ifdmtliUtiUIII't' It" ------I. GENERAL PRINCIPLES

A. Administrative Law.

Defined lhat branch of publiC law wh1ch fixes the organ1zahon and detennmes thO compete~ of adm~traiiVe authonlies and indicates to the noividual remed1es f()( the violatiOn of haS rights

2. Kinds.

a) Statutes setting up administrative authonties. b) Rules, regulations or orders of such admlntstratJve authcnttes

promulgated pursuant to Che purposes fof which they were created. c) De!enntr.ations. dedsiOilS alld ()(ders of suCh administrative

authooti~ made tn the set11emcnt of controversies ansing in thelr pal"tiw!ar fields.

d) Body ot doctrines and decas1ons dealing with thn creation, operation <Jnd effect of dt:terminattons and regulations of such <JdmiOIStratiVe authoritieS

3 Admlmstrc!llon

r1) Mean1ng Understood In two dtffercnt senses·

1) As a functiOn: the executiOn, 10 non-judici;JI matters. of the taw or will of the State as exJ)(esSI;;!d hy compotent authonly

it) As an OlgamzatiOfl· that group or aggregate of persons '" whose hands lhe re.r.s of govenvnent are for the t1me betng

b) DIStinguiShed from government

c) Kinds·

1) Internal: legal SldF.l of publiC admtntstration. e g . matters concem1ng personnel, fisc:ll and planning actavthes.

II) External· deals With problems ot government regulatons e g • regulation of lawful callrng or professaon, mdusrries or businesses

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B. Administrative Bodios or Agencies

, Dehooa Or~an of govemme!'lt, other than a court and other than a lcg1sla:ure, wnlch aft cts the nghts of pnva:c parties either through ad ld ca1100 or rule-rna~ 1ng

2 Cto8ti0fl They are crCdlcd either by·

a) ConstlluttOOul ptovtS_,.. b) LegJSJatrve enactment. or Cl Authonty of Itt-"

3 (;(J(enon A body Of agency 1s ad!lllnestrabve v.lhere 'ts functiOn ts pnmanly regulatory even 1f 1t condUClS hearings and delermill£s oontro~rs~et to carry out •ts regulatory duty On •ts rule-makiOQ authonty, 11 IS admm1strahve when il does not have d1~ret10S1 to det~tm•ne what the law shall l>e but OTe!ely preSO'Ibes details for the enforcement of the !JoN

4. rr;pes·

a) Bodtes set up to fundion 10 Sltuaoons where tne gllvemrrent Is offenng some gratu1ty, grant or spcaal pnvllege, e.g .• Bureau of lAnds

bJ Bodtes set up to function In srtuations wherem the JOVcrnment ts .. ecktng to carry on certa•n of lhr. actual l>cs1ness or govemnrent. e g . BIR

c) Bodtes set up to runcuon 10 setuat1~ wneretn the g.Jvemmenl•s pe1 form1ng some bus1ness servece for the oubhc. e.g .. MWSS

d) Borues set UlJ to function In SltuabOnS wheretn lhe govcmment IS

seektng to regulate buSi!le5S affected wrth publiC lt'lterest. e g, LTFRB

e) Bod.es set up to functiOn in Sltualion:s wherem the go ... .:~mmentas seek•ng onder the poliCe power to regulate pnvat~ buStnf!SS and tndl'lofkWals. e.g . sec

fJ Bod.es set up to lunctton 10 srtuahons whereto the government 1s seelung to adJuSt indrvidoal corttr'lversces ~uc;.e ot a strong sot.al por~ey tn'IOived, e g. ECC

{;) Boches set up to make tne governmen: a pnvate partv e g CSIS

II. POWERS OF ADMINISTRATIVE BODIES

A. Powers of Administrative Bodies.

1 Ouasi-leg•slatlvc or rule-maksng power, 2 Ouasl-judoal Ol adtUdicatort power, aod 3. Determrnatrve powers

B . QuasT-feglslat•v• power.

415

1. Natute. ThiS es the e)(ercise of (i(-tcgaled legtslattve power. lnvolVlng no dtscrel.on as to what lhf! law shall be, but metely the authonty to rot the detaits In 1\e executtOO or enfOI'cemenl of a poliCy set out in the law itself. In I*Jiy Spmr Homeowners Assoc,atiOfl v Secretaty Defensor. G .R. No. 163980. August ~. 2006, the Supreme Cour1 snid thLII quas•·legislat1vo power s the power to make rules and regulatJOns whiCh results in delegated legislation that is wlthln the confines of the granteng statute and the doctnne of no~legabil•ty ond SP.paraliOrt of powers

a) Rules and regulatiOns essued by adminlstrotive authonties pursuant 1o tne powers delegated to them havo the force and effect of law, they arc brnd•ng on all persons subject to them. and the courts w11l take JUd1aal notiCe of them .

b) Both letters or InstructiOn and ExectJtive Orders are presJdent.al ISSUances one may re~al or otherwise allef', modrfy Of' amend the other, dependin9 on which comes J<Jter {Phlltpplfle AsSOCJaliOn of SeMCO ExpOrters v. Torros. ?25 SCRA 417/

c) II mav be stressed that the functiOn of promulgating rules and regulations may be log•tJmatety exercised only for the purpose of carry10g out the prov:sons of the law mto eftect. Thus. adminiStrative regulatlons cannot extend t~ law Of amend a legiSlatiVe enactment, for settled is the rule that ndm•mstrahve regulatroos must be •n harmony With the prOVISions of the law (LBnCI Bani.. v. Court of Appeals, 249 SCRII 149} Indeed. admimstrattve assuanc.es must not ovemdc. but must remarn conSIStent w1th ll'le law thP.y seek to awty ar.d tmplen n! They aru rntended to carry out, no: to supplant nor to mod1fy, the law (Comm1ssioner ollnrerroal Revenoo v. Court of Appears "/40 SCR/1 368/.

d } it 1s axl1lmaac th~t an admm!Strattvo agency ftke the Phlleppma Pens A•rthonty ~ns nodtscrett<m whether Of not to 1mpfement a law Its duty IS

41(1

to enforce tho law Thus. ~f I here rs a confhcl between PPA cuculars and a law lllte EO 1088, tt:e latter provarls (Easte'TI Shll}ping Lmas .., Cour: cf Appeals. G R No 116356, June ?-9. 1998}.

· ) An aamtn1strat1Ve order IS an 01d1nance ISSued by too President whiCh relates 10 speorrc aspectS m th· aam.nistrat.ve .>pcration of Government. It cannot be argued that Admtnrstralrve Order No 308 (prcsa1btng a National Computf.artlecl 11entrr1cahon Reference System) merely tmplcmcnts the Adm1n1sltatrve Code of 1987 Such n national ::omputenzed identrfteatiOn reterence system requ•res a ae!Jcate adtuslmenl of vanous Cllntendrng State policies. the pnmacy of nahonal secunry, the ellteot of pnvacy agarnst doss.er­galhenng by I he Government, ana the chotee of POliCieS II tleals with a sub{~ whiCh should be covered by a law. not tusl an adminrstrowe oraer {OpJe v. Torres, 2:13 SCRA 141}

2 Kinds of Adm1nlstratl're Rutos or RegoiRitnnS

b) !nterorc:al!ve fe!Jrslat!On They ate rules al'ld regurauonsconstrUtng or •n:erprchng tne proYtSIOOS ol a sta:ute to be enfot'ced and they are blndmg on all concerned unrtlt hey Bie cnangoo e g., BrR CirCUlars. CB c•rculars, etc Thoy have the cttcct of law ana arft enlltlcd to great rospoct, the~· have m thotr favor the J)fesumphoo ollegal1ty {GOflza'ez" L&nd Bani<, 183 SCRA 520} lhe erroneous appl!Cahon of the law by pubhc offcers does not bar a sub!;CQuor~ correct apphcatt011 ol the taw (Manila Jockey Club v Coun of Appeals, GR. No 103533. December 15. 1998]

c) Controgeot !eQtsla(!oo. They are rult>s aod regulatiOns made by an adm•n•strauve authonty on the elustence of certalfl facts (I( things upon which the enforcement of the taw depends See; Cruz v Youngberg. 56 PhJ 234

'3 RequrSJtes tor valtd1tv

a) Issue<! undE:r authonty of law See Olsen v Aldanase, 43 Phil

b) W1th1n the scope anrt purv ~ o! the law

II Tile power of admtnr<;tratwe olfoats !') promu•gate ru:es rn me tmplemenrattOn ol a stmu:e IS nccessau!v lrmttP.d to wh.1' IS provtded for

GUll lE RE.IIIE,.W~< • PQ.IliC• LlA,,

417

tn UIC leg•slatrve enactment. The implementing rules and regulatiOnS of a 11aw cnnnot mtend the law or expand lis coverage, as the powt11 to amend or repeal a statute Is veste<l rn tho logtsla!uro However. admtntstrative botfies are allowed, uooer thetr power of subOrdtnate !ogis1auon. to implement &he broad polioics laid dO'ovn 1n the statute by •filling m· thll details. All that IS requtred is that the regutatioo be germ.1ne to the objectives and purposes of the taw, that the regulattOO dOes not contrct<hct but confoons wtth the standards prescrtbed by lnw /PubliC Schools DiSirict Sllp!lMOOrs AssocJStiOn v Hon Ed1lbMO diJ Jesus. G R IJo T57299, June 19, 2006}

ir) In Land Bank v. Coun of Appeals, 249 SCRA 149. the Coon nulhfied DAR Adm. Circular No. 9, which allowed the openrng of a trust account 1n betra!f of the landowner as compensation ror the propeny taken. because Sec, 16 (e). R.A . 6657, is speortc: thai thedeposrt must be made rn•a~c:h·or tn · land Bank bOnds·. The impklmenling regutatton cannot outwetgh the clear proviSIOn or LO,e law See also C'.cb.J Oxygen & Acetylene Co II Drilon. 176 SCRA 24

11 } In Romulo Maban:a Law Off1co v Homa Development Mutual Fund, G R 11-:J 131082, June 19, 2000, the Supreme Court ruled that tM HOMr cannct. rn the exeraso cl rts rule·malctng po~~Wer, issue a fcgutauon not consistent with the law It s~ks to enforce and administer. Admtnistrahvc 1ssuances m~;st not ovemde, supplant or mochfy the law

tv) Wnere the regulatory system has been set up by law, rt IS beyond the pawer of an adm1nisttal1Va agency to dismantle rl. Any change in poliCy must be made by the leg~stative department {Association of PM1ppine Coconut Dosicrotors v Pl'll1ppine Coconut Aut11onty, G.R No f10526. Fobmarv 10, 19g8}

vl R A 8171 empowers the Secrc~.ary of Justice. in conjunction w.tn lhe Secretary or Health anc1 the OrrectOf' ol the Bureau of CorrectJOnS, to ISSue the necessary lmplementrng rutes and regulatrons. The rules. however, autt.onzed 1~ Direct Of of the BlU'eau of Corrections to prepare a manual setting forth the detals of the oroceedtngs pr.or to, during and aner ltm admmistrntioo of the lethal OJecfiOil on the convid.. Because the rule dtd not pro.,ide for the approval of tne said manual by the Secretary of Justice, conSidenng thclt the Bureau d Corrections ts met"ely a conslttuent untt of the Department cf Justice and rt 1s the Secretary of Justice who IS granted rule·making authonty under the lav., the rule authorizing the Drr~ctor of the Bureau of Corrections to promulgate satd manual is rnvafld betng an abdrcat10n of responsibU1tv by the Seaetary of Just1ce [EcJiegaray v Secretary o; Jusc,ce. G.R. No. 132601. Octobet 12 998/

vr) In the same case, Sec 17 ()f tM rules ano ragul3tion.s implementing P.. A 8171 whu:;h proVided that the death penalty shall not bo tnfl cted upon a woman W1th n lhref:' years noxt fOllowing the date o! tne sentence or while sr1e ts pregnant was declared tnvalid, the same bclflH an tmperm•ss•ble contravenbon of Sec 83 or tne Rev•sed Penal Code which PfOVIdeS •hat the death penalty shall not bo mtLr.:ed upon a woman whtle sne IS pregnant Of withm on(! vear after delrvery

c) Rea::;ooable See Lupangco v Court of AppeDls. 160 SCRA 848.

d) Pubhc.atron 111 the OfftCial Gru:ettc or tn a newspaper or gene al arculatJOn, as provided rn Executive Order No. 200 However. 1nterpretatrve rules and regulation~ or those IOOfely rntemal in nat1.1re, or tile sera~ lied letters o f instruct100 I ssued by admfrustrabve supenors ccncern ng the rules a!ld guidehr:.es to 00 followed by thetr SUbofdtnates In the performance or thetr dubes. may t-o Simply posted in consptCUOUS places n the agency itself. Such post1r1g already complies with the pubiiC8tion requtrement. PuhtiC8110n most be 1n full. or 11 ts no pubhcat•on at a I (Tan.Jda v Trrtera. 146 SCRA 446)

I) Thus. 1n Do Jesus v. Commiss10it onArxM. G R No 109023. August 12, 199e, 11 was held that admln1strat1Ve rules and regulations the purpose or whtch IS to enforce or mpfemcnt an ex1sting law pursuant to a ·o~alid delegation. mw.t be published in the OffiCial C~etto 01 in a newsp.,per or general ciraJiattOn, except rnterpretauvo regulations and tnose merely internal 10 nature, 1 e .• regutahn,g ooly the personnel of the adm.nts118trve agency, not the general public. The same rute was upheld in Csltex (Phlllpplf'les) Inc. v Court of Appeals 292 SCRA 273. Ukewl$8, In Phii.pp~ne lntemat100of Trad1ng CcN'poration v CommtS$100 on AuJrt, G.R No 132593. June 25, 1999, 11 was held that the DBM Cof'porate Compensation Circufar (DBM-CCC) No 10. which comptetafy d4sallows payment of allowances and other additional oompensauon to government offiCials ana employees start•ng November 1. 1989. 1s nola mere intcrprotatJVe or mtemat regtMttOn, and must go through the requ•s•:e publicatiOn m the OffiCial Gazette Of tn a newspaper ot general orculation The fetssuance of the CC~ and 1lS submiSSIOn for poblteahOn per letter to the NatiOnal Pnnhng Off.ce on March 9. 1999 WIU not cure lhe dcfed preasety because PtJblrcatton is a condrtiOil orece1ent to rts P.ffedrv1ty.

n) In Phlltppme AssooatiOfl of Servtee &porters v Torres. 212. SCRA 298. DOLE Department Order No. 16·91 and POEA Memorandum Ctrculars Nos 30 and 37. wh1ie recogn1zed a;; "atid exef'Cise of pobce power as de'egated •o u,~ cxecut1ve depanment. were deelared l!:gaDv rnvalld

OUlUNE I RE\'1EW£R IN POt. IT !CAL !Jt,W

4 19

defec1rve and unenfcwceable for lack of proper publtcalK>n and filing In tt1e Office of the NatlOilal Adm•n~trative Register (as reqUired by Art 5. Labof Code of ihe Phil1ppines). Thrs ruling was retterated 10 Phllsa lntematlon!l Placement and Servroos CorporatiOn v. See~etary of Labor and Empfoymont, G.R No 103144, Apnl 4, 2001. where POEA Memorandum Circular No 2, Ser s of 19f;3, which provided the schedule of placement and documenll!t•on fe(!S ror p~o employment agcncaos, was declared ineffective because twas noc pobltShed and filed w1th the Nc;oonal Adm•n•strative Reg:ster

1~) In Transaction Overseas C<>rporottOtl v. Secretary of LsbOI, GR. No 109583, September 5. 1997, on the queslton of the validtty of the cancePatioo of the petitioner's license to rectUtl worketS for ovef"Seas worio;; because the ReVIsed Rules of Penalties had not been filed wrth the Univcrs1ly of the Pniltppnes law Center as required by thP. AdminiStrative Code of 1987, the Supreme C()U(I said that !he Rev•sed Rules of Penafties did not prescnbe addthooa! rues goveming overseas employment but merely <U!I3t!od the admmtstratNe sanc1100s tot prohibited acts . BeSides. the canceltahon of the license was made under auttlOrity or Art. 35 of tho Labor Code. not pursuant to the Revised Rules of Penalt es.

4. Admnrstratwv rules wlfll penat sanctions: sdd1t10nal requr.sites·

a) The law must Itself docfare as puntshable the v.olabon or thg adm•mstraiNe rule or regulat100 See People v. Maceren, 79 SCRA 4!XJ.

b) The "law should deftne or frx the penalry for the violation of the admrntstrativE rule 01 regulation

5. NecesSity for notico ond heanng

a) There is no consbtut.onal reqUirement for a hearing in the promulgatiOn of a general regulation by an adm•nistraltve body When! the rule is procedural. or where !he rules am. 1t1 effect. merely legal opinions, lht!re •s no nc>rtee reqc!red. Ne•thec 15 notJCI'! ~u!fed 11"1 the preparabOO or substc.ntrve ru1es where lhe class to be affected IS large and the questions to be resolved involve the use of d•scrctton oomm•tted to the rule-ma~.1ng body In Corona v UMed Harbor Pilots Assocl8tl0fl of tt.e Phlltppmes, G R. No 11H15:.J. Decembf:.r 12. 1997, the Supreme Court rerterated the rule that a poor lleanng 1s not necessary lor the •ssuance or an admintstra1111e rule or regulation.

t} HO\\oever, see CommiSSKJnet ollntomal Revenue v Court of Appears 261 SCRA 236, wtere rt,e Supreme Court diStmgUtshed between

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admrniStrawe rules in tile nature of SUbOfdrnate leg•slatioo an-;1 those whict1 eKe murety inteq>retat1ve rures. An at1mmistrative rule tn the nature of subord1nate legtslabon rs des.gned to tmplement a law by providt~ 1ts detar s. and before 1t IS adopted ther~ must be a heanng under the Admuustratwe Code of 1987 When an &dffilntstrahve rule substant.ally adds to or mcreasroS lhe butdef\ of those concerned, an adm1nrstrative agency must accord 111ose d1rec'ry affected a chance to be heard oorore tls rswanc.e. In lhtS case, pnor to the rssuance of Revenue Memorandum Ctrcular No 37·93, the ogarettes manufac..tured by the respondent were m the c:alegofy of loO"'Ry-manufactured cigarettes not bear.ng a foreign brand Had i1 not be-en for Revenut Memo Clrcut~r No 37·93, lflf' enactment of R A. 765-t would not have resulted tn a new tax rate upon the ogarettes manulact:.ned by the respor.dent The BIR dtd not srmpty mturpretthe 13w. 1t exerCised ~oasr·legislabve authonty. and the req·nements or nottee, hean~ and pubbcatron should not have been tgnore.1.

b) In Phllippme Con$Limers FoundatiOn v Secremry, DECS. 153 SCRA 622. tt was ~ld that the funct100 of prescnbing rates by an Rdrrumstrat1ve agency may be etlher a tegrslahve or an adjudlcat•ve funct100 II tl were a tegislawa funct10n, the grant of pnor notiCe and heanng to the affected part.s rs not a reqwement or due process As regard!> rates pre~ by on admtnlstratrve agency tn the e)lert~se of its quasr-tud~e~al function, puor :'IOhce and Manng are essential to the vahdll\1 of c;ucn ratP.S Where the •L;Ies and the rates are meant to apptr to an ~nterprlses of a !Jtven ktnd throughout the country, they may oartake or a legtslat•ve character But if they oppt} exdusivety to a partiCt.llar pany. based upon 11 ftnd1ng ol fact then its functiOI'I IS quasi·)Ud1C18I tn character

c) In Una v Canna. '221 SCRA 515. the Supreme Court upheld the authonty of the SecretafY of EducatiOn to ISSUe DECS Order t.lo 30. prescrtblng gutdelules conc:erntng Increases m tulbOO and other SChool fees

d) In ltlaceda ~. Energy Regulatory Board. 192 SCRA 363, the Supreme Cou·l dedered tt.at while undef Executtve Order No 1n. a hear!NJ IS indtSpensabte, tt does not preclude lh'l Boatd from ordenng. ex parte, a prov~l tnc:rease subject to tts ltnal <!ISpOSihon of whether 01 noe to :nake 1t permanent, to reduce or mcrease rt funher, Of to deny the apohcatiOtl Sec. 3 (e) ts akin t:. a temporary restrarnrng Ofder or a wnt of prebmtnary attachment rssued by the court. which 01 e q1ven ex parte, and \Nhteh are subject to the resolutior; of the marn case

6 A t>elll10n for protubsttan IS not the proper remedy to assa1l tmplomeniJnQ Rules and Regulahons rssued rn the exercase or Quast-leg•slall~e function; ProhtbltiOfl 1S an extraordinary wnt drrectee a9A1nst an1 .nbunat. corpomr•on

board, officer rx person, whether elCercislng judicial. quasi-judiCial or ministenal funct;ons,Ofdenng said entity or person to desist from further Proceedlf'9S when the said proceedings are WithoUt or •n excess of jUrisdictioo, or is accompa!lled by grave abuse of d1screlion, and there i& no appeal or any other plain, speedy Of adequace remedy in the ordmary course of taw. Thus, prohibition ties agatnst tre exero:se of jodJCSal, Quasl-judtdal or mintstenal functiOns, not agatnst legtstative or qoasi.Jegislattve functions (Holy Spint Homeowners Assoc1ation v Secretary Defens01, G.R No 163980, August 3, 2006}

C. Detttrmlnattve Powers.

1 Enabling· to permtt or allow something which the taw undertakes to regulate, e g .. grant or de"'al or hcenses to engage tn a partiCUlar buStneSs.

2. D1tectiog. lllustrateo by the power ot assessment ol the BIR or ttle Bureau of Customs.

3 . Drsoeosing: to exempt from a general prohibitiOn, orrelieveanlndivtdual or corporation from an af'firmat1ve duty, e g , authonty of zontng boards to vary provlstons of zontng ord1nances. or the authonty or the Acceptance Board or the PhOippme Army to retievo certam persons from m1lltary tramt~.

4 . Examtntng atso called the investtgatory power; consiSts ln requ1nng prOductiOI'I cf boOI<s, papt~rs. etc., the anendance of wrtnesses and compelling their testimOny

a) Power to com;>el aHendance of Witnesses not inherent in admcniStratr.e body, but an admrnrstrat1ve offtcer authonzed to lake testimony or evidence tS deemed authonzed to administer oath, summon witnesses, requrre prod!Jdion of documents. etc •

b) Power to punish contempt most be expressly granted to the admlmstrative body, and when so granted, may be exercised only wt1en administrative body IS actualy performtng quasi-judicaal functions See Guevara v. CommiSSoiOn on Bedions. 104 Phtl 268, Massngc.ay v CommiSSJOn on Elections, 6 SCRA 27. Canna v CommiSSIOn on Human Rights. 2CU SCRA 4113,

5 Summary power to apply compulsion or force agatnsl persons or property to efectuate a legal purpose withOut a rudtetal warrant to authorize ~uch action, e g • 10 the he1ds ot health inspections. abatement of nUisances etc

J\dmittiJITaJII ~ lnv.

D. QuasHudlclal or adJudicatory power.

1 Proceed.ngs partake 01 the character ol Judtet.,l proceedn1gs Admtrustrabve body •s normaUy granted the authority to promulgate ts own rules or procedure, provided they do not 1ncrease. dliTI!ntstl or modtly substantivl! nghts and SUbJcd to d1sapp:-o'a by the Supreme Coun (Sec 5(5). An. \1111. Coostituhonl lhc roquisttcs ol procedurnl duo rvocess must be complied Wllfl

2 Admrn.strauve doe proce::.-s

a) The requi511es of edm•nistrative due prooes~. as enumerated "' Ang T~y v. CIR. 40 O.G. 7th Supp 129 are

1) Rtght to a heanng, 11) Tnbunal must conSIOer ev10ence presented, 111) Deas10n must have something to suppon itself, rv) Evtdence mll!.t be substant•aL v) Deosion must be based on the evidence adC:uced at the

heanng or at least contamed 10 the reoord and d1SCIOsOO to the parbet., vt) The Board or 1ts JUdges must act on s or their independent

consideration of the facts and thO law of the case. and not s.mpty accept the v•P.ws o• a subordtnato m amv•l9 at a doosion.

lfii) Decrs10n must te rendered in such a manner that the par'.tes to the controversy can know the vanotJ!1; 1ssues mvolvad and the reasons for the daos100 rendered

b) Cases·

1) In Ute Paterolc v. Bureau of Customs. 193 SCRA 132, the Supreme Court held that tn a forfe•lure proc.ecd1ng where 1M owner of the aJiegedly proh•ofted article ~ known. mere posting of the notJCC of hean~g '" the reS()Ondent's Bulletin Board does not oonsbtute oomolianoe With nrOCP.dural due- process.

11) Due process dumands lhRl the persun be duly tnfonned of •ha charges agamst h1m He cannot be conv.cted of an offense wJh Wflich he was no! charged Admrn•stratNe Pfo.:eedll'QS are not mcempt tram baSic and fundamer.tal procedural pnnoples. such as the nght to due p(ocess in urvestigahons and heanngs The nght to subStanhvP. and procooural due process IS applicable tn adm:nJStrawc proceedrngs (Crvil Serwcc CommiSSI')41 v Lucas, G R No 127838 Jonuaf}' 21 . 19991 The ~o;e~ of due proce~ IS lhat :1 rarty be alford :i reasonable QPOOttunity lo bf> heard <~nd to submit tmv eVIdence ho

may nave in support of his defense In ad:nlnistra~roJe Pfocee<Ungs. such as the one a! bend:. due process s mp!y means the apportumty to explain one's side or tho oppott.Jntty to seek e recons~rallon cf the acho~ 01' ruling comptairted r..r, a format or trial·type hearing IS nol, at an hmes. neces$ary [PadiDa v. Sto Tomos. 243 SCRA 155. M. RafTIIrP.Z lndustncs v secretary of Labor, 266 SCRA <83. Napolcom v Bemabv. G.R No 12<./943 May 12. 2000). In Arboleda v NLRC, G.R. No 1195()9, february 11, 1999, the Supreme Court sad thai tt!e essence or due process In adm•mstratNe prrxeedings is nn opportun.it'; to explain ~·s side or llf1 opportun1ty 10 seek rcconsiderat.iOO of me action or ruhng COfT.Olatned ot The teQ\.urefl'l(:nt of notiCe and heanng 1n temunauon cases does not connote fuiS adversanal proc:eecftogs, as actual adlfersanal proceedings beCOme necessary only for darif~tatiOfl or when there Is n need to propound searctung questtOOS to WltnesseS who give vague lestrmonleS Th!S is a prooodural right which the employee must aslt for siooe it is not an ~nherent nght, and summary proceedill!JS 1Tl2Y be conducted thereon In Cnfms v. Court of App8ats. G R No 122187, February 9 1999, 11 was held that as long as the patbos are given the opportun.ty to ~xplatn ~r side. the requirements of due process an! satisfactooty compl ed w1th In P.'?<ftppme Merchan~ Manne School v Court of ADpenls. supra • the Court said that lhe fflCIS dearly demonstrate that before the DECS issued the phase out ond closure orders, tho petrhooer was duly notified, wamed and given several opportumbes to correct ~ts deficicnoes and to OOITlply with the pertloeOI Ofders and regulatiOnS. The pebhoncr had gone an the way up to the Offtee of the President to seek a reversal of the phase­out ;:~nd closure orders t: cawot now dann thai 11 did not have the opportuntty to be heard.

H1) 1.1 Lumiqued v. E~anea, G.R. No. 111565. November 18. 1997, 11 was hold tr.at adm10istrative doe process does not necessarily roquire the assistance of counsel. But in Gonzales v NLRC and Arer1e0 de Dsvao Umvef'Sity. G.R No 125735. August 26, 1999, the Supreme Court held that there was a viOlation o1 admtntslrattve due Pf'OCCSS where the teacher was d•smtssed t)y the univers•ly wrtt,out tmving been gNen full opportunity to conf!'Of'lt the '"witnesses" aga~nst her

rv) In the evaluatton by thP- Department ot Fore19n Atfa1rs and the Department of Justtee of a request for extraditiOn. the prospcct1ve extrad1tee does not only race a clear and present danger of loss of property or employment. but of hbeny itself, wtltet: may eo~en:ualiy fend to hts fosCJble bamstlmenl to a roretgn land He 1s, ltlerefore. ent1tled to tt:e mtntmurn reQu.rement~ o: nottce and opportuntty to be heard, as baS!C elements ot due process [Secretar1 of JuStiCO V. LantiOfl. G.R No 1394fi5 JB!IIHJr)' 18. '7000)

v) Howcvor, adrnmistratJve due proce!;S cannot be fully eauatec 10 due process m he striCIJUdtaaf sense !Ocampo : 011/Ce of the Ombudsman.

424 rlniiiiUitUTII r In"

G.R. No 114683, January 18. 2000} The standard of du process that must be met in adm•n•stra!rve tnbunars allows a certalll I::.Jt1tude a~ long as the e!em,nt of falfne~s es not Ignored, oven 1n th nesenoe of provtous nctece. there ts no den1al of due process as long as the paf\les are grven the opportumty to be heard {Adamson v Amorcs. 152 SCRA 237} The essence of due process 1S slmpty an cpportuntty to be heard or, as apphed to admtntstrattve proceedings. an opportun ly to sef!k reconsideral!OII or the actiOn or rul:ng complained of {De Is Cruz v. Abi!lc, GR. No 130196. F•brusry 16, 2001], or an opportuntty to explam one's s1de (Pif,pinos Loan Company v SflCIJnf!eS and E .. chsnge Commrss1on. G R No 104720. APril 4, '2001}

VI) 1 he Monetary Board. as an admtnistrahve agency. IS legally bound to observe due prooess In the case at bench. lhe Supreme Court held that the Monetary Board complied Wllh alltne requtsrtes of adm•nistrahve due process. as ~numerated 1n Ang Tih"dV A.s to pehttt.ners' suspensiOn, no notice was necessary because 11 was only prevent•vc n nature JBvsl.l9gO :t, Court of Appeals. G,R No. 95326. M.1rch 11, 1999]

VII) In Globe Telecom v. NaiiOIISI TelocommuntUJttOIIS Com· m SSJOn, G R No. 143964, July 26. 2004 the Supreme Coun sotd that the assuiJed Order of NTC lfiOiated due process for failure to suffiCiently explalfl the reason ror the decisiOn rendered, for be•ng unsupported by subst.unlial evidence, and for JITIPUiiOQ ..ootatioo to. and impos•ng a oonesponding rme on, Globe, d.!sp•te the at>senoe of Clue \'\Otice and heanng whiCh would have afforded Globe the nght to Ofesenl 8VIdence on Its benalf

vm) The Manila lntemat10nal Atrpor1 Authonty (MIAA) cannot validly raise, Without pnor notiCe and publiC hearmg, tho fees, charges and rates be•ng paid by aviatiOn entitles doing bus1ness 81 tho atrpOfl The rate incteases Imposed are also ultra v~res because. to begtn w.Ut, it is the DOTC Secretary, no• MIAA. who tS authOfiz.ed to tncrea-;e the subied fees {MIAA ~ Alf'SP/In Corporation. G.R. No 157581, December 1. 2001}

ix) In Nicolas v DeSJe:to, G:R No 15-46611, De!:ember 16, 2{)()4, the S•Jpreme Col'rt found that Nicolas wa:. not accotded the rust r~uirement of adm.n•stratl'ote due process. the nght Lo present has case and subm tl evidence .n 'Support thereof P~>llt•oner was not not1l•ed of 'he prcltnunary con:erence which WO..Jid have affOfCJed nrm thE> oppor.untty to 3PP"~r and defend hi!' rlSJ!'lts fnclucllng lfle ngh' 10 request a format mveshozlion Substanttal e..,iden~ -or suet. relevant evsclenee as a reasonaote m1nd mJQhl acc~pt a;; adequate to suppon a oondu."iiifl - whtch 1s the quantum of proof ne('lessarv to orovo a charge '" an admiRIStratrv~ c."se was not met here

OUTliM' I RE'.IE .'<EP N POliTICAl IJIW

42S

x) In adminiStrative proceedtngs, procedural duo precess sil":l!JI)' means the opportunity to explaon one's side or the opportunity to seck a reconsideration of the act10n or ruling complained or "'To be heard· dOes not mean only verbal arguments '" court, one may also be heard through pleadrngs. Where opporturmy to be heard. c•ther through oral arguments or r!eadrngs, 1s accorded, there •s no denial or procedural due process [caSimuo v. Tandoi;J. G.R No. 146137. June 8. 2005}.

ri) In adminrslraUve proceedtngs, the fihng of charges and gtlllng masonable opportuntly for the ~>erson so charged to answer the accusatiOnS aga1nst htm constitute the ITllllrmum requarcments of due p~s As long as the party was given the opportunity lo defend h1s inlcrests m due course. he was J1()( donaed due process Moreover ter.hnacal rules of procedure and evidence are not stncuy appl•ed m adm•mstralM! prooeedtngs: admtll!StratNe d:.Je prt)(:'eSS cannot be fully equaled to due process jn Its stlid judlOBI sense {Civff Service Commi.SSJOn v Court ol AIJ{leals. G R No 161086. November 24, 2006]

3 Adninistrat/\'9 determmations where notiCe and heaflng are not ne<;essary fer duo process·

a) Grant of provisiOilol authority for increased rates, or to engage in a particular linE of business (RCPI v National Telecommunications Commissloi1, 184 SCRA 517; PLOT v NatJOna! Telecommunications Commission. 190 SCRA 717/

b) Summary proceedrngs or d.strnint and levy upon lho property of a delinquent tac.payer

c) CancellatiOn of a passpof1 where no abuse of drsaetJon as committed by Secretary or Foreign Affairs (Sunlay v Pooplo. 101 Phil nOJ

d) SUmmary abatement of anussancepefsewhich afferts the immediate safety of persons or property {Arl 704, Civi Corle of the Philippmes}

e) Frev~nhve suspension of a public officer or employee pend•og anvesiJgabon of edmimstrattve charges filed against him {Sec 5 t. Book V. Tnie I, Sublitlo A J.dmmrstratitte Code of HJ87}

4 R1g11t og<Jmst self"'rn;nrnrnation

a) In \..abaf L' Ksnunan 6 SCRA 1064. at was held that s1ncc .the adrrnnrstrahvc dlarge o une•pl.,!t\ed wealth agamst lhe respondenl t~ret:l

dmmutmm~ Ism

may result In the forle lure of the property under RA 3019, the compla.nant cannot can the respondent to the Witness stand withoo~t encroadung on hrs right against self-incnmtnauon In Pascual v Board ol Mct!tCDI Exammers, 28 SCRA 345, the same rule was toHOWEKI m aomt1'115trat"'e prooocdrngs agatnst a med!CSI pra<:tthoner where the proceed.ngs could posSibly result rn the loss of his privilege to practice mccltOne

b) lht:> nghl may bo trlvol<cd by the 1espondent m tne time he is caUed by :."lc ootnplamant as a w1tness. howeve·, if he voluntanly takes th witoess !!>land, he can be cross-e)Camined; but t1e may shll invoke the nght at the lime the questiOn whteh cal's tor an ans.wer WhiCh 10\:rlmrnates htm of an offense other than that which ts charged IS asked Sec People v Judge Ayson St.lpra ..

5 Power to pumsh contempt is tnherently JudiCial, may be e,:erosed ooty '' expressly conferred by law. and when adm n1strat111e boOy Is engage<: tn the perlcxmance of 11S Quast·Jud!Oal powers See Guevara v Comelec. supra.: Dumsrpa v Dtmoporo, 177 SCRA 478

6 . Adm;n,stmtrve deosrons /lOt pert of the le~al system Art. 8 of the ctvt Code reoognrzes juchoal deets10ns applying or mterpretang stntutes as p~rt of the legal system o' the countrv But administrative decisions do not en,oy that level of recogn•hon A memorandum-<:::rcular of a bure.lu head could not operate to 'lest a ta11payer wilh a Sl'l1eld fiQa1nst judtetal actiOn For thero are oo vested rights to speak of respecttng a wrong construction of the law by the admtnlstrawe offooals and such wrong iotelpfetat10n coold not place the: Government •n estoppel to correct Of overrule the same {Phtftppme 8Rnl' of Commumcations v Commtssioncr of Internal Revenue G R No 112024, Jnnuary 28. 1999}

a) When!providedbylaw appealfromanadmmsstrawedetemunatton may ·oe made to a hjqher or superior admin strawe ofl"teer or tlody.

b} By vlrtUP. of the pov.er of control which the President exerCises over all executtve departments, the President - ty himself - or through the Oepanment Secretanes rpursuant to 1~ "alter ego· dodnne). may afftrm, modify, ~ltl!!r OJr reverse lhe ad•ntntstra:tve deCISIOn of subofdrnate offtoals aod employees See Amneta v Garmattan, 10: Phil328.

C:) The appellate aom~rnstratr.;e agency may conduct adchtianal heanogs .n the appeAled casf' 1f Oef'med nP.Cessary /Reyes v Zamora 90 SCRA 91}

8 Dcclnne of res JudiCata.

a) In 'fsmsel v Deputy Executr.la Sacreuuy 190 SCRA 673, tho Supreme Court said that deCISIOns and orders ol admin sttaiiVe agcnoes havn upon the•r hnal•ty, the rorco and bindtng effect or a final Judgment witt11n too pu.'VIow of llle docume of res Judicara. These deciswns and orders are as conclusive UPOn the nghts ollhe affocted parties as though the same had been rendered t:y a court or general junsdict10n The ruJe of ros jud1csta thus forbids the reopenng or a matter once determined bv competent authonty adlng Within

tOoir exdusi\le JUnsdidiOO See also BoiSQt v National Telecomt'I'ICJ()I(;t/Ons Commtssion, 169 SCRA 198, NaStptt t.umber v. NLRC, 177 SCRA 93; United Housmg v Oayrtf. 181 SCRA 285; Na/JonRI Hous!flg 1\U(hOOty v: Pascual, G R No 158364, November 26, ?007 ..

b) In Umted Peps1 Cola SupeMsory Umon v Laguesma, 188 SCRA 15. the Supreme Court w.•tcrated the pnnCtple that tlte doctnno of res Judicata applies to adversary admu11stralive PfDCeedtngs. Thus, because proceedmgs for certtflcatoo election are quasi-Judiaal in nature the decis100s therein can attatn ftnaMy In FOITteh v. Corona, 289 SCRA 624, tt was held lhat when the Offcce of the President dcdmeo Its decision final becauso the motion for reconsideration Wil!' filed out of hmo, 11 lost junsd:ctton over the ca~e: ac:cadtngly, rts act of modtfying its dectSIOn (upon a serond motiOn for reconsideration) was tn gross d•~regard of lhe rules and the legal precept that acwrds tirahty to adm•nistratr.;e dectsions

c) However, the doctnne does not apply tn admlmstralive adJudication retat1ve to ctrzen.c:t\ip {Board of CommtSSioners, CID v. JUdge de Ia Rosa, 197 SCRA 853} On questJons of atiz~shtp, the doctnne of res judiCata can apply only when the follow1ng CXlOd•tionS r.,entiooed in ZJta Ngo Burca v RepubliC, wpra • obt.atn: (I) the Questoo of atJ7enship is resolved by a court Of

an admin1:wative body as a material cssue 1n tt.o controversy alter a fuiJ.Oiown ~nng; (11) with the active par1~z>ation of lhe SohatOf General, and (iii) the ·iodtng made by the admimstrahve body on lhe citizenship sssue is afftrmed by the Supreme Court

d) Netther ts the doctnne appliCable Yo~ here the admtoistrahve decislon of the WCC Referee awards the employee less than Yo~hat the law provides f8 F. Goodnch PIJI7rppmes v. Worxmen's Comrensat10n Commission. 1985]

9 Some rt:IIJvant C1CCISIOflS.

a) t aguna Lake D~velooment Authority (lLOA) has regulatory and quaSI-JudioaJ powers rn respect to pollutoo cases. w1th autnooty to ISSue a

·oeasu and deSlsl" order. and on matter5 affoe!Jng the constructiOn ot illegal ra~hpens. f>sh cages, and othef aqua-cultuu .. structures in Laguna de Bay, pursuant tCJ R A 4850 and hS amenda1ory tows, The chaner ol UDA gran~s 1t exclusave JUnSdtctron to I~L.'e permtts for ftSI'I pens and frsh e~ur~ In

Laguna r1e Ba~· fhe Local C-.overnmanl Code did not repeal tt>as provtsiOft expressly - al"'d the charter ol LLDA bong a speaal law prevat s c.11er the Loc:ll Government Code, a genemllaw /LLDA V: Cou:1 of Am~sls 251 SCRA

42}

b) The OECS Reg•onal ;)arector nas the authoraly to ISSUE' a. re:urn· to-work order (to stoking putMc scnoot teacherS}, to tnt1oate admm1:>lrattve cha.-ges. and to constitute an .nvesr.gattng panel (RegfOnal Director, DECS Rft{lion VII v CoiJ/1 of Appeals. G R No. 110193, January t 7, r995J.

c) The Houstng and Land Use Regulatory Board (Hl.URB) IS the suCGeSsor·llatmcy of the Human Settlement$ Regu'atory CommiSsiOn ~nd has, tnerefo;e, assumed the tatter's po"" rs and luncttOns •ndudmg lllP. power to hear end docide cases of unsound real estate bus•ness practices ano cases of speCifiC performance (Reatty Exchange Venturo C«poratton v Senamo, G R. No 109703, July 5 1995}

d) The Prosecution and Enforcement· OwrStOn 'o\'3S cstabhshe<l as t~ adjodteatOfV arm of the Securities and Erehange ~nmiSSJOn /Gafma v Court of Appeals. G_R. No. 122787, February 9 1999}

e) By wtue ot R A 763£., t 1S now the Department of Energy, net the En rgy Regulatory Board. that has tunsd•choo over dlspu•cs ltwolvmg d~ect connect100 of eledt!C power. Definitely. the exptoraoon. production, rr.ar1<eting, distnbullon, utJhzation or any other activity invotvulg any energy resource or product falls wtthrn the supervrstOn and control of the Department of Energy (Energy Regullftory BoarrJ and /ligan Light & Power, Inc. v Court of Appeals. G R No 127373, March 25. 1999)

f) Otsputes 1nvoMng homeowners assocaaiJOnS fall wrthin !he e)CciUSIIIe tunsdldiOO of the Home Insurance Guarantee Corpo~atton (HtGC), as expressly provided 10 R A 580 as arreooed {Unilongo 11 Courr o1 Appeals, G R No. 123910, April 5. 1999] Note that at present excluSNe ongmaiJUnsdcaton ere 5uch d•sputes is lodged m tho Housmg and Land Us~ Requlatory floani (HLURB•

OUTU'-E J PEVIE\'<£R IN POliTICAL LMl' I

Ill. EXHAUSTION OF ADMINISTRATIVE REMEDIES

A. Tho doctrine. Whenever there is an ava lablo ndministratr.;o remedy provided by law no •udldal reoourse can be made unt1l an such remedres havo been avn'lod of ~nd cxhaustE>d See Aqutno v. Mansoo. 129 SCRA 53?, Nattonal DeveJopmenr Gampany v HetV/Jfa. 151 SCRA 200, Uflion 8Dnh v Court of Armcals. 190 SCRA 198

1. Reasons

a) 11 reltef 1s first sought from a supeoor admmtslratrvo a~ncy. resort to lhe courts may be unnecessary In Bangus Fry Ftshcrfol'< v Lanzanss. GR. No 131442, July 10. 2003. the petruoners, instead of appea&ng the adtOO of the Reg10nal E)ecut1vc D<fecto' to the OENR Seactmy, 1mmedratcty filed l.he'r comolalnl with the Manila RTC, thus depnv ng tho OENR Secretary the opportun :y co review the deosion of his subordmate Under applicable Junsprudence, pet1tooers' omiSsiOn renders the'r COmJ)Iatnt dtsmasSible for

ladt or cause of act1011

b) The admrntstrabve agency should be gNCn a chance to correct 11s error Thus, n Bernardo v Abalos. G R No t37266, December 5. 2001 f('lr fa•lure of the pelltaoners to file a motion for recons•doratiOn from the resolution or the Comelec en b.,nc d•stn~sStng lhe oompta.nt tor InsuffiCiency ol evidence. tne petJhon for cerboran filed ¥.1\h the Supreme Court was deemed premature and was dtsm.ssed. It was held that the purpose of the mobon for reconsiderat on IS to gave the COmefec an opporturuty to cooect Ule error unputoo to at

c) Principles of com•ty Sind conven100ce reqwe that th-e courts stay thew hand untlllhe admii"'ISlratM? processP.s are completed.

d) Sin<'C judici3J review Of admmtstraltVe deCISIOnS rS usuaHy made through speoat cwll actiOns, such proceed10QS will not normafly prosper If ther~ IS dnott.er pia n speedy and adequate remedy n lite ord1nary course of law. ";"hiS was aJso o:ed by the Supreme Court as one of the reasons for the d :->mtssnt or the pelltton for ce:1roran n Bernardo v Abalos. supra_

2 Thus tn Lopoz v City of Mclnila G.R No. 127139. FobruiJry 19. 1999, 11 was held thai the ru'e must be observed m or:1m to p•event uMecessary ar.d pmmature resort to the courts.. Scsides, Sec 187, R.A 7160 (local Government Code) e~oresslv IJrovid •s that admrnrstrallvo remcd•~s must be

OUTUI.I£! I JIPJ1E NE.fl m POUTCAl lAW

exhausted bef01e the constrw:.onalily or legaltty of a tax o«fnance may be challenged tn court In NstiOilllllmgatiofl Adm nistrafiOIJ v. Enaso, G.R No 142571, May ~. 2006 where lhe contractor tas~ed to \\'!den a nver •mmedtatcly sued the Natooal trngatlon Admrnlstratoo rn coon lor payment WJthOut fast l'ihng a clA.m w th the Comm:ss100 on Audit. rt was he~d lhat the oontractor's fatfure to exhaust adm•n•st.rarrve remed1es IS fatal to hts conccuon suit

3 It must te ooted, howe11ct, thai oo y those c:eas ons of oonnmstratwe agencaes made m the exerosn of quast-Jucf,oat powers are sobfect to the rule on exhaustiOn of adm•ntstrat,ve remcdms (Asscoat10n of Phi/;ppine Coconut DeSICCators v Philippine Coconut Authonty. G R No 110526. February 10, r 998/ In like manr.er, the doc.tnne of pnm.'lry admtnrs:rative JUnsdtctton applies

only Where the admtntstr.ltive agency exefoses tis QuaSJ-judtCI81 or adJudiCatory powers Thus, wtlefe wttrtt IS assac ed is th~ validity or constitutionality of a rule Of regulatlOO ISSUed by the admsntStrallve agency 10 the performance Of tiS quaSI-'1-estsbtive funct•on. lhe regut:u courts h;ne jurasoichon to pa!>S unon the same {Smart Commumcat,ons v NJJiiOI'ItJ.I Te10commumcat10ns CommisSiOn, G.R No 151908, August12. 1003]

B. Corollary Principles;

1 Doanne of Pnor Resort, also known as the doctnne or J)(lrnary odmrntstrativo JUrisdtehon Where there 1s competence or junsd.clton vested upon an adm•mstrattve body to act upon a mr1tter no •esort to the courts may De made before such admtmstrahve body shall have acted upon the matter.

a) In Industrial Enterpnses, Inc v. Court of Appeals. 184 SCRA 426, it was held ttlat lnasmud'l as the memorandum of agr~ment t-etw~n lei and MMIC was denved from the coaJ...operar.ng contract and t.ltnnsically tJeO up With the ngt\t to develop coal-beanng lands, lEI's cause or action was not merely resossaon of contract but the ~or tne opetatiOO of the coal blocks. Aooordtngfy, the case shoutd have been rtled with the Board of Energy Development. not With the Reg10nal Trial Court See also CommiSSJOner of ~toms v Navarro. 77 SCRA 264· Alme:tdras Mrmng v, OffiCe of the hsurance Commiss1011er, 160 SCRA 656; PCGG v Pena, 15Y SCRA 556.

o J In Regl()()s/ Dtrecrot, DECS Regtc. 1 V/1 v Court of Appeals s:Jpro • thP. Supremtl Court darect~C' the Cou:1 or Appeals to su!>pcnd actron 0:1 the cases brought before the •att~ until the final outcome ot the admant!otrativ~ lnv~t•gation. conformably with the doctnne of pnmary adrmmstrai.Jve JUfiSd!ctton In G.ucia v Coun Of Appea's G R No 100579 June 6. 2001 where pet•honer, wno was at that ttme the Admm,strator or PhtJ,1)1)111!'! Coconut Adminrslration aher havmg bePn rlfC\iP.nttvely suspend~d O'l tM ba!:.IS o!

4.11 --------------------adm•mstrat~Vt~ ch~es filed agamsl hrm, ammediatoly filed e petJhon for rerttorari, proh•bltion and mandamus. h was held that resort to lho courts was premature and preop•laie, beeause tho admtntstratiVe proceodtngs we(e strll on~olng. Furthermore. from lhe decaslon of the Phalcoa Board, the ad.llrn "tratrve remedy of ap.pealto the Ctvtl Service Commission would str oo a ... ai!pble to tOO admanastrntor StM! also Gonzales v Ccun ol Appeals, G.R. No. 106028, May 9. 2001

c) Ouest10ns relauve to comphance wrtn the requtrements for the conversion of subdiVision lots are property ~nlzable by the Housing and Land Usc Regulatory Board, not by the regular .:ourts. Thus, no feS(>rt to the CtXJrt may be made Defore the admmestrative body shall haVf! acted upon the mautor (Cristobal v Court of AppealS. 291 SCRA 122)

d) The P.ntorcement of forestry luws, n.:les and tegutattOns tan Wlttun the pnmary and speoalmsponsthiltlles or tho Department of Env•ronment and t..:atural Resources: thus, the assumption by ttw> RTC of jurisdiCtiOn over the ~u:t fdod by respondents ooost.tutes an encroac.'lment into the domatn of tne admmtstratrve agency (Psat" Court of Appeals. 266 SCRA 167) Thus, in Sy v Court of Appeals. GR. No. 121587, March 9. 1999, the Supreme Court said that the lumber forferted under P.O. 705 whidl the pe• tJoner sooght to recover came under the custody 01 tho DENR, and all actions seeking to recover posseSSIOO ~eof shOuld be direct~ to that a~ency, before any resort to the oourts may be made.

e) In the matter of tssuang lteenses to operate radio stations, the National TelecommumcatlOns CommissiOn ts tn a better positiOn than the courts to determtne to whom the pnvalege should be granted In order that pubbc interest may be sttrved. The doctrine of primary JUrisdiCtion prevents the court from arrogabng unto Itself lhe authority to resolve a controversy whiCh falls under the juisdidion or a tnbunal possessed With speoal competence [Ctusaders BroadciJstmg System" Nst.~f TeleoommumcatiOIJS CommiSSIOn. G.R. No 139583, MB)' 31, 2000}. -

I) Exccutilfe Order No 1008 vests 1n the ConstrucOOn Industry Arbftrat•on Comrrnss10r1 (CIAC) onganal and exclusiVe jurisdiCtiOn over disputes ariSing from C)( oonnected wath cons1ruct100 contmcts entered Into by part•es wtto have agreed to submtt !herr dtspute to voluntary arbitratlon [Phlfrock '1.

