ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS, ELECTION LAW

FINALS, PART II
2. Source- Administrative agencies are tribunals of LIMITED JURISDICTION, which is dependent entirely upon the validity and the terms of the statutes reposing power in them. 3. Conduct- An administrative agency CANNOT enlarge its own jurisdiction nor can jurisdiction be conferred upon an agency by parties before it. 4. Determination of existence- When a particular statute authorizes an administrative agency to act in a particular situation, it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act; an admin. agencys determination as to its jurisdiction is NOT conclusive to the courts. 5. Failure to exercise power- a failure to exercise jurisdiction DOES NOT result in a powers loss 6. Expiration or repeal of statute- expiration of a statute may be held NOT to deprive an administrative agency of jurisdiction to enforce the statute as to liabilities incurred while the statute was in force, where a general saving statute continues such liabilities. 7. Jurisdiction of courts- administrative agencies are creatures of the law and they have NO general powers but only such as conferred by law; where the law confines in an administrative officer the power to determine particular questions or matters upon facts presented, the jurisdiction of such office shall prevail over courts. a. Doctrine of PRIMARY JURISDICTION: If the determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before remedy will be supplied by the courts. Procedure to be followed 1. Statutes and/or rules- procedure may be prescribed in the statute creating the agency or in the rules promulgated by the agency by authority of law; rules of procedure are to be construed liberally in order to effect the just, speedy and inexpensive settlement and disposition of disputes. 2. Reasonable method- where the statute does NOT require any particular method of procedure to be followed by an administrative agency, the agency may adopt any reasonable method to carry out its functions; it is a well-known rule that in

ADMINISTRATIVE LAW
CHAPTER V: ADMINISTRATIVE PROCEEDINGS Generally 1. In a single determination, an administrative agency may act in both a legislative and a judicial capacity 2. Duty imposed upon an administrative agency which requires a quasi-judicial proceeding as a requisite of action is widely different from ordinary executive action. 3. An administrative proceeding is at END when an appeal has been taken to court and is merged with the decree of court. Character of Proceedings 1. Adversary in nature; every proceeding is adversary in substance if it may result in an order in favor of one person against another. 2. Such proceedings partake of the nature of judicial proceedings if it involves: a. taking and evaluation of evidence. b. determination of facts based upon evidence presented c. rendering an order or decision supported by the facts proved. 3. Particular proceedings before an administrative agency have been held civil rather than criminal in nature. 4. Under some statutes, an administrative proceeding is not a private one but a public one looking to public ends. 5. Some administrative proceedings are preventive and remedial to implement a public policy. Jurisdiction Jurisdiction- power and authority given by law to hear and decide a case; consists of TWO elementsjurisdiction over SUBJECTMATTER and over the PERSON. 1. Necessity- Essential to give validity to the determinations of administrative agencies; without jurisdiction, acts are void and open to collateral attack.

proceedings before administrative bodies, technical rules of procedure are NOT binding. 3. Informal methods of adjudication- a great mass of administrative adjudications are made informally, especially where the decision is made upon inspection or tests, or complaints are disposed of by consent or by correspondence. Even where a hearing is NOT involved, informality cannot be carried to the point of violating statutory requirements. Rules on Adjudication (Book VII, 1987 Administrative Code) 1. Sec 10. Compromise and Arbitration- every agency shall, in the public interest, encourage amicable settlement, compromise and arbitration. 2. Sec 11. Notice and Hearing in Contested Cases a. ALL parties shall be entitled to notice and hearing; the notice shall be served AT LEAST 5 DAYS before the date of hearing and shall state the DATE, TIME, and PLACE of the hearing. b. Parties shall be given opportunity to present evidence and argument on ALL issues. 3. Sec 12. Rules on Evidence a. May admit evidence commonly accepted by reasonably prudent men. b. Documentary evidence may be reproduction, with opportunity of other party to compare with the original. c. Right to cross-examine witnesses. d. Agency may make judicial notice to any technical or scientific facts within in its specialized knowledge. 4. Sec 13. Subpoena- The agency shall have the power to require the attendance of witnesses or the production of books, papers, documents and other pertinent data; may invoke the aid of the RTC within whose jurisdiction the contested case falls. 5. Sec 14. Decision- every decision rendered by the agency in a contested case shall be in WRITING and shall state clearly and distinctly the facts and the law on which it is based; shall decide WITHIN 30 DAYS following the submission. 6. Sec 15. Finality of Order- decision shall be final and executory 15 DAYS after the receipt of a copy thereof 7. Sec 16. Publication and Compilation of decisions a. Every agency shall publish and make available for public inspection all decisions and final orders b. it shall be the duty of the RECORDS OFFICER of the agency to prepare a register or compilation of those decisions or final orders. 8. Sec 17. Licensing Procedure

a. Cancellation of license requires the procedure above mentioned. b. License may not be withdrawn except for violation of pertinent laws, rules and regulation, or when public health and safety requires. 9. Sec 18. Non-expiration of license- an existing license shall not expire if the licensee makes a time application for the renewal. Chapter 4 (Administrative Appeal in Contested Cases) 1. Sec 19. Appeal- an appeal from a final decision of the agency may be taken to the DEPARTMENT HEAD. 2. Sec 20. Perfection of Administrative Appeals a. Appeals shall be perfected within 15 DAYS after the receipt of a copy of the decision complained of by the party adversely affected. b. If an MR is denied, the movant shall have the right to perfect his appeal during the remainder of the period for appeal, reckoned from receipt of the resolution of denial; if reversed on reconsideration, the aggrieved party shall have 15 DAYS from receipt of the resolution. c. Agency shall, upon perfection of appeal, transmit records to the APPELLATE AGENCY 3. Sec 21. Effect- appeal shall stay the decision appealed from if the appellate agency does NOT direct otherwise 4. Sec 22. Action on Appeal.- appellate agency may review record and receive additional evidences. 5. Sec 23. Finality of Decision of Appellate Agencybecomes final 15 DAYS after receipt of the decision by the parties. 6. Sec 24. Hearing Officers.number of hearing officers of an agency dependent on necessity. 7. Judicial Review a. agency decisions shall be subject to judicial review b. any party aggrieved or adversely affected b an agency decision may seek judicial review. c. action may be brought against the AGENCY, its OFFICERS, and ALL INDISPENSABLE AND NECESSARY PARTIES d. appeal shall be perfected by filing with the agency within 15 DAYS from receipt of copy; copies shall be served upon the agency and ALL parties of records e. petition for review shall be perfected within 15 DAYS from receipt of the final administrative decision; 1 ME may be allowed.

8. Sec 26. Transmission of Record- Within 15 DAYS from the service of the petition for review, the agency shall transmit to the court the original or a certified copy of the entire records of the proceeding under review. Controversies among government offices and corporations 1. How settled- all disputes of government agencies and corporations are settled administratively in the manner provided by the Administrative Code (Book IV, Chap. 14) 2. Disputes involving questions of law- submitted to Sec of Justice as Attorney-General. His ruling shall be binding on all the parties concerned. 3. Disputes involving questions of Fact and Law.settled by: a. Solicitor-General, if the dispute, claim or controversy involves only departments, bureaus, offices, and other agencies of the National Government as well as the GOCCs. b. Secretary of Justice, in all other cases not mentioned above. 4. Arbitration.the determination of factual issues may be made by arbitration panel composed of representatives from each parties, presided over by Sec of Justice. 5. Appeals.as a rule, the decision of Sol-Gen and Secretary of Justice is binding and final; exception is when the claim involves 1 million pesos, in which case, the dispute is appealed to the President. 6. Rules and regulations.Secretary of Justice has the duty to craft the rules and regulation. Due Process of law in administrative adjudication 1. Nature- The right to DP is not merely statutory but a constitutional right; it applies to, and must be observed in judicial as well as administrative proceedings to every case which may deprive a person of life, liberty and property. 2. Essence- simply an opportunity to be heard. 3. Standard- administrative tribunals exercising quasijudicial powers are thus free from the rigidity of certain procedural requirements observed in the courts. 4. Requisites- (code:NOTaF) a. Right to notice (actual or constructive) b. Reasonable opportunity to defend rights and present witness/evidence.

c. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and on of competent jurisdiction d. A finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties affected. 5. Effect of non-observance- denial of DP constitutes GAD; a decision is VOID for lack of DP if as a result, a party is deprived of the opportunity to be heard. Institution of proceedings 1. Some proceedings are instituted by simple ex parte applications 2. Others are instituted by filing of a charge or complaint by an aggrieved person. 3. Under other statutes, particular administrative agencies may institute proceedings on their own initiative, motion, or complaint. Necessity for notice and hearing 1. General rule: notice and hearing not essential when agency exercises administrative, executive, or legislative functions. 2. In quasi-judicial function: parties entitled to notice and hearing. 3. In administrative proceedings (quasi-judicial) notice and hearing may, to a fault, be dispensed with, but the opportunity to be heard must at all times be afforded to the parties. 4. DP requirements are usually in the statute, but if none is provided, the Constitutional guarantee of due process of law must be upheld. (Notice to enable a party to be heard and to present evidence is not a mere technicality or a trivial matter in any judicial or quasi-judicial proceedings. The service of summons is a very vital and indispensable ingredient of DP). Sufficiency of notice 1. Where a statute or rule provides the manner, form, and time of notice, the notice must conform with the prescribed provisions, at least substantially, and a statutory provision may NOT be altered by a rule of the agency. Waiver of right to notice

