Professional Documents
Culture Documents
controversies
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
as supplement,
Corporation code 1.06 Power to reorganize includes power
NON-INCORPORATED to create or abolish office
agencies or instrumentalities- The legislature delegates to the
no juridical personality distinct President the power to create or abolish
from the Republic; ex. Sugar offices through reorganization.
Regulatory Administration REORGANIZATION, process of
Expiration of term: restructuring the bureaucracy’s
assumed by the RP organizational and functional set up.
This applies to all offices except those
CHARTERED INSTITUTION agency created under Constitution.
organized and operating under specific
charter; includes state universities and 1.07 Reasons for creation of
colleges administrative agencies
ADMINISTRATIVE AGENCIES-
ADMINISTRATION refers to the charged with administering and
aggregate of those persons in whose implementing particular regulations
hand the reins of government for the Reasons for creation
time being. 1. Unclog court dockets
2. Meet the complexity of growing
1.05 Creation and abolition of agencies society
PUBLIC OFFICE- right, authority and 3. Regulation of Ramified activities
duty created and conferred by law by 4. Entrust to specialized agencies in
which for a given period either fixed by specific fields.
law or enduring at the pleasure of the
appointing power an individual is
Congress’ Reasons:
invested with some portion of the
1. Agencies wherein the government is
sovereign functions of the government,
offering some gratuity
to be exercised by that individual for the
2. Agencies seeking carry out certain
benefit of the public
governmental functions
TWO FUNCTIONS:
3. Agencies performing some business
i. Functional unit
service in the public
ii. position held or occupied by
4. Agencies seeking to regulate
individual person
business affected with public interest
Public Office is created by:
5. Agencies regulating the public
a. Constitution (President,
interest and private individuals
ConCom,NEDA)
6. Agencies seeking to adjust individual
b. Statutes (all administrative
controversies
agencies)
7. Agencies seeking to conduct
Note: Primarily, creation of public
investigation and gather evidence and
office is a legislative function. It is
information, and recommendation of
discretionary upon the legislative
crimes
department the creation of additional
offices.
c. Officer or tribunal to which the power
to create the office has been
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delegated by legislature
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
President has the power to order the conduct The public officer is not entitled to be
of investigation, not only in proceedings of a informed to be informed of the findings and
legislative or judicial nature, but also in recommendations of said investigating body
proceedings whose sole purpose is to obtain or committee. He is only entitled to be
information upon which future action of a informed of the charges against him, to a
disciplinary, administrative, prosecutor, bearing of said charges, to an opportunity to
legislative or judicial nature may be taken. meet the evidence against him, to present his
own evidence and to furnished with copy of
The president’s investigatory power the administrative decision.
emanates from his power of supervision and
control over all executive departments, 3.34 Investigatory power as main function
bureaus, and offices; his power of
supervision over local government units; and Test: w/n the adjudication signifies the
his power of appointment of presidential exercise of power and authority to adjudicate
appointees which are conferred upon him by upon the rights and obligations of the parties
the Constitution. before it. If the only purpose of the
investigation is to evaluate evidence
Sec 64(c) RAC “To order, when in his opinion submitted before it based on facts and
the good of the public service so requires, an circumstances presented to it; and if the
investigation of any action or the conduct of agency is not authorized to make a final
any person in Gov’t service and in pronouncement affecting the parties, then
connection therewith to designate the official there is an absence of JUDICIAL
committee or person by whom such DISCRETION AND JUDGMENT.
investigation shall be conducted.”
CHR and NBI- only administrative agency
It is enough that the investigation be for a with administrative power
lawfully authorized purpose.
CHR-
The administrative agency has the power of i.) Investigate on its own complaint;
inquisition which is not dependent upon a ii.) adopt its operational guidelines
case or controversy in order to get evidence, iii.) provide appropriate legal measures.
but can investigate merely on suspicion that iv.) exercise visitorial power;
the law is being violated or even just because v.) Continuing program for research and
it wants assurance that it is not. education;
vi.) Recommend effective measure to
In sum, it may be stated that a subpoena promote HR to congress;
meets the requirements for enforcement if vii.) monitors PG’s compliance with
the inquiry is a.) within the authority of the international treaty;
agency; b.) the demand is not too indefinite viii.) Grant immunity from prosecution;
and c.) the information is reasonably relevant ix.) request assistance to any department
x.) appoint its officers; and
3.33 Investigatory powers, as incidents of xi.) perform other duties
main function
Carino v CHR: CHR has no power to
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investigatory power, one of the determinative Fact finding is not adjudication and cannot be
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
likened to the judicial function of a court of (2) Direct, upon complaint or at its own
justice or even a quasi judicial agency or instance, any officer or employee of
official the Government, or of any subdivision,
agency or instrumentality thereof, as
well as any government-owned or
NBI- Sec 1 of RA no. 157
controlled corporations with original
i.) undertake investigation of crime charter, to perform and expedite any
ii.) render assistance, whenever properly act or duty required by law, or to stop,
requested in the investigation or prevent, and correct any abuse or
detection of crimes impropriety in the performance of
iii) act as a national clearing house of duties;
criminal
iv.) give technical aid to all prosecuting (3) Direct the officer concerned to take
and law enforcement officers appropriate action against a public
v.) extend its services (administrative officer or employee at fault or who
investigation) neglects to perform an act or discharge
vi.) train representatives a duty required by law, and
recommend his removal, suspension,
vii.) establish up to date scientific crime
demotion, fine, censure, or
lab prosecution, and ensure compliance
viii.) other functions assigned by Sec. of therewith; or enforce its disciplinary
Justice authority as provided in Section 21of
this Act: Provided, That the refusal by
NBI- not judicial or quasi judicial in nature. Its any officer without just cause to
functions are merely investigatory and comply with an order of the
informational in nature; cannot even Ombudsman to remove, suspend,
determine probable cause and findings are demote, fine, censure, or prosecute an
merely recommendatory. officer or employee who is at fault or
who neglects to perform an act or
discharge a duty required by law shall
3.35 Investigatory power of the Ombudsman be a ground for disciplinary action
against said officer;
The Office of the Ombudsman is a creation
of Constitution. It is the protector of the (4) Direct the officer concerned, in any
people against abuses of government appropriate case, and subject to such
officials and employees. See RA 6770 limitations as it may provide in its rules
of procedures, to furnish it with copies
Section 15. Powers, Functions and of documents relating to contracts or
Duties. - The Office of the transactions entered into by his office
Ombudsman shall have the following involving the disbursement or use of
powers, functions and duties: public funds or properties, and report
any irregularity to the Commission on
(1) Investigate and prosecute on its Audit for appropriate action;
own or on complaint by any person,
any act or omission of any public (5) Request any government agency
officer or employee, office or agency, for assistance and information
when such act or omission appears to necessary in the discharge of its
be illegal, unjust, improper or responsibilities, and to examine, if
inefficient. It has primary jurisdiction necessary, pertinent records and
over cases cognizable by the documents;
Sandiganbayan and, in the exercise of
his primary jurisdiction, it may take (6) Publicize matters covered by its
over, at any stage, from any investigation of the matters mentioned
8
CHAPTER IV
Memorandum orders- acts of the President
on matters of administrative detail or of
QUASI-LEGISLATIVE POWER subordinate interest which only concern a
particular officer or office of the Government.
A. IN GENERAL
Memorandum circulars
4.36 Legislative power, generally
Legislative power is the power to make, alter 4.38 Delegation to the Supreme Court
and repeal laws and it shall be vested by the
Congress of the Philippines. Such power is Section 5.5, Article VIII, Constitution
plenary for all purposes of civil government,
subject only to such limitations as are found Promulgate rules concerning the protection
in the Constitution and enforcement of constitutional rights,
pleading, practice, and procedure in all
US v Barrias: Legislative power cannot be courts, the admission to the practice of law,
delegated as it constitute not only of a right the integrated bar, and legal assistance to
but a duty to be performed by the delegate the under-privileged. Such rules shall provide
by the instrumentality of his own judgment. a simplified and inexpensive procedure for
the speedy disposition of cases, shall be
4.37 Delegation of Legislative power to uniform for all courts of the same grade, and
the President shall not diminish, increase, or modify
substantive rights. Rules of procedure of
The Constitution itself makes the delegation special courts and quasi-judicial bodies shall
of legilstaive power to the President, SC and remain effective unless disapproved by the
LGU
Supreme Court.
Delagation to the President: Sec 23(2) and
28(2) of Art VI of Constitution 4.39 Delegation to LGUs
5. Prospective application
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
Unless intent to the contrary is made or regulation in the courts, including the regional
manifest either by express terms of the trial courts.
statute or by necessary implication.
This is within the scope of judicial power, which
Legislation on the admin level: includes the authority of the courts to determine in
an appropriate action the validity of the acts of the
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political departments. Judicial power includes
The rule-making power of an AA (the power the duty of the courts of justice to settle actual
to make implementing or interpretative R or controversies involving rights which are legally
R) is legislative in character and results in demandable and enforceable, and to determine
delegated legislation. whether or not there has been a grave abuse of
discretion amounting to lack or excess of
- Rule-making is legislation in the jurisdiction on the part of any branch or
admin level (legislation within the instrumentality of the Government.
confines of the granting statute, as
required by the Consti); also called 4.45 Right to notice and hearing
admin legislation, delegated
legislation, ordinance-making, and The issuance of rules and regulations in the
quasi-legislation. exercise of AA of its quasi-legislative power
does not requires notice and hearing, while
The power conferred upon an AA to issue or adjudication of controversies requires so.
promulgate R or R necessary to carry out its
functions has been held to be an adequate 4.46 Kinds of Rule making power
source of authority to delegate a particular
function. Kinds of rule-making powers
Tatad vs Secretary of DOE: The court ruled that 4.53 Presence of a sufficient standard.
