Joselito B. Capariño
Capariño
FINALS REVIEWER
ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW
Administrative Laws, Laws on Public Officers, and Election Laws are already part and parcel
of our daily living. Whether we like it or not, in one way or the other, we transact business with
administrative agencies and offices of the government, we deal with our public officials and
employees, and we exercise our right to suffrage.
ADMINISTRATIVE LAW
What is Administrative Law?
Administrative Law is a branch of public law that (1) fixes the organization of the government,
(2) determines competence of authorities who execute the law and (3) indicates to the
individuals remedies for the violation of his rights.
In a general sense, “administrative law” embraces all the law that controls, or is intended to
control, the administrative operations of government (Agpalo).
What are the sources of Administrative Law?
The sources of Administrative Law are the following:
1) The Constitution being the supreme law of the land;
2) Statutes or Laws enacted by Congress like Administrative Code of 1987;
3) Court decisions which form part of the law of the land;
4) Body of rules, regulations, issuances and decisions rendered by Administrative Bodies or
Agencies; and, to some extent
5) Opinions and commentaries by local and foreign experts/scholars on Administrative Law.
Define Administrative Agencies or Bodies
A body, other than courts and the legislature, endowed with quasi-legislative, quasi-judicial
and determinative powers for the purpose of enabling it and carry out the laws entrusted to it
for enforcement or execution.
Distinguished Quasi-Legislative Function from Quasi-Judicial Function
Quasi-legislative or rule-making power is the power to make rules and regulations which result
in delegated legislation that is within the confines of the granting statute and the doctrine of
non-delegability and separability of powers (Holy Spirit Homeowners Association Inc. v.
Secretary Michael Defensor, G.R. No. 163980 ); whereas,
Quasi-judicial function is a term which applies to the actions, discretion, etc. of public
administrative officers or bodies, who are required to investigate facts, or ascertain the
existence of facts, hold hearings, and draw conclusions from them, as a basis for their official
action and to exercise discretion of a judicial nature ( The United Residents of Dominican
Joselito B.
Hill, Inc. v. Commission on the Settlement of Land Problems, G.R. No. 135945,
March 7, 2001 ).
The reasons for delegation of authority to administrative agencies are (1) the increasing
complexity of the task of government requiring expertise as well as (2) the growing inability of
the legislature to cope directly with the myriad problems demanding its attention ( Echegaray
v. Secretary of Justice, G.R. No. 132601, October 12, 1998 ).
Concept of Administrative Due Process
The landmark case of Ang Tibay v. Court of Industrial Relations laid down the cardinal primary
requirements of due process which must be respected in an administrative proceeding:
(1) The right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof;
(2) The tribunal must consider the evidence presented;
(3) The decision must have something to support it;
(4) The evidence must be “substantial” or such relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion;
(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
(6) The Court or tribunal, or any of its judges, must act on its or his own independent
consideration of the law and facts of controversy, and not simply accept the views of
a subordinate in arriving at a decision;
(7) The Court or tribunal must render its decision in such a manner that the parties to
the proceeding can know the various issues involved, and the reasons for the
decision rendered.
Doctrine of Primary Jurisdiction
Where jurisdiction is vested upon an administrative body, no resort to the courts may be made
before such administrative body shall have acted upon the matter. Thus, questions relating to
non-compliance with the requisites for conversion of subdivision lots are properly cognizable
by the National Housing Authority, now the Housing and Land Use Regulatory Board
(HLURB), and not by the regular courts (Cristobal v. Court of Appeals, G.R. No. 125339,
June 22, 1998 ).
The Court upholds the primary jurisdiction exercised by the National Telecommunications
Commission (NTC), it being in a better position than the courts to determine to whom such
privilege (issuance of licenses to operate radio stations) should be granted in order that public
interest will be served. As long as its decisions are supported by substantial evidence, they
Joselito B. Capariño
are entitled to respect from the courts. Courts cannot and will not resolve a controversy
involving a question which is within the jurisdiction of an administrative tribunal, especially
where the question demands the exercise of sound administrative discretion requiring the
special knowledge, experience and services to determine technical and intricate matters of
fact (Crusaders Broadcasting System, Inc. v. National Telecommunications
Commission, G.R. No. 139583, May 31, 2000 , reiterating Ysmael Jr. v. Deputy Executive
Secretary 90 SCRA 673).
Factual findings of quasi-judicial bodies such as the Construction Industry Arbitration
Commission (CIAC) that have acquired expertise are generally accorded great respect and
even finality, if they are supported by substantial evidence ( PhilRock, Inc. v. Construction
Industry Arbitration Commission, G.R. Nos. 132848-49, June 26, 2001 ).