1. A failure to comply with the requirements as to notice and process mat result in a FAILURE TO ACQUIRE JURISDICTION; notice may be WAIVED. Denial of DP may be cured 1. When an agency fails to afford previous notice, it may be cured by subsequently giving the party an opportunity to be heard. 2. Motion for reconsideration is a means to cure the defect of notice. Because in a MR, a party has the opportunity to be heard. Elements or essentials of right to hearing (code:PeK-CE) 1. to present his case or defense, and submit his evidence, oral or documentary, in support thereof; 2. to know the claims of the opposing party and to meet the other party; 3. to cross-examine witnesses for a full disclosure of the facts; and 4. to submit rebuttal evidence. Duty of administrative body to consider the evidence presented 1. The admin agency/officer cannot set aside an evidence adduced by a party without notice or consideration 2. The official or body must act on its own consideration of the law and the facts of the controversy, and not simply accept the view of the subordinate Investigation v. Hearing INVESTIGATION By government officials, which may be held in private are informal proceedings to obtain information to govern future actions, have NO parties, and are NOT proceedings in which action is taken against anyone. HEARING There are parties and issues of law and of fact to be tried and at the conclusion of the hearing, action is taken which may affect the parties rights and parties are entitled to be present in person and by counsel, participate in the hearing, and entitled to be furnished a record of the proceedings.

met or the determination is INVALID; an express requirement is NOT necessary. 2. In the absence of express statutory provision, the question whether there is a right to notice and hearing is to be determined by the TERMS OF THE PARTICULAR STATUTE AND ATTENDANT CIRCUMSTANCES. a..Courts have refused to read a hearing requirement into a statute which does NOT specifically provide for a hearing in matters involving mere privilege and NOT a property right (i.e. liquor, racing, or other license) b.Provision for an investigation does NOT require a hearing and a provision for a hearing 3. The regulations, if provided, may be held to embrace all elements of a fair hearing. Constitutional requirement of notice and hearing 1. Fundamental or essential requirements of procedural due process is NOTICE and HEARING (opportunity to be heard either before a court or an administrative agency). 2. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need NOT comply with the requirements of notice and hearing (only in quasi-judicial functions). Proceedings in which NO HEARING IS REQUIRED 1. In some instances in administrative proceedings, it is not required; what is due process of law depends upon the circumstance. It varies with the subject matter and the necessities of the situation. 2. Notice and hearing are necessary in order to comply with due process of law ONLY when constitutional right is claimed to be invaded and the Constitution does not require a trial-type hearing in every conceivable case (i.e. cases to decide whether a right or privilege shall be granted/withheld, only privilege is involved, not personal/property rights, where right is granted conditionally and subject to termination) 3. Requirement of notice and hearing is NOT essential where the proceeding or power exercised is legislative, executive, administrative or ministerial in nature (i.e. summary abatement of nuisance which affects the immediate safety of persons and property; in summary proceedings of distraint and levy upon a property of a delinquent tax payer; in the preventive suspension of a public officer pending investigation; interlocutory order; where an

Requirement by notice and hearing by law or regulation 1. When a statute requires notice and hearing in reaching an administrative determination, such statutory requisite must be

administrative agency merely passed upon the sufficiency of the evidence presented before an office) 4. The right to a hearing or to particular elements of a fair trial is WAIVABLE; failure to attend a hearing, notice of which has been served on a party, effects forfeiture of his right to be heard. Applicability of rules governing judicial proceedings 1. The procedure of administrative agencies is NOT as formal and strict as that of the court, and the regularity of such proceedings is not to be tested by the strict legal rules which prevail in courts. 2. Administrative agencies, the same as courts, must act within and cannot exceed their jurisdiction; an administrative agencys exemption from strict legal rules of procedure does NOT empower it to act arbitrarily and even statutory exemption from rules of procedure cannot authorize exemption from due process guarantee. Delegation of authority to hear and receive evidence NOTE! It is well-settled that while the power to decide resides solely on the administrative agency vested by law, this does not preclude a delegation of the power to other persons such as a hearing officer, examiner, or investigator to receive evidence to hold a hearing and make reports) 1. It is essential that judgment and discretion are finally exercised by proper officer. 2. It is NOT required that the actual taking of testimony be before the same officer who will make the final decision, as long as the party is not deprived of his right to present his own case and submit evidence in support thereof. 3. The officer who makes the determinations must personally consider and appraise the evidence which justifies them. Evidence in administrative proceedings 1. An administrative agency is NOT bound by the strict rules governing the reception of evidence in court proceedings; the obvious purpose is to free administrative bodies from the compulsion of applying technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would NOT invalidate the administrative determination.

2. Basic rules of evidence which an administrative agency has been required to observe are (code: OPAD-RICO): giving of evidence under oath; principle that evidence must have probative value; the proper allocation of burden of proof, the degree of proof, the right to know evidence submitted or to be reconsidered; to inspect documents; to cross-examine witnesses, and to offer evidence in explanation or rebuttal) 3. Evidence must be SUBSTANTIAL; the complainant has the burden of proving, by substantial evidence, not proof beyond reasonable doubt, the allegations in his complaint. When two conflicting occasions are supported by substantial evidence, the administrative body may choose which to uphold and for that reason even flip-flop on its actual findings without committing GAD. NOTE! Substantial evidence- such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; mere uncorroborated hearsay or rumor does NOT constitute substantial hearing 4. Hearsay evidence is generally held admissible in proceedings before administrative agencies, at least, for limited purposes, especially when NOT objected to and does NOT necessarily deny a fair hearing or vitiate the proceeding or invalidate an order. 5. Dying declarations, and other admissions and declarations against interest, have been held admissible in administrative proceedings. 6. Decision must be rendered on the evidence presented at the hearing or at last contained in the record and diclosed to the parties affected; evidence without any rational probative value may NOT be the basis of an order or decision of an administrative body. 7. Courts have generally held that it is improper for an administrative agency in a quasi-judicial or adjudicatory proceeding to base its decision or findings upon facts gathered from its own files without introducing them in evidence. 8. In adjudicatory proceedings involving primarily the interests of private litigants, information cannot be withheld from the parties on the ground that it is of confidential nature. 9. Proceedings does not require proof beyond reasonable doubt as in criminal cases or preponderance of evidence in civil cases; a statute may specially provide for a greater or lesser degree of proof than simple preponderance.

NOTE! An administrative body may not require a degree of proof HIGHER than substantial evidence Decisions or Orders 1. The right to adduce evidence, without the corresponding duty on the part of the administrative duty on the part of the administrative agency to consider is vain; the decision must be based on the evidence presented t the hearing, or at least contained in the record and disclosed to the parties affected. a. Express findings are necessary or desirable: i. so that it may be known upon what action of the administrative agency is based as well as to protect and assure the parties against careless and arbitrary action. ii. to enable courts to perform their function of review. iii. to give the reviewing court the assistance of an expert judgment. 2. Administrative decisions or orders must in particular cases conform to the statutes and the rules of the agency governing particular proceedings. a. They must be in proper form, authenticated as prescribed b. The mandate imposed by the Constitution to state clearly and distinctly the facts and the law on which a decision is based REFERS ONLY TO A COURT. 3. General rule: decisions become executory ONLY AFTER they have become final and executory. Exception: execution pending appeal; it becomes final and executory AFTER the lapse of the reglementary period pf appeal if NO appeal is perfected. Where administrative agency is a collegiate body 1. Powers and duties of an administrative agency or board may NOT be exercised by individual members SEPARATELY; their acts are official only when done by members convened in session, upon a concurrence of at least a MAJORITY and with at least a QUORUM present. 2. If individuals act alone, their actions are rendered NUGATORY. Power of administrative agencies to modify their decisions 1. Administrative determinations are subject to reconsideration and changes so long as NO rights have vested in

the meantime and so long as they have not passed beyond control of the administrative authorities. 2. Grounds to modify determinations: (code: FaMaSINaM) a Fraud of imposition b. Mistake c. Surprise d. Inadvertence e. Newly discovered evidence f. Meet changed conditions (whether by express provision OR principles applied by courts) g.. DELAY in acting does NOT deprive the administrative authorities of jurisdiction. Application of the Res Judicata Doctrine 1. Doctrine operates ONLY upon the parties and prevents them, on account of a prior determination, from litigating a controversy or issue which could have been litigated in the subsequent proceeding 2. Applicable: adjudicatory, judicial and quasi-judicial proceedings 3. Inapplicable: administrative decisions of administrative, executive, legislative or ministerial nature and labor relations proceedings (non-litigious and summary in nature without regard to legal technicalities obtaining n courts of law. 4. Applicability of Res Judicata is a matter of interpreting the enabling statute; some statutes may limit or restrict the extent to which an administrative determination may operate as Res Judicata. 5. A determination of Res Judicata attaches to the courts judgment rather than to the administrative decision. 6. ELEMENTS: (code: PaJMI) a. previous final judgment/order b. jurisdiction over subject-matter and parties by the court rendering decision c. judgment on the merits d. identity of parties, subject-matter and cause of action. Administrative appeal and review Different types and kinds of appeal and review: 1. Inheres in the relation of administrative superior to subordinate.