RA No. 8180 is declared unconstitutional and ED.
No. 372 void.The rational of the Court annulling
RA No. 8180 is not because it disagrees with
- there must be adequate guidelines or
deregulation as an economic policy but because limitations in the law to map out the
as cobbled by Congress in its present form, the boundaries of the delegated authority
law violates the Constitution. The right call and prevent the delegation from
therefore should be for Congress to write a new running riot.
oil deregulation law that conforms to the - Standard may be express (prescribed
Constitution and not for this Court to shirk its duty by the law itself), or implied (from the
of striking down a law that offends the policy and purpose of the statute
Constitution. Striking down RA. No. 8180 may considered as a whole, other laws).
cost losses in quantifiable terms to the oil
- In the delegation of rate-fixing, the
oligopolists. But the loss in tolerating the
tampering of our Constitution is not quantifiable in
only standard is that the rate be
pesos and centavos. More worthy of protection reasonable and just.
than the supra-normal profits of private
corporations is the sanctity of the fundamental 4.54 There is no uniform application
principles of the Constitution. When confronted by standard
a law violating the Constitution, the Court has no
option but to strike it down dead. Lest it is missed, 4.55 Standard fixed cannot be
the Constitution is a covenant that grants and
enlarged nor restricted
guarantees both the political and economic rights
of the people. The Constitution mandates this
Court to be the guardian not only of the people's 4.56 When standard insufficient- a
political rights but their economic rights as well. statue which prescribes no or inadequate
The protection of the economic rights of the poor standard for the exercise of delegated
and the powerless is of greater importance to legislative power; rules issued are null
them for they are concerned more with the and void
13
A rule is binding on the courts so long as Administrative bodies have the authority
the procedure fixed for its promulgation is to issue administrative regulations which are
followed and its scope is within the statute penal in nature where the law itself makes
14
granted by the legislature, even if the the violation of the administrative regulation
courts do not agree with the policy stated punishable and provides for its penalty.
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When there is no provision that violation the law will be enforced. The power to
of such rules shall be unlawful and ascertain facts may be delegated.
punishable, and does not prescribe penalty
for such violation, the administrative agency To be valid, the law delegating the power
has no power to penalize violation of such to ascertain facts must provide the standard
rules and regulations. and fix the limits within which the discretion
may be exercised, and define the conditions
4.62 When rules take effect. therefor. Absent the requirements, the law
and the rules issued are void –the former
The term “law” in Section 2 of the New being an undue delegation of legislative
Civil Code includes rules and regulations power and the latter being the exercise of
issued pursuant to a valid delegation and rule-making without legal basis.
designed to enforce or implement an existing
law. 4.64 Prohibition against re-delegation;
exceptions.
GR: The rules must be published to be
effective; the publication must be in full or it is What has been delegated cannot be
no publication at all since its purpose is to delegated (potestas delegate non delegari
inform the public of its contents. protest).
XPN: Reasons
(1) interpretative regulations and those (a) a delegated power constitutes not
merely internal in nature, that is only only a right but a duty to be
regulating the personnel of the performed by the delegate through
administrative agency and not the the instrumentality of his own
public, need not be published. judgment and not through the
(2) letters of instructions issued by intervening mind of another;
administrative superior concerning (b) it would also negate the trust
the rules or guidelines to be followed reposed in the delegate mandated
by their subordinates in the to discharge it directly.
performance of their duties.
Rule is applicable where the power is
Rules are also required to be filed with the discretionary. It is sufficient that the judgment
U.P. Law Center of the University of the and discretion finally exercised are those of
Philippines pursuant to Section 3, Chapter 2, the officer authorized by law.
Book VII of the 1987 Administrative Code.
4.65 Delegation of rate-fixing power.
4.63 Delegation to ascertain facts.
The legislature usually delegates its rate-
The legislature may delegate to an fixing power to administrative agencies for
administrative agency the power to the latter to fix the rates which public utility
determine some fact or state of thing upon companies may charge the public.
which the law makes, or intends to make, its
own action depends, or the law may provide The standard which the legislature is
that it shall become operative only upon the required to prescribe for the guidance of the
contingency of some certain fact or event, administrative authority is that the rate be
the ascertainment of which is left to an reasonable and just. But even in the absence
administrative agency. of an express requirement as to
reasonableness, this standard may be
15
The act must both be non-confiscatory 4.67 Power to fix rate cannot be re-
and must have been established in the delegated.
manner prescribed by the legislature.
Otherwise, in the absence of a fixed GR: The power delegated to an
standard, the delegation of power becomes administrative agency to fix rates cannot be
unconstitutional. delegated to another.
XPN: there is a law authorizing it.
However, the agency is limited by the
requirements of public safety, public interest, CONTEMPORARY CONSTRUCTION
reasonable feasibility and reasonable rates,
which conjointly satisfy the requirements of a 4.68 Administrative rule and interpretation
valid delegation of legislative power. distinguished.
action is entitle to notice and hearing, agencies entrusted with its enforcement.
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
This rule is binding on the courts so long E.g the labor arbiter interpreting provisions of
as the procedure fixed for its promulgation is the labor code.
followed and its scope is within the statutory
authority granted by the legislature. 4.70 Forms of interpretation.
administrative and executive officials of the Where there is a doubt as to the proper
government. interpretation of a statue, the uniform
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4.75 Legislative approval of administrative evident conflict with the clearly express ed
construction. legislative intent.
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
e.g
In tax cases where the interpretive circular
addressed to internal revenue officers by the
commissioner on internal revenue is
rendered necessary because the tax statue
to be enforced is to hard to understand and
where, in reliance on such circular, a
taxpayer faithfully complied with the
obligation of paying the tax required by it. In
such a case, the taxpayer may not be
required to pay additional tax during the
period that said circular had not been
rescinded by a subsequent circular correcting
the erroneous interpretation.
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
(1) Increasing variety of powers and Jurisdiction is derived from the latin
functions given to administrative agencies. words “juris” and “dico” which mean “I speak
(2) The call for technical knowledge and by the law.”
speed in countless controversies which
cannot be handled by regular courts. Jurisdiction means the power or capacity
(3) Growing complexity of modern society. conferred by the Constitution or by law to a
(4) Need for specialized administrative court or tribunal to entertain, hear and
boards or commissions with special determine certain controversies, and render
knowledge, experience and capability to hear judgment thereon. It is determine by the
and determine promptly disputes on technical statute in force at the time of the
matters or essentially factual matters, subject commencement of the action.
to judicial review in appropriate cases has
become indispensable. Jurisdiction over the subject matter
(5) To unclog the dockets and to enable the refers to the nature of the cause of action
court to decide more cases falling within its and of the relief sought, which is vested by
jurisdiction. law and which is not acquired by consent or
acquiescence of the parties not by the
5.85 Voluntary arbitrator a quasi-judicial unilateral assumption thereof by a tribunal.
officer.
Arbitration is the reference of a dispute Jurisdiction over the person of the
to an impartial third person for determination petitioner or plaintiff is acquired by the latter’s
on the basis of evidence and arguments filing the initiatory pleading and paying the
presented by the parties who have bound required docket or filing fees; where
themselves to accept the decision. jurisdiction over the person of the respondent
or defendant is acquired by the service of
Involuntary arbitration is one compelled summons or by his voluntary submission to
by the government to accept the resolution of the authority of the court or tribunal.
the dispute through the arbitration of a third
party. 5.87 Extent of jurisdiction.
incident thereto.
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5.90 Party cannot take inconsistent Prior notice and hearing required.
positions. In administrative cases, the GR is that prior
notice and hearing are necessary only where
A party cannot take a position in court the law so requires. “In any contested case
different from that which he took before an all parties shall be entitled to notice and
administrative body because of the hearing. The notice shall be served at least 5
underlying requirement of the exhaustion of days before the date of the hearing and shall
administrative remedies where administrative state the date, time and place of hearing.”
authorities had the prior opportunity to decide
controversies within its competence and in E.G. Before the Sandiganbayan can
much the same way, on the judicial level, preventively suspend a public official charged
issues not raised in the lower court cannot be with a crime before it, there must first be a
raised for the first time on appeal. hearing to determine the validity of the
22
preventively suspend the accused for a The twin rights are dispensable in the ff:
period not exceeding 90 days. *Preventive suspension of public servant
facing administrative charges;
When prior notice not required. *Summary distraint and levy of the property
Where the law is silent on prior notice and of a delinquent taxpayer, and the
hearing before an agency action, compliance replacement of a temporary appointee (there
with the requirement depends upon the is tentativeness of administrative action, that
nature of the power to be exercised or the is, where the respondent is not precluded
end to be achieved. Generally, where what is from enjoying the right to notice and hearing
to be exercised is police power duly at a later time without prejudice to the person
delegated to an administrative officer, or affected);
where what is sought to be prevented or *Extraditee- there being no law or provision
achieved requires immediate action for the of the treaty requiring the twin rule, the
public good or interest, prior notice or hearing extradited is only entitled to notice and
is not necessary for the validity of the action hearing after the extradition case is filed in
taken, so long as the aggrieved party is court.
subsequently accorded hearing on the action
taken, by the administrative agency setting Notice minimum requirement in summary
the case for hearing or upon motion or dismissal.
petition by the aggrieved party. Summary dismissal proceedings- authorized
by law to be instituted against erring police
E.G. Withdrawal, suspension, or annulment officers.
of a license may be effected without hearing
and notice, in cases of willful violation of Charges specified in writing and affidavits in
pertinent laws, rules and regulations or when support thereof attached to the complaint
public security, health or safety so require. PLUS allowance of reasonable opportunity to
respondent to answer the charges=
Prior notice not required in the exercise of MINIMUM REQUIREMENTS OF DUE
police power. PROCESS.
