ADMINISTRATIVE LAW BAR QUESTIONS
named Manila War Memorial Commission (MWMC), with the primary
Administrative Law Questions
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and
Hearing)
The Philippine Ports Authority (PPA) General Manager issued an
administrative order to the fact that all existing regular appointments to
harbor pilot positions shall remain valid only up to December 31 of the
current year and that henceforth all appointments to harbor pilot positions
shall be only for a term of one year from date of effectivity, subject to yearly
renewal or cancellation by the PPA after conduct of a rigid evaluation of
performance. Pilotage as a profession may be practiced only by duly
licensed individuals, who have to pass five government professional
examinations.
The Harbor Pilot Association challenged the validity of said administrative
order arguing that it violated the harbor pilots' right to exercise their
profession and their right to due process of law and that the said
administrative order was issued without prior notice and hearing. The PPA
countered that the administrative order was valid as it was issued in the
exercise of its administrative control and supervision over harbor pilots under
PPA's legislative charter; and that in issuing the order as a rule or regulation,
it was performing its executive or legislative, and not a quasi-judicial function.
Due process of law is classified into two kinds, namely, procedural
due process and substantive due process of law. Was there, or, was
there no violation of the harbor pilots' right to exercise their
profession and their right to due process of law?
SUGGESTED ANSWER:
The right of the pilots to due process was violated. As held, in Corona vs.
United Harbor Pilots Association of the Philippines, 283 SCRA 31 (1997),
pilotage as a profession is a property right protected by the guarantee of due
process. The pre-evaluation cancellation of the licenses of the harbor pilots
every year is unreasonable and violated their right to substantive due
process. The renewal is dependent on the evaluation after the licenses have
been cancelled. The issuance of the administrative order also violated
procedural due process, since no prior public hearing was conducted. As
held in Commissioner r of Internal Revenue vs. Court of Appeals, 261 SCRA
237 (1999), when a regulation is being issued under the quasi-legislative
authority of an administrative agency, the requirements of notice, hearing
and publication must be observed.
TOPIC: LAW-MAKING POWER; ABOLISH; DESTROY
In 1963, Congress passed a law creating a government-owned corporation
function of overseeing the construction of a massive memorial in the heart of
Manila to commemorate victims of the 1945 Battle of Manila.
The MWMC charter provided an initial appropriation of P1,000,000
empowered the corporation to raise funds in its own name, and set aside a
parcel of land in Malate for the memorial site. The charter set the corporate
life of MWMC at 50 years with a proviso that Congress may not abolish
MWMC until after the completion of the memorial. Forty-five (45) years later,
the memorial was only 1/3 complete, and the memorial site itself had long
been overrun by squatters. Congress enacted a law abolishing the MWMC
and requiring that the funds raised by it be remitted to the National Treasury.
The MWMC challenged the validity of the law arguing that under its charter
its mandate is to complete the memorial no matter how long it takes. Decide
with reasons.
SUGGESTED ANSWER: The law abolishing the MWMC is valid. Within the
plenary powers of the Congress, it can create as well as destroy what is
created after determination its purpose could no longer be attained by
subsequent circumstances. The power to create also carries with it the power
to destroy so long as it was done in good faith and consistent with the
purpose of promoting the general welfare.
TOPIC: DELEGATION OF POWERS; COMPLETENESS TEST;
SUFFICIENT STANDARD TEST
The two accepted tests to determine whether or not there is a valid
delegation of legislative power are the Completeness Test and the
Sufficient Standard Test. Explain each.
SUGGESTED ANSWER:
Under the COMPLETENESS TEST, a law must be complete in all its terms
and provisions when it leaves the legislature that nothing is left to the
judgment of the delegate. The legislature does not abdicate its functions
when it describes what job must be done, who is to do it, and what is
the scope of his authority. However, a delegation of power to make the
laws which necessarily involves a discretion as to what it shall be
may not constitutionally be done. (Edu v. Ericta, G.R. No. L-32096, October
24, 1970)
Under the SUFFICIENCY OF STANDARDS TEST, the statute must
not only define a fundamental legislative policy, mark its limits and
boundaries, and specify the public agency to exercise the legislative
power. It must also indicate the circumstances under which the
legislative command is to be effected. To avoid the taint of unlawful
delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays
down fundamental policy. (Free Telephone Workers Union v. Minister
of Labor, G.R. No. L-58184, October 30, 1981)
TOPIC: DOCTRINE OF OPERATIVE FACT
Define/Explain (a) Doctrine of operative facts
SUGGESTED ANSWER:
The general rule is that an unconstitutional law is void. It produces no rights,
imposes no duties and affords no protection. However, the doctrine of
operative fact is an exception to the general rule and it only applies as a
matter of equity and fair play. Under the doctrine of operative fact, the
unconstitutional law remains unconstitutional, but the effects of the
unconstitutional law, prior to its judicial declaration of nullity, may be left
undisturbed as a matter of equity and fair play. It can never be invoked to
validate as constitutional an unconstitutional act.
TOPIC: DELEGATION OF POWERS (2002)
Suppose that Congress passed a law creating a Department of Human
Habitat and authorizing the Department Secretary to promulgate
implementing rules and regulations. Suppose further that the law
declared that violation of the implementing rules and regulations
so issued would be punishable as a crime and authorized the Department
Secretary to prescribe the penalty for such violation. If the law defines certain
acts as violations of the law and makes them punishable, for example, with
imprisonment of three (3) years or a fine in the amount of P10,000.00,
or both such imprisonment and fine, in the discretion of the court,
can it be provided in the implementing rules and regulations
promulgated by the Department Secretary that their violation will also
be subject to the same penalties as those provided in the law itself? Explain
your answer fully.
SUGGESTED ANSWER:
The rules and regulations promulgated by the Secretary of Human Habitat
cannot provide that the penalties for their violation will be the same as the
penalties for the violation of the law. As held in United States v. Barrias,
11 Phil. 327 (1908), the fixing of the penalty for criminal offenses
involves the exercise of legislative power and cannot be delegated.
The law itself must prescribe the penalty.
TOPIC: JUDICIAL REVIEW
Give the two (2) requisites for the judicial review of administrative
decision/actions, that is, when is an administrative action ripe for
judicial review?
SUGGESTED ANSWER:
1. The administrative action has already been fully completed
and, therefore, is a final agency action; and
2. All administrative remedies have been exhausted. (Gonzales,
Administrative Law, Rex Bookstore: Manila, p. 136 (1979).
TOPIC: ELECTORAL TRIBUNAL; SET; PET JURISIDCTION
Mr. Yellow and Mr. Orange were the leading candidates in the vice
presidential elections. After elections, Yellow emerged as the winner by a
slim margin of 100,000 votes. Undaunted, Orange filed a protest with the
Presidential Electoral Tribunal (PET). After due consideration of the facts and
the issues, the PET ruled that Orange was the real winner of the elections
and ordered his immediate proclamation.
(a) Aggrieved, Yellow filed with the Supreme Court a Petition for Certiorari
challenging the decision of the PET alleging grave abuse of discretion. Does
the Supreme Court have jurisdiction? Explain.
SUGGESTED ANSWER: The Supreme Court has no jurisdiction over the
petition. The Presidential Electoral Tribunal is not simply an agency to which
the Members of the Senate Court were assigned. It is not separate from the
Supreme Court. (Macalintal vs. Presidential Electoral Tribunal, 631 SCRA
239.)
(b) Would the answer in (a.) be the same if Yellow and Orange were
contending for a senatorial slot and it was the Senate Electoral Tribunal
(SET) who issued the challenged ruling?
SUGGESTED ANSWER: The Supreme Court would have jurisdiction if it
were the Senate Electoral Tribunal who issued the challenged ruling. The
Supreme Court can review its decision if it acted with grave abuse of
discretion. (Lerias vs. House of Representatives Electoral Tribunal, 202
SCRA 808.)
TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of Administrative
Remedies)
A) Explain the doctrine of exhaustion of administrative remedies.
B) Give at least three exceptions to its application.
SUGGESTED ANSWER:
A) The doctrine of exhaustion of administrative remedies means
that when an adequate remedy is available within the Executive
Department, a litigant must first exhaust this remedy before he can resort to
the courts. The purpose of the doctrine is to enable the administrative
agencies to correct themselves if they have committed an error. (Rosales vs.