2. 3. 4.

5. 6.

Embraced in statutes which provide for a determination made by a particular officer or body subject to appeal, review, or redetermination. Statute making the court a part of administrative scheme (exercise powers that differ from ordinary judicial function) The statute provides that an order made by a division of a Commission or Board has the same force and effect as if made by the Commission subject to a rehearing by the FULL Commission That in which the statute provides for an appeal to an officer on an intermediate level with subsequent appeal. Appeal at the highest level, namely, the President.

Action by administrative appellate tribunal 1. Authority by superiors to reverse the findings of their subordinates must be exercised sparingly and only upon clear showing of error. 2. Review must NOT be whimsical or arbitrary or devoid of substantial basis. 3. The scope and extent of review in the administrative system will depend upon the statutory scheme of distribution of powers as between the officer or body making the initial decision; generally, a DE NOVO (new trial by a different tribunal) review is required unless the law provides otherwise. 4. Reviewing officer must be OTHER THAN the officer whose decision is under review. 5. Section 15, Chapter III, Book VII of the 1987 Administrative Code: decisions of administrative agencies become final and executory 15 days AFTER receipt of a acopy thereof by parties adversely affected. a. exception: UNLESS within that period an administrative appeal or judicial review, if proper, is allowed. Enforcement of administrative decisions 1. General rule: Administrative determinations are enforceable only in the manner provided by statute. If there is no provision of a remedy for enforcement, it is unenforceable. 2. Legislature may aid the enforcement of administrative determinations by providing a penalty for failure to comply promptly therewith and direct and positive sanctions are also afforded. NOTE! Congress is WITHOUT power to authorize a purely administrative official to determine whether a crime has been

committed; the imposition of criminal penalties is a JUDICIAL FUNCTION) 3. In the absence of statute, administrative authorities may NOT enforce their own determinations. 4. Methods of enforcement: a. Focusing of public opinion b. Revocation c. Suspension d. Refusal to renew license e. Refusal to grant clearance papers to ships f. Withholding/denying benefits g. Imposing conditions h. Seizure and sale or destruction of property i. Exclusion and deportation of aliens j. Suspension or revocation of certificates of public convenience k. Imposition of penalties and surcharges l. Imposition of fines and forfeitures m. Summary distraint of personal property n. Levy of real property for non-payment of taxes o. Summary abatement of nuisance 5. Whatever irregularities that may attend to the issuance of the writ of execution should be referred to the SAME administrative tribunal. 6. Administrative bodies generally have NO power to enforce their decisions or orders but such decisions or orders can be enforced ONLY by courts. Two ways: a. filing petition to execute action; attach to complaint b. look for remedy/relief if admin agency has NO jurisdiction.

CHAPTER VI: JUDICIAL REVIEW OF, OR RELIEF AGAINST, ADMINISTRATIVE ACTIONS Concept of Judicial Review Judicial review may embrace any form of judicial scrutiny of a latter which arises when such action is brought into question before a court. 1. Problem: brings into the judicial process into conflict with the administrative process and presents vital questions as to the relative roles of administrative agencies and courts.

2. Administrative agencies perform functions which are BEYOND the capacity of courts 3. Questions of LAW AND VALIDITY- for the court Questions of FACT, POLICY or DISCRETION- for the agency. 4. Administrative interpretation is at best ADVISORY for it is the courts that finally determine what the law means. 5. General rule: Courts CANNOT interfere with the actions of government agencies. Exception: UNLESS there is a clear showing of capricious and whimsical exercise of judgment or grave abuse of discretion amounting to lack or excess of jurisdiction. Certiorari, Prohibiton, and Mandamus DO NOT lie against the legislative and executive branches. Right to Judicial Review Such right has reference both to the power and right of the court to grant the review sought AND the right in the person who invokes the power of the court. 1. General rule: when legislation provides for an appeal form decisions of certain administrative bodies to the CA, they are deemed CO-EQUAL with RTC. 2. NO inherent right to judicial review of the action of an administrative agency; appeal is of a statutory origin; it is NOT a requirement of due process. 3. Courts are exceedingly slow to rule that a statute precludes all judicial review; there is considerable area where legislative discretion may grant or withhold or narrow the scope and extent of judicial review. 4. Rules: a. General rule: Where a full hearing is provided, the determination of that tribunal may be made FINAL. b. Congress is constitutionally free to make an administrative determination final and immune from judicial review c. Administrative determinations involving POLITICAL QUESTIONS need NOT be submitted to a court for review d. Government is not bound to provide a remedy in the courts. e. When Congress grants a right to resort to the courts by way of appeal, it may restrict review to a single court. f. Congress may place procedural conditions and restrictions upon the right to judicial review. g. Provisions that administrative decision or action shall be subject ONLY to administrative review.

h. NO constitutional objection to making findings of facts conclusive if supported by evidence or to a provision. e. Judicial review becomes a matter of constitutional necessity in some situations; such review springs from the fundamental concept of SUPREMACY OF LAWwhich lodges in the courts, inherent authority to determine constitutionality of statutes. Rules governing appeals from judgments of quasi-judicial agencies 1. Agencies covered: a. CSC b. Central Board of Assessmant Appeals c. SEC d. Land Registration Authority e. Social Security Commission f. Office of the President g. Civil Aeronautics Board h. National Telecommunications Commission i. DAR (under RA no. 6657) j. GSIS k. Employees Compensation Commission l. Agricultural Inventions Board m. Insurance Commission n. Philippine Atomic Energy Commission o. BoI p. Construction Industry Arbitration Commission 2. Where to appeal- may be taken to the CA within the period and in the manner provided whether it involves questions of fact, law or mixed. 3. Period- appeal shall be taken within 15 days from: a. notice of the award, judgment, final order, or resolution; or b. from the date of its last publication if such is required by law for its effectivity c. only 1 motion for reconsideration is allowed d. upon proper motion AND payment of the full amount of docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. 4. How appeal taken- Appeal shall be taken by filing a verified petition for review in 7 legible copies with the CA with proof of service of a copy thereof.

5. Upon filing of the petition, the petitioner shall pay to the CoC of the CA the docketing and other lawful fees and deposit the sum of P500.00 for costs. a. Exemptions may be granted by the CA upon a verified motion setting forth valid grounds thereof. 6. Contents of the petition: code: (NaSC-DaF) a. State the full names of the parties to the case b. Contain concise statements of the facts and issues involved and the grounds relied upon c. Be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order, or resolution appealed from. d. State the specific material dates showing that it was filed within reglementary period. e. Contain sworn statement against forum shopping. 7. Failure of petitioner to comply with the foregoing requirements regarding the payment and petition contents shall be sufficient grounds for DISMISSAL 8. CA may require the respondent to file a comment on petition within 10 days from notice; CA may dismiss the petition if it finds it to be patently without merit 9. Comment be accompanied by clearly legible certified true copies of such material portions of the record; it shall point out insufficiencies or inaccuracies in petitions statements. a. Court may give due course to petition or it shall dismiss the same. 10. Transmittal of record- within 15 days from notice that the petition has been given due course , the CA may require the court/agency concerned to transmit the original or legible certified true copy. STEPS: 11. Effect of appeal- appeal shall NOT stay the award of STEP ONE: judgment, final order or resolution sought to be reviewed unless a. Petitoner takes appeal to the CA by filing a verified petition for the CA shall direct otherwise. review in 7 legible copies with required contents. 12. Submission for decision- If the petition is given due b. Period: 15 days from notice of final judgment OR last publication. course, the CA may set the case for oral argument or require the STEP TWO: parties to submit memoranda within a period of 15 days from a. Pay to the CoC of the CA the docketing and other lawful fees and notice; it shall be deemed submitted upon the filing of the last deposit the sum of P500.00 for costs. pleading/memoranda. STEP THREE: a. CA may require the respondent to file a comment on petition, accompanied by clearly legible true copies of material portions of record. b. Period: within 10 days from notice. STEP FOUR: a. Court shall decide to either: i. give due course, or ii. dismiss the petition. STEP FIVE: a. CA may require the court/agency concerned to transmit original or legible certified true copies. b. Period: within 15 days from notice that the petition has been given due course. STEP SIX:

Administrative findings and constructions generally conclusive In reviewing administrative decisions, the reviewing court cannot re-examine or weigh once more the factual basis and sufficiency of the evidence submitted before the administratve body and substitute its own judgment 1. Substantial evidence rule: courts will NOT disturb the factual finding of administrative agencies acting within the parameters of their own competence if supported by substantial evidence. a. Due to their special knowledge, expertise, and experience gained from the handling of specific matters falling under respective jurisdictions, the courts ordinarily accord great weight and respect, also due to the separation of powers. b.When confronted with conflicting versions of factual matter, it is for them the exercise of discretion to determine which party deserves credence on the basis of the evidence received. Finality of Administrative action for purposes for review 1. Courts are reluctant to interfere with action of an agency PRIOR to its completion or finality (REASON: absent a final order or decision, power has not been fully and finally exercised, and there can usually be NO irreparable harm); it is only AFTER judicial review is no longer premature that a court may ascertain whether such administrative decisions are not in violation of the law. 2. Review may be DENIED as a mere pronouncement/recommendation NOT acted upon. 3. The mere informality of a decision does not prevent its review if it is otherwise final.

