntary renunciation of office, pursuant REASON: The law abhors a vacuum in
to Sec. 7, par. 2, Art. VI. public offices. This is founded on
considerations of public policy, for the
Pursuant to the Constitution, an officer or principle of holdover is specifically intended
employee with a term may not be removed or to prevent public convenience from suffering
suspended except for cause, as provided by because of a vacancy and to avoid a hiatus
law, while an officer or employee with a in the performance of government functions.
tenure does not enjoy security of
employment. A law which changes the term The following however are exemptions to the
to tenure and makes the officer removable at concept of hold-over:
the pleasure of the appointing authority is (1) Except where the Constitution requires;
unconstitutional. as it is designed to or
circumvent the provision on security of (2) Where Constitutional provision on
tenure. security of tenure will be violated. — for
instance, Sec. 8 of ARt. X of the
The general rule is that where the Constitution has fixed the term of local
Constitution or the law fixes both the duration officials to 3 years. The Constitutional
of the term of office and the time of its provision precludes Congress from
commencement, a person elected or enacting hold-over provisions which
appointed to fill a vacancy in such office would extend such term, without
holds it for the unexpired portion of the term. rendering the same unconstitutional.
He may not be appointed for a full term
without violating the law fixing the term or 2.36. Temporary or acting appointment.
unduly extending his services. However, if he Generally, the power to appoint vested in the
is appointed to a full term even where what is President or in any appointing authority
left of the term is only an unexpired portion includes the power to make temporary
thereof, his continuing to serve until the full appointments, unless he is otherwise
term or until his term is judicially terminated specifically prohibited by the Constitution or
does not render his acts done beyond the by law, or a temporary or acting appointment
unexpired term invalid nor make the salaries is repugnant to the nature of the office to be
paid him illegal, as he is deemed a de facto filled as well as when an office is not under
officer. the control of the President and the
Constitution or the law provides safeguards
2.35. Hold-over concept. to secure its independence.
This concept implies that the office has a
fixed term and the incumbent is holding onto The purpose of an acting or temporary
the succeeding term. It is usually provided by appointment is to prevent a hiatus in the
law that officers elected or appointed for a discharge of official functions by authorizing
fixed term shall remain in office not only for a person to discharge the same pending the
that term but until their successors have selection of a permanent or another
been chosen and qualified. Where this appointee. The person named in an acting
provision is found, the office does not capacity accepts the position unit the
become vacant upon the expiration of the condition that he shall surrender the office
term if there is no successor elected or once he is called upon to do so by the
appointed and qualified to assume it, but the appointing authority. This is not covered by
present incumbent will carry over until his the constitutional provision on security of
successor is elected or appointed and tenure.
qualified, even though it be beyond the term
fixed by law. The successor’s tenure is
60
A public officer appointed in an acting

shortened. capacity cannot claim that the appointment
Page
shall in time ripen into a permanent one.

Neither can the appointing authority use the Promotion in the Civil Service should always
principle of temporary appointments to evade be made on the basis of qualifications,
or avoid the security of tenure principle in the including occupational competence, moral
Constitution and the Civil Service Law such character, devotion to duty, and, not the
as by converting permanent positions to least, loyalty to the service. The last trait
temporary or primarily confidential items so should always be given appropriate weight,
that he can more freely hire and fire to reward the civil servant who has chosen to
subordinates at his personal discretion. make his employment in the Government a
lifetime career in which he can expect
Courts may inquire into the true nature of an advancement through the years for work well
“acting appointment” to determine whether or done.
not it is used as a device to circumvent the
security of tenure principle and when Where, on the other hand, an employee who
circumstances indicate an affirmative had been permanently appointed to a
answer, it will consider the “acting” position, is promoted to another position and
appointment permanent. his promotional appointment is invalidated,
Temporary status may also rise from the fact he is deemed to to have abandoned his prior
that the appointment is defective or the office and should be reverted back to his old
appointee lacks the required civil service position.
eligibility. The fact that the appointee
obtained subsequently civil service eligibility 2.38. Reinstatement.
is of no moment and did not ipso facto Reinstatement is technically issuance of a
convert his temporary appointment into a new appointment which is essentially
permanent one. Neither did the approval of discretionary, to be performed by the officer
CSC of the temporary appointment into a in which it is vested according to his best
permanent one make it permanent because lights, the only condition being that the
CSC has no authority or power to make the appointee should possess the qualifications
appointment itself or to direct the appointing required by law.
authority to change the employment status of
the employee. 2.39. Nepotism as a restriction on
appointment.
A bonafide appointment in an acting capacity
is essentially temporary and revocable in Sec. 59, Book V of the Revised
character and the holder of such appointment Administrative Code of 1987 provides that all
may be removed anytime even without appointments in the national, provincial, city
hearing or cause. and municipal governments or in any branch
or instrumentality thereof, including
Designation refers to the assignment of a government-owned or controlled
public officer to perform certain functions corporations, made in favor of a relative of
different from those of his position to which the appointing or recommending authority, or
he has been appointed. By its nature, it is of the chief of the bureau or office, or of the
temporary and the designation does not persons exercising immediate supervision
confer upon the designee security of tenure over him, are hereby prohibited.
in the position or office which he occupies in
an acting capacity. However, acceptance or The prohibition extends to promotional
designation by a public officer in an acting appointments, designations in an acting
capacity does not amount to abandonment of capacity, or all personnel actions occurring
his permanent position. after an original appointment which require
61
the issuance of a new appointment to