Doctrine of Exhaustion of Administrative Remedies
In Union Bank of the Philippines v. Court of Appeals, the Supreme Court reiterates that
before a party is allowed to seek the intervention of the court, it is a precondition that he
should have availed of all the means of administrative processes afforded him. If a
remedy within the administrative machinery can still be resorted to by giving the
administrative officer concerned every opportunity to decide on a matter that comes
within his jurisdiction, then such remedy should be exhausted first before the court’s
judicial power can be sought. The premature invocation of court’s intervention is fatal to
one’s cause of action. Thus:
(a) The decision, ruling or order of any such Commissioner, bodies, boards, committees
and/or officer may be appealed to the Commission en banc within 30 days after receipt
by the appellant of notice of such decision, ruling or order which procedure being
available, Union Bank chose to forego. Besides, Union Bank could also have obtained an
injunction from the SEC instead of appellate court, as provided by PD 902-A ( Union
Bank of the Philippines v. Court of Appeals, G.R. No. 131729, May 19, 1998 );
(b) The petition must fail where petitioners did not exhaust all the remedies available to
them at the COMELEC level, such as seeking for reconsideration of the assailed
COMELEC En Banc Resolution dismissing the complaint for vote buying, as required by
Section 1, Rule 13 of the 1993 COMELEC Rules of Procedure ( Bernardo v. Abalos,
G.R. No. 137266, December 5, 2001 );
(c)In challenging the legality of a tax ordinance, petitioner Lopez has remedies available
to the taxpayer as provided under Sections 187, 226, and 252 of RA 7160, otherwise
known as the Local Government Code of 1991 ( Lopez v. City of Manila, G.R. No.
127139, February 19, 1999 );
(d) Petitioners should have elevated their case to the NHA General Manager, pursuant to
NHA Circular No. 13 providing for all decisions of the NHA Awards and Arbitration
Committee (AAC) shall be subject to review and approval by the General Manager of the
NHA and if adverse, petitioners should have appealed to the Office of the President.
Joselito B. Capariño
None of these administrative remedies were resorted to by petitioners, thus foreclosing
on their right to seek judicial relief (Zabat v. Honorable Court of Appeals, G.R. No.
122089, August 23, 2000 ).
Legal and Practical Reasons for the Principle of Exhaustion of Administrative
Remedies
(i) The administrative agency, if afforded a complete chance to pass upon the
matter, will decide the same correctly.
(ii) The administrative process is intended to provide less expensive and more
speedy solutions to disputes.
(iii) Where the enabling statute indicates a procedure for administrative review and
provides a system of administrative appeal for reconsideration, the courts – for
reason of law, comity, and convenience – will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate
authorities have been given an opportunity to act and correct the errors
committed in the administrative forum.
(iv) Principle of separation of powers enshrined in the Constitution.
Distinguished Doctrine of Primary Jurisdiction from Exhaustion of Administrative
Remedies
In primary jurisdiction, a claim is originally cognizable in the courts, the judicial process being
suspended pending referral of certain issues to the administrative agency for its reviews;
whereas, in exhaustion of administrative remedies, a claim is cognizable in the first instance
by the administrative agency alone, judicial interference being withheld until the administrative
process has run its course and the agency action is ripe for review. Both are concerned with
promoting proper relationships between the courts and administrative agencies charged with
particular regulatory duties.
Exceptions to the Doctrine of Exhaustion of Administrative Remedies
Note: The rule requiring exhaustion of administrative remedies applies only where the agency
concerned exercises judicial or quasi-judicial functions. It does not apply in the exercise of its
rule-making or legislative power.
1) Where public interest requires immediate resolution.
2) Where administrative act is a nullity.
3) Where administrative remedy is not adequate.
4) Where judicial relief is required to prevent violence.
5) Where agency acted with no jurisdiction.
6) Where there is yet no administrative order.
7) Where there is estoppel.
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8) Where there is urgency or irreparable damage.
9) Where qualified political agency doctrine applies.
10) Where issue is purely legal.
11) Where administrative remedy is permissive.
12) Where doctrine will result in nullification of claim.
13) Where in quo warranto cases.
14) Where there is no law requiring remedies.
15) Where agency has no jurisdiction.
Effect of failure to exhaust administrative remedies
The only effect of non-compliance with this rule is that it will deprive the complainant of a
cause of action, which is a ground for a motion to dismiss. If not invoked at the proper time,
this ground is deemed waived and the court can take cognizance of the case and try it
(Republic v. Sandiganbayan, G.R. Nos. 112708-09 March 29, 1996 ).