Court of Appeals, 165 SCRA 344)
B) The following are the exceptions to the application of the
doctrine of exhaustion of administrative remedies.
1. The question involved is purely legal;
2. The administrative body is in estoppel;
3. The act complained of is patently illegal;
4. There is an urgent need for judicial intervention;
5. The claim involved is small;
6. Grave and irreparable injury will be suffered;
7. There is no other plain, speedy and adequate remedy;
8. Strong public interest is involved;
9. The subject of the controversy is private law;
10. The case involves a quo warranto proceeding
11. The party was denied due process
12. The decision is that of a Department Secretary
13. Resort to administrative remedies would be futile
14. There is unreasonable delay
15. The action involves recovery of physical possession of public
land
16. The party is poor; and
17. The law provides for immediate resort to the court
TOPIC: RIGHT TO HEARING AND NOTICE
QUESTION: Give examples of acts of the state which infringe the due
process clause:
1. In its substantive aspect; and
2. In its procedural aspect
SUGGESTED ANSWER:
1.) A law violates substantive due process when it is unreasonable
or unduly oppressive. For example, Presidential Decree No. 1717,
which cancelled all the mortgages and liens of a debtor, was
considered unconstitutional for being oppressive. Likewise, as stated
in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, 20 SCRA 849, a law which is vague so that men of
common intelligence must guess at its meaning and differ as to its
application violates substantive due process. As held in Taada v.
Tuvera, 146 SCRA 446, due process requires that the law be published.
2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the
dismissal of a case without the benefit of a hearing and without any
notice to the prosecution violated due process. Likewise, as held in
People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of
the judge who will decide a case violates procedural due process.
QUESTION: On April 6, 1963. Police Officer Mario Gatdula was charged
by the Mayor with Grave Misconduct and Violation of Law before the
Municipal Board. The Board investigated Gatdula but before the case
could be decided, the City charter was approved. The City Fiscal, citing
Section 30 of the city charter, asserted that he was authorized thereunder to
investigate city officers and employees. The case against Gatdula was then
forwarded to him, and are-investigation was conducted. The office of the
Fiscal subsequently recommended dismissal. On January 11, 1966, the City
Mayor returned the records of the case to the City Fiscal for the submission
of an appropriate resolution but no resolution was submitted. On March 3,
1968, the City Fiscal transmitted the records to the City Mayor
recommending that final action thereon be made by the City Board of
Investigators (CBI). Although the CBI did not conduct an investigation, the
records show that both the Municipal Board and the Fiscal's Office
exhaustively heard the case with both parties afforded ample opportunity to
adduce their evidence and argue their cause. The Police Commission found
Gatdula guilty on the basis of the records forwarded by the CBl. Gatdula
challenged the adverse decision of the Police Commission theorizing that he
was deprived of due process.
Questions: Is the Police Commission bound by the findings of the City
Fiscal? Is Gatdula's protestation of lack or nonobservance of due process
well-grounded? Explain your answers.
SUGGESTED ANSWER: The Police Commission is not bound by the
findings of the City Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was
held that the Police Commission is not prohibited from making its own
findings on the basis of its own evaluation of the records. Likewise, the
protestation of lack of due process is not well-grounded, since the
hearings before the Municipal Board and the City Fiscal offered
Gatdula the chance to be heard. There is no denial of due process if
the decision was rendered on the basis of evidence contained in the
record and disclosed to the parties affected.
QUESTION: On November 7, 1990, nine lawyers of the Legal Department of
Y Bank who were all under Fred Torre, sent a complaint to management
accusing Torre of abusive conduct and mismanagement. Furnished with a
copy of the complaint, Torre denied the charges. Two days later, the lawyers
and Torre were called to a conference in the office of the Board Chairman to
give their respective sides of the controversy. However, no agreement was
reached thereat. Bank Director Romulo Moret was tasked to look further into
the matter. He met with the lawyers together with Torre several times but to
no avail. Moret then submitted a report sustaining the charges or the lawyers.
The Board Chairman wrote Torre to inform him that the bank had chosen the
compassionate option of "waiting" for Torre's resignation. Torre was asked,
without being dismissed, to turn over the documents of all cases handled by
him to another official of the bank but Torre refused to resign and requested
for a "full hearing", Days later, he reiterated his request for a "full hearing",
claiming that he had been "constructively dismissed", Moret assured Torre
that he is "free to remain in the employ of the bank" even if he has no
particular work assignment. After another request for a "full hearing" was
ignored, Torre filed a complaint with the arbitration branch of NLRC for illegal
dismissal. Reacting thereto, the bank terminated the services of Torre.
(a) Was Torre "constructively dismissed" before he filed his complaint? (b)
Given the multiple meetings held among the bank officials, the lawyers and
Torre, is it correct for him to say that he was not given an opportunity to be
heard? Explain your answers.
SUGGESTED ANSWER:
a) Torre was constructively dismissed, as held in Equitable Banking
Corporation v. National Labor Relations Commission, 273 SCRA 352.
Allowing an employee to report for work without being assigned any
work constitutes constructive dismissal.
b) Torre is correct in saying that he was not given the chance to be
heard. The meetings in the nature of consultations and conferences
cannot be considered as valid substitutes for the proper observance
of notice and hearing.
TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Department of National Defense entered into contract with
Raintree Corporation for the supply of ponchos to the Armed Forces of
the Philippines (AFP), stipulating that, in the event of breach,
action may be filed in the proper court in Manila.
Suppose the AFP fails to pay for delivered ponchos where must
Raintree Corporation file its claim? Why?
SUGGESTED ANSWER:
Raintree Corporation must file its claim with the Commission on
Audit. Under Section 2(1) IX-D of the Constitution, the Commission on
Audit has the authority to settle all accounts pertaining to
expenditure of public funds. Raintree Corporation cannot file a case
in court. The Republic of the Philippines did not waive its immunity
from suit when it entered into the contract with Raintree Corporation
for the supply of ponchos for the use of the Armed Forces of the
Philippines. The contract involves the defense of the Philippines and
therefore relates to a sovereign function.
In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held:
"The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent
to be sued only when it enters into business contracts. It does not
apply where the contract relates to the exercise of its sovereign
functions. In this case the project are an integral part of the naval
base which is devoted to the defense of both the United States and
the Philippines, indisputably a function of the government of the
highest order: they are not utilized for nor dedicated to commerce or
business purposes"
The provision for venue in the contract does not constitute a waiver
of the State immunity from suit, because the express waiver of this
immunity can only be made by a statute.
In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled:
"Apparently respondent Judge was misled by the terms of the contract
between the private respondent, plaintiff in his sala, and defendant
Rice and Com Administration which, according to him, anticipated the
case of a breach of contract between the parties and the suits that
may thereafter arise. The consent, to be effective though, must come
from the State acting through a duly enacted statute as pointed out
by Justice Bengzon in Mobil."
Topic: ADMINISTRATIVE RULINGS SUBJECT TO FINAL
DETERMINATION OF THE COURT
Andres Ang was born of a Chinese father and a Filipino mother in
Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was
naturalized as a Filipino citizen On May 11, 1998. Andres Ang was
elected Representative of the First District of Sorsogon. Juan Bonto
who received the second highest number of votes, filed a petition for
Quo Warranto against Ang. The petition was filed with the House of
Representative Electoral Tribunal (HRET). Bonto contends that Ang is
not a natural born citizen of the Philippines and therefore is
disqual1fied to be a member of the House.
The HRET ruled in favor of Ang. Bonto filed a petition for certiorari
in the Supreme Court. The following issues are raised:
1. Whether the case is justiciable considering that Article VI.
Section 17 of the Constitution declares the HRET to be the sole Judge-
of all contests relating to the election returns and
disqualifications of members of the House of Representatives.
2. Whether Ang is a natural born citizen of the Philippines.