ConstmcttOr.lndustryArbltrntiOn CommesSJOn, G.R Nos. f32848·49, Jun£> 28, 2001}

g) The mte(JJI'etataon ot a law, made by an administrative agency ,,:,e tho Energy Regulatory Board rs accorded great respect and ord1narlty

controls II rs the basiC rule that the courts will not interfere in matters which ilte addressed to the sound d1scretJon of govemflll'!nt ~genaes ~?ntrJsted Wlth tile regulalion of actiVIties com1ng under the :sreoal technical knowlodgo and rra•n~g of st.tch agencaf!s ihe courts g1vc mucn wetghl to the govt:rnment ageney or ot1•oals cnargeo wtlh the Implementation or the law. consldenng !hesr competence, experhse. expenence and 1nforme<f judgment, and the fact tha• 'heJ freouenll)' are tne dralters of the law th-.ytnterprel (EnmTly Regulatorv Board 11 Cowt of Appeals. G R No. 113079, Apnl ?0, 2001 J

h} In Prosecutor rabao v Judge UI8Qan. A.M No RV-01·16:,1, September .t. 200:. Since the complatnt fer replevin stared that the sr.ipment of tanbark. as well as the vessel on whid'll1 was loaded. was seiZed hy the 1\81 lor venfteattOn of supporting documents. and that u,e NBI had tu• ned over the serzed items to the OENR "for offiCial d1spostt1011 and appropr.ate ac110n·, these allegations should have been sufftc ent to atar1 the respondent JUdge lhat the OENR had custooy of the serzed •tems and that admlnlstr<~hve procee.J•ogs may have already oeen commenced concerr1ng the sh1Pffit!nl. Und~r t e dcx:tnne or pnmary admln•strative jurisd•ctton. couns cannot take cogniZance of cases pending belore adtTUn~tralrve ~enoes of speanl competencll 8esid<Js, 1L was ocar tnat the plarntrff 1n the rep.ev.n surl had not exhausted admrntstrattve remed1es ava1lable to h.m Respondent fudge's act or taklnJ cogntz.ance of the replevin suit clearly demonstrates 1gnoraoce of tho law

•) Sec 50. RA 6657 (Comprehensive Agranan Reform Law) vests the Department or Agranan Reform Wtlh Ql.mSI·Judletal powers Since the law does 001 d,sbngu1sn, the JUI'ISdrclion of OARAB should. therefore, Include an -agricultural lands under the coverage or the CARP", rncJudtng pnvate lands devoted to or SUI!able for agnculture. as defrned 1n Sec 4 or thf: taw Accotdtng y, 11 was held that DARAB may properly take cogniZance of this case involv•ng a CO(Tiplalnt for rFJemptiOn, st beifl9 a case concemsnQ the righ~ of respondents as tenants on agricultural land {Same v MaquJimg. G.R No 138839. May g, 2002}

t) Thf.t Polh.Jtloo Ad1ud.catl0n Boord 1s lM a~ncy of government tasked Wllh determ1ntrlg whether the etnuents of a p~rticolar tndustnal ostabltsl'lr,,enl comply wrlh or violate applrcable 3nh·po lultQn statutory ar:d regulatory proVISions It also has the power to JSStJe, ex parte. cea"..e and desisl orders Thus. lhe premature •nvocat10n of the court's interventiOn renders the compta101 Without cause or actron and O~ISSib:C on sue:-. yround (Estrada ~·. Court of Appeals, G R No 137862. November 11, 2004}.

11 1 l he pellt•oners· prem<:.ture resort to the courts necessanty becomP." tarai ro tnerr r:ause or .-.chon II ts prf>sumed that an oJdmmistratl',e

agency. In rhls case lhe Board of OotometTy, 1f al'forded an opportunt~ to pass upon a mat1er would decide thP. same a>rrer.lly, or correct any prevtous error commttted in rs forum [Coballcs v. Stson. G.R No. 131759, March 23. 2()()4}

I) H.;wever. tn Rogtno v. Pangssmnn Colleges of Science and 1echnolcgy. G.R No. 156109, November 18, 2004, Where the petitioner su<!d the school for damages berore the RTC for prevenbng her from ta ·.ng the final ellams due to her fatlure to pay for t•ckels ~or a school rund-ralslog actlvirv. and respondent inSISted that the oompla1nt shoUld hrst be filed w1th the CommiSSion on Htghel' EduCatiOn (CHEO), the Supreme Court said that the CHEO does not have the po-Ner to award damages, and thus. the pcl1t10ner could not have commenood hef case before the CHED

2. Doctme of finalrty of Bdmmistratwe ucttan· No resort to &he courts WIU be allowed uliess the admtmstrat1ve actiOn has been completed and lhe_ro s noth•ng left to be done in the admlntstrnhvP. structure See Sla. Rosa Minmp "I. Loldo. 1 S6 SCRA 1 Because the pehttonr:r dtd not take an appeal from thO order of &he Otfector, Bureau of Labor Relations, to the Secretary of Labor and Employment, out went directly to court , 11 was held that the court ectron was m3de premallirefY and tl'lo petitioner failed to exhaust adm1mstrauve remedre.'i [SSS £mplo~sAssocull10n v. Bsthan-Velascn, GR No. 108765. AuQUSI 27. 19g9).

a) A party aggneved must not merely inrtiate the prescnbed adm1mstrat1Vf' procedure to obtatn rehef. but must also pursue It to its appropriate conclusiOn before seekrng judtCiallnterveniJon in order lo grve that adm1nastral1ve agency an opportun1ty lo doode the maller by 1tself correctly and prevent u'lneoessary and premature resort to the courts (Zabat v. Court of Appeals. 338 seRA 551/

C. Effect of failure to exhaust administrative remedies. The JUrisdiction of the oourt ts not affected, but the compla1nant iS depoved of a cause of act1on wtllch is a ground for a moliOO to dlSillrss However. 1f no motion to diSll\tss IS fded onlh•s ground, lhefe is deemed to be a watver See &.>to v. Jareno. 144 SCRA 116, Eastern Shrppmg Unes v POEA, 166 SCRA 533.

0 Exceptions to the doctrine:

1. Doctme of qualified poflttcat agency (alter ego tk><:tnne) See Ktlusanq Baran. etc. v. Oominguez. 205 SCRA 92. In Nazareno v Court of Appeals 267 SCRA 589, the Supreme Court held that v.hcn the Undersecretary or Natural ReSO\.'rces den1ed the mot1on r01 reconsideration, he was actmg on behalf or

ltle Seaeta~ or Natural Resource.." acr.on:tingly, admtnsstmtJvt: remedies had been exhausted

a) Exce:>t where the taw e.~~pressty provides 'or e,:ttaushon See f.'1n v Director of ForestJY. 125 SCRA 302. wnere the fa•lure or the pehttoner to appeal the order or tM Secretary or Natural Re!:ources lo the PreSident of the Phd•Wtnes ( wVho •~sued ExecutiVe Prodamahun No 238. wtthdmwlllg tile area from pov.tte explolahon and estabhshsng 11 as the Olongaoo Watershed Forest Reserve) was deemed fatal to the pet1t10n.

b) In Calo v FUt:rtos. 5 SCRA 399. woore appeal had already been made to the P•esid~nt und, before the PresiOOnt cou'd aC1 on the appeal. the same was Withdrawn. lhefe wdf. ':1comed to ha11e ~n fatlu~ to exhaust admin.str&tive remedieS Besides, by appealeng to the President, the party recognezed a pla•n. soeedy and adequate remedy sttll ope11 to h•m 1n too ordmary cou~ or law - and lhu:., hiS speoat etv 1 act.on must fnil Sac also Nat10nRI Development Company v: Hervtlfa, supra .• lt'ldustrial Power Sales 11 Smsuat. 160 SCRA 19. However. where the appeal to the Office of the President had not been acted upon (and de!'J)4te follow~ups for two months, no reply was rece1ved by the petrtionet), and m the meantrme, the Ph•ltppme Coconut Aulhonty, pursuant to the assailed resol:rtion. was •ssutng certJficates of registration tnd1scnmtMIP.Iy, lhe Supreme Court held that the Association of Philippne Coconllt Desteeators was jushftea Ill fthng ttle case in court (AssooatJOn of Phlltppme Coconl/t DcSICcatOf'S v Philtppine Cocom.t Authonty 286 sc~ 109/

c) In Samaflang Magbubulod ng Kspdula, Inc 11 Coun ol App68ls, G .R No 103953, Marc/1 25, 1999. 11 was held mat the deasions of the DAR Secretary cannot be QUeStiOned befofe the DARAB ExhaustJon cf adrmntltratf\le remedjes is impopet., this case. becaUse Sec. 5o4 of R .A 6657 &pecifically prov1des that decisions and awards of the DAR shalf be bmoght up 10 the Court of Appeals by c:en.oran

2. Where the administrative remedy IS fruldess, e.g., sul1 kA recovery ct trUe co offtee most be mslrtuted wrth1o one year from Illegal OU"'er ott.ef'Nise the actiOn prescnbes

3 Wt;ere there is 'estoppe4 on the part o' lhf: admina~trflt:Ve :..gencv (Vda De ran"' Veterans Bacl<pay Commission 105 Pllil3n).

4 Where !he ssstJC tnvotved •s purel~ a legal queshon [Palma-Femand 1 v. De Ia 0az, 160 SCRA 751. Eastern ShiJ)ptng L 1es v. r>OEA. :.vprs . Satr.son v NLRC. 253 SCRA 112/ rn Castro v Secretary Glona. G R No 132774,

435

AU{lCJst 20, 2001, the Supreme Court said that lhefe IS a question of law when the doubts« dtlferences anse as to what the law tS on a certa1n stato or facts. 1 h re lS a Qo~~estlon of fa~ v.hen the doubts or differences arise as to the truth or talstlv or alleged facts

a) In CaS:ro, ttl() po.Hil•oner was not dJSflUhng the ndmtnlslrativ(! r1ndsng of gUilt, but the correctness or the penalty tmposcd He clatmcd that !he PfQPel penalty for the first offense of unmoral or disgraceful condu~ rs onty suspens.on, not diStnlssal from tile service. Understandably. the ISSUe 1s ~ p~re qvest100 of law. Similarly. 1n Bordallo v ProtessiOIIIJI Regulation ComrJHSSIOfl & Bo8rd of Uanne Deck OffiCers, G .R No 140920, November 19, 2001. tt was held that the 1ssue was purely a legal question, masmuch as the quesbon was which taw to appty: RA 8544 (Phlltpp&ne Merchant Manne Offecers Act or 1998) whch presc:nbed a pa<>Stng grade in the hcensure examtnallon of 7::1%. or Pntstdeni1al Decroc No 97, whteh pre:;c.nt>ed a pass•ng grade of 15% liki!'Wise, in Boncod•n v Nationnf Power CorporatiOn, GR. No 168476, September 27. 2006, Whore tile d1spute was on the t~gahty of the resol.uttOn ndopted by ll'le Board of Ql(ectors of National Power Corpofabon granting a sa!ary step trcrement to all offiCials and employees who had served the NPC tor ten years as or 1999. tt was held that :he ISSUE' ln\IO!Ved were ptJroly legal

b) In Ty v Trampo. 250 SCRA 500, 1t was held thai there was no necesSity to appeal co the Board of Assessment Appeals, considenng that the part1es agreed that lho issues 1n 1he petitiOfl wer'! purely legal. and thus. no c. vldenoe was presented in 1t1e lower court In Esp•na 11 Court of Appears. G R. No 97903, AJ.Jgust 24, 1998, considenng thai the •ssue rrused called for the Interpretation and apphc:abon or the taw creatmg the National Electttf.cabon Administration and the by·la~ of ~ leyte IV Eloctnc Cooperatrve. 11 was held that ~ as the tSSOO was R purely legal one. there was no need to exhaust administrative remedses.

!) . ~the administrative actiOn IS patently tllegal. amounting to lack or excess of junsfiCbon (1ndustrial Power Sales v Si~. supra.]. In cabads v Alunan. 260 SCRA 838, the Supreme Court said that the Comrtllssiooer of the NatlOI'\al Polece CommisSIOn who dented pellhoners' appeal to the Secretary of tntenor and Local GoiiCmment aclcd tn a patcnlly Illegal manner, because only the Secre!ary of DILG coo1d act on the aweal and !hat the National Police Commession, telng a colk?g at body, cannot be bound by the act of an ind:vtdual Comm•ssJOOer

6 Whf're tnere 1s unreasonHble delay or offtctallnaction. In Repvb/lc v Sarld~ganbaylJO. 255 SCRA 438. the tnact10n ot the PCGG on lhe mot100 filed by lhe resPOndent and c:o-responden! 1•1 tool-; .seven yea~ bef<lfe the PCGG

loJmtn rtnulw lAIA

filed its motiOn to dismrss based on 'failure to exhaust admimsttative remed.es) gave nsc to unr~asonable delay

7 Where there es rrrepara!Jie 1njury or thfcat thereof unle:.s JUdiCial recourse IS llTimed&atety made (De Lara v Clonbel 14 SCRA 269) In Nattonat Food Authonty v Coort of Appeals, 253 SCRA 470, beCause the contractS of the se<:unty agenctes had already been termtnated aod t.'leir rep£a-:cments were hired, appeal to the Boartl of Trustee~ of the NatiOnal Food t.uthOrity and to the Secretary of Agnculture was not a pla1n speedy rtnd adequate remedy 10 lhe c:ou~ of law The reSPOndents had ro go to coun to stop th~ 1mplementa1ton of the new contracts

8 In 13nd ca!.eS, where tile sut}ject maller IS pnvatt lan<J {Soto v Jareno, $4/PflJ}

9 Where the law does not make exhaustion a coochtu:m precedent to 1ud1Ciat recourse

10 Where observance of the dcx:trme Will result tn the nut 1fiC2hon of ltle clatm ,

1'1 Where there are specJ.'l reasons or crrcum::.tances demant11ng tmmed&ate court <K:tion.

a) In Roxos & Co v Court of Apfxials, G ,q , No I 27876, Deren10er 17, 1999, the Supreme Coun held lh&t where extlausllott of administrative remedies before the OAR dOes not proVIde the party with u pmin, spoody and adequate remedy, then the pany may seek 1mmed•ate redr~s Ill cour1

b) In Department of Agrarian Refonn ' · ApeJt lr~vestfllf"nl and Fmancmg Corporation, GR. No 149422. Apnl 10, 2003, the Supreme Coun aald that the doctrine of exhaustiOn ot adm•ntstratrve remedtes may be diSregarded whfon, £s •n this case. (t) there an: cm;umstanoes indteatnlg the urgency of jUdiCial 10ltmtent10n; and Cii) the aam1ms•ralJve actiOn is patently tllegal and aniO'Jnts to laclo. or ucess of junsdteiiOn :n this case, the PARO did not talt.e Immediate actiOn on lhe respondent's prt>test, and 1t was only after more than one year that It Nas forwarded to the OAR Since then, what t>et11100er OAR did was to reQuire rP.spondent every noN and then to submtt COptes of c;upponmg documents whi~h were a teady attached to 11s Protest In the meantime, resPOndent round lha• the PAHO had C<lused the canccllatson of tis hlle ana that a new onP wtts IS!'ued to :m alleged farmer­benefiCiary

12 When due process of law is dearfY vl()(ated (Anzaldo v Clave, t :t9 SCRA 353. Zambales Chromite v Court of Appeals. 94 SCRA 261/ In Pogaf1J v Court of Appeals. 254 SCRA 606, becauSe lhe parcels of land of the respc.noont were placed under OperatiOn Land ~ransfer or 1M Land Reform Program and the cenlf.cates of hUe Issued to the peii~IOrtefS Without the respondent haVIIlQ been gwen an opportuMy to be heard, the Supreme Court said thrtl there was dental of due p~YCess. and thcrefcre. there was no neP.d fOf the respondenl to exhaust admsrnstrative remedies.

13 When the rule does noc provide a plain, speedy and adequate remedy {QuisumbiiiQ v. Judge Gumban, 193 SCRA 520/ In Estuerte v. Court of Appeals, t93 SCRA 541, the Supreme Court said that 1n a civil action ror damages. the mort's concern is whether or not damages. personal lo the platn'.df. were caused by tr~e acts of the defendants: it can proceed Independently of the admtnistrat"'o acbon. Acoord1ngly, the docttlne ol exhaustiOn of admmistratJve rcmedtes ooes not aPriY

a) nlnformat10n TechnotogyFoundattonofthePhi/Jppmes~ Comelec. GR. No 159139, January t .'l. 2004, the Supreme Court referred to :hiS as one o1 the reasons why there was no necessity f04' the petrbone• to exhaust adminiSirati\'0 remedies. In Ia~. the Court, Citing Paat v Court of Appeals, 266 SCRA 167, enumerated the 1nstanoes when the rute on exhaustion may be diSf'egarded. as follows' £1J When there is violation of due process: 121 when tha issue involved is purely a legal question, £3) When the admsnistrati...e ad100 ss patently 1llegal amounting to lack or excess of JUnsdlclton, [4) When there is estoppel on lle pan of the admtnl!ttabve agency concerned, (5) When there l::i irreparable itiJwy; (6] When the respondent is a Department Secretary whose acts. as an a!er ego of the President. bears the implied and presumed approval of the latter; (71 When to require exhaustion or administrative remedies would be unreasonab'e; (8) When tl would amount to a nuflificalion of the daim; [9) When the su~ matter 1s a private land in land case proceedings, (10] When the rule does not provide a pla1n speedy or adequate remedy, and (1 1] When there are arcumst8nces 1ndiC8t1ng the urgency of judicial intervention.

OUTUNE 1 !' i!IFWER ·~ POt.ITlC.~-. t.JoW

IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

Adnunwrnltl't' lflH

A . Rule: Except wtwm the Const•tuhon reQutres or aMows 11, JUdiCta re~o.ew

may be granted or Wlthh@ld as Cong•ess chooses Thus. the law may provide that a determtnalJOn tnade by an acmtnts<.ratrve agency sh.~ll be final and irrevtewable In such a case, toore lS no VIola liOn of duo process

1 However,Sec.l,par 2.An VIII. PhthpptneConstitution whichproVldcs that the Judicial ';)O'Nef includes the power of the c.ourts of JW>liCe to determene whether oc not there has been a grave abu~ or dlscrehon tantamount to lad( or excess or j~ on the part of any agency or nstrumentahty ol govemment, cleartv means that Judioal reVIeW or aem.nisllabve decisiOnS cannot be dented the courts when there is an ~lepaliOn or grave abtl5e ol d•scre!JDO

8 B;ose:l for JudlelaJ Review:

1 The Conshtulton For tnstance. Sec 7, Art. IX-A, Conslltut.on. provides •:~t x x Unless otherwise provided by this ConstitutiOn or by law, any doeisiOil, order, or ruling of eaCh Comm•ss10n may be brought •o the Supreme Court on ce111oran by the aggr ved party Wllhm lh1rty days from rerotpt of a mpy thereor

2 Statutes

3 General pnnciplcs of law In San Miguel CorporatiOn v Secretary of Labor (1975). It was held that there Is an undertying power 111 UlP. Courts IO scruhnlle the acts of admtniStrall\tO agencies on quesflr)Os or law and )\Jrlsdtction al\hough no nghl Of revtew IS grven by statut~ ThiS IS deSIQoed to keep the admlntStraiJVe agency Wlthrn Is jurisdiction and to protect substantial nghts or parttec affeded by Itt. ~s 11 "' pr1 or the system or checks and ba1ances wnidl reslrtcts the separabon of powers and forestads arbitrafY ond unjust adjudicahon In Contmenlal Marble v NLRC, 161 S((RA 151, th~ Supreme Court he&d that by the nature of h1s functiOnS. the voluntary arbitrator acts in a quaSf-jud10al capaoty The Court must pass upon h !:; worlt where a que~t10n of law ts rnvolved. or where a showing ol abuse o. autholtty or d•scret10n 10 trlelf otfoal acts IS prO!Jerty ra•sed 10 a pet1t101l for cert1oran In Umcraft lnoustnes lnterrmt10nal v Court of Appeals, G R No 134903, March 23, 2001, •t was held that ltlc deas.on of a Voluntary Artwator. a!lhough generally accorded rtOally, may stu be subject to judiCial rev•ev. 1f ·thefe '-aS

OUTlt' o'£ I ~.EV!EWER IN POUTICAL LAW

439

a violatton of due process In thiS case, the omtssion to g1ve the petitioner a chance t.> present evidence'~ a clear viola liOn of a party s const•tutional right. and ha!> the effect of rendenng 1110 Artlllrator's judgment null and void

C. Method5 of obtaining Judicial Review; Classe<>·

1. Stat~Jtory at non-statutory

a) StaiOtOfY- avaUab pursuant to speof.c statutory pro'IISIOOS. b) llloll-statutory. where there 1s no express statute grantmg review,

relief •s obtamed by means o1 tne common law reme(j~es, or by the prerogativo wnts of cert,oran, mandamus habeas corpus, quo warranto or prohrbibon.

[NOTE: If statutory methods for Judicial rev.ew are ava•lable, they are Ofdinarity e•dosive, and the use of non-statutory methods wtll not likely be nemuttod.]

2. Direct or coltacerol:

a) Otrect - attempt :o quesuon rn subsequent proc.eedlllQS the adnMIStrahve action for ack of funsdiction, grave abuse of discretion, etc..

i) In Co v House of Representatives Electoral Tnbunal, 199 SCRA 692, 11 was held that the otaenship of an ndJV dual cannot be attad<ed in n collateral proceeding.

b) Collateral- rel~ef from admmcstratJve act100 sought in a proceeding the :>rimafY purpose 01 w'hich 1s some reliel other 111an the settmg aside of the judgment. although an attaclc on the judgment may be lncideotalty involved. e g., a damage su1t aga.nst the adm•nistratrve off•uals

D. What court has jurisdict;on.

1. Rule 43 of the 1997 Rules of CMI Procedure provides that the Court of Appeals shall have appeilate jurisdiction 0'1/or tudgmeoiS or final orders or the Court of Ta" Appeals and from awards, JudgmeniS, ftnal orders or resolutions of Of authonzcd by any quastiud:oal agency '" the exercise of 1ts qu~udiCial functions

2. In Pfll;,pp;ne Smter Ct:>rporation v Cagaysn Efectnc Power & Light, G.R No 127371, Apnl 25, 2002 the Supreme Court noted that Sec. 10 or Executive Order No. 172 (the l~w creallng the Energy Regula!OfY Board) provtdes !hat a revrew of ERB's deos10ns or .>rdor!i s lodged ml~c Supreme Cotm (now m the Coon cf Appeals' Th Coon then re1erated the rute that

wheru the law prol/ides for an appeal from the deOSJOfls of admtnlStratrve bOdies to the Supteme Coun or to the Cour. o! Appeals, tt means that suctl bociies or co-equal with the RegiOnal Tnal Courts 1n terms nf rar.k and stature, and logta!IIV. be~·Md tnc control o! the latter II bears stressmg tttatlhls dOctnne of non-mtcrterence by tnal couns w1th c»-equal adfnln~tratove bodres ts tntenoed to ensure tudaat stabilrty rn the adrrunr!>Lrahon ot just•ce whereby the Judgment of a court of competent JUnsdlchon may not be opened modr'iOO or vacated by any court or concurrent junsdiCliOn

3 Howe\ler, tn Boarr1 of ComiTII~. CID v Judge de ta Rosa. supra., the Supreme Court r uJed that there s nothing 10 tne l<lw creatrng lhc Commission on lmmlgrabon aod Oeportaboo (now Bureau of lmm.grouon) wnu:h provides that Ill deasions may be reVIeWed only by the Court of Appeals. accon:lrngl;. re~~~eW by the RTC was upheld U~ewrse, in Commendodorv de Vl/18 2C'O SCRA 80 .. it was held that the dccisioolorder or a court marttal may be reviewed by the RTC By the same l~en althoogt1 the Laguna Lal<o Development Authon•y (lt.OA) has eJCpres.s powers as a rpgutalofy nnd Qti3SI·JlldiCI31 body 1trs not co-equal to the Regiondl Tnal Court /Lt.DA v Cc'o<m of A~a•s, suora J

E. Oue~Uons which may be subject of judicial review:

OueSIIOOS of La:.v

2. QuestiOns of Fact. Factual ftndrngs of admnistratrve ttgenoes are genera ly oo:lduSIVe upoo the courts rf supported by sub:>tanhal ~vidence,

thus, Courts are preduded from revr&Mng questiOns of fact e.~<cept •

a) When expressly allow~ by statute. t>) r:raud tmposrtlon or m•stake other lhon error ol 1ucJgmen: tn

evntuotrng the evidence (Orlua v Smgson Ene~~msc1011, 59 Phtl '40j, or c) Error in aweoation of the plead•ngs and "' ~~ mtcrpretatiOll

of the documentary ev.oenoe presen\e<l by lhe ~rtres (Tan Ttar,g TeeJ;, v Commission, 40 O.G . 6lh Supp. 125)

3 Muced Ouest10m of l:aw and Fact/Bra~ts Doctnoo ol ASSJmilatiOil of Facts]· Where what purpons to be a fiOdmg upon a quASIIOO of ~ct lS so involved w1th and dependent upon a que'S1ton of law as to be in substance and e~~ a deosion on lhe l;ltter, lh'! Court w•il rn order to decide lhe legal questiOn, examrne t.,e enure record lndud•ng the ev11ence rf necessary

f . Gutdelines for the exerctse of the power.

1 Fln<!tngS of fac1 a•e r~>speeted :lS long as tney Orr! suppOrted by :.ubstantJal cv1dttncc, •!V•JII d not ov~r.-.helmmg 01 preponoerant Sec

4-: I

BagSICan v Courr of Apoe~. 141 SCRA 226: LJanga Bay Logging v, Court of Appeals, ~57 SCRA 357; Beaur,font;; Court of Appeals, 157 SCRA 481: Ptlm~ts Comm ~al v NLRC, G.R. No 121696, Febnmry 11, 1999; Artuz v. Court of Appeo/s, G R No. 142444, September 13. 2001.

a) Findings of administratiVe off1oats and agenaes who havu acquired ekperttse because the if jurtSdlctioo Is conrined 10 speccfiC matters are genernlfy accorded not only rE:spec.l but at times even finality if such tindtngs are supported bf substantial evidence {Biak-na·Bato Mmrng v. Tanco. 193 SCRA 323: Nvoso v Court of Aopcals, GR. No. 132048, March 06, 2002}

b) However, the poncrple that t-.. ctual findings of administrative bodtCS are btndtog upon the Coun rnay be sustained only When no issue of aedi.;)(llty is ratsed Thus, when the factual find1ngs of lhe NLRC do not agree With thOse of the Labor Arbrter, the Coun roost, or necosstty, revtew the records to determtno wnldl findings should be preferred as moro conformable to tM evidenuary facts [Arboleda v NLRC, GR. No 119509. February 11, 1999}.

2 It rs not for the rcvleWtng court to weigh the connrc~Jng evidence, de:errrune the eted•bllrty of Wltrlnl'ses, or otherwise substJtute its judpment for that or the admtnistratiVe agency on the sufficiency of evidence. The Court recogniZes thai the tnal court or the admirustrative body, as the triet-of facts, IS

111 a better posit•on to ass~ss the demeanor of the w1tnesses and the aed1bility of lhelr tcsllmon1es as they were Wlthtn tis prox•mal v~w during the hearing or tnvestrg<iiiOfl/Molfaneda v Umaoob. G.R No. 140128, June 6, 2001/.

3. The a:Jm,~trat•ve decision in matters v.tlh111 the executrve fUnsdiCtion can only be set aside on proof ot grave abuse of discrehon, fraud, collusion or error of law. See Anzaldo v Clave. suora • Atlas Consolidated v Factoran, t!A SCRA49

a) In Remolona v. Cwtl ServiCe Comm1ssion, GR. No 137473, August 2, 2001, the Supreme Court said that courts Wl'lf not gooernlly tntorh!re With purely admrnistrative matter.> addressed to the so\ll'ld discretion of government agenoes, un ess there IS a dear showing of arbitrary, capricious or grnve a bus~> of d1screti0f'l amountmg to lacJ.; of junsdiCIIOn

G Judicial Review is not tnal de novo: It is merely an ascertammenl of wtlt:ther the findrngs of the adm•rllstralive agency are consiStent w1th la.v, free from fraud or l!npos.ttron, and supported by evidenc~.

LAW OF PUBLIC OFFICERS

General Pnoaples II El.g•bill!y and fJua!iftcat•ons hi De Facto Off!O:f'S IV Commencement o1 Off;c,aJ Relations v Powers ana OviJES of PubIC 01foce!'S Vi Liabi.rty o Publ~e Office:rs VII. R;ghrs of PubliC Officers Vlll Term•na1Joo of Olfic.al Rela1•on~tup

I. GENERAL PRINCIPLES

A. Publtc Office. The rtg~t authonty or duty, created and conferred by Ia .... •, w ~htch ror a g•ven penOd, e thcr nxed by law or enduring at the pleasure of the cteatmg power, an rndr,tdual •s wwested wtth some sovere.gn power of government l:l be exerosed by hrm for the benc~l of the public (Femande:. " Sto Tomas. G.R, No 116418, MarcJ, i. 1995]

Elements· a) Created by law or by autnonty of taw, b) Possess a dclegat1011 or a portion of the sovere.gn powers of government, to be exerased lor the ~nef~ of lhe publlc: c) Powers oooferred and duties 1mposed must be defined dtredly or ampliedty, by the legislature or by legislative aulhonty, d) Oubes must be performed independently and without the conlrof of a superior power other lt\an the 1av.·. unless they be those of an infenor or subordmate office c::eatec or authOrized by tt:e legtslatul'E!. and by it p1aced under lh~ general control of a St.Jpenot office or body, and e) Must hav€ rennanence or continUity

2 Crontron Pubhc offices Are created a) By the ConstJtuhon. e g., Office of the Presi\lent b) By vahd statutory enactments, e.g., Office of the Insurance Commissioner: ann c) By authonty of law, e.g • the Davida CommiSSton.

B. Public Officer. A person who holds a public office

D1stmguished f•om pullltc officer as understood in cnmtMI law.

a) In Art 203. Rev1sed Penal COde. any person who, by direc.t PfOVISIOn of law, popular eledion or appo•nlmeol by competent authonty, shall take part in the perlormance of publ1c functiOns tn the Government of the Phthppine Islands. or shall pe•form m satd Govemment or in any of Its branches, PtJbltc dulles as an employee, agent or subordinate official, of any rank or class. shalt be deemed to be a pubf•c officer.

b) U"lder Sec 2 R A 3019, the term ·public offteer• indudes ·eeectJve and appo.ntllll" otf1oals and e-mployees, permanent or temporary, whether 1n the cl.1s.Sifled. unclasstfiE!d or exempt service. receiving compcnsaiJon. even nomrnar, from the govemmenr

I) The terms "clasSified, undasstfed or eiCempt setv1ce" ....ere the old calegJnes of !he posrhons rn the CNd ServiCe, wh1ch have been rec1assif1~ '"'O Career and Non-Career serv.ce by P.O. 807. Pel.luoner, as Ptoteel Manager of a government building construction pro_,e<:~, falls under

"'4(1

the Non-Career seMCe category, an1 as, thus. a publiC otfteer undef the law Aocordingty, the Sand.ganbayan has jurisdi<:tiort over htm [Picln.-o \ SollCfrganbsyan, G R No 110544, October 16, 1995).

c) At'llough the NatiOnal Internal Revenue '.:ode OJuthonzes the Bureau of Internal Revenue to effect a constructtve d•strarnt by requiring an) person to preserve thcd.stra~ne.:l property. there rs oo prOVISIOn constrtutmg such person as a ~bite offrcer by reason of such reqwement ltle Sandtganbayan. therefore, has no JUnsdiCtiOf\ over tho case tnvolvrng such a person [Azsrcon v Sllnd.ganbayan, 268 sc.~ 747)

2 Distinguisl'red from cleric or employee •Officer" refers to a perscn whose duties, not be.ng of a derlcal Of manua: nature, Involve the e~tercrse of diiCfeliOn '" the perfom1aoce of the funcbons of government When used with reference to a person haviOQ autnonty to do a partiCUlar act 01' perfotm a particular functron tn the e~terose ot governmental power, ·offiCf'.r· includes any government employee, agenl or bod~ hav~ng authorrty to do the act or exen:rse that function {Sec. 2 (14) AdmtmstmftVe Code ot 1981}

a) In Laurelv Desterto. GR. No 145360.Apnl 12, 2002, theSupreme Court said that the most Important cnaractenshc "hich dis11ngu1shes an office from an employm~nt 1S that the creatiOn and confemog of an office •nvoiVes a delegation to U1e kldMdi.Jal of SOfM of the sov£re.gn functiOns of government, to be exerosed by h•m for the benefit ol the public, and that the f arne pontoo of t~ soveretgnly of the country, erthc• log1slat•ve, axe<:U11vc or judtetol, attactles, fOI' lhe hme betng, to be exerosed for the pt.tblrc b-:?neftt Unless the powers so conferred are o' thrs nature I he mdiVklual ts not a pubhc off•cer

OOlll! E EVI£WE.R IN POLITICAl lAW

447

II. ELIGIBILITY AND QUALIFICATION

A. QualtficatJon.

1 UndetSiood 111 two d1fferent senses· (a) May refer to endo'hments, qoalitres or alltibut~s wtlictl make an lnelivldual el!glble fOf public offrce, e Q •

cr1rzensh•p. 01 (b) May refer to the ad of entenng rnto the performance or tho functions of a pubhc offtee, e p , taking the oath of offtee.

2 Wher. used tn rhe sense of endowments. quaht.es or attnbt.ltes. thO rndrvidual must possess the quahficahons at tne lime of appointment 01' eledlon and contlnUO\;sty fOf as long as the offiCial relationship conbnues

a) lr. Fnvsldo v. Come~ec. 257 SCRA 727, the Supreme Court said ~at the Local Government Code does not speofy the dat,. when the candidatP. must possess Ftltp.no otu:ens"•P· Phllrpptne C•llzenship rs requ•rod m order to ensure that no ahen shall govern our people. An official begtns to govern only upon hiS procsmat100 and oo the day that hrs tenn begrns. Srnoe F nvaldo took hiS oath of al)egian<:e (as Filipino) on June 30. 1995 when has app(teation for reputnatiOn was granted by the Speoal Comrml1ee on Naturahzahon created urv1er PO 825. he W1!S lherefOfe qualrf.ed to be proclarmed Besides, Sec 39 or the local G:wemment Code speaks of quahfteations of elective otfiCia:s. oot of candidates

b) P:operty quar!f~Calloos mAy no: be Imposed for the exerose of the oghttorun forpubr!Coff!a! In MaqUtra v Borra, 15SCRA 7,the Supreme Coon declar~ as u'lCOOstrtuhonal the law requ ring each candidate to post a bond of P20.000 upon the filing of the certtf.cate of candidacy, subject to forfeiture tf htco did not obtain at least 10% of lhe total voles e:>st tn the c:onsb1uency where he ran

c) loss of any of the qualifications dunng tncumbency will be a grcund for termtnation. See Frivaldo v CotnP.ff>c. 174 SCRA 245: Labo v. Comelec. 176 SCRA 1

3 When refernng to the .act of entenng Into the performance of the funchons cf t~ offiCe, far1•JrC of r~n otf•ce• lo perform an act requrred by taw coul<1 affect the off~<:er's htJe to t~ gfVel'l otlrce

• a) Pr:>tonged farlure 01 refusal to take the oath of oniCe could result in forfetture of the office. See Sec 11, 8 P 881, wh1ch provides ":fhe offioo of any offtcl31 elected who farls Of refuses to ta!tP. hrs oath of off~C:.e W1th1n s•x

months from his proclam:llion sMII bo considered vacant, un ·•ss ~·d farlure rs fOt' ~cause or a.uses beyond hrs control:

b) An oaUt of otftee rs a quah!ytng reQu cment lor a publiC offiCe. Only wllcn 1~ pubbc offrcer has satiSf ed INs prerec.urs,te can hts nght to enter mlo the JJOSI!Ion be considered pif:Mry and complete UnM then he h, s none at au. af'l<l for as long as ho has not qunhf1gd, the holdover offio r IS the nghtful occupant [Lecaroz v Sllndifl8'1bttycm, GR. No. 130872. March 25. 1999} An oath of off.ce tai<en before on • wno has no authonty to adnuruster ootn IS no oath at all

c) However. once prodct~rned and duty sworn •n office a pobltcotf.cer 1s ent1Ued to assume offrce and 10 ex erase the functions theroof The pendency or an eledion protest IS not r,uffJCJent baSIS to enjoin htm from assumrng otf.ce Of from discharging hts functiOns [Mendoza Laxm.1. c; R. No. 146875, Jufy 11f, 1003}

4 Aulhonty to proscrilHJ oual!ficattons

al When the quatif~eabons (in the sense of endowment~. aunbutes. etc ) are prescribed by the Constrtuoon they are geMf'a!ly exclusrve, except where the Constttullon 1tsetf proYides oltrerwt5e

b) Relahvo to publrc o f•ces cretlted by sta\llle, Congres .. has lllrtuallr plenary powers to rrescnbe qualrftcaiiOOS prOVIded that 11) the qua tfiCations nre germane to the objec:Jvets lor which the oublrc offJce was crc2ted and (ii) lh quahfrcatiO:'lS arc not 100 specifiC as to fit a pat1rOUtar, ldcnhtrab e person, because that would depnvP the a;>potnhng authonty of d1scrctJ'.:)o rn the se!ect1on of the appotnt(:c See Flores~ Onion GR. No 1~73'2, Jc:ne 22. 1993

B . Dlsqu•flflations.

1. Authority. The legisla!ure has lhe nghl to prescnbe oiSQtR!ahcattOOS rn the same man~r that 11 can JJrescnbe :juahr~eatroos. orovlded that tne prescribed d1squahfr<:ahons do not viOlate t"u Constttutoon In Dum/a<' v Comelec, 95 SCRA 400, the part ul the law whrch provt<led that tht! mere !ihng of a cnm1na1 informahon fOf' diSloyalty wao; poms faae proo! o' gotl. and thus suff.ctcnt to drsquahli a person from nmrur:g tor puOlic othoe. wa~ held .. mwnstJtuhor.al lor ben'lg contrary to the ccnst tut•onal ~P.Surnptror. of 1nnocence See also PomiJ v Teferon, 86 SCRA 413 The d~quaflf•cahoos prescnbed by law may t'le because of unfitness for publtc olfrce. or ~XK:ause th~ person •s rendered rnelig~ for the offrce

2 Gent>rnl diSqualifications under the Consltlutll)()

a) No candK!ate woo loslm an e.lcctiOI' shaU, w1thin one year after such etect/011, be appomred co any office 111 Government (Soc 6. M IX-B).

b) No electiVe offiCsl.shart be eJrg101e for appomtmcnr or deslf}nBIIOII n c~ny c,Jf)Redy to any public office or poS'fion dur:ng h1s tonuro [Sec 7(1 ), Art IX-B)

1) In Flores v Dn1on G.R No l047J2, June 22. 1993. the Supreme Court declared as conslltuiiOna.l the proviSion of the law creating the Subrc Bay Me'ropohtan Authonty which mandated the ai)PO•Nment - as first Adm10rstrat01 or the Authortly- tne incumbent Pfayor of Olongapo Crty.

c) Unless Olherwiso ollov.'od by Jaw or by the pnmsry funclJOns of hts POSition, 110 acpointhle offiC!al t;hB/1 hOld any other posrtr011 Ill Go~;tYTJmellt (Sec. l(L). At:. IX·B].

1} In Nat#OnBI Amnttsty Comm1ssion " CommfssiOf) on Audtt, G R No 15!982, September 8, 2004, It was held that when another olf!CC ts held by a publac offiCer In an ex offiCIO capacity, as provided by law and as requ1red by the pr:mary fuodJOns of hiS offiCe, there IS 1'10 Violation, because suet'~ othe: otftCI3 does not compns,. ·any other posrbon·. The ex officiO posruon 15 actually and, '" legal conremplaliOn. part of Ire pnnctpal office. But the off~t ococerned IS not entrt'Qd to roc:erve addrtJonal compensatron fof h s service!. &n the sa•d posotloo oocause h1s services are already paid for and covered by the COfTipensation attached to hls pnnapal office

3. Speolic drsquaflflca110ns under the Constttution

a) The President, Va PreSKJOnt.tne Membors ollhe Cabinet. and thew depufle.S Of aSSistants shaf not, unless OlhofWISG providtld m the ConstJtutJon, hVkJ eny other offiCe or employment dunng thoir tonure [Sec. 13, Att VII).

1) See Civil Llbet1res Umoo v Executlll8 Secretary, 194 SCRA 317, wher.a the Supreme Court aoclared a~ unconsbtutronal Executive Ordtr No. 284, wtliCl Y.OUtd allow C:lornet SP.Crctanes to hold two other offiCeS. But when the other offiCe s hekJ n an ex offiCIO capaoty, there Is no violatiOn, pro·1ided that the offiCial ocncemcd IS not enutled to additional compensauon for hrs serviCeS JNaiiOnal Amnesty CommiSSIOfl v COA supra J

b) Nr; Senatot or Member of the House of Rcprcsentati\tes moy t10k1 any other ofl/CP Of employment m the Govelf?(JJ(Jnt. or ;my subdMsion

OJfll!tt I fiE'\.~£R IN POLITIC~ LA"'

agency, or mslrurnentaldy thereof. tnci1Jd1f19 goyemmoot~nec: or controlled corporations or their subskiianos, dunng hrs term without forlmtmg his seat. Neither shall he be appointed to :my office which may have r~n cr tlled or he emoluments thereof I!ICFt?ssec dunng 1:1o term for whiCIJ t1e -.as alocteo

/Sec. 13, Art VI/ See Adaza v Pacann, 135 SCRA 431

c) The Members of 111 • Suvreml} Coort end of ollwr ccurts cstsbiiShCO i 1y Jaw s/latl not be deSJgnated to nny Bgency performing quii.<;J-judiCICJI 01

odmimst.-ntlllfl functions {Sei: 12, Art VIII} Sec :n Re· Manzano, 166 SC.~ 246

d) No Member of a ConstJtut/OilBI CommtssiOn Shall, dunng hiS

tenure, hold .any other offiCe 01 employment [Sec 2. Att IX·A} The same drsquahfiCatiOO applies to the Om.bodsman and hrs Of!f,Aities {Sec B. Art XI}

e 1 The Ombudsmnn and t11s Denutte ~ .<;flaft "JOt bP. qusllfted to run for

any off1ce tn the electiOn tmmed,ate!y succ.ef!dmg /hell cessatiOn from offtei1 (Sec. 11, Art. XI}

t) ,\4embers ol ConslituN>na/ CommtSSIOIIS, the Ombudsman nn<J hts Deputtes must no/ have been csnd;dates for any t:lect1vo poSition tn the elecfions tmmedtately precedmg their sppomtment /Sec 1, Ar1 IX-8. Sec. 1. Art IX·C: Sec 1, Art IX-D. Sec. B. Ar: XI/

a) MemOers uf ConslltutiOilBI Commis.:uons, the Ombudsman and fits DeputJes are appo~nted to a term of seven (7) yt:ars, WithOut r~appomtment [Sec 1{2}, Art IX·B: Sec 1 (2). Art IX·C: Sec. 1 {2), At1 IX-D. Sec 11, Art XI)

h) The spouse and relattves by consar>gumity or alfunty wrtttm the fout1h civil Cflg(e6 of the President "\haD not dunng hts tenure be appotnted as Members of the ConslitutJOnBI CommiSSIOils, or the Office oJ the Ombudsman, or as Secreranes. UndfHsectecaries. <llairmen or he~ of burea11s or off~ees includmg government~ or contro#ed corporatons {Sec: 13, Art VII}

Law nJ l '1tlllit' f!!!i• rr:t

Iii. DE FACTO OFFICERS

A. Deflned One who has the reootation of betng the offteer that hP. assumes to be. and yet s not a good offacer an point or law {Torres v Ribo. 81 Phil«). He must have acted as an officer ror such ength of time. under color of trtle aod under such circumstances of reputahon or acquiesCMce by the publiC and public authont1es. as to afford a presumptiOn o! electiOn or appointment, and Induce people, wrthout lnQUtl)', and refying on lhe supposition thai he is the off.cer he 11ssumes lo be, to submtt to or tnvoke h1s actiOn.

B. Leg./ Effect of Acts; Rationale. The aets of the de facto publtc officer, rnsorar as they affect lhe pobhc, are valid, binding and with full legal effect The dodnne IS rntended not for the protectiOn of the publrc orr.cer, but fOf' the protection or the public and IndiViduals who get invofved in the official acts of persons drschargtng the duties of a pLrblrc off:ce (Monroy v Court of Appeals,

20SCRA 620]

C. Elemtmts.

1. A valtdfy existi.'?g publ1c office See Tuamda v.. Sandiganbayan, G R No. 110544, October 16. 1995

2. Aclua' pflyslcnf possess;on of said office

J . Color of title to the offtce. There is color of btle to the off1ce in any or the following cases·

a) By reputaboo or aoouiescence. the publrc. wrthout tnqurry, relies on the suppositiOn that he IS the public orrrcer that he purportS to be. This IS

acq~ usuall y when the ind1viduaf has acted as an offloer for such a length of tJme that the pubic be :.eves that he is the public offiOef that he assumes to

be

b) Under a known and vahd appotntment or eJection, but the officer ~led to confcrr:J to a regufremem fmoosed by law, ~.g., tak1ng the oath of off1ce.

c) Under a known appo1ntmcnt Of' clc:::tion, void oocause of the lo~hQ1b!lrty of •ne officer, or want ol authontv ol the apoomtmg or e!ed1ng ii!U1tloMY, Of bo:cause pf ao lfTOOylantv lO hiS aOOOlOtme"t 0! elechoo Such me!.g1bihtv. want of authonty pr r!regularjty being u.1known to the pub!$

•52 ~~ .. t?JI'•bfrr Offi;. cr1 --------------~---

d) Under a ~nown a;>pointment or e1ect10n put"Guant to 2!1 unconstl!uttOOallaw. oe!ore the W'N is declared unconslti\Jt!On:tl

0 Entirlement to Salartes. Tile general ru•e IS tnal tne nghllul mcumoent of a publtc offiCe mny recover hom an otfrcer de !M:to the salary recc"-'ed by ttlo taller dunng the time ot hts wrongful tenure. even though t~ entered rnto the offtee tn good faith and under color ol trUe (Monroy v Co1111 of Appeals t.upra J In Generaf Mannger, PF'.A. v Monserate, G R No 129616, A.pni 17, 2002, the Supreme Court ordered pet1t100« Ramon Anlno to pay to the respondent t::adq)ay dlfferenuals pertatn ng to me penoo rrom the lime he (Amno) wrongfun)' assumed the contested posruon of Man~r II up to hts reltrement on November 30, 1997

1. However. where there is no de jure public officer, the offteer de facto who m good farth has had possesSIOn of the o!ra and nas d•scharged ttle dutie!: perta:nmg thereto IS leQaf?y entitled to the emoluments of the otfrcc and may, .nan appropnate act ron. recov~:r the salary, fees and other compensatrons attached to the offrce.

a) In CMI Liberties Umon v Executive St.>cretary. supra., even as Execottve Order No 2&4 was declared unconststutJooal beCause It ancw..ed Cabinet members to hold mult•ple offlees In direct oontravent10n of Sec 1 ~. Art VII, it was oeld that dunng their tenure in the questtoned posrhcms. the respondents may be conslderec! •ie f:1cto otfreers and as such ~nhUed to he emolumenlo; of !h6 offioe/s for actual seMCeS rendered 111 Monzon v Potdls, 197 SCRA 251. the Supreme Court dedatad that even granting tha1 the President, actrng through the Secreta()' of Local Govemment, possesses no power to appomt pehtroner (as Ac1rng Vice GollefllO(j, at the very lf..ast. the pet•lioner IS a de lscto offecer enlllled •~ compensatJOn. There is nc denytng that the pebllooer assuMed the Offrce orVroo-Govemor under ~of appo.ntment. exerCised the dUties attached co sard offrce fOf a long penod of ume. and was adaimed os such by the people of LeytP Under the pnnciple or pubic policy on which tro de fttcto doclnne IS ~cd. and on basic tXlrofderatrons of tu:>bce, 11 would be iniqullous lo now d<lny him the saf8f)' due him for the ser .nces he actually rendered In Sampayan v Dazs. 213 SCRA 807 II was held that Daz.a would have been a de facto offrcer, and as such. he carnol be made to re•mborse funds disbursed dunng h•s term of office because hiS &cts were valid. Se.J also Flores v Drllon, supra .

2. In Roonguez v Tar~. 91 Ph1l 724, thE Supreme Court said tnat havrnq been duly proclarmed Senator and havrng assumed offiCe &S reqUired by Ia·;, the defendant Is enhtled to ttle compensation. emorume:1ts and allowan::es whiCh the Conshtutron provides fOf the posrt100 for the duraooo ot htS tcnurr•

(But note the concurring optnton ot JtJ'Sttee Pao111a· If tho ClofenOant. directly or •ndlteC.tly, cor.1mitted unlawful or lortious acts wt\ich led to and resulted 11'1 has prod;tmattOO as Sen~tor-elect. he would be answerable for damages.)

3 In M81aluanv. Contelcc. G R.No. 120193. March6, J996.theComelec, hndrng ment tn Evangelista s appeal from the regl(}flnl uial court. ordeted Mala! •an lo 1aca!e ltle Clffice of mayor and to pay Evangchsta attorney's fet:s, actual 8Jipenses. unearned salary and otner emotomcnts, ob't'lously coosidenng Malafuan a usurper, rn.asmuch as he 'Nas ordered proclaimed only by the reg1ooal tnal court The Supreme Court deemed the award of salaries · ar.d other emoluments ~tnproper, hOlding thai Ma'aluan was not a usurper bUt <1 oc facto otrn:er, having exerosed the duhes of the electiVe offtce under colof ;,f election (having been declared Wlflner by the feglonal tnal coortl

IV. COMMENCEM':;NT OF OfFICIAL RELATIONS

A . Official relat•ons iJre commenced: (rJ By npp(Jlntmcnt or (2) By election

Definrt10n of tenns

a) Apoojntmem the seteci!On, by the authonty vested With thn power, uf an rndtll1dual who 15 to perform the funct100s of a grven offtc.e

b) ~mmrss10n· th~> wntten evidence ot tne appo1ntrnent c) Destqnat!Q!!' the 1mpoSttiOO of addrt100al dubes usual · b:,r lnw vn

8 person already in oubttC ::.t:rvtce

2 ClaSSJfiCatiOn

a) PermaO§!lt and Temoorary A permanenl appointment .s extended to El person possesstng the requls1to quahf1C8ttons. ulcludtng the eltg•blltly req.,lr.Jd, for the positiOO, and thus protected tf/ the- const1tuttOOalgua111nty of secunty of tenure. A temporary appomtmP.nt is an a<:Lng 11ppointment: 11 is extended to cue Who may not rossess the requtSt:e q•Jahf,::auons I)( eligibility reQUired by law fOf the posttJOn. and 1S revocable at will. wilh:>ut the necessny ot J~l cause or a vahd investigatiOn

t) Ao ·act.ng· appointment IS a :emporal') appomtment and revocab4e in character (Marohombsar v AJonto, 194 SCRA 391/ Acqu•Stt•on of the appropnate dvtl servtoe eligtblltty by a temporary appotntee w1ll not ipso f&cto convert the temporary appomtmentmto a permanent one; a new appomtment is nevessary (Mat11ran v Maglana. 113 SCRA 268, reiterated tn

Province of Camarines Sur v Court of Appeals, G R No. 104639. July 14. 1995] .

. 11} In Achacoso " MacartJ19 195 SCRA 235, 11 was held ll\31 an appotntment to a posttion 10 toe CAreer Service of the Crvrl Ser'>'tce does not nece~:ilv lllf:an that the appomtrr.en! as a permanent one and the ~ppointee entitled lo sewnty of tenure Where the appo1ntee dOes not passess lhe qualifications toe the pos1tion. the apPQmtment 15 temporary and may be term1na_:ed at wrl Th1s was re tera'ed 10 Do Leon v Court of App~>aJs. G R No. 12,182, Jonuary 22, 2{)01 whPrP the Su;lfeme Court saiClthat the mere fact that a PQSriiOf l belongs :o the Ca~r S .. MCe does not automauca'Jy

.-ss

eotlfer seamty of tenure. Such nght will have lo depend on the MIUfe of tho appomtment whiCh, 10 turn depends on the appo•ntee's ahgib ltty or lack of 11.