2.37. Promotional appointment. another position or to the original position in
Page
the case of reinstatement.

spouse without violating the rules on

PURPOSE: To ensure that all appointments nepotism.
and other personnel actions in the civil (5) Those appointed in GOCC’s with which
service should be based on merit and fitness are organized under the corporation law.
and should never depend on how close or The rules on nepotism apply only to
intimate an appointee is to the appointing GOCC’s with original charters or those
power. which have been created by special law
enacted by Congress.
To guarantee that this law is duly observed, it
is required that the appointing or 2.40. Void appointments.
recommending authority should issue a A void appointment confers no right
certification that he is not related to the whatsoever, except those recognized under
appointee within the third degree of the doctrine of “de facto officer,” but never so
consanguinity or affinity. far as to entitle the incumbent to take shelter
under the guarantee of security of tenure.
The Code of Ethical Standards for Public
Official and Employees requires that it shall (a) If the appointment is void for non-
be the duty of every public official or compliance with legal requirements, no
employee to identify and disclose, to the best number of assignments nor mistake,
of his knowledge and information, his acquiescence and tolerance of the other
relatives in the Government in the form, proper officials, will validate it. It can only
manner and frequency prescribed by the be corrected by another valid
CSC. appointment.
(b) An appointment secured through forgery
Nepotism is a grave offense punishable with and misrepresentation is null and void
dismissal from the service, even as a first and should not be prolonged any moment
offense. It is also a crime pursuant to Sec. 11 longer. However, the appointee may not
of the Code of Conduct and Ethical be required to refund the salaries and
Standards for Public Officials and benefits he has received for services
Employees. And an appointing or actually rendered in the performance of
recommending official who falsely denied the functions of the position.
that he is not related to the appointee within (c) A permanent appointment issued by the
the third degree may likewise be held liable appointing authority and attested as such
for falsification. by the CSC in favor of a person who does
not possess the civil service eligibility
The following are exempted from the rules on required by law for the position is null and
nepotism: void.
(1) Persons employed in a confidential (d) The permanent appointment of a non-civil
capacity; service eligible to a career position is,
(2) Teachers; from a legal viewpoint, a nullity. Not even
(3) Members of the AFP; the CSC can validate the error, as it
(4) The case of a member of any family who, cannot rise higher than the law that
after his or her appointment to any created it — the same law that requires
position in an office or bureau, contracts civil service eligibility for a permanent
marriage with someone in the same office appointment to the position.
or bureau, in which event the employment
or retention therein of both husband and 2.41. Appointment of one who has retired.
wife may be allowed. However, a spouse CSC Memorandum Circular No. 5, s-1983
62
who happens to be an appointing or prescribes the requirements for the

recommending authority cannot extend a appointment, reinstatement or retention of
Page
promotional appointment to the other

persons who have retired or have reached the basis of merit and fitness as
the retirement age of 65 years, as follows: determined by competitive examinations;
and
(1) the exigencies of the service require; (2) while the 1987 Constitution does not
(2) the officer or employee concerned exempt such positions from the operation
possesses special qualification not of the principle set out in Art. IX (B), Sec.
possessed by other officers or employees 2(3) of the same Constitution that “no
in the agency where he is to be appointed officer or employee of the Civil Service
or retained; and shall be removed or suspended except
(3) the vacancy cannot be filled by promotion for a cause provided by law,” the “cause
of qualified officers or employees in the provided by law” includes “loss of
agency concerned, or by transfer of confidence.”
qualified officers or employees from other
government agencies, or there are no It is a settled rule that those holding primarily
eligibles in the appropriate register of the confidential positions continue for so long as
Commission available for certification to confidence in them endures.
the vacancy.
But this loss of confidence rule does not
Extraordinary care is required of the apply to those holding highly technical posts,
appointing officer in case of the appointment requiring special skills and qualifications.
of a retiree.
2.44. Appointment of next in rank.
CSC Mem. Cir. No. 5, S-1983 doe not apply Sec. 3, Rule V on promotions of the Civil
to Cabinet or to primarily confidential Service Rules on Personnel Actions and
positions. Policies defines next-in-rank as follows:
2.42. Double appointment. “A next-in-rank position refers to position