4. Judicial relief or review is often denied for lack of finality where action of the agency is only anticipated, even though threatened, or where the action is still pending without final disposition. Several grounds stated by the courts in denying relief in such situations: a. Jurisdiction lies in the agency rather than in courts. b. An administrative officers are NOT subject to the control of courts c. Determinations of subordinate officials under the control and subject to review by their official superiors d. Courts will not render a decree in advance of the agencys action. e. It is not for the court to stop an administrative officer from performing his statutory duty for fear he will perform it wrongly, particularly where the statute is NOT constitutional. f. Prior to administrative determination, the party seeking relief has not suffered a present injury. 5. An order required to be submitted to a superior for approval is NOT final for purposes of review. f. Pendency of an application for rehearing or recommendation filed within the time prescribed deprives the original order of finality. g. Regulations of an administrative agency are addressed to and set a standard of conduct for all to whom their terms apply. h. PURELY administrative and discretionary functions may NOT be interfered with by the courts; courts do NOT have supervising power over the proceedings and actions of the administrative departments of the government. i. Universal Rule: Appeal to courts will NOT lie from an interlocutory order UNLESS such order affects the merits. NOTE! an order is interlocutory when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action, i.e. denial of a motion to change place of hearing, denial of application for a stay, denial of application for rehearing j. Certiorari is permitted against agencies exercising quasijudicial functions whether the order is interlocutory or not where due process was NOT followed. Exceptions to the doctrine of finality

1. The fact that a particular determination is NOT a final order for purposes of statutory review has been held NOT to preclude the availability of judicial review: (code: IG-PA-RE) a. To an interlocutory order affecting the merits of the case. b. To grant relief to preserve the status quo pending further action by the agency. c. When it is essential to the protection of the rights asserted from the injury threatened. d. Where an administrative officer assumes to act in violation of law. e. Where such order is not reviewable in any other way and the complainant will suffer great and obvious damage if carried out. f. To an order made in excess of power , contrary to specific prohibition in the statute governing the agency and operating as a deprivation of a right. NOTE! In some instances, exceptions to the requirement of finality or limitations on such requirement flow directly from STATUTORY PROVISIONS Timing of application to courts (code: PER) The ff. doctrines govern problems of determining which tribunal may take initial action and at what stage the aggrieved party may go to court.: 1. Doctrine of PRIMARY JURISDICTION-determines in some circumstances whether initial action should be taken by the court OR by an administrative agency. 2. Doctrine of EXHAUSTION OF ADMINISTRATIVE REMEDIESdesigned primarily to control the timing of judicial relief from adjudicative action of an agency; applied to adjudication not rulemaking. 3. Doctrine of RIPENESS OF REVIEW- similar to the exhaustion doctrine except that it applies to rule- making and administrative action. Doctrine of PRIMARY JURISDICTION/PRIOR RESORT/ EXCLUSIVE ADMINISTRATIVE JURISDICTION 1. Definition: - Courts CANNOT and will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and

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services of the tribunal to determine technical matters of fact. 2. Concept a. The term primary jurisdiction usually refers to cases involving specialized disputes which are referred to an administrative agency of special competence to resolve the same. b. Applies only where the administrative agency exercises its adjudicatory function. 3. Reasons a. To take full advantage of administrative expertness b.To attain uniformity of application of regulatory laws which can be secured only if determination of the issue is left to the administrative body. 4. Subsequent resort to judicial action not precluded a. Doctrine requires litigants to address their complaints initially to administrative tribunals rather than to courts for relief if issues involved are such that they can be presented in the first instance to the former. 5. Exclusive jurisdiction may be implicit or explicit; where the exclusive jurisdiction is only implicit, it must clearly appear that the intention of Congress is to require administrative determination. 6. Application a. Doctrine is NOT an inflexible mandate; it is predicated on an attitude of judicial self-restraint, and its application involves the exercise of a judicial discretion. Where an affirmative indication of legislative intent does not clearly appear, the courts are free to determine on the basis of policy considerations, the need of prior resort. b. Prior resort to an agency is limited to QUESTIONS OF FACT and QUESTIONS REQUIRING SKILL of such agency. c. Doctrine applicable whenever courts and agencies have concurrent jurisdiction Doctrine of EXHAUSTION OF ADMNISTRATIVE REMEDIES 1. Definition: Requires that where a remedy before an administrative agency is provided, and can still be resorted to by giving the said agency every opportunity to decide a matter that comes within its jurisdiction, relief must be first sought by exhausting this remedy before bringing an action in or resorting to the courts of justice. NOTE! Rule: after all remedies are exhausted or first availed of may judicial recourse or intervention be allowed.

NOTE! Doctrine is merely one aspect of the broader doctrine which requires final administrative action as a prerequisite of judicial review. Decisions of administrative agencies are usually questioned in the special civil actions of certiorari, prohibition and mandamus which are allowed only when there is NO plain, speedy and adequate remedy available to petitioner. 2. Application of the doctrine a. In some instances, the statute makes the exhaustion of the remedies a pre-condition of the right to seek the intervention of the courts. The principal application is to compel parties to administrative proceedings to take full advantage of ALL means of administrative processes afforded them. b. The authorities are not in accord as to whether the application of the doctrine lies in the discretion of the court or goes to its jurisdiction and does NOT permit the exercise of discretion. NOTE! In Philippine jurisdiction it has been held that the failure of a party to exhaust the procedure of administrative remedies provided by law therefore affects his cause of action, not the jurisdiction over the subject-matter NOTE! Exhaustion must be raised at the EARLIEST TIME POSSIBLE, even before filing an answer to the complaint. Failure to invoke it at the proper time operates as a waiver of the objection as a ground for a motion to dismiss. 3. Instances where doctrine has been applied a. Certiorari cannot be sustained where the administrative remedies were NOT exhausted. Thus, an MR of any order should first be filed before the special civil action for certiorari may be availed of. (Sunshine Transportation v. NLRC) b. Remedy from the court cannot be sought where petitioner never filed an MR of the decision of the Civil Service Commissioner and no appeal was made to the Civil Service Board of Appeals. (Rosales v. CA) c. The delay in the Immigration Commissioners action does not constitute an exception to the rule for it is precisely such delay that should be brought to the attention of the Secretary of Justice for remedial action (CoI v. Vamenta, Jr.) d. Filing a complaint in court without waiting for the decision of the Auditor-General (COA) from which if adverse or not satisfied therewith, the petitioner could have appealed to the

11

President or the SC does not exhaust administrative remedies (Barte v. Dichoso) e. It is the duty of a party aggrieved by an administrative adjudication to ascertain what could still be done by higher authorities (Quintos Jr. v. Natonal Stud Farm) f. It is the legal obligation of the petitioners to appeal to the Board before resorting to the Court when such Board (Madrinan v. Sinco) g. The question of a persons Filipino citizenship is and should be addressed in the first instance to the Commissioner of Immigration. A suit filed in court to restrain the Commissioner from hearing the deportation case is premature where no hearing has been conducted and no conclusion reached therein. ( CoI v. Juan Go Tieng) h. A motion for reconsideration or appeal is curative in character on the issue of alleged denial of due process NOTE! WON a motion for reconsideration of an administrative decision is essential in exhausting available remedies would largely depend on: the pertinent law, the rules of procedure, and the sual practice followed in the particular office. 4. Exceptions to the doctrine The doctrine does NOT preclude in all cases a party from seeking judicial relief. a. Where the legislature intended to allow the judicial remedy, or where the administrative remedy is not exclusive, or there is grave doubt as to the availability of the administrative remedy. b. Where the issue involved not a question of fact, but one of pure law. Where jurisdictional issue as a mere question of law does not depend upon disputed facts, judicial relief may be sought. c. Where the issue raised is the constitutionality of the statute under which the administrative agency acts, as distinguished from a possible exercise of administrative power under the statute. d. Where questions are essentially judicial. e. Where there is estoppel on the part of the party invoking the doctrine, or where the administrative body is in estoppel to invoke the doctrine. f. If it should appear that an irreparable damage or injury will be suffered by a party unless resort to the court is immediately made.

g. Where there is no other plain, speedy or adequate remedy in the ordinary course of law. h. Where respondent officer acted in utter disregard of due process. (i.e. one dismissed without any administrative charges having filed nor investigation conducted) i. Where insistence on its observance would result in the nullification of the claim being asserted. j. When there is long-continued and unreasonable delay or official inaction that will unretrievably prejudice the complainant. k. When there are special reasons or circumstances demanding immediate judicial intervention (i.e. petitioner reinstated to the wrong position of a mere classroom teacher and not to former position as elementary principal I) l. Where the amount involved is relatively small so that to require exhaustion would be oppressive and unreasonable m. When no administrative review (i.e. by the President or by the Executive Secretary) is provided as a condition precedent to the taking of an action in court. n. In land cases where the land subject of litigation is not part of the public domain; such doctrine is not applicable even to private lands acquired by the government by purchase for resale to individuals. o. The application of the principle of exhaustion is confined to controversies arising from the disposition of public lands and NOT to possessory actions involving public land. Pending final adjudication of ownership by the Bureau of Lands, the courts have jurisdiction to determine in the meantime the right of possession over the land. p. Where the respondent is a Department Secretary whose acts as an alter ego of the President, bear the implied or assumed approval of the latter, unless actually disapproved by him (Doctrine of Qualified Agency) q. Where the administrative officer has not rendered any decision or made any final finding of any sort; such principle rests upon the assumption that the administrative body, board, or officer, if given the chance to correct its/his mistake or error may amend its/his decision on a given matter. r. Where the plaintiff in the civil action for damages has no administrative remedy available to him NOTE! The cause of action in the administrative case is different from that of the civil case for damages.