Intructive Cases on the Exceptions:
Ordinarily, the decisions of the POEA should first be appealed to the National Labor Relations
Commission, on the theory inter alia that the agency should be given an opportunity to correct
the errors, if any, of its subordinates. This case comes under one of the exceptions, however,
as the questions the petitioner is raising are essentially questions of law. Petitioner challenged
a POEA decision on the ground that it had no jurisdiction over the case as the husband is not
an overseas worker. Moreover, petitioner questions the validity of Memorandum Circular No. 2
as violative of the principle of non-delegation of legislative power ( Eastern Shipping Lines,
Inc. v. POEA, G.R. No. 76633, October 18, 1988 ).
The rule is well-settled that this requirement does not apply where the respondent is a
department secretary whose acts, as an alter ego of the President, bear the implied approval
of the latter, unless actually disapproved by him. Petitioners, as ousted directors of the
KBMBPM, are questioning precisely the act of respondent Secretary of Agriculture Carlos G.
Dominguez in disbanding the board of directors (Kilusang Bayan, etc. v. Dominguez,
G.R. No. 85439, January 13, 1992 ).
The respondent Commission is in estoppel to invoke this rule considering that in its resolution
it stated that the opinions promulgated by the Secretary of Justice are advisory in nature,
which may either be accepted or ignored by the office seeking the opinion, and any aggrieved
party has the court for recourse. This led petitioner to conclude that only a final judicial ruling
in her favor would be accepted by the Commission ( Vda. De Tan v. Veterans Backpay
Commission, G.R. No. L-12944, March 30, 1959 ).
The principle of exhaustion of administrative remedies need not be adhered to when the
question is purely legal. This is because issues of law cannot be resolved with finality by the
administrative officer. Appeal to the administrative officer would only be an exercise in futility.
What petitioner Gualberto Castro only impugns is the correctness of the penalty of dismissal
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from the service, contending that his must be only suspension for six (6) months and one (1)
day to one (1) year for 1st offense of disgraceful and immoral conduct (Castro v. Honorable
Secretary Ricardo Gloria, G.R. No. 132174, August 20,2001 ).
Indeed, an appeal to the NFA Board or Council of Trustees and the Secretary of Agriculture
pursuant to the provisions of the Administrative Code of 1987 was not a plain, speedy and
adequate remedy in the ordinary course of the law. The urgency of the situation compelled
private respondents to go to court to stop the implementation of these negotiated security
contracts (National Food Authority and David v. Court of Appeals, G.R. Nos. 115121-
25, February 9, 1996 ).
The motion to dismiss on the ground of non-exhaustion of administrative remedies filed by
petitioner came only at the penultimate stage of the proceedings, or nearly seven (7) years
came to pass in between, where the remaining task left for the PCGG was to file its written
offer of evidence as required by the Sandiganbayan. Such tarried maneuver made the PCGG
guilty of estoppel by laches. The rule of exhaustion of administrative remedies does not apply
(i) where there is estoppel on the part of the party invoking the doctrine; (ii) where the
challenged administrative act is patently illegal amounting to lack of jurisdiction; (iii) where
there unreasonable delay or official inaction that will irretrievably prejudice the complainant;
and (iv) where the question involved is purely legal and will ultimately have to be decided by
the courts of justice (Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29,
1996 ).
Commissioner Canonizado cannot, singly, act for the NAPOLCOM denying due course to the
appeal and petition for review filed by petitioners because it is a collegial body composed of a
Chairman and four Commissioners. The NAPOLCOM’s decision being a patent nullity, the
filing of a motion for its reconsideration before the institution of this special civil action under
Rule 65 may be dispensed with. The contention of the Solicitor General that the instant action
is premature for failure to exhaust administrative remedies would have been sustained if the
Secretary of DILG was the one who denied due course or dismissed the appeal of petitioner
Cabada and the petition for review of petitioner de Guzman ( Cabada and de Guzman v.
Alunan, G.R. No. 119645, August 22, 1996 ).
Petitioner does not dispute that respondent did not received the Notice of Acquisition and
Notice of Coverage required in the implementation of the CARP. The doctrine of exhaustion of
administrative remedies is a relative one and is flexible depending on the peculiarity and
uniqueness of the factual and circumstantial settings of a case. It is disregarded where (a)
there circumstances indicating the urgency of judicial intervention and (b) the administrative
action is patently illegal and amounts to lack or excess of jurisdiction ( Department of
Agrarian Reform v. Apex Investment and Financing Corporation, G.R. No. 149422,
April 10, 2003 ).