Double appointments are not prohibited as which, by reason of the hierarchical
long as the positions involved are not arrangement of positions in the department
incompatible, except that the officer or or agency or in government, is determined to
employee appointed cannot receive be in the nearest degree of relationship to a
additional or double compensation unless higher position taking into account the
specifically authorized by law. following: (1) organization structure/s is
reflected in the approved organizational
2.43. Primarily confidential positions. chart/s; (2) classification and/or functional
What determines whether a position is relationships; (3) salary and/or range
primarily confidential depends of the nature allocation; and (4) geographical location.
of the functions of the office, and not on the
classification thereof made by the CSC. The Vacancies are filled by transfer of present
fact that the Commission has classified a employees, reinstatement, reemployment, or
position as a career position and certified the appointment of outsiders who have
same as permanent does not change the appropriate civil service eligibility.
primarily confidential nature of the position
where its functions are basically of such The law requires that the next-in-rank shall
nature. be considered for promotion whenever a
position in the first level becomes vacant.
The effects of characterizing a position as However, there is no mandatory nor
“primarily confidential” are two-fold: peremptory requirement that persons next in
63
(1) such characterization renders rank be appointed to the vacant position. The
inapplicable the ordinary requirement of reason is that the next-in-rank rule neither
Page
filling up a position in the Civil Service on grants a vested right to the holder nor
imposes a ministerial duty on the appointing (2) file a petition for certiorari with CA; and
authority. For to apply the next-in-rank rule (3) file a petition for certiorari from CA’s
peremptorily would impose a rigid formula on decision to SC.
the appointing power contrary to the policy of
the law that among those qualified and RTC has no jurisdiction to entertain cases
eligible, the appointing authority is granted involving dismissal of officers and
discretion and prerogative of choice of the employees covered by the civil service law.
one he deems fit for appointment, even if he
is less qualified than the next-in-rank. Jurisdiction over strikes and dismissal of
employees in GOCC’s with original charters
A next-in-rank who is competent and is lodged with CSC, not NLRC. However,
qualified and feels aggrieved by the such GOCC may be estopped from
promotion of another may file a protest with questioning NLRC’s jurisdiction when it filed
the department or agency head who shall a complaint there seeking affirmative reliefs
render a decision thereon within 30 days therefrom and belatedly raising the issue of
from receipt of the protest. Appeal may be jurisdiction only before the SC.
made to CSC within 15 days from receipt of
the decision and the latter’s decision or 2. 46. Liability for Illegal Appointment.
resolution denying motion for reconsideration PD No. 807 provides:
may be elevated to CA by petition for review
within 15 days from receipt of said decision Sec. 53. Liability of Appointing Authority.
or resolution. — No person employed in the Civil Service in
violation of the Civil Service Law and rules
2.45. Government-owned or controlled shall be entitled to receive pay from the
corporations. government; but the appointing authority
A GOCC is a stock or non-stock corporation shall be personally liable for the pay that
whether performing governmental or would have accrued had the employment
proprietary functions, which is directly been lawful, and the disbursing officials shall
chartered by special law or if organized make payment to the employee of such
under the general corporation law is owned amount from salary of the officers so liable.
or controlled by the government or subsidiary
corporation, to the extent of at least a Sec. 55. Whoever makes any appointment or
majority of its outstanding capital stock or of employs any person in violation of any
its outstanding voting stock. provision of this decree or the rules made
thereunder or whoever commits fraud, deceit
Under Sec. 2(1), Art. IX of the 1987 or intentional misrepresentation of material
Constitution, the civil service embraces only facts concerning other civil service matters,
GOCC’s with original charter or those or whoever violates, refuses or neglects to
created by special law enacted by Congress. comply with any of such provisions or rules,
It does not include GOCC’s which are shall upon conviction be punished by a fine
organized under the general law or the not exceeding one thousand pesos or by
Corporation Code as the employees and imprisonment not exceeding 6 months, or
officers of the later are governed by the both such fine and imprisonment in the
Labor Code. discretion of the court.
Remedies of an employee governed by the The above provisions were re-enacted in