A pe• on who does not have the requ1slte Qualtf•cations for the posttion cannot be ClJ)pornted to 11 In lt-..e first pl8ce or, only as an oxcephon to lhe rutc. may be appointed to 11 only 10 an acting a~pacaty 10 the absence of .appropnate el!Qi~S TI1c appomtment extended to hun cannot be regarcred as permanent even if il mny be so designated Such ben1g l!1e case he could be transferred or reass~gocd wthout viOiatlng ltle const1tut1ona1 guamntee or secunty of tenure

1ii) In Romuafdez Ill v Civil Sennce CommisS10fJ, 197 SCRA t68 !he accepta~ by the pet1lloner ot a temporary appotntment resulted tn the terrntnatiOO Of OffiCial relabonshtp Wfth hiS fonner pennanent posrtJon When the temporary appomtmenl was not renewed. the petitioner had no cause to demand retnstalemcnt therelo In Feltx ~ Buensseda GR. No. 109704, July l'l. 1995. tne Supreme Court said that whatever objections the petitioner had og<unst the earlrer ehange from hts sk1tus as pt!Smanent Senior RP..sident Phys•caan to temporary Semor Resident Phys10an v.ere never pursuod llOf

mentioned at, or after h1s designation as temPOrary Medical Speaaltst I. He IS therefore estopped from 1nsasbng upon a nght or cJatm wtlich f1e had plainly abandoned when, from all1nd1cahoos. he enthusiastiCally accepted lhe promohon A simtlar Situation occurred n Pabu·•lYB v Coyn of Appeals, G.R. No f 28082, Apn1 18, 2001, where pelt honer, hold•ng a permanent appointment as Utiltty Wooer. accepted a temporary appointment as Bootd>•nder II, 10 Che OffiCe of the Prow1e1al Board of Negros Occidental Smce rt temporary appomtment snan not exceed twef\le months, pursuant to Sec. 13 (b). Omnibus Rules Implementing Book V, Admtnistrahve Code o! 1987, petitioner coold oot cla•m secunty of tenure upon the exptraiiOn of lhe ooe·year period and demand reappointment or retnstatemenl Ukew~se. 1n Padllfa v. CMI ServiCe CommissiOn. G.R No 149451. May 8. 2003. pe11110ner resigned from her permanent poSitiOn and accepted casual 01 temporary appointments.

IV) A rMre designation does not confet secuntv of tenure, as lho pen,oo designated ~ the poSition only 10 an aet.ing eapacrty (Sevila v. Coutt of AppeaL<: 209 SCRA 637] ThiS was reiterated n Gloria v. de Guzman, G n. No 116183. October 6 1995. where 11 was held that prrvate respondent's aSSignment as COordltlator of ExtenSIOn SeMCes (CES) at PSCA was a mere desl{;nat•on; tnus. not be1ng a permanent appo1ntroont. the designatiOn to the POSitiOr• cannot be the subtP.CI of a case for tc1ns1atement

v) Where the appo•ntment1s subjecttC! cond•llons, e 9 . thatlhero •s no Ptndmg protest c.ga nst the appomtn~nt or any rtecasion by competent autnoutv wtliCh Will adversely affect ttle ap~val of the appo~ntmcnt. the a~mment is not permanent In any event lhQ appomtee cannot dam

a "c::ompfete a'>POtntmenr a~ tong as the re-evaluation metdental to th re. ocgamz.ahon is !.till pend;ng [S1110n v Civil Service CommiSSIOn 215 SCRA 4 10) Where the employment rs QualtftOO by the phrase ·unless tem"Mnnloo sooner ... d is clear thnt even If the employment rs co-termmou& With tho project, the emplo-yee nevertheless sc"'es 1 the p4easure of the appombng authority (Orcvfl:J v Ctvrl Scrwco CommJSS,on, G R. No 13878() Msy 22, 2001)

VI) Howevcr • .n Ambas v Buenasoda. 201 SCRA 308. II was held that where the temporary appo~nlment rs lor a fiXed periOd. the appOintment may be revoked on!y at the cxprrahon of the period, or, r revoca1.1on is ma<Xl before such expira11011, the same has to be for a 11a id and JUSt c:Guse.

vri) In connectiOn wrtt. Sec 99 o! the Local Govcrnmant Code wtliCll requrres consultaiJon v.rth the local SChool board •n the appo~ntment of a schools drvrs.on supenntendenL, the Supreme Court sa~. In Osea ~ MaiBytJ, G R No 139821 JRnuary 30. 2002, that the reqwement otmously applied to apporntments extendoo by the DECS. In 1994. when the pos1tron of schools dtvislon supenntendent was placed wrth1n lho career executive servtce, ihe power to appotnt was vested '" the President rhus. tile President •s~ued the appointment wt11Ch was not speaf.c.as to locatron The prerogative to oestftnate the appo•ntoes to lheu respective sta110ns was vested ln tne OECS, pu~anl to tne ex~genoes of the serv~ce. The pe'Jtioner could not demand !hat stle be desagnated to the Gamarines Sur d•vfs!Ofl beca..rst? she ladied ooe essenhalrngr6drenl, her appom:ment to u.e posrtron Her ear1rer destgnatron as OIC, Ass Schools OIVIS•oo Supeflntendent of Camanne~ Sur, was tempc>fary. giVIng her no vested nght to the posttion of Schools 01Vlsron Superintendent

1mi) An appotntm~nt for a fr 'lted tenn of ftve years ·unl~ss SOOflf!l lemllllated' IS not tcrm•nable at \A.'tll. II is not an appotntment tn an admg capacrty, and the appomtee cannot be tennlna1ed Without rust cause [Sta Ma,. ~ lopez, GR. No. L-30773, February 18, 1970]. navmg an appomtment with a fixed term. he cannot. Without h•s consent, be transferreo before tt.e entt of his term Thus. in thrs case, the appointee's transfer to the pos~bon o: Spedat Assr..tant With the rank of Dean was a ~mohon, because dC.Jnship in the unrverslly es more cJCalte<J than thm of a Speoal Asststant (Sra Mana v: Lopez. supra 1

b) Regu!ar and ~run. A regular appt-•nunent ts one maJe by the Pres•denr while Congress 1:; rn snSSion alter the nom•naLJon ts coofume<l by thP- Commtssron on Appomtmcnts, and ronttnws unhl the end 01 tne term An ad·tnlenm appomtment •s one maae wtlde Congress •s not •n sessiOn, before confrrmatron by the Comrntss•on on Appotntments, ts rmmec!Jatety eftect•lle,

nd cea~es to bP. valid 11 dtsaPt)rovPd or bypassed by the Comm:sston on ftppot111ments upo11 llle ne• t adjoumn.ent ot Congr~::.s

I) An ad-inteom oppointment IS a permanent appotntment, and Its be•ng subject to ronfirmation <Jocs not alter 1ts permanent Character fPamnntasarr ng Lungsod ng M.1ym1n v lntcrmed1atn llppeliato Cou11. 140 sc:~A 221

It) Class•tcatron of appomtmcnts toto~ and .aQ 1rum. can be tJSP.d only"' hen relemng to the four (4) categories of appointments made by the President of the Phtlippmes tnlhe f1rst sentence or Sec 16. Art. VIII of the Cc,nstt:ullon whiCh require c::onrtnnaliOtl by the Comm[sslon on Appotntments, vtz (ra) Heads ol executive departments (ibl Ambassadors, other pubhc rTll'ltstcrs and cooSU1~. (te) Officers of the armed forces o! the Phihppmes. from the raf'k or rolonel Of naval captatn; and (td) Officers whose appototments are 11estcd '"the President under the Conshtul!On See SarmHmto v M1son, 156 SCRA 549; &1/11SI8 \' Salonga. 172 SCRA 169, vumtos-Dolos v Conumttee 011 ConstlrUCiG/'181 ComlniSSIOnS, CommiSSIOn on Appomtments. 1 n SCRA J5'J: Calderon v. CMJI~. 208 SCRA 254

3 Steps'" t~ Appomt1ng Proce~

a) For regular apoomtmPots· (i) Nomina11011 by the President: (1i) Conl•rmabon by the Commiss•on on Appomtments: (iii) Issuance ol thE• commissiOn, ald (•v)Ac:ceptance by the appotntee In the case of ad intenm apPOintments. the normnation,tSSWince of the appointment and acceptance by Che appomtee orecede the conftrmation by the CommtsSion on Appointments

b) for apoojntments wtJich do not reoUtre conf!!!T1a1ron: (t) Appointment by appointJng authonty, (ii) I-ssuance of lhc comflllSS.ion. and {iii) Aooeptance by the appointee.

1) In Lscson v Romero. 84 Phil 740 lt:e Supreme Court OOld that acceptance or the eppc>tntment by tnc appointee rs the Jaost act that completes the appcw~hng process. A person cannot be compelled 10 accept an appo!Otn•enl to publtc offroe, as the samo wr1l constrtute a violation or the constitutional nght aga1nst inVOiuntuy servrtude. except when the appointment rs made ICI an office required m defense of the State. as oontemplated In Sec. 4, Art II of the Con~ttulton

c) ~~re the nppointmenl is to the ca·eer sarv <".O of I'* CIVIl Servtce. ar.estnhoo by tt e CiYJI Seryx:e Comm•ss•oo 1s reQu1red An appotntmem to the career ~ervice of the Qv:l Service rs not deemed complete ur.fil attestation/ approval by I he CJVJ Servtce CommiSSIOn The Omnttlus Riles lmplemcnhng Book V. E 0 ~92. provides that an appotntmen! not submrtted lo the CNII SeMce Comm6Ston Wlttun 30 davs trom tssua•tce ( ..... htC.h shall be thP. date

appeanng en the face or the appo!l'ltme:nt) shall be meffectiV Wttnoot the favorable certification or approval of 1~ Civil Set\llce Comn.tSSton no lttle 10 the office can y~t be deemed to bP. pennanentlt vcs!f'!d tn fm;r}( of IM appomtee, and the appomtmcnl can Sttfl be revol:ed or wt:hdriHm b~ the appomtmg authorrty Unt~ tho appomtment shalf nave bel;!n a completed act, 1t would hkewtse be preop tate to 1nvo1<e secun•. or tenure {Tomal1 v G1v1l Stirv1ce CommiSSK)I), G R No 1 tlJ508, Ve<;cmoor 1, 1994) Hov.t!ver, I that thu CMI Sent tee Comm•ssJOn is au:~onzod to Clo IS to chao. tf ltle appo~nteP. possesses tile ouat1fecaltons and appropnate eligtbtbty, "•f he does hls apporntment IS approved. 1f not. 11 rs d•saPPfoved~ (Lopt>z v. C1Vfll Service CommJss;on, 194 SCRA 269}

• · An appomtment becomes complete only when the last act ruqutred ol the appoeobog power Is pelformed, unt.: the process rs cormleted the appotntee can claim no vested nghl 10 the offiCe nor darm secunty of tenure. The years of sel"iiee of the ~mploY'ffi mvolved cannot subst111.11e forth~ want of consent of another body requ•red by law to comple:e tne appomtment [Corpuz v Covrt of AapeaL'>, G .R No 123989, January 26 19q8j. For tne duratiOn of Ns occupancy of the othc:e, h~ lS merely a tlc facto offiCer, becau:.e l'le assumed otr.ce under color of htle of a known appomtrnenl 'Nhich is void by reason of some defect

5 For the appo•ntment It' be v;,lid the oosit•on must be ·.rocaot (Costlll v 041tmOo. 120 SCRA 159, Jooom \1: Regalado, 201 SCRA 73) In Gayilt80 v CIVI1 ServiCe Comm1ssion, '210 SCRA 183, where th rea~tgnment bv Customs Commrss100er Mison of Incumbent C:,.;toms OperatiOns Chief Femt~ndez as Acbng Ch•el of the Expon DIVISIOn o! ~ NAJA Customs House was illegal, the subsequent appomtment of Gayatao as Customs OperatiOns Chief was nu: and vOtd, bf!caust' the pos1t10n to whiCn Gayatao was appomtOd was not vac.ant In Gan::es v. Cotvt of Appettls 259 SCRA 99, where pnvate respondent refused to vacate his offu because ne was being transferred ~rt consent, the SuPfeme Cour1 said that the appomtment of the pebtiOOef was anvatid because the I)OSitiOO to which he was appomted .... -as not vacant

6 . OtscretJOn of Appomtmg Aufhonly Appotntmenl rs essenltally a diSCretionary power and must be per1onned by tht: otflOOr tn wt!OITliiiS vested ltCCOrC:11ng to h1s test lrghts the only condrlton be ng IT'at the appotntee should possess the min1mom qu«lrficat!on rl>QUtrements prescr;bed by law for the p()Sihoo [Luego v Civrl Servtee CommiSSion, r 43 SCRA 327 Laprnid ., CIVil SeMCe CommtSSJOn, 197 SCRA 106]. The appomtmg authority has the nght o• ch<.1ce whiCh he may ellerCise freely acu>rd ng to htS best Judgment, deod1ng for himself who IS best qualified among thOse Who have the noce~sary QuahfJCatJOns and cltQtbth:tes Not only IS the appo•n~tllQ author•tV 1~ offroor

OIJlU f !:!£VIEWER 1'" POLITICAl LJ.'o'i j

459

pnman y responstble for the admtnistrnt'on of h•s office, he 1s also in the beSt pOSitron to ootermine who among the pmspect1ve appointees can effectively d1scnarge rile functions of the pos1110n Thus. the final choiCe of tho appointing aumonty stou1a be respcrJed t'lnd left undtsturbed fC~~J,I St:f\1100 Comm~sion v De ra Cna, G.R. No 158737, August 31, 2004}

a) In Aqumo v. CIVN SetV{oo Cc.mrrnSSion, 208 SCRA 24D, re.terated 1n Medal/a " Sro. Tomas '208 SCRA 351, and m Uy v. Court of Appeals ?86 SCRA '343, It was held that when lhe appoinoog authori!y has already !!Jtercisoo hts pawe1 of appointment. the CommissiOn cannot revOf<e the same onlhe ground tnat another employe~ 1S be Iter qualtfiCd, for that wilt const tute an encroact ment on the d•screhon ves:ed in the appointing authority The Cornmrss1on may not and should not substitute tiS judgment for that of the apPQ~nhng 9Uthority

b) WMe the Crvil Serv.ce Law grants career service offiCers prererence io promotion under the • ne);t-•n-rank• rule [Anzslr:JO v. Clave, 119 SCRA 353, Yoram v Edralm 154 SCRA 238}. it is not mandatory ttl at the appotnhng a\.lthorily f1U a vacancy by prc·mo'IOn, as the a,ppo111ttn:g authority should be a~owed the chotce o f men of hts conftdenoe, provtdcd they are Qual•fred and eligible (Espanol v. Chlr1 ServiCe Commtssfon. 208 SCRA 715, Mantata v Salvador. 206 SCRA 264 Umoso v. Civil SctviC6 Commission, G.R. No 110276. July 29, 1994/ For d1sregard1ng lOIS doctrine. the CSC drew a stem rebuke from the Court rn Lapmid v, Civil Sef'lltce COmmrsSJon, supra • warned 1n Gu:eb v CM Setvtee CommiSSion, G R No 93935 February 9 1994, and again "duly warned, henceforth, it d isobeys at tis peril", in Mauna v Civil Service CommtSSJOn. G.R No 97794, May 13, 1994.

1) Sec. 9, Chapter II, Tttle Ill, Book IV of the Admtnistrative Code of 1987 (EO 292) provides that all prowlCial and City prosecutors and thelf ass•slants .shall be appo.nted by the President upoo recommendatiOn of the SP.cretary of Justice. The phrase ·upon recommeoda1ion of tho Secretary or Justice' should be incetpreted to be a mere advise, exhortatiOn and indorsement, which IS essentially per5uasrve '"character bullS not binding or obligatocy upoo the person to v.hom '' is made Accordingfy. the d screbon or the <Jppolnltng authonty sllll prevails /Bermudez v Executive Secretary. G R No 131429, At.Jgust 4. 1999}.

c) Tt'"' d•scrot•on or too app<>onltng auU10ntv 1s not only In the chotee of the oerson Ntlo ts to be ~pp0 ··.:ed but also .rn the narure and character ot tne appoimmenl extended. i e • whether tnc apJlOLfllll\(>nt IS permanent or temporCJry In Provmcc of Camar:nes Sur v Cc;,urt of Appeals, 246 SCRA 281 th(' Supreme Court re1!eralc-J the rule thaltne Cwil ServiCe Comm~ssron cannot

convert a temporary appollltmcn1 1nto a permanent one. as 11 would constitute an arrogation or a power proper1y bP!ongrng to the appornling authonly. The Civil Service ComnusSJon may, however appro'lle a:; temporary an appoontmcnt tntenoed to be permaflent where the appomtee does not JJOSSP.~ ltle requis11e «!ltg1bthly, and the e.rrgency of lhe sei'VIee dt!mands that th~ pas1hon bo filled up, even 1n a te:nporary eapaaty

7 Judte~al Revtew ot Appotntmonts Grven the d•screr•on ve<led n the appo.ntlng authonty, an appomtmcnt IS generally a poltll':a· question so long as the appointee rvlfilts the mln•mum qualrficabon requirements prescnlJed by law fOt the ~Srllon In Tanada v Phtltppme AtomiC Energy CommtSSIOtl, supm • the Cour1 held that where the validitY of lhe appointment IS no1 cha!leng€d m appro;>nate proceedtngs, the questiOn of the oompetence of the pubhc officer tS beyond the pale of Judl081 IOQUJI)'

3) An actiOn for usurc>al1on of oH1ce may be brough: only by one who cta1ms o~ahd tt:le to the oH,ce (Bon_gbom v Parazo. 57 SCRA 623}

8 JunsdtCitOn of the C1vil Servtce Commrsstan Dtsc1pl•n;}ry C<!Ses, .and cases Involving ~personnel acuon· affectmg employees In ttle C1vit SeN lce , 1nctud1ng ·.-ppomtment through cert•ftcahon, promotiOn, transfer, reinstatement. reemployment, deta1l reassignment, demoltonand separation". as v.ell as employment status and qualrficat10n standards. are w•thin the exdusiVe JUrisd•ctJon of tho Crvil Serv1ce Comm1ss10n The Regional Tnal Court •s Without JUrisdiChon lo take cogmzance of an act•on fOf quo warranto nnd mandarous filed tly one who, c!a•ming she fs nP.xt-ln-r.lnk and better Quahfted, should have been e:.rtcOded lhe promohonal appo•ntment (Manta/a v. Salvador. supra./.

a) The power of the Ctvd Service Comm1ss10n includes the authority to recall an appomtrneflt which has been tMtany apptOved when 11 as shown that the same was is.soed tn disregard ol penmen! C1vt1 Serv.ce ~~two; rules and r~utaboos (Debulgodo v Ov11 SeMc8 Comm1sS10n, 23? SCRA 184. retterated 1n Msthay v CIVil Service CommtsstOn. G R No 130214. August 9, 1999}

b) But th .. C1v11 Servtce CommiSSIOn s not a CO·'llanager, or surrogate adm1ntstra1or of government oH~ees and agenc1es Its k•nctl()ns and author~ty are hm•ted to approvtng or rev1ewmg a~rotr.:menls 10 d~termtne thEt1r compliance w.th the Ctv•l Serv:ce law On •Is own, the Comm;ssion does nnl have lhe power 10 1trmtnaiP. empiOyr"ent or to d•op memb~r~ from the rolls fUmvPrStly or lhe ~hrJJpp•,.."S and A /lredo drJ Torr.;s v CtVIf Serwce Comm.ss'o'' G R No J32BGO Jlpfl1.1. 2001}

461

C. Appointments to the Civil Serv1ce.

1 Scope of the Civlf Ser\'ICo: Embraces all branches, subdwh;i<ms, fnstrumentalrties and .agenCies of the Government. inctudmg government· ownerl and controlled CDf'P()faiiOns wrth ongmnl chartets {Sec. 2(1 ). Art IX-8}

a) In Umvers·ty of the Pttwppmes v. Reg•no. 221 SCRA ~98. tl wns hP.Id that the Un•ve~1ly of ttle Ptu'sppmes. havtng been created by a speoal law and havtrlg an ong nat charier. IS cJearly part of lho C1vil Sei'VIce In M81()0 v Court of Apposts. 24 7 SCRA 284. it was held that the Morong Water Distr:ict a quas1-publ1c coff)Of8tl0n created pursuant to PO \98, as a govE:mment-owned C()(J)Orabon 'Mih an origtnal d'larter Accordrngly. 11ts emplOyees rau w1thtn the junsdiction of the CIVil Serv.ce CommisSIOn, and tne RTC has no Junsdicbon to enter1ain cases m'IOMng d1smtSSal or off•oers and employees in the said water district In EIIB v. Covrt of Appeals, G R. No r2!J133. November 25, 1998. II .... a~ held that the EconomiC Intelligence and Jnforrtl2ll0n Bureau 1S a go11emmen1 agency W1thm the coverage of the CMI Serv1ce L1ke•1.1se. the Jose M Rodnguez Memonal Hosp•tal is a government hosp1tal exercismg go\'o;mmental functtons, and s w.:h1n the coverage of the CIVIl Serv~co (Deparfment of Health v. NLRC. 251 $CRA 700} The PMip~ne Nat.onal Red Cross (PNRC) IS R govemment·-owncd or controlled corporation Wl:h an ong•nal charter" under RA 95, as amendetJ. Pa1d staff or the PNRC ate govemmer~t employees who are members of the GSIS and t;Overed by the Civil Servial Law {CamporedondO 11 NLRC GR No 129049. August 6, 1999],

b) On the other tvlnd, 10 Juco v. NLRC. G R No 98107. Augusr f 8, 2997, 1t was held that the employment rclatlcns .., Che NatiOnal Housmg Corporation (NHC) are within the JUnsd,ction of the NLRC, not tho Civtl Service CommissiOI'I even as the controversy arose prior to 1987, because. as held tn National Servroe CorporatiOn 1< NLRC. 168 SCRA 122, 11 is the Constitution m place at the time or the decis«>n whtdl governs. In this case. the Supreme Court doclared that the phrase -wrth ongmal charter· refers to corporatiOnS chartered by specsallaw, as distingu•shed from corporations organ•zed under the Corporat100 Code

c) In ught Ran Transit Authonty (LRTA) v Venus, G.f< No 163782, March 24, 2006 the Supreme Court sa1d that LRTA be1og <1 government-owned corporallOn Wllt, an orig nal charter employment therein is governed by CJVrl sen~ice rules, not by the tabor Code and 1S beyono the reach of the DOLE However. METRO was oogrnally organiZed under the Corporation Code and became a gQvernmcnl-ov.ned and contwlled corporal/on only when 11 was acqu1red by LRTA Thus, rt tS the DOt E. not the C " '' Ser'VIce CommiSsiOn,

that has JurisdicttOO OYer disputeS anseng from lhe employment of Its WOI'tl.ers since METRO has no OOQinal charter

d) tn OffiCo of the Ombudsman v Ciwl ServiCe CommJSSIOTI. G.R No. 162215 July 30. 2007. 11 was held thai the person occupymg the postlton of (Jtrector II :n the Centrai AdrnintstratJVe ServiCe or Flttaoce und M3nagement ServiCe of the Offtee of the Ombudsman 1s &p:,>Ointed by the Ombudsman, not by tt'le President As SUCh, he ts netther embraced m tt·.e Career Executtve Serva (CES) nor does he need to posse5s Career & aQJtrve Scrvtee ohgibihty. To da~ty the positiOnS as covered by the CES and requwe appointees thereto k> acq..,•re CES or CSE eltgtbtlrty before acqu . tng secunty of tenure wd~ lead to unconstitutional end unta'vfut oonsequences. as rl witl result either '" (1) vest•no the appointing power fm said pos~bon in the President '" v!Oiaboo of the ConstitutiOn, Of (2) inc:Juchng'" tf.e CES a positiOn not held b·, a pre~t appomtee, oootra1y to the Admcmstmhvo Code

2 Classes 01 S91VICe.

a) Careeer Sery1ce Chero~cnr.cd I.Jy entrancs base:J on •nerri and fttness to be determtned, as far as pract•cable by compel we exam10ations, or based on hiQhly techn~l quahfta~hons. opportun1ty for advancement to htgher career positiOI'\S. and secuoty of tenure The positiOns •nduded are, (I) Open career PQSJtons, where pnor QualificatiOn in an appropria1e examination •s requtred, (M) Closed career posthoos, e.g .• sdenhfic Of h~ghty tedlnl\:al •n nature. (iii) Career Executr.~e Servtee, e.g • UodeiSE"Ctetanes, bunrou dtrectors, etc., where tht: appomtee Is rcqwed to possess tne appropriate Career ExecutiVE SP.rvtee Offteer (CESO) ehgtbilty, (1v) Career offars (other than those belong 10 the Care4>r Executive SeNece) who are appo1nted by the PreSident; (v) Positions m the Arme<l Forces or t.,e Phihpptnes. although governed by a separate ment sy&tem, (vi) Personnel of gow!mment-owned or -<:OOtrolled corporations w1th ongmal charter; and ( 111) Permanent laborers, WhethP.r skiNed, ~ Of unskilled

1) Car8ereXP.C'Ufl\l'8 .seMOe. The two reqUISites that must OOOQJt

'"order that an ~yee 10 the career executrve sei'VICP. nu.y anatn sec:..;nty of tenure are. (1 I career executl\'9 serv10e eltg•Dilitv. aoo 121 flppo•ntmP.nt to the appropnate career executrve servtce rank It must be stressed ihat the seamty of tenure of employees in the career execul•ve se!VICO {except first and second level employees n the CNII serv1ce) penarr>s onty to rank and not to lh~ office or to tile postlton to NhiCh :ney may be appo1nte<1 Thus, a C.'lreer exeCUtive serv.ce offl(.€1 may be transferred or reasSJO"led !rom one pos•hon to anotne· wtlhout losmg h.s rank wh!Ctl follows htm wherever he ts transferred or reassgoed In fact a career exP.CUt1ve servtee olfteer suffers

no diminutJOO tn salary even If assigned to a CES position With tower salary grade, as he is compensated accord•ng to his CES rank and not on lhe basis of the pos• 100 or otr~<:e which he occup«; {Goneral v Roco. G R Nos. 143366 & 143524 January 29. 2001/ Accord.ngly. wt:ere the appomtee does not possess the reQwred career eY.ecotrve seJVJCe elig1bility, hss appointment will not atta•n pe!J'nanency On m•s baSiS, ttw appointment of the cespondent as M1rustry Legal Counsel CESO IV, Department legal Counsel 0!' Diractor Ill -- t'lasmuch as he did not possess the r~ppropnate CESO ef.g•bl11ty - was merely temporary. Thus, he could be ttansferrod or r885Signed Without violatmg security of tenure (D,mayuga v. BenediCIO. G R No 144153 January 16, 2002}.

b) Non<are£>r 5ef\ltce Characten2ed by entrance on bases other than fhose o• the usual tests uttlaed for the career seMCe, tenure limtted to a peood spe<:Jfied by law, or wh ch tS co-termtnous With that of the appomting • u'hority or subject to h1s pleasure, or wh•ch ts ltmrted to the duration of 11 pantCUiar prqecl for which purpose the employment was made. The offrCP.rs and employ~s embraced in tt'te non-career sent1ce are. (•) Elect•ve offtQals, nnd !lletr pefSooal and oonMent1a~ staff, (11) Department Heads and officials of Cab1net rank who hold offsc~ at the pleasure ot the President and lhetr personal and confldentral staff; (111) Chamnen ond members of commtssions and boaros with fixed terms of offiCe, and ttletr personal and confidenhal staff. (tv) Conlradual personnel Of those whose employment in government lo; tn accordaxe with a speoal contract to undertake a specif1c wOO\ or job requmng speaal or tecnnlcat skills nol avatlable in the employ11'lg agency, 10 be accomphsheC within a speofte period not e"ceedtng one year, under lhetf own respoi'\Stblhty, With the mtntmum dtrectton and supei'VISIOtl; and {v) Emergency and seasonal persooncf.

1) In Montec•llo v CMI Sef'IIIC~ CommtsSIOit, G.R No 131954, June 28. 2001, the Supreme Coon said that under the Admimstrative Code ot 1987, the Civil SeMoe COfllrTlfS$t()n ts expressly empowered to dedarP. posdlons m ltle CMI Service as pnmarily confidential. Thts signifres that lhG enumeration ~. the Ctv!l Serv~ce decree. which defmes the non-career seMc:e. ro; not ao exduslve list The CommtSSion can supplementlh~ enumeration. as 11 d1d when 11 i!sued MemOI'andum C rcular No 22, s 1991, spoofytng pos11ions 1n the C1111l Service whiCh are conslOered pnmAn!y confioenrial and. therefore, tht"!lr occupars s hold tenure co-term nous w 1lh the offictals they serve.

u) In Orculfo v C1111l Servic& CommiSSIOn. G R No 138780, May 22. 2001. rhe CO•termtnous s•atus or an officer 01' emolo;-ee may be clasSifted as follOws [a) co-termtnous '-~t th the prCY~Ct, • e .• When the appo ntmenl is co­e> •stef1t WJih the c1urauon of a part•c:ul<tr pro,ea lor wt\tch purpose ~mployment

l.mt ul l'ubl! t.l'fk tn

was made or subjed to the ava•lab!hty of funds f<X the same.(b] co-terminous Wllh tho appow1tmg authc.nty, 1 c , ......tlen the appomtment IS co ex1stent w.th the tenure of the eppo•ntlng authonly or at hiS pleasure: [c) co-terrrunous Wllh the Incumbent. 1 e • when 111e appo•nlment IS ao-e,.,IStent v.tth ttte ~ppointee, to that after the resrgnat•on separahon m termmat10n of tho servtccs ol tne tocun•bent. the poSilJOn shall be deemed aulomat•ca'ly abohsht!d, and ldl oo­lerminous with a speof•c period, 1 e , the appotntment 1!. for a ~1e0f1c period and UPOn exp•ratron thereof the pos•hon 1s deemed obohshed

3 RoqwsdN Snail be madt~ only accordtng to ment aod r11ness to be deterrmned, as far as practicable. and, excepl appomtments to pos1bons whtc:h are pohcy determtnlllQ, pnmanly confrdenl!al or highly techOJCal. by compet1trve exam•natron (Sec 2(2). Arl. IX-BJ

a) In a department, lhe appomttng power IS vested m the Dei>artment Secretary, and although such power may be deleqated to tne Reg1ooat Ouector. the same rs still subjecl to lhe approval. rev1sron, modlftcabon or re\ersal by the Oepartment.Secrelary [Umoso loi. Ctvll Servrce Comm1ssron sup1a 1

b) In PAGCOR v Rilloroza. G R No. 141141, June 25, 2001, three unport:mt pomts are underscomd: l•l Tho classtfcahon of a p3rttcutnr postt1on as pot.cy-determmmg. pnmanty coorld~nttal Of h.ghty technical amounts to no more •han an e)lecutrve or legtslatl\le dedaratoo that ts not conclus111e upon the courts, the true test being the nature of the postt10n, luJ Tnc exemprlon ProvidOO 1n thiS ~chon perta·ns only to exemptiOf'l from compehbve examrnat10n to dotermtne menl and fitness to enter the CIVIl sei'VIce and (tn] Sec. 16, P.O 1669. •nsofar as 11 declares ali pos•hons m PAGCOR as pnmanly oonfidentlal, Is not absolutely bmding on the courts.

c) ~ from the compehtwe exam1natton JeQU!fefllent are appointments to positiOns which are

1~ PoiK:y determN'Iini}. in which the officer lays down pnnapal or fundamental guidelines Of' r.Jies, Of fOOTlUJates a method of aaM>n fOf go-.oemment or any of its subdMsJOns, e g • a department head

11) Pflmanty confidentral. ocnotJng not only conflden<-e tn the aptJio(je or th~ <>~PQtntee for the dutle~ o' the otfl(:e but pr~martly Cl')se tnhmacv which ensures l1e~t1om of mtercou1se without embarrassment or freedom from rntsgtvmgs or betrayals on confidential mauers of state, o• om: declared lo be so by the PreSldenl of the Ph1hpp.nes upon recon •nenC<ilron ol lhe Ct•Jt' ServiCe CommisSion [De los Santos v. Malia~. 87 Phil 289. S<!laz:-•r v Matnay. 73 SCRA 275}

'•"' I1J l'uf./1, Ott ~n

1ia) In Civl SeMOe Coolf7ttSSIIOn Dnd PAGCOR v. satas, G.R. No. 123708, June 19, Jt)97, IJle Soprt:me Court said that pnor to Che passage ot lhe Ct11~ Setvic:e Act of 1959, there were lwO reoogmzP.d Instances 1l"f'hen a post !JOn mav tle cortsiOered pnrnar;/yconftdell/181, mmery: Ca) ~ t~ President, upon re<:OilYrendai!On of lhe CMI SeMcc Comm!.SSIOO, has declared the position to be pnmanly confidential, and tb) 10 ttl9 abscnoe of such a declatallon, when from lila nature of the functiOI'\S of lhe offiCe. lhcre exists close tntfll".<'lcy between the appc~~ntee and ~ appo~nlrog; authority WhiCh 1nsures freedom of 1r11oo::outse w.thout embamlssment Of freadom from mcsgMngs Of betrayals on confidential matt.Prs or State. When RA- 2260 was enaded on June 19, 1959. Sec. 5 thereo1 provided Chat ,he non-<:ompe1rbve or undassifiCd seMCe shaU be composed of posltJOI'IS decWed by l3w to be 10 the noo-competrtrve or unclaSSified sefl/1ce, or those wllich are policy-determ•ning, primanly coorlderltal Of highly tcctnca~n ~ •. Thus, at least SJnc:e the. enadmerll ofltle Civil Setvice Ad of 1959,1t is the nature of the position which detemunes whether a posltton IS pnmanly oonflderl!ial, polocy d«Jtcrmrtlog or fltghly tech nat In PinPro" Hechanova. 18 SCRA 417, i w~ declared nat executrve prooouncemen:s. SlJCh as PO. 1869. can be no more than rmtl:ll determlnaloos thai are not oondusJVe io case of con!lict ottelv.1se. rt would lie W!lhln lhe dt5eretle>n of the Chief Exewtive lo deny to any olf!Cer, by executive f.at,lhe ooostrtultooal protedloo of secun,y of tenure. This rule prevails even W1th the advent of the 1987 Constitution and the Adr.'tullstrat.iVO Code of 1987, despi~lhefadlhatthepnrase"innau..o·wasc:eleted Furttiennore. the~ rule• enunoat.ed m De bs santos v. Manare, supra. tS st1l1 au!hootatrve. 1 e., !hal the occupaot of a parocutar positJon oould be conSidered a ooofldeotJal emplo)'ee If the pmdomnant reason wtw tm W"tlS chosen by the appomtng authonCy was ~ latter's beler that he can sh:ve a dose lnlJm.jte :-etattonsh'P With the occupanl v<'hldl ensures lreedom of diSO.ISSIOO Without fear of ti!mbarrassment orrrisgivings ~possible be:rayats or personal trust and confidential matters or Stale Where t'le po51t100 .oc:xJUpted IS remote fro.'TI that of tho appo~n'.Jf19 authority, the 8emlrlt of 11\JSt between lhem is no lOnger preOominant. and therefore. would not be prlnlCriyconfideotial Thus, in PAGCOR v Riilcxaza, ltwas held that the po51ticnd Casino Operaltons Manager (COM) IS not a pomanly confidential posdlon. wtW lhe COM IS required 10 exen::ise ~. recommeodala)' and c:lisqllinary powe4'S with -Mde latitude of authority, and ho IS a tier above the onilnary f'CI'IIc· and-file employee, nonetheless, lacUlg IS that amplitUde of confidence ft!PClSOO 1n him by~ appo~ntmg nulhonty For one thtng, he repons directly to the Brand Manager, not to the appoont.ng authority. It becomes unmistakable that the stmJrn separating the COM from f~ d•rectly to the higher echelons renders remote tr-.e propOSition of proxHnny t:oetween the respondent and the appo~n1Jng all.honty

i•b) In AfontecJf/o v. CIVil Service Commission, supra , tne Supreme Court recoqnized the express ao1honty of the Civil SeMce Commission, under ~~ Administrative Code of 1987. to dedare poSitions lt'l

(;(,

the Ctvtl Service as PfliTh .. lnly ooofldent•al ACCOitttng!y, the enumara!ion of pnmanly confidential employees tn the Ctvtl SefVioo decree is not exclusive: the Commt!\sion m:Jy supplement tne same, os 1t did When il ssued Meroo Cucular No 22, s 1991

Ill) H"}hly techmcal, which reqUires possessiOn ol technical sklll or tratntng 1n a supreme o• supenor degree. In Besa v Ph'''PPIOO NatiOnBI Bank. supra., the OOSiliOO of legal counsel or the PNB was declared to be bolt"! pnmanly confidential and hiQhlytedlnical, W1th the lormer aspect predommahng. In CI.K11ente v SsntC's, 142 SCRA 280. ltle posrtlon of C1ty Legal OffiCer IS

pnmarily oonf~oJenhal. requmng the utmost degree of conf~nce on the part of the May<)'. In Pacote v Chatrman Comm·.ssion on Aud1t, 'P85 SCRA 1, the postOon ol Ctty Altomey was held to be both con1ident~al and techmcal m nature. In Bones v Court ot Ao~srs. 153 SCRA 120. tl was held thai the poSIIIOI'\S ot Secunty OffiCer and Se<:unty Guards ol the City v~ Mayor arn pnmanly conf•denll:l posttiOI'l"

D. Othf!r Personnel Acttons

1. Promollon .s a movement from one po5111on to another With .r.uease tn duttes and responstbibhes as authOriZed by taw and ur.ually accomoan ~by an 1ncrea~ in pav

a) ,Next-tn=raok. ru~ The perso,, 1'leXI •n ronk shall be gtven preference "" promo11Qn when ltle fl05•110n •mn~iately above ll:.s is vacated But the appointmg authonty sh!l exe•ases dtseteiJon and tS not ,bOund hy thiS rule, aiii'IOUgh he is requ r~ to spec.fy the ·special reason or rc::~sons· for not appo1n11ng the otfteef next-m-rnnl<. This rrw:ans lhat the one whc IS ·next-m· rank• Is given only preferential consideratiOn for vromotlon: but •I docs not neoessanty follOw that he atone and no one else can be appointed (Pems ,, Civrl SeMce Comm1$$10f1, G R No. 102948, FebnRJry 2. 1994)

b) Au\oma1lc Reversion rule. Sec. 13 ol the Ommbus Rules lmptement•nQ Book V, E 0 292. states ·All appointments involved in a chatn of promotJoos must be subm•lled Simultaneously for approva• by the CommtSSIOO Too dtsapprovr~l of the apposntmoot ol a perscn ~ropo$ed lo a nigher t>OS•tJon tnvah(fates the promotion of those tn ttte lower posttions and au omabcally restores them to lhe!l former postbOnS. However, lhe affected oersons are erut'~d to payment nf sa\anes for serw:es actually rendered at a rate fixed 10 thetr ptOI"!"''honal appomtments .• For thiS ru1e tl') apr>ly, ttle folloY.ms must COOClft (1) there must be a senes ot promotiOns; (11) al promohona ttppotntments are Simultaneously submrtted to the Commcss10n for apProval, and (111) the Cornm•s~.on drsapprovP.s the appo~ntment of a person to a -h,gl'ler

posthon [DMnsgracia v Sto Tomas, G R No. 1 t0954, May 31, 1995} In this case. the Supreme Court held that the movement of pnvate respondent Nacano from the Budget Office to the MPOO was not A promotion. but a lateral transfer

2 . Appolnlm':Jnf If/rough CettrtiCBtron is rssued to a pe~ who has been selected from a ltst of qoahfiOO persons certified by the Crvil Service CommlSSlOI'I lrom an appropnate rcgcster of eltg•bles. and who meets all the qualtf!Cahons prescnbed for the pos;:100

3 T1ansfer s a movement from on~ POSition to allothcr Which rs of eqUivalent rank, level or salary without break rn servrce Under rurrent Civrl Service rules and regulations, transfer may be imposed as en admirustraiMJ penalty

a) An unconscnted transfer '.Hllatcs sec-Jmly of IP.niiM {Palma· Fernanao: v de l<t Paz. llSO SCRA 751.' A transfer that results'" J)fomotion or demot100. advancement or reductiOn, or a transfer that atms to Jure the employ~ away from hiS permanent pos1l100, cannot be done Without the employee'!= c:onsent. for 1hat would CXJnst.tute removal from office Indeed, no pennanent transfer can take place unless the officer or employee IS first remo~~ed from tho pos11100 held, and then appomted to another poSll1on [DMnagrac~a v. Sto Tomas. suora) But It'd!~ appomtment o! the private respondent Yap be•ng thcJt of D•stritt Supervisor at targc, she could be assigned to any statiOn, as she •s not cnl!Voo to stay pcmmr;cntly al any sncofK: statiOfl {OuJSUmbmg v Judge Gumban, t 93 SCRA 520)

b) However. In Chato v NatNidad. GR. No. 113843, June 2. 1995, the Supreme Coun sul>tatned the legaltly ol the reasstgnment of Bias from Pampanga to Cagayan. afte( BIR CommtssiOner Chato had ISsued Revenue AdmintStratJve Order No 5-93 rcdefinmg the rt.msd,ctton and re-numbering the regional diStnct offiCeS of the BIR The Cour11ouod that the pnvate respondent faied to show patent tllegalrty ., the act100 of the BIR CommtSS«nV, saying that to sustam pnvate respondent's contention the~t hts transfer was a demotion simply bcc.'luse the new assegnment is not to his hklflQ would be to SUbordinate government PfOJects, along Wtth Ute weal resources and efforts they entarl, to mdrvtdual preh:~rences and opJrnOOS of cilltl service employees: and th•s would ne{late the ptiOciple that public offtee 15 a public trust Moreover. the employee should have ~ueslioneo the ·~ahd.ty or h;s transfer by appeal to the C1vt1 Service Commts&IOn. Tho lo¥.er court should haw~ dismtst:ed the action lor failure of pnvate respoodentlo cxaacst admtntslrahve remed1es In an)' event, the movement was held to be a reassignment. made tn the extgeocy of the seMce- and then: was no demo! ron

OUlUio!o I PE\Iit'tiEHI'l FOUTICAl LA~

4r...S I r.w u( f'11bltl' fJtfl• • ••

1) In TeotiCO v Agda, 197 SCRA 675, at was held that the holder of a temporaty appojntmenl cannot claim a vested nghtto the slalaon to which a~s•gned, nor to secun1y of tonur t~ereat Thus. he may be rerJSSI{Ined to any place or stalton

i l) UkewiSe. Career ExecutiVe Servtee personnel can toe Shifted trom one office til anomer WithOut vaolatmg the1t nght to securrty of tenure, because !hell' t;tatu:; and satanes are based on thea• ranks and not on the pos•lK>ns to wnieh they are aS~otgned (Cuevas v, Bacsl G R No 139382, December 06. 2000: GenertJt v Roco, G R Nos 143366 & 143524. January 29, 20C>1]

4. Re~nsraremenl. Any person 'Ntlo has beer. permanenUv appointed to a pos1hon In the carPer serv.ce and W'hO has, through no dflllnquency or misconduct. been separated therefrom. may be remstated to a po"'•tiOn 10 the s.1me level for w~.leh he IS qualified

a) In Glona v Judge do Guzman. supra . lhe Court sa•d that pnvate respondents subsequent acqu1s hon of the appropnate avd serv~U: &l!QIDttiry IS no reason to compe petitioners to reiippoinl pnvate resoondent A<.;qu•s1taon or CMI serv•oe f'IIQ1b1ltty tS no1 the sofe lactor for reappomtment Sull to be collSidered are petfomlance, degree of educatron, wot"X eiCper.tence, tratnillQ. seniorit{, aod more •mportantly, whether 0t not the apphcanl enjoys ltle confidence and trus1 of the appotntmg power c:onsldenJl9 that the posttlon ot Board Secretary II ffi pnmanly conf•denhal Reappomtment to such posit.on is an act whtetl is discretionary on the part of lhe appotnllng powe , 1t cannot be the subject of an application for a writ of mandamus

b) RemstatemPnlts ler..hnicalty the 1ssuan~ of a new appo•ntmenl. 'Which tS essentially dlscrehonary such exerCISE> of the dtscrehonary power cannot be cootroUed even by the Courts, as long as 11 is properl,' exerased by the aPJ'i)!ntmg authooty Thus, the order of the lowereouf1 rorthe reinstatement of the pnvate respondent amounts to an undue intefference bv the court in ltle exerose of a do:saet10nary oower vested tn the PSCA Boaro cl Trustees {G/ona v. Judge c1e Guzman supra )

c) One who. because or conv1cboo of a come. has lorfe•te<t her nght to lhe publiC off•oe bu1 was i'!>'tenrled a plf'fl3fV p;1rdo:1 by ,he Presid.:~nl, cannot by reason of the pardon demand re•nstatement as a maMr o! right {Monsanto v. Fectoran 170 SCRA 190] But In SaboUO v Deparlrlenl of EducatiOn, Cunure & Sports. 180 SCRA 623 lhe Supreme Coun he'd that a pardoned elementary school pnnopa1. on cooslderataoos of JUStiGe and eQully. sl'loold be retr.stated to the same positron and ~ to the low~r posat10n o r classroom

OIJllNE J PE\I'E.\\IC:R I~ r-()li'I'IC.\l l,\W

teacher, thore be ng no orc.urnstanoes wruch would justify tne reductiOn 111

rank

d) In Garoa v. Ctrs•rman, CommtSSiOn on Aclf.flt. G.R No. L·75025. Septemb4!r 14 1993, It was held that when a J)(lrson IS g1ven a pardon because he did not truty comm.l the offense. the pardon rel·eves htm from all puntli\IO consequence~ ot h1S criminal ad, thereby restoring h1m to his clean name, good reputation and unstamed charatter pnor to tlts finding of gutft. The bestowal of execufive clemency In oftec! completely obliterated tho adverse effects ol the admfrustrabve deosion Y<hidl found him guilty of dishonesty and ordered hts separat1011 from the servtce This can be 1nferred from the exeaJtive clemency 1tself exculpating po!!titiOner from the administrative charge and thereby dlrecllng hcs retnstatement. whtdl IS rendered automatic by the r,ranr 01 the pardon Thts signifies lhat pelllloner need no longer apply for re,nc;latement he rs restOf'ed to h•s office Ipso facto upon lhe issuance of lhe demency, and ~e as entitled to back wages.

5 Detail IS the movemcnl of an omployee from one agency to another w1:ho1.1t the issuance of an appotntment. ;~od shall be allowed only for a lam1ted petiod rn the case of employees occupying professional, techn•cal and scientific poslt.ons II s temporary m nature {Republic v. Court of Appeals, r82 SCRA 721}.

6 ReasSJgnment. 1 An employee may tc rcass•gned from one organizational uM to another an the $ame ~gency. provided thai such reassignment shall not 1nvolve a reduction in :ank, status or salary. Reassignment IS recognized as a management prerogative vesled in the Crvil Serv•ce CommiSsion and. for that matter. in any department or agency embraced 1n the Crvil Sennce 11 dce!i not consttute removal Without c:ause

a) In Fernandez v S!o, Tomas, supra .• canstdering that lhe pe~rs •etained thelt posst10ns as O.rect01 IV and Ill. and they conllnued lo enjoy tne same rank, s~us and salary at their newly as,s,gnect stalloos which they cn,oyed a1 the Crvii Sen.ice Commission Head Offrce, there was no VIOiatJon of the constttuhonal guarantee or secunty of tenure rhe appoinlments to the staff of lhe CSC Head Otf10e are not appointments to spectfted publiC off~, bot rather apporntments to pantcular positiOns or ranks

b) But like detalf, the reass~gnment should have a dcf1mte date or durataon In Pado/ms v. Fernandez. GR No t335rt. October 10, 20(){), the reass.-gnment of the respondent wc.s deemed a vio(a1ion of secunty of tenurtt. The lack ol spec•fic dura boo of I he roass\Qnmenl was tantamount lO a noaung ass~gnmen~. lhus a dtminuuon •n status or rank. The respondent was also

OUTL NE I Rl:VIE\\'f'R IN POl1TICAl V.ll

-nu t..uwtrt l'11bll• Ujllll'll

depnved of emoluments, hke RAlA and other alloWances, tl'lus the movement was deemed a dim~nullon '" compensation Finally. the reasSignment also removed respondent s power of sup<?Ntslon ove1 41 nmployees tnus deemed a dam•nuuon an sl Ius S•matarty, 10 PeSlor v C1ty of PaSJg. G R No. :46873, May 09 2002. the Supreme Court found that lhO pe11t1000r's ro<lssignment to d1~erent off~ees m the oty gO\'emnmnt was !ndefi·Tllte pelltiOn"'r wa.; on vartual noatang assignments amounting to reductiOn '" mnk, hence tmpermrssablc

under me Ia~

c) In Canno v. Daoas. GR No 144493, Apnl 09, 2002. the Supreme Court ruled that the reass•gnment of pebtionef was unlawfu and, as ear1•er found by the Civ•l Service Corrvnisslon. 1t was tantamount to transfu ~thout consent On the quesiJon wflethef or not petitioner shOuld nave, 10 the meanwtule, complied With the reass~gnment order, and ~het.rm· slle c.an be consfdered AWOL for her re usat to repon to her new assignment dunng the :>endency of rcspondenfs appeal, the Supreme Court noted thr~t tt was not the pebhoner, but the responocnt wtlO appedlcd to the esc trom _the cs~ Regronat Office·.~ ftnding tna: :lle pehttOner"s reasstgnment ....as ·not '" Older • fh~> CSC Rag100al Orf.ce s ftnd1ng must be accordUi tile presumptiOn of regulamy Pet•honer cannel be considefed on AWOl as she contmued to report to her ongmal staltOn

7 Reemployment NnmPs ot persons .,..'ho have been ap~nted permanently to pt>SiltOns in the cafCt:!r suva and who have bP.en c;eparated as a result of reducton m force and/or reor~niZ.atlon, shall t.e entered'" a hs! from which selectiOn for reemptoymeru shan be made.

1) See Sec t6. Art XVIII. whiCh provides that C81eer CtV•I ~!'VICe employees separated from the semce not lor cause but as a result of the reorganaabon pursuant to ProclamatiOn No. 3 dated Marcil 25. 1986. and the reorgamzation foAowang the rallfteahon of the Const tuiiOfl, sh~ll be enlrtled to appropnate separatiOn pay, and to retJrement and otner benefits accrwng to them undef the taws of genef31 ~pphcation'" :orce at tha bme of lhetf separallon In lieu of sepmatiCX1 oa'{. at the .>pitOn of the employee~. tney may be conSidered lor emP'c>Yment '" the governm~n! 01 lfl any at 1t!: subd•vls10ns, etc.. Thts prolltsiQn shall also apply to care<>r o lteers wt10se resignatiOn, tenderPd m hnc Wtth ltlc exJst·ng poiiC'f, had tec'l ar1:epled See Ortez v Comelec '62 SCRA 81?

OOl l ... I PfVIf'iwt:P 1-:J P0\.11 leAL \).W

V. POWERS AND DUTIES OF PUBLIC OFFICERS

A. Authority of Public Officers.

1 Tho authomy of publiC offiCers consists o' those powers which are (a) E•pressfy coofcrred upon h m by tho act appoinhng him; (b) E•prossly annexed to the otrtee by law; and (c) Ahached to the office by common law as tnddents to it Under the doctnne of necessary implication, all powers ne<:e$sa:y for thl! elfectrve ~xet'CISe of the express powers are deemed impliedly granted.