The Comelec en banc itself made it legally impossible for petitioners to avail themselves of the
administrative remedy that the Commission is so impiously harping on. There is no doubt that
they had not been accorded the opportunity to avail themselves of the process provided under
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Section 55 of RA 9184, or the Government Procurement Reform Act, according to which a
protest against a decision of the BAC may be filed with the head of the procuring entity.
Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the
project to Respondent MPC even before the BAC managed to issue its written report and
recommendation on April 21, 2003 (Information Technology Foundation of the
Philippines v. Commission on Elections, G.R. No. 159139, January 13, 2004 ).
LAW ON PUBLIC OFFICERS
What is a “public office”?
The term “public office” is frequently used to refer to the right, authority and duty, created and
conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of the sovereign functions of
government, to be exercised by that individual for the benefit of the public ( Fernandez v.
Sto. Tomas, G.R. No. 116418, March 7, 1995 ). The individual so invested is a public
officer.
Resolution No. 94-3710 by the CSC did not abolish a public office nor terminate the
relationship of public employment between the Commission and any of its officers and
employees, since abolition of public offices may be done only by the same legislative authority
which had created those public offices in the first place.
The National Centennial Commission (NCC) performs sovereign functions. It is, therefore, a
public office, and petitioner, as its Chair, is a public officer. The NCC performs executive
functions (Laurel v. Desierto, G.R. No. 145368, April 12, 2002 ).
Elements of a Public Office:
(1) Delegation of sovereign functions;
The delegation to the individual of some of the sovereign functions of government is the most
important characteristics in determining whether a position is a public office or not (Laurel v.
Desierto).
(2) Its creation by law and not by contract;
(3) An oath;
(4) Salary:
A salary is a usual but not a necessary criterion for determining the nature of the position. It is
not conclusive. The salary is a mere incident and forms no part of the office. The office of
petitioner Laurel as NCC Chair may be characterized as an honorary office, as opposed to a
lucrative office or an office for profit, i.e., one to which salary, compensation or fees are
attached (Laurel v. Desierto);
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(5) Continuance of the position;
The element of continuance cannot be considered as indispensable, for, if the other elements
are present it can make no difference (Laurel v. Desierto).
(6) Scope of duties;
(7) Designation of the position as an office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a position
which is merely temporary and local cannot ordinarily be considered an office (Laurel v.
Desierto).
Characteristics of a Public Office:
(1) A public office is a public trust.
Section 1, Article XI, 1987 Constitution provides:
Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
This constitutional mandate should always be in the minds of all public servants to guide them
in their actions during their entire tenure in the government service ( Lim-Arce v. Arce, A.M.
No. P-89-312, January 9, 1992 ).
(2) A public office is not a property right.
When the dispute concerns one’s constitutional right to security of tenure, however, public
office is deemed analogous to property in a limited sense; hence, the right to due process
could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of
equal weight is the countervailing mandate of the Constitution that all public officers and
employees must serve with responsibility, integrity, loyalty and efficiency. In this case, it has
been clearly shown that Lumiqued did not live up to this constitutional precept ( Lumiqued v.
Exevea, G.R. No. 117565, November 18, 1997 ).
(3) No one has a vested right to any public office, much less a vested right to an expectancy
of holding a public office.
While the law makes an SK officer an ex-officio member of a local government legislative
council, the law (RA 9164) does not confer on petitioners a proprietary right or even a
proprietary expectancy to sit in local legislative councils. The constitutional principle of a public
office as a public trust precludes any proprietary claim to public office ( COMELEC v. Cruz,
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G.R. No. 186616, November 20, 2009 ).
(4) A public office is personal and exclusive to the public officer.
But while the right to a public office is personal and exclusive to the public officer, an election
contest is not purely personal and exclusive to the protestant or to the protestee such that the
death of either would oust the court of all authority to continue the protest proceedings ( De
Castro v. COMELEC, G.R. No. 125249, February 7, 1997 ).
(5) A public office is not a property transmissible to the heirs.
Applying the doctrine of action personalis moritur cum persona, upon the death of the
incumbent, no heir of his may be allowed to continue holding his office in his place (De Castro
v. Comelec).
Ministerial v. Discretionary
Note: The duties and powers of public officers may either be ministerial or discretionary.
Ministerial Duty – is one which is so clear and specific as to leave no room for the exercise of
discretion in its performance
- is one which as officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of legal authority, without
regard to the existence of his own judgment, upon the propriety or
impropriety of the act done.
- when the discharge of the duty requires neither the exercise of official
discretion nor judgment.
Discretionary – is that which by its nature requires the exercise of judgment.
- if the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed.