CSC rules from a decision, ruling, order or Secs. 66 and 67, Title I, Subtitle A, Book V of
action of an agency of the government the 1987 Administrative Code.
64
involving termination of services is to: Additionally, Art. 244 RPC likewise makes it
(1) appeal to the CSC within 15 days from a crime for any public officer to knowingly
Page
the receipt thereof; if still aggrieved, nominate or appoint to any public office any
person lacking any legal qualification therefor Board on the basis of the members’
with the penalty of arresto mayor and a fine functional expertise.
not exceeding P1, 000. 00.
2. 48. Security of tenure in CES.
E. CAREER EXECUTIVE SERVICE (CES) Security of tenure in the CES is acquired with
respect to rank and not to position. The
2.47. Appointment, assignment, guarantee of security of tenure to members
reassignment and transfer in CES of the CES does not extend to the particular
The provisions under the Integrated positions to which they may be appointed —
Reorganization Plan read: a concept which is applicable only to first and
second level employees in the civil service —
c. Appointment. — Appointment to but to the rank to which they are appointed
appropriate classes in the CES shall be by the President. A CES officer does not
made by the President from a list of career acquire security of tenure by the mere fact
executive eligibles recommended by the that he is appointed to the higher position.
Board. Such appointments shall be made on
the basis of rank; provided that the Thus, a career executive service officer may
appointments to the higher ranks which be transferred or reassigned from one
qualify the incumbents to assignments as position to another without losing his rank
undersecretary and heads of bureaus and which follows him whenever he is transferred
offices and equivalent positions shall be with or assigned. He suffers no diminution of
the confirmation of the Commission on salary even if assigned to a CES position
Appointments. The President may, however, with lower salary grade, as he is
in exceptional cases, appoint any person compensated according to his CES rank and
who is not a Career Executive Service not on the basis of the position or office
eligible; provided that such appointee shall which he occupies.
subsequently take the required Career
Executive Service Examination and that he Two requisites must concur in order that an
shall not be promoted to a higher class until employee in the career executive may attain
he qualifies in such examination. security of tenure:
(1) CES eligibility; and
At the initial implementation of this Plan, an (2) Appointment to the appropriate rank.
incumbent who holds a permanent
appointment to a position embraced in the F. QUO WARRANTO AS REMEDY TO
CES shall continue to hold his position, but QUESTION TITLE
may not advance to a higher class of position
in the CES unless or until he qualifies for 2.49. Quo warranto defined.
membership in the CES. It is a proceeding to determine the right to the
use or exercise of an office and to oust the
xxx holder from its enjoyment, if his claim is not
well-founded or if he has forfeited his right to
e. Assignments, Reassignments and enjoy the privilege. It is a special civil action
Transfers. — Depending upon their ranks, commenced by a verified complaint filed in
members of the Service shall be assigned to court against a person who usurps, intrudes
occupy positions of Undersecretary, into, or unlawfully holds or exercises a public
Assistant Secretary, Bureau Director, office or position, or who does or suffers and
Assistant Bureau Director, Regional Director, act which, by the provision of law, constitutes
Assistant Regional Director, Chief of a ground for the forfeiture of his office, in
65
Department Service and other officers of accordance with Rule 66 of the 1997 Rules
equivalent rank as may be identified by the of Civil Procedure.
Page
2.50. Quo warranto in appointive and elective

positions, distinguished. quo warranto mandamus
The remedy of quo warranto has been Tests the title to one’s Avails to enforce clear
extended to cover voter’s action contesting office claimed by legal duties and not to
the election of any officer on the ground of another and has its try disputed titles;
ineligibility or disloyalty to the State. A object the ouster of
petition for quo warranto under the Omnibus the holder from its
Election Code raises in issue the disloyalty or enjoyment;
ineligibility of the winning candidate. It is a
proceeding filed within 10 days from Will lie where it Will lie if it is shown
proclamation to unseat the respondent from appears that another that petitioner has a
office but not to install the petitioner in his person has already clear legal right to a
place. been appointed to and particular public office
is already occupying and that respondent is
There is a distinction between quo warranto the disputed office; unlawfully preventing
referring to an office filled by election and him from occupying
quo warranto involving an office held by the same;
appointment.
Is proper where there Is proper where the
quo warranto quo warranto is usurpation or respondent, without
referring to an involving an office intrusion into an office; claiming any right to
office filled by held by an office, excludes the
election appointment petitioner therefrom;
What is determined What is determined May include There is no
is the eligibility or is the legality of the mandamus as an requirement that the
disloyalty of the appointment; ancillary remedy. respondent be
candidate-elect; actually holding the
disputed position.
Can be filed by any Can be filed by one
voter; claiming the office; 2. 51. Quo warranto v. Mandamus
When the person is The court 2.52. Title may not be collaterally
ineligible, the court determines who has attacked.
cannot declare that been legally The title of the public officer, even if he were
the candidate appointed and can merely a de facto officer, may only be
occupying the and ought to declare questioned, not collaterally, but by a petition
second place has who is entitled to for quo warranto.
been elected, even if office.
he were eligible, Neither can the legality of the appointment or
since the law only election of a public officer babe questioned
authorizes a collaterally through a petition for prohibition
declaration of which assails the validity of his official acts.
election in favor of
the person who has 2.53. Action may be filed by Solicitor
obtained a plurality General or public prosecutor.
of votes, and has Under Sec 2 Rule 66 or the Rules of Civil
presented his Procedure, the Solicitor General or a public
certificate of prosecutor, when directed by the President of
66
candidacy. the Philippines, or when upon complaint or