Two Kinds of Nuisances:
(1) Nuisance per se- recognized under any Notice and hearing in rate-facing.
and all circumstances because it GR: A public utility must be afforded some
constitutes a direct menace to public opportunity to be heard as to the propriety
health or safety, and for that reason, may and reasonableness of rates fixed for its
be abated summarily, without legal services by a public service commission.
proceedings and without hearing, under
the undefined law of necessity or under Prior notice in issuance of ex parte or
the police power. Prior notice may be preliminary order.
given to the affected party not to give him i.e. provisional reliefs(TRO’s, cease or desist
the opportunity to be heard, but to give orders)
him the opportunity to remove it or the
same may be abated at his expense. GR: Notice and hearing not required
But even if there is notice or opportunity to be and no duty rests on such a body to furnish
heard, there is still violation of due process the person being investigated with counsel.
which renders the decision or ruling of the
administrative agency invalid, where: The right to counsel is not imperative in
administrative investigations because such
(1) No evidence to support decision; inquiries are conducted merely disciplinary
(2) evidence other than that presented measures against erring public officers and
during the proceedings or disclosed in employees, with the purpose of maintaining
the records was taken into account in the dignity of the government service.
rendering the ruling;
(3) the quasi-judicial body or officer did not E. DECISION, APPEAL AND JUDICIAL
possess the cold neutrality of an impartial REVIEW
judge; and
(4) the administrative office or body acted Decision defined.
with gave abuse of discretion amounting The whole or any part of the final disposition,
to lack or excess of jurisdiction. not of an interlocutory character, whether
affirmative, negative, or injunctive in form, of
Where there is no denial of due process. a quasi-judicial agency in any matter,
A party who has been notified of the hearing, including licensing, rate fixing and granting of
but failed to attend the same or refrained rights and privileges.
from participating in the agency proceedings
cannot complain that he has been denied Period to render decision.
due process. The “agency shall decide each case within
30 days following its submission.”
Informal proceeding proscribed. A case is deemed submitted for decision
A very informal conduct of an administrative after both parties shall have concluded
proceeding, consisting of not informing or presentation of their evidence or upon the
furnishing the respondent of a complaint that filing of their respective memoranda, if
initiate the case is prohibited. required or if they so ask and the same is
granted.
Motion for reconsideration cures
procedural due process defects; XPNS NOTE: Use of word “shall” does not connote
GR: MR has the effect of curing whatever command; 30-day-period is merely directory.
irregularity has been committed in the
proceedings. Form of decision.
XPNS: *Any of the other requirements has Although the constitutional provision that ”No
not been observed. decision shall be rendered by any court
*Investigating body did not include as a without expressing therein clearly and
member a representative from an distinctly the facts and the law on which it is
organization specifically required by law to be based is not applicable to decision issued by
represented therein. quasi-judicial bodies, the Administrative
* Decision against respondent has nothing to Code requires that “Every decision rendered
support itself. by the agency in a contested case shall be in
writing and shall state clearly and distinctly
Right to counsel, not a due process the facts and the law on which it is based.
requirement
A party in an administrative inquiry may or Publication of Decisions
may not be assisted by counsel, irrespective Every agency shall publish and make
24
of the nature of the charges and of the available for public inspection all decisions or
respondent’s capacity to represent himself, final orders in the adjudication of contested
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question properly assigned, is dependent. The doctrine of res judicata certainly applies
to adversary administrative proceedings.
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
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ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
Not applicable where judicial relief is action without violating the doctrine of
required to prevent violence. exhaustion of administrative remedies
because his action, as the President’s alter
Not applicable where agency acted with ego, deemed to be that of the President.
no jurisdiction.
Not applicable where issue is purely legal.
E.G. Agency acted without jurisdiction or with E.G. of purely legal questions
grave abuse of discretion in taking *W/N the abolition of a position is in
cognizance of a belated appeal from decision accordance with law.
of a lower level administrative body which * W/N a statute or ordinance, pursuant to
had become final and thereafter reversing it. which a public officer has been dismissed
is unconstitutional.
Not applicable where there is yet no * W/N the assessor has the authority, acting
administrate order. solely and independently, to impose an
It is a well-settled rule that, for prohibition to assessment.
lie against an executive officer, the petitioner
must first exhaust administrative remedies. Issues of law cannot be resolved with finality
This doctrine rests upon the assumption that by the administrative officer.
the administrative body, board or officer, if
given the chance to correct its/his mistake or Not applicable where administrative
error, may amend its/his decision on a given remedy is permissive.
matter. The doctrine does not apply where, by the
terms or implications of the statute
Not applicable where there is estoppel. authorizing an administrative remedy, such
Exhaustion is not necessary where there is remedy is permissive only.
estoppel on the part of the party invoking the
doctrine or on the part of the administrative Not applicable where doctrine will result
agency concerned. in nullification of claim.
Or where the administrative agency has no
Not applicable where there is urgency or power to grant the relief sought in civil action,
irreparable damage. such as the claim for damages.
One of the exceptions to the doctrine of
exhaustion of administrative remedies is the Not applicable to quo warrants cases.
urgency of judicial intervention, as when a While it may be desirable that administrative
writ of preliminary injunction is sought in remedies be first resorted to, no one is
which the petitioner has shown that there is compelled or bound to do so; and as said
substantial controversy between the parties remedies neither are prerequisites to nor bar
and the respondent is committing an act or the institution of quo warrant proceedings, it
threatening the immediate commission of an follows that he who claims the right to hold a
act that will cause irreparable injury or public office usurped by another and who
destroy the status quo of the controversy desires to seek redress in the courts, should
before a full hearing can be had on the merits file the proper judicial action within the
of the case, which relief may not be available reglementary period. For public interest
in the administrative proceedings. requires that the rights to a public office
should be determined as speedily as
Not applicable where qualified political practicable.
agency applies.
Pursuant to this doctrine, a party aggrieved Not applicable where there is no law
30
* arbitrary action
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
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Final decision beyond judicial review. courts are not supposed to reassess the
The right to appeal is merely a statutory right evidence, determine its preponderance of
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and may be exercised only in the manner either side, and substitute its own findings for
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
those of the administrative agency. All that 10. When the findings are premised on the
the court does is to inquire from the record if absence of evidence but such findings
the findings are based on substantial are contradicted by evidence on record.
evidence. If so, the findings are deemed
conclusive. An action or ruling of an administrative
agency or officer may be set aside where the
latter acted:
ADMINISTRATIVE LAW
JUDICIAL REVIEW 1. without jurisdiction - there is no authority
conferred by law to hear and decide the
C. PETITION FOR REVIEW UNDER RULE case;
43 OF RULES OF COURT 2. exceeded its jurisdiction - respondent
has the legal power to decided the case
Exceptions to substantial evidence rule but oversteps his authority; or
3. committed grave abuse of discretion -
While factual findings of administrative respondent acts in a whimsical,
agencies are generally not disturbed on capricious, arbitrary or despotic manner
appeal, their findings of facts are not in the exercise of his judgment
conclusive and may be reviewed and set amounting to lack of jurisdiction.
aside in the following instances:
Transmittal of record
1. When the factual findings of the
administrative agency and the initial fact- The CA may require the court or agency
finding agency are conflicting; concerned that the original records be
2. When the findings are grounded entirely transmitted to it or it may decide the case on
on speculation, surmises, or conjectures; the merits, without the records being brought
3. When the inference made by the quasi- before it, on the basis of facts and
judicial agency from its findings of fact is admissions of the parties.
manifestly mistaken, absurd, or
impossible; Effect of appeal; execution pending
4. When there is grave abuse of discretion appeal
in the appreciation of facts;
5. When the administrative agency, in The law does not allow execution pending
making its findings, goes beyond the appeal, unless the applicable law so provides
issues of the case, and such findings are or when the CA stays the execution upon
contrary to the admissions of parties; such terms as it may deem just.
6. When the judgment of the administrative
agency is premised on misapprehension Submission for decision
of facts;
7. When the administrative agency fails to If the petition is given due course, CA may
notice certain relevant facts which, if set the case for oral argument or require the
properly considered, will justify a different parties to submit memoranda within a period
conclusion; of 15 days from notice. The case shall be
deemed submitted for decision upon the filing
8. When the findings of fact are themselves
of the last pleading or memorandum required
conflicting
by these Rules or by the CA.
9. When the findings are conclusions
without citation of the specific evidence
The decision or final resolution of CA is
on which they are based; and
33
Questions of facts cannot be raised in an 2. The tribunal, board or officer has acted
original action for certiorari; only established without or in excess of jurisdiction or with
or admitted facts may be considered. grave abuse of discretion.