The distinction is important to determine what remedy may be availed of by an aggrieved
party against non-performance of duty by the officer. Petition for mandamus under Section 3,
Rule 65, Rules of Court may lie to compel performance of ministerial duty; Petition for
certiorari under Section 1, Rules 65, Rules of Court may lie to compel a discretionary duty,
where there is a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the official or administrative agency.
Citizenship of Public Officer
Philippine citizenship is an indispensable requirement for holding an elective public office, and
the purpose of citizenship qualification is none other than to ensure that no alien, i.e., no
person owing allegiance to another nation, shall govern our people and our country or a unit of
territory thereof. An official begins to govern or to discharge his functions only upon his
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proclamation and on the day the law mandates his term of office to begin ( Frivaldo v.
Comelec, G.R. No. 120295, June 28, 1996 ).
Appointment and Designation
Appointment is the designation of a person, by the person or persons having authority
therefor, to discharge the duties of some office or trust or the selection or designation of a
person, by the person or persons having authority therefor, to fill an office or public function
and discharge the duties of the same.
An appointment is the selection by the proper authority of an individual who is to exercise the
powers and functions of a given office; a designation merely connotes an imposition of
additional duties, usually by law, upon a person already in the public service by virtue of an
earlier appointment (National Amnesty Commission v. Commission on Audit, G.R. No.
156982, September 8, 2004 ).
Can an ELECTIVE PUBLIC OFFICIAL be eligible for appointment or designation to
other office or position during his tenure? NO
The power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a fundamental component of the
appointing power. Thus, the proviso in Sec. 13, par. (d), of R.A. 7227 (Bases Conversion and
Development Act of 1992), mandating respondent mayor of Olongapo City Richard J. Gordon
to be appointed as the chairman and chief executive office of the Subic Bay Metropolitan
Authority (SBMA) for the first year of its operation from the effectivity of the law, precludes the
President as the appointing power from exercising his discretion whom to appoint ( Flores v.
Drilon, G.R. No. 104732, June 22, 1993 ).
Flores answered in the negative, reiterating Sec. 7 of Art. IX-B of the Constitution which
states:
“No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.”
Note: the exemption allowed to appointive officials in the second paragraph cannot be
extended to elective officials who are governed by the first paragraph.
Ex-officio Positions
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The term ex-officio means “from office; by virtue of office.” (1) It refers to an “authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position.” (2) It denotes an “act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred by
the office” (National Amnesty Commission v. COA; Civil Liberties Union v. Executive
Secretary).
National Amnesty Commission laid down the following doctrines:
(i) The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office.
(ii) The NAC ex officio members representatives who were all appointive officials with ranks
below Assistant Secretary are covered by the two constitutional prohibitions: Section 7, Article
IX-B and Section 13, Article VII, of the 1987 Constitution.
(iii) Designation does not entail payment of additional benefits or grant upon the persons so
designated the right to claim the salary attached to the position.
Can Cabinet Members and Appointive Officials of the Executive Department hold
dual or multiple positions in the Government and GOCCs? NO.
In Civil Liberties Union v. Executive Secretary, the Supreme Court through Chief Justice
Fernan declared null and void Executive Order No. 284 issued by President Corazon Aquino
allowing Cabinet Officials to hold other offices or employment.
Section 13, Article VII of the 1987 Constitution provides:
“Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during their
tenure, directly or indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their
office.”
Note: The qualifying phrase “unless otherwise provided in this Constitution” in Section 13,
Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B
of the 1987 Constitution.
De Facto Officer
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A de facto officer is one who assumed office under a color of a known appointment or election,
void because the officer was not eligible or because there was a want of power in the electing
body, or by reasons of some defect or irregularity in its exercise, such as ineligibility, want of
power, or defect being unknown to the public.
Elements of de facto office:
1) There must be a de jure office;
2) There must be color of right or authority;
3) There must be actual possession of the office in good faith; and
4) There must be a general acquiescence by the public or a recognition by the public who
deals with him of his authority as holder of the position.
The de facto doctrine has been formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and individuals who get involved in the
official acts of persons discharging the duties of an office without being lawful officers
(Monroy v. Court of Appeals, G.R. No. L-23258, July 1, 1967 ).
Consequently,
(a) Monroy was not a de facto officer when, as an incumbent Mayor, he filed a certificate of
candidacy for Congressman, and later on withdrew the same and thereafter resumed his
former post as Mayor for he had to title anymore to the office, as he was, by law, automatically
resigned therefrom from the moment he filed his certificate of candidacy for another position
(Monroy v. CA);
(b) Gordon was a de facto officer who assumed his post as SBMA Chairman pursuant to a law
(RA 7227) which a provision thereof in Section 13, par.(d) was later on declared null and void
(Flores v. Drilon);
(c) The designated ex officio members’ representatives to the National Amnesty Commission
cannot be considered de facto officers because they were not appointed but were merely
designated to act as such (National Amnesty Commission v. COA);
(d) Cabinet Officials who held dual or multiple positions pursuant to Executive Order No. 284
were deemed de facto officers (Civil Liberties Union v. Executive Secretary).