2. The euttronty can be exerased only dunng lhe lenn when the public off.cer is, by law IOY8sted with th'l nghts and duties of lhe office In Jandaya v Rutz, 95 SCR.A 562, where th~ de<:ision penned by Judge Marquez was promulgated by Judqe Ru1z after Marquez had already retueJ the Supreme Court held that the deos10n had no bindmg er.ect. In Lao v. To Ch'f'. 158 SCRA 243, the dcosion promulgated by the division of the Cou!'t of Appeals was ruled to be nutl and void, oonsldcJing that 1t was promulgated aher tne justtces had been nollned of the 11cceptance of the11 resrgnatiOn

a) In PoopJe v. Garcia, G.R No. 126252, August 3(), 1999, 11 was held that although the effectivl:y of Judge de Guzman's disability rellrement was made retroaCtiVe to february 16. 1996, •t cannot be dented th<tt at the time the subject decision was promulgated on February 20, 1996, he was SitU the incumbent judge of the RTC Branch LX of Baguio Ctly, and had, in tact continued to hold said off1c:e and act as Judge thereof until his apphcation for telln:!ment was approved ir. June, 1996. AccordtOgly. the deasion under reVlew was held to have been valtdly promulgated

8 . Minlsterlal•nd discreflonary powers.

1. Mimstemtl: one lha discharge or whrch by the officer concerned ts lmperatrve and requires netther judgment nor dtscrction (Lamb v Phtpps, 22 Phil 456} The exemse of .-n1ntsterral powers may be compelled [Corpus v CommBndmg General, Philippme Army) The Sher•ff's role 10 the execut1on of judgment es purely min1stenal, he has flO dtscret•on whether to execute a judgment or no~ {Anstorenas v Molma, A M No P-94· 1030 Jury 4, 1995/

2 D1screwnary· one 1m posed by liiw upon ;~public offiCer wherern tht: offtcer has the rghl to decide how ar:-d when 1t1e dut) shall be performed {Lomb v Ptupps supra J

aJ MandnmllS wUI not he to compel the potionnancc ala dascrotJonary power fAvonue Arrastre v CofrlmiSSIOIJer of Customs. 120 SCRA 878}

t) But wnero there IS grave abuse of dlsetCttOn. m3nifestr.JuStiCO or palpable excess of aulhontv equ :ralent to a derY.al of a settled ~h1lo which the pelt !loner tS entttle<l, and wt~ere I here 15 no other pla1n speedy or ade~uate remeay. the writ of mandamus WID rssue (Fust Pntfppme Holdtngs CotprJrat10n v. Sandrganbayan. 253 SCRA 30. re•tcratPd '" llngcllangco v OmbUdsman, 268SCRA301andtnLopez,Jr. OfttoooftilaOmbudsmtm GR No 140529, Soptamber 6. 2001]

u~ In Sharp 1ntemat100al Marlletrng v Courr of Appeals. 2M SCRA 299, the Supteme Coort said that whele mandamus will not be to control dtsuebon, the wnt may sssue to -::ompel the exerose of dasaetJOn, bUt not the dasctetJon ItSelf LikeWISe, 1r1 BF Homes v NatiOflRI Wster Resources Countl1, 154 SCRA 88. the Court held tt"lat mandamus W1U not l1e to cr.mpel a bodv d1scharg1ng drsc:reuonal')i powers to act tn n particular , .. ay, 0( to approve 01 dssapptove a particu•ar applicatiOn. But the pet,t.oner is er.littcd to a wnt that wootd re<~u1re the respondent Council 10 consider MO def.bcrate upon thP. applicatiOnS oo'oro 11. examtni~ '" that p.ocess whatc\rer cvidcncle lies ~fore it, and to ad aocordtngly. either approwlg or disapprovang tM• appllcabons, "' acoo·dance wtl.tl apphcable taw aod Jllnsprudence and 10 the best mterest of the commun1ty Involved

b) Not~ tnat In the 2"'l par. Sec 1, An VIII , o1 tl-te Con~t1tuhon, the courts may rt!Vlew the eYercise of drscre110n. 'O <Jcterm,ne Whether or not there has been a grave abuse of d1scre11on amountmg to laa. or ex~ of junsdichon camm•tted by any government agency or tnstrumcntallty

c) Judgment v P•scrol!On Judgment 1S a ttJdtaal functiOn, the determrnatJOn of a questiOn of law Thcfe r.; only one way to be nghl Discretion ts the faculty conferred upon a court or othP.r orr.ccr by which he may decide the questiOn either way and still be nght /Asunoon v. de Ynar1e, 28 Pflil67} But dtscrebOn. as exettised. is limited to the evident purpose of the ad, 1 e • souod and legal discretion, not art:jtrary, ca!YIMOUS or opprc..<;SJVe procee<l•ngs

C. Duties of Publ1c Offteers.

General (ConstttuiJOflal} dutl'9s 01 publiC Olf!C~IS

a} To D~ aCGOUntable ro U'le people. co serve ltlom v:tfh utmost responstbtlify, mtegnty loyalty and effiCiency, to act ~till pat,;otism and JUStice: and to lesd modasllives /Sec J Art XI/

l n11. nJ l'ubltn?Jfi I' u ~---~-~

473

b) To submit 8 CJeclaratiOI'I um:Jer ooth of/us assets, ltaOilttiCs and net 'NOnh upon assumption of offtee and as often thereafter as may bo requirod lly IBW (SCc 17, Art XI}

c) lo owe tne Stiffe and the Con..~ttution a!Jegmnce at all t1mes (Sec. 18. An. XI/

2. SpedtiC cases·

a) irhe So ICilor General's duty to reprosent the government, its offtees and lnstrumentabl~ and 1ts offlctals and agents - exceptio cnm,nal cases or CIVIl cases fof damages arising from felony - IS maf\datory Althoogh he has d'screbon •n choosing whether or not to prosecute a case or even W1thdraiN therefrom, such dtSCietion must be exercised Within the parameters set by law and W1th lhe best interest of the State as the ultimate goal fGonrales v Cha11ez, 205 SCRA 817}

b) The government is not estopped tram quest•omng the acts of Its offecJals. more so if they arc erroneous or rregular [Shnrp InternatiOnal Marj(olmg v Courl of A(.4)6sls. 154 SCRA 88].

D. Prohibitions.

Partisan po/IIJC81 activny. "No offiCer c•r Pmp!o1 ee of the civil service shaD engage. dttr:tCtly Or indtrectly, tn .1ny elect10neet1ng or par11S8n pOIIti'C81 campaign" [Sec. 2(4), Art. IX-8]. The CMI ServiCe Law prohibits engaging d1re;;t~y or tno~tccll\' '" any partisan politiCal ad1v1ty or taking part m any election P.:.ccept to vote. or use offiCial authority or 1nfluence to coerce the pohtlcal activity of dny person or body.

a) Armed Forces. "The atmed lr>rces shafl bo msutatedlmm part1san pohtics. No mtJmber of the mtltrary shall engagl! djrecfty or indirectly m any psrt,san poltt/C818di'llty, except to vote"fSec. 5(3}, Art XVI).

I) But only active members. not those in the reserve rorcc. are coverPd by the proMii110rt {Caitlr.>s l Bontfaao, 1 :!4 SCRA 1/

b) Tl tt ptoh billon does not prevent el!presslon of VIews on current pol:tteal problems 01 Issues. or mentiOn or the names o! candidates for public offtec whom public off cer suopons

C) E)cmpl rrom this prohibitiOn aro !hose holdrng poliiJC.al OffiCeS, but rl st.all be unl:wlful r01 them to soliCit contnbt.teons trom thetr subordinates or

~ them to any of the acts 1nvofwlg subordanates proh1bited rn the Elect100 Code Member!. of the Cabinet are. ttl us. exempt from thiS prohibitiOn [Santo~ v Ysrco, 106 Phil 745}

d) Thts protnbrhon shoU'd be dtSUngutsr cd from the provrstan of Sec 79, BP 681 which ma!tes 11 un&a .... 1ul lOr any person or any pof;tleal party to engago In election camp;;ugn or PiJrti~an poh!J<=al ac!tVI!y elCoept dunng the campaign ·per100 Undt;>.f Sec. 79. BP 881, electiOn campatgn or partisan pol•t.cal act•vrty refers to an act des.gned to promote the elccttOO or oefeat of a partJCUiet candidate or canoidates to pc,~blic offl08 1: done for the pUfPOse of enhaoong the chances of asp.rants for nom10aliOI'l for candidacy to a publtc off-ce by a polthcal party, etc • 11 shall not be ct..nsidered as electten campatgn Of partiSan po41ttcal adJvtty

4!. Add1110ral or double ccunpensat10n. ·No electrve or app?~11Ne pub/tc offteer or employee shstl recewe BddJtonal. double. or mdtrect componsation, unless speclftcally avthonzed lly Jaw nor accept Wllf:c;,<Jt the con!'f!nf of the Congress. any present. emolument, office or lttle of any kmd trom ar.y lore~gn povcmmonr [Soc B. Arr tX-BJ

n) But note thnl pQnStOns or gratUitrcs shaU not be consadcrcd os add1t1onal, tk>Uble or rndiTecl compensation In San:os v Court of Appeals GR. No 139792. Novembet 22. 2000, tne Supreme Coun said that this prov•siOn srm;>ly means that th~ retJree can conttnue to raoerve !.ucl't pension or gratu•ty even aner he acc:epts another govemrnent position to whtd, another compensahon is allached Sui he cannot credrt his year:; of service L"' u .e Jud1ciary (for Wh•ch he now reccrves ttiS pensioo or gratuity under RA !:110) rn lhe computation of the separatiOn pay to WhiCh he may be enllued under RA 7924 for the termrnabon of h.s last errptoyment. To all':>w lhrs would be to countenance dOuble c:omoensation 104' exactly the same serv,ces.

3 Proh~KJn l){}BinSIIoans "'No loan. gUBranty, or othttr foon of flnanoal IK:COIT'ttnOdatiOil for any b:~smess purpoSI8 may te gmnted, atf8Ctfy or indired/y. by any govemment-owned or c:>ntroled bani< or f1Mnc::i81 msriturtOn to rhe President, the VICe PreSident, tt>e Members of the ':;alltnet me Congress. t!Je

Supreme Coun, the ConstlltJfiOfiBI Comm,ssJOns, ana th~ Ombudsman. 01 toJ any firm or enttty m wfiiCh tney have COI'Ittollmg mteresl. dunng thctr tenure· /Sec 16, An XIJ

4 L1mttat10n on l aborr>n; Sha I not be ass.gned to per10ml cJertGal dut.es

5 Detail f)f teaSSIC}nment No delatt or r-:ass.gnmen1 shall ~ madP. w•lhtn throe months t>elore an, election w-otnout the approval of •he Comele<..

6 Nepottsm All appo:ntments made rn favor of a relatiVe ot the appointr.lg or fecommending authority, Of of the chief or the bureau or office, or ol the persons exeros.ng lmmedtale SUperVISIOn over hrm, are prohrbi:ed The protubtlJOO OJVOtS art appomtments, including destgnauons. in lhe national, c•ty and munlopal govemmen:s or 10 any branch or mstrumentality thereof, 1ndudtng government-owned or controlled corpornttOns with origmal charters See Laurel v Civil SeiVico Commi~siM, 2C3 SCRA 195

a) Uncler the OmnibUS Rules tmplementrng E 0 . 292, the 011Q1031 appointment - and all ~ubsequent per.;onnel actions, such as promotiOn, transfer, reinstatement, etc .. must oonfoml wtth the rule aga•nst nepotism; otherwise, the prohlbihon would be rendered "meamngJess and toothless· {Debulgsdo If. CiVIl ~rvice Commission, G R No 111471, Sep/ember 26, 1994/

b) ~eltahve" ls to t>e understood to mean those relaled withrn the third cavil degee by oonsangUJnrty or affllltty. Exempl are persons employed in a oonflderJial capacity; te~chers: physiCians: and members of the Anned Forces or the Ph1 ppines, provioed that 1n eac.'l particular rnstance full report of such appontment shall be made to the Commission.

C) In Ctwl SeMce Commtssion v O~ycoy, G.R . No. ,35805. April 29, 1999, the respondent Vocahonal School AdmtniStrator or Bahcuatro College o! Arts and Trades was found gui:ty of nepobsm, because although he did not cppo~nt Of recommend h1s two sons to the pas!Uons of driller and utility W'Of'ker of the school, "the unseen but obvious hand of the respondent• was behtnd the apporntment

VI. UABILfTY OF PUBLIC OFFICERS

A. Genf!ral Rule on Liability. A public off!Oef ts not hable 101 tnJuncs susta1ned by a.10ther as a consequence of of tdal acts done w1th1n the scope of hts offic.al authonty except as othcrw~se provided by law

1 A publiC offtcer shall not be crvtlly liable for acts dooe ll'llhe perlonTlance ot h1s offioal dubes, unless there IS a clear showing of btld fa,th, maliCe Of

negl~nce (Sec. 38(1), Chapter9. Boolc I, AdministflltMJ Code of 19d7J, See 8Jaquttf8 v Alalia, GR. No 109406, September 11. 1998

2. No subor<f~Nte offteer or employee sha• be CIVilly ll.lhle fof aclS done by hti'T' 1n gcx.od faith in the pefformance c.f hJs cMtes However, ~shall be llable for Wilful or negligent acts done by h1m which an. OCt•trary to taw, morals public polcy and good customs even if he acted und(}f orders or tnstruct.Jons of hts supenors /Sec 39. Chapr~r 9, Book I, AdminiStratiVe Code]

3 But under Sec. 24, Local Covemment Code. 1t Is exphoUy provided that local government& and their otftda•s are not exempt from "aoiUy for death or ir.jury to persons or damage to propertv

B . Statutory Llabillry.

1 Art 27, Cml coa~· Any person sutfermg mom! or matenat loss because a publrc off<:E!f refuses or neglects, wtlhout just cause. to perform his offiCial duty. may rile an act~ fcx r1amage"' and otfler rcliflf ;Jgatnst the public officer T~ IS Without preju<J1oe to adm1msuatt11e d!Sciphnary action ag'l1nst the otf.cer

2 Art. 32, Civil Code lJabillty of pubhc olf,cer for vt018tioo <:>f r.:onstrtutional nghts of mdividual-s. See Aberoa v. Ver, 160 SCRA 601.

3. An 34, Civil Code. Laabihty of pear~ o~ who fa1i to ri!SP()nd or gtve ass•stance to persons rn danger of •n1u to h1o or property. l""ote The mun10pal corporal :on •s subsid•arily liab'~> J

4 Sec 38(2), Chapter 9, Book I, AdmmlstrntNe Code Any public otfroer who. W1th'JU1 JUSt cause, negr!!Cts to perform a duty wrt!'ltn a penoo fixed by l:lw or regulation, or wrthm a reasonable period if none !s f"'ed, shall be liable for damages to the Pftvate party concerned \'itlhout preJudiCe to sUGil other liabtuy as may be prescnbed by law

C. Ueblltty on Concntcts . The publiC orrlcer sl'lart be personaUy liable on controcts he emers into tf he oded witllOot f)( t>x.::eeded htS, authonty

D. Liabtlity for ron. The publiC offteer shall be personally l able r he goes beyond the scoPC of hts authonty, or exceeds tho po\\<ers conferrod upan him by law.

In Chavez 'I S8ndiganbayan, t93 SCRA 282, the Supreme ~rt said that public offiCials can bo held porsonCllly accountable fOf" acts claimed to be perfonned '" connect100 With off,ciaJ duties wt ere lhe•r aclioos aro uttnJ vites or where there 1s a snowmg of bad farth. The tmmunrty granted to PCGG offiCialS under Execuwe Order No 1 is not an absolute 1mmunlty; rt merely refers to lfTlrnun.ty from hab,lfty for damages'" the offiCial diScharge of lhelt task. muctt 10 the .same manner that judges are tmmune from surlan the offiCial diSCharge of the funchons or the1r offtee tn Shauf v Court of Appeals, 191 SCRA 713, 11 was held thai unaulhOrrzed acts of government offrdals are not acts d State. and so the public officer may be hekJ personally hable it'l damages for sUCh unauthoriZed acts. Where a public offtaal acted ln ultm vires, or where lhere is a show1ng of !lad faith, the offiCer can be held pcrsonany accountable for acts claimed 10 have been performed'" connection With offiCial du1teS {Wytte v. Ranmg, 209 SCRA 357). lr. RetnlJ v Court of Appeals, 148 SCRA 496, provincial offoals of Cebu were held ltable In the•r personal capacity fOf rllegally and tn bad fa,ln d1sm•ssrng employees m the Provinoat Engineer's Offi~. In lhts case, n was shOwn that toe dtsmtssat was effected fcx partiSan political reasons In Pt1ar v. StmgguniiJng Bayan of Dasol, Pangasman, 128 SCRA 113, •ne Mayor was held personally I table for vetotng, Without JUSt catl5e,

the Saogguntan ordmance appropnahng the needed amount for the salary of the peiJtioner. In Correa v CFI of B.ulacan. 92 SCRA 312. the Ma~'Or Who tflegally dtsm,~sed employees was held personaQy liable, even if at the time or execution of Judgment, he was no longer the Mayor.

2 Hov.v..or. tn All(lsugsy v. Court of APpears. 148 SCRA 521, a was hcki that in the absence of malice, provinCial board members whO diS8PPfO\"'d tho appotntments or laborers are not personally hable: In Ynot v lntermocf"sate Appellate Court, suora • the poltee stat100 com~ wt!Q__c;;g~l~ petrhoner'f carabaos was held not persona.!>· liable m damages for entoron!) Executrve Oroor No 626-A~ because the ex.ecut,~~e order was presumotiVely va'id and 11 was h:s dUly to P.nforce r1

E. Presidential immumty from suit. This pnvtll'\ge tS enJO)'Cd only dunng the tenure or the Presld~nt

1 Attar hiS tenure, the Chief E.><ecut•v~ cannot mvoke lmmunny from su t ror CNil damages ansmg out ol acts done by h1m while t1 was Prt:::;ldent wtuch

wero not performed m the exerase of offic•al duties [Estrada v DesiCrlo. G R No. 146710.15, March 2 2001]

2 In Solthln v Ma~.astar. W7 SCRA 393. tho Suj:fem Coun oada•Od that white the Presidcn11s 1mmune from sut~ she may not be prevented from tnsiltutlng swt In Forbes v Chuoco Ttaco. 16 Ph11 53-l, II vm .. held that the

President is iiT'mune from ""'' habihty

F. Threefold LJ•biltty Rule. The ... 'rOngful acts or OMJSS&<inS cl a publiC officer may g· e nse to CNil, crm•na and admin~strottva ltablltty

1 An actaon for t".ad'l can nror.eed tndependently or tile of hers D•smrssal or the cnm1na achon does not forer.Jose the •nstJtuhon of an adr.un•straiNe actiOn [Offa of rhe Court Admm,strator v Enriquez, 218 SCRA 1}

2 Rel'ef from crim nat bat>thty dc.~ not carry wt:tl 1 relief from admm.stratl\le ltab•llty /Police Comm1SSJon v Looo, 96 SCRA 8i9] In Ocampo v OffiCe of the Ombudsman, G R. No. 114683, January t 8. 2000, th1S pnncap e was re1terated The Sopreme Court said thai the d1Smtssal of the cri:runal case WIU not f;)reclose adm1nrstratr.~e actiOn or g.ve the accused a clean bt'l of health 1n a• respeas After"all, tnere IS a difference tn me quantum of evidence requ ret! tn crim1nal cases. convtCtioo requ res proot of gwll beyond reasonable doubt wh le 1n admtniStralllle cases, what IS reQu red ls merr.fy substantial ovidence The same rule was applied tn Mollnnoda v Uma<:Ob. G R No l401~o. June 6. 2001 •

G. Liabiltty of Mlntstemll Officers.

1. Nonf;N.sance: Neglect or refusal to perform an act which IS the off•cer 's legal obligatiOn to perform.

2. Misfeasance~ Farlure to use that degree of care. skill and d1hgencE reQUired in the perfonnanc;e of offiCial duty

3. Maifeasance. The domg. through tgnorance. i~a:tE:!ntton c.r malice, o1 an ~ct which he had no le<fal noht to oorfonn

H. Command Respons;bil/ty. A he<Jd or a ~P<',...mcnt or a supano. off1cer shall not be cN,IIy habte for the wrongful acts, Omt!;SIOOS of duty. n.?gl,gence or mtsfeasance ol h1s suboroinates. unlec;s hP. has actually authon7ed by wnnen order tne speofre act or mrscoodutt com~la~~~d of {Sec. 38(3). Ct:aat·~r 9 Bwlt 1. Adrwllstrative Code}.

J7\l

VII. RIGHTS OF PUBLIC OFFICERS

;1 Right to Office. The JUst and legal datm 10 exercise the powers and the rt:sponslbllrt;es of the publrc office.

t. T erm v Tenure. Term is tne periOd dunng which the offiCer may dlllm to hold the off100 as ol nght; whrlc tcnuro is the period dunng which the or.teer actually holds offJCO. In Nune~ v Avena. 57 SCRA 726. rt was held that lhe oXlen~on of the tenore ol etcctNe local offiaals beyond their tonn is pred·catod co havtng been duly elected m the November 8, 1971 electiOns

B. Right to Salary.

1. Salaty rs tne per.;onal oompensatron to be paid to the public offteer for htS services, and It s gcncrolfv n fr)ed annual or period teal payment dOPCndcng on tne lime and not on the amount of lh.l servtces he may render. It is d•sltngutslled from waqes, in that salary 1s given to offioers of higher degree of employment than those to whom wag~s a ~e giVen; salaly rs regarded as compensation per annum. whtle wages are pad day by day or week by .,,.eek

2 Basis The legal tttle to the offu and the fact that the L"lw attaches compensatm to the off1ce

a) In Dimaandal v. CommiSSIOn on Aud,l. 291 SCRA 322. U,e petthooer, a Supply OffiCer II who was desagnat~ by the Provmcaat ~e!Tl()( as .A5sistant Provindal Treasurer for Adm,nrstrajon, was declared not enbtled to claim the difference between the salary and representat.ioo allowance or AssiStant Provrnoal Treasurm and Supply Officer II, beca4.Jse the Provincial Govemot was without authority to designate petitioner, the power bemg vestt!d 1n the Sec:ratary of F10300e under the Local Government Code. Because pehtJoner's designat•on "'as Without color of authooty, the nght to salary ~ to an allowance due rrom the said offtc:e never exJSled

b) Right of a de facto officer to salary; Whare there is no de 1ure off1cer, a de !acto oH1cP.r who in good fatlh has possession or the office and ha::: d1scharged the duttes thereof. IS ~ntTtled to salary. See Mt>nzon v Pefllln, supra ; c;..,il Liberties Un1on v. E:tecutrve Secretary. supro.: Rodriguez v Tan, suoro , Monroy v CoU!t ol Appoals. supra •

c) Salar-, cannot be gam:sh~ The salary of a pobtte offteer cannot. Dy garn•snment at:acnment, or orne~ cr e-ecutiOfl be serzed before being pard

OUTL '<fi I Rt:VIt"WER '4 POLIJICALIJ.W

to hrm and appropnated to too paymeot of his debts PubliC poltcy also pron1 s the ass.gnment of unearned safatios or fees Agreements anectrng compen~bon are void as con~ary 10 pubfrc pohcy

d) V\lnero on account of reorgarnzaliOn. the postbon IS nboiiShod, m;d U e ocumbent thereof requests rei ntton ana even accepts pn appointment to a lower pos~tron. she cannot demand :hat she be paid t e satal'J <.'QUIValenl to that of her former posrtron, because st,e IS naw barred by estoppgl from da1ming the oesno rebef (Manalo~ Gloria, G R No 106692, Sc~tJmbef 1, 1994}.

e) But compensa11on. allowances and other beoofrts reccrved by government off.crals <Jnd employees Without the teQLNSi1e approval or authonty or lhe Depanment or Budget and Management cOBM) a.e unauthonzed and 1rregutar II is N'ltl•n tfle turf of tile DBM Secretary to <1•sallow the upgrading, recfaSSifallon and creatron of aoatuonal planlillil pos•bons ,, the Commi~n on Human R•ghts, based on 1ls find•ng thai such 5CMerne lacks legal justdiC3tJon. The Commisseon on Human Rtghts 1s not a consttw:ional oommrssion; 1t does not enjoy fiscal autonomy [Commission on H•Jman Rlflnts Employees AssociatiOn v Comm,ssron on Human Rights, G R No 155336. November 25. 20CUJ

f) The Cumm•ss10n on Audtl has the authorrty to otder the Wlthholdlf'IQ or an off10ers salary and other emoluments up to the amount of hts allegeo shortage, but not to appl~· the w•!htmld amount to the al'egC<l shortage for which ~r habality rs Stlll be•ng htigated (S:mtJago v CommtSSIOfl on Aucflt, G R No t 46824, November 21, 20071

3. Some constitutiOnal provtSIOns affedtng salanes·

a) No IOCtease 10 the salanes of members of Congress shall take effect ul"'td after the expiration of the ru11 tenn ot the Membe~ of the Senate and Hoose of Representatives who approved tile increase {Sec 10. Art. VIJ See Ugot v Msthay, supta

b) Salaries of the Prest~nl ClOd VJGe PreSident sha'l be fiJCed by law and shall not be decreased dunrlQ theu lenore No JOCrC3se shall ta"e effect unhl aftet the exptrallon of the term of the rncumbent du11ng whiCh such ancre3se was approved [Sec 6, Ar: VII]

c) The sa!ary of members ol the Jud•oary shaJ not bP ~ased duong their conttnuaoce tn off.ce {St.>c 10, Art. VIII} See Mtatan \' Tan, 152 SCRA 284, which as au1hot•tv for the rule that the mposttJOn o! mcome tal!es on salanes of judges aoes not constl!u!" unconslitut10nal d:m nullon of salanes

481

d) AdditiOnal, double or nc:hrect compensatiOn are prot\tbit.ed, unless speofalty 3Jthorlzcd by law {Sec. B. Art IX -8/

e) Standardaaoon ol compensation /Sec 5, Art. 1><-B] R A ~758 (Salary Standardizallon Law) was passed tn compliance wrth thP const tulional prov1sion

1\ In lntta v: CommisSIOn on Audit, GR. No. 131529. Apri/30, 1999, 11 was held that the dascretion of the Phihpl)lne Postal Ccxporalion Board ot O•rec:tors on the matter of personnel compensatiOn IS not absolute, as the same must st11ctly conform w•th RA. 6758 •n relatiOn to the General Appropnalton$ Act

~) In Central Bank Employees Assoetation v. Bengko Sentrel ng P11tpmas. G.R No. 148208, Decembet 15, 2004. the Supreme Court saio that wh re the ·pohcy determination· argument may support thP. •nequahty of treatment of the rank-and-frle employees and the offiCers of BSP, 11 cannot jushfy the anequality of treatment be!ween BSP rank-and-file employees and the employees of other Government F'n:mcing tnslttutlons (wtto are exempted from the Salary StandardizatiOn Act by tnerr respec1rve charters).

li) In De Jesus v CommtSSIOit on Audit, G.R. No 127515, May 10, 2005, the Supreme Coun upheld the enfltlement of LWUA offJCJals ar.d err.ployees to the nee subsidy, since rt was shown that the benefrt has been cx•sting pnor to the cf"ec1iVJty of RA 6758, that 11 Ms not boon included 1n the stanc'ardaoo salary rates, and that the grant thereof 1s limited to 1ncumbentc; as of July 1, 1989 (in order not to upset the policy of non-d•m•nutiOfl of pay). In thts case, 11 was also reiterated that OBM Corporate Compensation C•rcolar No 10, 1ssued October 2. 1989, was menective. because rt was not published eithef in the Offiaal Gazette or .n a newspapei of general circulatJon m tho oountry.

f) Separation pay to be given to cateer Civil SeMce employees who are separated from the service not for cause o~r. by reason of reorganizatiOn (Sec. t 6, Aft XVIII}

4 Pnw~ntrve suspenSIOn and the nght to salary In Gloria v. Court of Appeals, GR. No. 131012. Apnl 21, 1999, the Supreroo Court '='ar.fled that 'here are two kinds of pre\lenhve :;uspension of civil service employees who are charged wTth offenses pun1shabie by removal or suspension, vtz. (a) preventrve suspensiOn pendang nves11gatioo under Sec 51, Book V, Tille I, Sut>ht!c A of the AdminiStrative Code of 1987. and (b) prcventave suspension pendrng appeal 1f the penalty unposed by the dtSCJphn~ng authonty IS suspension or

OUTI.I"'E I RE\11£\VER t'41>0UTCI.I. VW

dtSmrssal and, after revieW, the respondent is exonerated und r Sec 117 ol the same Code. II was then held that the employee has no nght lo compensation curing preventrve suspens100 pcn<ltng mves•~gatton even cf he IS c..l(oncrated, because en oroer to be entitled to payment or ba • . s.'llanes, 11 IS noa enough lhat an employee oe exonerated ottoo ch&rges agarnst h1m II' Addtllon, II must be shown that hrs susp<Jnslon IS unJUSiified. The preventrve suspens on of Civil serv~ee employees charged With CSIShonesty. oppress•on, grav2 mtsconduct or neglect of duty, ts aothonzed by Ute CIVIl ServJCC law It cannot, t"teref01e be consider~ •unjtJstifiC<f",cven cf later thE' charges are dtsm1ssed It 1s one or the sacrifces Which holdtng a publiC ofhc:.e requ1res for the publiC good

a) However, 1f the penalty rmposed by the drse~ohmno authority 15 suspenstO~ or d.sm•ssal and, alter relflew, IM re!iC)Ondent •s exonerated. the CMI scrvte:e offteer ex employee as entitled not only to reinstatement but else to back salanes for the penod of preventive suspensiOn pendcng appeai[Gioritf v Court of API»IliS. SUpnt J

~ Right to baclr salanes of Illegal d1smrssed employee i ho r:ourt hns, hme and again, held that an Illegally dtsmtssed government emptoyoo who 1s tater oroered rernstat&.:l ts •mhlled 10 bad< wages and other monetary bene',:s front the lime of hiS •llegat d!smrssal up to hts reonstatement The P'hcy of ·no worll.. no pay· cannot be npphed, Jar such dt~lr~sSing state ol attws vas not of her own maktng To Withhold her bad< salanes and ~nefits dunng h~r Illegal drsm•ss.at would put to naught the constJtutiooal guara,tee ol secunty or tenure lor thm.e In the ovtl SCMce {ConstFmtlllO-Dsvid v. PangandRmen-Gama. G R No J.5~39, Augusr J~, 2003]

a) Thos, In Civil SPrYJCC Camm1SSIO() 'I Gentallan, GR. No. 152833, May 9, 2005, (and Mumopaflty of Jasa.~n. MisafTlls Onenta/ v Gen'alliJn, G R No 154901, May?, 2005). the Supreme 'Aurt, tn agre'mlent With tt.e Court of ApPeals that the resPOndent was qualifted and eiK'•ble for the rXlStboo 01 local ow regiscrar. and flndong that there was no faaual or klgal !:)aSfS for her removal from the pos•tioo, ruled that as an illegally d•sm:ssed govemment emp4oyee who tS later ordered re«'!Slated. the respondent IS ent.tlet4 to bade wages and oll~er monetarv bcf'eftiS from the lime of her tlle9al doSrTHssal up to her remstatemcnl.

b) However. 10 Ba"'aosan v. Souers~ DECS. G R No 13823SJ Septembt:r 2, 2003, •t "'-BS he'<! that whE-re the r&nstatement was not the resull or exoneratiOn !Jut an act of hberalrty of the Courl of Appeals the daim fer back wages for the period dunng wtudt the emplo;-ee wa~ not allowed to W()t};

must be dented In th•s case, the Court noted lhaltt'e rehhOt'lP.r oartiCrpated m lt-e mass adK>n whoch rPSUitetl tn II'IC r11tng of charges <lgatn~l h•m and his

subsequent diSmissal from tM servtoe. He wns oroered re•nstate<J by tho Court of Appeals only as an act of hberaltty The gcncrol rule. then as that a publrc off1clal tS not entitled to compensa'ton ,,, he has not rendered any SCMCC,

c:) L k!!Wise, 1n Brugada v Secretary of EducatiOn, G.R No 142332-13, January 31, 2005. the Supreme Court held that the pelll1on~rs ~ve no nght to back wages bealusc they were neither e:.onemted nor unjust1rtably suspended

6 Righi ro additiOnal allowances ana txJnefils Under the Loc;l GovetnmentCode(RA 7160).1ocatgovemmentumtsmayprovideforaddctl0flal allowances and other benefits to national government off.aals stationed or &ss.gned to merr municipality or oty. This authOI'rty, however, 1s not without hmrtauoos. Where. as 1n thiS case. 11 runs countor 10 R.A 6758, men tne grant of ftnancial assistance given by Marilfina Ctty to 1ts Audcllng Offtce 1s in excess Of 1ts pov.ers The equal protechon ctause ts-not trenched, because COA offiCJais may be treated. dtfferently from other natiOnal government offiCials F()( one, they should be ·.nsulatod for unwarranted Influences so they can act wrth 1ndepenoeoce and 1ntegntt Thcrf: has been no repeal by R.A 7160 or R A 6758 They c:Dn be hmmonrzod and applied together.

C. Right to Preference in Promotion. See Mcram v Edralm, 154 SCRA 238. But the~~ does not prevatl.lver the d•screllon of the appomting authonty {Luego \o CIVI Service CommissiOn. supn.• I

D. Right to vacauon and SICk leave.

1. In MaleriJza v. CommiSSIOn on Au<N. 179 SCRA 408, II was held that e~1ve offictals. e .g ., muncopal mayOt', are not eniJtled to accrued vacation and siCl< leave eted•ts. because they nave no offictal hours of work. Note: ThiS ruling may now be deemed abandoned rn v1ew of the specaftc provtSIOO cf Sec. 81. R A. 7160 (Local Government Code) that elective local offiCials shall be entrtled to lhC! same leave pnvileges as those enjoyed by appoin!Ne local OffiCials, ulcludcr:g tt•e cumulat on And commutation thereof

2. In Request of CTA Ptesldt!?g Judge Alex Reyes, 216 SCRA 728. 11 ~vas h~ld that \Jnder OffiCe of the Presi<lent Memorandum Circular No. 54, dilled March 24, 1968. government oTfteers or employees are now enlltlel:t to oommutatiorl of allloave cred1ts w•thout hm1tutton t:!nd '89ardless of the perood wtlen the cred•ts were earned. provided the cla1rT~mt was tn tho service as of January 9, 1986

l.11U uf Pub!t VJ!u:•'ll

3. In Perda v CMSefvicoCol'rlfTU.~. 212SCRA425,lt.eSupntln!' Court rult:d that gov mment employees, whether Of not 'hey haY~ aocumUiated 1eave credrts. are not required by la-.v to v.'Ot1t on Salu.tdays, Su'ldays and holidays, and •hus cannot be dedared ab:;ent on such noo·wor ,ng days Aocordtngly. they canno and should not t':e deprived of thetr satary COfresfi()Odrng to said non--WO();Jng days JUst oecause t ey were absen! without pay on the day ·~aatety poor to, or after said noo·wondng doys A dsff~ent l'\lle mu'd conshtut~ deprrvauon of prorertv \\iUlOUI due Pfl'l(:l'!SS of law

E.. Right to Maternity Leavo.

F. Right to l«:tirement Pay

1 Rehrement laws 3fe hbefaUy construed •n faVOI ot the rehree [Profeta v Drilon. 216 SCRA 777} Thus, m GSIS v Ctv1l SeMce Comfnlssion, 245 SCRA 179, the period when respondent was oald on a per d~em basas was held credatable ~or purposes of retlfement. 11 b~lniJ dear that the per dtem received was paJd fOf performance of serv.ces ar.d not an ana.\ance for expenses tn<..urred while the r~spondent was away ~rom home bclsc. See atso Come v. CommtSSJ9n on Audll, 264 SCRA 19. wnere ''was held that the peta110ners should bo allowed to avail of rohrement bencftls under R.A 1616, after tne Comm1SS100 on Audtt d1sallowed thelt dam fo:- entrtlement to add1honal benefJt:o granted by SSS Resolution No 56-71 (wh•ch was adopted m order to tnduce empJoyces o rehr~ under R.A 660)

2. The we'l-settled ruled IS that the monoy value of the terTTllnal eave of a rehnng govemment offoal shall b,.. computed at tho retwee's highest monthly salary In BeltCena v Secretary of Anence GR. No. 143190, Octobef 17, 2001. 11 was held that pebhoner's highest monlhi:J &alary, fOf purposes of computJOg hts. term~nnt leave pay, should bP lhal COITespondrng to tile salary 01 the Sr.cretary ol Finance which he r~rved as Actlllg Secretary or Ftnanoe. When the President oe~ted the pettttOOcr as Acting 3ecretary of Fin&noo on May 22, 1997. he dtd so under a wefkx>nsioered op.mon that the absence of Secretary <>camr.o was of suct'l an extent that the latter would be unable to perlonTI his dulles and, by reason of such OPinion, the Pres~nl extended a temporary desegnauon to the petrt10ner cons1stent 'Nlth ~ 17. Adminiwattve Code of 1987. Even~ CommiSSIOn on Audrt has opaned that a OCJVAmment officaat appotnted Of des~gnatoo 1n an act•ng capaoty pursuant to the AdmintStralJva Code IS e~tttled to sa1ary d•!ferent al. and that h•s highest monthly SAlary for purpose<;. of computJng hts term~nal !oavo pay shall include such salary d t'lereotta'

3 In Gena v Ctvtl SeMce Comm<SSIOfl. 2 J r SCRA 119 rl was held tMt CSC Memorandum Ctrcutar N G 27, allow;ng exlens•on ol S~VICe OnJ!f lor one

year (mstead of what rs needeo to complete the 15-year servtee requirement f()( retnmeft), cannot prevat over Sec. 11 (b), PO 11~6. which allows e.~~tenston m O«Ser to compete he 15-year serviCe requtrement ThiS ruting was re-examir.ed and mod .fred In Rabor v CNi/ Servrce ComtnJSSJOn. G. R. No 111812.. Msy 31, 1995. where too Supreme Coun sard that when it enuncsateoj lhC Ccna rul1ng t took the narrow vteW on w1lat subOrdt.natc rulc·maktng by an admtmstratrvc agency Is permi$Stblt and valid. and •t ltkeW!SC kJid heavy stress on lh rntcros: of retlroes by allOWing e)1enSIOn ol SIJI\IICeS wthotlt coosidenng the s1gmfteance ol the geneml pnnople of compui'SOf'Y rcbremont at the age of 65 Henceforth. esc MC No. 27. series or 1990, 1s deemed valid and elfecbo,~e, and Soc. 11, P.O. 1 46, IS to be read logelhef With CSC MC 27. However, the nead or the agency s vested wrth di~cretJonary aothonty to at1ow or d1sallow eX1ensron of seNICe of an official or empk>yee who has rea<:hed 65 Without compleltng 15 yP.ars ol government servtee, although thi~ d;scretton is to be exemsed conformably With esc MC 27

4 tn the JL.dletat)', however, the Court allows such extensiOn if satisfied that the aveer of the retiree v.as marked by competence, ntegrity and dedaca1100 lo publiC servtce (In Re: Gregono Ptneda, r 87 SCRA 469] See atso Cruz v Tantwco t66 SCRA 670

5 Pursuant toE 0 . 79-86, a reserved officer who sahsfactonly rendered a total of ten years continuous adrve comn-uss10ned mrhtary servtee shaD not be reverted lo lnactl\le status except for cause or upon hiS oY-TI request Accordingly, they are covered by compulsory membersh•p m the GSIS /GS/S v ComfTIISSIO(; on Avd1l. G R No 125982. JanUS!}' 22, 1999}

6 . IJberalty interpreting the prov1sions of R.A. 910, along the lines of Pro,"eta v Dfilen. supra . the Supreme Court approved the recommeodation that tho rellrement benerrts of Just•ce Jorge lmpenal shaU be computed on the baSis of the highest salary. emoeumcnts and allowances ho received as Acting Prt>.sidang JustiCe of the Court or Appeals [Request ol C/erl( nf Court Tess~e L Gdtm~tltnn Fot Payment of Retrre.ment Benefits of CA Associate Justice Jorge s lmpenal, A.U No. 97-n-RET. August 26, '9991

7 Bot tn Gamogamo v PNOC Shipping & Trsnsport Corp., G.R. No 1<1707 Uay 07. 2002. the Supreme Cour. reJected the petitioner's conter.llon thai for the purpose of computmg his retarement pay, his 14 years o! serv•c~ w•lh the Oepanment of Health should t:~ tad<ed tn and added to Ul.:! credstabte service later rendered m two government-owned and conlloUed corporaiiOf\s wthout an orrgmal charter. Totalizat on of service credrts 1s only rPsorted to when lhe rettree ooes not aualirv for benefits 1n etther or both of trae Sys:ems

G. Others.

1. R.ghtto retmburscmentlor expenses tncurred 10 the due performnnoe or hts duty But a publiC offiCer who uses a government vehicle tS not enttlled to. nm can he charge, a transportatiOn a11owance [Dommgo v Comm1ss1on on AucJit, GR. No 11237t. October 7, 1998}

2 . Rtght to be tndemnafled agamst any h:.bility which they may tncur tn the bona fi(Je dtscnarge of !herr dut!CS

3 R1ght to tongevtty pay

VIII. TERMINATION OF OFFICIAL RELATIONSHIP

A. Modes of terminating official relationship:

1 ExpiratiOn of term or tenure 2 Reaching tne age ltmti 3 Resignahon 4. Recall 5. Removal, 6. Abanconment 7 AcceJXanee of an Incompatible offiCe 8 AbolitiOn of off~ee 9 Prescription of the nght to office 10 Impeachment ,, Death

.. 87

12. Fanure to assume electiVe o~;ce Wl'hln Sllf months from proclamation 13 ConVICtiOn of a cnme. 14. Fil1ng of a cerbfteale ol candodacy

B. Expiration of term 01' tenure.

1. Disl.tndion between term end tenure: Term 15 the perod of lime dunng wtuch a p~blic offiCer has the right to hold the public offtee. tenure 's the period of hme dunng \1\'hich the publiC officer actually held efface

a) When a publiC officer holds offiCe at the pleasure of the appomting authonty, h•s betng replaced shall~ regarded as lermlnabon through exprat10n of tenn, not r~ See Asrraqutllo v Mangla,aus, J 90 SCRA 280.

b) Whe1e tho Conshtuuon prOVIdes that the term of otftce of locnl etediveofficials is three (3)ycars. Congresscannol ~Y a law~lling for delayed P.tections, elfectrvely reduce the term [Osmcna v Comerec, 199 SCRA 750}.

c) Upon the change ol go·~emment brought aboot by the EOSA Rovotubon. lhe acceptance by the Pr~idcnt of the "courtesy reSignations" of conshtut•ollal Ctfficers w1 h fixed term!; or offrce resulted ,in the exorraton or term (o; tenure1. entttling the o!fn:ers to retirement benefits (Ortiz v Comelec, 162 SCRA CJf2 In Re· Relilemem ol Justx:e Bntamco t73 SCRA 4?1]

d) In Gkma v Juage do Guzman, supra .• 11 was held that th!lre was no h:mtlln<thon llllhe sense lh.,t tcrmtnation presuJ:,poses an oven ac: commt:ted

1..<11< ([} Pablu· VJ/1. "J

--~

by a supenor officer. What happened was that the pnvate respondents' appomtments or employment stmply explted, e~ther by lht!lt ')'Wfl terms. or oecause they may not e,cceed one year. but most tmPNt<Jntlv becnusu PAFCA was d•o;solved and reptac:ed by PSCA

2 Commencemenl of lhfl term of ott .. ce Rule~

a) Where the statute fi)es a pencd wtlh n whtch a chosen offtcu may arr .. nge hrs aftatrs and quahf~ for t'le afflc.e tn a pmscnbed m<mnor, hts tenn begtns upon ouaNtcatJOn

b) Where no time ls filcetl by law for ltle com~ncement or n1s off~1at 'crm. tt beg1ns from the date of appomtment.n cases ol an appotntNe off~ee. 01

from the dale ol election, 1n case ot nn eler:uve olflC8.

c) Wttere the ldw r'"''J9 :he term or a public off1cc ,., amtltguuus the one that fiKes the term al ttm shortest penod should be f(J IOw"l:l

d) Where both the duratoon of tile term of offiCe and the ltmt> ol tis commencement or termrnabon are fixed by cons'ttutJOnal or stawtory proVIs\ons. a person elected or appotfl!od to fnlllhe vacancy JO such olftce Shall hold the same only for tne unexotred port1on of the term.

e) Where only the duration of the term ·~ f•xeo. but no time rs estabUstleCI fcx the beginning or end ollhe term, the person !>t:tected to ftll the vaCClncy 1n such off.ce may serve the full term and not merely the une).ctfed balaoce of the prior incumbenl's term

f) Where an offi~ IS created, Of an officer 11s appomted. for ltle purpose of _,erfofming a SII'IQie act or the acoomplrshment of a grven result, !he offiCe terminates and the officer's euthority ceases Wllh the accomolishment of the P''"PQSeS which called rt inlo being

3 The Pnnr.tple of Hold-Over. In the absence or any expr<:!s;; or tmplted constrtubooal or statut.:>ry provtSIOfl 10 the contrary, lhe pob!tc off&cer rs entttled to hold h1s off10e unlit h1s successor shall h;we ~n duly chosen and ~Mil have quahited The purpose of ltle ~oiC1-over prirople 1s 10 prevent a h:atus 1n publiC set\< tee. The pnnc•~le wa"> retterated '" !.ecaroz v Sand~gantJayan G R No. 130872. Msrc/1 25, 1999, where the SL•preme Court sai1 thc;l allhoug~ B P S 1 doe5 nol aulholl2e a 5anggun•ang Kabataan Cha•rman who s•ts as a Sanggunaung Sayan ~mbello cMIIrlue to OCCt;py hts post a Her the er.prra!IOn or his term rn t.ase h1s succeSSOJ fa!ls to auatify. 1t dOeS not -also Sf\¥ that he 1s D(oc;cnbed from Ooldmg over The legrstaltve rntent or not a!lowmg lloldovcr

J89

must be clear.y exPfessed or a1 leaSt amplied n the fegtslative enactment, otherwtse, it ~~ reasonable to assume that the law-makmg I.Jody favors Ole &am'!

a} 81.1 see An. 237, Revised Penal Code, which penaliZes any public otrtcer v.ho stall continue to exerose the dulles and oowers or hts offlOe oovond the neood rrovided by law.

b) Ot nng lhts penocl or hold-over. the pu~ic OffiCer tS n de jure offJCer

C) Wflen the law f\lt'eS 0 specifiC dClle for lhe end Of lhe term, there 1:

an tmPhed prohtMiOO aga nst hold-o~~er_

C. Reaching ~he Age Limit.

1. Compvlsory rettrement age Seventy (iO) years of age lor members of the Judi08f) , socty-five (65) lor other government off1cers and empfoyees See tha new GSIS Charter

a) Sp-cial retirement taws. e.g ., R.A 1616, whiCh allows opttonal rellrement afte« an off~<:er has rendered a min•mum number of years of government se-v•ce. when availedofbylhe publ cofficer, w1ll result In termination of offiCial relationsh•p through reaching the age 1tm11 (or ret,rement)

2. Retlfttment Benefits. Rettrement laws are lrberatly construed and adm•ntSie•a<! ~~ favor of the persons intended to be benefited, and au doubts Clle re~ved m favor of the retJiee to achteve thetr humanitanan purpose {In Re: Amount of Monthly Pension of Judges, 190 SCRA 315; Profota v. Drilon, 216 SCRA 1281. See GS/S v Civil SeMce CommiSSIO(), 245 SCRA 119, and Conte v. Commrssoo on ~udit, 264 SCRA 19. But tn Gamogamo v PNOC Shipptng & Trcnsport Corp, supr.J • the Supreme Coon denied the taddng 10 or 14 years of s&Mce with me Department or Health and adding the same to the cred1tab~ servtce rendered to two government-owned and ·<Xlntrofled comorattons wrnout original chaners.

a) In Cena " Ctvtl Servico CommtsSJon. 211 SCRA 179, 11 was hct~ ~hat CSC Memorandum Circular No 27, al!ow•ng extension of service oni'J fo! one year (instead o~ what 1s needed to complete the 15-year serv~ce reowrement for re!trement). cannot prevail over Sec. 11 (b), PO 1146. whtch allows e:xtensi01 tn order to comp'ete the 15·year ser\lrce reQwremenL This n11tno was re-e<amined and modified Ill Rabor v Civil Service CommiSSI()(I, GR MJ 1' 1817 .\.1av 31, 1995. wherf• the Supreme Court saio that when 11

enonctated the Cena rul•ng. It took the narrow view on v.hat SUbOrdinate ntle­malmlg by ~n adminrstraltve agency IS pemliSSible and valid and et h ev.ise laid hea'IY stress on the mtcrest or retrrees bv allowing extetlSIOO of serviCeS w11hout conSidcr.ng tM S'9"ltfrcanc:e of the general pnnople of compulsory reuremenl at th~ age of 65 Henceforth. esc MC No '21, scnes of 1990. Is doomed valid a110 effedt\1", and Sec. lt, PD. 114'5, •S lObe reat.l t09ether "Mill esc MC 27 However. the neao of the agency as vested with diScrellOnafY auth<mty to allow or drsalloW extenston ol seMcc of an olf.c•al or omptoyee who has. reached 65 Without complotHlg 15 years ot govemmentSONicc, althOugh thiS dl50'efl0n IS to be e7erosed conformably YJtth esc MC 27

b) tn the jud!Clary, llOwa·~r, lf)e Collr1 allcws such exlens•cn af sahsft~d that the career of the ret1ree was mart<ed by compelence, 1ntegnty end ded.cation to public service {In Re Gmgono Ptfw.da, 187 SCRA 469] See also Cf1Jl v TantLHCC, 166 SCRA 670

c) When the retiree t\as satisf.ed the teQutremcnts for fet1rement under more than one subsectiOn o• Sec. 1?, C A 108, as amtnded, he IS

entitled to ChOOse the subsectiOn under v.hieh he wants to retire (Lopez v Court of Appeals G R No. 104158 Novembet 6, 1992/. See also Cont11 v ComrroSSK)() on Audit supra

D. Resignation. The act of g.vrng up Of the oct of a pobl.c offiCer by wttich he ded1nes his offiCe aod renounces the furtl'le' right to use •t It ts an expressaon or ttiC •ncumbel'lt tn some rorm, express Of •mplied. of the mlenoon to surreodet, renounce and rehnqUtsh the offtee and the acceptance> thereof bV oompetent and lawfu aulhonty (OrltT v Come~e:;. 162 SCRA 812}

1. VoluntsnMss as an element or restgnallon Resignabon must be voluntary on the part of the publiC off!Cef. When procored by fraud or by duress. the resjgnat100 may be repudrated A "courtesy reStgnatroo•tacks the element or voluntanness and 1$ , therefore. not a valid reSJgnatiOI'I ~ee Orta v. Comolec. 162 SCRA 212.

a) In JOsePh E}erato Esuooa v Gloria Macapagal Arroyo, G R No 146 738. Marr.n 2, 2001. lhe Supreme Coun sao that the res.gnatl()rl of Pr~sldent Estrada could not be doubte<l as c.onflfmod hv h1s teaVtng Malae1nang In the ~s release contaln.ng h•s fanal statement, (i) he a~ow!edged t~e oath­tak•ng of tl'le respondent as Pre~nt. l•i) ~ emphaSIZed he was lea\llng the palace for the sake o1 peace and m orcer Ia beg•n the ~ahng process (he d•d not say that he was lea111ng du"' to ar' ktnd '>f orsabilny and he was gorng to reassume the Presidency as SO<.oO as the O~Sabfl,ty Otsappears). (ae1] he eltf)f'Cssed h s grattlutJu to the ~'OJ)fe for IJle oppcrtun :y to serve trlEm as

<491

President (without doubt referring to the past opportunlty, (iv) he assured that he wtll not sh rt from any future challenge that may come In lhe same service ot the country, and (II] he C3Ded on h1 supPOrters to }om him m the PfOmotiOn or a constructr.;e national spJnt of reconciliation and soldant>'

b) In Colfantes v Court of Appeals, G.R No 169604, March 6. 2()()7, tho SuJJcme Court said thai a courtesy resignahon rs JUSt as f!lfectual a, any o!OOr re~naloo There can be no amp Kld prom1se of another position just because the restgoat10n was mad6 out of courtesy Any express pronuse of another pos•lion. on the other hand, would be void, because there can be no derogc;tiOn ot the d•scretJon of tho apporntmg power and because rts object is OlJ1slde the commerce of man. Even aSSllmang thai liUch prom•sc was true. pe~10ner, as a rcinklng member of the bureaucracy, ooghlto havo known that such promise ol'fers no assurance lfl law that tho snmc would bo complolld with The t1me-honored rule lS that public OffiCe •s n publiC trust and cannot be mede ubJe<:t of pe~OMI prolnlses Of nE:go!i:tt.on~. by pmmte Pt!rwns

2 Neo(J for acceptance Resignation must be aa:epted by oompe1ent a01hont~ clthe!' expressly or unpliecl:y (as tn the appo•ntment of a successor)

a) Mere leode' of res~gnat10n, WithOut acceptance by competent a •thonty does not create a vacancy en public office. resignation is not complete Uillil accepted by proper authofity (Joson v. Nario, 187 SCRA 453/ See alsO S<mggunlang 88yan of San Andres. CatanduJnes v Court of Appeals, G R No 118883. January 16. 1998

b) In tne Philippines, aoceptance of restgnahon IS necessary, because Art. 238 of the Revrsed Penal Code penafaes any publi<: offiCer who. before lhe acceptance of his res.gnation. abandons his offtee co th6 detnment of the publiC service.

c) If the pt~bbc orr o;er is mandated by taw to ho!d over. the r~tlon. even tf occep.ed, wiD not be erfediYC until after the appointment or election of his successor

3 T11o Accept1ng Authority. Acceptance c.r the re!':.gnat10n shall be made by competent a.;lhority, as pmvided b~ law

a) Undfr Sec 82 R A 1160, the folloWIIlg are the offteero autholized ~ <~ccept resignatiOns of local clect•11e OffiCials PresiCent, in case of governors, ~vemors. and mayors and vtcc-mayors or haghty urtmnrzed oties and independent ~mpor.ent crt1es, Govemcv, 1n the case of monidpol mayors and vl(;e.mayors. Clli m.'ly~ and vtee·m.,yors of component C1t1es, s:mgguntan

conoemed, m case of sangguman members: City ex muniCipal mayot, in !he case of barangay offioal:; (Note: The re51gnaMn sh:tll be deemed aocepted II not acted upon by the aulhoftty concemed Within 15 v.-or1<tng days fr'.lm rer.e p ttlereof Irrevocable restgnauons by sangguman members sl'laH be doomed accepted upon ptesentattOn before an open s~ss100 or the safl99U01an concerned dn<l duly entered 1n tts records. excepl where the :;.anggun1an members are subject to recall e!edlons o. to cases whQre existtog laws ~escnbe the manner or acting upon such resignations I

b) If the law rs Stlom on who shall accept the res~gnalton, tho folloWing niles shall apply·

•> If tne pubtk:. officet res.gnlng IS ~n appo•nhve offtC'!r then the lender sttall be made wtlh, And accepted bv. lt'e .1ppom1tng authcnty

11) II an elective offtcer, then lerlder s~ll be ma<i~ with, and acceptec1 by, the off•cerls authonzed by law to ca I an electton '" ordor to 110 the vacancy

c) The President al'ld V ce President lendc! the•r rcstgnaho•lS witn Congress. memDers or Congress, Wilt\ I heir respectiVe Houses

4 Effective date of reSJgnai/Ofl ' The date soeofted in IM lender; and tf no ~uch date is spec~fiP.d, then res1gnat10n shall tJe effect~.e when the r,Jublic officer rece1ves no11ce of me acceptance of has res9natron, not the dare of :he letter or notice of acceptance (Gamboa v. Court of Appeals (1981)/

E. Rec•ll. The lermrnatJon or o~f10al relahonshap of 8"1 eledrve offiCial fOt loss of confidence pnor to tne exp1rat100 of hrs tenn through the will of tho electorate

1 By whom e~tercised. By the ~·stered voters of a local government unrt to whiCh the local elective ofticiat subject to such recalf belongs [Sec 69, R.A 7160]

2 lntt18tl0n of the f9catJ proce.r:;s [Sec. 70, R.A 7160] By the regastered voters oflhe kx:al govemmf'nl umt.

a) By vrrtuP. of~ A 9244, Sees 70 and 71 of tt.e Local Government Code were amendc<l ano the Preparat:Jry Reca!l Assembly has been ettmrnated as a mode of tnt!lallng recall of eledrve local government oHaoals.