It is a remedy designed to correct errors of Error of jurisdiction — one where the act
jurisdiction and not errors of judgment. An complained of is issued by the court, officer,
error of judgment is not correctable through or quasi-judicial body without or in excess of
the original special civil action of certiorari, jurisdiction, or with grave abuse of discretion
but by appeal. amounting to lack or excess of jurisdiction.
GR: Where a lower court has jurisdiction over A petition for certiorari seeks to correct errors
the matter, orders or decisions pertaining of jurisdiction, while a petition for review
thereto may not be corrected by certiorari, seeks to correct errors of judgment, which
but by appeal. include errors of procedure or mistakes in the
court’s findings.
XPNs:
1. When public welfare and advancement of GR: Where the court has jurisdiction over the
public policy so dictate; person and subject matter, errors committed
2. When the broader interests of justice so in the exercise of such jurisdiction are errors
require; of judgment.
3. When the writs issued are null and void
or amount to an oppressive exercise of XPN: Where in the course of its proceedings,
judicial authority; or the court committed grave abuse of
4. When appeal is satisfactorily shown to be discretion amounting to lack of jurisdiction,
an inadequate remedy under the the errors are errors of jurisdiction and the
circumstances. remedy of certiorari may be availed of.
XPNs:
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1. When public welfare and advancement of The fact that the law does not provide for an
public policy so dictate; appeal from a decision of an administrative
2. When the broader interests of justice so agency or that it makes its decision “final and
require; unappealable” does not preclude judicial
3. When the writs issued are null and void review of such decision.
or amount to an oppressive exercise of
judicial authority; or When writ may not issue
4. When appeal is satisfactorily shown to be
an inadequate remedy under the It is not available to correct errors of
circumstances. procedure or mistakes in the court’s findings
or conclusion. Errors of fact or law do not
In any of such instances, the special civil involve jurisdiction and may be corrected
action for certiorari may be availed of even only by ordinary appeal. Evaluation of
during pendency of the case, after judgment, evidentiary matters is also beyond the
when appeal has been availed of, or where province of certiorari.
appeal is not adequate, speedy and
effectual. GR: Only errors of jurisdiction or grave abuse
of discretion may be corrected in a petition
A special civil action of certiorari may not be for certiorari.
used as a substitute for lapsed appeal except
when its rigid application will result in a XPN: Where apart from the allegation of lack
manifest failure or miscarriage of justice. or excess of jurisdiction or grave abuse of
discretion on part of the trial court in issuing
When the remedy of appeal has been lost the questioned decision or order, the
due to petitioner’s own neglect or error, petitioner had raised factual issues the
certiorari will not lie as a substitute or tool to resolution of which the appellate court had to
shield the petitioner from its adverse examine the facts, the court may do so and
consequences. make its findings, as basis whether to grant
the writ.
The remedies of certiorari and appeal are
mutually exclusive, except where the interest Motion for reconsideration required;
of justice requires or the dictates of public exceptions
welfare and the advancement of public
demand. The availability of appeal does not A motion for reconsideration must be filed
foreclose recourse to the extraordinary before the remedy of certiorari may be
remedies of certiorari or prohibition where availed of.
appeal is not adequate, or equally beneficial,
speedy and sufficient. XPNs:
(a) where the order is a patent nullity, as
When certiorari may issue where the court a quo has no jurisdiction;
(b) where the questions raised in the
The propriety of certiorari is determined by certiorari proceedings have been duly
inadequacy—not the mere absence—of all raised and passed upon by the lower
other legal remedies and the danger of court, or are the same as those raised
failure of justice without the writ. and passed upon in the lower court;
(c) where there is an urgent necessity for the
A petition for certiorari under Rule 65 may be resolution of the question and any further
treated by the SC as an appeal under Rule delay would prejudice the interests of the
35
45, when the interests of justice so require. Government or of the petitioner or the
subject matter of the action is perishable;
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(d) where, under the circumstances, a accomplished act, except where the wrong
motion for reconsideration would be act is continuing or the questioned act is a
useless; nullity, done without or in excess of
(e) where petitioner was deprived of due jurisdiction, or with grave abuse of discretion,
process and there is extreme urgency for and there being no appeal or other plain,
relief; speedy and adequate remedy in the ordinary
(f) where, in a criminal case, relief from an course of law.
order of arrest is urgent and the granting
of such relief by the trial court is Only issues affecting the jurisdiction of the
improbable; tribunal, board or office may be resolved on
(g) where the proceedings in the lower court the basis of undisputed facts.
are a nullity for lack of due process;
(h) where the proceedings was ex parte or in Petition for mandamus
which the petitioner had no opportunity to
object; When any tribunal, corporation, board, officer
(i) where the issue raised is one purely of or person unlawfully neglects the
law or where public interest is involved; performance of an act which the law
specifically enjoins as a duty resulting from
(j) where judicial intervention is urgent;
an office, trust, or station, or unlawfully
(k) where its application may cause great excludes another from the use and
and irreparable damage;
enjoyment of a right or office to which such
(l) failure of a high government official from other is entitled, and there is no other plain,
whom relief is sought to act on the speedy and adequate remedy in the ordinary
matter; course of law, the person aggrieved thereby
(m) when the issue of non-exhaustion of may file a verified petition in the proper court,
administrative remedies has been alleging the facts with certainty and praying
rendered moot; and where special that judgment be rendered commanding the
circumstances warrant immediate and respondent, immediately or at some other
more direct action. time to be specified by the court, to do the
act required to be done to protect the rights
Petition for prohibition of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
When the proceedings of any tribunal, wrongful acts of the respondent.
corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial Mandamus lies under any of the following:
function, are without or in excess of its 1. Against any tribunal which unlawfully
jurisdiction, or with grave abuse of discretion neglect the performance of an act which
amounting to lack or excess of jurisdiction, the law specifically enjoins as a duty;
and there is no appeal, nor any plain, speedy 2. In case any corporation, board or person
and adequate remedy in the ordinary course
unlawfully neglects the performance of
of law, person aggrieved thereby may file a an act which the law enjoins as a duty
verified petition in the proper court, alleging
resulting from an office, trust or station;
the facts with certainty and praying that
3. In case any tribunal, corporation, board
judgment be rendered commanding the
or officer unlawfully excludes another
respondent to desist from further
from the use and enjoyment of a right or
proceedings in the action or matter specified
office to which such other is legally
therein, or otherwise granting such incidental
entitled;
reliefs as law and justice may require.
36
1. The applicant must have a clear legal GR: Mandamus will not issue to compel a
right to the thing demanded. discretionary act.
2. When and where to file petition. Same rank — where its decision is no
longer appealable to a higher
The petition shall be filed not later than sixty administrative agency.
(60) days from notice of the judgment, order
or resolution. In case a motion for The hierarchy of courts must be followed. But
reconsideration or new trial is timely filed, the SC has the full discretionary power to
whether such motion is required or not, the take cognizance of the petition filed directly
sixty (60) day period shall be counted from with it if compelling reasons, or the nature
notice of the denial of said motion. and important of the issues raised, warrant
as clearly and specifically set out in the
The petition shall be filed in the Supreme petition.
Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board, 4. Who should be respondents
officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area When the petition filed relates to the acts or
as defined by the Supreme Court. It may also omissions of a judge, court, quasi-judicial
be filed in the Court of Appeals whether or agency, tribunal, corporation, board, officer
not the same is in aid of its appellate or person, the petitioner shall join, as private
jurisdiction, or in the Sandiganbayan if it is in respondent or respondents with such public
aid of its appellate jurisdiction. If it involves respondent or respondents, the person or
the acts or omissions of a quasi-judicial persons interested in sustaining the
agency, unless otherwise provided by law or proceedings in the court; and it shall be the
these Rules, the petition shall be filed in and duty of such private respondents to appear
cognizable only by the Court of Appeals. and defend, both in his or their own behalf
and in behalf of the public respondent or
No extension of time to file the petition shall respondents affected by the proceedings,
be granted except for compelling reason and and the costs awarded in such proceedings
in no case exceeding fifteen (15) days. in favor of the petitioner shall be against the
private respondents only, and not against the
3. Jurisdiction to issue writ judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person
The SC, CA and RTC have original and impleaded as public respondent or
38
Unless otherwise specifically directed by the proceeding, he must state the status of the
court where the petition is pending, the public same; and if he should thereafter learn that a
respondents shall not appear in or file an similar action or proceeding has been filed or
answer or comment to the petition or any is pending before the Supreme Court, the
pleading therein. If the case is elevated to a Court of Appeals, or different divisions
higher court by either party, the public thereof, or any other tribunal or agency, he
respondents shall be included therein as undertakes to promptly inform the aforesaid
nominal parties. However, unless otherwise courts and other tribunal or agency thereof
specifically directed by the court, they shall within five (5) days therefrom.
not appear or participate in the proceedings
therein. The certification must be executed by the
petitioner himself, not his lawyer, unless the
5. Contents of petition petitioner cannot personally sign the same
and his lawyer must state that he has
The petition shall contain the full names and personal knowledge of the facts stated and
actual addresses of all the petitioners and give justifiable reason for petitioner’s failure
respondents, a concise statement of the to execute the certification.
matters involved, the factual background of
the case, and the grounds relied upon for the Injunctive relief
relief prayed for.