Legal Effects/Implications of De Facto Doctrine:
(1) Acts of de facto officers are valid insofar as third parties and the public are concerned.
(2) A de facto officer is legally entitled to the emoluments of the office, thus, ne need not
reimburse.
Prohibited Acts and Transactions
(1) Prohibited Acts and Transactions under RA 6713, otherwise known as “Code of
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Conduct and Ethical Standards for Public Officials and Employees.”
(i) Financial and material interest in any transaction requiring approval of their office;
(ii) Outside employment and other activities related thereto, like to own, control,
manage or accept employment; engage in the private practice of their provision unless
authorized; recommend any person to any position in a private enterprise which has a regular
or pending official transaction with their office.
(2) Constitutional prohibitions in Section 14, Article VI on Member of Congress, Section 13,
Article VII on the President, Vice-President and Members of the Cabinet, Section 2, Article IX-
B on Members of Constitutional Commissions (Comelec, CSC, COA), Section 8, par. 2, Article
XI on Ombudsman and his Deputies.
(3) Prohibition against solicitation of gifts.
(4) Prohibition against partisan political activities.
What is prohibited as an election offense by the Omnibus Election Code is “election
campaign” or “partisan political activity.”
Exceptions: (i) A public officer or employee expressing his views on current political problems
or issues, or from mentioning the names of candidates for public office whom he supports; (ii)
Officers or employees holding political offices.
(5) Prohibition against engaging in strike.
The right of government employees to organize is limited only to the formation of unions or
associations without the right to strike.
(6) Prohibition against holding two or more positions.
Section 13, Article VII, Section 7 and Article IX-B enunciated in Civil Liberties Union v.
Executive Secretary.
(7) Restriction against engaging in the practice of law.
The disqualification is intended to preserve the public trust in a public office, avoid conflict of
interests or a possibility thereof, assure the people of impartiality in the performance of public
functions and thereby promote the public welfare.
8) Prohibition against practice of other professions.
Section 90, RA 7160 (Local Government Code of 1991); Section 13, Article Vii, 1987
Constitution.
9) Restriction against using public office to promote private interest; against
engaging in private business; against accepting certain employment.
Joselito B. Capariño
Note: To be in public office is to make a great sacrifice.
LAW ON ELECTIONS
Election is the embodiment of the popular will, the expression of the sovereign power of the
people. It involves the choice or selection of candidates to public office by popular vote. It
refers to the conduct of the polls.
In common or ordinary parlance, it means:
(1) Listing of votes;
(2) Holding of electoral campaign;
(3) Acts of casting and receiving the ballots from the voters;
(4) Counting them;
(5) Making the election returns;
(6) Proclaiming the winning candidates.
Purpose of an Election;
(1) To enable the electorate to choose the men and women who would run their government.
(2) To give voters direct participation in the affairs of their government.
How is election law construed?
The electoral laws of our country are liberally and equitably construed to give fullest effect to
the manifest will of the people; Laws governing election contests must be liberally construed
to the end that the will of the people in the choice of public officials may not be defeated by
mere technical objections (Frivaldo v. Comelec, G.R. No. 120295, June 28, 1996 ).
Commission on Elections (COMELEC)
The Comelec is mandated by Section 2, Article IX of the 1987 Constitution to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.
In exercising its powers and jurisdiction, as defined by its mandate to protect the integrity of
elections, the Comelec must not be straitjacketed by procedural rules in resolving election
disputes (Tolentino v. Comelec; De Castro v. Comelec).
The Comelec went beyond the authority granted it by the law in adopting “aggregate” basis in
the determination of allowable airtime for political advertisements. The Comelec implemented
the airtime limits (120 minutes for tv, 180 minutes for radio) per station basis during the 2004,
2007, and 2010 elections. However, it suddenly changed the rules to per aggregate basis by
issuing Comelec Resolution No. 9615, a radical departure from the previous Comelec
Joselito B. Capariño
resolutions. The Court holds that it is not within the power of the Comelec to do so ( GMA
Network, Inc. v. Commission on Elections, G.R. No. 205357, September 2, 2014 ).