3 Procedure for m/ttating recall Recall of a provnlCf.IJI Cll\1 munaopal or barangay offiaal shall be mlltaled upon pet1t100 bv at least L5% of the total

number or regstered voters en the loc.algov~mment unit concem<."d dumg the! elect.on in wlliCn the local offiCial sough! to be recaned was elected

a) Awntte-'1 pe!Jlion for recall duly s onf1d before lhe election reci!Sttar or his rnprese:1lativo, Md 1n th~> presence of a representattve of the petilloner and representative of the offioal sougnt to oc recalled, and m i' publ1c place n tho proVInce, City, murucipahty or bar3ngay as tho caso may be. shall be filed wrth 'he Comelec through rts office in the local govemment untl concemed The Comelec or 11s duty authorized representative shall cause the pobhcation or ltle pelltfOn n a public and consp1ruous place for a pet"iod of not less than 10 days flO( more than 20 days, tor the purpose of venfying the authenhcrty and genuineness Gf the petition and lhe requ•1 ed percentage of voters. .

I) In Angobung v. Comelec, G.R No 126571, March 5, 1997. the Supreme Court underscored the need for a petlllon signed by at leas! 25% of the to:at number of reg•!>lt!red votf•n; ,,., the constftuenC)• '" on:ler to validly 101tia1e a recall elechon. Thus. where the pot1110n is s1gned only by the petitioner and does not even bear lhe names of the Citizens who have allegedly lost confidence in the pubhc off.dal. then the petttion should be dLSmls.sed.

b) Upon the lapse of the a1oresa•a period the Comelec or ItS dufy aullionzed representatiVe shall announce the acceptance of candidates to the posrbon and lt•ereafter prepare ltle fiSt Of C<lndtdateS Which shall IOdude the name of the ofl10al sought to be recalleo .

4 Eleeho'1 on Recell Upon the ra,ng of a valid petthon tor recan wr.h tne appt"opriate loc.1f offiCe of Che Comelec, the Commisston or rts duly authon.zed representatJ11e shaft set ltle date for the elee' on on recaU, whidl shan not be later than 30 days aftef the filing of rhe resoluhon or pebtloo in the case of ltle barangay. aty crmunidpal officials, ond 45 days in the case of pnwincial otrOals. The o1f1Cial or o~ICials sought to be recalled shall automabcslly be coosidered as duly registered candidate or candidates to ll'\e pertlnent positrons and, like other candidates, shaft~ entitled t., be voted upon {Sec. 71, R.A. 7160}.

5 Eftecti~1ty of Recall The recall o' an eled1ve local official shall be effecttve only upon the electiOn ana proclarnalton of a successcx 10 the person of the candidate receivtng the h~ghest number of votes cast during ltle election 0.1 recall Shoud the off.aal sought to be recalled rccerve the h•gllesl number of V:lles confidence 10 htm rs rherebv affrrmed. and ~e shall continue in off ICC

!Se<. 72, R A. flo. 7160}

G ProhtbiiiOfl from roSJgnatiOil ThfJ clect•vc local offiCial sougru 1o ba reca"ed sha'l not tle a'ICNo"Cd ro restgn whtle the recall process IS 1n progress /Sec. 73 R A. 7160}

l.ttto of Pliblto Offit'rv.

7 LHnttlttiOns on Recall (Sec. 74 R A 7160}.

a) ,. ny elect ve local onroat may be the S\.ltlieet 01 n recall electiOn on y once d:mr,g t\15 term of Of11Ce for loss or confidence

b) No recall shall tal(e place wrthtn one year from tl'le date o1 the otfoal's assumptiOn to offece or one year 1mmed•ate1y precodtng a regular local election I, Paras v Comelec, G.R No 1;3169, November 4, 19!16, 11 was held that the Sanggunumg Kabataan (SK) electiOn IS not a regulw election Withirl lhe oontemotabon of the Local Government Code as would bar the hold.ng of ~ reca1 electiOfl Nerthef Will the recall efectoo of the Mayor be barred by tne bar~v elediO"lS In AngoiJung v Comelec, supra , It "185 held that the •regu~at lOCal electiOil" rofen'ed to in Sec 714 , Local Government Code. means that the approaching local election rn:JSI be one where the poSitiOn of !he offiCIBI lo be recalled IS actually contested and to be filled by the eleCtOrate

1 ConstltutiOnRI guarantee of securrty of tenure No otfioer or employee of the '='v!l serv1ce ~hall be removed N suspended except lor cause provided by law {Sec. 2(3), An IX·B Const.tut1011).

2. Grounds lor removal or cJtsCiplmary \lCliOfl ReM Sec 36(b) ol tne CMI Servtee Law whiCh enurnefates the 'rounds for the suspension or drsmissal of offiCerS and employees In the Civil Serw::e. Re&d also RA 6713 (Code of ConduCt lind Eth/CIJI StBndards of Public Officials}, parttcularty See 5, on dulles. and Sec. 7. on proMM!ed acts and transactions

a) Thus, career seMCe officers and employees woo entov security of teoute may be removed only for any ot the causes enu~rated ., the law. and in IIOCIOfdanc:e wrth the prooedun! prescribed theretn

1) Removal nol fOt a jUSt cause, or non<ampltance with the pte5albed proceeure constrtu1es a rever51ble error, and enbtles tt1e officer 01' employee to remstatement w1th back salanes and without loss of senionty rights Thus en Del Castillo~ CIVIl SeMCe CommisSIOn, G R No 112513. A~sl ~1. 1997. it was held that when an offiCICII or emplotee IS Illegally diSmissed and hts rel"'statement 1S later ordered by the Coon. tor all tega1 intents and purposes tie 1s considered as not hawlg left his onrce. and ttle Silence of ltle deciSIOO notwtthstandiOQ he tS enlrtted to p:iyrnf'nt o f back sala~s In Tan v. Office ollhe Preslljent. G P . No 110g36. f e trvary 4. 1994, the Suprei'TK'! Cour1 r&.tern!ed whal tl said In Cnstobat v Melr.hor 10 t SCRA

495

857. that when a government omr.ial or emplOyee In the classified dvil servtee haS been illegafty dismissed and his reinstatement is ordered, for all legal purposes he considered as not having left his offiCe, so that he is entitled to all the Oghls and pnvrteges lha! acctue to him by virtUe of lhe off.ce that IS

held lndeed, lfl Constant1n0-DavicJ v. Pan.gandaman·Gama. G.R No 156039. August 14, 2003. the Supreme Court sard that an 1llegally~tsmiSSed employee who ts later crdered retnstateu 1S entitled to back wages and other monetary beoefits from the tJme of htS iMegal d&Gm•ssal up to hts retnStatement.

11) DemotJon 1s tantamount to unlawful removal if no cause 1S

shown lor it, or 1f It ts not part of any diSciplinary act10n (Fiofezs v. Ongpm, f 82 SCRA 692, cried tn De Guzman v. Civil SeMce Commission, G.R No. 101105, Maret> 1, t994} The same condUSIOO was reached 10 Genera/ Manager, PPA v. Monserate, GR. No. 139616, Apri/17, '2002, when respondent was demoted from Drvts.on Manager II to .Admmtstrahve Off~eer.

n1) Unconsented transfer resulttr\Q 11n demotion'" rank or salary IS

tantamount 10 removaf wtthout JUSt cause {Pslma-Femandez v. de Ia Paz. 160 SCRA 115} A transfer that results rn promotion or demotiOn, advancement or reductoo, or a transfer that atms to lure till! employee away lrom hts PNTTUJnent position, cannot be done without the employee's consent. 01' ttlat wou1C constitute removal from office lndaed, no pennanent transter can take place ur:less the otrJCer or employee 1s ftrSt removed from the pOSitiOn held and then appointed lo another po$11100 [DtVtnagracia v Sto. Tomas. supra J But an elementary GradeS Teacher in Maoila· may be asstgned to ar.y efementay schooll"' Manita and reass.gned from Gfade VI to Grade IV \iltnout violatng secunty of tenure: the chotee of (trade, subject areas, primary or rnte~ level. school and d•stnct IS pure policy and, n lhe absence or art>itranness, best left to the admmistrators ooooemed {Ordno v. Civil Service Commtssion (1990)} Thus, when ooe IS appointed Secondary School Prlnclpalll WithOut refetenoe to any partiCUlar school, she may be reas&gned to any station or school as the ex.genaes of the ~ demand {Depal1menl ol Educalion, Cultute & Sports ~ Court ol AppNis, 183 SCRA 555]: 01' whefe the appocntment ot lhe pnvate respondent.. Yap, was that d Oislrid Supervisor at large, she ooukS be aSSigned to Clny station as she is not entitled to stay permanently "at any specifiC stat10n; thus, there 1s no violation of security of tenure (Oulstmbiog v. Judge Gumban, 193 SCRA 520].

ilia) But rn Chato v. NarMclad, G.R No 113843, June 2, 1995, the Supreme Court sustained the legal1ty of the reassqwnent of Bias from Pampanga to Cagayan, after BIR CommiSsiOner Chato had issued Revenue Adm•n•stratJVe Order No S-93 redefining the JUnsdiC1ion and rt:l·numbe~ ng the reg,onal d.stnct offices of !he BIR The Court fouf'ld that the pnvate responoent

OUTU!.:l:IR£\'If.',.,'f.P t:. POl '!TICAL LAW

laded to show patent illegality an the action of the SIR Comm ssJCr.er, sayu'1'9 that to sustain pnvate respondenl's contention that h1s transfer was a demotion Simply because the new ass~g.,menl ls not to h•:o flk1:lQ woold be to subordtnato government pro1ects, along w1lh the great resources and efforts they enta•l, to 1nd111idual preferences and opm10ns of e~v1l serv•ce e.nployees, and this would negate the prrnopJe that publiC otftee IS a public trust Mmeover, the employee should have quesbo~ tho valtdlty of tl•s transfer b'/ ao~al to the CMt Servte& Commtssion. The lower court should have drsm•sseo tne acuon for fa'Jure of prtvate respondent to exhaust admmrstratllle reme1tes. In any eveoL the movement was held to be a reassignment. made m the ex~geocy of the servj(;S - and there was no demotiOn

w) Some cases orJ grounds for OtsopiJnsry CICI'OII

tva) DIShonesty IS the concealment or distortion of truth 1n

a matter of fact relevant to one's off~ee or cor. 1eded Wllh ltv! perfo~nce of IllS duty 11 •s a senous of'enSt: which reflects m the person's cl'laracter and elq)OSeS the moral decey wt\tch v•rtually deS1roys h1s honor, value and rnteg1.ty Under the Civil Servtce law. I he use of fake or spunous r:rnl Serv•ce ehgibiltty s regarded as dishonesty and ~rave misconduct. ountsh&ble by dasmrssal from the scrv.cc [C1V11 Serwce CommissiOn v CayobU, G R No. 145737, Set>lember 3 2003]

ivb) Conduct preJud era! to tt.e l>est interests olthe SNVlce ts daSSffled as a grave offense and the pPnalty for a second offen~ •s d1Sm1ssal from the servtce [Gabano v. Monreal, 21 EJ SCRA 558},

we) Mtsconduct. by uniform legal detinttton, is a tr.msgression of some established and dehn1le rule or ad10n. n.ore particutat1y, unlav.ful behav;oot as well as gross negltgence by the publiC uffocer. The wore! misconduct implies a wrongful intentiOn, and not a mere eiTOC' of Judgment. ltme and again. we have emphasaed that the Personal Oatc Sl'leer IS an offlci:ll document requnKf of a government employee aod offiCial by the CM Serw;;e Commrs:oon. II is the repositcxy of au information about any government employee and oftioal regard•ng his personal background, quahfteation, and ehgtbtlf,y Coocealment or any rnformation in the POS therefore, warrants a oenatty for the emog offiaar {Advtncufa v Dicen. G.R. No 162403. May 16, 2005/ Indeed,'" Bautista v Navarro. G R No. L~6199, June 29 1982, the Supreme Cour1 hi!ld that thP conccarment (from the Personal Oat.a Sheet of rtn OffiCial Of employee) of a prev•ous charge. albert drsmrs~d. constttu!es a menta d•shonesty amounhng to mtsconduct

rvd) Under the Mmtorsttaltve Code ot ,987 a goYernment ofi1Gef Of employee may be mmoveo from the seNICe on rwo grounds

unsatiSfactory cooduel, and want of capaoly While the COde does not oefino or dehneale the concepts of these two grounds, the Civil Servtc:e Law provides speafiC grouoos for dtsmtss ng a government olficer or employee from the servace Among these grounds are metrte•ency and ncompetence •n the petformance o1 offioal dut•cs In th s case, the respondents were dtsmissod on the ground of poor performance. PO()( perlormance falls wiUM the concept of lneffteteocy and incompeten~ il) the performance of offiCial duties. But inefficiency Of inr.ompetence can only be determined after the passage of sufficient ume. hence,the probationary penod of stK months for lhe respoodents. lndeod. 10 be able to gauge whether a subotdtnate Is meffioent or ncompetenl requ1res enough ume on the part of the tmmed1ate superior wi!h•n which to observe his pertormance. Tttis cond.hon was not observed m thrs case As aptly '>tated by the Civ11 Servtee CommtSSI()fl, it is QUite improbable ;that Mayor Jose Mtranda couJd finally determme the pertonnance of the respondents for only the first three months of the probauonary penod [Mirando v. Carreon, G.R. No. H3540 Apnl t1, 2003/

v) The tenure of ·pohlicar or ·non-career· members ot the Foretgn Ser.ttoe 1s coterminous With that of tho appomhng autnonty or subje<:t to his pleasure, the:r termtnatlon 1s not deoondent on proof of some lega'ly recogniZed cause and alter due nobce and hearing. bUt hes enlirely wtthin the wtlt of the PreSident 1n the exercise of her drseteuon [Astraqutflo v Manglspus, 190 SCRA 280}

b) Ol'rtCJals and employees hold.ng pr•manty confidential postlions continue In off1ce for as tong as confidence rn then' endures; the termiMtion o· their offiOCll relation can be iustlftod on the ground of loss of confidence. bUt'" that case. thi!tr cessation from off tee 1nvoh1es no removal but expcrahon of term of office [Pacefo ~ Chairman. CommfSSIOn on Audtl. r85 SCRA 1].

1) In Tanjay Water Dtstnct v Outnfl. G.R. No 160502 Apn/27. 2007. even as lhe C.OUrt acknowledged that nu offtCCr or employee tn the eNd Service shall be removed or suspended except for cause proveded by law. the Court said that the phrase ·cause proVIded by Jaw"l:•dudes Joss of ronfideooo. It as an estabhshed rule that the tenure of UtOse hotd•JlQ pnmarlly cotlftdenbal JlOS1110nS ends upon loss of coofldenoo. because their tenn of omoe lasts only as long as confide~ m them endures Thc1r cessation from offtce 1nvotves no removal but Pllptrallon ot the !N:-n of office

c) Olftcers and employees holdmg temporary or achng appomtments may be remo~ed at any t1me, WllhotA necesstly of JUSt cause Of a valid mvesugallon

I ilh •if l'ufolll 0 f• 1 1

3 Procedure in disclplmary cases Read Sec 38 PO 807 and Sec. 48, Chapter 3. Boo~. V, Admrntstra11vo Code of 1987.

a} All administrative case agalflSl a pUbiC o1fJC.er Shan com~r~ue despite the wtttOawal by the complamant [Bsrov v PcrfJJta, 287 SeRA 1 DagsJr8n v. Cooag, 290 SCRA 12/. D sopl.nary ac:tJOns .,ganst pOOle orr~eers dO notln\/Oive purely pnvate tN~tters. they are Impressed With pt.A)(i'c l'lterest ~ wtue of the publiC Character ol the pobbc offroe 1he affidaVIt ot desistance of 1hc compla1nant should, thetefcre be dasreg;;rded [Sandova.' v ManaAJ. 260 SCR4 61 1)

b) Well~ntrenchP.d is the rule that substanbal proof. and not dear and convmoog evidence or proof beyond reasonabte do.Jbt, •s £uff10ent basts f()(' the 1mpostti0n or any disopbnary act10n upon an employee The standard of substanbal evtdenoe IS sabsfied when the 8fnC)Io)'tit has reasonable ground to beltevf! that the employee •s resPQf1Slble fOf the misconduct and h•s partJcipai iM them•n renders him unworthy of trust and confldenc.e demanded by hts pos11t0n {Casurwo v TancJog, G R No t46J37, June 8, 2005)

4 Ju'lscitCIIOn m d1SC1pJmary ca es

c.) Heads of mmiStr~. ilgenocsand instru:nentahtJes, pro:t nc ~s.c•ttes and mi.miopahltes ha•1e JUriSdrctiOO to investigate and deode matters nvolv,ng diSCiplinary actiOn agatnst officers and l!mployees under lheu tunSdiCtion Their deas10n snal be final 1n case the penalty 1mposed is suspens on of not

.more than 30 days Of r.ne tn a:-t amoun: not exceeding 30 days ::.ctlary In other cases, the decrs•on shall be mrt.ally aopealea to the departrntmt head and finally to the Civil Service Comm1ssron ~nd pend.ng appeal, :the same shall be executory except wnen the penalty LS removal, rn wttich case the same snau be ex8QJtory oniy arter conflllTlatton by the departnwmt head /Sec 37. P.D. 8U7).

11 However, Sec 9, R /A 4670 (Magna Carta 101 Public School Teachers) ptovides that the commlllee to hear admtnlStratN Charges against poblic SChool teachers most indude a ~ntal.Jve ol the teachers organization. The appo.nunent by the OF.CS Secretary of teache'rs to the oomiT'tttoe does not comply with thrs raqutrement. ~s rl is the reachers' organrzattOn v.hiCfl possesses the nghl to rndrcate lis cOOice or represenlal•ve 1n the commtnee, and the DECS Secretary cannot usurp such nghl The rndoSKJn of a represeotat1ve of roc teac~· orqantzahon 1n the comm•Uee ts rndrspeosable to ensure an 1mpart1a tnbunaiJFRooRa v Court of Api'J(Jals, G P. No 110379 Nowr,~r 28 1997/

b) The Crilll SerVIce CommtSSIOO has appellatE> Jurrsatc•,on, but a (X)mfllajnt may be filed d~teclly w1th the CommiSSIOn. and tno l;ttlf'r ma

heat and d cr1e the case, or deputiZe a department or agency to conduct lt'.Q rnvcstrgalton.

t) In Cruz v Civil Servrce Commission. G.R No. 144464. November 2 7, 200 1. t e S uf)l'eroo Court upheld the a ulhonty of the Civil Service CommtSSIOn to hear and decide a complaint lilod by the CSC rtself agamst pel t1oners In thiS case. the acts compla nc<i of Mose I rom chca1tng allegedly comm1tted by the pet•trOnP.rs '"the civ•l servtee exrunmal'on, The exnmmatJOn was under the dlfect control and superviSIOn of the Commission The cu!pnts were (JO'Ietnment employees ovef w!'IOm the CommiSSIOn undeniably has

JU nsotetiOn

5. Prevetlrive SuspenSIOIJ. In Gloria v Courl of Appeals, G.R No. 1:11012, Apri/21, 1999, the Supreme Coon danfl6d that there are two kinds of preventive suspens10n of ovil seMCe employees who are charged with offenses P'JOI5hab~ b · removal or !iUSf)P.nsion (a) provcnhve suspension pcndlnn 11westtgauon. under Sec. 51, Boo!- V. Title I, SubttUe A of the Admintstrativo Code of 1987, and (bJ preventive suspens100 pend•ng appeal if the penalty mr-osed by the d•sctpllnlng Bttlhonty ll> suspensiOn or dtsmissal and, alter rev!Cw the respondentts exoneratP.d under Sec 47 of the same Code.

a) The proper dlSCiplnmg authOnty may pre11enth1ely suspend any s~.:borchnRte o!f.c:er or employee under hts authonly pendrng an anvesttgatiorl tf lht! charg'! aga nst such orr.cer or employee ~nvotvcs d•shonesty, oppreSSIOn 'X grave mtscondutt, or neglect tn the f}erfomwn~ of duty, Of rt there are re:.lSOfls to belove that the respondent is gulf1y of charoes which would warrant hts removal from the 5eMOO. This •s not a p(jnalty It IS a measure intended lo enabl~ the d1sophmng authontv to investtgate charges against ~e respondent by p~eventtng lhe latter from tnbmldatlng or In any way innuenong wrtnesses a,Jamst htm If the lnvestrgatlon is not fln1shed and a decision tS noc rendered wrthm a pcnod of 90 da~. the suspenSIOn w111 be lrfted and the respondent Will automatically be re1nstatod If, after anvest~galtoo, respondent IS found annocent or the charges and is exonerated, he should be reinstated.

t) In Alonzo\.' Capulong G.R. No. 110590. May JO, 1995. the Supreme Collt re1:erated the rule that the prevcntave suspensiOn of a ovD serviCE! offiCer or employee can be ordered even wttnoUt a heaong, because such suspenson as not a penalty but onlv a preli.nrnary step to admfnistratJve rnvest.g<liiOn Its purpose tS to prevent the respondent from us1ng hts poSitiOn or offtee to .riluonoo prospectrve Witnesses. or 10 tamper w; h toe recorck which may be v1ta 10 the prosecutiOn of the case aga1nst h1m

11) In Ptaza v. Court (J( Appeals. G R No 138464, JanutJry 18 2008, II e Coull u~ Govemor Democnto Plaz.a·s orcer of preventJv~

suspension Issued d9Cl nst appotn!tve local otf.crals fadng admln•strabve charges The law provides f01 1ne preventive suspension of appotnbvc toea~ offiCials and employeE-s pend ng mvesttgn!Jon of the charges aga1nst them ThiS ts one or thP sacnflces \O.THCh holdmg a public off1ce requ1res for t:1c pubhc good

bt The authority lo preveni!Vflly suspend~ f!xerr.lsed concurrently by lho OmbUdsman, nursuafll 10 R A 6770, lhe 5Clme law aulhonzcs a prcventr.-e suspeos100ofs.x montns(Hagadv GozcHJodoltt, G.R. N" 108072, Ofx;emb!fr 12, 1995)

I) Although Sec ,3, R A 3019, does nor speofteally aulhonze the Court of FtrSt Instance to Pfevenltvely suspend a public offteer faong auntnal charges, the Coon may vahdly order the preventNe :W"P8ftslon of such off1c:et, Stna" removal rrom off.ce is wrthm lhe power of the CtlUrt­perpetual d·squal,ficahon from or.ICC be1fY.l one or lhe penall•es wh•:h may t,e 1t11posed for vio/..1110n ot R A 3029 - no amounl of legordcmatn would depnve the Court or the POWer lo suspend, suspension being necessanrv inCluded '" the greater power Clf removai[SO(;fales v Sandiganb.JyDn, G R No 116259-60 February 20 1995)

c) In Gloria v. Court of Appests. supro . the Supreme Court held that the employee has no nght to cumpensation dtJI'Ing preventtve sus~nslon penotng 1nvest~oation e .. en 11 l'le •s ewne1ated. lnvolting Mechem Lt>wof Public OffiCers the Court said that In orcer to be entJtled to payment of back sa lanes, H ts not enough that an employee be exonerated of I.M charges ara•nsl him. In addttlon. tt must be s:10wn that hiS suspenSIOn IS unjushficd T. e p:evenllve suspensaon of CMI sen~tee emplOyees chargeci With dtshonestv. oppress.on or grave misconduct. or negleCI of dLty, •s authooled by lhe Ctvil SP!'Vice Law It cannot. therefore. be considered ·w,J~hfted", even if later the dlargf:s are dcsmts.sed It IS one of those sacnfioes whiCh ho4diog a pubhc offtee rrqwes for the pubiJC good For this reason. IllS bmrted to 90 days.

d) In the same case, rt was held 1hat the employee IS eniiUed to payment of badt satanes fof the periOd of prevenbve suspension pendong eppealtf f!ventually they are found tnnoa:nt This IS so b9cal.lse pt'e11entive suspensaon pend1ng appeal •s actuaQy punitive althoUGh it ~~ subSequently con3idered Illegal tf res:xmden• ~:; e•oner-ttoo and the adm nlstratlllfl deCISion f1ncllng him gudt~ IS reverSP.d Hence. he should be re.nstated Wllh full pay for the per.!Od of the .suspens:on Sec 47 (.:)slates !hal ·the respondent -shall be cons:dered as under preventnre SUSJ>E:OSIOO dum.g the penoency of me appeal1n the event M w.ns· II w-culo be unJuSt to OP.pnve hliTI of his pav as a resull of the lmme<Jtate exP.CUIIOO ot l tle ~cis1011 agamst htm and conMue !o

do so even mter It rs shown that hO 1s annocent or lhe charges ror Which he was suspended. Under eYJStiog Jurisprudence. such award should not exceed lhe eQUivalent of rrve (5) ye&rS pay at lhe rate last re<;eNed before tho suspension was unposed. On the other hc:1nd , af his convlctiOI'liS affirmed, lhe penod oii\IS suspenSion becomes part of Ute final penalty of suspenscon or dtSmassal

0 But back. s;t~anes are not warranted whoo the 1mmediato execution or the order of dismtssal is JUSt 1iod [CJc In Cruz v. Court of Appoals. G.R. No. t~6183, March 25, 1999) In th•s case, tho esc round the petitioners hable only for conduct ptetudoal to the best interest of the service. not for grave m•sconduct, gross naglect of duty. gfOss violahon of CS law, rules and regutabons (as charged by Secretary Canno) Havtng been found answerable tor a !esse• otfeose. petmoners could not be considered as befog fully Innocent of the charges agamst lhem. Not having been exonerated, petrtloners are no: ent1tled to back salanes.

6 Appesl When allowed, shall be made w;thin 15 days from receipt of the deosion, u:~less a pebbon for recons~raliOI'l as seasonabfy filed, wh ch pet.t10n shall be decided Wi1h1n 15 days.

a) Pehtcn for reconsideratiOn shall be based only on tho following grounds: C•) new evidence has been drxovered which matenaiJy affects the dectsiOO ren<:ered, (11) the deciSIOn IS not supported by the evidence on re<:OJd; or (tit) errors of law or lrregufanues have been commtned which are prejud-.cial to the mtercst of the respondent

b) Pursuant to SuJ)(emc Court Revised Circular No. 1-91, as amendE·d by ReviSed Admcn•straflve Ctrcular No .. 1-95 wh1ch took effect on June 1, 1995, fonal resoluhons or the Civil Service Commission shall be appealable by certiOrari under Ru:e 43 10 lhe Court of Appeals Wllhtn 15 days from rocetpt !lf a copy thereof. From the decision of the coon o~ Appeals. the party adversely atlected thereby shall fillt a peb\100 for review on cettioran wrth the Supreme Court under Rule 45 of the Rules of Court ·

c) In CMf Setvice CommiS.C)IOIJ v Daooycoy, G.R. No 13580..";, April 29. 1999, re1terated in crd Serwce CommiSSIOn v Jocelyn S Gents/fan, G.R. No 152833. May 9, 2005. the Supreme Court expressly abandoned and overruled the ru'e that "the phrase 'party adiiP.rsely afftJded by the deCISIOn' refers to the government employee aga1ost wllom the ndmtmstratrve case is filed for the porpose of d.sciplinary ad100 which may take the form of SUSPEtf'SIOn, aemot.on In rank or salary. transfer. removal or d•smtssal from office· and not 1nduded are ·cases where the penalty tmposed rS suspension for not more than 30 days !lt fine in an amount not exceed1ng 30 days

l.nu r>l J'oNu r)ffl<rn

satarv• or -when the respondent IS exon~rate<J ot lhe charges there as no occaS.OO fOf appeal· 11'1 this case, the Su(Xeme Coort sustaaned the rigl't of the Ctvil Servtoo CommtsSion to nppeal to the S•JPmmo Court the deo~n of the Court ot Appeafs e11oncrnt•ng the respondent and rt!versmg the Ct'll tl Sef'lltce Comm~sston s deCISIOn whiC.h loond Dacoycoy gUtlly of nepotiSm and ordered his dtsrrussa11rcm the sef'll ce. Tt11s dectStOn overrutes pnor deCISIOns holdtng that the Clvtl Service Law doos not contemplate a reVte\\' of deciSIOnS exonf'rat,ng offiCerS or employees from t.idmlmstrativc charges enuooated tn PaffKIPs v esc. Mender v. esc. Magp~JH! v esc, Navarro v esc. and more recently, Del Castillo v CIVil Servrce Commrss1011 24 T SCRA 317

1) I" Past01 v Ctty ol PBSJg. G R. No f 46813, May 9, 2002, th•s ruhng was applied when the Ctty o1 Pas~g appealed (to the Cour1 of Appeals) the deasiOn of the Civil SeMce CoiTVTliSSIOrl. The C.ty of Pas~g, m thrs case, was a "party adversely affecte<J• by ~ CSC deciSIOO

7 Summary DtsmtSSill NMe Sec 40 of tne Cava Se:vtee Lnw sull provides f01 case-; of summary removal (when tha charge IS 'enoos and evidence of guilt is strong: when respondent ts a reCidtvtSI or has been repeatedly c:har(;ed. and there ts reasonable grouoo to bel:ove that he IS gutlly of tt1e present ct.arge; and when respondent rs notonoosty undeSirable). and these same prOVISIOns arc reprodi!Ced m toto tn the Admtrustrative Code of 1987 (Executive Order No. 292), whic:h too~ effect in 1989. nonelheless. thesP proviSIOns on summary dtSm•ssal have already been r~pa...aled tJy Republtc A~ No 6654, approved on May 20, 1968 and published .n the OfficJal Gazette on May 30, t988 See Abalos v C•vil SeMCe Commt:;s.on 196 SCRA 81 ; Rosete v Couft of APPQels. G.R No 1078·0 November 14 1S96

8 Removaf of Admmtstrat,..,o PenaltKJs or DrS8btlltK1S. In mcntonous cases and upon rtKOmmendattOn of lhe CMI SeMCe CommtssJOO, tne President may commute or remove adllltniStrablle penalties or dtsabthbes imposeO upon of'ficers or employees 10 rliscipW\afy cases, subjeCt to such tenns and conc~bons as he may impose in the interest of the servtee.

a) In v~eente Garaa ,,. ChaJITTIBn, CommiSSJ()('I on Audtt GR. No L- 75025, September 14, 1993. tt was held that when a person rs granted a pardon because he did not tt\Jiy commat thn offense. the pardon rehevcs htm from ail pun1t1ve consequences of h1s cnmtn£~1 act. thereby restonng htm to hts dean name, good reputahon and unst~ined cnaracter pnor to h.s f.ndL'l9 of gu It T~ bestowal of execotJVe clt!tnency ,., effect compl~tcly oblitarntoo the ad11erse ~ffects of the admlnrstratrve deos10n which found h m gurlty of dishonesty and ordered h1s separatiOn from the seM<.e. This ec~n be tnferreo from the executrve clemency Itself ~xcutpatrng p11tmooer from tne adm.rustratJVe

charge and lhe-eby dtrechng h1S reinstatement. wnich is rendered automatiC by ll'le grant of the pat"don This signrfies that the pelltaoner need no longer apply for r lnstalemf!nt· he IS restorc<1 to hts offtce tpso ftJClO upon the issuance ot the clemency and he os enhtlod ro bact\ wages

G. Abandonment. lhe voluntary relinQuashment of an offiCe by the hOlder, wrth the intention of termmattng hi& possession and control thereof.

1 Abandonment of otfrce is a spedes or resignation; whale resignation 1n generaliS a formal relrnquishmenl, abandoomentts a voluntary relinquishment Uvough 11(\0-user Non-u~r refers to a neglect to use a povdege or a nght ex to exerctse an easement or an offtee [Municipality of San Andres, Catancluanes v. Coort of Appeals. G.R. No. 118883 January 16, 1998}.

2. A person holding a publiC offace may abandon such offrce by nco­user or by 81:QUtescence However, non performance of the dlrtiOS of an otftee does not constt1ute abandonment where such non-performance resuits from temporary dtsabllrty or from Involuntary failure to perform. Abandonment may also resull from a.::qutescence by the offrcer In his wrongful removal or discha•go Where, wh•le d4r.i•nng and intendtng to hold the off'rce. and with no wtllful des are Ot ntenhon to abandOn 1l, the pub he officer vacates it In deference to thQ reqwements of a statute wh1ch IS afterwards dedared unoonstltubonal, such a scrrender will not be deemed abandonment [Canonizado v. Agwrre, GR No 133132. February 15. 2001}

a) Me·e delay m qualtfytng for tne office ts not abandonment Bot undnr Sec. 11. BP 881, failure to assume elec1JVe offiCe within SIX months from pro<.1amat10n, Without just or valid cause, shall h;we the effect of vacating the office

b) When, after llberiation, a pre·war Jushce of the Peaoc refused to retum tc has offiCe when requited by the proper authorities. because the salary of a iustioe of ~ peaoe is not sufficient to sustain his family, he was deemed to have abandont:<S his otrace {Fioresca v Ouetu/10. 82 Phil 128]_

3 Under CIVIl Sef'll~ee Rules, an officer or emplovee shall be autorT~<Jhcally seJ •am ted from the sef'IIICtl tf he Ia• Is lo return to the sef'IIICe after the expiratioo of one-year leave of absence wtlhollt pay In Oue!ZC'n v Borromeo. 149 SCRA '20!i, •I was held that !hero ts nothtng that the govPrnment can do to oompel .J'\ UllWIQ•ng emoloyeo to retuw lo government service Notice havmg been g<ven to has last nown address, the dropp,ng from the rolls does not constrtute dental of due process. Mer tttl, an opportuntty l" 9"'*"" to the employee to contest the egallty of h·s be ng dropped from the rolls But see UnN'ef'511-s-·

o1 the Philtppmes lind AJfredo de Torres v CMI Servfce CommtS$10(1, supra • where tl was ~ld ~hat the Civil S~>rvice Comm sseon may not. on 1\s own, termmate employment or drop an employee I rom the rolls. where too emo«>yer ··self has optP.d to retatn and l!ven !l romote the em>}foyee

A In Re· Absence WiihocJf OffiCJal Leave of Darlene A J.-.coba. A.M. No. 98·8·246-RTC, February 15. 1999 the Supreme Court uph ld the 'laltd ty ol Sec 35. Rule XVI of the Omntbos Rules of the Clv1l Serv•cc. Y.htch pro\lldes that otf!Cef5 and ef1'1)1oyees WhO arc absent for at least 30 days W•~

,approved leave are considered on Ablenoe Wtthoot Leave ,AWOL) and shal be dropped from lhe serv•ce aher due nottce.

a) Whtle lht,; granting or approval of leil'ies of absence depends up;xl

the needs of the serv1c~. and •s therefore discretoo~v.ry upoo the head o(

the department or agency, ttlts d•scrollon must be exerosed ptopeny ln Ah•lippme Ccconur Authonty v GIJrrido, GR. Nc 135003 January 21. 2007. the Supreme Court notec that reSPOndent's appl.icaMn for a leave of absence was disapproved only on September 15, 1993, a most two months from lhe t1me he filed the same Th·c; unexola1ned •nactJon gave the re!"pondent tl'le

tmpress1on that tne:e was no tmped•ment to h•s leave appiJcatiOfl Rcsf)Ondent cannot, therefore. be constd~>red on AWOL for more than 31) day~

5 In AdtOng v. CC>urr of Appeals, G R No 136480. DeceMber 4 2001. the Supreme Court satd that the fa• ure to make a couttesy call to one s supenor Is not an offense, much less a g•ound to termmate a persons emoloyment The fa lure of the respondent Nusl<e to submtt her appointment papers 1S nol a cause for tier outnght d•s.nissal And ~liS s>gn1fteant that N~e informed Mayor AdK>Og that she did not restgn and that th'l termination of her sei'V!CII!S was against Crti Service Rules She requested that she be rem!:tated to tlef lawful position and her bad< salanes paid ThiS e)(plalns why, desptte her being physically absent from the offa premJSeS, sha cannot be deemed 10 have ab3ndoned her offiCe because al the v.mile. She had tne \toteotion 10 return to 'N'Of'k [HoweV8f, note that aocord~ng to JUflSP'Udence. a ovil 5eMce employee il~rty lenn•nat~d irom the se'V!Ce IS enlllled to bae!< salanes hmited only to a max mum of f;ve years salary. not ro ftJII bao. satar~s from her IDegal tenn nat10n up to remstatemP.nt J

H Acc .. pt;;nc~ of an Incompatible Offlc«>.

1. Test of lncompettbi!.ty By the nature and relation of tM two off.ees to each other, they oogN not to be fleld by one person frorr the oontranety ano antagontsm whiCh would result tn the at:empt by one j:.ter~n to Carthfully and mpart&atly dtscharge ltle duti(!S of one t ·ard thP tnOJmbcnt ol tho oth!lf

sos

a) Oist•nguiSh tncompaHble from forblck1e:t oHICe See; Sec 12, An. VI. ~onsti!uhon

2 AGGcptanco of •ncompallllle office ipso faCio 'facates lhe other. There ~t no necesSI1y 'or any proceedmg to declare or complete the vacation of the f•rstl')tf•oe See Adaza v. Pacana, 135 SCRA 431 However, 10 Canomzsdo v Agwrre, supm • nocmpatJtlthiY of duties rule never had a chance to como mto play, be<:aJse the petdiOner never occupted the two posltions. that or N.\POLCOM CommissiOner and that of Inspector General of the lAS. even as pebtloner a<X:e9ted lhe laner ~uon, but contmued to pursue legal remedteS to recover the first from which he had been unlawfully ousted by the law 1tself (Sec 8. RA. 8551) wtlid'l was later declared unconstitutional.

a) Excephon· Where the publiC offJOer Is authorized by law to accept lhe other offtce e g , the Secretary of Justice wno Is, by express provision of ~ Constttutoo, a member of the JudiCial and Bar Council. See also CiVIl Uborttos UflJOn v. &ecutJVe S~retery. 194 SCRA 317. where the Supreme Coort dedared Executive Order 28-4 unconstttutiOMI.

I. Abolition of Office

1. Power of l. ogrststuro to abolish an office Except when restra•nod by the Cc.nshtutJOr, Congress has thP nght to aboliSh an offtce, even dunog the term for which an e~isting incumbent may have been elected.

a) Consl.l:ottOnal otrtees cannot be abolished by Congress.

b) No law shaU be passed reorgamzmg the Judoary when It u:ldermtnes lhe secunty of tenure of its members (Sec. 2, At1. Vfll, Constttutron}

c) Vafid abolrt10n of offJOe does not oonstrtute ,.gmoval of the WlCUmbenl.

d) It 15 Wllhm the legal conmetern:e of the city c:oundl to crea!e, consolidate and reorganazo aty offiCes and pasrtJOfl.i wholly supported by l ocal !unds [Mama, Jr v Court of Appettls 196 SCRA 489}. ln Javier v. Court of Appe81s, G R IJo L-49065 (1994). the Supreme Court upheld tha authoritv of tile Provmoal Board of AntiQue m abolishlllg the Off1ce of !he Provmaal E:ngineer, unde'i' R.A 5185 (Local Autonomy Law). provincial government~ are empowered to aeate, among other poSJUons, the offtee of the provmoal ~ng•necr. and IM'lle me law did not exoressly vest the POWer to abolish. 11 can be deemed emtraced by ~rnpltCShon from the pcrNer to create rl.

2 . AbolttiOil of omoe. ntqUisiles. The abolition must be maoe In good fa~tl'l . wrtn the dear •ntent to do away with the otr~<:e. noc for personal or ~IC81 reasons. And cannot be Implemented n a manner oontr&r)i to law See Mendozo v OVIsumbmg, 186 SCRA 108, De 18 Llana v Alba 17 2 SCRA

294: Cruz v Pnrruc:tas, 23 SCRA 998

a) tn Gmson v MumcipD/ItJI of Murcia. 158 SCRA 1. the ahO!lhon of the pos1hon or Muniopal Den st on grounds of fis~At' re~tra1nt and economy \\as held .nvatid. because after the abolition, new otlice5 were create<l and sa.acy IOCt'eHeS granted to muropat officers and employees. In Rams v Court of Appeals. 148 SCRA 496. the abolition of the various items of empk>yees in ll'e Prov1ncaat Engtneer 's OffiCE! of the cebu was held to be pohllc.aHy-mohvated.

and, thus. •nvalid

3 ReorganrzstiOfl of Government Offices.

a) CoO;itii\JI!OOal recogmtion or authOfllv to reorganrze. See 5&. 16, Art XVIII. Dfl•hppioe Constltut100 There IS ro diS;>ute that pursuant to ll'e ProvtsiOOal (Freedom) Conshtuuon and the variOUs eKeC\Jtlve ordars Issued by the Pres:dent when she was the sole law-making uthonty. the differenl departments or government were suthof'ized to carry on reorgamzatJOn programs {Olfno v "son· 176 SCRA 84/ But the nature and eden! of tne power to reorgant!e were circumscnbed by the source of the power 1tsetf It was ne~r 1ntended that depanment and agency heads would be vested wtlh ontrammelled and automabc authonty to d1smiss the million:. of govemment ~ers on the stroke of a pen and with the same sweeping power detemttne under thelf sole d•screhon who would be appotnt~ or reappOrlted to the vacant positiOns Tl'le promobon of simphcdy, economy and efficiency as the usual standard whiCh enabtes a delegation of powers 1n re~gan&z.abon statutes to pass lhe te<;t of validity Because the heads of departments and agenaes ooncemed have chosen to rely on thetr own coooepts of unftmted d1scre1Jon and progressive ideas on rec:xoanazbon anstead of st.ow~og !Mt lileY ~ fatthfui•Y cornplted wittl the clear letter and spirit of the two Const•MIOOs and the statutes govemtng re<xgamzatoo. the reorganizatiOnS (in these consolidated peltiiOf'IS) are hereby set asode {Mendoza v. Quisumbmg, swra 1

b) There tS no violat1on or due process even i1 no heanng was conducted rn the matter or reorganrzatJOO of the OBP, as long as the employee was giVen a chance to present evidence {Domingo v Develot>melll Bank of ttHt Phtl•ppmf!!t. 207 SCRA 766} The Coort of Appeals and the lntermedrate Appellate Court extsttag pnor to EO 33 were phased out as part of lhe legal system abohshed by the revolutiOn The Court of Appeals established under EO 33 •s an enhrely new ooun, hence reference to J)(t>ferenoe in ran~ conta1ned

507

n BP 129 refers to prospect1ve Sltual!Oils, not retroactive ones As head of lht! revofutiOnary government, President AQutnO can d•sregard any seniority ranking 10 the Court of Appeals (Letto"Of Assoanto Just~ Puno 210 SCRA 589) In SISOI' ~ Civil Service CommtSSIOrl, 208 SCRA ssg, the removal or pehtiooer from hrs posd•on and his subsequent c1emo:JOn from Munic•pal Food and Agricultural Officer to Product1on Techn•oan IIIOlated secunty of tenure. The reorgan~zation of the Ocponmen: or Agncut:ure under EO 116 W8S set awe for failure to obServe the gutaehnes m EO 33 ros removal or employees. namely: a) ex~nce of a case for summary dtsmissal pursuant to Sec <tO. Ctvil SeMoe Law, b) probable cause fof viotalton of R A 3019. c) gross incompetence or inefficiency 1n the d1scharpe or funct1011s: d) misuse of public offiCe for part1sao politfr.al &ehvtties, &od e) analogous grounds showll".g lhat the incumbertt IS unfrt to rema n 1n the sei'V!Ce The same ruling was applied 10 Ab8ya v Civil Serv.ce Comm1s..«>n G R No 98027. October 4 1994 See also Pari-an v Civil Serva Commission, 202 SCRA n2.

c) In Lopez v Civil Servu;e Comm1ssion. 194 SCRA 269. the Su~reme Court said that S13'C 6 or R. A 6656 on government reorgamzation merely provides lhar tte se!ectlon Of placement should be done through the creat1on of a Placement CommiHee the membtu's of Which are the representahves of the head of the agency as well as reprcsentatrves or the employees The comm•ttee·s wOiil is recommendatory and does not fl)c a stnngent formula regard1ng the mode of choosmg from among the candidatP.S

d) Reorganization in a bureau or off1ce performing constituent functions Oike \tie Bureau of Customs). or 1n a government-owned or -cootrolled CQrJ:oration (hke the PNB). must meet a common test, the test of good faith [Romuafdez. Y~ v. Civil Service CommtsSJOn, G R No. 104226. August 12, 1993/ Good farth, as a component or reorgamzahon under a constitutional regime, ts judged from lhe facts of each cao;e [Dano v. MISOn, 176 SCRA 841

e) In Buldod ng Kswarnng EIIB v ExecutNe Secretary. G R Nos. 1421J9t~2. July 10. 2001, the Supreme Couft held thai PO 1772. which an-ended PO 1.t16, gmnts the PreSidl?nl the con!Jnt ting authority to reorganae the nat100al government, whiCh andudes !he power to groop. consolidate burt:aus and agenoes, to abolish ofr~ees, to tmnsfer funct•ons , to create and dassify functiOnS, serviCeS and actiVilies and to standardize salaries and matPOalS The d;!actJvalion of EIIB .'lnd the acattOn of Tasl< Focce Aduana were well with10 th1s authonty TnP. executive Ofdert were issued 10 good fa1th fit<>t. there ts no employment ol new personnel to man the Task Force, secono, the It-rust of the EO 1s to encourage the ulll•lahoo of personnel. faollt1es and re~rces of aheady eJosting departments, agenoes, bure."1us. etc.. third. ,, ;~pPears that lhl!' creation of the Tasf. Force was rntended to lessen EIIB'.s expense

J Prescription of the right to office.