The court may issue a status quo order to
It shall be filed in seven (7) clearly legible maintain the last, actual, peaceable and
copies together with proof of service thereof uncontested status of things which precede
on the respondent with the original copy the controversy.
intended for the court indicated as such by
the petitioner, and shall be accompanied by a It may also grant a TRO or a Writ of
clearly legible duplicate original or certified Preliminary Injunction for preservation of
true copy of the judgment, order, resolution, rights of the parties pending the proceedings.
or ruling subject thereof, such material
portions of the record as are referred to E. APPEAL BY CERTIORARI TO THE
therein, and other documents relevant or SUPREME COURT
pertinent thereto.
Decisions of the CA may be elevated to SC
It shall be accompanied by a sworn for review by a petition for review on
certification against forum shopping. certiorari under Rule 45 of the Revised Rules
Petitioner shall pay the corresponding docket of Court.
and other lawful fees and deposit of 500.00
for costs. Appeal by certiorari is discretionary
Failure to comply with the requirements shall A petition for review on certiorari or an
be a sufficient ground for dismissal. appeal to the SC by certiorari from judgment
or final order of the CA, Sandiganbayan, and
6. Non-forum shopping certification RTC or other courts is a matter of sound
discretion. SC may deny due course when it
The petitioner shall submit together with the finds that the appeal is without merit,
petition a sworn certification that he has not prosecuted manifestly for delay, or raises
theretofore commenced any other action questions which are too unsubstantial to
involving the same issues in the Supreme require consideration.
39
agency; if there is such other action or action of certiorari under Rule 65 are
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
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A public office refers to either of two Public office is a protected right although it is
concepts: not property and cannot acquire vested right
1. as a functional unit of government — any to public office. Thus, a person who has been
major functional unit of a department or proclaimed elected to an office, has taken his
bureau oath, and assumed the position, cannot be
2. as a position — any position held or deprived by the COMELEC by annulling or
occupied by individual persons suspending the proclamation without due
42
created and conferred by law, by which for a fixed salary has a property interest which
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
Who are the public officers 1. entrance based on merit and fitness, to
be determined as far as practicable by
Broadest classification: competitive examination, or based on
1. civil (civilian or civil service) and highly technical qualifications
2. military (those in military uniform) 2. opportunity for advancement to higher
career positions
Public officers or employees are either 3. security of tenure
national or local, elective or appointive,
whose offices or positions are either created Positions under Career Service
by Constitution or by statutes.
1. Open Career positions for appointment to
Elective national officials created by the which prior qualification in an appropriate
Constitution: examination is required;
43
these include the faculty and academic 2. Department Heads and other officials of
staff of state colleges and universities, Cabinet rank who hold positions at the
and scientific and technical positions in pleasure of the President and their
scientific or research institutions which personal or confidential staff(s);
shall establish and maintain their own 3. Chairman and members of commissions
merit systems; and boards with fixed terms of office and
3. Positions in the Career Executive their personal or confidential staff;
Service; namely, Undersecretary, 4. Contractual personnel or those whose
Assistant Secretary, Bureau Director, employment in the government is in
Assistant Bureau Director, Regional accordance with a special contract to
Director, Assistant Regional Director, undertake a specific work or job,
Chief of Department Service and other requiring special or technical skills not
officers of equivalent rank as may be available in the employing agency, to be
identified by the Career Executive accomplished within a specific period,
Service Board, all of whom are appointed which in no case shall exceed one year,
by the President; and performs or accomplishes the
4. Career officers, other than those in the specific work or job, under his own
Career Executive Service, who are responsibility with a minimum of direction
appointed by the President, such as the and supervision from the hiring agency;
Foreign Service Officers in the and
Department of Foreign Affairs; 5. Emergency and seasonal personnel.
5. Commissioned officers and enlisted men
of the Armed Forces which shall maintain
a separate merit system;
6. Personnel of government-owned or
controlled corporations, whether
performing governmental or proprietary
functions, who do not fall under the non-
career service; and
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled.
Non-Career Service
confidential staff;
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
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profession.
acknowledged the child as his own
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acting capacity.
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The grant by law of additional duties to public Members of the COMELEC, CSC, COA,
officers does not constitute and and Sectorial Representatives)
encroachment on the President’s appointing 2. Second, all other officers of the
power. The imposition of new duties Government whose appointments are not
constitutes neither the creation of an office, otherwise provided for by law.
nor the appointment of an officer. 3. Third, those whom he may be authorized
by law to appoint; and
Appointments subject to confirmation by 4. officers lower in rank whose
Commission on Appointments appointments the Congress may by law
vest in the President alone.
Commission on Appointments — agency
tasked to act on all appointments which Only appointments in the first group require
require its approval. the consent of COA.
colonel or naval captain (d) other officers An ad interim appointment is one made
whose appointments are vested in him in during the time when the confirming body is
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this Constitution. (e.g. Chairman and not in session and there is an existing clear
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
and present urgency caused by an accordance with the procedure laid down
impending obstruction or paralyzation of the by law.
functions assigned to the office if no
immediate appointment is made. Two months immediately before the next
presidential elections and up to the end
Power to issue temporary designation of his term, a President or Acting
President shall not make appointments,
The President may temporarily designate an except temporary appointments to
officer already in the government service or executive positions when continued
any other competent person to perform the vacancies therein will prejudice public
functions of an office in the executive branch, service or endanger public safety.
appointment to which is vested in him by law,
when: (a) the officer regularly appointed to 2. The President can only appoint Members
the office is unable to perform his duties by of the Supreme Court and judges of
reason of illness, absence or any other lower courts from among the list of at
cause; or (b) there exists a vacancy; least 3 members for each position
prepared and recommended by the
In no case shall the appointment exceed 1 Judicial and Bar Council.
year.
3. The President cannot appoint officials
The person designated shall receive the and employees of the Judiciary, as the
compensation attached to the position, power to appoint them belongs to the SC
unless he is already in the government in accordance with the civil service law.
service in which case he shall receive only 4. The President cannot appoint any person
such additional compensation as, with his who lost in any election within 1 year
existing salary, shall not exceed the salary after such election to any office in the
authorized by law for the position filled. The Government or any government-owned
compensation hereby authorized shall be or controlled corporations or in any of
paid out of the funds appropriated for the their subsidiaries.
office or agency concerned.
5. The President can only appoint the
Limitations on the President’s power to Ombudsman and Deputies from among
appoint the list of at least 6 nominees prepared
and recommended by the Judicial and
1. Appointments extended by an Acting Bar Council.
President shall remain effective, unless
revoked by the elected President within 6. The officials and employees of the Office
ninety days from his assumption or of the Ombudsman, other than the
reassumption of office. Deputies, shall be appointed by the
Ombudsman according to the civil
When the Vice-President or other officer service law, and not by the President.
named therein will act as Acting
President, the appointments extended by 7. The Commission on Human Rights shall
him shall remain effective, unless appoint its officers and employees in
revoked by the elected President within accordance with law, precluding the
90 days from his assumption or President from doing so.
reassumption. After 90 days, the
appointments become irrevocable and 8. The Congress may, by law, vest the
50
The Civil Service Commission is the central (1) Administer and enforce the constitutional
personnel agency of the Government which and statutory provisions on the merit
is composed of a Chairman and two system for all levels and ranks in the Civil
Commissioners, appointed by the President Service;
with the consent of the Commission on
Appointments, for a term of 7 years without (2) Prescribe, amend and enforce rules and
51
programs relative to the development and employees in these offices and apply
retention of qualified and competent appropriate sanctions whenever
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(16) Delegate authority for the (1) policy determining — one vested with the
performance of any function to power of formulating a method of action
departments, agencies and offices where for the government or any of its
such functions may be effectively subdivisions.
performed;
(17) Administer the retirement program for (2) primarily confidential — one where the
government officials and employees, and duties are not merely clerical but are such
accredit government services and as especially devolve upon the head of
evaluate qualifications for retirement; an office, which, by reason of his
numerous duties, he is compelled to
(18) Keep and maintained personnel delegate to others, the performance of
records of all officials and employes in the which requires skill, judgment, trust,
Civil Service; and confidence and involves the responsibility
of the other which he represents; or
(19) Perform all functions properly
belonging to a central personnel agency (3) highly technical — if it requires skill or
and such other functions as may be training in the highest degree.
provided by law.
2.25 Appointive positions in the civil
2.24. Coverage of the Civil Service service and in CES
The 1987 Constitution provides that the Civil The Civil Service Law classifies positions in
Service shall embrace all branches, the civil service into career and non-career
subdivisions, instrumentalities and agencies service positions.
of the Government, including government-
owned or controlled corporations with original Career Service is characterized by:
charters. (1) entrance based on merit and fitness to be
determined as far as practicable by
GOCCs with original charters are those competitive examinations, or based on
organized pursuant to special laws of highly technical qualifications;
charters enacted by Congress. These are
governed by the Civil Service Laws. (2) Opportunity for advancement to higher
career positions; and
GOCCs which are organized under the
Corporation Code of the Philippines, whose (3) Security of tenure.
shares of stock are owned or controlled by
the government or corporations with original
charters, fall outside the coverage of the Civil Positions under the Civil Service are the
Service Laws. following:
GR: Appointments in the Civil Service shall (1) Open Career positions, appointment to
be made only according to merit and fitness which prior qualification in an appropriate
to be determined as far as practicable by examination is required;
competitive examination.