There was no abdication of Comelec’s mandate and responsibility as petitioners would point
out in the automation of elections pursuant to the Comelec-Smartmatic-TIM Corporation
automation contract. As an independent constitutional body, the Comelec should be afforded
ample elbow room and enough wherewithal in devising means and initiatives that would
enable it to accomplish the great objective for which it was created to promote free, orderly,
honest and peaceful elections (Roque v. Commission on Elections, G.R. No. 188456,
September 10, 2009 ).
However, the Comelec en banc acted without jurisdiction, or with grave abuse of discretion,
when it resolved the appeals of petitioners in the Special Cases without first referring them to
any of its Divisions. Said resolutions are, therefore, null and void and must be set aside.
Election cases include pre-proclamation controversies, and all such cases must first be heard
and decided by a Division of the Comelec (Sarmiento v. Commission on Elections, G.R.
No. 105628, August 6, 1992 ).
It is settled jurisprudence that Comelec can suspend the canvass of votes pending its inquiry
whether there exists a discrepancy between the various copies of election returns from the
disputed voting centers. Corollarily, once the election returns were found to be falsified or
tampered with, the Comelec can annul the illegal canvass and order the Board of Canvassers
to reconvene and proclaim the winners on the basis of the genuine returns or, if it should
refuse, replace the members of the board or proclaim the winners itself. As a result, private
respondent Didagen Dilangalen was proclaimed the duly elected Representative of the First
District of Maguindanao in the 1995 elections (Mastura v. Comelec, G.R. No. 124521,
January 29, 1998 ).
The Comelec committed no grave abuse of discretion in cancelling the Certificate of
Candidacy (CoC) filed by Gamal S. Hayudini for mayor of South Ubian, Tawi-tawi, he being
not a resident of the said municipality, and thereby proclaiming Salma A. Omar as the duly-
elected mayor, being the qualified candidate. A cancelled CoC cannot give rise to a valid
candidacy, and much less, to a valid vote, reiterating Aratea v. Comelec. Settled is the rule
that the Comelec Rules of Procedure are subject to liberal interpretation. This liberality is for
the purpose of promoting the effective and efficient implementation of its objectives – ensuring
the holding of free, orderly, honest, peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of every action and proceeding
brought before the Comelec (Hayudini v. Commission on Elections, G.R. No. 207900,
April 22, 2014 ).
We find that the Comelec, in ordering the correction of manifest errors in the SOVP and COC,
merely exercised its bounden duty to ascertain the true will of the electorate of the province of
Camarines Norte. The previous proclamation of petitioner Jesus O. Typoco as Governor will
not be a hindrance to the said correction. The proclamation and assumption of office of
petitioner based on a faulty tabulation is flawed right from the very beginning, and may,
Joselito B. Capariño
therefore, be annulled, in favor of private respondent Edgardo A. Tallado as the duly elected
Governor of Camarines Norte in the 2007 elections (Typoco v. Commission on Elections,
G.R. No. 186359, March 5, 2010 ).
The Court declared as null and void Section 2 of Resolution No. 2772 issued by the Comelec
mandating for the allocation of “Comelec Space”, free of charge” in the newspaper, magazine
or periodical for the use of candidates in the 1995 elections. Section 2 does not constitute a
valid exercise of the power of eminent domain. Comelec’s contention of valid exercise of
police power for the purpose of elections is not tenable ( Philippine Press Institute, Inc. v.
Commission on Elections, G.R. No. L-119694, May 22, 1995 ).
The Comelec En Banc committed grave abuse of discretion when it reversed the ruling of the
Second Division and disqualified Munder on the substantive merit of the case, and not on the
propriety of the remedy taken by Sarip. The ground invoked by Alfais R. Sarip for his Petition
for Disqualification, Munder’s alleged status as unregistered voter in the municipality, was
inappropriate for the said petition as it should have been raised in a petition to deny due
course to or cancel certificate of candidacy (CoC), the two remedies having different
prescriptive periods. The period had already prescribed when Sarip filed his petition against
Munder. Alfais T. Munder remained as Mayor of Bubong, Lanao del Sur.
We find that the Comelec committed grave abuse of discretion in concluding that Munder the
voter was not Munder the mayoralty candidate. In such a small municipality like Bubong, the
likelihood of not being able to know whether one has a namesake, especially when one is
running for a public office, is very slim (Munder v. Comelec, G.R. No. 194076, October
19, 2011).
On Party-List System
Ang Ladlad’s first application for accreditation in 2006 was denied by Comelec on the ground
that the organization had no substantial membership base. Its second application in 2009 was
again denied on moral grounds. As we explicitly ruled in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections, the enumeration of marginalized and under-represented
sectors is not exclusive. The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the
Constitution and RA 7941. The petition was granted but unfortunately for Ang Ladlad, it did not
obtain the required number of votes to secure a seat in Congress in the 2010 elections. ( Ang
Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010 ).