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CoA in admin. case- if government is aggrieved party and no award for damages may be granted in favor of private persons. CoA in a civil action for damages- the trial courts concern is whether or not damages, personal to the plaintiff, were caused by the acts of the defendant.

run its course.

entire proceeding and operates through a suspension of the judicial process pending referral of such issues to the agency.

s. Where a strong public interest is involved, the doctrine may be dispensed with. t. Other exceptions i. Act is patently illegal. ii. performed without or in excess of jurisdiction. iii. circumstances indicating urgency of judicial intervention. iv. no due process observed. v. protestant has no other recourse. vi. exhaustion of administrative remedies unreasonable. vii. issue of non-exhaustion moot and academic. viii. government corporation had an affirmative statutory duty to disclose to public the terms and conditions of sale of government lands. Exhaustion and primary jurisdiction doctrines distinguished 1. Similarities a. Concerned with promoting proper relations between the courts and administrative agencies. b. Do not apply where the issue involved purely questions of law there being no questions of fact and those requiring expert judgment. 2. Differences EXHAUSTION 1. Invoked as a defense to judicial review of an administrative action not yet complete. 2. Applies where the claim/matter is cognizable in the first instance by an administrative agency. 3. Judicial interference withheld until administrative process has PRIMARY JURISDICTION 1. Arise where both the court and administrative agency have jurisdiction to pass on a question. 2. Applies in the face of statutes purporting to permit a choice of remedies. 3. Relates to particular issues in a proceeding rather than the

Doctrine of RIPENESS FOR JUDICIAL REVIEW 1. Principle: the judicial machinery should be conserved for problems which are real and present or imminent and should not be squandered on problems which are future, imaginary, or remote. 2. The background for the rule concerning the timing of attacks upon administrative regulation is found in cases involving the constitutionality of statutes vis--vis regulations. REGULATION STATUTE 1. Invalid only if unconstitutional 1. Invalid only if they are unconstitutional or in excess f statutory authority. 2. May be either legislative or 2. Have the force of law. interpretative and interpretative regulations may sometimes lack the force of law. 2. Application When will an issue be ripe for judicial determination? a. Interests of the plaintiff are, in fact subjected to or imminently threatened with substantial injury. b. Statute is self-executing. c. Statute or regulation which is enforceable through criminal prosecution should be subject to challenge in a suit for injunction. d. A debilitating legal uncertainty by reason of which private parties may be injured seriously enough to justify resort to judicial machinery. e. When a plaintiff is substantially harmed by the vagueness of a statute, the vagueness should not be deemed a ground for refusing to determine whether the statute is void for vagueness. f. Informal administrative action may be deserving of judicial attention as the most formal order or regulation.(i.e. an instruction issued by an administrative agency should be held ripe for review where no administrative remedy is available and the party affected is immediately confronted with compliance or non-compliance)

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g. That governmental action is contingent upon the plaintiffs action or upon other events does not necessarily mean that the governmental action is unripe for challenge; the test still is whether substantial injury to the plaintiff is present or imminent. h. When substantial adverse effect upon the plaintiff from a statute or other governmental action is neither present nor imminent. Is unripe except that perhaps the court should recognize judicial discretion to decide the issue of legality. Ripeness and exhaustion doctrine distinguished RIPENESS 1. Focus is upon the nature of the judicial processupon the types of functions the courts should perform. 2. Applied to rule making and administrative action not involving rulemaking and adjudication. EXHAUSTION 1. Focus upon the relatively narrow question of whether a party should be required to pursue an administrative remedy before going to court. 2. Applied to adjudicative action of an administrative agency.

a. determinations of LAW, which are fully reviewable. b. determinations of FACT, review of which is limited to finding of substantial evidence. c. discretionary determinations, which are reviewable only to ascertain whether the action taken is arbitrary or capricious. 2. The general frame of power of judicial review is to keep the administrator within the valid statute which guides him and keep him from unreasonable excesses in the exercise of his function. 3. The fundamental feature f judicial review of administrative action is that it is a limited review; extremely limited in regard to findings of fact and to expert judgments of an administrative agency acting within statutory authority. Judicial review does not import trial de novo 1. Judicial review does NOT import trial de novo (review of the evidence all over again) but only an ascertainment of whether the administrative findings are not in violation of the Constitution or of the laws. a. Administrative decision in matters within the executive or administrative jurisdiction can only be set aside on proof of gross abuse of jurisdiction fraud or error of law. b. There cannot be trial de novo in administrative cases since a review of an administrative finding is limited to the evidence already presented before the administrative body. Methods or modes of relief or review 1. Direct or collateral (or indirect), included in this latter method damage suits against the agency or its officials. 2. Statutory or non-statutory, including in this latter term any remedy not specifically made available by a statute relating to action of an agency or agencies. NOTE! The choice of remedy is a matter of importance, sicne onle may be expeditious or less burdensome that the other. Statutory methods of review (three groups) 1. Where remedy itself governed by statute- statutory methods are afforded where the remedy itself is governed by statutory provisions. 2. Where proceedings in court required by statute for enforcement of administrative decision

Ripeness and primary jurisdiction doctrine distinguished RIPENESS 1. Determines at what stage a party may secure judicial review of administrative action. PRIMARY JURISDICTION 1. Determines at what stage a party may secure judicial review of administrative action; also determines whether the court or the agency should make the initial decision. 2. Questions arise only when administrative and judicial jurisdictions are concurrent for the initial decision of some questions; function is to merely determine which tribunal shall make the initial determination

2.Questions arise whenever judicial review of administrative action is available.

Scope and extent of judicial review 1. Agency determinations have been regarded as three types:

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3. Where direct judicial review afforded by legislation providing generally for such review; direct review proceedings are afforded by legislation, providing generally for reviewof action of administrative agency and prescring the manner and extent of such review. Non-statutory methods of review The fact that a statute does not provide for judicial review of action does NOT preclude the courts from providing such as necessary or required. Relation between the two methods 1. Exclusive- where a statute relating to the administrative agency provides a direct method of judicial review or agency action and is applicable 2. Some cases hold, not that the statutory method of review is exclusive, but that it must be exhausted as a prerequisite to judicial relief by some other methods. 3. In some instances, the existence of a statutory review has not precluded review by means other than as provided in the statute especially as to acts which are entirely warranted or where exceptional circumstances exist. Questions open to review 1. The questions presented to administrative agencies are generally recognized to be three types: matters of law, matters of fact, and matters of discretion. NOTE! The courts cannot and will not disturb the action of an administrative agency which is within its jurisdiction or not beyond its powers of authority NOTE! The purpose of the rule is to free administrative agencies from compulsion of applying technical rules of evidence which would be deemed incompetent in judicial proceedings. 2. Questions of law a. There is a question of law in a given case when the doubt or differences arise as to what the law is pertaining to a certain state of facts. b. It is for the courts, not the agencies, to lay down the governing principles of law and to determine what action is within or without the law.

c. Such matters relate to constitutional issues, jurisdiction, compliance with law and required procedure, statutory interpretation, actions which are arbitrary, unreasonable or an abuse of discretion. 3. Questions of fact: a. There is a question of fact when the doubt or differences arise as to the truth or falsity of alleged facts; it is one which is to be determined by special circumstances of each case in the exercise of judgment and not by any fixed rule of law. b. Such question is the concern solely of an administrative body so long as there is substantial evidence of record to sustain its action even if such evidence is not overwhelming or preponderant. c. A question of fact is conclusive and not subject to be reviewed by the court in the absence of showing that such decision was rendered in consequence of fraud, imposition, or mistake. 4. Mixed questions of law and fact a. There is no clear dividing line between questions of law and questions of fact. b. An administrative finding on a mixed question of fact and law is subject to judicial review, on which the court may substitute its judgment for that of the agency. c. It may be treated as a question of fact for purposes of review and the courts will not ordinarily review the decision of the administrative tribunal. d. Where jurisdictional or constitutional facts are involved, the administrative findings are subject to judicial review. 5. Administrative discretion a. Courts have no supervising power over the proceedings and actions of administrative bodies, and this is generally true with respect to acts involving the exercise of judgment or discretion and findings of fact. Grounds which would warrant reversal of administrative findings code: (SaM-GaF-BIP) 1. Conclusion is a finding grounded on speculations, surmises and conjectures 2. The inferences made are manifestly mistaken, absurd or impossible. 3. There is GAD

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There is a misapprehension of facts The agency in arriving at its findings went beyond the issues of the case 6. Where the agency has sustained irregular procedures and through the invocation of summary methods. 7. Where the rights of a party were prejudiced because of administrative findings, conclusions, or decisions were in violation of constitutional provisions. Substantial evidence rule 1. Definition: Administrative determinations are final and conclusive upon the courts and must be sustained if supported by substantial evidence upon the whole record. 2. Substantial evidence- evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. Such evidence need not be such as to preclude a justifiable decision to the contrary. 3. Most generally applied standard governing the review of administrative action. 4. Compromise between opposing theories of a broad or de nove review of administrative actions and restricted review or complete abstentation. Test to be applied 1. Whether the evidence reasonably tends to support administrative findings or whether the decision is not clearly contrary to the overwhelming weight of the evidence. 2. Substantial evidence, more than a scintilla, must do more than create a suspicion of the existence of the fact to be established. Hierarchy of evidentiary values 1. Proof beyond reasonable doubt. 2. Clear and conclusive evidence 3. Preponderance of evidence 4. Substantial evidence NOTE! All administrative determinations require only substantial proof and NOT clear and convincing evidence.