How should this case be decided?
SUGGESTED ANSWER:
1. The case is justiciable. As stated in Lazatin vs.House Electoral
Tribunal. 168 SCRA 391, 404, since judicial power includes the duty
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government, the Supreme Court
has the power to review the decisions of the House of Representatives
Electoral Tribunal in case of grave abuse of discretion on its part.
2. Andres Ang should be considered a natural born citizen of the
Philippines. He was born of a Filipino mother on January 20, 1973.
This was after the effectivity of the 1973 Constitution on January
17, 1973. Under Section (I), Article III of the 1973 Constitution,
those whose fathers or-mothers are citizens of the Philippines are
citizens of the Philippines. Andres Ang remained a citizen of the
Philippines after the effectivity of the 1987 Constitution. Section 1. Article IV
of the 1987 Constitution provides: "The following are citizens of the
Philippines: "(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution:"
TOPIC: SELF INCRIMINATION
Suppose Congress passed a law to implement the Constitutional
principle that a public office is a public trust, by providing as
follows:
"No employee of the Civil Service shall be excused from attending and
testifying or from producing books, records, correspondence, documents or
other evidence in any administrative investigation concerning the office in
which he is employed on the ground that his testimony or the evidence
required of him may tend to incriminate him or subject him to a penalty or
forfeiture: but his testimony or any evidence produced by him shall not be
used against him in criminal prosecution based on the transaction, matter or
thing concerning which is compelled, after invoking his privilege against self-
incrimination to testify or produce evidence. Provided, however, that such
individual so testifying shall not be exempt from prosecution and punishment
for perjury committed in so testifying nor shall he be exempt from demotion
or removal from office. Any employee who refuses to testify or produce any
documents under this Act shall be dismissed from the service."
Suppose further, that Ong, a member of the Professional Regulatory
Board, is required to answer questions in an investigation regarding
a LEAKAGE in a medical examination.
1. Can Ong refuse to answer questions on the ground that he would
incriminate himself?
2. Suppose he refuses to answer, and for that reason, is dismissed
from the service; can he pausibly argue that the Civil Commission has
inferred his guilt from his refusal to answer in violation of the
Constitution?
3. Suppose on the other hand, he answers the question and on the
basis of his answers, he is found guilty and is dismissed. Can he
pausibly assert that his dismissa1 is based on coerced confession?
SUGGESTED ANSWER:
1. No. Ong cannot refuse to answer the question on the ground that he
would incriminate himself, since the Jaw grants him immunity and
prohibits the use against him in a criminal prosecution of the
testimony or evidence produced by him. As stated by the United States
Supreme Court in Brown vs. Walker, 161 U.S.591, 597, what the
constitutional prohibition against self-incrimination seeks to
prevent is the conviction of the witness on the basis of testimony
elicited from him. The rule is satisfied when he is granted immunity.
2. No Ong cannot argue that the Civil Service Commission inferred
his guilt from his refusal to answer. Be was not dismissed because of
his involvement in the leakage in the medical examination but for his
refusal to answer. This is a violation of the law. He could be
compelled to answer the question on pain of being dismissed in case
of his refusal, because he was granted immunity.
In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States Supreme
Court said: "Furthermore, the accommodation between the interest of the
State and the Fifth Amendment requires that the State have means at its
disposal to secure testimony if immunity is supplied and testimony is
still refused. This is recognized by the power of courts to compel
testimony, after a grant of immunity, by use of civil contempt and
coerced imprisonment. Shilitani vs. United States, 384 US 364, 16 L
Ed 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity the
State may plainly insist that employees either answer questions under
oath about the performance of their job or suffer the loss of
employment."
3. Yes, Ong can argue that his dismissal was based on coerced
confession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the United
States Supreme Court held: "We now hold the protection of the individual
under the Fourteenth Amendment against coerced statements prohibits use
in subsequent criminal proceedings of statements obtained under threat of
removal from office, and that it extends to all, whether they are policemen or
other members of the body politic."
TOPIC: LIMITATIONS OF POWER
The police had suspicions that. Juan Samson, member of the subversive
New-Proletarian Army, was using the mail for propaganda purposes in
gaining new adherents to its cause. The Chief of Police of
Bantolan., Lanao del Sur ordered the Postmaster of the town to
intercept and open all mail addressed to and coming from Juan Samson
in the interest of the national security. Was the order of the Chief
of Police valid?
SUGGESTED ANSWER:
No, the order of the Chief of Police is not valid, because there is
no law which authorizes him to order the Postmaster to open the
letters addressed to and coming from Juan Samson. An official in the
Executive Department cannot interfere with the privacy of
correspondence and communication in the absence of a law authorizing
him to do so or a lawful order of the court.
Section 3(1), Article III of the Constitution provides:
"The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."
TOPIC: JURISDICITON
Suppose a Commissioner of the COMELEC is charged before the
Sandiganbayan for allegedly tolerating violation of the election laws
against proliferation of prohibited billboards and election
propaganda with the end in view of removing him from office. Will the
action prosper?
SUGGESTED ANSWER:
No, the action will not prosper. Under Section 8 Article Xl of the
Constitution. the Commissioners of the Commission on Elections are
removable by impeachment. As held in the case of In re Gonzales, 160
SCRA 771,774-775, a public officer who is removable by impeachment
cannot be charged before the Sandiganbayan with an offense which
carries with it the penalty of removal from office unless he is first
impeached. Otherwise, he will be removed from office by a method
other than impeachment.
TOPIC: SUPERVISION; COURT & ITS PERSONNEL
Pedro Masipag filed with the Ombudsman a complaint against RTC Judge
Jose Palacpac with violation of Article 204 of the Revised Penal Code for
knowingly rendering an unjust judgment in Criminal Case No. 617. Judge
Palacpac filed a motion with the Ombudsman to refer the complaint to the
Supreme Court to determine whether an administrative aspect was involved
in the said case. The Ombudsman denied the motion on the ground that no
administrative case against Judge Palacpac relative to the decision in
Criminal Case No. 617 was filed and pending in his office.
State with reasons whether the Ombudsman's ruling is correct.
SUGGESTED ANSWER:
The Ombudsman's ruling is not correct. Under Section 6, Article VIII of the
Constitution, it is the Supreme Court which is vested with exclusive
administrative supervision over all courts and its personnel. Prescinding from
this premise, the Ombudsman cannot determine for itself and by itself
whether a criminal complaint against a judge, or court employee, involves an
administrative matter. The Ombudsman is duty bound to have all cases
against judges and court personnel filed before it, referred to the Supreme
Court for determination as to whether an administrative aspect is involved
therein. (Judge Jose Caoibes v. Ombudsman, G.R. No. 132177, July 19,
2001)
TOPIC: ADMINISTRATIVE CODE
Are the government-owned or controlled corporations within the scope
and meaning of the "Government of the Philippines"?
SUGGESTED ANSWER:
Section 2 of the Introductory Provisions of the Administrative Code
of 1987 defines the government of the Philippines as the corporate
governmental entity through which the functions of government are
exercised throughout the Philippines, including, save as the contrary
appears from the context, the various arms through which political
authority is made effective in the Philippines, whether pertaining to
the autonomous regions, the provincial, city, municipal or barangay
subdivisions or other forms of local government.
Government-owned or controlled corporations are within the scope and
meaning of the Government of the Philippines if they are performing
governmental or political functions.
TOPIC: ADMINISTRATIVE CODE; FLAG CEREMONY
Section 28, Title VI, Chapter 9, of the Administrative Code of 1987
requires all educational institutions to observe a simple and
dignified flag ceremony, including the playing or singing of the
Philippine National Anthem, pursuant to rules to be promulgated by
the Secretary of Education, Culture and Sports. The refusal of a
teacher, student or pupil to attend or participate in the flag
ceremony is a ground for dismissal after due investigation. The
Secretary of Education, Culture and Sports issued a memorandum
implementing said provision of law. As ordered, the flag ceremony
would be held on Mondays at 7:30 a.m. during class days. A group of