1' The Rules or Court provide tMI & pellhOn f()( rell'lstatement (after Illegal ouster or dlsmtssal), or the reco\'el)' of the pobUc offece, must be nslllu~ed 'Mihtn one (1) year from the date the petitioner IS unlawfully ousted from hrs OffiCe

a} B.easoo for the rule. Trlle to public offiCe should not be subjected to continued uncertawtty. and the people'<~. mterest requ1res that ~ueh nght should be detenn~rled as speedily as poss1ble (Tumulak v cgey, 82 PnR 828].

b) F1l•ng dan actiOn rOf adminlstrauve remedy does not suspend tt.e penod lot f1hng the appropriate judiCial prorocdmg (quo warranto) {Gal&no v Roxss, 67 SCRA 8) The one vear period runs even during the pendency of a motion for reoonsideratJOn (Morales v Patnarcs, 13 SCRA 766)

c) Unless lllere are strong. compellrng and specia' orcumstances to lharrant a d1t'ferent COU"Se. courts w111 not (lntertatn a petition lor re:nstatement filed beyond the one-year peOOd But 10 Cristobal v. Mert;/lOr, 78 SCRA 17 5 I he Supreme Court allowed the su1t filod in 1971, nine years after the pehtiOner was ~•sm1ssed from ol'lice, on grounds of equ1ty

K. Impeachment See Chactcr on ACCOUNTABILITY OF PUBLIC OFFICERS, Constitubonallaw. supra.

L De•th. lt-.e death ot tne mcutnbenl or an offce necessanlv renders the otftee vacant

M. F•ilu,. to usutM offlce. Sec 11, BP 881 provtdes "'The office '1f any offiCial elected who faits or refuses to take his nath of otftoe wttlnn Sll': months from has ptt.damation shalf be considered vacant. unle~ said fa1lure is for a cause x causes beyond h1s control"

N Con~riction of • crime.

1. When the penalty mposed, upon convtC1Jon. .:arnes \Jrih It the accessory penalty at disqualification. conv1ctaon bV final judgment aulomahcally t~rrntnates offiCial relatklf1sh,p

a) Wh le a plenary pardon e•11ngu1snes the accessory penaltr ol dtsquahficalion •t will not restore the public offa to the of teer coovteled He must be gNen a ne-w appointment to rhe pos•tJoo [Monsanto v Fa,.tornn. 170 SCRA 1PO} Bultn Sabella v ~p;utmen' of EI"Jucar.on Cutrmo ;met Spo.1S

OUlLlN£ I P1:VIEW£R l'<l PCXITIC~ V.t.l

f80 SCRA 623. for reasons of cqutty, the Supremo Court held that the fOI"'Tlef elctoontilry school pnoe~pal should not be re--appotn!ed to a IOYICr position than ttmt whiCh he formerly occupied

0. Filing of certificate of candidacy.

1 Soc. 66. 8 P.881 providos· "A.ny person h<*illlQ a publte appoanti11e otfK.e or poSitiOn, mcludlnQ acllve members of the Aimed Forces of the Ph!ltppJncs, and off"10ers and employees '" govemment-owned or oontroled C»1'C)rahons. shall be considered Ipso fnclo resigMd from his otftee upon lhe filtng or hiS oertflcate of candidacy:

a) In PNOC Enorgy Development CorporatiOn v. NLRC G R No 100947, May 3:. 1993, It was held that this soa10n app4i~ even to employees of govemtnen1...1J\omed Of <.on trolled corporations wtlhout an ongmal chaner.

I POUTICA~ IJ.W

ELECTION LAW

General PnllCiples II Comm<ss10n on Elections II VoterS Oual•flcauon and R®lSI.raltOO IV Pol,tJCal Parties V Candtdates: Cemficares of Candidacy VI. Camp3Jgn; Eled:lon Propaganda,

Cor>tnbubc:ms and E.x-pmses vu. Board of Ele<:l.onlnspec1ofs-. Watchers VIII casting 01 Votes 11< Counting of Vole$ X Canvass and Proclamahoo >'I P.e-Proclamat10n Controversy XII Ellecllon Contests >.Ill Eled.10n Offcns~s

313 -----------------------------------------------I GENERAL PRINCIPLES

A. Defmltions.

1. Suffflge. the nght to vote tn the eledton of officers chosen by the people and 10 tile determination of questions subm tted to I he people. lndudcs w•thtn 1ts 'scop&. elocllon, plebisote, in tiati've and referendum.

2. Eloctt:m: the means by wl11ch the ~le choose their offiCials for a definite ane fixed period and to whom they entrus~ for the lime boing the exerci~ ot the powers of novemment Kmc!s

a) Regular; one provided by law for the olect100 of offiCers etther Mhon-wide or In cenain subdivtSJOns thereof, alter the exptralion of the hill term of the former offteers

b) ~ on ld to fill a vacancy n o!!rcc bc'ore ~he exp~rellon of the fullterm fer which the tncumbent was elec:ed.

B. Theorie$ on Suffrage.

1. NatuntJ nght theory· Suffrage ts a natural and inherent nght of ever1 ota:er. who IS not dtSQualifred by reason of his o·A~n reprehensib!e conduct or unfitness.

2. SOCia' expediency Suffrage tS a pubhc off1ce or ruocton conferred upon the citazen f01 reasons of social expedtency; conferred upon thoSe wno are frt and ca.pable of d•scharging rt.

3 Tnbal theory: llts a necessary attnbute of membership •n the State. 4. Feudal tneOty· lt rs an adjunct of a particular status, generally tenurial

tn character, i e .. a vested prlvilegg usually aooompany1ng ownership or land 5 Ethical theory It is a necessary and essential means for the

development of societv

C. lbeory Pfevaillng 1n the Phff/ppines.· Suffrage rs both a privilege and an obligatio~

D. System of el~tion adopted in the Phillppmes: Stnce 1901, the Australian sy5tem. !trst concew~d by Franc1s S Dutton, a member of the legislature of 5outn Austrnha HlP. d1shngu1shtng fer~lure of tho systl'm 1s strict secrecy 1n bal ollng

E. Constirut"onal mandate on Congress [Sec 2. Art V. ConslltutiOil].

1 To prcv~ a system for securmg the ~~cy and sr~nctity of the ballot. ano lor absen~ voting by oual:fted FiliPJnos abroad

14

a) Sec. 12, R. A 7166 prov•des b ~tee 11otmg, but Is a;>Pbcable only to the elea100s for the Pres1dent, V~ee President and Senators, and l:mi1~ to members of the Armed Forces ollh Ph l~pp~nes ann the Phti!;!P!OC NatJOnal Pollee aoo other g<,vemment officers and emplo ccs who a•c du1y regiStered voters and who, on elechon cay, muv tempor-rlly be asstgood 111 conne.:t'oo -A ll'lthe performance of el~ctton dut~es to places Nhete they are not reg•stared voters

bl f\ A 9189 {The Overseas AbSent~ Voting Act or 2003} au:l•essed the need for overseas Fthpmos to be able to vote in Phtltppme e~hons. See followmg Chap:er on VOTERS OUAUFICA1 ION AND REGISTRATION lor more detailed dtscusstOn

2 To Ce3'S}n a procedure for the diS<lbJed and tho illiterate •o vot<> \\ tthout It e ass:stance of other persons

F. Election period. Unless othei'Wlse fllfed by the Comelec 1n speoal ca~. the election perlod shall commence 90 days befcre the day of the elechon end shall end 30 days thereafter {S•JC 9 Art.IX·C, ConslllufiO'l}

fJ<"CfURI lAM J

II. COMMISSION ON ELECTIONS

[See CHAPTER XI, CONSTITUTIONAL LAW]

111. VOTERS: QUALIFICATION AND REGISTRATION

51

A. Qualifications for suffrage: ·suffrage may te eKercised by 8/t c:mzens or t~ Pnillpptnes not othetw1so d,squat,rted by lav., ~110 am at kJast etghteen years of ago, and wflo shatJ have restaed in the PMppmes for at least one ye:.w and 1n the plaet~ wherem they proposo to vote for at feast SIX months lnlmtKiistoly procedmg the electiOn No lllaracy, propeny. or othor substantive roqulfl1mont stall be Imposed on the exeiClsu of suffrage /Sec 1, Art ~ ConsJitutionJ

1 Any person who transfers residence to another oty, muntCip.>hty or country solely 1:y reason of hts occupatiOn, professton or employment In ~ate or pUDIIC service educatlOfl, etc., shall not be deemeij to have lost h1s ongmal restdence [Sec 117, B.P. 881}

2. In Makalintal v Cemo!oc, G R No 157013. July 3, 2003. chatle~~ as unconstitutional was Sec. S(d) or R.A 9189 (The Overseas AbSentee Voting Act of 2003). which prov•dos that among those d.squalified to vote ts an mm•grant or a permanent restdcnl (of another country) who IS recog01zed as such In the host country, unless he/she executes an affldavrt declaring the he/ she shall resume aclua/, physico/, permanenl residence , the Philipp~nes not later than three .-ears from approval of hts/hcr reg1stration under the said Act, and that he/she had not app/IIKJ for ciltzensh•p m another cxwntry . On thlS challenge, the Supreme Court said that masmuch as the essence of R A. 9_189 is to enfranchise overseas qualified Fafq>:nos. the Court should take a holtstte view of the perjnent provisions of both the Constitution and R A 9189. Th~> law was enacted 1n ooe.san.:.e to tho mandate of the flt'St paragraph of Sec. 2, Alt. V of the Constitution. that Congress ~all prollide a system for vobng by quauf•ed Filip nos abroact It must be stressed that Sec. 2 does not provide ror the pammc~t:rs of tne exerose of legislative authority'" enactcng sa•d law Hance, 1n the absence of restnctions Congress as presumed to have duly exercised 1ts fuoct10n as defined mArt VI of tne Cons!Jtution

a) In thiS case, the Supreme Court contmued by sa)'lng that contrary to the clai!ll of pe!1Loner, the exeClll.on Gf the afftdavtf •tself •s not thf! enab~ng or er.franch1sin~ act The afftdavJt required •s not only proof of the intention of 1~ tmmtgrar.t 01' permanefl( recc;•d~m :o go bnck and resume residency 10

tht! Ptulmpm~s but more sognlf!Cantly, 11 servos as an PxpliCII expression that

OUl UME I R81l('WER l POlO IC.'1. L)dl

he had not •n fad abandoned hiS dOOliOle o' ong.n 11 must be emphasized that Sec 5(d) does not only reQUire an arfldav1t Of a promise to ·resume actual physteal permantnt restdence In the Ph11pp nes 111ll Ia I"!! than three years from the approvaJ of h!Siher reg•strattOn", th F11tp100 abroad must also declare that they have not applied ror atizensh p m another country Tl•us they musl return lo the Ph11ippmes ol.tlerw~..c;e, 1he r failure to :etum · snal' be cause lor the removal· of tl'leir names r·om the NatiOnal Regrstry of aosentee voters and t11s/hef petmanent dtSQuallflcattOn to vote 111 ebsenba'

B. Disqu•liflcatJons (Sec. 1~8. B P 881)

1. Anv person sentenced by ftnat Judgment to sutfer 1mpnsonrMnl for not less than one year (unless granted a plenary pardon or an amnesty). but nght [s reacquired upon th'! e:~~p•rati()ft of 5 vears after sef\ltee ol sentence.

2. A.ny person <tdJudged by finaltUdgmenl of rntvitlg commlttod any cnmo mvolvu1Q d~loyalty :o the go11emme111 or any cnme agatnsl nat•onal secu·•:y (unless restored to fu11 CIVIl and pohllcal nghts In aocordance wt!tl law), but nght s reacqlllr~ upon he exp.rahon of 5 ~ears after ser Y"ic.e of senrence

3. Insane or •neompetent persons as declared b( oompct nt authOnty.

C. R~lstnttJon of voters. It shall be 1~ duty c.r e~tery allen to rcgtsfer and cast his voto /Sec. 4, 8 P 881} In oroer that a quallfiCd e ector may vote In any ,.,edlon, plebiSCite or referendum, he must bt; rttgafltcred 10 the Pennanent List of Voters for the dty or mun•opa tly in whach ho resides [Sec. 115. BP 881]

1 Registrahon dOes not con1er the nght lo vo~e: it 1s but a cond11.J0n preetldent to the e•ere~se of the right Reg•strabon ts a mgulahon, not a quahftealton [Yra v Abano 52 Phil 380}

2 General RegiStratiOn of \IOtets lmmcdlatety attor the t.arangay eJections 1n 1997, u-.e extSI.I~ oorllfted list or voters snail n!ase to be etfective and operative. For purposes of the May 1998 eiP.ctions and all electJons. plebisotes, re erenda. inttta!Jves and recalls subsequef.t thereto the ComeiPc shall undenake a general regasllatlon of voters [Soc l , R A 8189 (The VoteiS Reg•strat10n Act o/1996)}

3 System of ContmUtng RegistratiOn. The personal fil1ng of applicatiOn of r<!gtsuahoo o f vo•ers shall be cooouc1eo da•ry tn the offtee of the Elet.tJOn OffiCer dunng regu1ar offce hours No rcgastr at10n shall, ho\ve11er, be condt.rt:ted auriog the penod starttng 120 1Hys tx?lort- a regutar elochon and 9') dtiJ's befoul a s~at .. lect1on {Sec 8 R A 81BOJ

Dfft .m/.-ru'J Sl7

a) ln Alctlayan YocJfh v Comelee, GR. No. 147066, MarUI 26. 2001. tne Supreme Cout upheld tho adion of the Comelec denying petit100ers' request for two (2) adcitiOOal registratron days m order to enfranctuse more than 4 million yo:.tth between the ages 18-21 Who fared lo reg•ster on or before December 27, 2000 The JaN was slmpty followed by the Corneloc. and 11 is an accepted doctnne m admtnrstrawe law thrllthe detenninal'On of adminisuatrve agenoes as to the operatiOn, •mplomentittlon and appl~eattOn of a IJw as accorded great WC!qhl. coosidenng ti'lat these speaalrzed govemmcn• bodtes are, by th r ntture and funCtiOnS, .n tne best poslt100to know ...,hat they can poss1bly do or not do under prevailing circumstances

4 D•squafrficatiOn. Th~ same grounds as the dtSQuahf:cattOns for suffrage.

5. tllltarsle or drsabled 110ters. Any tll:terate person may regrster w1lh the assrstance of the EJectton Officer or any member of an accredited otiZen s ams. The appllcalton lcr regiStration of a ph~JCally d1sabled person may be prepared t:y any relative within the fourth etvil degree of c:oosanguinrty or afftOity or by the ElecttOn Offteer or any member{'! an accred1ted atiZen s arm 'JS•ng the data supplied by tile applicant (Sec. 14, R A 8189)

6 Ef;)CtJOn Reg1strat.'011 BoarrJ {Sec 15, R.A 8189] There sha be in each etty and rnunaapat1ty as many ElectiOn Reg.strat~en Boards as there arc t:lechon officers therezn The Board shaU be .;omposed of the ElectiOn Off10er 8l> chai(ftlan, and as members. the publzc school offiCial most SC..f\fOI' in rank and tho local :::ivil reg sttar. or 10 his absence, lh~t City or municipal treasure1. No member of the Board shall be related to each other or to any 1ncumbent oty or muniCip::tl elective offiaat withtn the fourth 01111 degree of coosangu11llly or affimty. Evert registered party and such organ1za110ns as may be authoriZed by the CommiSSion shaD be entrtled to a watcher In every regislmhon board

7. Chsllc·nges to npht to tfX}Ister (Sec 18, R.A 8189/. Any voter, candidate or representatiVe of a registered polztical party may challenge 1n

wnung any applcahon for reg1strabon, statrng the grounds therefor. The chaneoge !>hall be under oath and attached to lhe applicatJon, together wtth the proof of nGttce of hearlllQ to the chaUengcr and &he appfteanl. Oppositions to contest ~ regiStrant's apphcat100 :or inclusiOn 10 the voters' list most. 11'1 all case3, be filed 1tot later than the ~econd Monday or the month in which lhe same as SCheduled to oo heard or processed by the ElediOfl Reg1strat10n Board The heanng on the challenge sha'l be heard on the third Monday of Lhe month anc the deoSIOil snail be renderea before the end or the month

8 Dcact·.-s!10n of R1...>grstratron (Sec 27 R.A 8189/ The Board shnll deactwate the regostralion arl(l Jemove the reg1strat10n records of the follo\o\1ny

persons from the oorrespondtng preooct bOolc of voters and place the same, proper1y martted and dated m mdehble ink. In the inacuve file atte• entenng tr.e cause or causes o! deacbvahon: [a]A;1y oerson who has been sentence by ftnal 1udgmen1 to suffer trT4>flsonment for nol less Ulan one year, such dtsabthty not haw~g been removed by plenary pardon or amnesty. ProVIded howeva., that any person dtsQuallfted to vote (because or lhts) shall automa11cat1y rec;CQwre the nQht to vole upon oxr~trAIIOn ol ftve vears after SP.rvtce cf sente•tte as coruf1cd by the cterks or courts (b) anv person whc. has been d.:ljudged by final Judgment by a competent coun or tnoonal of havtng causedlcomm•tted any cnme tnvofvtr'lg dtsloyally to the duly coo .. llMed government, wch es rcbttlhon, seu lion, violat"on :lf the ilOli·SUb\:erSIOO and firet:rms laWS, Of pny cnme against nahonal 5eQJnty. unle~s restored 1o hr~. full crvil and polihcal nghts •n accordance with raw. Frovided that he shall regalll ha~ nghl lo vote automabe&lly upon expirauon of five years from servtce or sentence; ~c) any person dedared by competent authonty to be tnsane or tncompotent unless such dtSOuatftcallon has been subseQuently removed by a dedaraltOO or a proper auUIOftly that such person ts no longer tnsane or :ncompetent. (d! any puson who did not vote •n the two successiVe J)fecedtng regular ele.::tl0r1s as shown by thetr 10tmg recoros (for lhts purpose, regular electtOOS do nol•ndude lt1e Sangguniang Kabataan elections) (e) any person whose reg.stratioll has be .n ordered excluded by the court, <md (f] any person whO lias lost hts Flftptno otizcnshtp

9. Reactivat1on of Regtsfration (Sec 28 R.A 8189) Any voter whose reg~Sirabon has been deactivated may filt: Wtlh UW: ElectiOn Officer a sWC~m applicatiOn for reactJvanon of his regtSirabon n lhe fonn of an affidaVIt stahng that lhe grounds fOt the Cfeactrvijtroo no lOnger extst any ltm~ bul not later than 1 ::>o days before a regular electton end 90 days befe<e a special electiOn. The ElectiOn Offteer shall s:Jbmrt sucn apphcalton to the Electton Reaistrnuon Board f()( appropriate ac:Uon

10 PreparatJcn Mel Post1fl9 of the Certtfted Usl of Voters {Sec 30 R.A. 8189/ The Bo:trd sha!J prepare and post a cenifted lis\ of voters 90 days before a regutar alecdon and 60 aoys bef()(e a speoa1 etectiOn and fumtsh OOC)IeS thereof to the provmcial, regaonal and nabooal central hies Copies of the certlfted ltSt along wrth a hst of deadavated 1101ers categorizfld by preonct per barangay shall also be posted in the office otthe Elect !On Officer and In the bullqtin board ot each otylmuniopc;l hall

D. Inclusion and Exclusion proceedmgs

Commor· mles govemmg Jud·ctal proceedmgs m the ma:tcr of mcluSJOrl, exCJUSIOfl and corredion of names of ~tc:rs

OOlllNE I JtEVI£W£~ 1· tiOUTIC.Al V. ,•,

a) PetJtJon ror mclusloo, exctus10n cr oorrechon or names of voters shan~ filed during office hours

b) Notice of the place, date and time or the heanng of the petttiOn shall be served uPOn the meml>ers of the Board and the challenged voter upon (;ltng of Ole pet tJon.

c) A pelltioo sh~ll refer ontv to one ptecmct and Shi:tll 1mplead tne Board as re:;pcndents.

d) No costs shall be assessed agatnsl any party tn these procetldmgs. However. •f the court finds that thO appl.cahoo has been filed solely ro harass the adverse pwty and cause h m to Incur elepenses. at shall order the culpable patty to pay the costs and anc.Jd~lal expenses

e) Any voter, candidate or pol1hcal party affected by thP. procee<!tngs may mtervene and present his evidence

f) The d~JOn shaH be based on the evidence presented and '" no case rendered upon e sbpulelion of facts lithe question is whether or not the voter IS real 01' f1Ctat10us. his non-appearance oo thn day set for heanng shall be prima faCtO eVIdence that the challenged voter •s fidallous.

g) The pehtton shall ba heard and ~tded WJthm 10 days from the date or 1ts fil,ng Cases appealed to the RTC shall be decided w1than 10 days from recetpl oflhe appeal. In all cases, tile r.oort shall decide these petitioos not later than 15 days before the eledaon ano the doosion s~ll become final and executofy

2 JunsdictiOn m lfJcluSIOn and exclusiOfl cases (Se<;. 33, R.A. 8189}. The Munlopal and Metropolitan Tnal Court~ shall have ong•nal and e)(dusivo junsdld1on over all c-1ses or Inclusion and exdusion of voters 1n the1r respecttve Clites and muo~a!ihes. DeciS'Ons of the Municipal or Matroll()htan Tnal Couns may be appealed by the aggnev~d pany to the RegiOnal Trial Court Wtth'" fiVe days from receipt of nollce thereof. Otherwase. said d6CIS!On shall ~me f~nal and executory. The RTC shall decide lhe appeal withm 10 days from the 1 me 11 tS received and the deosioo shan immedl3tely become final and executory No mooon for reQ>nsideration shall be entertatned.

3 Petition lor lndUSIOfl {Sec 34, R.A 8189). Any person v.hose apphcat1011 for registration has been disapproved by the Board or whose name has been strid<en out from the llsl may file wtth the court a petition 10 1nctude hts mune m the permanent hst of voters 1n hts precinct at any time except 1 OS da~ pn()( to a regular elechon or 75 days pnor to a spocial efectlon II sh<JI., be sup'lOfted by a cenificate of disapproval or h•s appl.caoon al'ld proof of serv~ee or notice or his peltlion upon ttle Board The petition shall be decided Wllhtn IS days after tl~ fil•ng

4 Felltlor. for EJCcJUSIOn (Sec 35 R.A 8189}. Any registered voter. represcntatNe of a pohtical party or the Etectaon Off•cer. may file w1th the court

- - --- ---a SWt.m pet1oon fOf the cxdusion ot a voter from the pem13nent hst of voters giving the name, address and the precmct of the challenged voter at any lin c except 100 d:Jys pnor to a rcgul3r electiOn or 65 days poor to a speoat elediort Too pellhon shall be accompal'l•ecJ by proof of notiCe to the Board and 10 the cnal'enged votm and s~f be decided Wlthan tO davs trom •Is r.ltng

E. Annulment of Booll of Voters fScc 39. R.A 8t89J. Hm CommiSSIOn shall. upon venf1ed peiii!Cifl of ar· f >~n:er or electiOf'l off;ccr or ouly feglstered poi11Jeal party, and after notace and heanng, annul any book of vote~ thai iS

not prepared 111 accordance wfth lhe prov.soos of ttli~ law, or was prepared through fraud, bouery, f()(gery • .mpersonatoo. tntimidation, fc.roe or any sam tar irTegulanty, or which oontaJns data thai are st.atlsbcalty improbable. No order. ruhng or oeos.on annul •ng a book of voters st:.all be exeruted w1th111 90 days before an election.

1 However the annulment of ti'IC hst of voters Shall not CC'f\Shtcte a grouoo fo- a Dte-oroclamation contest (Ututalum v Comeloc, 181 SCRA 335]

521

IV. POUTICAL PARTIES

A. Party System A free and ooen party system shan be allowed to e~'Ve according to the free cnotce or the people [Sec. 2(5), Art IX· C. Const.tution/

1 No v.>tes cast tn fa \/Of' of a political party, orgarnzation or coaf!l'()('l shall be valid, except for those registered under too party-list system as provided in the Consl.ltuton [Sec. 7, Art. IX·C}

a) Party-Lrs\ Svstem The party-l•sl system Is a mechanism of proportional representation in the elect10n of representatives to tho House of Rep:esent.ati~es from national. regtOnal and sectoral parties or organiZations or ooalttioos llefeof registered wllh the Commtssion on Elections {RA 794 t I

'2 Political part•es regtstered under the party·usl system sha!t be entitled to 3ppomt po.f Hatchers in accordance with law [Sec. 8. Art. IX·C}

3 Party-list representahves shall conshtute 7.0% or the total number of representatives tn the House or RepresentatiVes (Sec. 5(2). Art VI)

8 Political Party

Defmtion! [See R A 794 t {The Porty·USl System Act)}

a) A party means etther a political pan,. or a sectoral partv m B caaJ.Ieon of pa~o.Jes

b) Apolttical party refers to an organr.:ed group of ouzens advocnt1ng an Ideology c.r platform, pnnop:cs and policies fOI' the general conduct of govemmen anc:J which. as the most tmmedtate means of secunng their adopbon, reguarty nomsnates certain or •ts teaders and members as candidates ror public otra. It is a national oartv when Its oor.stJtuency is spread ovet the geographical tem10fy of at least a maJOOtY ot the regions It is a rewooal party wht>n its oonslluency is spread over the geographiCal territory of at least a maJority of the ot~ and prOVInces com:Yismg the region

c) A 58Ctoral party refers to an organ1zed group of Citizens belonging to any of the folbWtng sectors· labor, peasant fishertolk. urban poor, indigenous CIJiturat commll'l hcs, elderly. t:antlicapped, women. youth, veterans, overseas workers and profesSIOnals. whose pnnopal advocacy pert::t1ns to the speoal tnterest and concerns of their sector

d) A sedoral orgamzation reters to a group of otizcns or a coallhon of group~ ol cit.zens who share s1m1lar physac:al attnbutes or Characteristtcs, employment. m·.erests Of conr.erns

e) A coalition refers 10 an aggnJpattOn of duly regiStered national, regeonal, ~ parttes or o;-gan1Zahon5 f<>r pohtical and/or election purposes

2 Reg1stmt101l In order to acqutre Jundcal personality as a polthcal party, to entitle tl to the ~neftts and pov1leges granted under the Constitution and the laws, and '" order to pa:1tcipate in the party·lists sys.em. the group must regtster With the Comm~ss10n on ElecttOOS by fihng Wttt'l the t;ometec not later than 90 days before the election a verified petatton staling 1ts des~te to patbapatc 1n the patty-41St system as a national. rE"giooal. sectt"f'al party 01

organlzatton Of a coalitiOn of such par11es o~ cwgana.abons

a) Groyos wbjch cannol 'be reg~ered as ochltcal oaOJes (·) AJiigtOUS deOOMinations Of sects; (ii) those wtlO seek 10 achieve thesr goals tnrough V)Oien.c.e ex unlawful means, [mj those who re' Jse to uphold and aohere :o the Constrtuhon, and [iv) lho~ ~uppurted by ICtt.:Jgn governments {Sec 2(5~. Arl IX·CJ

b). Grounds for cancetiJllkm o' reg.strat!On Acceptrng finandal cootnbutiOOs from foc'eign govemmeots or lhetr agendas (Sec L-(5}. Art IX-C/ Under. R A. 7941, the Comelec may motu proplo or upon a vet red complamt of any mterested party. refuse 01 cancel , after doe notiCe and hearing, the regiStration of any natiOnal, regionJ! or sectoral party, organaat10n or coalition on any of the following grounds [1) It IS a rehg•ous sect or denomrnatton, organizatlOfl or assooatlon organ zed ror rel~glous purposes, fttltt aovoca:es violence or unlawful means to seek tts goal, (if•) it ts a foretgn party or \>fganrzat•on (rv]1t IS recemng suppcrt from any foretg, QO'J• mment, foretgn ' poii11C81 pany, foundation, organa.aoon, whetht:r ~trectly or through any o: Its offiCers or members. or Indirectly through thtrd parties. for parttsan electtOO purposes; (v] rt v!OOltes at fails to comply with laws. rules or regulations rela1sn{j to elections; [VIl It dedares untruthful statements 1n ts petrtron. (vn) 11 has oused •o eXiSt for at least one year. and [VIitl iC faits to parttOpate tn the last two praceding electio4as, or faits to obtam at least 2'% of the votes cast under the party-list system in the two precedtng elections for the con-;17tuency lf'l

whiCil Jt was registered,

3 Nom111at10n of party./1st representatiVes. etc .. Read R A 79( 1 See Chapter VIII :ONSTITUTIONAL LAW

4 Aurhonty of tne CommiSSIOII on ElectiOn~ flowtllQ from 1ts

constitutional powet to enforce and admrnister all laws ;:~nd regtAattons relat;ve to the conduct of the election and 1ts power to mgtSier and regulate polrttcal pafttes, the CommtSSIOn on Electrons mav resolve rratters tovolv1ng the

ascertarnment af the identJty or the political pany and Its legitimate omcers fl-Bban ng DenJ;~krSttkong Pfltpino v Comoloc. G" No. 161265, February 24, 2004)

OUR l'<l I REVIEWER ll'f POtiTICAl lAN

V. CANDIDATES; CERTIFICATES OF CANDIDACY

A. Ou•llfic•rions

1 Ouahf•cattons prescribed by l:lw are contmumg requ rement! and must be possessed fOf the durobon of the oft'teer s delrve tenure Once any of the required QualificatiOns 15 lost, h s title to he offtOe may be seasonabiy cha•lenged. See Fnvslc1o...: Comelec, '174 SCR.4 245, LabO 'I Ccmelec 176 SCRA 1). I

2 . WOOt1 should the qualifiCationls be po$$0SSed. The Loca Government ~ ~ not specify any ~·cu'ar date '*"en 'he candidme mtJSI possess Fihp•no OllZens~•P· Phil•pp•ne otazenshtp is required to ensure that no alien shal govern OIJr pe"pJe Ao offlCial beg ns lo govern 01'\ty upon hiS proclamatiOn and on tne day that has term beg1ns Smce Fnvaldo took h•s oath o f aflcg•anoe on JUJ'M! 3~, 1995, when hts application for repatriahon W3S granted by the Speoal Comm1ttee on Naturnhzatoon crea!ed under PD 875, he was, therefore. qualtfied lobe proda•mP.d and to assume office. Sec. 39 of the Local Government Code speakS of qualiflcatiOfls of etectJva nNiCials. not of candidates. Furtl'lermOle, repatnation retroads to the date of the f~•ng or hiS apphcauon (!or repatnat10n) onAugust17. 1994{Fnvsfd0 v. ComeJec. 257 SCRA 721/

B. Drsqu•llflcattons

Under the Omnibus ElecttOtr Code {R P. 881/

a) Oedared as tnrompe:em or msane by competP.I'\1 authonty

b) Sentenoed by final Judgment tor subven10n, 1nsurred10n, rebelhon Of

any offense lot which he has been sentet'lelkl to a penalty of mt>Je than 18 months inlprrsonmen,

c) Sen,enced b)' rmal Judgment Of a c:nmc mvol..r.oq moral turprtudc

r) In VNiaber v. ComeJcc, G R No 148326. November 15, 2001. 11 was held that VIOiaboo of Balas Pamoan~ No 22 tS a cnmc nvolvtng moral turprtude, because the accused knows at the lime of the I!:Suance of tne ched< that he does not have suffic~ent funds n, or cred1t w1th, the drawee bank fOf the payment of the mecJt, tn full upon presentment A conviction thereof shows thai the accused IS gutlty o1 deceit. and certainty relates to and affects thP. good mornl char.~cter of the person

23 --- ----------------iii Violat•on of tnc Anti -Feoong Law 1nvotvcs moral turpttU<Je,

and the only legal effect of probnhon is to suspend the ImplementatiOn of the .sentence. Tl1l.ls, ltle diSQualtficabon still subststs {De Ia TomJ v Comeloc, 258 SCRA 483] Thts ts modified by Morono v Comalec. mrra.

d) Ally person who ts a permanent resident or Of' an tmmtgrnnt to a IOfotgn country (unless he has waved his st.-1tus as such) (Sec 68. B P. 881). See Csssi v Comeioe, 191 SCRA 229. wnerc tho Supreme Court said that a ·green card" G ample proo( that the holder thereof ts a penMocnt resident of. or an lmm~rant to the Uncted States

2. Under the Local Government Codo [Sec. 40, R.A. 7700/ Applicable to C<)Odldates fey local electJve offiCe ooly

a) Tnose sentenced by finaftudQment far an offense oun.shab!c bt 0011 yeac Q( more O[ IID~l. witbtO lWO years aftpr S~MM gn!P.nce

i} Even •' the candida!e as under probahon, the disquahf.cation st•n subsasts, because the effect of the probat1on is only co suspend the lmplementat~en or the senteooo {De Ia To"e v Cometec. supra}. Thrs 1s modified by Moreno v Co,roorcc, GR. No. 168550, August 10, 2006, whero tho S• tpreme Cocn. ot ng Badayon \1 Ml1tia. said that probation is not a sentence betas rather. ll'i effect, a suspenS1oo of the 1mposltion of the sentence The grant of pmbat•on co petitioner suspended the 1mpos1tbn of the ponctpal penalty of tmpr•~nl at. well as the ac.Gessory penalties or uspenslon from pubt•c off.ce ano fr0r.1 the nght to follow a profesSIOn or calhng, and that of perpctu.11 Sp.JCt<'ll dasquaJ,ficaliOn frOfn the nght of suffra~. Thus, during the period of probation. the probationer IS not disquat1fied from running for a pubiJc offiCe Mcause the accessory penalty or disqualrfteahou from publiC office Is put oo hold for the dcratron of the probatlon. Futthermore, tn the case of Moreno. the In& court had already I$SU8d an order finally dtschargtng htm, and under Sec 16 of the Probation Law,~ final diSCharge of the probationer sha!l operate to restore to him all c:ivtl rights los1 or suspended as a result or his convidion, and to fully disch~ his liability tor any fine lfllPOSetJ as to the offense tor wh•ct'l the probation Nas granted

b) ThoSE removed from office as a resull of an admlo!StrntJYe caw.

l) In Grego v Comoloc, G.R. No. 1259!>5, June 19, 1997. it wa~ held that an eective local offalll who was removed from office as a result cf an adfTllnistraive case pool' to January 1, 1992 (the date of effectivity of the Local Government Code). is not dtsquahfied from ruoorng for an elective local public off tee, because S4lC 40 of :he Local Government Code cannot be g tven retroact1vt: er.ect.

OVTUflC I RLVIf'htR IU flCI\.ITICAl lAW

•i) In Reyes 11 Comelee. 254 SCRA 5t4, the Supreme Court ruled that the petrtioner. a Municipal Mayor who had been ordered removt.'<l from offiCe by the Sanggunlan Panlalawigan. was disqualified, even es h alleged that :nc deCISIOn was not ~e: f nal because he had not yot received a copy ot tho decisron, i r•asmoch as II was .shown thai he merely rc:fu~ed to a~pl ~hver., of the copy of the dcCISIO:l.

c) Those coomted by rmal !ucJgrnem 101 V!Ointillsl the oa!D or alleg!i!xe 10 !he Reoubflc of !he Phllroprnes.

d) Those With dual C!hzensh1o

i) In Mercado v Manzano, 307 SCRA 630, rerteratoo 1n Valles v Cornelec, G.R. No 131000, August 09. 2000. the Supreme Coort danfied roc ·dual citizenship· d•squatrfication and reoonoleti the saroo wrth Sec. 5, Al1 tV of the Constittrtlon oo ·dual allegi3~·. Reoognizm~ snu:utOns rn Which a F'rliptno e~trzen may, Without perfomung any act c;,no as an involuntary conseQuence of the conO•ctrng laws or different cour tnes. be nlso ;. CitiZen of another State. the Court explain~ that ·dual crtrzenshtp• as a d lsquahflcation must refer to otzens With "dual allegtance" C ; nseq1.1enlly, pef'SOnS with mere dual citrzensh1p do not fall Linder tho diSQua ific:atron

n) Furthermore. lor candieates wtlh dual cillzenstup, 111s 'lnough that tlicy e· ecc Phthpp1ne CII1Zensh1p Upcl n the fihng of the" certtlica:e o: can~Jidacy to rermtna~c their status as pet5ons wttn dual Clt!Zenshtp. The fihng of st r.ertiftOAte of candidacy s~ffi<::es to renounce foretgn ot•zenshtp, efrecttYely removing an>· d&SQualtrlCatiOo as dual Cit zen. ThiS is oo, because tn the cerMcate of candidacy, one declares that he 1!· a Fihplt'.o otJzen. ao.:l 11\at he .v~ 11 support and defend lite ConstitutiOn and wilf m&~nlatn true farUl and allegaance to the same Sudl dedatalion under oath ~les as an effective renuncwtion of foreign citizenship (MercadO v Manzano. SlJPf8 J

. 111) However, '" thu case of a fomtel F, ltptno who lost P~1ine dt&Zenship and thefeafter reacqwes It by laUlg the Odlto of alleg•ance as reqwred •n R.A 9225. he must PflfSOOBiy swear to an oath renouoong all fore•gn citJz~nstup at the t1me of tho filtog of the t:ertlfiC3te of candidacy. The mere fihng of the cert•frcate of candidacy as not sufficrent. because Sec 5 (2) of R .A . 9225 categoncally requ.res the 1ndrvtdua1 to state rn dear and unequi'IOCat terms that he 1s renounong all foreign curzenshtp, fa.bng which he IS rfiSQuahfted from runnong ror an eledrve office {Lopez ~· Comelec. GR. No 182701, JUit 23. 2008, retterat~ tn Jacot v Del and Come/ec, G R. No 179848. November 27, 2008)

S27

e) fuoj1M:S from lusttce 10 cnmrnal an<! non:(]Qf!l!Cal case here and ~ A uglllvto from justtee", as cefmed by the Supreme Court In Marquoz v Comelec. ?43 SCRA 538, "'inctuoes not orly tho..c:e WhO nee after conVld~ to avo«i punishment. but ILke-Mse tho~ Who, after being charged, flee :o avoid prosecurron· Rodnguezcannot be considered a "fugitive from JUSI!ce

4

• because hrs arrival tn the Phil•pprnes from the U S. preceded the fihng of the felon)' compta1nt 1n the Los Angeles Court and the 1ssuance of the arrest warrant b)' the same fore~gn court. by almost five months {ROdriguez v Come!ec. GR. No. 120099, July 24, 1996}.

f) permanent cesJdeQts to a forel<lo countrv or those ~ have aoaujred the ooht to resjde abroad and contmue to avail of the same naht after

lbe..etfectjyrty or the Local Government Cocfe.

i) In Cassiv Comelec, 191 SCRA 229. the Supreme C<lurt sa~ that possessron of a "green card"1s ample ev1denc.e to 5hoW that the person IS an 1mm1grant to, or a permanent reSident of, the United States of AmerlCa.

g) roose Who are msanc or lqeblemtnded

3 AadttiontJI grounds lor dtsquaiJ'icntiOn (Sec. 68 BP 881} After having filed a certifiCate of candidacy. lhe fOllowing shall be ~isquahfied f~om continuing as C<lOdldate, or •1 he has been clecled. from holdmg the off.ce.

a) One who has grven mon~y or other material considemlion ro Influence. tnduce or corrupt the voters or publ c offioats performing electoral

functions

b) One who oommittcd acts of terrorrsm to enhance hts candidacy.

c) One who spent in h1s eledton campaign an amount tn excess of

lht>t allowed by the Code.

d) One' who has soliCited, received or made oontnbutJoos ~d under Sec 69 (transportation. food and dnnks). Sec. 95 (publ1c or pnvate rmanoal tnsttuttOilS, publiC uttltttes or eJ<plotlation of natural resources. contractors of pUblic wens or oilier government contracts; lranctuse holders or concessionatres; educattOOaltnshtuuons reccivtng grants lrom the govemment. offiCials of the Ctvil Ser\ltee or the AFP, forcrgners or fore~gn corporations). Sec. 96 (fore.gn-sourced contribuhons). Sec 97 (ratSing or funds tnrough lotler.es. cockfights. box1ng bOUts, o.ngo, teauty contests, etc ) and Sec. 104 (prohrbrtE'd co'llrtbutcons to churche<o, sdlOOlbuildtngs roads, bndgcs. medal CllllteS e:c )

-OUll '•E I?D/IE\1/ER ~~~ POU1CALlAW

e) One who has viOlated the prov1501s or Sec 80 (campaign penoo), Sec 83 (removal. destruct•on of lawful eiecttOn propaa&nda), Sec 65 (prohib•led forms ot Pfopaga0<1a) Sec 66 (regula•10n ol propngaoda lhrough mass mecha} In Pangkat Loguna v Comefuc, GR. No 148075. Febru.Jry " · 2002, the Supreme Court held that the acts of Laguna Governor Lazaro to ordenng the purcnase of troptucs, basketballs. voUe)'ba'l£, c.hessboard sets anJ the dtstnbulion of medals a:ld ptns to variOUS schools, dtd not constitute a VIOiauon of Sec 80 on premature campatgnlng Respondent Lazaro wa~ not 1n any way dtrectly Of indirectly soflot1ng votes. she was merely porlormsng the duti8S and tasks tmposed upon her by law. whidl dull~ She had s-worn to l)effOfm as Governor or •_aguna

f) (.ne who haS Vlolatlld the pt'OVISIOO$ of Sec 261 (CJedfOrt oll'enses)

C. C&rtJfic~t• of Candidacy.

1 Enect of lt/,ng certJtteate of candidRcy

a) Offtoals holding apDO!oUye offices, !l!Ciud•oo acttve members of AFP and otfteen; or govemment"i)Wfled or -controf!t:d CQ!'OO!iJ!!OQlt.~M!! be considered ll&Q facto res•aoed (Sec. 66, B.P 881} In PNOC Energy De11elopment CorporatiOn v NLRC. G R No. 1()()947, May J7, 1993, it v.as l"'cld thot this sec1100 appl1es even to employees o• 90'/ernmcnl-owned 0(

·controlled corporabons w.thout an ongmdl charter

2. Formal defects tn the cert1fcare ot candidacy

a) While the cer11fteate of candidacy IS reqwred to oe under ooth, the electton ol a candidate cannot be annulled on the SOle ground or formal defects in h•s cer11f.cate, sud'! as lad< of the requll'ed oath [De Guzman v Boerd ~f CBnV8SS61S,. 48 Phil 211)

b) In Juril!a v Comelec, G R No 105435, June 2. 199~ d was held lhal the omtSSlOf'\ by the candidate (fOt Couna!Of .n Quezon Crty) to 1nd1cate 1n h1s oeruftea1e of candtdacy his proonct number and the particular barangay where l"le 1S a reg1stered voter, Is not suffiCient groond to d:sQuahfy the candidate, because the Local GovcmfTient Code does not reQu1re these data to be i~rcated m t~e certJfK:ate IllS enough thai Mrs a reg•stered voter'" the precinct where he tOlends to vote wh•cn ShOuld be v.itn10 the dtstncl where he IS runnng for 'lfttce

3 . Death, d,sauaftficat1on or \'llltdrawal of CBndi(Jafe II after the last day for the fthng ot cert.r.cates of ca!ld•dar.y •u• omoal cal"'dldate of a reqtstered

FJ~'~"'~' .. .• ------------------___ s_1_,,

politiCal party d.es, withdraws or IS cftSQuabfled for any c:ou~. only a person be:ongnlQ to and cert•f.ed by the same pohhcal party may file a cert.lftCa'e of candidacy r01 the cthc:e not latllr than m•d.doy of lhe day of the clectton {Sec.

77. B P 881/

a) In Luna v. ~Icc. GR. No 165983, Apti124, "2007. Luna 1 ed h<>r certificate of candidacy tor the pos1h0n or V.ce-Ma}'Of' of Lagayan, Abra, ~ substitute for Hans Roger who Withdrew hts COC. Private respondei'lts challenged the va idity of the substttution. alleging that Hans Roger was ooly 20 years old and, therefore, dtSQuahfled to nm for VICe Mayor: acc:ordtngly, .no cannot be substJMed by Luna The Supreme Court ruled ltlat tho substitution was valid, When a candidate files h•s COC. the Comclee has only a ministenaJ duty to receive and acknowledge Its rece•pl pursuant to Sec. 76 of the Omntbos EJectiOn Code SI008 Hans Withdrew h15 COC. and the Comelec foond that Luna compfiei1 With all tne procedural reqUirements for a valid substitutiOn,

tuna could vllhdly substitute for Hans Roger

~ ~1tl'ldrawal of Certiftcato of CnndldllCY The withdrawal of tne cert1flcate of candidacy Shall effect ltle dtsquitliftcahoo of the candidate to be elacted for the poSllion (Ycam v Cnr.eja, 81 PM n3}. The withdrawal or ttle Withdrawal, for the purpose Of revJVIn9 tile certificate of ~nd1dacy, muSt be made w•thln tne period proVIded by law for the filing of certificates of cand1dacy

(Munsale v Nioo, 83 Pht7 758/

a) There Is nottung to Sec. 73. B.P. 881. whiCh mandAtes that the affidavit or wrthdrawal must be filed wrth the same office 'Nhefe l~e cerl1f.eate of candidacy to be Withdrawn was fi1ed Thus, it can be flied directly with the maln offtee or the Comelec. tn~ off•ce of 1~ reg100al eleCtion d1redor concernt::d. tt.e off.ce of the prowlCial erect'on $upervisor of lhc province to which the mtMlicipahty belongs. or the offtee of the municipal election officer of thP. m:sn•cipal.ty Accordingly, tn thiS case, t111e Supreme Court held that there was \'tllld wtthdrawaJ by pelJtiOOef or her cert1ftcate of candidacy fOf Mayor of Baybay, Leyte (Loreto-&> v. Comelec, G.R. No. 147741, May 10. 2001] ..

5 Ftlmg of two certificates of candodacy When a person files two ccrtif1cates of candidacy for d1!terent offices. he uecornes tneliglble fOt e1ther pos1t1on [Sec 73, B.P. 881). He may Withdraw one of h•s certifiCates by fihng <:1 sworn declaratiOn wrth the Comm•ss•on before the deadline for the fihng of cert1f.cates of caodtdacy. In l oreto-Go v Comelec, supra., the pettlioner filed two cen•fiC3tes. ooe fOf Governor of Leyte, and another for Mayor of Bayoa'j. Levie W1th the Supreme Court o.t:ng that she had vafidiy withdrawn her c.er11ftr..atn of candidacy lor Mayor of Baybay. shf. was lhllrefore. considered a bOna fidt: candidate fOf Governor o~ LeylP.

.5)() ----6 Duty olthe Come fee Subject to 11s aulhonty over nuiSance can<Ma:es

and tls power to oeny due course to or cancel a certificate of candidacy under Sec 78, B P 881, the Comclec shan ~'\ave ooly the rrunistenal dutv 10 reoo.ve <~nd acltnOW!edge receipt of rhc cP.rlll cates cl ca r7cfldacy fSPc. 76. 8 P 881/

a) As early as 10 Abcece v Jmpenal, 103 Phl/136, lht: Supreme Coun said that the Commrssoon has rlO drscreuon to gwc or not to crve due course to a certrf>eate or canordacy filed in due form. \Vhde the Commlssron may too~ rnto patent def~cts 111 the certificate, it may not go into mattOfs no1 appeannQ on therr face

b) Accordrngty lhP. Cotnf.lec may not, by rtself, Without proper procee.frngs, deny due oourse lo or cancel a cenmcate of candidacy hied ro due fonn Sec, 78, B .P 881 , which treats of a petJtion to d&ny due course to Of

cancel a ceruftcatP of cand«:tacy on the ground that any matcnal representatiOn therein is false. requrres that the candrdate must be notrfied or tha pehtion agar~t hrm. and he sholJid be gwen the opponumly to present evidence In h1s behalf {Ctpriano v Comelcc. GR. No 158830 August 10, 2004/

7 tnstanef'!s when the Comelec may go beyond thr- lace of tt1e ;:erttficare ot candrdacy

a) Nwsance candidates {R.A 6646]. The Comelec may motu prop10, or upon venfled pelltiOfl of an Interested party, refuse to give du:- course to or cancel "' certificale of candidacy rf tl IS sl'lowr that the said celliflcate 'NtiS filed (I) To put the election P"'Ce!.S rn mockery or drsrepute. (ir) To cause conf~sion a~ the voters by lh9 srm1lanty of the 1\C!mes of the reg•stered canchjates; ot (111) By OthCf cm:umstL.nccs or acts which Clearty de'llonstra•e lhal the candidate h3S no bona fide mtentJon to run for the offJCe for wnic.h the ceruncate has been filed. and thus prevent a f;uthlul determ1nat100 of the true W111 of the eleCtorate

i) The Pl'OCfamal.lon of the w.nr.mg candidat' renders rmot end academic e motion tor recons10e1a1100 fried oy a canaldate Who had been enl'lief dedared by tf'le Come lee to be a nuesance candl(jate (Garcta v Comelec G.R No 121139 July 12. 1996}

b) Pe11t1on to deny due CXJUISII or to canGel :1 certtflcalo of r.and1da;-y A venfied pebtiOn m~y 1>e ftled exclusively on the grou~ that any matenal representation contamed •n tl'le certirte..<:~!e as required unde~ see 74 is fa!~e. The pcblton may be tiled no! later than 25 days from the bme nf the filing of the certrfrcato of candtdacy, .and shall be deeded, after due nottce and heannq, not later tl"&Un 15 days before the elecl.on {Sec 78 B p 881)

J31

1) Junsdldron over a petr1100 to cancel a certificate uf candidacy It s ...,,,h the Comelec in dMslon, not with tho Cometec en bane (Garvida v. Ss•e.s. GR. /Jo 122872, SoptPmber 10. 19f17/ To denv d1.1e course or to cancel a certf1cate of candrdacy cntaus the exercise by the Comelec of 1ts quaSl·Judlcaal no! simply tts adm:nistratrvo, pow.1rs Hence, tho Court may only compel tne Cometec to exercise 1ts lJisuetion and resolve the matter lx.lt1t may not cont~Ql tho manner of e>'~Has1ng such d.screhon (Quizon v Comelec, •'i R No. rn927, FebftJDry 15. 2008/

,.1 In W/aber v. Comelee, G.R. No. 148316, Novem06r 15, 200 r, respondent Douglas Cagas fileo a petlt10n for the cancellation of petitioner 's certificate of cancftdacy on the ground thai the latter made a false material representation in his certJf.c;;ate when he sard lhat he is ·et.gibte for the office sought to be etected to• since he had been convicted of viOlating B.P 22. a

criiTIB 1nvolvt~ morallurpitude

ur) In Loong v. ComeiBC, 216 SCRA f60. 1t was held that the petition for the canoellat10n of the certificate of candidacy of Loong for a!leged misrepresentation as to his age, filed by Ututalum beyond the 2!>-<Jay period !rom the Last cay for fihng certificates of candidacy cannot be 9111en due course. Ner•hef can It be treated ~ a QOO warranto petlbon s1nce tnere has been no proclamation yet The ru11ng 1n Fnvaldo v Cometec cannot be invoked. because in the IaUer case, the ground for disquahrreahon was citiZenship (As pointed out by Jusllce Gutierrez '" h1s concumng optn10n, where the drsquahficabon •s based on age. r~ence or any or the othor grounds for inetrg1bllity, the prescriptive penod should be applied str:ctly.J

r.) A facslmate of a pet1tron for disquahf~cation .s not a genUine plead1ng, 11 1s not sanctiOned by the Comelec Rules or Procedure. Thus, the Comclec should not have acted on It, but shOukl have awarted receiPI of lhe ongmal petit;on filed through regrstered mail {Garvida v. Safes, 271 SCRA

767]

c) FrUng of a disquaTification C8se on any cf the grounds enumerared m Sec 68, 8 P 881

r) The junsdJctJOn or lhe Comelec to drsquallry candidates IS

limited to those Pnumerated in Sec 68, B.P 881. All other election offenses are beyond the ambit of the Comele.: JUfl~c!Jction. Ttley are crtm1nal and not adminrstrative 10 nature, and the power of the Come/ec over such cases IS

confined to the cc.nduct of pre m1nary ~nvest1gahon on ltle alleged electiOO offense for the purpose of prosecuhng the alleged offenoors before the courts of justoce [Corlllla v Come/er:, G R. No t 50605. DeGember lO. 2004)

F.lf" ,, ... ! w..,

n) Under Section 2. Cclmelec ResolutiOn No 205tl, the Cometec s mandated to dtsmtss a comp1a.n1 for lhe d~SQuahfteatioo of e cand!date

who has teen charged wrlh an eJectron ol'fense but v.ho has atre.ldy been proda1med as tte wmoor by the Mun ctp-31 Boc:rd of Canva!:Sers In thJs CAse, the pelltioPets had already been proclamed N nners on May 18, 2001 , and the pnvale respondents riled therr complatnl for the disquahfreat:.on of pehhoners only on Jun'! 23. 2001 The Cometec found probable cause aga1nst the oetrt·oners for the offense Charged. and d'recte<l Its Law Department :o rrl the appropnale lnfori'TUIItaon, Clearly, then, the Cotr.elec committed grave abuse of disereuon amounting to lack or exc:es$ of Junsdlctl0f1 wnon 11 issued the assa11ed resolutiOn dtSquahfy1ng the pehhoners from lthl p~srtlOns lhey were respectively elected to {Aibana ~ . Come~ G R No 163102, July 23. 2004)

8. Efrect of dlsqua1JfiC81101l case Any candidate who has be6n oecwed by frnal jvdgment to be dr.;qualrfred shall not ba voteo 101, and tilt! votes cast fOf h1m st .all not be coun!ed If for any reason a ca~dtd'lte is not declared by f1n;JI Judgment before an election to be d•squal fted and he 1s voted for and receiVes the wtnnlng n'Jmber of votos 1n such electiOn, the Cocrt or CommiSSIOn shall continue With the tnal and heanng of the actiOn, lt'ICUII'Y or protest and. upon motiOn of the compla.nant or any Intervenor, may dunng the pt!ndency thereof order the suspenSion of the prodamabon of such (:C!ndidate whenever tho evidenl.E! of hts gu l11s strong (Sec 6, R.A 6646).