otherwise he has good reason to believe that
Page
any case specified in the preceding section prevailing party have not been appropriated
can be established by proof, must commence as the funds had been paid as salaries to the
such action. It is mandatory on the Solicitor party who in the meanwhile occupied the
General or public prosecutor’s part to file the office, the local government unit and its
action. officials concerned may be made parties to
compel them to appropriate the funds for the
The Solicitor General or a public prosecutor purse.
may, with the permission of the court in
which the action is to be commenced, bring 2.55. Clear legal right required.
such an action at the request and upon the He lacks such clear legal right:
relation of another person; but in such case
the officer bringing it may first require an (a) Where at the time petitioner was
indemnity for the expenses and costs of the appointed to, or assumed, the position
action in an amount approved by and to be claimed to have been usurped or
deposited in the court by the person at unlawfully held by another, he lacked the
whose request and upon whose relation the qualifications for the office;
same is brought (Sec. 3, Rule 66). (b) Where he has been merely designated to
discharge the duties of the office, as right
When such action is made, the court shall thereto is extinguished by the
direct that notice be given to the respondent appointment of another in his place;
so that he may be heard in opposition (c) Where he merely claims he is entitled to
thereto; and if permission is granted, the be appointed to the disputed position, his
court shall issue an order to that effect, claim being merely contingent; or
copies of which shall be served on all (d) where his appointment to the disputed
interested parties, and the petition shall then position is only temporary or without a
be filed within the period ordered by the court fixed tenure, as he can be removed at
(Sec. 4, Rule 66).2 any time with or without cause.
2.56. When to file and where to file.

2.54. Action may also be filed by
individual entitled to the position. Sec. 11 of Rule 66 reads:
An individual entitled to the disputed position “Nothing contained in this Rule shall be
may also commence an action for quo construed to authorize an action against a
warranto against the person unlawfully public officer or employee for his ouster from
possessing the office (Secs. 5 and 6, Rule office unless the same be commenced within
66). one (1) year after the cause of such ouster,
or the right of the petitioner to hold such
No need to make the government agency office or position, arose; nor to authorize an
concerned or municipality or city involved be action for damages in accordance with the
made a party in connection with payment of provisions of the next preceding section
salaries of the party ultimately adjudged as unless the same be commenced within one
entitled to the office. However, in cases (1) year after the entry of the judgment
involving officials of local government units, establishing the petitioner’s right to the office
where needed funds to pay the salary of the in question.”
2
The Sol Gen may commence the action for the After said period has lapsed, the remedy of
Government or the public against individuals who usurp the aggrieved party, if any, lies exclusively
a public office, against a public officer whose acts with the administrative authorities, and he is
constitute a ground for the forfeiture of his office, and
67
against an association which acts as a corporation

beyond the help of the courts as his time to
without being legally incorporated. resort thereto having expired.
Page
However, while it may be desirable that (c) Doctrine of laches may not apply when to
administrative remedies be first resorted to, do so, manifest wrong and injustice would
the one year period of filing quo warranto is result.
not suspended by filing an administrative
action beforehand. Thus, no one is 2.58. Expeditious resolution of the case
compelled or bound to file first an required.
administrative action in this case; and as said An assurance of some degree of stability in
remedies neither are prerequisites to nor bar civil service is necessary in order to avoid
the institution of quo warranto proceedings needless disruptions in the conduct of public
so long as it is filed within the reglementary business.
period. For public interest requires that the
right to a public office be determined as In accordance with this policy, Sec 8 of Rule
speedily as practicable. 66 provides that “the court may reduce the
period provided by these Rules for filing
Furthermore, constitutional rights may be pleadings and for all other proceedings in the
waived, and the inaction of the officer for one action in order to secure the most
year could be validly considered as waiver or expeditious determination of the matters
that laches has set in. It may lead to a involved therein consistent with the rights of
presumption that the civil servant has either the parties. Such action may be given
given up his claim or has already settled in precedence over any other civil matter
the new position. pending in the court.”
Under Sec. 7 of Rule 66, quo warranto can 2.59. When action is waived.
be brought only in the Supreme Court, the A public officer who as filed a petition for quo
Court of Appeals, or in the Regional Trial warranto may expressly or impliedly abandon
Court exercising jurisdiction over the his petition. His application for commutation
territorial area where the respondent or any of his vacation and sick leaves stating as
of the respondents resides, but when the reason therefor that the same is an incident
Solicitor General commences the action, it to separation from the service, his receipt of
may be brought in a Regional Trial Court in the money equivalent of such leaves, and his
the City of Manila, in the Court of Appeals, or non-reservation of the right to continue the
in the Supreme Court. petition for quo warranto constitute
abandonment of the petition for quo
2.57. Exceptions to the rule that petition be warranto.
filed within one year.
(a) If failure to file an action can be attributed 2.60. Judgment and reliefs.
to the acts of a responsible government
officer and not of the dismissed SEC. 9. Judgment where usurpation found.—
employee; When the respondent is found guilty of
usurping, intruding into, or unlawfully holding
(b) Where some employees elevated their or exercising a public office, position or
dismissal to the courts, who won in the franchise, judgment shall be rendered that
action, a co-employee who is similarly such respondent be ousted and altogether
situated as those of the former need not excluded therefrom, and that the petitioner or
join the suit without being guilty of laches, relator, as the case may be, recover his
so long as he continued to press for his costs. Such further judgment may be
right to be reinstated and and high rendered determining the respective rights in
responsible officials promised to reinstate and to the public office, position or franchise
68
him; of all the parties to the action as justice