teachers, students and pupils requested the Secretary that they be
exempted from attending the flag ceremony on the ground that
attendance thereto was against their religious belief. The Secretary
denied the request. The teachers, students and pupils concerned went
to the Court to have the memorandum circular declared null and void.
Decide the case.
SUGGESTED ANSWER:
The teachers and the students should be exempted from the flag
ceremony. As held in Ebralinag vs. Division Superintendent of Schools
of Cebu, 251 SCRA 569 , to compel them to participate in the flag
ceremony will violate their freedom of religion. Freedom of religion
cannot be impaired except upon the showing of a clear and present
danger of a substantive evil which the State has a right to prevent.
The refusal of the teachers and the students to participate in the
flag ceremony does not pose a clear and present danger.
TOPIC: ADMINISTRATIVE REMEDIES
1. Distinguish the doctrine of primary jurisdiction from the
doctrine of exhaustion of administrative remedies.
2. Does the failure to exhaust administrative remedies before
filing a case in court oust said court of jurisdiction to hear the
case? Explain.
SUGGESTED ANSWER:
1. The doctrine of primary jurisdiction and the doctrine of
exhaustion of administrative remedies both deal with the proper
relationships between the courts and administrative agencies. The
doctrine of exhaustion of administrative remedies applies where a
claim is cognizable in the first instance by an administrative agency
alone. Judicial interference is withheld until the administrative
process has been completed. As stated in Industrial Enterprises, Inc.
vs. Court of Appeals, 184 SCRA 426, the doctrine of primary
jurisdiction applies where a case is within the concurrent
jurisdiction of the court and an administrative agency but the
determination of the case requires the technical expertise of the
administrative agency. In such a case, although the matter is within
the jurisdiction of the court, it must yield to the jurisdiction of
the administrative case.
2. No, the failure to exhaust administrative remedies before
filing a case in court does not oust the court of jurisdiction to
hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384,
the failure to exhaust administrative remedies does not affect the
jurisdiction of the court but results in the lack of a cause of
action, because a condition precedent that must be satisfied before
action can be filed was not fulfilled.
TOPIC: DUE PROCESS
What is the essence of due process in administrative proceedings? Explain.
SUGGESTED ANSWER:
In administrative proceedings, due process simply means an opportunity to
seek a reconsideration of the order complained of; it cannot be fully equated
to due process in its strict jurisprudential sense. A respondent in an
administrative case is not entitled to be informed of the preliminary findings
and recommendations; he is entitled only to a reasonable opportunity to be
heard, and to the administrative decision based on substantial evidence.
(Vealasquez v. CA, G.R. No. 150732, August 31, 2004, 437 SCRA 357).
Note that it is the administrative order, not the preliminary report, which is the
basis of any further remedies the losing party in an administrative case may
pursue. (Viva Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27,
2005).
TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY
The Municipality of Binangonan, Rizal passed a resolution authorizing
the operation of an open garbage dumpsite in a 9-hectare land in the
Reyes Estate within the Municipality's territorial limits. Some concerned
residents of Binangonan filed a complaint with the Laguna Lake
Development Authority (LLDA) to stop the operation of the dumpsite due to
its harmful effects on the health of the residents.
The LLDA conducted an on-site investigation, monitoring, testing and
water sampling and found that the dumpsite would contaminate Laguna
de Bay and the surrounding areas of the Municipality. The LLDA also
discovered that no environmental clearance was secured by the
Municipality from the Department of Environment and Natural Resources
(DENR) and the LLDA as required by law. The LLDA therefore issued to
the Binangonan Municipal Government a cease and desist order to stop
the operation of the dumpsite. The Municipality of Binangonan filed a
case to annul the order issued by the LLDA.
1. Can the Municipality of Binangonan invoke police power to
prevent its residents and the LLDA from interfering with the
operation of the dumpsite by the Municipality? Explain.
2. Can the LLDA justify its order by asserting that the health
of the residents will be adversely affected? Explain.
SUGGESTED ANSWER:
1. No, the Municipality of Binangonan cannot invoke its police
power. According to Laguna Lake Development Authority vs. Court of
Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA is
mandated to promote the development of the Laguna Lake area,
including the surrounding Province of Rizal, with due regard to the
prevention of pollution. The LLDA is mandated to pass upon and
approve or disapprove all projects proposed by local government
offices within the region.
2. Yes, the LLDA can justify its order. Since it has been
authorized by Executive Order No. 927 to make orders requiring the
discontinuance of pollution, its power to issue the order can be
inferred from this. Otherwise, it will be a toothless agency.
Moreover, the LLDA is specifically authorized under its Charter to
issue cease and desist orders.
TOPIC: ADMINISTRATIVE BODIES OR AGENCY
On July 1991, the Energy Regulatory Board (ERB), in response to
public clamor, issued a resolution approving and adopting a schedule
for bringing down the prices of petroleum products over a period of
one (1) year starting 15 August 1991, over the objection of the oil
companies which claim that the period covered is too long to prejudge
and foresee.
Is the resolution valid?
SUGGESTED ANSWER:
No, the resolution is not valid, since the Energy Regulatory Board
issued the resolution without a hearing. The resolution here is not a
provisional order and therefore it can only be issued after appropriate notice
and hearing to affected parties. The ruling in Philippine Communications
Satellite Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an order
provisionally reducing the rates which a public utility could charge, could be
issued without previous notice and hearing, cannot apply.
TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS
Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquino
created the Presidential Commission on Good Government (PCGG) and
empowered it to sequester any property shown prima facie to be ill-
gotten wealth of the late President Marcos, his relatives and
cronies. Executive Order No. 14 vests on the Sandiganbayan
jurisdiction to try hidden wealth cases. On April 14, 1986, after an
investigation, the PCGG sequestered the assets of X Corporation, Inc.
(1) X Corporation, Inc, claimed that President Aquino as President,
could not lawfully issue Executive Orders Nos. 1, 2, 14, which have
the force of law, on the ground that legislation is a function of
Congress. Decide.
(2) Said corporation also questioned the validity of the three
executive orders on the ground that they are bills of attainder and,
therefore, unconstitutional. Decide
SUGGESTED ANSWER:
(1) The contention of X Corporation should be rejected. Executive
orders Nos. 1, 2 and 14 were issued in 1986. At that time President
Corazon Aquino exercised legislative power Section 1, Article II of
the Provisional Constitution established by Proclamation No. 3,
provided: "Until a legislature is elected and convened under a new
constitution, the President shall continue to exercise legislative
power."
In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas,
Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that the
Provisional Constitution and the 1987 Constitution, both recognized
the power of the President to exercise legislative powers until the
first Congress created under the 1987 Constitution was convened on
June 27, 1987.
(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. A
bill of attainder is a legislative act which inflicts punishment
without trial. On the contrary, the expressly provide that any
judgment that the property sequestered is ill-gotten wealth is to be
made by a court (the Sandiganbayan) only after trial.
TOPIC: CONTROL POWER
Does the President exercises the power of control over all executive
departments and agencies, including government-owned or controlled
corporations
SUGGESTED ANSWER: YES. The president exercises the power of
control over all executive departments and agencies, including
government-owned or controlled corporations with or without original
charters. But the President does not have the power of control over
LGUs (Cruz vs. Secretary of Environment and Natural Resources, 347
SCRA 128 [2000]; National Marketing Corporation vs. Arca, 29 SCRA
648 [1969]).
TOPIC: INTERNAL REVENUE ALLOTMENT FUND
The Provincial Governor of Bataan requested the Department of Budget and
Management (DBM) to release its Internal Revenue Allocation (IRA) of P100
million for the current budget year. However, the General Appropriations Act
provided that the IRA may be released on Iy if the province meets certain
conditions as determined by an Oversight Council created by the President.
a. Is this requirement valid?
b. The Provincial Governor is a party-mate of the President. May the
Bataan Representative instead file a petition to compel the DBM to
release the funds?