(2) Closed Career position which are
XPN: Entries to these positions do not scientific or highly technical in nature;
require competitive examination of civil these include the faculty and academic
service eligibility. Appointments to positions staff of state colleges and universities,
53
shall establish and maintain their own (2) tenure which is limited to a period
merit systems; specified by law, or which is coterminous
with that of the appointing authority or
(3) Positions in the Career Executive subject to his pleasure, or which is limited
Service, namely, Undersecretary, to the duration of a particular project for
Assistant Secretary, Bureau Director, which purpose employment was made.
Assistant Bureau Director, Regional
Director, Assistant Regional Director, NOTE: These officers nonetheless enjoy the
Chief of Department Service and other constitutional guarantee that they cannot be
officers of equivalent rank as may be removed except for cause and after due
identified by the Career Executive Service hearing.
Board, all of whom are appointed by the
President1; The officials and employees under the
non-career service are the following:
(4) Career officers other than those in the
Career Executive Service, who are (1) Elective officials and their personal or
appointed by the President, such as the confidential staff;
Foreign Service Officers in the
Department of Foreign Affairs; (2) Secretaries and other officials of Cabinet
(5) Commission officers and enlisted men of rank who hold their positions at the
the Armed Forces which shall maintain a pleasure of the President and their
separate merit system; personal or confidential staff(s);
(2) Second — includes professional, Only Two Kinds of Appointments under the
technical and scientific positions involving Administrative Code of 1987. No more
professional, technical, or scientific work provisional appointment.
in a non-supervisory or supervisory
capacity requiring at ;east four years of (1) Permanent Status — issued to a person
college work up to division chief level; who meets all the requirements for the
and position to which he is being appointed,
including the appropriate eligibility
(3) Third — includes positions in the career prescribed, in accordance with the
executive service which consists of provisions of law, rules and standards
undersecretary, assistant secretary, promulgated in pursuance thereof;
regional director, assistant regional
director, chief of department service and (2) Temporary Status — issue to a person
other officers of equivalent rank as may who meets all the requirements for the
be identified by the Career Executive position to which he is being appointed
Service Board, all of which are appointed except the appropriate civil service
by the President. eligibility. It shall not exceed 12 months,
but the appointee may be replaced
Entrance to first two levels shall be through sooner if a qualified civil service eligible
competitive examinations, while entrance to becomes available.
the third level shall be prescribed by the
Career Executive Service Board. Coterminous Employee — issued to a person
whose entrance in the service is
NOTE: Eligibility is a sine qua non to characterized by confidentiality by the
acquiring a permanent appointment, except appointing authority or that which is subject
those positions which are not required by law to his pleasure or co-existent with his tenure.
to be filled with civil service eligibles. Further classified as follows:
(a) Coterminous with the project;
55
(d) Coterminous with a specific period. the government service, provided that it is
done in good faith for the best interest of the
public service.
Requisites of appointment; exercise of
discretion Appointee must be qualified.
(1) Appointing authority is vested with power Except where the position does not require
to make appointment at the time such is civil service eligibility, the term “permanent
made; appointment” implies appropriate civil service
(2) Appointee possesses all the eligibility on the part of the appointee. Absent
qualifications, including appropriate civil such eligibility, the “permanent appointment”
service eligibility and none of the extended to him as approved by the CSC is
disqualifications prescribed by law for the considered provisional, subject to
position; replacement by a person with the required
(3) The position is vacant; eligibility.
(4) Appointee has been approved by the
CSC; and There should be vacancy.
(5) The appointee accepts the appointment There is vacancy when there is no person
by taking the oath and entering the lawfully authorized to assume and exercise
discharge of his office. at present the duties of office. The term
appointment is equivalent to filling a vacancy.
Lack of one requisite, the appointment is Where there is no vacancy, there can be no
invalid and the officer discharging such valid appointment thereto.
functions is merely a de facto officer.
The appointment extended to a person in a
Appointing authority; exercise of non-vacant position is null and void, and the
discretion same could not be validated or revived by a
Appointment is essentially an exercise of subsequent act, although he may be
discretionary power so long as the requisites extended another appointment after the
are complied with. A valid appointment position has become vacant.
cannot be faulted on the ground that there
are others better qualified who should have Power of CSC to approve appointments.
been preferred. It is a political question. GR: Appointments in the civil service
requires the approval of the CSC. The CSC
Such cannot even be controlled by the Court has the power to approve all appointments,
as long as it is exercise properly by the whether original or promotional, to positions
appointing authority. in the civil service and to disapprove those
where the appointees do not possess the
NOTE: A person with temporary appointment appropriate eligibility or required
is not entitled, as a matter of right, to be qualifications.
appointed or re-appointed in a permanent
capacity after he acquired a civil service XPN: Presidential appointees, members of
eligibility. Acquisition of eligibility is not the the AFP, police forces, firemen, jailguards.
sole factor for reappointment. Performance,
degree of education, work experience, etc The CSC determines, in the main, whether
must be considered. Also, the law requires the proposed appointee is qualified to hold
that permanent employees, who have been the position and whether or not the rules
removed following a valid reorganization, be pertinent to the process of appointment are
given preference in the appointment to new followed. Its authority is limited to reviewing
56
positions in the reorganized office, but it does appointments on the basis of the civil service
not preclude the appointing authority to law. When the appointee is qualified and all
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infuse new blood or necessary talents into the other legal requirements are satisfied, the
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TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
Commission has no choice but to attest to is better qualified for that would constitute an
the appointment. After that function is encroachment on the discretion vested solely
discharged, its participation in the appointing in the appointing authority. For the CSC is
process ceases. not empowered to determine the kind of
nature of the appointment extended by the
The appointment shall take effect appointing officer, its authority being limited
immediately upon its issuance by the to approving or reviewing the appointment in
appointing authority if the appointee assumes the light of the requirements of the civil
his duties immediately and shall remain service law.
effective until it is disapproved by the CSC, if
this should take place, without prejudice to Also, it has no authority to inquire into the
the liability of the appointing authority for right of the appointing officer to hold office,
appointments issued in violation of existing which is a function of quo warranto
laws or rules. proceeding that may only be initiated by the
Solicitor General or by the person claiming to
An appointment not submitted to the be entitled to the position.
Commission within 30 days from the date of
issuance, which shall be the date appearing However, the commission may inquire
on the face of the appointment, shall be whether the office itself or the appointing
ineffective. officer possesses the prerogative to issue the
appointment, and in the negative to
The appointment process. disapprove the appointment.
Under the Civil Service law, the appointment
to the civil service must be submitted to the An appointment approved by the CSC
CSC for approval, i.e., for determination “subject to the availability of funds” is a
whether the proposed appointee is qualified permanent, not conditional appointment.
to hold the position, and whether or not the Every appointment to the position in the civil
pertinent rules have been followed in making service presupposes the existence of a
the appointment. An appointment is not final corresponding item or fund in the budget, be
and complete until after the same is it national, provincial, city or municipal, from
approved by the CSC. After such approval which the salary of the appointee is to be
and assumption of office of the appointee, drawn.
the appointment made and approved should
not be disturbed, even if some violation of However, an appointment extended to an
office rules have been committed due to appointee, which is subject to certain
inadvertence. Unless the appointment is a conditions, such as that there is no pending
nullity, or in the absence of fraud on the part administrative case against him, no pending
of the appointee, the irregularity must be protest against his appointment, nor any
deemed cured by the absolute appointment decision by the competent authority that will
of the appointee and should be considered adversely affect the approval of appointment,
conclusive. is bot a complete appointment. Until the
conditions are met, the appointment cannot
2.29 Limitations on the power to approve confer any permanent status.
appointments.
The power of the CSC does not include the
authority to make the appointment itself or to 2.30. Opposition to the appointment.
direct the appointing authority to change the Protest is a mode of action that may be
employment status of an employee. availed of by the aggrieved party to contest
57
Protest cases are decided in the first 2.32. When appointment is complete;
instance by the head of the department or acceptance of appointment necessary.
agency, subject to appeal to the Civil Service An appointment is complete where all its
Commission. requisites for the position have been met.
Absence of any one of these makes the
2.31. Revocation or recall of appointment. appointment incomplete and invalid.
GR: An appointment once made is
irrevocable and not subject to Taking of the oath is indispensable. It is a
reconsideration. The rule is qualified, where qualifying requirement for public office; a
assent, confirmation or approval of some prerequisite to the full investiture with the
other officer or body is needed before office. Only when the public officer has
appointment may issue and be deemed satisfied the prerequisite of oath that his right
complete. to enter into the position becomes plenary
and complete. Until then, he has none at all.
Revocation of an appointment, to be
successful must be made before the The taking of an oath and the entry into the
appointment is completed or before its discharge of the duties of office amount to an
approval by the CSC in case of appointments acceptance of the position, and acceptance
in the civil service. is indispensable to complete the
appointment.
After completion of the appointment and the
appointee has assumed the position, he Thus, it has been held that as between two
acquires the legal, not merely equitable right, appointments, one in favor of a person who
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which is protected not only by the statute, but immediately took his oath and began to
also by the Constitution, and it cannot be discharge of his duties, and the second one
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taken away from him, either by revocation of in favor of a person who waited until the CSC
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TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
has approved it, the former prevails. The fact occupies a primarily confidential position.
that the latter appointment was confirmed by It ends upon the loss of confidence,
the CSC does not complete it since because their term lasts only as long as
confirmation or attestation by the confidence in them endures. When such
Commission, although an essential part of pleasure turns into displeasure, the
the appointing process, serves merely to incumbent is not removed or dismissed
assure the eligibility of the appointee. form office — his term merely expired.