' u) Note that ltlo Con~elec can suspend proclamat•on only when evidence of the wmning candidate's gu11t is strong fCcdtUa v. Comelec, supra)

b) The use of lhe word ·may· 1ndrcates that the suspension of the prOClamation IS nwrety permrssive If the Comelec does not find any sufficient ground to suspend proclamation. ~n a prodama•ron may be made (Grego v Comelec. 274 SCRA 481)

CJ ~ the decision of the COmelec diSQualifying the candidate is not yet final and exe<:utory on election day, the Board of EJecttOI' tn!.pectors IBEI), tn the exercrsc of 1ts ffilncsten.·ll dut), 1s under oN~QatiOfl to COl.lnt and tany the YOtes cast '" favor of the candidate /Papandayan v Comeloc. G.R No 147909, ApnJ 16 2002)

d) ln Ortega ., Comeloc. 2H SCRA 297, companiOn case to Labo v Comele~. It t: Supreme COUrt held that 11 Is 1ncorrec1 to .rg e that s.nce a candidate ha ... been d1squaltf1Cd, the votes tntelldea for tne d1squahfted candl(lato should, m enect, be considered null r1d void. Thts wot~ld amount to disenfranch1si~ the electorate '" whom sovere1gnty resides lt )( x The

f]t'LIH.llf Loon 333 ------"'!9 would have been different if the electorate. tully DWilfS in fact a~ in Ia""' of a candidate's d1squahf cahoo, so as to bnng suctt awareness within the realm of notoriety, woo!d nonetheles' cast the1r votes in favor of the inehgl>lc canc:lidatt. 1n suctl case, tne electorate may be said to have waived ~M valid1ty and e!fteacy of the r votes by noloriously n IS8pplying their franctuse or tt'lrowmg aNay lhctf votes, 1n which case tho eltgtble candidate obtarntng the next htghest number of YOtes may be deemed elected (Note that In lhtS cose. the Cometec resok.lt oo dtSQualifytng Labo had not yet become fnaJ on the day of the electiOn J This was reiterated in Aquino v, Comeloc. 248 SCRA 400. wttere the Supreme Court said that If Aquino wete d1squahf•ed before the electJons. the votes tor h•m. given the acr1mony wh1ch attended lhe campa gn. would not h<l\'9 automatically gone to secc>nd-pfaoer Syjuco. Th~ same mte was applied an NoltJsco v Comek.">C, 275 SCRA 762, Sunga v. Com6kc, 288 SCRA 76. and Cod•11a v Cometec. supra .•

e) In Aznar v Ccmelcc. 185 SCRA 703, 11 was held that a petition for diSQualificatiOn cannot be treated as a petllton for QUO warranto as the fonner

is unquestiOnably p(ematOie.

r) In Maxos v ComeJec 248 SCRA 300, 11 was held that Sees. 6 and 7. R.A. 6646, in relation 10 Sec 78, B .P. 881, shQw that the Comelec does not lose jurisdiCtion even w1th the lapse of the period provided 1n Sec. 78, B P 881 . 11 IS settled dOCtrine that a statute requtnng rend1t10n of judgment within a spe<;~r.ed pertod 1s generally construed to be merely directory

g) In Nolasco v Comei9C, 275 SCRA 762, 1t was held that by vrtue or the 001\StttutiO'\al grant of plenary authonty to the Comelec, it has jurisdiction ove.- proclamattOO and diSQualificatiOn cases, and tho Comelec may not be hamslrung by rts own procedwe ln Resotuhon No. 2050. even If lhe petition for dtSqUah~on IS f"-00 after the etectioo. These petJtlons ror disQuaflfcation am sub;oct to summary heanng.

VI. CAMPAIGN; ELECTION PROPAGANDA: CONTRIBUnONS AND EXPENSES

A Election Cllmpaign or ~r1tsan political •ctivlty Read Sec 79, BP 881 .

Eloc'!On campa'!}n o• p8f11san pol.ttealact'~ tty refers to an at I de sag ned to promote the election or defeat of a par11cufar candidH!e or candidates to publiC OffiCe

a) It done for the purpoSP of enhanong the ct~aoces of. SPtr<mts for oomanatJoo lor candidacy to a pUbiJC offtee by a po(ltical party, etc , it shall not be considered as eJed.on campa19n or partisan political act•v•ty

D) II shan De unlawful for nny person or any oarty t'l engage in election campa•gn o• partasan pohllc.ll actr111y e.xC'ep1 dunng the campa gn period {Sec 80, BP 881}

1) The essential elements for vaolahon of Sectton 80 are. [a) a person engages In an election campaign or partisan pol tiCal actiVtly as defined tn Sedaon 79 (b) the act is des.gned to promore the e!ect10r1 or defeat of a panicularcandidate. and [c) the act 1S done outside the ~mpal\ln ;>efiod [Lanot v Comelec, GR. flo 164858, No11cmbe.r 16, 200f)

P) In thiS case. Henry Lanot, a candidate fOt Mayor of PaSig C•ty. filed a petatiOn to d1squa'afy orponent V~eentl! EusebiO to• engaging In an electiOn campagn Ot•tslde of the des.gnated penud by ur.enng defamatory statements againsclanot. calas1ng the pobhcatiOrl of a press release ')(ecjlchng h•s viCtory, i0$t.alhng billboards, streamers. posters and stickers rmnted with hi5 sumarre tn Pasig C1ty, a<.dressSog a arge Qfoop of peope dunng a mediCal mtSS.OO sponsored by the Pa~ Cny government. and diSinbuting shoes to

.SChoolchildren '" Pas.g pob 1: sct1001s to mdooe I heir parents to 110to fOf

nem The Court found that Euseb>O riled his COC on DecP-mber 29 2003 and he allegedly commlltPd too acts before the stan of the campa1gn' pcnod oommencmg on March 24 , 2004 Stc 1 1 or RA ~36 moved tne dcadl•ne for the filang of COCs from March 23 2004 to January 2. 2004, or 81 dar.; earl.er Under Sec 11. the only purpose ~or the ea•ly ~hng of COCs ts 10 g.ve ample lime for the printmg or off•clal ballots Congress never intended the! lhe Party rd109 of COCs 1s to make the person 1mmedaa~ely a candidate tor ~rposes Otllef than the pnnttng or ballots. Ttus legtslatlve Intent prevents the tmmedlate applicatiOn C'f Sec 80 to tho~P ·Ntlo f1le hear COC!'. to meet the early deadl~ne He denr •ntpnraon or Congr·~s was to ores.crve t.,e election penOd as ~1Jted

• by extSt•ng law pnor to RA 8436, and one whO files a COC w!th•n the ~rly deadl.ne '"Will stm not be consldere<1 as a caodklatc·. Acx:crdtngly. Eusebio tccame a candidatu only on March 23, 2004 for all P\Jrposes other than the printing of ba~ts Thus. hts acts prior to March 23, 2004, even (f conshtutJng eldd10n campaign or pat1isan political actiVIty are not puntshab'e under Sec 80 (Lrmot v Comelec, supra.].

c) 01stillQU1Sh thss from the proh•bitiOtl on members o1 the CMI Sennce to er.gage. dtredly or ndarecUy, tn any e:ecuoneenng ~ partiS3t\ polotlcal campaign under Sec. 2 (4 ). Art IX·B. Ph :ippinc Const :utaon.

2 Public Rafty Any pol.tical pa;ty Of candidate shall fiOt.ty lhe elect1oo reg.strar of an~ pubhc ratry said political party or candidate intends to organize and hold tn the City or munlc"~tlty, and wltrun seven wot1tlng days thef'eattor submrt to the election regrstrar a statement of expenses tncurred &n connectiOI'I therewith {Sec. 88, B P. 881}

B. L11wful election propaganda. Read Sec. 82

C. Prohibfted eloctlon propaganda. Read Sec 85

1. In BadOy v. Comeloc. 35 SCRA 285, the JXohtbilloo agasnst certa1n forms of etecoon propaganda was uptleld as a valid exercise of the poflce power, •to prevent the perversion and prostuution of the electoral apparacus. and of the dental of due process of low".

a) But this evil does not obtatn ln a plebiscite, because en a plebiscite the electorate Is asked to vote for ~ ag..'l•nst cssues, not cancledates [Sanidad v Cotoolec. 181 SCRA 529).

2 In Chavezv. ComeJec. G R No. 1627n,August 31. 2004.1hoSopreme Court upheld~ validJty of rt-o Comelec resolutiOn that a !I propaganda materials, indudeng advertisements on pnnt, m radao or on televiSIOn .showmg the image or tpention'ng the name of a person, who sobsequent to the placemenl or display thereof becomes a candid.,te ror publiC office. be ammedeately removerl, otherw~se, this shall be presumed as pr~:mature camp;ugn,ng tn violation of Sec 80 of the Omn1bus Eledaon Code.

3. See Nar10nal Press Cluh 11. Comeloc, 207 SCRA t: Ad10ng v Comelec. 207 SCRA 712, Socta! Weather Stations v Comolec, G.R No 147571. May 5. 2001, dtSCUSsed tn Freedom of &press1on, Chaptor 6, CONSTfTUTjQNAL LAW

• f:hrt1 tlll~lHI

D. Prohibn.d Contriburrons. ~ead Sees. 95-97

E. UmitatJons on expenses; lawfo~l upend;wres. Read Sec:s 100-,02

1 Sec 13, RA 7166 provides lhat lor the 1992 s.ynchmruzerl PJe<:tKms, the aggre9ate amount that a candlda•e or regtS:ered polit1cal pmty may sl)end for electiOn campatgn Shall h~ as follows·

a) FOC' caodJdates· P10 for PreSident and Vtee President, and for other candidates P3 00 for e'llery voter currentty reg1stered 111 the cons 1tuency where he f11ed h1s certif1cate of candidaCy; Provided, that a candlda'e wi:hout nny pohbcal party and wllhou: support from any polrhcal p..~rty mey be allowed to spend PS 00 for every ·uc.h vote-r, and

b) For oohtql ~· PS 00 tor every voter current v reg•stered m me constituency or constituencies where 11 has offoal candrdates

F. S t• t•m•nt of contributions and expensu [Sec 14. R A 7166} Evf'..ry candiGate and treasurer of the pollhC.'ll pany shall, w1th1n 30 davs after the day ot the electiOn, file 10 dupltcate Wllh the offiCeS of the COMmi!:Sion, the full, true ond ttnmlzed statement of all contnbut10ns and expendrturcs tn conneaoo w1th the electiOn

1. No f)E:rson elected to any ot.:bhc otfoce shaH enter upofl the dut.es of his office until ~ has filed the statemer.t of conbibutiOns ana expend•tures t1ere1n requlfed. The same prohibition shall apply tf the pohtJca! party that nominated the wmnmg candidate fa1ls to file the statement requ•ted herein

2 8ccept candlddtes foe elcQ•ve baraogay offiCe, fadure lo file tho statements or report& 1n c:onnect10n w1th eJedcral contnbutions and expenditures as requited shall constJtute an odm nrstraliYe offense for whl:h the offenders shall be liable to pay an BdmtntslratiVe fine r::~ngmg from P~ .OOO to PJO,OOO in the d1scretion of the CommissJOO The fine shall be paid wTtt11o 30 days from rooe1pt or notiCe of such failure, otherwtse, it shan be enforceable by a WfJ1 of execution rssoed by the Commissbn against the properties of the offender. For the comm1sstan or a second or subsequent offense tho adm•n1strat1Ve f•oe shall range from P2.000 to PSO,OOO, Ill the d1scretion of the Cor;1m•ss10n In add.tiOn, t~ offender sha!l be subject to perpetual diSQuahfia!hon to hold ptJbhc office

.1) In Pilar " Comejec 245 SCRA 759 the Supreme Coun said that the requ1rement to file the statemeot covers even tho~ who Withdrew as candidates after haVIng f1ied the1r cert•ftCates. because Sec 14, R A 7166, dOes not mal<e <~ny dist•nctlOn

VJI. BOARD OF ELEC: ION INSPECTORS; WATCHERS

A. composition of th• Board of Election Inspectors (BEl): A chatrman. a member and :t pn 1 derk, who mus: be pobltc school teachers. A member must t>e of good~~ character and 1rrep~c.habte reputation, a registered voter ot the c 1ty or nun•cipal•ty. never been convk:ted of any e!ect1on offense or any othcf crtmo puniShable by more than 6 months lmpnSOflmcnt, Db~ to spcal:

and wnte Eng rsh of t~'.e local dial~

1 0Jsqualtficat1011 (a) Must not be related Wllhln the 41t1 ovil degree by consangum1ty or aff•mty to any membrJ of the BEl or to any candidate to be voted f()( lf'l tt.e polling pl&ee (b) Must not engage in any par1isan pohtteal

actlv1ty

a. Powers of the BEl: Conduct the voting :and counting of votes in the polhfl9 place. act as depuhes of tho COMELEC in supervision and control of the polling place; ma1nla•n o•der w1lhm the polling place and 1ts prem:ses to keep access ltlereto open and unobstructed and to enforce obed•ence to Its lawful OC'ders, and pe:1orm such other fu~ions as prcscnbed by the Code or

by the rules o' the Comelec

t Proceedmgs Shall be public and held only 10 the polling place although the counting of votes. nnd preparatiOn of the return may be done tn the neares: safe barangay or school butld1ng wlthin the muntcipahty by unanunous vole of the board and concurred In by a majonty of the wat~rs prl)scn!, if thero is imminent danger of violence, torronsm. d1sord~r or s•milar causes The BEl shall act through its Cha1rman, and shall decide wtlhout delay by maJority 'IIOte all queshOns whtch may ause in tne performance of 1ts

dUtiP.S

c. W.1tche~. f:ach candidate and pohtJCal party or coalition ~ political p;Jrtte~ duly reg1stered with the CommissiOn and field1ng can<fldates in the May 11, 19~ elecllons tncJuding thOse participating under the party-fist syst~ of representation, may appoint two watc."lers, to serve alternately, lo every ~ling place H')Wever. candidates lor Sar.ggoniang Pan1ataw1gan, Sanggunl3ng Panlungsoel a,d Sanggumang Sayan,. belonglflg to • e same bckPt cx sla!l! .inan c;ollecuve!v be enl1lled to c ne watcher Du~y accred•ted ollzens arms of tt\e CommiSSion shall be ent.!led lo appolnl a ~atcher Ill every polling place Other CIVIC, re g100s. protcss1oMI business, serv~ce. youtn and any other ~milar organ!Zat ons, v.tln pnor authority from t~ CommtSStOO, shall be £>nt.ll~d coHccw .. >Jy to ;tppOml one ,•.atchl'!r m eve~y polling place

()Vll l' £:.1 ~·,'f'.R POUT~V.W

£1Htmrt /.1k'J

1. Oual!flcsttOOs.: Qualified voter o1 the aty or mumopa!ity, of good reputation. never been convicted or any electJOn offense or any come, knows how to read and wnte English, Pll1pino, or any of ttl Pf9Vd 1ing local d•aleds, and ool related Within the 4 111 avU degree by consangUinity or affm•iy to any member of the BEl in the poH1ng place where he seelr..s appomtmcnt as watcher.

2 Rights Bnd cJuttes. Sta)' In the space reserved for them 1ns.ae ttle polling place, Witness aod •nfonn themselves ot tile proceedmgs of the BEl; take notes. photographs of prooeechngs; f.re protest ag nst any lrregutanty or vJOiabor. of law, be fumtshed w1th a certifiCate or tne number or votes cast fof eacn candldale, duty stgned and lhurnbmarttod bv the members of L.,e BEl

VIII. CASTING OF VOTES

A. Prucedur•. Read Sees 190-198. BP 881.

1. Profl8.mti(Jn of baffots for 1/Morate and disabled. An lll•teratc or d•Sabled votar may be essi&led In the preparntJon of his ballot by a reJ"tave withtn the 4 .. eMf degree b) cor.sanguJn ty or affir.cy; or, If he has none, by any pei'$Oil or Ills confidence Wf'O belongs to the same househotd, or by any member of the BEl, Provided, that no voter shaU be aUowed to vote 8.3 an IOiterate unless so tnchcat~ in has registration record; and ProYided. further, that In no case shall an aSSlstor as~1st more than three ltmes, except the members of the BEl

2. AuthorrticstJon of bal/ol tn every case. the chairman ot too boatd shaD, in the presence or the voter, atfbc hrs SIQnature at tho back of the ballot before ISSu•ng it to the voter. r-ll•lure to euthentJcate the bollol shall be noted 1n the Man Lites of Votrng and Counttng of Votes, and shall constitute ;~n election offense

a} n-ere Is nothing In the law that provides that a ballot which has not been authentiCated shan be deemed spunous The taw merely makes the Chairman of the GEl accountab4e for such an omiMIOI'l {Ubansn v. HRET G R. No 129783, December 22, 1997}. Thus. It was held ln Punzsfan v ComeJec, 289 SCRA 702. that the ballot is valid even if It 1s not signed at the back by 1t1e Chaarman of the BEl

3 Challenge of J/legal voter. Any voter or watcher may chaflenge any person offering to vote ror not being registered. for usrng the name of another, or for suffen~ from existing disQuahficc;tJon. A challenge may likewise be made on the ground that the cnaOenged person has received or ex~ to receiVe. paid, ofered or promised to ~y. contributed. offered Of' promised to contnbute money or anything of value as ~ratJOn for his vote or for the vote of another. made 01 received a promise to inftuenoe the giving or withholding of any such vote, or made a bet or is Interested cfrectly or indirectly in a bet which c1epends upon the results of the election. The challenged voter shall take a01 oatn LefOI'e the f3Et that he has not commtflcd any of the acts alleged In the chaHenge. •

a) The swom $late men: of the challenged voter may then be used as a ;:,as1s for subsequent prose<:uhon for perJury

IX. COUNTING OF VOTES

A. Procedure Read SPes 206·210 BP 881

1 Me'lllerofcounr.ng v,:,res(S•x: 25, R A 7166] In •ead ng thcindrvidua off1C1al ballots durll'lg tho cou.11trg, h cna~rman, pc-11 derk and the th1rd 'l.ember shall assume sucn posrhoos as to Jlf0\1100 the ~tchers and tnc m~1.1bers of the pubhc as may be convcmenlly cx:om~ted in the polling pl;tte. uotmpeded vtew or the ballot being read by the cttarnnan, of the blect100 retur,,t and the !ally boartj betng s~mullaneousty accomplished by the poll dcr1<: ano the lhird member respectively, Without touching any of these erection documenls. The table Shall be cleared of al unnea:ssary wntrng paraphernalia. Any vtala!M of this requwement Shall constitute an eled100 offense punls~ble under Sees. 263 and ;zs. of the Omnrbus ElecUon Code

E:; , Rules for ;,ppreciat1on of ballots Read Sec 211, BP 88 i

Some rut ~

a) lOOm scmtns A nume or surname tOCOfrec.:ly wrttten whtch WflE:n read, has a sound simalar to the name or surname o~ a candidoltc when OOfredly wntten shall be counted 10 Ius favor

b) When twoormorewords arewnltenon the same r.ne on the ballot all of wt'l ch are the st•rnamcs of CWO or more candida•es, the same shall not~ counted for any of them. unless one IS the surname of an meum bent who has served fOt at l.ast one yec.r 10 \vf"t,ch case 11 Shall ::>e counted in favor of the Ia Iter

c) When on ttle ballot IS wnttan a s.ngle word Y.h•ch ts the fnt name of a candidate end which IS at the same ome the StnlAn~ of h s cpponeot the VOle shall be counted tn favor of lhe tatter •

d) When two words are wnnen on the ballot. one of WhiCh ts the first name of lh., candidate and the otncr IS the surname of hiS opponent, the vole Shall not be counted fOf enher

e) Ballots whiCh coolatn prefi~es such as ·sr •• "Mr • 'Datu• ·Gmoo· 131c • shall bo valid '

f) The use of nte~na~s anc1 appeUahon of affectiOn and fnendsh•p '' accomoan•ed by lne ftrs t name or surname of ftlt> candid<!ta does not annui

S-11

such vote, except when tney were used as a means to ident•ry the voter, tn

Whlct' case, the who e baftot Is •nva id

g) If the c:andiClatcs 'JOled for exceed tM number of those to be dected. the ballot IS valid, but tne votes .shaU lie counted only In ravo• of :he candtdates Wtlose nalT.es .... -ere l1rstly written by 1 voter 'M'hin U e space provtded for saJd offiCe in tne ba lot u~ll th authoriZed number IS covered

2 Some rulmgs on appreaat10n of be/lots

a) AppreciatiOn of baUots 1s a functiOn of the BEl, not of the Boam ot canvassers (Sanchez v. Ccmelec. 153 SCRA 67}

b) Where the name ot the candidate rs not wntten in the prope1 space rn the ballol but is precoded by the name or the office for which he ts <' candidate the vote snail be constder"d -.~alld rot such candidate In appreoatJng a ballot, the obJeCt should be to ascertain and carry tnto cr.ect the lntenttan of the voter tf t can bo deterrmned WJth reasonable certa1nty Thus, the name or the cand date preceded by tM words "So. Barangay· should bo m!erpreted to rnoar. "Po. (or Punong) Barangay·. and should be counted for the candidate {Baubsts " Castro. 206 SCRA 305]. But where the name of the candidate is wntten se11en l1mes tn the ballot, It IS dear that the sarr.e 15 tntended to 1dentify the ballot, and thus th>! \IOte should be !nval dateo (Bautista v Castro, SUPfB 1

c) In Wlagmcia v Com11rct:, GR. No 168296, January 31, 2006. 1t was held tnal a d1S:•nct1on must be made between matts that we--e apparently caretessly or tnnooenlly made, whiCh dO not tnva!ida1e the ba!lot, and marks purposely placed thereon by the voter with a view to possible future ident:fteation, which •nvalidates tt In th1s case, the invalidated batlots are ma~ed With the WDf'ds "Jolo.er· (14 ballots). ·A~· (6 ballots), ·0ueen· (7 bat1ots), and "Kamatis" (7 ballots), an wntten tn the runber 7 slot of the list of Kagawad for Sangguotang Barangay, ana appeanrg only In ballots wheretn !.tie t'unong Batangay voted tor was pet1ttoncr. Clearly, the marks irldteate no ott.er 1ntenbon than &o identrfy the bal:ots.mdub,tably, tt:eso are mark eo ~lots and were property invai'"rdated

d) lnBauttsta v. Comt:/ec, G.R No 133840. November 13 r998, tho Supreme Cou1 upheld the use of separate talhes for votes considered stray (because of the pendency of a mot tOn let reconsideratiOn filed by t e c:ancftdate who v..a!; declared a nuLSarce c:an<ltdate) After the mobon fOf reconsidNation wc,s dented by the Comclec, the votes In the separate tally were allO'Ned to ~ creo,ted as par1 of the valid votes cast m favor of tne pet•ttoner

Oil: UN!= I P.EV1£WER IN POUTICJ.l. Ll.l.'o'

C. EltJCtfon Rewm. Tr.e BEl shall J)(epare the e!edtOtl retum SJmullaneoosly wrth the countng or the votes m the pollcng plac;c

1. In the elecbon for Pres,dent, Vtc~ p, esrdent, Senators. and Members ot ttle House nf Representati\ICS, and oart•es. organ•zattQrtS or ooa tL'Ons par:iopat1ng under tl'lt~ party-Its\ system. the rewms sha I be prepared tn seven copres. and distnbuted as follows

1"'- to csty or muniapal board of canvassers, 2"" • to Congress. d.reded to the Pres;de:~t of the Senate, J>4- to the Corrvniss100 on Bect100s; 4"' - to the domrnant m&JOnty party as determrned by the

Commrssaoo, 5.. - to ttl-! dominant mlnonty party as detenn~r'led by the

Commlssbl, &" · to 'tile cttrzen s arm RH'hnri7ed b~ the CommiSSIOn o concuct an

unoffiCial count: · r-" - depastted ins1de the compartment ol the ballot box ror vahd

ballots

2 In the electoo ot local offiCials

1" - to the oty or muncpal board or ca'rlvassers 2""' • to lt1e Comm1ssion on Electtons 3-c • t::l the provtncial board of canvassers 4" • to the dom.nant ma1onty party as determmed by the

ComrT\ISSIOn 5"' • "> the domtnanl mtnonty par1y as determmed by the

Commtssioo 6" to lhe otn:en's ann authOriZed by the CommisSIOn to conduct an

unofficial coont .,. • to be deposited inside the oompartmenl ot the ba!Jo( box tor valid

balolS.

D. Announcemenl of rhe result of rhe election. Upon the comolellon of the election returns, the cha•nnan of the BEl shall orally and publtc!yanno1mce the total number of \IOtes recerved rn l~re elecuon n ttw. poll·no place bj' each and every one of tt:e candidates -

E. BEl to issue Certif1cate of Votes to Watcl-ers fiEIIo •ssue C~•1•fi<".ate of V.:~tes to Watchers Thts certtftCAte tS issued upon reQUt.SI. Sec 16, R A 6646, reQuire~ that the Certificate of \'otes must be s.gned and lhurnbmarked by ear.n member of the BEl wtucn rssues the same

OUl ~ E I REVEV~~ lN f'OUlltAL.U.W

ilt'tfkJlt I..I1M '\ ~~----------------------------

1. The Certifteate of Votes IS evidence not only ot tampermg, alterntJOn, rals•fiC8tion or 8ny other anomaly 111 the preparatton of the elect•on returns, bUt also or the votes obtatned by the candidates [BlJiincJ.:mg v. Comeloc. 27 SCRA

567/

2 Howeve·,ln Garay~· Comcicc, 261 SCRA 222. Ule Supreme Court held !hal a Cert•ftea'e or Votes can neve1 be a valid bas.s for canvass: it can only be evidenoe to prove tampenng, ntteratson. fatslftcatiOn or any other anomal)' oomm~t!ed in tne electiOn returns concerned, when duly authenticated. A Certlfteate of Votes does not const,tute sufftOent eVIdence ot the true and geru1ne results of the etedlons, only electiOfl returns are. In like manner. neuher IS the tally board suffJOent evidence of the real results of the elect10n

I:JI"t'lltlll Lurr.

X. CANVASS AND PROCLAMATION

A. Canvassing by Provmcial, City, Dislrict and Mumcipal Board of C.Jnvassers Read Sees 28-29 RA 7166

ComooSJtion of the &lard of C~nves:rers

a Proy!OC&al l he prov,neiaJ e:echon supervtSOI or a lawyer 111 the regto~ offce of the Comelec, as cnaifmc.,,, the l)n)VInaal ftscal as va cha~~man , and the DtOVirlCial suveontenaent of schools as member In the event of non-avalilabihty, l1b!<e11ce d•~ualif.ca•ion or incapacrty, :;ubst-tute ll'l(;mbers are the followtng, '" the or~er ~ Provtnaal AuJ,:or, Regtstp_r or Deects. Clef~ Jf Cour1 nonunated by :hP E wecotrve JudgP., and any other avarlatlle appo,nbve Pf0v1noa1 offrc1a

_ b) ~ The City clec110n tegtstrar or a lawyer ot the Comelec, as · chatrman. the City fiSCal, as vtee c.narrman, and the Ctty supennto.!ndent of schools, as member Sobslltute merrbers are offiCtals rn the City cotresrx>n1rng to the substrtutes n the provmoot board ot canvassers

c) Municipal The elect1on reg1strar or a rt:presenratJve of the Comete<;, as chairman, the mun10pal treasurer, as vtee charrman, and the most sentor d•stnct school superv sor, or m his absence. a rA•nopal of tne school or tho elementary schoo, as member Substitute members are the Mun!Ctoal Admmtstrator. MuniCipal AssesS()(, Cler1< of Coo~ llOmlnated by the Ex~utive Judge. or any otner a·r.tllable c>PPQinhve muntCJ~I off oats

2 Proh1blted f'fllatiOilSIITp, Related wittM the 4., CIVIl degree by oonsnnguinlty or affll'lity ro any ot lhe candidates Whose votes will be canvassed by the Board, or to any member of the same Board

~· Prohil.itJon agains1 leallfnfJ stat100 During the period beganntng .eJection day unbl proclamatiOn of w.nntng candidates, no •nember of the Board shall be transferred, 8SS19ned Ot ~tailed outside of hts offtcial :;t.-.hon wtthout tne pnor authority of the Comelec

B . C~s •s Ba.t'd of Canvassers for election of President and Vic~ Pnts1dent /Sec 30 R.A 716GJ

1 Congress shall dctermme the autl'leniJClly and due e)(eculiOn of :11e certif•cates of canvass fOf President and VJC/!' Prcs1den: as accomph$hcd and transmrtted to rt by the local boards or canvassers, Ofl a shOWtng that (a)

Eadl cenfficate of can~ was executed, Signed and thumbmarkoo by the chawman and transmttted to Congress tyy them, (b) Each oertifteate of canvass conta•ns the names ol aU the ~ndidates for President and Vtee President and their correspondtng votes m words and Hl f19ures, and (c) There extSts no dr5aepancy tn ottler authentic copies cf tne certtfteates of canvass or d~repancy tn the votes of anv candidate in words and r.gures .n the sarne

cert1fi~te.

2 When the certJftC&te of can...ass. duty certified by tho board of canvassers of each pravtnce. dty or dtstrict. appears to be incomplete, the Senate President shall requtre the board <>f canvassers concerned to 113nsmll by personal delivery. the election returns from polhng places that were not iocluded in the certJf.cate of canvass and supporting statements.

3 ' When 1t appears that any certJfteate of canvass or supporting statement or votes by precinct bears erasures or alterations Whtch rnay cast doubt as to the veracrty al the number of votes stated theretn and may ailed the result ot lhe election, upon request of the presidential or Vl08 presidential candidate concerned or tws party, Congress shall, for the sole purpose of verrfy1ng th~ dctual number of votes cast fot President and VIOl: President, count the votes as they appear In the cop!es of the electiOn returns subm1t1ed to ·at .

4_ Cases

a) Sec. 18.5 of R A 9189 (The Overseas Absentee Vobng Act of 2003), insofar as it grants sweep•ng authonty to the CommissiOn on Etcctions to proclatm al winning candidates, IS unconstttut~al as tt ts repugna.nt to Sec 4, M VII of the Constttut10n, w"hich vests tn Congress the authority to prodatm the wmneng PreSJdent.a18nd V.oe-Presldent.al candidates {Malla/irltal

V. Comelec, supra J

b) In Ruy Elias 1 ?fJeZ v. Senate of the PhillpPines. supra .. tt was held that Congress may vahdly delegate the prehmmary detennmation of the euthentK:rtt and due execution of the certrf.cates of canvass to a Joint Congressional ComrruHee constituted under the Rules adopted by the Joint

Sessron of Congress

c) In P1mentf'l Jr v .Joml Committee of Congre55 to Canva,ss the Votes Cast for President end Vice Prosider"~t, suprn , the Supreme Court held th31 even after Congress flad aclfOUrned rts regular session, tt may wnttnue to pertorm the constrtuttOOat dutv of canvassinQ the preskienlial and \nee'­presroon•~al eltct•on results w.thout need ot any call for a spcoal sessl()(l by the ?resident

01. TIIN I nE:VIEWER I' POLfTIC"l LAW

C. GOMELEC en bane: .s Natfom•l BCHJrd of ~nvusers for Semltorlat EJections [Sec 30. RA 7166]

1 Pursuanl to Sec. 30. R A 7166 ltlo flO\'>'l!r to determ no lhe auU.enttcily and due execution of tt".e Certlrlcates or Canva s ICOCs) for Senators exdus1vely rests tn the Comelec. as NatiOnal Board of Cam-assers, not oo the proVJnt:~al board of canvassers. Thus the Spccml Provmccnl Board or Canvassers (SPBOC) vahdly denied the repeateo mot100s of P•mente 10 questiOn the Bedol Provmoal Board of Canvasser,:; and the Municioal Board of Canvassers dunng ts proceedangs, because allov.1ng the same would os ullra VlteS Further~, " would be tantamount to al'owing a p(&-prodamat.on conleSt WhiCh IS prohibfted by Sec. 15 R A. 7166 {Prmentol Ill .., Comelec G R No. 178413, March 13, 2008}. .

D. Duty of tiN' Board of Canvusers. A canva:.sing board performs a purely mtt"IISlenal tunct100, ·th.11 of compilrng and add ng the re.wtts as they appear rn the re•urn:i tlansmltted 10 •I {Gwao v Comolec, 137 SCRA 366]

The Comelec shall have d•red CQntfol and supervtSton over the board o1 canvassers

2 Dunng tile canlfass, the Board ot Canvassers prepares lhe Statement of Votes, WhiCh is tabulation per preonct of the votes c-blained by the candidates as rellected 1n the etect1on returns. 1 as the St?tement or Votes which forms the basls of the Cerufrcate of Canvass and or IM prodamat!On

a) In Cas/romayor v Comelec, 250 SCRA 298, oft•~• ttl<> Muruopal Board of Canvassers had prodaimed the pchltoner as the 8"' Wlllntng candidate for member of me Sanggumang Bayan of Cahnog, Iloilo, on the strength or an erroneous 18bolatJon of votes, the Board of Canvassers dtSCOvered thst it should have been Demonto, not the pelrtJoner, who should halfe been proclaimed, and thus post-haste faxed a ~Y of the CtVred tabuiatlon to the Comelec­The Cometec then issued a resolution d!MCtlng the Board of Canvassers to ~vene and annul the PfOdamation of the petlboner, and to Pfodaim the WIOtllflg candidate On petrtJoners daim that no no6ce nor opportunity to be heard was grven to him by the Come:ec the Supreme Court said that, 1n ordct to Obviate the neoess•ty or remaOd•ng the case to the Comeft:c (Of' further proceecf•ngs. the Board or Canva~rs shovld proceed to hear tt'le r>cl'l•oners obtecttOnS and, only 1f warranted, should 11 then aMul the prodamabon of the pellh.:>ner

E. N.ture of Proceedings. Canvass procooo•ngs are 3dmtn;.o;trab.re <tnrf summary m nati.J(e

~7

1 A map ty 110te of all the members of the board sMII De necessotY to render a decistcn/Sec 225, B P. 881]

2 Whete • hns been duly determined by lhe Come'ec that actual voting and lectJOn by 11e reg•stered voters had taken plaoo, the ole elton returns cannol be diSregarded and exduded - wrth lhe con spond ng d senfranctusement of voters - but mus be accorded pnma facse status as bona fide reports of the result of the ~ollng 'Of canvassing and proclamation purposes x x x The summury nature of the proceedlllgs reQu~ that the wnt~en oojecoons (to the retums} be led only dunng lh•s stage, because tt tS only at tillS t.me that ltle 1ndUS1011 or exdus10n of any return 1s '" ISSUe, mere allegations or duress, r.oercion, fraud cannot lnvalt<1ate election returns wM:h are otherwise clean on lhett face See Grand Alliance for Democracy v Comelec. 1 SO SCRA 66S; Gwao v Comelec. supra ..

3 Any r~tstered polittcal party, 00<1htion or parties. through their

rep.'escntat•ves. and any can<hdalo has the nght to be present and to c:oun:'el du<Jng the can .. ass of electiOn ~tums. They snan havo the nght to eltamlne U1e returns berng canvassed WithOUt toucl'\•ng them to make their Qbo:;ervabons theteon, and file ttielf challenges n acc.ordance With IM rules and regu!al!Ons of the Comelec{Sec 25, R.A. 6646}

4 It shaU be unlawful for any officer or member of the AFP, tncludtng the National PofiCC, or any peace offiCer or any armed or unarmed persons oeJongulQ to WI extra·leg<tl police agency, spec:al roroes, reactJon foroes. st•ike foroes. home defense forces, barangay self~feose uMs. etc to enter the room where tne can\lassmg or the cledtOO returns are held, and Wlthm a ra..1tus of 50 mEters from such roorn (Sec 232. B P 881/.

5 , The Comelec may order the annulment of the Certihcale of Canvass wt1ich it round to be tampered after examm.ng the copies of the election returns of the Municipal Judge and the ComeJec - no: the COfJY or the Municipol Board of Canvassers - because al the copies of the election returns are orig•nal oopes anliough the copy of the Muneapal Board of CanvassetS IS the ong~t.al copy Sec 15, RA 7166. doeS no( specrty that the Comelec shall use the copy cf the electtOO retum of the Mumopal Board of Canvassers 10

correcting a mantfest error [Maslura "· Comclec, 285 SCRA 493}

F. Proclamauon. After the canvass of elechon returns, '" the absence ol a perfec1ed ap;>eal to the Cop;el~c. t~ Bomd of Canvassers shalt proclaim the w1nnang CWldtdates

1 11 •S mw settled that an lncom~lt'! canvass ol votes •s 1Uegat and cannot be mace the nas•s of a proclamatiOn A canvass cannot re refleaNe

I:Irrtum~J

of the true vote of the electorate urness all returns are considered and none is omitted When tt'e mumop<JI board of ~nva~s. 1nlh•s ca~e. disregarded the riVe election returns, 11 "' effect disenfranchiSed the voters Of IM e:w:cluded precincts The fact tt.al ::t ca'ldida:e 1 ~a ly proda~mca has assumed offtGa i!. not a bar to the t>.(erose by the Comelec of the authonty to annul any canvas:; and proclamatiOn Illegally made It IS true !hat after prodamat10n, the remedy of a party aggriel'ed tn an electiOn an elecliM pro:esl But th1s is on tne assumption that there has been a valid prodamabOn Wnere a prcdamation 1$

null and void, the proclauneo candidates assumption of otfce cannot deprrve the Comelec of the power to declare suctt a proctamahon s nuhlty {Utto " Comelec, GR. No. 15011 r, January 31 , 2002].

2. In 38terma v Come~Pc. 205 SCRA 1, wheri! what was filed was a petitiOn to restrain lhe canvass and proolamauon, or to s~peod the P.ffects o1 an~ pruclamalion, rt was hel<! that ~petitiOn was not the appeal refened to In Sec 245 whiCh Will ooeratc. to bar the Provmoal BoarC' of Cenv;,ssers from mak1ng any prodamateon Wl.ho-Jt aut!"'Irity fro[Ott'e Comelec

3 Pehttooerl> . m.:mbers of the Boa1 d of Canvassers, who proclatmed as the 8" wmnmg candidate one Who did not Obtatn th.! 8" ntghest n'Jmber or votes may be Ctlr'IW18ly Pf'OSeculed for V\Oiahon of Sec n 1 (fallur~ to proclaim the VY.nnlng eandldate) (AguJOtas ~ Coun of Appesls 261 SCRA 171

4. No taw provides for a reglementary penod Mthin Nh1dl to file a retitiOfl for annulment or eJection if thert" ~~. as yet. no prodamat•on (Loong v. Comelec, 257 SCRA 1}.

XI. PRE-PROCLAMAnON CONTROVERSY

A. Defined. Apre-proctamation controversy refers to any question pP,rtn ning to or affcc11ng the proceedlllQS of the board or canvassers wh1ch m~y be ratsed by any candidate or by any regiStered pohhcal party or ooahtJon or pofitJcal parties before the board or dtrectly wtth tne Comelec, or anv matter r.used under Sectton"' 233, 234. 235 and 236 tn relation 10 the preparation, transnussion, recetpt custody and apprecaahon of the electiOn returns fSe~ 241, B.P. 881}. Tho ms!ltut10n of too pre·proclamatiOn cointroversy was mtended to pre,entthe nefarious practice known as •grab-lhe·l)(ocJamation,

proloog-tJ\e.pro•est •

1. No pre-proclamation cases in eleclion of natiOnal offiaals [Sec. 15, R.A 7166} f<Y purpose~ of the elections for President. V.ce-President. Senator and Member of the House of Representatives, no pre-proclamatiOn cases shall be ,<lllowed on mattn~ relat:"!4 to the prcJ)8ration, transmtt.ston, receipt, custody and appr~tlon of the election returns or the certifiCates or canvass, as the case may be However, this doel'i ~ot preclude the author1ty of the appropt iatc canva!l.sang body motu prop10 or upon wrttten compla10t of an interested person to correct mao, fest errors in the cerlifqte of canvass or e.ectton returns before 111. Ouest•ons afTect•ng the compoSition_or proceedings ot the board of can·tassers may bo tmtiated •n the bo::~rd or darectly with the

Comm1ssion

a) Parttes a aversely affected by a ruhng CJI the board of canvassers on questiOnS a~ecting the oompos100n Of proceedings of the board may appeal tile maller to the Commtssion w1thin three (3) days from a ruling thereon The Comrmsston Sh<'ll summanly decide the case w1th1n five (5) days from the iltng thereof fSec. 1g. R.A. 7166/ In this case, therefore, the Comelec rray sun entertain a pre-proclamatiOn oootrovcrsy InvolVing the Illegal composition or proceedmgs of the Board of Canvassers {lim v Comelec/

b) Alartlfest errors Likewise, the Comelec may entertain petmons for the oorrect•cn of ·man rest errOfS" in the CertifiCate of canvass or in the eicct10n returns But to be ·mantfesl", the errors must appear on the race of the Certificates of Canvass or eledJon returns sought to be corrected. and object1ons thereto must have been made before the Board of Canvassers and speetfically noted m the mtnutes of their reS{lecttvc proceedtngs [Chavez v Comoloc, 217 SCRA 315]. A ·mani fest efl'or·ls one thal•s VISible to the eye or Obv.ous to the understandlllg lhnl whtch 1s ~n. palpable, Incontrovertible, ne~tng no evicenc~ to make 1t more clem {O'Hara\' Comelec G.R Nos. 148!14 r-12. Matcn 12. 20021

r) A petltlOn tCK correctloO of errors 1n the Centfteale or Canvass may be filed at any ttme befOI'e proclamation [&nee v. Comeii)C, 242 SCRA 273/ However. m Tol18s v Comelec, 270 SCRA 583. tl was held lhat nllhougl'l the orov•s10n applies ro a pre-prodamahon controversy 'here is noth••"l9 to pre~tent tiS appl calion to ca:>es n which the valtdlty of the proclamation is rn questiOn. Stncf! the Statement ol Votes rs !he basis of the Cert•ficate of Canvass ·end of the ~roclamatiOn, any error m tfle Statement affects the vahd•tl( or the pr~mat10n. Thus, even 1f the pebhoner had already been proclaimed, hiS prodall'ation is void, and the Comelec has the pov..oer to annul the same

n) CorrectiOns should be made by 1nserttng the Cllnections m the Statement of Votrs or by preparing a new Sfatemenc of Votes mcrnporating the correctiOns (Ram•rez v Come/eC. 270 SCRA 590]

2. Pre-proc/amaiiOil case dtfferent from on action tor annulment of election results OF c1eclarotmn of fat/uro of eJectiOns 1,., Ab,1ya v Comeiec. G.R. No. 145007-08, .January 28, 2003. the St.lpreme Court had occasion ro re1temte the dtstinction, as eartier PfOI"'C>Unced tn Loong " c..;.omolec. .supra., vrz. Whtle the Comelec tS reslncted in pre--proctama'IOfl cases lo an examlflation or lhe eledion rotums on lhetr face and is Wllhoul junsdrctwn to go beyond or behind them and Investigate eleC-10n trrequlant~es, 1n cases of actiOI\S f(>r aonulmer.l of electiOn results or decJaraoon of fa•lure of electiOns. the Comelec may conduct technical examinallon ol election documents and compare and analyze \iOters' s.gnatures and fmgerprints 1n order to determ•nP. whether or not the et~cbons had mdeea beP.n rroo. honest ana dean

a) But thts prrnciple thai, n pre-prOllama!loo cases, the Cornelec is Wtthout JUrisdtdJon to go beyond or beh•nd the e!ectll'lrl returns and Investigate ~ tTTegutarities presupposes that the returns "appear to be authenhc and dUy acx:ompfished on thetr face· Whefe. as In thiS case, mere Is a pnma fade shoWing ttJat the retum IS not genurne. several entries hawlg been om:ltted 1n

the questioned election rerum, the pnndple ooes not apply The~ ts not pc:Merles$ to detennme rf there IS basts ,., the exdus1011 of lhe questioned e1ec1100 return {Lee v Comelec. G.R. No. 157004, Juty 4 ?003]. Thus. tn Jarnallo' Comelec. G.R No. 174551, March 7, 2007, the Supreme Court satd that the Comelec did not have to Jook at other e~tldence to coodudo thai the et.ectJon returns were manufactureJ. because the defects were apparent on the face of the eledion retums themselves Eartier, •n Chu v Comelec, 3n Phil 509 (1999). 11 was already rntrmated that a pre-proclamation case as me proper remedy If tho defects and irrcgolanties are apparent from a physical 1nspect100 or the elect;on retums

b) But where the resolutiOn of the 1ssues ra1sed wou'd requ•re the Comelec to ·p.erce the verr of eJecttOn retums that appear puma facre regular,

551

the remedy Is a regular elect lOll protest {Seoas:~an v Comelec, 327 SCRA 4otJ

(2000)/.

B. Comelec Junsdicrion. The Comelcc has cxclust.,e ,;unsd•ctJon over pro­

prodamati.,n cases

1. Whtle tne Comelec has me~ely appellate junsdiction over erectton contests involvng munopal offices, rt cannot be depnved or tts exclusiVe Junsd•ction over pr~:~-pux:lamatton contests Indeed, tl IS lmmalenal 1f some of the groonds adduced are grounds for an election contest rather than for a pre-prodamation controversy [Otforo v. Comelec. 103 SCRA 7 41 J.

C. Issues whiCh m~ty be ntscd (Sec 243, B P. 881}.

1. Illegal composmon or proceedmgs ot 1118 Board of Canvassers.

a; Under Comelec rulf:!s, If the pehucn mvolves the •lleg;;l composttlon of tne Board of Canvassers. 11 must be filed 1mmed•alely when the Board beg1ns to act as such or at the t1me of the appOintment or lhc member whose capacity as such 1s obJected to [Vtllamor v. Comelec. G R. No. 169865, Ju'y 1. 2006}

b) By parttapattng 1n the proceedmgs, the petitioner IS deemed to h<Jve acqUiesced in the composrtJon of the Board o f Canvassers. A petitiOn oas~ on Illegal composrtron of the board ot can ... a~sers should be filed tmmed•.ttely wt>en the Boafd begins to act. A petillon filed five days after Pf'QC'.lamalion is filed out of bme (Laodeno v Com&fec, 276 SCRA 705].

2. The ca..,vassed election returns are incomplete, contain mafenal Clefer.ts m the s1me retums or In other authent1c copies thereof, as mentioned rn Sees 233. 234, 235 end 236 of this Code

a) Sec 233: When the electiOn returns are delayed. lost or destroyed, the Board may ~ any of the authentic- copies of said election retums or a ce1if.ed copy issued by the Corr:elec. ~- Notw•thstand•ng the fact that not all the returns ha11e been rece.ved. the Board may termtnale the canvass and proclaim the Winners on !he bas•s of available returns f the missing ele<"tion returns Will not affect the results or the election )

b) Ses:. 234. If some requ•!>iles . m form or data, had been omitted •n lhe eleCtron retums, the Board sha~ call 101 all the members of the BEl lo complete or c.;.orrect the return [Note For thts purpose, the Boaru may even order the openhg of the ballot box and recount lht> votes ]

OUTLtt.C RC\IIEWI:.Fi.IN f>Ol l'fiC-'1..~

1) 1t1s error for the Comcrec to e,)rdt.Jde from the canvass electJOn returns where the defect In the return refers only to some moomplete data Inasmuch as Sec 23-1. B P 881. should then be applied (Pnloroy v Comul~c. 249 SCRA 44(JJ

c) Sec 235. When the electiOn returns subrnotted to the Board appear to be laf'll)er9d w.th, altered or falsr ied aft8f they have of the hands of lt.e BEl. Of' otherwiSe not authenttc, or JXeoared under duress, force. inhmidaltc;n, etc., the Board shall use tne other cop~es of said returns •- x x If the other copies are likew~5e tampered Wllh, etc., the Board or any candidate etfectee shall bring the matter to the Comelec x ~ x The Corr.elec. after gr~~ng nobce to all candidates concemed, and arter berng sahsfied that the 1nteg.•ty o! the ballot box had been dl,jy preseNed, shall Ofder the openmg ol ttl! ballot bo.J. and order the BEl :o recount the votes of the ca:ldidates affect~. and to prepare a now eiectK>n retum

d ) Sec 236 Where there !XIsts d:screJX~llCies •n other authentiC cop~es or the retums or drscrepanoes "' the votes ot any candidate tn wordS and fegures m the same rc:um. ano til~ d•fferP.oce affects me results of the elcchon, ttto Cometec, upon motton ol thP Board of Canvassers ~hall oroP.r the openln' of lhe ballot bo.c to recount !he votes cast !Of 11 e pufpOr.e of determning the true result ot tr.e count of votes of •he candld<~IP-s oon~'fned.

I) Wnerc the Ccrllf~Cate of llotes shows tampP.t tng, alteratiOn and falsificatiOn or any other anomaly an the preparatiOn of the olcc!JCn re:urn, the ComE;Iec should order a recoont of the 'IOtes cast 1n tne preanct, after determining that the ballot bOx has not been tampered wtlh The fatlure of lhe Comelec to do so, after exeludtng lhe tetum, w. I result"' the d1sentrandusement of the voters 1n the partJCUiar preanct. Neither can the Certificate of Votes be used for the canVfKS because it was ~ only by the Oumman (Parorav v. Comctec. 249 SCRA 440)

(NOTE: While the duty of the Board of canvassetS ts m1n1stenc;t and, as a general ruJe. 11 may not tr\Qlllfe into rssues beyond tt\e el~ction reiurn, tt•e Sltuauons contemplated 1n Sees. 234, 235 ano 236 a'low the Board ct Canvassef'S to order the opening of tho ballot box and recount t:\e votes or the candiOates affected.)