requires.
Page
SEC. 10. Rights of persons adjudged entitled constitutionally and legally authorized to
to public office; delivery of books and papers; perform any act in, or exercise any function
damages.—If judgment be rendered in favor of the office to which he lays claim.
of the person averred in the complaint to be
entitled to the public office he may, after
taking the oath of office and executing any
official bond required by law, take upon
himself the execution of the office, and may
immediately thereafter demand of the
respondent all the books and papers in the
respondent’s custody or control appertaining
to the office to which the judgment relates. If
the respondent refuses or neglects to deliver
any book or paper pursuant to such demand,
he may be punished for contempt as having
disobeyed a lawful order of the court. The
person adjudged entitled to the office may
also bring action against the respondent to
recover the damages sustained by such
person by reason of the usurpation.
SEC. 12. Judgment for costs.—In an action

brought in accordance with the provisions of
this Rule, the court may render judgment for
costs against either the petitioner, the relator,
or the respondent, or the person or persons
claiming to be a corporation, or may
apportion the costs, as justice requires.
If it is found that the respondent is usurping

or introducing into the office, or unlawfully
holding the same, the court may order:
(1) the ouster and exclusion of the defendant
from office;
(2) the recovery of costs by plaintiff or relator;
(3) the determination of the respective rights
in and to the office, position, right,
privilege or franchise of all the parties to
the action as justice requires.
Ordinarily, a judgment against a public officer

in regard to a public right binds his successor
in office. This rule, however, is not applicable
in quo warranto cases. A judgment in quo
warranto does not bind the respondent’s
successor in office, even though such
successor may trace his title to the same
source. This follows from the nature of the
69
writ of quo warranto itself. It is never directed

to an officer as such, but always against the
Page
person — to determine whether he is

CHAPTER III (d) An elective officer who has been

DE FACTO OFFICER proclaimed and had assumed office but
was later on ousted in an election protest
or quo warranto is a de facto officer
3.61. Who is a de facto officer
during the time he held the office, and he
A public officer may either be a de facto or de
can retain the emoluments received even
jure officer.
against the successful protestant.
De Jure — descriptive of a condition in which
(e) The rule applies to an appointive officer
there has been total compliance with all
whose appointment is subsequently
requisites of law. A de jure officer is thus
declared invalid for lack of eligibility.
defined as one who in all respects legally
(f) A person who has been appointed to a
appointed or elected and qualified to exercise
position created by law or Executive
the office.
Order which has been subsequently
declared unconstitutional is a de facto
De facto — is an officer under a color of a
officer.
known appointment or election which is void
because the officer was not eligible or
3.62. When a person is not a de facto officer
because there was a want of power in the
but a usurper.
electing or appointing body, or by reason of
A usurper is one who usurps an office an
some defect or irregularity in its exercise,
undertakes to act officially without any color
such as ineligibility, want of power, defect
or right, as distinguished from a de facto
being unknown to the public. He is
officer who exercises the duties of an office
nonetheless entitled to emolument for actual
under a color of appointment or election.
services rendered. He cannot be made to
reimburse funds disbursed during his term of
Jurisprudence on a usurper of office:
office because his acts are as valid as those
(a) A person whose appointment as sectorial
of a de jure officer. He is not a usurper
representative has been immediately
because a usurper is one who undertakes to
questioned before the appropriate agency
act officially without any color or right.
as violative of law is, if such appointment
if declared invalid, not a de facto officer;
Jurisprudence on de facto officers:
(b) A municipal mayor, who filed his
(a) A judge who resigned his position is
certificate of candidacy for congressman
considered de facto officer until he is
and who thereafter withdrew it and
formally notified of acceptance of his
resumed the duties of mayor, has no title
resignation, for a resignation to be
to the office, as he is, by law,
effective must be accepted by the officer
automatically resigned therefrom from the
authorized to accept it.
moment he filed his certificate of
(b) It has been held that a person appointed
candidacy; consequently, he is not a de
to a position during the period that the
facto officer;
incumbent, who was removed therefrom,
was litigating his action for reinstatement,
3.63. Elements of a de facto officer.
may be considered a de facto officer.
(1) There must be a de jure office;
(c) A person who acts and discharges the
(2) There must be color of right or authority;
office pursuant to an appointment which
(3) There must be actual physical possession
requires approval by another officer or
of the office in good faith; and
office such as the CSC, is a de facto
(4) There must be a general acquiescence
officer until the appointment is finally
by the public or a recognition by the
approved or disapproved. In the former,
public who deals with him of his authority
the officer becomes a de jure officer; in
70
as holder of position.
the latter, his continuance in office is
Page
illegal and he becomes a usurper.