4. 5.

When rule not applicable code:( TaP-RaFaP) 1. When the statute provides for a trial de novo 2. Where the statute has specified a standard of proof required for administrative determination. 3. Where the suit is not for review of the administrative order and is independent of the proceedings in which the ruling under attack was rendered 4. Where constitutional or jurisdictional facts are involved 5. Where property rights rather than privileges are involved. Liability of administrative agencies and officers 1. Doctrine of judicial immunity from suit extends generally to governmental officials in respect to their acts of a discretionary, judicial, or quasi-judicial nature. 2. Rule of immunity protects an officer from liability for a mistake of fact or an erroneous construction and application of the law, or an error of judgment in the determination of the law or the facts. 3. Rule applies to heads as well as subordinate officers who act in his place and stead carrying out the duties of the department/agency. 4. Basis- rule is simply one public policy designed to aid in the effective functioning of government, and represents a balance between evils inevitable in either alternative. 5. Exceptions: a. A public officer enjoys only qualified not absolute immunity. Where the circumstances of the case are such as to render the officer personally liable, he is not relieved from responsibility by reason of mistake and honesy intention. i. dishonesty, bad faith, malice, or corrupt motives will render an officer civilly liable in an action for damages. ii. an officer is liable for his errors or mistakes in the same way as any private individual when he is acting without jurisdiction or in excess b. The state (government) may be sued only within its consent. A suit is against a state when a judgment therein would impose a financial liability or obligation on the government. 6. Official immunity and state immunity a. Immunity of public officials- more limited principle than governmental immunity since its purpose is not directly to protect

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the sovereign, but rather to do so only collaterally by protecting the public official. b. doctrine of sovereign immunity- rests upon the tenuous ground that the king could do no wrong.; it serves to protect the impersonal body politic or government itself from tort liability.

particular constitutional office, the constitutional criteria are exclusive. 3. Where qualifications prescribed by ConstitutionCongress may prescribe additional qualifications unless it appears that this action is prohibited Ignacio vs. Banate why is B not qualified as to represent the Barangay at Sanggunian? The appointee to a Sangguniang Panglusod who sits there as representative of the barangays must meet the qualifications required by law. Sec.173 of the Local Government Code provides: The Sangguniang Panlungsod, as the legislative body of the city shall be composed of the Vice-Mayor, as presiding officer, the elected sangguniang panlungsod members, and the members who may be appointed by the President of the Philippines consisting of the Presidents of the Katipunan Panlungsod ng mga Barangay and the Kabataang Barangay city federation. B, not being a barangay captain and never having been elected president of the association of barangay councils, cannot be appointed as member of the Sangguniang Panlungsod. He lacks the eligibility and qualifications required by law. If the Constitution provides a set of disqualification, can Congress add some more? In the absence of constitutional inhibition, Congress has same right to provide disqualifications that it has to provide qualifications for office. However, Congress MAY NOT ADD disqualifications where the Constitution has provided them in such a way as to indicate an intention that the disqualifications provided shall embrace all that are to be permitted. When the Constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create

LAW ON PUBLIC OFFICERS

How may a person become a public officer? A person may become a public officer thru eligibility. Eligibility is the state or quality of being legally fitted or qualified to be chosen. It is of a continuing nature and must exist both at the commencement and during occupancy of an office. Who may become a public officer? A person who is eligible may become a public officer. Eligible means legally fitted or qualified to hold an office. Under the Administrative Code of 1987, eligible is used to refer to a person who obtains a passing grade in a civil service examination or is granted a civil service eligibility and whose name is entered in the register of eligibles. Who prescribes the qualification requirement of a public office? In general, Congress is empowered to prescribe qualifications for holding public office, provided it does not exceed thereby its constitutional power or impose conditions of eligibility inconsistent with constitutional provisions. Qualification must have a rational basis- nexus between requirements and duties of position in question. Qualifications must not be too detailed as to practically amount to making an appointment which is an executive function 1. Where an office is created by Congress- body can deal with the subject of qualification and disqualification, provided that in doing so it does not impinge upon any express provision of the Constitution 2. Where office is created by Constitution- If the Constitution establishes specific eligibility requirements for a

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When must a person possess the qualification requirements for a public office? at the time of appointment/election? at the commencement of term? or upon assumption of office? In ascertaining this matter, the language used in CONSTITUTIONAL OR STATUTORY PROVISIONS declaring the qualifications is to be considered. 1. Constitution/law may, expressly or impliedly, specify the time when the required eligibility must exist; there can be NO question but that the candidate must posses the necessary qualifications at that time. 2. If the Constitution/law is silent, the courts must have recourse to some other means of determining the matter. a. Some take the view that eligible has reference to the capacity NOT of being elected or appointed to office but of holding office; if qualified at time of commencement/induction, disqualification at time of election or appointment is immaterial. b. Some take the position that the conditions of eligibility must exist at the time of the election or appointment. c. Where the provision refers to holding of office, qualifications are to be determined at time of commencement of the term or the induction. Is eligibility or qualification of a continuing nature? Give an example. Eligibility to public office is of a CONTINUING nature and must exist at the commencement of the term and during occupancy. The fact that the candidate may have been qualified at the time of his election/appointment is NOT sufficient to entitle him to hold the office IF at the time of commencement/tenure or during incumbency he ceases to be qualified. Thus, a candidate for president must ALWAYS have Filipino citizenship. If at any time, even during the occupancy of his term, it was proven that he was not of Filipino citizenship, it can be a ground for disqualification. When a public officer becomes disqualified but after some time the disqualification is removed, can he come back if already removed or can he stay if not yet removed from office? Courts have NOT agreed as to the effect of removal by an office holder of his disqualifications after the commencement of the term and during its continuance. Some hold that such removal VALDATES the title of the incumbent while some take the contrary

view depending on the nature of disqualification, mode of removal, time at which it is removed and the like. What are the normal qualifications prescribed for public officers? did you encounter an unusual requirement? There are EIGHT particular qualifications prescribed for public officers. These are the following: citizenship, age, right to suffrage, residence, education, ability to read and write, political affiliation, and must have taken the civil service examinations for specific positions in the first and second levels of career service. Out of the eight qualifications, the ability to read and write seemed to be unusual and basic. However, there is NO constitutional prohibition against it especially where it has a reasonable relationship to the duties of the position in question. Those prescribed by the constitution 1. President and Vice President - Natural-born citizen of the Philippines - Registered voter - Able to read and write - At least 40 years of age on the day of election - Resident of the Philippines for at least 10 years immediately preceding such election 2. Senators - Natural-born citizen of the Philippines - At least 35 years old on the day of the election - Able to read and write - Registered voter - Resident of the Philippines for not less than 2 years immediately preceding day of election. 3. HOR members - Natural-born citizen of the Philippines - At least 25 years of age on the day of elections - Able to read and write - Registered voter in the district in which he shall be elected (EXCEPTION: party-list representatives) - Resident thereof for a period not less than one year immediately preceding the day of election. 4. Members of the SC and lower collegiate court - Natural-born citizen of the Philippines. - Person of proven competence, integrity, probity and independence. - Member of the SC:

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- At least 40 years old - Must have been for 15 years or more a judge of the lower court/engaged in the practice of law in the Philippines. 5. Chairman and Commissioners of the Civil Service (1 Chair, 2 Commissioners) - Natural-born citizens of the Philippines -At least 35 years old at the time of their appointment -With proven capacity for public administration - Must NOT have been candidates for any elective position in the elections immediately preceding their appointment. 6. Chairman and Commissioners of the COMELEC (1 Chair, 6 Commissioners) - Natural-born citizens of the Philippines -At least 35 years old at the time of their appointment - Holders of college degree - Must NOT have been candidates for any elective position in the immediately preceding elections. (majority, inc. chairman shall be members of the Philippine Bar who have been engaged in practice for at least 10 years). 7. Chairman and Commissioners of the COA (1 Chair, 2 Commissioners) - Natural-born citizen of the Philippines - At least 35 years old - CPA with not less than 10 years experience OR members of the Philippine Bar engaged in practice for at least 10 years - Must NOT have been candidates for any elective positions in elections immediately preceding their appointment (NOTE: AT NO TIME shall al members belong to the same position) 8. Chairman and members of the CHR (1 Chair, 4 members) - Natural-born citizen of the Philippines - Majority of whom shall be members of the Bar 9. Ombudsman and Deputies - Natural-born citizen of the Philippines - At least 40 years old at time of their appointment - Recognized probity and independence -Members of the Philippine Bar - Must NOT have been candidates for any elective office in the immediately preceding elections - Ombudsman must have for 10 years and more been a judge or engaged in the practice of law in the Philippines. Some disqualifications to hold public office is blindness a disqualification?