SUGGESTED ANSWER:
a. No, this requirement is not valid. Under the 1987 Constitution, it is
provided that local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically
released to them. As held in the case of Alternative Center for
Organizational Reforms and Development, et.al. v. Zamora, G.R. No.
144256 (June 08, 2005), a basic feature of local fiscal autonomy is
the automatic release of the shares of LGUs in the national internal
revenue. The Local Government Code specifies further that the
release shall be made directly to the LGU concerned within five (5)
days after every quarter of the year and shall not be subject to any
lien or holdback that may be imposed by the national government for
whatever purpose.

b. Yes. A congressman from a particular LGU may validly have

standing to demand that IRA for his province be released in
accordance with the Constitution and the Local Government Code.
As a representative of his province, he has a responsibility towards
his constituencies who can expect no less than faithful compliance
with the Constitution. Moreover, the issue presented could be
characterized as involving transcendental importance to the people
and the local government units which had been guaranteed greater
local autonomy.

TOPIC: OMBUDSMAN; POWER TO IMPOSE PENALTIES

Decisions of the Ombudsman imposing penalties in administrative
disciplinary cases are merely recommendatory.

SUGGESTED ANSWER: FALSE. Under Section 15(3) of the

Ombudsman Act, the Ombudsman has the power to ensure
compliance with the imposition of penalty on public officers it finds at
fault by virtue of its disciplinary authority (Office of the Ombudsman
vs. Madriaga, 503 SCRA 631 [2006]).
 PUBLIC OFFICERS QUESTIONS
TOPIC: DE FACTO OFFICER
A person who occupies an office that is defectively created is a de facto
officer.
SUGGESTED ANSWER: FALSE. A de facto officer occupies a valid
existing office however under a color of title of the office. For him to be
a de facto officer, the office must be validly created. (Tuanda vs.
Sandiganbayan, 249 SCRA 342 [1995]).
TOPIC: LAW ON PUBLIC OFFICERS
A. After 2 February 1987, the Philippine National bank (PNB) grants a
loan to congressman X. Is the loan violative of the Constitution?
Suppose the loan had instead been granted before 2 February 1987, but
was outstanding on that date with a remaining balance on the
principal in the amount of P50,000, can the PNB validly give
Congressman X an extension of time after said date to settle the
obligation?
B. For being notoriously undesirable and recidivist, Jose Tapulan, an
employee in the first level of the career service in the Office of
the Provincial Governor of Masbate, was dismissed by the Governor
without formal investigation pursuant to Section 40 of the Civil
Service Decree (P.D. No. 807) which authorizes summary proceedings in
such cases.
As a lawyer of Jose what steps, if any, would you take to protect his
rights?
SUGGESTED ANSWER:
A. whether or not the loan is violative of the 1987 Constitution
depends upon its purpose, if it was obtained for a business purpose,
it is violative of the Constitution. If it was obtained for some
other purpose, e.g. for housing, it is not violative of the
Constitution because under Section 16, Article XI, Members of
Congress are prohibited from obtaining loans from government-owned
banks only if it is for a business purpose.
If the loan was granted before the effectivity of the Constitution on
February 2, 1987, the Philippine National Bank cannot extend its
maturity after February 2, 1987, if the loan was obtained for a
business purpose. In such case the extension is a financial
accommodation which is also prohibited by the Constitution.
B. Section 40 of the Civil Service Decree has been repealed by
republic Act No. 6654. As a lawyer of Jose Tapulan, I will file a
petition for mandamus to compel his reinstatement. In accordance with
the ruling in Mangubat vs. Osmea, G.R. No. L-12837, April 30, 1959,
there is no need to exhaust all administrative remedies by appealing
to Civil Service Commission, since the act of the governor is
patently illegal.
TOPIC: LAW ON PUBLIC OFFICERS
An existing law grants government employees the option to retire upon
reaching the age of 57 years and completion of at least 30 years of
total, government service. As a fiscal retrenchment measure, the
Office of the President later issued a Memorandum Circular requiring
physical incapacity as an additional condition for optional
retirement age of 65 years. A government employee, whose application
for optional retirement was denied because he was below 65 years of
age and was not physically incapacitated, filed an action in court
questioning the disapproval of his application claiming that the
Memorandum Circular is void. Is the contention of the employee
correct? Explain.
SUGGESTED ANSWER:
Yes, the contention of the employee is correct. In Marasigan vs.
Cruz, it was held that such memorandum circular is void. By
introducing physical capacity as additional condition for optional
retirement, the memorandum circular tried to amend the law. Such
power is lodged with the legislative branch and not with the
executive branch.
TOPIC: LAW ON PUBLIC OFFICERS
In 1986, F, then the officer-in-charge of Botolan, Zambales, was
accused of having violated the ANTI-Graft and Corrupt Practices Act
before the Sandigan Bayan. Before he could be arraigned, he was
elected Governor of Zambales. After his arraignment, he put under
preventive suspension by the Sandiganbayan " for the duration of the
trial".
(1) Can F successfully challenge the legality of his preventive
suspension on the ground that the criminal case against him involved
acts committed during his term as officer-in-charge and not during
his term as Governor?
(2) Can F validly object to the aforestated duration of his
suspension?
SUGGESTED ANSWER:
(1) No, F cannot successfully challenge the legality of his
preventive suspension on the ground that the criminal case against
him involve acts committed during his term as OIC and not during his
term as governor because suspension from office under Republic Act
3019 refers to any office that the respondent is presently holding
and not necessarily to the one which he hold when he committed the
crime with which he is charged. This was the ruling in Deloso vs.
Sandiganbayan, 173 SCRA 409
(2) Yes, F Can validly object to the duration of the suspension. In
Deloso vs. Sandiganbayan, 173 SCRA 409, it was held that the
imposition of preventive suspension for an indefinite period of time
is unreasonable and violates the right of the accused to due process.
The people who elected the governor to office would be deprived of
his services for an indefinite period, and his right to hold office
would be nullified. Moreover, since under Section 42 of the Civil
Service Decree the duration of preventive suspension should be
limited to ninety (90) days, equal protection demands that the
duration of preventive suspension under the Anti-Graft and Corrupt
Practices Act be also limited to ninety (90) days only.
TOPIC: FREEDOM OF RELIGION; BENEVOLENT NEUTRALITY TEST
Angelina, a married woman, is a Division Chief in the Department of Science
and Technology. She had been living with a married man, not her husband,
for the last fifteen (15) years. Administratively charged with immorality and
conduct prejudicial to the best interest of the service, she admits her live-in
arrangement, but maintains that this conjugal understanding is in conformity
with their religious beliefs. As members of the religious sect, Yahweh's
Observers, they had executed a Declaration of Pledging Faithfulness which
has been confirmed and blessed by their Council of Elders. At the formal
investigation of the administrative case, the Grand Elder of the sect affirmed
Angelina's testimony and attested to the sincerity of Angelina and her partner
in the profession of their faith. If you were to judge this case, will you
exonerate Angelina? Reasons.
SUGGESTED ANSWER: Yes. (Estrada vs Escritor, August, 4, 2003 and
June 22, 2006) Right to freedom of religion must prevail. Benevolent
neutrality recognizes that government must pursue its secular goals and
interests, but at the same time, strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Although the
morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interest. Benevolent neutrality approach requires that the
court make an individual determination and not dismiss the claim outright.
TOPIC: DISCIPLINE; PREVENTIVE SUSPENSION
Maximino, an employee of the Department of Education, is administratively
charged with dishonesty and gross misconduct. During the formal
investigation of the charges, the Secretary of Education preventively
suspended him for a period of sixty (60) days. On the 60th day of the
preventive suspension, the Secretary rendered a verdict, finding Maximino
guilty, and ordered his immediate dismissal from the service.
Maximino appealed to the Civil Service Commission (CSC), which affirmed
the Secretary's decision. Maximino then elevated the matter to the Court of
Appeals (CA). The CA reversed the CSC decision, exonerating Maximino.
The Secretary of Education then petitions the Supreme Court (SC) for the
review of the CA decision.
a. Is the Secretary of Education a proper party to seek the review of the
CA decision exonerating Maximino? Reasons.
b. If the SC affirms the CA decision, is Maximino entitled to recover
back salaries corresponding to the entire period he was out of the
service? Explain your answer.
SUGGESTED ANSWER:
a. The Secretary of Education is not the proper party to seek review of
the decision of the Court of Appeals, because he is the one who
heard the case and imposed the penalty. Being the disciplinary
authority, the Secretary of Education should be impartial and should
not actively participate in prosecuting Maximino (National Appellate
Board of the National Police Commission vs. Mamauag, 446 SCRA
624 [2005]).
b. As a general rule, Maximo is not entitled to recover back salaries
corresponding to the entire period he was out of the service because
of the NO WORK NO PAY RULE. But if it is found that he is illegally
dismissed or suspended he is entitled to back wages and other
monetary benefits from the time of his illegal dismissal or suspension
up to his reinstatement.
ALTERNATIVE ANSWER: Maximo cannot recover back salaries
during his preventive suspension. The law does not provide for it.
Preventive suspension is not a penalty. During the preventive
suspension, he was not yet out of service. However, he is entitled to
back wages from the time of his dismissal until his reinstatement.
The enforcement of the dismissal pending appeal was punitive, and
he was exonerated (Gloria vs. Court of Appeals, 306 SCRA 287
[1999]). Impeachment; Grounds (2013)
TOPIC: VACANCY; SANGGUNIANG PANLALAWIGAN
On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesar holding the position next in rank thereto "shall be considered for promotion."
succeeded him by operation of law. Accordingly, Benito, the highest ranking Espanol v. Civil Service Commission 206 SCRA 715.
member of the Sangguniang Panlalawigan was elevated to the position of
Vice-Governor. By the elevation of Benito to the office of Vice-Governor, a
vacancy in the Sangguniang Panlalawigan was created.

How should the vacancy be filed?

SUGGESTED ANSWER: The vacancy shall be filled in the following manner:

1. If Benito is affiliated with a political party, the vacancy in the Sangguiniang

Panlalawigan shall be filled by a nomination and certificate of membership of
the appointee from the highest official of the political party. (must be filled
with someone who belongs to the political party to maintain the party
representation as willed by the people in the election).

2. If Benito is not affiliated with a political party, the vacancy shall

be filled by the PRESIDENT through the executive secretary. (sec. 44-46, RA
7160)

TOPIC: LAW OF PUBLIC OFFICERS; NEXT-IN-RANK RULE

No. 15 Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant
position, the City Mayor appointed Jose Reyes, a civil engineer who formerly
worked under Cruz but had been assigned to the Office of the Mayor for the
past five years.

Vicente Estrada, the Assistant City Engineer filed a protest with the Civil
Service Commission claiming that being the officer next in rank he should
have been appointed as City Engineer.

1) Who has a better right to be appointed to the contested position?

SUGGESTED ANSWER:
1) On the assumption that Jose Reyes possesses the minimum qualification
requirements prescribed by law for the position, the appointment extended to
him is valid. Consequently, he has a better right than Vicente Estrada. The
claim of Estrada that being the officer next in rank he should have been
appointed as City Engineer is not meritorious. It is a settled rule that the
appointing authority is not limited to promotion in filling up vacancies but may
choose to fill them by the appointment of persons with civil service eligibility
appropriate to the position. Even if a vacancy were to be filled by promotion,
the concept of "next in rank" does not import any mandatory requirement that
the person next in rank must be appointed to the vacancy. What the civil
service law provides is that if a vacancy is filled by promotion, the person