3 The electiOn retums were pmpored undPr duress. thTI)81.s coerciOn, or mlimidBIIO'l, or they 111c obwously manufocturod or not aulhOnt•C

a) See Lag•1!'Tibay v Comefec. 76 SCRA 175 on what an otw1ously manufaoure<;~ rt>turn 1s U v.as "' this case that the SuprPme Court enunc1ated tne doclnne of statJslle.11 tmprobBbilltiCS

.i53

b) In pro-proctamahon contests. the Board of Canvassers and the Come&ee llfC noa requirec to look beyond or behind tho election returns which are, on the11 lace, regular ;Jfld authentiC. In lh1s case, pctibol"er fa1lcd to jusbfy tho exclusion of the challef19ed retw ns on the ground ol duress, tnlirTlldalron, threat or ooerQOO. rnasmur.h as he otl'ered only self·servmg affidavits, Absent any evidence appeanog oo the face of the retums lt\al may are indeed spurious, manuractured llr tampered wtth. the election irregutanttes crted by tho petitioner, wtllch would recx.ure evidence a/,u:Jde, cannot be ra1sed in a pre-prodamation cootrolt'E!fSy {Dtmayas, Jr. v Comelec, G.R No. 141952·53. Apn/20, 2001}.

4. When substllut6 or fraudulem returns in ronuoWJrled polimg plaoes were canvassed, the reSJJfrs of which rrwtenafly affected the standmg of the uggn'eved candidate or candlliates

D. Procedure. Re;,d Sees, 244-245, B P 8C1, SeQ. 17-22. RA 7166

1. Commencement of pte-proclamatiOn controversy [5ec. 17, R A. 7166). Ouest1ons atl'ectmg the compos11lon or pmceedmgs of the board of canvassers may be 1nibatcd d~redly Wllh the Commiss•on However, matters raised under Scchons 233, 234, 235 and 236 ot the OmntbtJs Elec*ion Code in rnlat.ton to the preparatiOn, transmission, reroipt, custtJdy and appreciation of the election retums, and the centfJCates of canvass shall be brought in the first instance before the board of canvassers only

2. SunliTI8/y dlstJOSIIiOn of pro-proclamauon controverSies(~. 18. R.A. 7166) All p~hon cootroversu)s on election returns or cert•f!C<'tes of canvass shall, on the basis of the reoords and evidence elevated to t by the board of canvassers. be disposed or summanly by the Commission within 7 days from re<:eot lher8of. Its decision shan be executory after the lapse or 7 days from rece1pl by the los1ng party.

., ., Dtsposit!OIJ of contested election retums (Sec. 20. R.A. 7160)

a) An) candidate, pot/t1ca! party or coahllon of political parties contestmg the incluSIOn Of exclusion in the canvass ol any election returns on any of the groundS 8\.lthonzed under the Omrubus ElectiOn Code shall suhmtt the1r oral ObJ~IOns to the ch::t1nnan of I he board of canvassers at the lime the ouestroned return 1s presented fOf •ndusion in the canvass Such objection shall oo recorded tn the rT'Jnutes ot thP. canvass.

o) Upoo rccetpt or any such objection, the board of canvassers sh:JII 811lomatally defer tho canvass of the contested returns and sha11 proceed to canor,ss the r~Jtums wtt ch me n<ll contestee by any party

c) Stmuttaf'leous w1th the oral objocllon, the objecting party shall ' also enter Ius ob;ec:tlon '" the form for v.nttcn ObJCChons to be prcscrfbed by • lh6 Commsslon W1thtn 24 hours from and after the pr scntnt10" or suet& an obJCGttCn, the objeCting party shall submit the evtOeOGe "'support ot the Ob!cchoo, wh1ch Shall he artached to the rorm for, wntten c.~ct10ns. Wtth~;lthc same period of 24 hours after presentation of the obJectiOn an,. pany may fie a wntten and venfi .11 oppo5•tioo lo the obf~ction 1n the form also to be pr8$C11bed by the ComrntSSIOfl , at~chmg thereto supponlf''O evfdence If any The board shall not entefta•n any obJection or opoos1hon untoss reduced ro writ1og :n the prescnbed forms The elfidence attached to tho objed•ons or oppoSttJoo, sobm•Ued by the oarues, shall be •rnroodl3tely and lonnalfy admtlted mto the records of the board by the Chatrman aH1x1ng his S'S}nature at the back of each and every J)4{;e thereof.

d) Upon recetpt of the evidence, the bOard shalllalce up the contested retums, consider the wrrtten oh,eclions thereto and oppoSl'JOI'l. tf any. and summanly and '"vnedtately rule thereon. The board shall enter rts ruling on the Df'escnbed form and authentiCate the same by the s1gnatures of 1ts members

o) Any party adversely affected by tt-e ruhng of toe board :sha I 1mmed1ately ;"~form the bOard If ne lntellds to appeal sad ruling The board .shall enter satd mformation in the mmu!es of the canvass. set aside the returns

nd proceed to consider the other retum~

I) Aner all the uncontes!ad returns Mve been canvassed and the contested retums ruled upon by I!, the board shall suspend ltle canvuss. V/itnln 48 hNrs therefrom. any party adversely atreded by the ruhng may file w•lh lhe board a wntten and venfiE!d nottee of appeal, and within an unextend•ble period of 5 daY$ thereafter. an appeal taken to the Comm1ss10n

•) In Castromayor v Comelec, 250 SCRA 298, •I was held :hat a proctamaoon based on incompl~::le retoms 1s void Slmaarty, In Jamrl v ComPJec, G.R No 123648, December 15, 1997, twas ruled that where there

• IS yet no ~te canvass, there cao be no valtd prodamahon

g) lmmed1atety upon rcoeiJ)t of the nohce ol appeal. the board shall make an appropnate report to the ComtntSSIOfl, c!evahng therewith the oomplete records and evidence subm1t1ed n the canvass, and fUmtShlt'IQ the par.•es wnh cop.es of the report

h) On tf\e baSts of l'le reooros and eVIC!Colce elevated to 11 by the board. the CommtSsion shall de~ surnmanly the appeal w•lhio 7 days :rom the rr<:eiC)I of saao r~d~ and P.VtdE'!lce Any appe<41 brought before !he

.ss:s

CommtSsaoo on the ruhng of too board, Without the ocoompt!shed forms and lhe OVICience aopended lhcreto, !'ihall be sumrnarity d•smJSSed The deCISIOn of the Comr111ss:0n shall be oxecutOfY after U\e laps" of 7 dnys from recetpt

thereof by the bStng party

1) The board of canvassers shall not prodaim any candidate a~ winner un~ authonzcd b~· the Commt£Slon aner lhft latter has ruled on the objeatOns brought to h on appe;JI by the lostng pany Any proclamation made tn violation hereof shall be vOid aD 'ntt/0 unless the cootestcd retums v.ilf not adversely affect the results of the elect1on

4 ParMI proclamatiOn /Sec 21, R.A 71fw/ Notw•ltlstand•ng the pendency of an,. pre-proclamnboo controversy. the CommissJon may summanly order the prodamation of other ~N•oning c.'lnd!dates whose election w1ll not be affected by the outcome of tne controversy.

~ Tne procedure prescnbed above 1S mandatory, non-c.omphance v.1th any of u~a steps is fata! to the pre-proclnmatioo petttlon.J

D. Cases.

1 ~an<:Mz v Comelec, 153 SCRA 67. On the basic tssoe of wheU1er Sanchez' petJIIOn foe' recount and/or re-appreoatJon of ballots may be considt~red a p-e·prodamation oontroversy, the Supreme Court said NO, ror ttm follOWing reasons

a) An election retum IS • ncomplete~ ~f there is an 011\lSSIOn 10 the eiP.cbon return of the name of any candidate and/or his corresponding votes. cr 10 case the number of votes for a canchdate ha.1 been omttted. Here. the election returm ore complete and &nd.cate the name of Sanchez as welles the

• numbe.· of votes counted and C!Jipreoated tn hiS favor by the BEl. x x x Errors II\ appceoatton of bnllots by~ BEl are proper subject for an eledton protest and not for a pre-prodamahon contest.

b) The appreoahon of ballots IS not pan of the proceed1nqs of !Pe Board of Canva.,;se~; 11 is pertormed by the BEl at lhe precinct level Thts is retteraled in Ct:.ave;. v. Cometec. supra

c) The enumerat100 of the ISSUes wtlich may be r31Sed tn a pre­proclamation controversy under Sec 243, BP 881. 1s resmctrve and exclustve. The complete elccbon returns wtlosc authentJcrty •S not tn Question must be prima fa~ coos•dcred vahd for the purpose of catW::ISS ond pi"'Cbm:lltOO

OUR Nf: J PE\'ltwt: R r>Oi ITlC.AL.lAW

d) To &Kpand the tssues beyond !hose enumerated In Sec. 243 and allow recount or re-appreoahon where a daun of misdedantbon of stray votes 1& made wou1>1 open lhe floodgates to such da~~ns Jnd paralyze Mnvass and proclam.lhon proceedings, given the propen51:y of the lose-r 10 demAnd a recoun1 The policy of the law Is that a pre-proclamation controversy should be summanly deCided.

e) Thf'! grOU'ld for recount relied uoon by Sanchez is d early not among the ISSUeS lhat may be ra•SC<I 1n a pre-proclamatiOn con!ro\lersy H•s all&gahoo of nvalidabon of ·sanchez" W>tes 1ntended ror rum bears oo retato()ll to the corredness and authentiCity of the electiOn returns c:tnvassed

2 . In Pstoray v Cometec. 279 SCRA 470, 1t was held that where the obf6dions 110 the indusion of the election returns are directed pnmanty at the ballots reflected '"the returns. the issue in~ves appreaabon of ballots an<! cannot be raised in a pre.proclamaliOn controversy

J In Balindong v Cometec, 260 SCRA 494, and 11"1 Mstalam v ComeJec. 271 SCRA 733, lhe Supreme Court satd that the te<:hnJCal examrnaoon of ttle s19natures aod thumb marks of voters runs counler to the neturc artd 5cope of a pre-prodamat10n contest; the remedy •~ to rl.'l•se these •ssues m nn 'lledloo protest.

4. In Alfonso v Cometec. G R No 107847. June 2. 1994, ~fter the Ccvne1ec n~ rule<3 that the votes fOf Pedro ~onso should not be etedtted to pebtJonef Irma Alfonso (wt.o substituted for her ratner, Pedro, be<:aUSI! the tatter died on lhe e~~e of thd e~cllon). the C~ec ordered the C1ty Board of Canvassers to re-canvass the etect10n retuMs, w.thout open n~ the ballot boxes. and prodaun lhe wmmng cand,oates On the denial by the Comelec of petitiOner's request that the ballot bo)fes be opened and tfM> votes ccu'lted, ltle Supreme Court hefd that the Come lee did not commit grave abuSIJ or dtSCrotJOn, because t~ prayer b re-opening o1 ballot t''llCes IS not a proper tSSoe tn a pm­proclamatjon controversy, but shoold be tnre-;hed out in an election <.ontest.

5 VtMaroya v. Comelec, t 55 SCRA 633 In a pre-prodamatiOC'l c.Jntest, the Comelec may order the oorrecllon of a clerical error 1n !he Statement of votes (prepared by the Board of Canvassers to c:orrespond tc, the figures renee-ted tn the election returns - P.11en d the canoidate/repre'>entatr/e fa1Jet.l to file the ltmety protest dunng the ~nvaSS•f'\9 as tho error tn lhe Statement of Votes was not apparent on l:s face

6 Ouremdes v Comelec. 178 SCRA 746 The fallcre to object to lhe Statement or Votes before the Board of CanvassP.rs 11oes not conslllu!P- a bar

10 rats.ng the iSSUe for the flf'St time before the ComefeG, the taw IS Silent as to~ they may be raiSed. ThP. Statement of Votes suppof1s the cerbficate of canvass and shall be the bi'SIS of proc!amatton CooseqoenUy, any error '" the Statement of Votes would affect the prodamat100 made on the baSis lhereol x x x All electtOO contest presupposes a vabd prodamallon When lhe prodamation 1S null and void, tt is no proctamauon at all. and the assumphon of offtee by the proclatmed r..andrdate cannot der,M• lhe Comelec of the power 10 deClare suet\ nuUtty n an apPfOpnate pre-pr('Clnmatlon controversy

a) lhus. In Castromayor ~ Comalec. 250 SCRA 298. the SuJ)(eme Court said tha1 any party d•ssatisfied wtth tne rultng ol the Board of canvassers (after rt was ordered by the Comelec to reconvene and annul the proclamabOO of the petrtJoner} shall have the nght lO appeal to the Comelec. Since the Statement of Votes which was to be corrected by the Board rorms the baSIS ot the Ceftifte'3te of Canvass and the proclamatJOO, petitiOner begs tne Quest.IOO by saying that :h s is not a pre· proclamation controversy and the procedure for pro-pcodamation coottovers·es cannot be applied to the correctiOn In the oomputat10n of the total number of votes obtained by the candtdates in the

Statement of Votes

b) likewise, in Mentang v C.omelec. GR. No. 110347, F9brtJary 4, 1994. the Court declared that1t had already ru1od that the filing of a pet1ti0n to annul a proclamation suspends the running of the 10-day period wtthln wtlidl to file an eJectoo contest, provided that Utere are allegations which, when proved, wtn render tr,e proclamation null a~ void Such petrtiOn may be filed dlfecdy With the Comelec even as a J)fe-;l«)damahon controversy, provided it tS done within ten days after proclamatiOn (NOTE· A petruon to correct manrfest errtlfS must be filed wtthin frve days from proclamation, if filed directly with the Corr.ele<: while there does not $8001 to be a fixed bme frame wlthm wnich to file a petrtion to annul a proctamatJOn, lhe same betng hmtted only by the standard of reasonableness I

7. In Since v. Comelec, 242 SCRA 273, 1t was held that the Comelec cannot be faulted l'Of subseQuemty annuft•ng a prodamaoon on account of a mathemahcal error committed by the Board of Car~tassers m the computation or votes recorved by both petitioner and prrvate resPOndent What 1S soughl by private respon<:ent is the correction or mantfest m1!>takes 1n the mathemahcal ad:M10n or mere mechallical errors '" the add1t10n or voles, and does not Involve the opentng of hallol bo)(es or the elCBilllflaiiOn or appreciation ot IJaHots While Sec 7, Rule 27, Comelec Rules of Procedure, provides that tha petrtJoo ror correctiOn may be fi ed at any 1 me be1ore proclamation thete cs nothmg to St.-ggest that rl r.annot be a~plle<l to cases hke the one at bar rn wtuch the validly Of the nroctamnhon tS l)fe~ ty 10 qoestton (CnstromB'r'Of v. Comclec supra.}.

0U fLIN I !;E1JI..C\'I£R !t-1 POt ITJCAL IJW,'

8. Uturalum v Comeiec. 181 SCRA 335 The padd;ng ot lhe Regis:ry LISt or Vote·s of a muniOpalrty is not a lis1ed ground for a pro-proclamation conti"O'/ersy.

9 . Lazatrn v. Comclcc, 157 SCRA 337 Because the ~t1t100er had already been procta1med (on orders or the Comelec). had tal<.t!n h1s oath anc had assl'mecJ h1s d Jhe<: as Member. Hoor:e of R"'prttsenl3trves the 1ssue of nvahdtt;. of h•s ;>rodamatl()(l and rrregulant~s connected lhr:reiNIUl, Is a miJtter prooerfy addtessed to thO House or RepresentativeS Elect0f81 T nbUoal (wtuch cs the SOle JUdge of all contests reta11ng to eJection. returns and Qu3llftealJOns. of Members of the House of RepresentatiVeS) See a1so Aqu1no v Comelec, supra • where 11 was held that assump11oo of JUnsdir.tJon by the Hou$e of Repre..entatJves Electora' Tnbunal (HRET) takes place only after the w1nning candidate has been duly prodaimed and has taken the oeth or offrce. becaus'! 11 is only then that he IS sa10 to be a member of the Hoose of Representahves

10 Darantmao ''· Comelec (June, 1989). The ~lee has the power to mqurre whe!l.er the members of the Board of C-anvassers are qualified or not, and wMther or not an electtOn ha<t been held tn a preonct. In order to detetmine the integnty of the e:~tion returns

11 . Alangdeo v Comehlc (June 1989). The fl "lQ with the ComeJec ot a petition to annul or to suspend proclamatiOn shat: suspend the running or me penod to file an eledion protest

12. Cas1mi:o v. Comelec. 171 SCRA 468 The affidavits of the watcher and the petthonor (alleging duress. Crsud, coerQOt'l Of ntrmida!K>'l attendant to preparatiOn of e ectJon returns) are se:f-servrog.

13 Mayor v Comolec (JBf1/.J8f'Y 1989). After the proda;fT!ed w nner had assumed office, lhe propet rernoo y ll> an efectaon orocest, 110t a pro-p!"QCfanratiOfl controverst.

.559

XII. ELECTION CONTESTS

.A. JurisdiCtiOn over EltK:tion Con tests.

1. Ong,.al nnd excluswe

a) Presidentl'llce PreSident ·-· Supreme Court b) Senator ••• -·-.. ·-· .............. Senate Etodoral Tribunal c) Rcoresentative • -·········-···. HR Electoral Tnbunal d) Reg.onai/ProwlCia!ICity .~ ..... COMELEC o) Mun•capal ..... • . • .............. RTC f) Ba-angay ............ .................. MuniCJPai/MetropOIIt.an Tnal Coun

2 !lppe!Jate Jurisdiction.

a) From decisiOns o! the RTC and Muni<:ipai•City Courts. appeal shall be made excluStvcly to the Comelec, whose dec1slon shall be final. executory

and unappealable.

1) E!ect•gn Contests for Mupqpal Offaces. Allelect•on cont~ts lllii'OMng municipal offiCeS filed With the Regional Trial Court ~hall be.decidod ex~,t;ously The dedsion may be appealed to the Comm1ss10~ Within five days from pronulgabon or receipt of a copy thereof by the aggnevcd party The CommisSIOfl shall decide the appeal Within 60 days aner et IS stJbmJned for deGISIOO. but not tater than 6 monthS after the filing of the appeal, which decision shall be final, unappealable and e)'ecotory [Sec 22, R.A t166j. A mohon fOl' the reconstderation of :he RTC decision is a prohibited pleading, and does not interrupt the runnrng or the 5-Qay period for appeal [V61oria v. ComeleC. 211 SCRA !JOT} But the Comolec cannot depnve the RTC of its OOinpE"tence to order exeo.~tiOn of 1ts deoSIOfl pend1ng appeal, this being a Judro pcerogative and there besng no taw disauthorizlng the same; besideS. tt:c Comelec rules would dep0¥o the prevailing party of a substanbal nght to f1'lOV'e for such reher [Garc~a v de Jesus. 206 SCRA 779, Malaluan v Comelec.

254 SCRA 397}

n) In the exerase of Its exclusive appellate jurisdiction, the Comelec has the fjOwer to issue w1 ts of prohib1hon. mandamus or certk>ran. because the last paragraph of Sec. 50, 8 P 697, 1S st•llm fuU force and effect. aM has not been repealed nor amended bv 8 P H81 (Rclampagos v Cumba, £43 SCRA C,02] This abandons the ruhng m Velofla and in GarCia.

u1) The provisron of R.A 6679 !)ranting appellate jurisdiction to RegiOnal Tnal Courts over deciSIOns of MuniCipal Courts m elec:oral cases

~,

rnvcMng eiP.Clrve barangav offiaals IS. unoonslrtuoonal (Flores v Comelec, 11U SCRA 484} But in the absence of any express proviSIOn In the governing law, tl ts the Regtonal Tnal Court, <l court of general Junsd clleln, whtcn has JUrtSdiCton over controversres involvmg elect tOn ot meMbers of the Saoggun1ang Kabat.aan [Me rca 1o ., Board ur Ek!cttOI? Supervisors GR. No 109713, Ap111 6, r 995].

rv) TI1P. fact that oocisions final tAtters or rutings ol ttl@ Come ec rn appealed cac;es .nvolvl"g erechve munropal and b.arangay offiCials are final, executory and unappealable does not Pfeclude a recoor!>e to tne Supreme Court by way of a speeaal CIVIl action for oertioran {Ge/ido v. Comefec. !93 SCRA 78} But this recourse rs ava•lable only when the Comelec's factu.11 detcmunatJOn •s marred by grave abuse of d1sae~100 (AJverez l Come/ec, G.R. No 142527. March t, 2001]

b) From decsSlOns or the Comelec, appeal snail be maoe through a Pehnon ror Rev-.ew by CerltOmN unc!er Rukt 65 of !he Ru~s of Court. to be fried \\tth the Supreme Court w11n1n thtrty 130) days from recetpl or a copy of the deaslon, on the ground of grave abuse or dJscretJon l:lntamount to lack Uf exce.>s of JVnsdiCtion or vralatton of due process See Arotuc v Comelec, 88 SCRA 2S1

c) From a decistan of the Electoral Tribunal, appeal shall be through a Petition for Review (0 be filed wtth the Supreme Court ort the ground of grave abuse of discretion tantamount to lack Of eYoess or junsoiCltOr, or a VIOiiltK>n of th.e process. See Rootes v HR EleC10r.JI Tnounal 181 SCRA 780

I) In Puzon v HRET {Fet>tvary. 198!1}. lhe Supremo Court declare~ that rcVtew of a oeosl()(l of the Electoral Tnbunal ts POSStbl<• cnty in the •uerdse of supervisory or exlraordtnary JUilWidlon and only uJ)On ShOwtng that lhe TribtJnal's error resui:.S from a wtt1msical, ca~IOUS, unNarran1ed, arbitrary Of despotiC exerose or ;>ower

u) In Lazallll v HRET. 168 SCRA 391, the Supreme Court said that for purposes of electiOn con1ests cognizable by the Electoral Tnbunal. the HRET 1'\Jies of procedure shall p~va11 over the provisions of rhe Omntbus ElectiOn Code

111) 111 Abbbs ~ Senat£• Electoral Tnbunal, 16G SCRA 651, t'-e SenatOfs-members of ltle Senate Electoral Tnbunal cannot be drsqudllfied from heanng the case, as the mass dtsquahfrcation would leave the lftbunal no ahematJVe but to abandon a duty tl'lat no other court or body can perfom ThiS d:>es not predode the posSibihly of a Senator-member tnhrbttmg h•msalf

~<111111 '"". ~61

from s:ttJng in JUdgment on a case before satd tnbunat, as hiS c:onsdenee may

OICiate.

3. Action:;, whrclr may be filed

a} E~e<:t10n Protest b) OJo W;1rranto

S. Election Protes t.

Requ;:;ttes·

a) Must be filed by anv can<Mate who has file<l a a:~ificate of candidacy and has been voted uoon fQf ltle same of!iOO. ~· ·~ Tan v. Comelec (June 1898), it was held that the Gubematonal candadate rs net lhe proper party to mst tute electiOn protest regarding the eledion of the VICO Governor, Board members and Muniopal Mayors

b) On groypds or (Iaud. terro!Jsm, lrreoulartltes or tlteoal acts committej be~ore. dunoo or after the castJng jtnd coonlJQO of votes .

I) The purpose of an eleebon protesles to ascertain whether the caoclldate procla1med elected by the board of canvassers is the true and lawful chotce of the electorate. The proceedif'g may be instrtuted oo the theofy that 1M c1ect100 returns which are deemed pnma faoe to be the true reports ol how the electorate ~ed on election day and which serve as the basis for the proc:amation ~~ the winning candidate, do not accurately reflect the true will of the voters due to alleged rnegulantres that attended tne counting of the baftots In a protest prosecuted on such a theory, the protestant ortllnarily prays ltlat lhe offiCial coun1 as renected in the elceOOn returns be set aside in favor o1 a reVISIOn and recount af the ballots, the res•Jrts of Nflich shoUld be made to prevail over those re1lec:ted in the rewms pursuant to the dOctnne that •m an electJon contest where what k involved Is the number of votes of each candidBJe, the best. and the most co.'lCiusiYe ev'ldence Bt& the baRots themsel\·a-s·. However. the superiof sta1us of the ballots as eVidence of how the electorate voted presupposes lhlt these were the very same barlots actually cast and counted 1n the eledlOflS Thus .. it has been held that before the ballots found in a box can be used to set iiSide the reh.orns the court (or the Qxnelec. as the ~se rnay be) must be sure lhat rt has before rt the same bal'ots depoSited by the voters /Rossi v Comelec. G R No. 168253. Marc/1 16 2007].

ta) Thus . .n lhrscase. the Court Jald down the lolloWJng gu•deltnes [a] the ballots cannot be used to overturn the offrool count as refleded in the

POUliCAL.l.AVI

electJOf'l returns unless u tS first shown affirmatively th:ltlhe ballots ha~~e been presP.tved wrth a cere wtuch preciiKfes the opportunity or tampcnng and all susptaoo of change, abstraction Of suost tut10n, {b) the burden ot provlflQ that the mrognty o: the ballots has been J)feserved it\ such a ITU!MCI IS on tho protestant, let where a mode of preservmg the ballots •s enpmoo bv 1 w, proor must be made of such subslanual compf1anCP. wtlh tfle requuements ot that mode as would provide assurance that the blllllots havE": been kept 1nviolatu no!W•thstand~r.g sltght devmhons trom the prease mode or acn ev ng that end, (d] 11 rs only when the protestant has stlcrwn substanltal complrance wtth lhe prOVIsions or taw on the preservatiOn of the ba'lols that th~ burden of proo..tng actual tampenng or the hkehhoocl thereof shifts to the proteStE:e, end (e} only If 11 appears to the satisfactiO:l of the cou11 or Co~lec that the mtegnty ollhe ballots has been preserve should •I adopt tt\e result as shown by the recount and not as reflected •n the eleciJOO returns

u) In Anio v Come lee :! tO SCRA 290, 11 was ne•o mat the 1a11ure ot the protestant to ratse the quest1on of eoent1C8I haodwnltng or of 1mpugnmg the vahd1ty of the ballots on that ground does not preclude the Comelec from re,ectl"lg the ballots Unl1ke an crd1nary su•t. an eler.':tan protest IS or utmost pobhc QJilClem The nghts of tr e contending parties must y•eld to tho tar greater Interest ollhe cal zens tn uphoidtng the sauct1ty of the ballot Thus the

Comelec Slmpl·• cannot close tis eyes to lhe illegalrty of the ballots. even if the protestant OfT"ttted lo ra1se the ground in his protest In Emr "' Cometec. 243 SCRA 700. tr.e Court upheld the aultlonty ol tho Comelec to deterrrune Y.'helher ballots flao ~n wnllen by two or more persons or tn groups wntten by only one hand Without need of calling ror the servteeS or handwmmg expertS lfiis inveshgat•on being more '" the nature of an tolernal process • ..

u) Ar1 oroe~ rogardi09 lhe reVJSIOn of ballot"> IS an tnterlocutOf)' order because II still reqwes a party to perform oenain acts leadlllQ to the final ad;udteation of the case {Butaong v Come~. 210 SCRA 745/ -

iv) As a general rue, the riiiOQ of an e~n prote5t or quo watranto precludes the SUbsequent ming of a pre-proclamatiOn contioversy Of amounts to ar. abandonment of ooe eartier filed (LDOdeno v Comelec 276 SCRA 706}, thus deprrvmg the Come lee of the auth0f1ty to InQuire mto and pilss upon t~ llt.e or the protestee or the validity of h•s proclamalton The reason for this 1s that once the compet'!nt •nbuna h<".' a<.quited J\JnSdiChOn over an election protest Of a petlhon ft)f quo warranto. a ll Questions retat-ve thereto Will have to be deo~ m the case rtself and not 1n ano'hcr proceeding Yhts procedure Will ptevent confuSIOn and conOJcl ot au'honty {V!lfamor v Comelec GR. No. J69865. Julv ?1. 2006}

Iva) Th1s rule, however, adm1ts of tfle folloWing exceptions (a) The Board of Canvas..c;ers Wf'S imptoperty constituted: (b) Ouo warranto Is not th proper remedy, (c) What was filed -... s not rea11y a pe!tllon for quo warranto or an electiOn :;ro'.est but a ,pet.t on to annul a proclam<l!ion; [d) The tihM of an elec!lon contesl was expressly made w1lh001 prejud1co to the pre prodamabon controversy, or 'N'dS made ad cautek-'lm· or (eJ The proclamat on w:lS null and void {Samsd v Comelcc, G R No. 107854, July 16, 1993: retteratoo In D:Jmayas. Jr. v Comelec, G R No 141952-53, Apn/20, 2001] tr the proc:iarllaton ;s void, the prc-ptodamatJon case IS not rendered moot and academiC [Ranirez v. Comelec, 270 SCRA 590}

1\lb) Butln Tan v. Comcfcc, G.R Nos. 166143-47, November 20. 2006, the Supreme Court sa1d lhallhere 1s no taw or rule prohrbiling ~ :o;lmuttancous prosecuhoo or tldjud•cabon ot pre-proclamatiOn controverstes and election ()'01csts. Atlowu~ tl'le Simultaneous prosecut•on sceoano may be e•plaint!d by t:-.e faetltlat prc-prodam.'lhon controversies and elec-JIOil protests d1ffer 10 terms ot the 1ssucs i nvolved and the evidence admiSSible 10 each case, and the objective E'ach seeks to ach1cve. {NOTE: As theSfl cases.lflvolve eleclive provif1CJal offrces, tho Comelec has ongmal eKcluSJve JUnSd•ctJOn over both pre prooamation controvefS/es and elec:JIOII contests. Obviously, thOre can be no eu~niCf of auJhortty, snd thus the cases can be SJmutlaneously prosecuted Mfore, and adJudiC8tod by, the same tn'bunal.]

v) The entry of a general demal tn an electiOn case does not amount to an adrrussiOfl of the matenal allegaiJOns 1n the protest [Loyola v. HRET. G R No 109026, January 4, 1994) .

vi) Where the pnvate 'respondent faded to commence the revision of tltu ballots n too counter-protested preoncts. stubbornly mamtain1ng that said ballots shOuld be rev1sed ooly 1! 11 1S shOwn after the revision (of the ballots 111 ttle protested preoncts) that the pehtJOner leads pnv;1te respondent , the 1aaer mu:.! be deemed to have abandoned or waived hts counter.protest (Abeia v Judge Tazada. G.R NO 112283, August 30, 1994/

1111) In Mtnam Defensor Santrago v Frciel Valdez Ramos. 253 SCRA 599 11 was held that the elechon protest f1led by Santiago agarnsl President R~mos was rendered moot and academrc by the electiOn of Santiago as a Senator 1n the M3y 1995 el'!cllons and her assumption of offrce as such on June 30 1995 In assummg the OffiCe or Sen<! lOr, !he Protestant has effectively allaodoned o· Withdrawn thiS protest, or at tho very least. 1n the language of MorateJa v Relova, abandoned llCr ~determaoatton to protect and pursue the pubiJC.tnteresrmvotved 10 the matter of who is the real choiCe olll'!e eledOrate" Moreover t1 £ diSIThS~I of thiS proti'>St would serve pubhc lntcrP.St as It would

r. :w - - - · · ., - •• , ••• .,., 10a1 should be deoded by th'J mun10pal or me:topohtan tnal court wrthm • days from fihrJ7 thereof. beca"'se an electeon case. unlike ord10a1y actiOns. fOlves public mtetest [Bolalm v Judge c.Jcoano, AM No MTJ-9~1104 'bruory 14. 1997} '

2. Payment of Dcx:J.et Fee A protestant has 10 pay a docket fee of P300 d an addctiOnal docket lee it there •S a clnim '<X damage For faiful"t1 10 pay

56-1 f - - --

\

,,jess.pate the aura ol uncerta10ty as to the r85utts of tho 1992 presidential t~lection, tnereby ennanong the all too crucaat pol ueal st<!b!l•ty of the natoo cjunng this period of nabona~ recovery n

tiJ Where the Comctec had, in previOUs cases ruled tMI the 1enue for the revtsion of ballots shall bo n Maf\lta rt IS grave abuse of arscrel1on or the Comelec to deny peltt<ooor's request for the re11iS10,., ol ballots ro be le'd 1n Man•la on the pretext that tl•ere •s not enough storage space 10 contam

tthe ba!lot bo•es. sUdl mconSJstent acooo Ienos to denigrate publiC trust 1n

$te obJ~.o>divlty and Jepe~abilr:y of the Comelec /CabBgw: v. Comelcc 260 >CRA 503] •

o ix) Whefe the omtSStOns are menl!)' ac.mm.strauve lapses, e.g • cJbsence Of the chaifman's Signature on the voter' affld9VIIS, rst of voters ()( I(Obng n~Qlrds, lhe absence or exoess of detachable coupons. or d•screpancy

, ltle number of detachable coupons and the number of baRots it was errcr ,r the HRET to nullify the election results 1n lhe ab3ence or a clear show.ng thf fraud. 'The vc!ers should not be penali2ed for something no: ol thelf own ~lakin£ {AITOvo v HRET, 246 SCRA 384}

ot C) Within leo (lQ) daVS from prpdamatJOn of UJ9 resv'ts of the election

1 ~ i) The peood for lihng an e~10n I)(Oiest ~~ suspended dunng 1n~e pendency~ a pre-proclamation con:roversy [Golchaftan v Comelec 245 F~RA 208. Mana.'lanv. Bernardo, G R No. 125752, December 22, 1997].

fi) Where. after five c1ar.; from the prodamat10n of the w~nnmg anlndidale, the loser flies a mot.on for reconslderaoon 10 the pre.procJamatio~

)Otroversy, there ar;t only ftve days Which remalll of the period Within Nhich file an eJect>O'l protas1fRoquero v Comelec, 289 SCRA l~J

ou tu} The Comelec may not "!!llertaln a counter-protest filed beyood

e regktmef1taty penod to file the same [Kho v Comefec. G R No 124033 'tOlem!>er 25 1997] •

protestant. it IS far more prudent to abide by tho existing and strict lim11atJons or. 1ntervenlt01 and substitutK>n under lhe law and the rules

c. Quo Wananto.

1 Requ"sites

a) Fed by any reg ste;ed voter m the consutuency

tne basic doclet fee. thfl protest ShoUld be dtsmissed {Gatcha!Jan v COIOOioc. 245 SCRA 208, Sol/or v. Comclcc, 339 SCRA 685]

a) Wtlle 1t s truo that t1l1l ooun acqwres JUriSdiCtiOn ov r a case only upon complete payment of the prescnoed fees. the rutc adtruts or exceptionS as wrn.n the party never ra1scd the assue of IUnSdlettOO of the tnal court (Tqam v. Sibonghsnoy, supra.] In V!llagrac~a v Comelec, G.R No 168296, Ja~uary 3 ' · 2006. in an elect•on prorestanvolvtng baraogay elective off.ce, the pe'lt10ner raJsed the Issue that the ooor1 had no JunsOO:tJOn beCause ol the failure of tne other party to pay the corroct filing fees for ~ f&rSt time on appeal befOfe the Comelec. The Su~me Court held that the petii.IOOer paruopatod rn the proceedings and voluotaOiy subm1Ued to the fvnsdictton or the trial court It was only af er the ':nal court aSSUP.d rts deCISIOn adve~ 10 him that the pettiiOner rar~d the rssoo of JUrisdiction, for the first hme on appeal with the Comelec.

3 Cert1ft:ate of Absence of Forom Shopping The requ rement under Supreme Court Crrcutar No. 04-94 applies to electeon cases [Loyola v. CoiJrt of Appeals. 245 SCRA 4 77: TomRrong v. Lubgu:Jan. 269 SCRA 624).

4 Deatl: of Protestant The death of the protestant does not extinguish an electiOI\ pretest In De Castro v. Ccmelec, 267 SCRA 806. tt was held that an electron prott!St rs amboed wtlh pub he rnterest whidl raises at onto a P.ta~ ~er and above ordinary civrlactions. beCause i1 involves not only the ad1ud1catton of the pnvate interest of the rival candidates but also the paramount need ot dtspelling once and for all the UN:ertainty that beclouds the real choice of the electorate Wlt.'l respect to woo shall dtseharge the prerogatrves of the oHICO Within the•r git. In this case, 1l was held lllat the Vrce Mayor-elect has the status of a real party in interest in the cootinuatien or the proceed1ngs. See also Lomuqdsng v Comelec. 21 SCRA 402.

a) In Poe v Glona Macnpagai-Arroyo, PET Case No. 002. March 29, 4005. the Supreme Court said that if persons not real parties in the action could be allowed to intervene. ~ wiU be unnecessarily oomphcated, expensive &nd interm•nah'e - and this .s not the poliCY or the law. InasmUCh as no real par.JeS suctl as the vice-prcsldenbal CtSP~tants in the 2004 electtons h#a- N\IT>P l-vw;ud tn mtervene. Gf ,., be substituted ror the deceased

b) On grounds of tnehg;billtv or dtsloyalty to the RepubliC ol tt.e Ptuhpptnes

c) Wtlh'" ten ( 10) da)'S rrorn proclamalron olthe results of the election.

2. Cases.

a) In Sampayan v D11.ra, 213 SCRA BOi", the piHtltOr rar prohtl>thon filed w•th the Suoreme Court Oy residents of Northern S"rnar Ggatnst Co~ressman Oaza for the latter betog allegedly a green c.atd ~er and a permanent resldent of the u.s .• was diSmissed on the foiiOw•np grounds f•l the case has be<:ome moot and academic. because Oaza s terrn was '" end J .. me 30, 1992; [ir] the StJpfen'le Court is wt!hout Jurrsd•ctlon, lhe House of Represent.atl'll.l~ Electoral Tnbunal be1ng lhe proper forum. as tile latter rs the sole judge of all contests relalmg lo the elediOn, returns and qua~fiC8tic.ns of members of the House of Representdt.ves . .:snd (111) a~ a f1fl /ado offtt;.er, Daza cannol be made to rermburse funds disbursed dunng hts term of offiCE;, because his acts are val<d

b) In Fnvafdo v Comelec, 174 SCRA 245, the Court hetd !hal eonsldenng !hal the OC>Pi of Frrvaldo's oeror~eate of nalurauzation tn the U.S was obtained only rn September, 1988. the peti1ion for dtsqualificabon may sull be considered as hav.ng been seasonably rt:-ed even tf fi:ed more tharl seven montm: from the ptodamation Relate this to Loong " Comelt..:.c. 216 SCRA 760

c) In Marquez v Comelec, G.R. No !12889. Apnl 18, 7995, the Supc-eme Court held It .a tArt . 7 3 ofthe Rules lmplementlr.gll'le LocatGovemmen1 COde (particularty Sec 40. RA 7160). to the extent thai 11 confine~ the term •fugotive from jusbce" to refBf only to a person "who h&s been conviCted by final jUdgment· is an inordinate and undue orcumscnptiOt'l of the law The term '"fugitiVeS from JUSIJoe" IncludeS "not only those WhO flee after OOOVICtiOfl

lo a'IOtd punlshmert. but littewise those who, 'lfter bemg ctwged, Ree to aVOid prosecution· Thus, Ill R?drigue.z v Comelec, G R No. 120099. July U , 1996 the Supreme Cot.n ruled that Rodnguez cannot be considered a "fugiblle from JUSUce" because hiS arrtvat '" the Phii•PP*1'6S from the U.S. precedod the flltllQ

of the felony charges and lhe issuarce of th~ warrant for hrs arrest by the l~ Angeles Court by at least fiVe months.

0 Distinction~ between Quo Wclmtnto In elec•ive and In appointive office.

In an elective office. lhn 1"5ue IS elig•bilrty of the ofltcer~lect; the <X>llrt or tnbunal cannot dedare lhe pro!estant (or the cand•da!e who obta•ne.:t

OviU .. E I REV\ EVI[R IN POlJTIC AI L.AW

the second higtcsl number of votes) as haVIng been elected See LebO v. Comclec, 176 SCRA 1: Abolla v. Comefec, 201 SCRA 253: Ortega v. Comete<:. 211 SCRA 297 Sunga v. Come/oc 288 SCRA 76

a• Thus, m Ocampo". Hou$9 ol Representatives Electoral Tnbunal, G R No 158468, Juoo 15. 2004. a!t~>r tne HRET had dedafed Mark CrespO (Mark Jtmenezl ·ineligihte for the Office of Representative of the 6"' d1str1Ct of Maf1tla lor lack of residence In lhe distncf. aod Pablo Ocampo, theseoond placer, moved that he be decfarej lhe W!nnef, lhe Supreme Court saki thatlhere must be a ftnal judgm)nt (of disqua~ftCatton) beloro the eleetiM in order that the votes of tne d1squabtied candidate can be considered •stray". The obvioos ratiOt\ale is that tn YOhng for a candidate W!'lO has not been dtSquabfted by final judgment during election day, the people voted for him bona fide, WithoUt any intention to misapply their franctuse, and in tt'le honesl belief lhat the candidate was then quatlftud to btl the person to whom they would entrust the exeraso of the powers of government Thus. to proclatm the serond placer would be artathema to tho most ba$1C precepts of rep~.tbhcantsm and democracy enshnned in our Constitution It woold, In effect, be advocating a mass:ve dtsenfranchtSement ol the majonty of ~ voters of the &' distnct of ~anila.

2. In an aopoinllve offiCe. the issue tS the legality of the epporntment; the court determ.ots wt'lo of the part1es has legal trtle to the office.

D. Execution pending appeal. The rnat ooun. may grant a motion for execuhon pend.ng appeal, because the mere filing of an appeal does not divest the &nat court of1ts JOnsdtcbon over a case alld to resolVe pending inci<ients. Sfnce the couo had JUnsdtctJon to act on the motioo (for execution pending appeal) al the lime it was filed. that JunsdictrOn conhnued until the matter was resOOied. and was not lost by the subsequent action of the opposing pany {Edding v. Comelec. 246 SCRA 5021

1 The ra~nale why such executton is allowed In election cases. as statP.d rn Gahol v.. Riodi(Iue, GR. No L-40415, June 27, 1975, is "to gMt as much eecognibon tu lhe worth of the tnal Judge's deciston as that which IS

lmtoally ~bee by taw to the proclamatiOn or the board of canvassers. Indeed, to d~pnve tnal courts of then dascreiJon to grant e.lCecutfon pending appeal would "l>n;)g back the ghost o1 tne 'grab the prodamabon, prolong the protest' ~ed,nlques so often resorted to by devious pohttaans ·n the past In their efforts to perpetuate their hold on ao electrve pubhc otrrce· {Uy v. Comelec. CJted n SDntos v Comclec. G.R. No 155618, Morell 26, 2003}.

2 In Nevarosa v Comelec. G.R. No 157957, September 18, 2003. n was !wold that the RegtO<"'al Tnal Coun m~w or:.nt ~ motion for execut'on Dend•ng

appeal when there are veltd and special re950ns to grant the same, sUCh as (a) the public Interest lllVofved or the Will of the elector.~tn. (b) lhe shortness or lhe rematMI9 portiOn or the term, or (c) tne lengttl or twne lhatlhc election contest has been peodl:'lg Earl·er. an Gut~erre' v. Cometec :!70 SCRA 413. and an Ramar; v Comelec. 286 SCRA 189, the Supre~WJ Court ru.od that the fact tnat only a short penod ac; I.e" of lhe term of efface ,!; a .good ground for ~xecutaon pendmg appeal

3 . However. the rule must be stridly construed aga•nst lhe rnovan~ and only When the reason IS of such urgency will such e)(eculJ<'In peoding appeal be allowed. as It as an exceptoo to the general rule. FollOWing CMIIaw junsprodence, the reasons allOwang for ammedaate executiOn musl be of SUCh urgency as to outwoegh ttle inJury or damage or the losing party should such party .secure a l"eWf'S88 of the Judgment on appea. Absent such, the ordet must !Ht strJd(en dovm as fla¥fed wllh grave abUse of d:seret~an Not every invocatiOn of publtc nterest W1lh particular reference to the wa of the electorate may be apprecaatoo as a good reason. espeoatly so '' the same appear~ to be self·serv•ng and has not been cJearty established. PubliC interest w•ll be best served only when the candtdates voted 'ex the pos tion are finally proda1med and arUdged WJnoer., the election (Cam/Jan v. Comelec, G R No. 124169 Aoril 18, 1997)

4. The muttOn for executiOn pen<Jing appeal must be fi'ed before the exp4ratJon of the penod for appeal (Relttmpagos v. Cumba 243 SCRA 690) lr. Asmala v Comei6C, 289 SCRA 746, the Supreme t::oor1 saod that the part1es nad five days from servtce or Jl•d~mant within whiCh to appea • and although the responder.& had filed has appeal on llrre, the appeal was deemed perfedeo as to him only This d«i not dopnve the petrtiooer of ~ riQht to avail hrmsetf of the five-day period to appeal, tf he so d8.Sired. Acoon:frnQiy, dunng thas five­day peOod, the petitioner may file a motion for execubOn pendjng appeal Th.s ruttng was re4erated in l.Jcate v Comeek G R No 144678. March 1, 2001

F. Award of o.t.ge.s. Award of Damages. Ad:Jal or compensatory damages may be granled anal~ contests or in quo warranto proo.!edings '" aocordanoe With taw /Soc. 259. B. P 88 t I

1 It was the antent of the legislators to do away w1h the provisions lndernnatyiog L~ '"~S party for expenses ancurred rn the electiOn contest, an the absence of a N~t~ngtul act or omisSion dearly attribulable to the losing p~.orty {Atl6nza v Comeloc, G R /l.'o 1085.13, Docembet 20, 1994)

2. Wtaen the appeAl trot.1 " deol"JOn 111 an election case hm. a!r ady becoi'Tlf! :-noot !he case be•ng ,Jn eleel10n prot~S: anvolvmg tne office of mnyar

the term or which has already explfed. the appeat ts dtsm~ssibfe on that ground, unless a deciSK>n on the ments would be of practical value. In the case at ber.ch, the petitiOn appears to be moot and acaderrwc becaose the parties are oonld.Stlng an elecllon post to which tne1r nghl to the offa no longer exists, hov:evet, the questiOn as to damages rematns ripe for adjudteattoo {Matofuan v Comelec, 254 SCRA 397} But the award ot damages was reversed by lhe Supteme Court. saying that the cntenon for a JUStifiable award or elecloo protest expenses and salanes and emolumP.nts remains to be the excstence of pertinent breach of obligatJons ansing from contracts or quask::ontrads. toftiOus acts Of c:nmes or a spec~fJC legal provision authonz.ng the money claim '"tne oootext or election cases. If any damage had been suffered by pnvale respondent due to the executiOn of judgment pendJng appeal. that damage may be satd t.o be equivalent to damnum absque m;una

G. lnterpret.tion of ceruin words •nd phra.se:;. See Ja~~~er v ComekH:, 14~ SCRA 194.

1. Contest: any matter anvollltng tho IItle or clatm of Iitie to an elective orrace. made before or altar proclamatJOO of the wmner. Whether or not the con:estant is da•ming the offiCe In d1sptrte

2 Bectioo, .r.tm.I.!M and wmhfjeal!ons: an its totality, refers to all matters alfect.ng the vafidrty of the ooote:r;tee's IItle to are posit100

3 Elect!OO refers to the oonduct of thtl pOll!., ancluding the listing of voters the hold•og of the electoral campa.gn, and the casting and oountmg ol votes

4. ~ · shall ndude the canvass or the returns and the prodamatioo ol the winneni, together With questions concerning the oompos•tlon of tho Board of canvassers and the authentiCity of ctections ret~~ns.

5 Qyalrficatioos. matters which ooukf be raiSed 1n a Quo wamno proceeding ~ the proclaimed winner, such as his <fiSioyaJty t> the Republic, Of has ine'~g•btl•ty or the nadequac'l of hrs certifacate of candidacy.

.) , U

XIII. ELECTION OFFENSES

A . Enume111tion of cfecrion offenses Read Sec 2Gt. BP 88

Some proh1biJed acts

a) Vote-buyoo and vote-selling. In People v Fener, 54 0 u. 1348, it was held that dcstribuhon or agarettes tc- people who attended a r..ohhcal meeting faits Within the context of the prohibition.

b) waaeono uoon tne resytt of tbe eled!on. Any money or thlllg of value put up as ,. bet Of wager shall be forfe~Ce<l to the Government

c) Threats. !ntimtdat!OO tecronsm use of fraudulenj de\!ICf or other roans or ooeroon

d) AtlQO!Olment of new emolwyee (except 10 case of urgent need With notiCe g.ven to the Comelec WJ:hrn three days from the apporntmenl). creatJon of new pos1ttons. PfOmot•on, or granting salary .ncreases

e) Caf!YJOQ of dcadlv weapon willJ!jl 1J radjys or 100 mete~ 'rom prednct In Mappals v Judge Nunez, 240 SCRA 600. It was held that rt rs not necessary that the deadly weapon be se z.ed from the accused while he wos in the 'precinct or Wlthu• a radrus or 100 meters therefrom, 1 is enough that the accused earned a deadly weaoon weth n the prohoblted radrus dunng any of tno da~ and hours speafied tn the law

f) Transler oc detail or oovemf'!lent off'!daVemoloyr!e Without Comelec apom~ In People v Reyes. 247 SCRA 328, rt was held that the transter or detail of a government offcer or employee Wll not be penafi7ed by Sec. 261 (h), 8 P 881 , tf done to promote effiCienCy in lhe government service To proo.~e ~uon. two etements must coocur. YrZ.: (r) The fact of transfer oc detail~ the election period as fixed by the Comelec: and (ii) The transfer or oetail was made wflhout pnor approval or lhe Comelec In accord~ce With Its rmplemenhng rules and regulatiOns In lh1s case,lhe transfer was effected one day before tt:e Comelec ISSUed Re!.Oiut•on No 2333. which prescnbed the rules and regulatiOns on how to obtarn Comelec appc-oval fOf such trnosfers

2 Good fa•th ts not a cJelense Elect•on offenses are generally mala prohibtta Proof of cnmrnal rnter.t ts not ne<:.essary Gtxxl ra•th ~gnorance or lad 01 ahce rs not a defense. tr.e commrSSIOn or the p-oh bl!ed ac: is suffiCient. Sec People v Bayona. '6 Ptul 1Bt· People · F11en1es 181 Phil JB6

I

B. Jurisdiction over election olfenses.

1 /nveS'tgBtiOil and prosecr.rl•on The CommtS!iiOn on Electrons MS exctus.ve 1umd•etton to lnvesbgate and prosecute cases mvolvrng violations of electron lawsiSec 2(6). Aft IX-C. ConstrtutJon· Oe Jesus v P:<>ple, 120SCRA 760 Corpus v Tanodbayan, 149 SCRA 281}. but 11 may validly delegate the ~r to the :?rovtndal Prosecutor, as rl did woon 1l promulgated Resolu!ion No 1862, dated March 2 1987 {People v Judge Basilia, 179 SCRA 87].

a) Bot it r.. not the duty of the Come lee. as mve&trgator and prosecutor. to gather proof rn support of a complatnt filed befOle tl (Ktlosbayan v ComeleC. G R No 128054, OctOber 16 1991)

2. Tnaf ancl decision The Regional Trml Court has exduSNe Ofl9IMI furisdtetJOn to try and decide 3ny cnm•naJ ac!IOns or proceechngs for violatiOn of electiOn taws The metropolitan or munropal trtal court. by way of exceptiOtl , exercrses JUrlsd•ctJOn only over offenses relaung to failure to reg•ster or to ~te It 1s the speaal in tenliOil of the Omnibus Electron Code to vest in th~ reg100al ltial court junsdictron over election offenses as a matter of excepton to tho general proviSions on iunsdidion over crlmmal cases found under B P. 129, as amended (even by R.A 7691) [Naldoza v. LDVIIIes, 254 SCRA 286}. Thrs rulrng is rerterated '" Comelec v Noynay. 292 SCRA 254, calling attention to Sec. 268, BP 881

c. Preferential disposiuon of election offenses (Sec. 269. B. P. 88 'J.

1 lnvest•gaoon an<l prosecu\101\ of c!edlOn offenses shall be grvon pnonty by the Comelec. The investJgatrng offrcer shall resolve the case with•n

five (5) days from submiSSIOn.

2. The courts shafl likewise grve prererence to election offenses over all ()(he( cases. except pei.Jtions for a wnt or habeas c:orpus. Cases shAD be decided wrthn thirty (30) days from submiSSIOn.

D Prwscription period for P.lection offenses. Frve (5) years from date of

commiSS!OO.