NO. While a blind person may labor at a disadvantage in certain public offices, his affliction does not necessarily disqualify him. If he possesses the other qualifications imposed by law, and there is no provision of the law excluding him from the office because of his blindness, he may be eligible to hold office. Holding more than one office; is it allowed if the offices are not incompatible? 1. NOT Allowed if prohibited by law. There is no constitutionally protected right to hold incompatible offices. The rule against holing incompatible offices does not result in an unconstitutional infringement of personal and political rights. In fact, it is said that a State has a legitimate interest in preventing one person from holding multiple public offices. The manifest purpose of restriction on multiple holdings is to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, any pecuniary benefit by virtue of their dual positionholding. P.42 2. Even if the duties do not conflict, the consolidation of government functions in a single person could adversely affect the freedom of expression by others. Where a person is prohibited from holding 2 offices at the same time, his appointment / election to a second office may operate to vacate the first or he may be ineligible for the second. Is there a constitutional prohibition against holding more than one position? The Constitution imposes limitations on the right of certain officials to hold more than one office at the same time: 1. 2. The President, VP, Cabinet Members, their deputies and assistants, unless otherwise provided in Consti, shall NOT hold any other office or employment during their tenure. Senator / Member of House of Representatives shall NOT hold any office / employment in government, agency, instrumentality, including GOCCs and their subsidiaries, during their term without forfeiting their seat. a. If he accepts any office / employment during his term (not tenure), he forfeits his seat. Members of SC / other courts established by shall NOT designated to any agency performing quasi-judicial / administrative functions. Member of Constitutional Commission shall NOT hold any other office / employment during his tenure (not term)

3. 4.

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5. 6. 7.

Ombudsman and deputies shall NOT hold any other office / employment during his tenure (not term) Unless law or the primary function of his position provides, no appointive official shall hold any other office in the government / subsidiary / instrumentality / GOCC No member in the ARMED FORCES in the active service shall at any time be appointed or designated in any capacity to a CIVILIAN position in the government including GOCCs or any of their subsidiaries.

any public office or position during his tenure (sec7, Art IX-B). Although he may be appointed provided he FORFEITS his seat. The elective official is only disqualified during his tenure (while he is acting as such) and not for the whole term of the office. Who has the power to appoint a person to become a public officer? Is it a judicial or legislative function? The power to appoint inherently belongs to the public but is entrusted to designated officials. The appointing power is generally regarded as an executive function. It is NOT a judicial nor a legislative function. The Congress or the Court may also appoint BUT they only appoints as an INCIDENT to the discharge of their functions within their respective spheres. If power to appoint public official is essentially discretionary, it must be beyond the power of court to review? YES. The it cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. HOWEVER, the court can review the appointment if it is tainted with grave abuse of discretion. Can an appointment validly issued still be recalled or revoked after issuance? NO because to revoke or recall a valid appointed would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested PROVIDED that the appointee possesses all the qualifications required by law. The only time the Civil Service Commission can revoke or recall an appointment if the appointment is in disregard of applicable provisions of law and regulation. Such appointment is deemed void. A void appointment cannot give rise to security of tenure on the part of the holder of the appointment. When can one say the power to appoint is absolute and when conditional? The power to appoint is ABSOLUTE where the appointing authoritys choice of an eligible person is CONCLUSIVE. No further consent or approval of another authority to make the appointment complete. The power to appoint is CONDITIONAL where the assent or approval is necessary to complete the appointment. For both,

Effect of accepting a second position? A person who accepts and qualifies for a 2 ndand incompatible office is deemed to vacate, or, by implication, to resign from the first office. The same rule obtains where the holding of more than one position is prohibited by constitutional or statutory provision although the second position is not incompatible with the first. May relatives of appointing authority or head of office be appointed in his office? Exception? 1. Generally, NO. Nepotism is not allowed. The appointment paper must be accompanied by a CERTIFICATION of the appointing /recommending officer stating therein that he is not related to the appointee within the 3 rd degree of consanguinity or affinity. 2. Exceptions: a. Persons employed in confidential capacity. b. Teachers c. Physicians d. Members of the Armed Forces of the Philippines e. In case of a member o f any family who, after his appointment to any position, contracts marriage with someone in the same office / bureau, in which event the employment / retention of husband and wife may be allowed. In the above instances, full report of such appointment shall be made to the Commission. May elected official or candidate for elective position be eligible for appointment designation to any public office? note barangay election NO. The Constitutions mandates that no elective official shall be eligible for appointment or designation in any capacity to

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until the process of appointment is complete, the appointee cannot claim any vested right in the office nor invoke security of tenure. Concept of the restriction on the power to appoint? 1. General Restrictions: a.Appointee must possess the prescribe qualifications and b.Appointed be selected primarily for the benefit of the public welfare. i. power must not be for personal interest. ii. power must not be used to confer an office on himself. 2. appointment must be made for an office that is vacant. 3. Constitutional Restrictions: Constitution gives certain restrictions on the power of the President to appoint certain positions. 4. Statutory Restrictions: Restrictions on the power to appoint under existing laws are found primarily in provisions prescribing the qualifications and disqualifications or holding public office. Congress may add qualifications and disqualification to those provided by the Constitution UNLESS prohibited by the Constitution itself. It is not within the power of Congress to supersede or alter provisions of the Constitution. When is appointment deemed complete? Is acceptance necessary? Conditionally accept An appointment is NOT SUBJECT TO CONFIRMATION Power of appointment is absolute, and the appointee is determined, no further consent or approval is necessary, and the formal evidence of appointment, i.e., the commission, may issue at deemed complete when: SUBJECT TO APPROVAL BY CSC CONFIRMATION Assent or Appointment to position in confirmation of the Civil Service must be some other submitted to the Civil officer or body is Service Commissioner for required, the approval. commission can issue only when - If appointee is such assent or QUALIFIED SERVICE confirmation is ELIGIBLE, the CSC has obtained. In no choice but to attest either case, the the appointment. appointment However, the becomes appointment is subject complete when to the condition that if

once

the last act required by law of the appointing power has been performed

the Civil Service Commissioner would later on reject the appointment by reason of lack of eligibility, then the appointment shall lapse despite the attestation. - Acts of the appointing power and the approval of the Commission acting together though not concurrently, but consecutively, are necessary to make an appointment complete. - The confirmation or attestation by the CSC does not complete the appointment since such attestation serves merely to assure the eligibility of the appointee.

CONDITIONALLY ACCEPT? An appointee cannot impose his own conditions for the acceptance of a public office. He may only either accept or decline it.

Can acceptance be compelled? 1. General rule states that a person may not be compelled to accept a public office. BUT, the Constitution provides that the govt may call upon the people to defend the State and, in fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. 2. RPC imposes a penalty upon any person who, having been elected by popular election to a public office, refuses to be sworn in or discharge the duties without legal motive. 3. Obligation as a social duty to bear each ones share of the public burdens, by accepting and performing, under reasonable circumstances, the duties of those public offices to which he may

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be lawfully chosen, especially where he sought the office or gave his consent to be appointed. Must an appointment be in writing? 1. An appointment should be in writing, or there should be some written memorial of the fact of appointment signed and executed by the appointing power, for an appointment to office affects the public, and not merely private rights, and should be authenticated in a way that the public may know when and in what manner the duty has been performed. 2. But another view holds that the right of an appointee to be inducted into office depends upon the fact of appointment, and not upon his ability to establish that fact by the production of a written appointment where the law does not prescribe the manner in which the appointing power shall make his appointment. Who are the officers that the President shall appoint? With consent of Commission on Appointment? 1. 4 groups of officials whom the President is authorized to appoint: a. Heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution. (APPOINTED WITH THE CONSENT OR CONFIRMATION OF THE COMMISSION ON APPOINTMENTS) i. Other officers include: regular members of the JBC, the Chairman and the Commissioners of the CSC, Comelec, COA, and the members of the regional consultative commission b. All other officers whose appointments are not otherwise provided by law and they refer to officers to be appointed by lower offices created by Congress where the latter omits to provide for appointment to said office, or provides in an unconstitutional way for such appointments; Those whom the President may be authorized by law to appoint such as the heads of GOCCs, undersecretaries, heads of bureaus and offices, and other officials; and

d.

Other officers lower in rank whose appointments the Congress by law vests in the President alone.

Is an ad interim appointment the same as temporary or acting appointment? how about designation? AD INTERIM Those made while Congress is not in session or during its recess TEMPORARY OR ACTING Those which last until a permanent appointment is issued DESIGNATIONS The mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office Revocable and temporary in character, presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions

Appointment remains effective until the end of the session following such appointment or until the next adjournment. This is to give the Commission on Appointments time to deliberate upon the appointment before confirming or rejecting it.

Cannot be validly confirmed by the Commission on Appointments bec confirmation presupposes a valid nomination or ad interim appointment.