There can be no de facto officer where there

is no de jure office. One can qualify as de NOTE: The question of whether the de facto
facto officer only if all the elements are officer may be liable for the salary and other
present. benefits of the office in favor of the de jure
officer may be litigated, even if the issue
3.64. Reasons for de facto officer regarding the right to the office has become
doctrine. moot and academic, in the light of the
The main reason is that public interest doctrine in Monroy v. CA (20 SCRA 620
demands that acts of persons holding, under [1967]).
color of title, an office created by a valid
statute be deemed valid insofar as the public A de facto officer, not having a good title,
is concerned. Otherwise, those dealing with takes the salaries at his risk and must
officers and employees of the government therefore account to the de jure officer for
would be entitled to demand from from them whatever amount of salary he received
satisfactory proof of their title to the positions during the period of wrongful retention of the
they hold, before dealing with them, or before public office. Also, he would be liable for
recognizing their authority or obeying their damages in case he would be found
commands, even if they should act within the responsible for any unlawful or tortious acts
limits of the authority vested in their respect in relation to his proclamation.
offices, positions or employment.
A de facto officer does not enjoy the
3.65. Validity of acts. guarantees of security of tenure. He may be
A de facto officer assumes the exercise of a removed from office even without cause.
part of the prerogative of sovereignty, and
the legality of that assumption is open to 3.67. Proceeding to try title of de facto
attack of the sovereign power alone. officer.
Accordingly, it is well-established principle The title of a de facto officer cannot be
that official acts of a de facto officer are just assailed collaterally. It may not be contested
as valid for all purposes as those of a de jure except directly, by who warranto
officer, so far as third persons who are proceedings. Neither may the validity of his
interested therein are concerned. The acts be questioned upon the ground that he
principle is one founded on public policy and is merely a de facto officer, the reason being
convenience. that it would be an indirect inquiry into the
However, an officer seeking to justify his act title to the office, and the acts of a de facto
or defending his right as a public officer must officer, if within the competence of his office,
allege and prove that he is a de jure officer, are valid, insofar as the public is concerned.
for the acts of a de facto officer as far as he
himself is concerned are void. The purpose
of the rule is to discourage the seizure of
public office. The officer ought to know
whether he is legally an officer and if he
attempts to exercise the duties of an officer
without authority, he should act at his peril.
3.66. Compensation.
Where the law gives the officer’s assumption
of office color of validity, it entitles him to
compensation for his work, and his
71
subsequent ouster from the position entitles

his to retain the emoluments received as
Page
against the successful protestant.