(3) Indefinite term which terminates at the (3) Disqualification as determined by the
pleasure of the appointing authority. — resolution of the Electoral Tribunal in an
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This is the term of office of one who election contest, per Sec. 17, Art. VI.
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TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
(4) Voluntary renunciation of office, pursuant REASON: The law abhors a vacuum in
to Sec. 7, par. 2, Art. VI. public offices. This is founded on
considerations of public policy, for the
Pursuant to the Constitution, an officer or principle of holdover is specifically intended
employee with a term may not be removed or to prevent public convenience from suffering
suspended except for cause, as provided by because of a vacancy and to avoid a hiatus
law, while an officer or employee with a in the performance of government functions.
tenure does not enjoy security of
employment. A law which changes the term The following however are exemptions to the
to tenure and makes the officer removable at concept of hold-over:
the pleasure of the appointing authority is (1) Except where the Constitution requires;
unconstitutional. as it is designed to or
circumvent the provision on security of (2) Where Constitutional provision on
tenure. security of tenure will be violated. — for
instance, Sec. 8 of ARt. X of the
The general rule is that where the Constitution has fixed the term of local
Constitution or the law fixes both the duration officials to 3 years. The Constitutional
of the term of office and the time of its provision precludes Congress from
commencement, a person elected or enacting hold-over provisions which
appointed to fill a vacancy in such office would extend such term, without
holds it for the unexpired portion of the term. rendering the same unconstitutional.
He may not be appointed for a full term
without violating the law fixing the term or 2.36. Temporary or acting appointment.
unduly extending his services. However, if he Generally, the power to appoint vested in the
is appointed to a full term even where what is President or in any appointing authority
left of the term is only an unexpired portion includes the power to make temporary
thereof, his continuing to serve until the full appointments, unless he is otherwise
term or until his term is judicially terminated specifically prohibited by the Constitution or
does not render his acts done beyond the by law, or a temporary or acting appointment
unexpired term invalid nor make the salaries is repugnant to the nature of the office to be
paid him illegal, as he is deemed a de facto filled as well as when an office is not under
officer. the control of the President and the
Constitution or the law provides safeguards
2.35. Hold-over concept. to secure its independence.
This concept implies that the office has a
fixed term and the incumbent is holding onto The purpose of an acting or temporary
the succeeding term. It is usually provided by appointment is to prevent a hiatus in the
law that officers elected or appointed for a discharge of official functions by authorizing
fixed term shall remain in office not only for a person to discharge the same pending the
that term but until their successors have selection of a permanent or another
been chosen and qualified. Where this appointee. The person named in an acting
provision is found, the office does not capacity accepts the position unit the
become vacant upon the expiration of the condition that he shall surrender the office
term if there is no successor elected or once he is called upon to do so by the
appointed and qualified to assume it, but the appointing authority. This is not covered by
present incumbent will carry over until his the constitutional provision on security of
successor is elected or appointed and tenure.
qualified, even though it be beyond the term
fixed by law. The successor’s tenure is
60
Neither can the appointing authority use the Promotion in the Civil Service should always
principle of temporary appointments to evade be made on the basis of qualifications,
or avoid the security of tenure principle in the including occupational competence, moral
Constitution and the Civil Service Law such character, devotion to duty, and, not the
as by converting permanent positions to least, loyalty to the service. The last trait
temporary or primarily confidential items so should always be given appropriate weight,
that he can more freely hire and fire to reward the civil servant who has chosen to
subordinates at his personal discretion. make his employment in the Government a
lifetime career in which he can expect
Courts may inquire into the true nature of an advancement through the years for work well
“acting appointment” to determine whether or done.
not it is used as a device to circumvent the
security of tenure principle and when Where, on the other hand, an employee who
circumstances indicate an affirmative had been permanently appointed to a
answer, it will consider the “acting” position, is promoted to another position and
appointment permanent. his promotional appointment is invalidated,
Temporary status may also rise from the fact he is deemed to to have abandoned his prior
that the appointment is defective or the office and should be reverted back to his old
appointee lacks the required civil service position.
eligibility. The fact that the appointee
obtained subsequently civil service eligibility 2.38. Reinstatement.
is of no moment and did not ipso facto Reinstatement is technically issuance of a
convert his temporary appointment into a new appointment which is essentially
permanent one. Neither did the approval of discretionary, to be performed by the officer
CSC of the temporary appointment into a in which it is vested according to his best
permanent one make it permanent because lights, the only condition being that the
CSC has no authority or power to make the appointee should possess the qualifications
appointment itself or to direct the appointing required by law.
authority to change the employment status of
the employee. 2.39. Nepotism as a restriction on
appointment.
A bonafide appointment in an acting capacity
is essentially temporary and revocable in Sec. 59, Book V of the Revised
character and the holder of such appointment Administrative Code of 1987 provides that all
may be removed anytime even without appointments in the national, provincial, city
hearing or cause. and municipal governments or in any branch
or instrumentality thereof, including
Designation refers to the assignment of a government-owned or controlled
public officer to perform certain functions corporations, made in favor of a relative of
different from those of his position to which the appointing or recommending authority, or
he has been appointed. By its nature, it is of the chief of the bureau or office, or of the
temporary and the designation does not persons exercising immediate supervision
confer upon the designee security of tenure over him, are hereby prohibited.
in the position or office which he occupies in
an acting capacity. However, acceptance or The prohibition extends to promotional
designation by a public officer in an acting appointments, designations in an acting
capacity does not amount to abandonment of capacity, or all personnel actions occurring
his permanent position. after an original appointment which require
61
persons who have retired or have reached the basis of merit and fitness as
the retirement age of 65 years, as follows: determined by competitive examinations;
and
(1) the exigencies of the service require; (2) while the 1987 Constitution does not
(2) the officer or employee concerned exempt such positions from the operation
possesses special qualification not of the principle set out in Art. IX (B), Sec.
possessed by other officers or employees 2(3) of the same Constitution that “no
in the agency where he is to be appointed officer or employee of the Civil Service
or retained; and shall be removed or suspended except
(3) the vacancy cannot be filled by promotion for a cause provided by law,” the “cause
of qualified officers or employees in the provided by law” includes “loss of
agency concerned, or by transfer of confidence.”
qualified officers or employees from other
government agencies, or there are no It is a settled rule that those holding primarily
eligibles in the appropriate register of the confidential positions continue for so long as
Commission available for certification to confidence in them endures.
the vacancy.
But this loss of confidence rule does not
Extraordinary care is required of the apply to those holding highly technical posts,
appointing officer in case of the appointment requiring special skills and qualifications.
of a retiree.
2.44. Appointment of next in rank.
CSC Mem. Cir. No. 5, S-1983 doe not apply Sec. 3, Rule V on promotions of the Civil
to Cabinet or to primarily confidential Service Rules on Personnel Actions and
positions. Policies defines next-in-rank as follows:
(1) such characterization renders rank be appointed to the vacant position. The
inapplicable the ordinary requirement of reason is that the next-in-rank rule neither
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filling up a position in the Civil Service on grants a vested right to the holder nor
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TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
imposes a ministerial duty on the appointing (2) file a petition for certiorari with CA; and
authority. For to apply the next-in-rank rule (3) file a petition for certiorari from CA’s
peremptorily would impose a rigid formula on decision to SC.
the appointing power contrary to the policy of
the law that among those qualified and RTC has no jurisdiction to entertain cases
eligible, the appointing authority is granted involving dismissal of officers and
discretion and prerogative of choice of the employees covered by the civil service law.
one he deems fit for appointment, even if he
is less qualified than the next-in-rank. Jurisdiction over strikes and dismissal of
employees in GOCC’s with original charters
A next-in-rank who is competent and is lodged with CSC, not NLRC. However,
qualified and feels aggrieved by the such GOCC may be estopped from
promotion of another may file a protest with questioning NLRC’s jurisdiction when it filed
the department or agency head who shall a complaint there seeking affirmative reliefs
render a decision thereon within 30 days therefrom and belatedly raising the issue of
from receipt of the protest. Appeal may be jurisdiction only before the SC.
made to CSC within 15 days from receipt of
the decision and the latter’s decision or 2. 46. Liability for Illegal Appointment.
resolution denying motion for reconsideration PD No. 807 provides:
may be elevated to CA by petition for review
within 15 days from receipt of said decision Sec. 53. Liability of Appointing Authority.
or resolution. — No person employed in the Civil Service in
violation of the Civil Service Law and rules
2.45. Government-owned or controlled shall be entitled to receive pay from the
corporations. government; but the appointing authority
A GOCC is a stock or non-stock corporation shall be personally liable for the pay that
whether performing governmental or would have accrued had the employment
proprietary functions, which is directly been lawful, and the disbursing officials shall
chartered by special law or if organized make payment to the employee of such
under the general corporation law is owned amount from salary of the officers so liable.
or controlled by the government or subsidiary
corporation, to the extent of at least a Sec. 55. Whoever makes any appointment or
majority of its outstanding capital stock or of employs any person in violation of any
its outstanding voting stock. provision of this decree or the rules made
thereunder or whoever commits fraud, deceit
Under Sec. 2(1), Art. IX of the 1987 or intentional misrepresentation of material
Constitution, the civil service embraces only facts concerning other civil service matters,
GOCC’s with original charter or those or whoever violates, refuses or neglects to
created by special law enacted by Congress. comply with any of such provisions or rules,
It does not include GOCC’s which are shall upon conviction be punished by a fine
organized under the general law or the not exceeding one thousand pesos or by
Corporation Code as the employees and imprisonment not exceeding 6 months, or
officers of the later are governed by the both such fine and imprisonment in the
Labor Code. discretion of the court.
involving termination of services is to: Additionally, Art. 244 RPC likewise makes it
(1) appeal to the CSC within 15 days from a crime for any public officer to knowingly
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the receipt thereof; if still aggrieved, nominate or appoint to any public office any
ADMINISTRATIVE LAW * PUBLIC OFFICERS * ELECTION LAW NOTES
TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
person lacking any legal qualification therefor Board on the basis of the members’
with the penalty of arresto mayor and a fine functional expertise.
not exceeding P1, 000. 00.