The Supreme Court through Justice Carpio in Atong Paglaum, Inc. v. Commission on
Election elucidated that the party-list system is composed of three (3) different groups:
(1) national parties or organizations;
(2) regional parties or organizations; and
(3) sectoral parties or organizations.
Atong Paglaum further prescribed six (6) new parameters for guidance of the Comelec in
Joselito B. Capariño
determining the qualifications for the party-list elections.
Authorized Campaign Expenses (multiplied by the total number of registered voters)
(i) P10 for President / Vice-President;
(ii) P3 for other candidates for every voter currently registered in the constituency;
(iii) P5 for independent candidates and political parties.
The Province of Laguna has a total of 1,525,522 registered electorate. Thus, petitioner ER
Ejercito is only authorized to incur an election expense amounting to P4,576,566.00. He
maintained that the petition filed by Edgar San Luis on the grounds of giving material
consideration in the form of “Orange Cards” and election overspending are considered as
election offenses, therefore Comelec First Division has no jurisdiction over the same. The
Court considered it as disqualification and prosecution for election offense. The purpose of
disqualification proceeding is to prevent the candidate from running or, if elected, from serving,
or to prosecute him for violation of the election laws. A petition to disqualify a candidate may
be filed pursuant to Section 68 of the Omnibus Election Code (OEC). Sadly for San Luis,
Ejercito’s subsequent disqualification did not benefit him as the second placer in the
gubernatorial race during the 2013 elections. The votes for the disqualified winning candidate
remained valid. Ergo, San Luis, being the second placer in the vote count, remains the second
placer. He cannot, thus, be named the winner. Eventually, Vice-Governor Hernandez
succeeded Ejercito as Governor of Laguna (Ejercito v. Commission on Elections, G.R.
No. 212398, November 25, 2015 ).
When considered a “Candidate”?
A candidate is one who “has filed a certificate of candidacy” to an elective public office.
Essential elements for violation of Section 80 of the Omnibus Election Code:
(1) A person engages in an election campaign or partisan political activity;
(2) The act is designed to promote the election or defeat of a particular candidate or
candidates;
(3) The act is done outside the campaign period.
A person who files a certificate of candidacy is not a candidate until the start of the campaign
period (Lanot v. Comelec). In ruling that Penera is liable for premature campaigning for
partisan political acts (motorcade) before the start of the campaigning, the assailed Decision
ignores the clear and express provision of the law. The effective date when partisan political
acts become unlawful as to a candidate is when the campaign period starts. Before the start
of the campaign period, the same partisan political acts are lawful. Petitioner Rosalinda A.
Penera continued as Mayor of Sta. Monica, Surigao del Norte ( Penera v. Commission on
Elections, G.R. No. 181613, November 25, 2009 ).
Incumbent Appointive Official v. Incumbent Elected Official vis-à-vis Filing of
Certificate of Candidacy; Effects
Joselito B. Capariño
In Quinto v. Commission on Elections (G.R. No. 189698, February 22, 2010), the Court
sustained the validity of Section 4(a) of Comelec Resolution 8678 being compliant with the law
and jurisprudence as to effects of filing of certificate of candidacy between an appointive and
elected public official.
(I) Incumbent Appointive Official – shall be considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
(II) Incumbent Elected Official – is not deemed to have resigned from his office upon the
filing of his certificate of candidacy for the same or any other elected office or position. An
elected official may run for another position without forfeiting his seat.
Note: The Monroy case was decided in 1967 when the 1935 Constitution and other old laws
were still operative. It may be remembered that Monroy, an incumbent mayor, filed his
certificate of candidacy for Congressman and later withdrew the same only to find out that his
Vice Mayor already took an oath as Mayor when Monroy was about to resume his former
duties as Mayor.
Three-Term Limit Rule as a Ground for Ineligibility
The three-term limit rule, enacted to prevent the establishment of political dynasties and to
enhance the electorate’s freedom of choice, is found both in the Constitution and the law. After
being elected and serving for three consecutive terms, Romeo D. Lonzanida cannot seek
immediate reelection for the same office in the next regular election because he is ineligible.
Whether his certificate of candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means he was never a candidate from the very
beginning, his certificate of candidacy being void ab initio. Therefore, only one qualified
candidate for Mayor of San Antonio, Zambales, Estela D. Antipolo, was duly elected Mayor.
Petitioner Vice-Mayor Efren Aratea is not entitled to assume as Mayor by succession ( Aratea
v. Commission on Elections, G.R. No. 195229, October 9, 2012 ).
xxx NOTHING FOLLOWS xxx