ELECTION LAW QUESTIONS
TOPIC: ELECTION LAW; SECOND PLACER
Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,
Benguet for the May 2004 elections. Thomas Palileng, another candidate for
Mayor filed a petition to annul/nullify his certificate of candidacy and/or to
disqualify on the ground that Cayat has been convicted of a crime involving
moral turpitude. Twenty three days before the election, Cayats
disqualification became final and executory. He, however won and was
proclaimed and assumed office. Palileng filed an electoral protest contending
that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and
contended that he should succeed Cayat in case he is disqualified because
Palileng was only a second placer, hence, he cannot be declared as the
winner. Is the contention of the Vice-Mayor correct? Why?
SUGGESTED ANSWER:
No, because there was no second placer, hence, Palileng should be
proclaimed as the winner on the following grounds:
First, the COMELECs Resolution of 12 April 2004 cancelling Cayats
certificate of candidacy due to disqualification became final and executory on
17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus,
Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May
2004 elections. Twenty-three days before the election day, Cayat was
already disqualified by final judgment to run for Mayor in the 10 May 2004
elections. As the only candidate, Palileng was not a second placer. On the
contrary, Palileng was the sole and only placer, second to none. The doctrine
on the rejection of the second placer, which triggers the rule on succession,
does not apply in the present case because Palileng is not a second-placer
but the only placer. Consequently, Palilengs proclamation as Mayor of
Buguias, Benguet is beyond question.
Second, there are specific requirements for the application of the doctrine on
the rejection of the second placer. The doctrine will apply in Bayacsans
favor, regardless of his intervention in the present case, if two conditions
concur: (1) the decision on Cayats disqualification remained pending on
election day, 10 May 2004, resulting in the presence of two mayoralty
candidates for Buguias, Benguet in the elections; and (2) the decision on
Cayats disqualification became final only after the elections. (Cayat v.
COMELEC, April 27, 2007).
QUESTION: It was contended that the doctrine of rejection of the second
placer laid down in Labo v. COMELEC should apply. Is the contention
correct? Why?
SUGGESTED ANSWER: No. Labo, Jr. v. COMELEC, which enunciates the
doctrine on the rejection of the second placer, does not apply because in
Labo there was no final judgment of disqualification before the elections. The
doctrine on the rejection of the second placer was applied in Labo and a host
of other cases because the judgment declaring the candidates
disqualification in Labo and the other cases had not become final before the
elections. Labo and other cases applying the doctrine on the rejection of the
second placer have one common essential condition the disqualification of
the candidate had not become final before the elections. This essential
condition does not exist in the present case. (Cayat v. COMELEC).
In Labo, Labos disqualification became final only on 14 May 1992, three
days after the 11 May 1992 elections. On election day itself, Labo was still
legally a candidate. In the case of Cayat he was disqualified by final
judgment 23 days before the 10 May 2004 elections. On election day, Cayat
was no longer legally a candidate for mayor. In short, Cayats candidacy for
Mayor was legally non-existent in the 10 May 2004 elections.
QUESTION: What is the effect if a candidate is disqualified by final
judgment? Explain.
SUGGESTED ANSWER: The law expressly declares that a candidate
disqualified by final judgment before an election cannot be voted for, and
votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987,
states:
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial
and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The
first is when the disqualification becomes final before the elections, which is
the situation covered in the first sentence of Section 6. The second is when
the disqualification becomes final after the elections, which is the situation
covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral
Reforms Law governing the first situation is categorical: a candidate
disqualified by final judgment before an election cannot be voted for, and
votes cast for him shall not be counted. The Resolution disqualifying Cayat
became final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8, 164 votes cast in Cayats favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palilengs proclamation is
proper because he was the sole and only candidate, second to none. (Cayat
v. COMELEC).
QUESTION: Why is the proclamation of Cayat void? Explain.
SUGGESTED ANSWER: Cayats proclamation is void because the decision
disqualifying him had already become final on 17 April 2004. There is no
longer any need to ascertain whether there was actual knowledge by the
voters of his disqualification when they casted their votes on election day
because the law mandates that Cayats votes shall not be counted. There is
no disenfranchisement of the voters. Rather, the voters are deemed by law to
have deliberately voted for a non-candidate, and thus their votes are stray
and shall not be counted. (Cayat. v. COMELEC).
QUESTION: Is the intervention of the Vice-Mayor proper? Why?
SUGGESTED ANSWER: No. The petition-in-intervention should be rejected
because the doctrine on the rejection of the second placer does not apply to
this case. The doctrine applies only if the winning candidates disqualification
has not yet become final and executory before the election. In this case, the
disqualification was final and executory before the election, hence, there was
no second placer. (Cayat v. COMELEC).
TOPIC: SECOND PLACER
It was contended that since Morales was disqualified, the second placer
should be proclaimed as the winner. Is the contention correct? Why?
SUGGESTED ANSWER: In Labo v. COMELEC, the Court has ruled that a
second place candidate cannot be proclaimed as a substitute winner.
The rule is that, the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to
be declared elected. A minority or defeated candidate cannot be deemed
elected to the office.
As a consequence of ineligibility, a permanent vacancy in the contested
office has occurred. This should now be filled by the vice-mayor in
accordance with Sec. 44 of the Local Government Code. (Rivera III, et al. v.
COMELEC, et al., G.R. No. 167591, May 9, 2007 citing Labo v. COMELEC,
G.R. No. 105111, July 3, 1992, 211 SCRA 297).
TOPIC: THREE TERM LIMIT; EVEN AS CARETAKER
QUESTION: Mayor Marino Morales ran for a fourth term despite having
served for three (3) consecutive terms as Mayor of Mabalacat, Pampanga. In
answer to a petition to cancel his certificate of candidacy, he alleged that
while he served his second term, he did it as a caretaker of the office or as
a de facto officer because he was suspended by the Ombudsman from
January 16, 1999 to July 15, 1999 and that his proclamation was declared
void and which became final and executory on August 6, 2001. The
COMELEC declared him disqualified. Before the Supreme Court, he
contended that his second term from July 1, 1999 to June 30, 2001 may not
be counted since his proclamation was void. Is the contention correct? Why?
SUGGESTED ANSWER: No, because his service from July 1, 1999 to June
30, 2001 was for a full term, hence, the three-term limit rule applies to him.
This is especially so that he assumed office. He served as mayor up to June
30, 2001. He was mayor for the entire period notwithstanding the decision in
the electoral protest case ousting him as mayor. As held in Ong v. Alegre,
G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473, such
circumstance does not constitute an interruption in serving the full term. In
Ong, he served the full term even as there was a declaration of failure of
election.
Section 8, Article X of the Constitution provides that the terms of the office of
elected local officials x x x, shall be three years and no such official shall
serve for more than three consecutive terms. x x x
Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly
provides that no local official shall serve for more than three consecutive
terms in the same position.
Morales has been mayor of Mabalacat continuously without any break since
July 1, 1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R.
No. 167591 and Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).
QUESTION: Explain the reason for the maximum term limit.
SUGGESTED ANSWER: The framers of the Constitution wanted to establish
some safeguards against the excessive accumulation of power as a result of
consecutive terms.
As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417
SCRA 601, the three-term limit is an exception to the peoples freedom to
choose those who will govern them in order to avoid the evil of a single
person accumulating excessive power over a particular territorial jurisdiction
as a result of a prolonged stay in the same office. (Rivera III, et al. v.
COMELEC, et al., G.R. No. 167591 and companion case, May 9, 2007).
QUESTION: Is not the case of Morales similar to the case of Lonzanida v
COMELEC? Explain.
SUGGESTED ANSWER: No. In Lonzanida v. COMELEC, while he assumed
office, he voluntarily vacated when there was a declaration of failure of
election. He did not fully serve the term, hence, he was qualified to run for a
third term.
The difference between the case at bench and Lonzanida is at once
apparent. For one, in Lonzanida, the result of the mayoralty elections was
declared a nullity for the stated reason of failure of election, and, as a
consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of the mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there
being an involuntary severance from office as a result of legal processes. In
fine, there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present
case. But more importantly, here, there was actually no interruption or break
in the continuity of Francis service respecting the 1998-2001 term. Unlike
Lonzanida, Francis was never unseated during the term in question; he
never ceased discharging his duties and responsibilities as mayor of San
Vicente, Camarines Norte for the entire period covering the 1998-2001 term.
Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and
assumed the duties of the mayor of San Vicente, Camarines Norte for three
consecutive terms. But his proclamation as mayor in the May 1998 election
was declared void. As ruled, his service for the term 1998 to 2001 is for the
full term. Clearly, the three-term limit rule applies to him. There is no reason
why this ruling should not also apply to Morales who is similarly situated.
(Rivera III, et al. v. COMELEC, et al., May 9, 2007).
QUESTION: What are the requirements which must concur for the three-
term limit to apply?
SUGGESTED ANSWER: For the three-term limit to apply, the following two
conditions must concur:
1) that the official concerned has been elected for three consecutive terms in
the same local government post; and
2) that he has fully served three consecutive terms. (Lonzanida v.
COMELEC, G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v.
Alegre, 479 SCRA 473; Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et
al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).
TOPIC: ASSUMPTION OF OFFICE; TERM
Morales cited Borja v. COMELEC to apply to him. Is this case applicable?
Why?
SUGGESTED ANSWER: No, because with the death of Mayor Cruz, Capco