2. 48. Security of tenure in CES.
E. CAREER EXECUTIVE SERVICE (CES) Security of tenure in the CES is acquired with
respect to rank and not to position. The
2.47. Appointment, assignment, guarantee of security of tenure to members
reassignment and transfer in CES of the CES does not extend to the particular
The provisions under the Integrated positions to which they may be appointed —
Reorganization Plan read: a concept which is applicable only to first and
second level employees in the civil service —
c. Appointment. — Appointment to but to the rank to which they are appointed
appropriate classes in the CES shall be by the President. A CES officer does not
made by the President from a list of career acquire security of tenure by the mere fact
executive eligibles recommended by the that he is appointed to the higher position.
Board. Such appointments shall be made on
the basis of rank; provided that the Thus, a career executive service officer may
appointments to the higher ranks which be transferred or reassigned from one
qualify the incumbents to assignments as position to another without losing his rank
undersecretary and heads of bureaus and which follows him whenever he is transferred
offices and equivalent positions shall be with or assigned. He suffers no diminution of
the confirmation of the Commission on salary even if assigned to a CES position
Appointments. The President may, however, with lower salary grade, as he is
in exceptional cases, appoint any person compensated according to his CES rank and
who is not a Career Executive Service not on the basis of the position or office
eligible; provided that such appointee shall which he occupies.
subsequently take the required Career
Executive Service Examination and that he Two requisites must concur in order that an
shall not be promoted to a higher class until employee in the career executive may attain
he qualifies in such examination. security of tenure:
(1) CES eligibility; and
At the initial implementation of this Plan, an (2) Appointment to the appropriate rank.
incumbent who holds a permanent
appointment to a position embraced in the F. QUO WARRANTO AS REMEDY TO
CES shall continue to hold his position, but QUESTION TITLE
may not advance to a higher class of position
in the CES unless or until he qualifies for 2.49. Quo warranto defined.
membership in the CES. It is a proceeding to determine the right to the
use or exercise of an office and to oust the
xxx holder from its enjoyment, if his claim is not
well-founded or if he has forfeited his right to
e. Assignments, Reassignments and enjoy the privilege. It is a special civil action
Transfers. — Depending upon their ranks, commenced by a verified complaint filed in
members of the Service shall be assigned to court against a person who usurps, intrudes
occupy positions of Undersecretary, into, or unlawfully holds or exercises a public
Assistant Secretary, Bureau Director, office or position, or who does or suffers and
Assistant Bureau Director, Regional Director, act which, by the provision of law, constitutes
Assistant Regional Director, Chief of a ground for the forfeiture of his office, in
65
Department Service and other officers of accordance with Rule 66 of the 1997 Rules
equivalent rank as may be identified by the of Civil Procedure.
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TP NOTES: BARRIETA. CASTRO. HADLOC. REONICO. SANTOS
When the person is The court 2.52. Title may not be collaterally
ineligible, the court determines who has attacked.
cannot declare that been legally The title of the public officer, even if he were
the candidate appointed and can merely a de facto officer, may only be
occupying the and ought to declare questioned, not collaterally, but by a petition
second place has who is entitled to for quo warranto.
been elected, even if office.
he were eligible, Neither can the legality of the appointment or
since the law only election of a public officer babe questioned
authorizes a collaterally through a petition for prohibition
declaration of which assails the validity of his official acts.
election in favor of
the person who has 2.53. Action may be filed by Solicitor
obtained a plurality General or public prosecutor.
of votes, and has Under Sec 2 Rule 66 or the Rules of Civil
presented his Procedure, the Solicitor General or a public
certificate of prosecutor, when directed by the President of
66
any case specified in the preceding section prevailing party have not been appropriated
can be established by proof, must commence as the funds had been paid as salaries to the
such action. It is mandatory on the Solicitor party who in the meanwhile occupied the
General or public prosecutor’s part to file the office, the local government unit and its
action. officials concerned may be made parties to
compel them to appropriate the funds for the
The Solicitor General or a public prosecutor purse.
may, with the permission of the court in
which the action is to be commenced, bring 2.55. Clear legal right required.
such an action at the request and upon the He lacks such clear legal right:
relation of another person; but in such case
the officer bringing it may first require an (a) Where at the time petitioner was
indemnity for the expenses and costs of the appointed to, or assumed, the position
action in an amount approved by and to be claimed to have been usurped or
deposited in the court by the person at unlawfully held by another, he lacked the
whose request and upon whose relation the qualifications for the office;
same is brought (Sec. 3, Rule 66). (b) Where he has been merely designated to
discharge the duties of the office, as right
When such action is made, the court shall thereto is extinguished by the
direct that notice be given to the respondent appointment of another in his place;
so that he may be heard in opposition (c) Where he merely claims he is entitled to
thereto; and if permission is granted, the be appointed to the disputed position, his
court shall issue an order to that effect, claim being merely contingent; or
copies of which shall be served on all (d) where his appointment to the disputed
interested parties, and the petition shall then position is only temporary or without a
be filed within the period ordered by the court fixed tenure, as he can be removed at
(Sec. 4, Rule 66).2 any time with or without cause.
However, while it may be desirable that (c) Doctrine of laches may not apply when to
administrative remedies be first resorted to, do so, manifest wrong and injustice would
the one year period of filing quo warranto is result.
not suspended by filing an administrative
action beforehand. Thus, no one is 2.58. Expeditious resolution of the case
compelled or bound to file first an required.
administrative action in this case; and as said An assurance of some degree of stability in
remedies neither are prerequisites to nor bar civil service is necessary in order to avoid
the institution of quo warranto proceedings needless disruptions in the conduct of public
so long as it is filed within the reglementary business.
period. For public interest requires that the
right to a public office be determined as In accordance with this policy, Sec 8 of Rule
speedily as practicable. 66 provides that “the court may reduce the
period provided by these Rules for filing
Furthermore, constitutional rights may be pleadings and for all other proceedings in the
waived, and the inaction of the officer for one action in order to secure the most
year could be validly considered as waiver or expeditious determination of the matters
that laches has set in. It may lead to a involved therein consistent with the rights of
presumption that the civil servant has either the parties. Such action may be given
given up his claim or has already settled in precedence over any other civil matter
the new position. pending in the court.”
Under Sec. 7 of Rule 66, quo warranto can 2.59. When action is waived.
be brought only in the Supreme Court, the A public officer who as filed a petition for quo
Court of Appeals, or in the Regional Trial warranto may expressly or impliedly abandon
Court exercising jurisdiction over the his petition. His application for commutation
territorial area where the respondent or any of his vacation and sick leaves stating as
of the respondents resides, but when the reason therefor that the same is an incident
Solicitor General commences the action, it to separation from the service, his receipt of
may be brought in a Regional Trial Court in the money equivalent of such leaves, and his
the City of Manila, in the Court of Appeals, or non-reservation of the right to continue the
in the Supreme Court. petition for quo warranto constitute
abandonment of the petition for quo
2.57. Exceptions to the rule that petition be warranto.
filed within one year.
(a) If failure to file an action can be attributed 2.60. Judgment and reliefs.
to the acts of a responsible government
officer and not of the dismissed SEC. 9. Judgment where usurpation found.—
employee; When the respondent is found guilty of
usurping, intruding into, or unlawfully holding
(b) Where some employees elevated their or exercising a public office, position or
dismissal to the courts, who won in the franchise, judgment shall be rendered that
action, a co-employee who is similarly such respondent be ousted and altogether
situated as those of the former need not excluded therefrom, and that the petitioner or
join the suit without being guilty of laches, relator, as the case may be, recover his
so long as he continued to press for his costs. Such further judgment may be
right to be reinstated and and high rendered determining the respective rights in
responsible officials promised to reinstate and to the public office, position or franchise
68
SEC. 10. Rights of persons adjudged entitled constitutionally and legally authorized to
to public office; delivery of books and papers; perform any act in, or exercise any function
damages.—If judgment be rendered in favor of the office to which he lays claim.
of the person averred in the complaint to be
entitled to the public office he may, after
taking the oath of office and executing any
official bond required by law, take upon
himself the execution of the office, and may
immediately thereafter demand of the
respondent all the books and papers in the
respondent’s custody or control appertaining
to the office to which the judgment relates. If
the respondent refuses or neglects to deliver
any book or paper pursuant to such demand,
he may be punished for contempt as having
disobeyed a lawful order of the court. The
person adjudged entitled to the office may
also bring action against the respondent to
recover the damages sustained by such
person by reason of the usurpation.
as holder of position.
the latter, his continuance in office is
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3.66. Compensation.
Where the law gives the officer’s assumption
of office color of validity, it entitles him to
compensation for his work, and his
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