CHAPTER IV coupled with an interest; where neither is

provided for it is naked or honorary office,
and is supposed to be accepted for the public
COMPENSATION, BENEFITS AND good.
PRIVILEGES
4.71. Salary may not be garnished.
A. Compensation Money in the hand of public officers, although
4.68. Definitions and distinctions. it may be due government employees, is not
Salary — refers to pay or compensation liable to the creditors of these employees in
given as the base pay of the position or rank the process of garnishment.
as fixed by law or regulations, excluding all
bonuses, per diems, allowances and Reasons:
overtime pay. (1) garnishment would be to permit indirectly
Per diem — is a daily allowance given for suing the State which is prohibited;
each day to an officer or employee of the (2) money belongs to the disbursing officer;
government that is away from his home and
base. (3) public policy forbids it.
Honorarium — is something given not as a Salary check of a government officer or
matter of obligation but in appreciation for employee does not belong to the latter before
service rendered, a voluntary donation in it is physically delivered to him/her. Such
consideration of services which admit of no cannot be garnished to satisfy a judgment
compensation in money. against the officer or employee.
NOTE: What is controlling is the nature of the 4.72. Government policy on
remuneration rather than the label attached compensation.
to it. Department of Budget and Management is
tasked to establish and administer a unified
4.69. Right to compensation. Compensation and Position Classification
The right of an officer or employee to System that is applicable for all government
compensation and allowances which attach entities based on the following principles:
to an office or employment is a statutory
right. He is only entitled to so much as the (1) All government personnel shall be paid
law grants him. The law should, however, be just and equitable wages; and while pay
implemented in a more reasonable, humane distinctions must necessarily exist in
and realistic manner. keeping with the work distinctions, the
ratio of compensation for those occupying
Requisites for payment of salaries or wages: higher ranks to those at lower ranks
(1) existence of a legally created position should be maintained at equitable levels,
with fixed compensation or emolument giving due considerations to higher
attached to the position; percentages of increases to lower level
(2) issuance of a valid appointment; positions and lower percentage increases
(3) rendition of service being paid; and to higher level positions;
(4) payment to the right person.
(2) Basic compensation for all personnel in
4.70. Salary as incident of office. the government and GOCC’s and
While a salary or fees are usually annexed to financial institutions shall generally be
the office, it is not necessarily so. Salary or comparable with those in the private
fees are mere incidents and form no part of
72
sector doing comparable work, and must

the office. Where a salary or fees are be in accordance with prevailing laws on
Page
annexed, the office is often said to be minimum wages;

(3) The total compensation provided for

government personnel must be
maintained at a reasonable level in
proportion to the national budget; and
(4) A review of government compensation

rates, taking into account possible
erosion in purchasing power due to
inflation and other factors shall be
conducted periodically.
73
Page

TP NOTES EPA Part1 PDF

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

TP NOTES EPA Part1 PDF

Hochgeladen von

Copyright:

Verfügbare Formate

ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES

TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS

PART 1 Administrative law consists of

Garments and Textile Export Board v CA:

D. MANDATORY AND PERMISSIVE

implied from the language of the statute. granted such power

2.16 Mandatory and directory powers, E.ERRORS IN THE EXERCISE OF

2.18 Test to determine nature of statute

CHAPTER III The president can supplant the rules by

3.22. Generally All executive and administrative

President is the Chief administrative Officer 3.26 By Authority of the President.

control can take over from him such authority

and issue the executive order to exercise it.

Ang-Angco v Castillo: power of control a. Act directly whenever a specific

for purpose of correction

Supervision and control include only:

conducted and the possible consequences to powers of an administrative body which

Inquisitive power is examining or adjudicate or exercise quasi-judicial power.

investigatory agency of government, in paragraphs (1), (2), (3) and (4)

the investigation of such cases; hereof, when circumstances so

warrant and with due prudence:

(7) Determine the causes of

(8) Administer oaths, issue subpoena

(9) Punish for contempt in accordance

(10) Delegate to the Deputies, or its

(11) Investigate and initiate the proper

The Ombudsman shall give priority to

Presidential issuances are those which Sections 5 and 9, Article X, Constitution

Proclamations- acts of the president ofixing a Sangg. Brgy. Brgy. Ordinance

existence of which the operation of a specific w/n 30 days

law or regulation is made to depend Sangg. Bayan Municipal ordinance

a. affirmative vote of What cannot be delegated are those

The doctrine of separation of power - Statute is COMPLETE in itself, setting

The delegation to administrative agencies of 4. Binding force and effect

4.43 Distinguished from administrative 1. Supplementary or detailed legislation

4.44 Distinguished from quasi judicial a. interpretation as incident of the execution

judicial review or the power to declare a law,

presidential decree, order, instruction, ordinance,

B. DELEGATION OF LEGISLATIVE in upholding the economic rights of our people

It is the grant of authority by the legislature to

exoteric of living and less with the esoteric of

reigns supreme so long will this Court be vigilant

DELEGATION OF LEGISLATIVE POWER Bank v. Central Bank, 146 SCRA 120

therein or its innate wisdom (Tayug Rural

This is permissible because it is not implied.

4.66 Rate-fixing: quasi-legislative or In administrative rule or regulation, when

It has been said that rules and 3. Interpretation handed down in an

4.69 Executive construction, generally; Administrative practice - includes formal

If it is embodied in a circular, directive or However, an action by an admin agency

construction placed upon it by the executive

or admin agency charged with its Forms of approval

Because it emanates from the particular 4.76 Reenactment by legislature.

4.77 When contemporaneous

This type of construction is not

4.78 Erroneous construction creates no

The doctrine of estoppel does not

As a rule, erroneous construction

Its exceptions are in the interest of

CHAPTER V: QUASI-JUDICIAL (1) previously established rules and

5.79 Definition. An administrative agency, clothed with

issued. power, cases are filed with the Regional Trial

The function requires:

5.84 Reasons for creation of quasi-judicial JURISDICTION