assumed office as mayor by virtue of the principle of succession, he being
the vice-mayor. He was not therefore, elected even if he served the rest of
the term of the mayor, hence, his assumption of the office of the mayor upon
the death of the incumbent mayor may not be regarded as a term.
Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376
SCRA 90, it was held that assumption of the office of mayor in a recall
election for the remaining term is not the term contemplated under Section
8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local
Government Code). There was a break in the service of the mayor. He was
a private citizen for a time before running for mayor in the recall elections.
(Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).
TOPIC: VACANCY; SUCCESSION; RECALL
Governor Diy was serving his third term when he lost his governorship in a
recall election.
(a) Who shall succeed Governor Diy in his office as Governor?
SUGGESTED ANSWER:
The candidate who received the highest number of votes in the recall
will succeed Governor Diy (Section 72 of the Local Government Code).
(b) Can Governor Diy run again as governor in the next election?
SUGGESTED ANSWER: Yes, because recall election is an
interruption of the consecutiveness of the term of office it cannot be
counted. A recall election is a mid-way election and the term is not
completed when one is conducted. The third term of Governor Diy
should not be included in computing the the=ree-term limit.
(Lonzanida vs. Commission on Elections, 311 SCRA 602 [1999]).
(c) Can Governor Diy refuse to run in the recall election and instead
resign from his position as governor?
SUGGESTED ANSWER: Governor Diy cannot refuse to run in the
recall election. He is automatically considered as a duly registered
candidate. (Section 71, Local Government Code).
ALTERNATIVE ANSWER: YES, Governor Diy is not compelled to run
in a recall election. Recall election is called because the electorate has
lost confidence to the elective official. He may instead resign from his
position.
TOPIC: EFFECT OF CANCELLED CERTIFICATE OF CANDIDACY
What is the effect if the certificate of candidacy of a candidate is cancelled?
Explain.
SUGGESTED ANSWER:
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. (Secs.
6 and 7, RA 6646).
Any vote in favor of a person who has not filed a certificate of candidacy or in
favor of a candidate for an office for which he did not present himself shall be
considered as a stray vote but it shall not invalidate the whole ballot. (Sec.
211, Omnibus Election Code)
Morales can not be considered a candidate in the May 2004 elections. Not
being a candidate, the votes cast for him should not be counted and must be
considered stray votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591,
May 9, 2007).
TOPIC: EFFECT OF A TIE
What is the proper procedure to be resorted to in case of a tie? Explain.
SUGGESTED ANSWER: To resolve the tie, there shall be drawing of lots.
Whenever it shall appear from the canvass that two or more candidates have
received an equal and highest number of votes, or in cases where two or
more candidates are to be elected for the same position and two or more
candidates received the same number of votes for the last place in the
number to be elected, the board of canvassers, after recording this fact in its
minutes, shall by resolution, upon five days notice to all the tied candidates,
hold a special public meeting at which the board of canvassers shall proceed
to the drawing of lots of the candidates who have tied and shall proclaim as
elected the candidates who may favored by luck, and the candidates so
proclaimed shall have the right to assume office in the same manner as if he
had been elected by plurality of votes. The board of canvassers shall
forthwith make a certificate stating the name of the candidate who had been
favored by luck and his proclamation on the basis thereof.
Nothing in this section shall be construed as depriving a candidate of his right
to contest the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R.
No. 171063, March 2, 2007).
TOPIC: EFFECT OF WITHDRAWAL OF CERTIFICATE OF CANDIDACY
Hans Roger filed his certificate of candidacy but withdrew the same. He was
substituted by Joy Luna but the COMELEC denied due course to her
certificate on the ground that Hans being under age, he could not have filed a
valid certificate of candidacy. There was, however, no petition to deny Hans
certificate of candidacy. Did the COMELEC act correctly? Why?
SUGGESTED ANSWER: No. The COMELEC acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in declaring that Hans
Roger, being under age, could not be considered to have filed a valid
certificate of candidacy and, thus, could not be validly substituted by Luna.
The COMELEC may not, by itself, without the proper proceedings, deny due
course to or cancel a certificate of candidacy filed in due form. (Cipriano v.
COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez
v. Del Rosario, the Court ruled that the question of eligibility or ineligibility of
a candidate for non-age is beyond the usual and proper cognizance of the
COMELEC.
If Hans Roger made a material misrepresentation as to his date of birth or
age in his certificate of candidacy, his eligibility may only be impugned
through a verified petition to deny due course to or cancel such certificate of
candidacy under Section 78 of the Election Code.
In this case, there was no petition to deny due court to or cancel the
certificate of candidacy of Hans Roger. The COMELEC only declared that
Hans Roger did not file a valid certificate of candidacy and, thus, was not a
valid candidate in the petition to deny due course to or cancel Lunas
certificate of candidacy. In effect, the COMELEC, without the proper
proceedings, cancelled Hans Rogers certificate of candidacy and declared
the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983,
April 24, 2007).
TOPIC: PRE-PROCLAMATION CONTESTS
The 1st Legislative District of South Cotabato is composed of General
Santos and three municipalities including Polomolok. During the canvassing
proceedings before the District Board of Canvassers in connection with the
2007 congressional election, candidate MP objected to the certificate pf
canvass for Polomolok on the ground that it was obviously manufactured,
submitting as evidence the affidavit of a mayoralty candidate of Polomolok.
The certificate of canvass for General Santos was likewise objected to by MP
on the basis of the confirmed report of the local NAMFREL that 10 election
returns from non-existent precincts were included in the certificate. MP
moved that the certificate of canvass for General Santos be corrected to
exclude the the result from the non-existent precincts. The District Board of
Canvassers denied both objections and ruled to include the certificate of
canvass. May MP appeal the rulings to the COMELEC? Explain.
SUGGESTED ANSWER:
NO. COMELECs Jurisdiction over pre-proclamation cases pertains only to
elections of regional, provincial and city officials. (Sec. 15, RA 7166) No
pre-proclamation cases in election of national officials. For purposes of the
elections for President, V-President, Senator and Member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody and appreciation of
the election returns or the certificates of canvass, as the case may be.
TOPIC: PRE-PROCLAMATION CONTROVERSIES; EXTENT OF
COMELECS POWER
What is the extent of the power of the COMELEC in pre-proclamation
controversy? Explain.
SUGGESTED ANSWER: It is a well-established rule in pre-proclamation
cases that the Board of Canvassers is without jurisdiction to go beyond what
appears on the face of the election return. The rationale is that a full
reception of evidence aliunde and the meticulous examination of voluminous
election documents would run counter to the summary nature of a pre-
proclamation controversy. However, this rule is not without any exception. In
Lee v. Commission on Elections, it was held that if there is a prima facie
showing that the return is not genuine, several entries having been omitted in
the questioned election return, the doctrine does not apply. The COMELEC
is thus not powerless to determine if there is basis for the exclusion of the
questioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc,
et al. v. COMELEC, et al., G.R. No. 171882, April 3, 2007).
TOPIC: INVALIDATION OF BALLOTS; SAME GENERAL APPEARANCE
AND PICTORIAL EFFECT
May the COMELEC invalidate certain ballots merely on a finding that the
writings have the same general appearance and pictorial effect? Explain.
SUGGESTED ANSWER: No. General resemblance is not enough to warrant
the conclusion that two writings are by the same hand. (Silverio v. Clamor,
125 Phil. 917 (1967)).
In order to reach the conclusion that two writings are by the same hand there
must not only be present class characteristics but also individual
characteristics or dents and scratches in sufficient quantity to exclude the
theory of accidental coincidence; to reach the conclusion that writings are by
different hands we may find numerous likeness in class characteristics but
divergences in individual characteristics, or we may find divergences in both,
but the divergence must be something more than mere superficial
differences. (Osborns Questioned Documents, p. 244; Delos Reyes v.
COMELEC, et al., G.R. No. 170070, February 28, 2007).
TOPIC: NEIGHBORHOOD RULE
What is the neighborhood rule? Explain.
SUGGESTED ANSWER:
The votes contested in this appeal are all misplaced votes, i.e., votes cast for
a candidate for the wrong or inexistent office. In appreciating such votes, the
COMELEC may applied the neighborhood rule. As used by the Court, this
nomenclature, loosely based on a rule of the same name devised by the
House of Representatives Electoral Tribunal (HRET) in Nograles v. Dureza,
HRET Case No. 34, June 16, 1989, 1 HRET Rep. 138), refers to an
exception to the rule on appreciation of misplaced votes under Section
211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which
provides:
Any vote in favor of a person who has not filed a certificate of candidacy or
in favor of a candidate for an office for which he did not present himself shall
be considered as a stray vote but it shall not invalidate the whole ballot.
Section 211(19) is meant to avoid confusion in the minds of the election
officials as to the candidates actually voted for and to stave off any scheming
design to identify the vote of the elector, thus defeating the secrecy of the
ballot which is a cardinal feature of our election laws. (Amurao v. Calangi, 10
Phil. 347 (1958)). Section 211(19) also enforces Section 195 of the Omnibus
Election Code which provides that in preparing the ballot, each voter must fill
his ballot by writing in the proper place for each office the name of the
individual candidate for whom he desires to vote.
Excepted from Section 211(19) are ballots with:
(1) a general misplacement of an entire series of names intended to
be voted for the successive offices appearing in the ballot (Cordero
v. Hon. Moscardon, 217 Phil. 392 (1984));
(2) a single (Farin v. Gonzales, 152 Phil. 598 (1973)) or double
(Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438)
misplacement of names where such names were preceded or
followed by the title of the contested office or where the voter wrote
after the candidates name a directional symbol indicating the correct
office for which the misplaced name was intended (Moya v. Del
Fierro, 69 Phil. 199 (1939)); and
(3) a single misplacement of a name written
(a) off-center from the designated space (Mandac v.
Samonte, 54 Phil. 706 (1930)),
 (b) slightly underneath the line for the contested office
(Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5
SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)),
(c) immediately above the title for the contested office
((Villavert v. Fornier, 84 Phil. 756 (1949)), or
(d) in the space for an office immediately following that for
which the candidate presented himself. ((Abad v. Co, G.R.
No. 167438, 25 July 2006, 496 SCRA 505 and Ferrer v.
Commission on Elections, 386 Phil. 431 (2000)).
In these instances, the misplaced votes are nevertheless credited to the
candidates for the office for which they presented themselves because the
voters intention to so vote is clear from the face of the ballots. This is in
consonance with the settled doctrine that ballots should be appreciated with
liberality to give effect to the voters will. (Velasco v. COMELEC, et al., G.R.
No. 166931, February 22, 2007).
TOPIC: MARKED BALLOT
When is a ballot considered as marked? Explain.
SUGGESTED ANSWER: In order for a ballot to be considered marked, in
the sense necessary to invalidate it, it must appear that the voter designedly
place some superfluous sign or mark on the ballot which might serve to
identify it thereafter. No ballot should be discarded as a marked ballot unless
its character as such is unmistakable. The distinguishing mark which the law
forbids to be placed on the ballot is that which the elector may have placed
with the intention of facilitating the means of identifying said ballot, for the
purpose of defeating the secrecy of suffrage which the law establishes. Thus,
marked ballots are ballots containing distinguishing marks, the purpose of
which is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010,
February 8, 2007, Tinga, J).
TOPIC: FAILURE OF ELECTION
When is there failure of election?
SUGGESTED ANSWER: There are three instances where a failure of
elections may be declared, thus:
(a) the election in any polling place has not been held on the date fixed
on account of force majeure, violence, terrorism, fraud or other
analogous causes;
(b) the election in any polling place has been suspended before the
hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof, such
election results in a failure to elect on account of force majeure,
violence, terrorism, fraud or other analogous causes.
In all three instances, there is a resulting failure to elect. In the first
instance, the election has not been held. In the second instance, the
election has been suspended. In the third instance, the preparation
and the transmission of the election returns give rise to the
consequent failure to elect; the third instance is interpreted to mean
that nobody emerged as a winner. (Mutilan v. COMELEC, et al., G.R.
No. 171248, April 2, 2007).
TOPIC: CERTIORARI OF INTERLOCUTORY ORDER OF A COMELEC
DIVISION
May an interlocutory order of a COMELEC Division be the subject of
certiorari to the SC? Explain.
SUGGESTED ANSWER: As a rule, No. The exception is in an unusual case
where the petition for certiorari questioning the interlocutory order of a
COMELEC Division was pending before the SC, the main case which was
meanwhile decided by the COMELEC En Banc was likewise elevated to the
Court. Thus, there was a situation where the petition for certiorari questioning
the interlocutory orders of the COMELEC Division and the petition for
certiorari and prohibition assailing the Resolution of the COMELEC En Banc
on the main case were consolidated. The issues raised in the petition for
certiorari were also raised in the main case and therefore there was actually
no need to resolve the petition assailing the interlocutory orders. (Rosal v.
COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., et
al. v. COMELEC, et al., G.R. No. 164496-505, April 2, 2007).
Note:
Thus, in general, interlocutory orders of a COMELEC Division are not
appealable, nor can they be proper subject of a petition for certiorari. To rule
otherwise would not only delay the disposition of cases but would also
unnecessarily clog the Court docket and unduly burden the Court. This does
not mean that the aggrieved party is without recourse if a COMELEC Division
denies the motion for reconsideration. The aggrieved party can still assign as
error the interlocutory order if in the course of the proceedings he decides to
appeal the main case to the COMELEC En Banc. The exception enunciated
in Kho and Repol is when the interlocutory order of a COMELEC Division is a
patent nullity because of absence of jurisdiction to issue the interlocutory
order, as where a COMELEC Division issued a temporary restraining order
without a time limit, which is the Repol case, or where a COMELEC Division
admitted an answer with counter-protest which was filed beyond the
reglementary period, which is the Kho case.
The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that it is
the decision, order or ruling of the COMELEC En Banc that, in accordance
with Section 7, Art. IX-A of the Constitution, may be brought to the Supreme
Court on certiorari. The exception provided in Kho and Repol is unavailing in
this case because unlike in Kho and Repol, the assailed interlocutory orders
of the COMELEC First Division in this case are not a patent nullity. The
assailed orders in this case involve the interpretation of the COMELEC Rules
of Procedure. Neither will the Rosal case apply because in that case the
petition for certiorari questioning the interlocutory orders of the COMELEC
Second Division and the petition for certiorari and prohibition assailing the
Resolution of the COMELEC En Banc on the main case were already
consolidated.
The Court also notes that the COMELEC First Division has already issued an
Order dated 31 May 2005 dismissing the protests and counter-protests in
EPC Nos. 2004-36, 2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42,
2004-43, 2004-44, and 2004-45 for failure of the protestants and protestees
to pay the required cash deposits. Thus, the Court have this peculiar
situation where the interlocutory order of the COMELEC First Division is
pending before the Court but the main case has already been dismissed by
the COMELEC First Division. This situation is precisely what the Court are
trying to avoid by insisting on strict compliance of the rule that an
interlocutory order cannot by itself be the subject of an appeal or a petition
for certiorari.
TOPIC: MISREPRESENTATION IN THE CERTIFICATE OF CANDIDACY
QUESTION: When is misrepresentation in a certificate of candidacy
material? Explain.
SUGGESTED ANSWER: A misrepresentation in a certificate of candidacy is
material when it refers to a qualification for elective office and affects the
candidates eligibility. Second, when a candidate commits a material
misrepresentation, he or she may be proceeded against through a petition to
deny due course to or cancel a certificate of candidacy under Section 78, or
through criminal prosecution under Section 262 for violation of Section 74.
Third, a misrepresentation of a non-material fact, or a non-material
misrepresentation, is not a ground to deny due course to or cancel a
certificate of candidacy under Section 78. In other words, for a candidates
certificate of candidacy to be denied due course or cancelled by the
COMELEC, the fact misrepresented must pertain to a qualification for the
office sought by the candidate. (Nelson T. Lluz, et al. v. COMELEC, et al.,
G.R. No. 172840, June 7, 2007).
QUESTION: If a candidate misrepresents his profession, is he disqualified?
Explain.
SUGGESTED ANSWER: No. No elective office, not even the office of the
President of the Republic of the Philippines, requires a certain profession or
occupation as a qualification.
Profession or occupation not being a qualification for elective office,
misrepresentation of such does not constitute a material misrepresentation.
Certainly, in a situation where a candidate misrepresents his or her
profession or occupation in the certificate of candidacy, the candidate may
not be disqualified from running for office under Section 78 as his or her
certificate of candidacy cannot be denied due course or canceled on such
ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7,
2007).
TOPIC: PARDON; RUNNING FOR ELECTIVE POSITION
During his campaign sortie in Barangay Salamanca, Mayor Galicia was
arrested at a PNP checkpoint for carrying high-powered firearms in his car.
He was charged and convicted for violation of the COMELEC gun ban. He
did not appeal his conviction and instead applied for executive clemency.
Acting on the favorable recommendation of the Board of Pardons and Parole,
the President granted him pardon. Is he eligible to run against for an elective
position?. Explain Briefly.
SUGGESTED ANSWER: Mayor Galicia can run again for an elective office
but not immediately. Under Section 40 of the Local Government Code, he
cannot run for an elective office within two (2) years after serving sentence.
Under Section 12 of the Omnibus Election Code, he can run for an elective
national office after the expiration of five (5) years from his service of
sentence. The pardon granted to him is invalid. The offense involved a
violation of the Omnibus Election Code and the pardon was granted without
the favorable recommendation of the Commission on Elections. (Section 5,
Article IX-C of the Constitution).
ALTERNATIVE ANSWER: No. Galicia is not eligible to run for an elective
position because the executive clemency is not valid and effective because it
was granted with constitutional infirmity. The Constitution requires
recommendation from the COMELEC before the President may grant
executive clemency for offenses violating election laws.
TOPIC: THREE-TERM LIMIT; CONTEST; SUBSTITUTION
Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-
Governor of Tawi-Tawi. After being proclaimed Vice-Governor in the 2004
elections, his opponent, Khalil, filed an election protest before the
Commission on Election. Ruling with finalty on the protest, the COMELEC
declared Khalil as the duly elected Vice-Governor though the decision was
promulgated only in 2007, when Abdul had fully served his 2004-2007 term
and was in fact already on his 2007-2010 term as Vice Governor.
a. Abdul now consults you if the can still run for Vice-Governor of Tawi-
Tawi in the forthcoming May 2010 election on the premise that he
could not be considered as having served as Vice-Governor from
2004-2007 because he was not duly elected to the post, as he
assumed office merely as a presumptive winner and that
presumption was later overturned when COMELEC decided with
finality that had lost in the May 2004 elections. What will be your
advice?
b. Abdul also consults you whether his political party can validly
nominate his wife as subtitute candidate for Vice-Mayor of Tawi-Tawi
in May 2010 elections in case the COMELEC disqualifies him and
denies due course to or cancels his certificate of candidacy in view of
a false material representation therein. What will be your advice?

SUGGESTED ANSWER:

a. Abdul can no longer run for Vice-Governor in the forthcoming May

2010 election because there is no interruption of service of his 2004-
2007 term. He is considered to have already served and thereof it is
counted in the consecutiveness of his term of office. (Ong v. Alegre,
Jan. 23, 2006).

b. I will advise him that his wife can be a substitute if his wife is a
member of the political party and is certified by such political party
that she is going to substitute Abdul as candidate for Vice-Governor
and that the substitution must be made within the prescribed period
provided by law. Provided further that his wife is eligible to hold
public office meaning she has all the qualifications and none of the
disqualifications.