Explain the doctrine in the case of Rafael vs. EACIB. Ex officio In this case the EACIB was created under Ra 3137. Under the provisions it is to be composed of a representative of the Bureau of Customs to act as chairman and designated by the Secretary of Finance, a representative from the CB designated by its governor, a representative from the National Economic Council to be designated by its Chairman, and a representative from the private sector coming from the Association of Embroidery and Apparel Exporters of the Philippines. So the law was attacked because they were saying that in effect congress was specifying

c.

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who to appoint when such is the prerogative of the president alone as provided in the constitution. The court ruled however that it did not infringe on any right of the president since they were already appointed and it was just their duties that was expanded or added. The statute reveals that for the members to qualify the need to be designated only by the department heads, which means they were already holding positions in offices mentioned in law thus no new appointments were necessary. DOCTRINE: Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should again be nominated and appointed. Steps in the appointment process 1. Presidents power of appointment of officers is subject to confirmation of the Commission on Appointments: a. Nomination: It is the exclusive prerogative of the president of whom to nominate and congress may impose no limitation (except for those that are needed to get the concurrence of the Commission on Appointments and limited legislative power to prescribe the qualifications to a given appointive office) i. The president may choose to accept recommendations of others or not but he alone is responsible for nominations. b. Confirmation: Power to confirm or reject certain appointments belong to Congress thru members of both Houses in the Commission on Appointments. it is a joint effort between the president and CoA. i. In confirming the appointment the COA does not in any sense choose the appointee such is an executive function. ii. Since the confirmation is not of a legislative function it can be performed outside a regular session of congress. iii. A confirmation cannot be reconsidered after the president has been notified and has issued commission to the appointee. c. Issuance of Commission: Written authority from a competent source given to the officer as his warrant to exercise the powers and duties of the office. i. Election v. appointment a person is elected to office his right is established by election and not

upon his getting a commission he is entitled not to a commission but certificate of election. Issuance of a commission to elected officer is merely a ministerial act an not a part of appointment act. When is appointment to anticipated vacancy allowed? 1. General rule is that appointment in the future to fill an anticipated vacancy in the absence of express law is legal. Provided when at the time the vacancy happens the appointing body still has the power to appoint. Ex. If a person decides to resign from his office on a future date and his recognition is accepted the appointing power is authorized to fill the vacancy when it occurs. 2. However if the appointing power appoints someone in the future to take place at a time when they will no longer have power or it will take effect after they cease to hold such power is not valid. What are de facto officers? One who has the reputation of being the officer he assumed to be and yet is not a good officer in the point of law. 1. He does his duties without a known appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to assume he has such authority. 2. Under color of a known and valid appointment but failed to conform on some condition 3. Under a color of a known election or appointment but is void because the officer was not eligible or because there was a want of power in the body who appointed or elected such defect being known to the public. 4. Under color of an election or appointment pursuant to an unconstitutional law before it was adjudged as such What is the merit system? Where the Civil Service system rests upon; established to remove political appointments and to prevent discrimination in appointments to public service based on any consideration other than fitness to perform its duties.

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Difference between career and non-career positions Classes of position in the career service 1. Clerical, trades, crafts, and custodial service positions 2. Professional, technical, and scientific positions which involve professional, technical, or scientific work. 3. Positions in the Career Executive Service Purpose of competitive examinations The purpose of such examinations is to select those eligible for special/technical positions Exception to the merit and fitness rule determined by exam Under the Constitution, policy-determining, primarily confidential, and highly technical positions are exempt from the rule requiring appointments in the Civil Service to be made on the basis of merit and fitness 1. Policy-determining- A position where its occupant is vested with the power of formulating policies for the government or any of its agencies and subdivisions. 2. Primarily confidential- A position where its occupant enjoys more than the ordinary confidence in his aptitude of the appointing power but bears primarily such close intimacy which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of the State. The termination of their official relation can be justified on the ground of loss of confidence. 3. Highly technical- A positions where its occupant is required to possess skills or training in the supreme or superior degree, i.e. scientist. Qualification standards; is there an offsetting of deficiencies A qualification standard expresses the minimum requirements for a class of positions in terms of education, training, and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. It shall be used: a. as basis for civil service examinations for positions in the career service; b. as guides in the appointment and other personnel actions; c. in determining

training needs; and d. as aid in the inspection and audit in work programs. Even if appointee possesses the required civil service eligibility, there would be an abuse of discretion by the appointing CAREER 1. Characteristics: a. Entrance based on merit and fitness determined by competitive examinations b. Security of tenure c. Opportunity for advancement to higher career positions 2. Examples: a. Open/closed career positions b. Positions in the Career Executive Service (i.e. Undersecretary, Asst. Secretary, Bureau Director, Assistant Bureau Director, etc.) c. Career officers other than those in the Career Executive Service appointed by the President d. GOCC personnel NON-CAREER 1. Characteristics: a. Entrance on bases other than those of the usual test of merit and fitness b. tenure is limited to a period specified by law or which is coterminous 2. Examples: a. Elective officials b. Department heads c. Chairmen and members of commissions and boards d. Contractual personnel or those whose employment in the government is in accordance with a special contract. e. Emergency and seasonal personnel

authority if the other qualifications are not satisfied. When necessary, however, education, experience, or training may be used INTERCHANGEABLY to offset deficiencies except the required eligibility. Such conditions for interchangeability is determined by the sound discretion of the appointing authority. Separation of temporary employees It is well-settled that an appointment which is temporary in nature can be terminated or withdrawn at the pleasure of the appointing power without notice or hearing or at moments notice. The new Constitution mandates however that temporary employees in the government shall be given such protection as may be provided by law with the objective of preventing indiscriminate dismissals of temporary employees and to see to it that their separation or replacement is made only for justifiable cause.

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Recall and disapproval of appointments by CSC; right to a hearing? MR and appeal? The CSC has the power to approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointments, members of the AFP, police forces, firemen and jail guards. Where the CSC disapproves an appointment based on its non-conformity to applicable provisions of law and on qualifications, the latter need NOT be previously heard since the action does not involve the imposition of an administrative disciplinary measure upon him. Grounds for recall of approval by CSC (Sec. 20, Rule VI of the Revised Admin Code) 1. Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan 2. Failure to pass through the agencys selection/promotion board 3. Violation of the existing collective agreement between management and employees relative to promotion 4. Violation of other existing civil service law, rules and regulations. When is a position vacant? May a position not yet vacant be filled effective when the vacancy occurs? A position is deemed VACANT when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties; it may also be deemed vacant when it is occupied by one who is NOT a de jure officer as by a mere usurper or holding over. A prospective appointment to fill an anticipated vacancy in public office, made by the person, which, when constituted, is empowered to fill the vacancy when it arises. But the appointing power cannot forestall the rights and prerogatives of their successors by appointing successors to offices after expiring after its power to appoint has itself expired. NOTE! There can be NO appointment to a non-vacant position. The incumbent must have been legally removed or his appointment validly terminated before one could be validly installed to succeed him. How does an appointee qualify to an office?

The person appointed/elected is usually required by law to do some act by which he shall signify his acceptance of the office and his undertaking to execute such trust. The act is ordinarily termed QUALIFICATION, consisting of the taking, and often of subscribing and filing of an official oath, giving of an official bond, etc. Is taking an oath necessary? An oath of office is a qualifying requirement for a public officer; a prerequisite to the full investiture with the office. Although the law usually requires the taking of an oath, it is not indispensable. It is mere incident to the office and constitutes no part of the office itself. The President, VP, or the Acting President however CANNOT enter on the execution f his office without taking the prescribed oath or affirmation. De Jure officers; can a de jure officer become a de facto officer? A de jure officer is one who has the lawful right to the office in all respects, but who has either been ousted from it who has never actually taken possession of it. When the officer de jure is ALSO the officer de facto, the lawful title and possession are UNITED. In order to become an officer de jure, one must satisfy the following requirements: code: LaCaM 1. He must possess the legal qualifications for the office in question. 2. He must be lawfully chosen 3. He must have qualified himself to perform duties according to the modes of the Constitution. Usurper; Is a de facto officer a usurper? A mere usurpier or intruder is one who takes possession of the office and undertakes to act officially without any color of right or authority either actual or apparent. DE FACTO 1. Has a color of right or title to the office 2. Assumes to exercise his functions where the public does not know nor ought to know his lack of title or authority. 3. May be removed only in a DIRECT proceeding USURPER 1. Has neither lawful title nor color of right or title to the office 2. Simply assumes to act as an officer where the public knows or ought to know that he is such a usurper 3. Can be ousted at any time in any proceeding

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4. All acts otherwise legitimate done in the exercise of his authority as such are valid like those of a de jure officer

4. Acts of the usurper are null and void.

In general, the powers and duties of public officers are prescribed by the Constitution or by statute or BOTH. If broader powers are desirable, they must be conferred by the proper authority and cannot merely be assumed by officers. Ministerial and discretionary powers The character of a duty as ministerial or discretionary must be determined by the nature of the act to be performed and NOT by the office of the performer. The key distinction between these types of acts is whether the duty is mandatory or whether the act complained of involves policy making or judgment MINISTERIAL One as to which nothing is left to the discretion of the person who must perform. It is a simple definite duty arising under conditions admitted or proved to exist and imposed by law. DISCRETIONARY One where the law imposes the duty upon a public officer and gives him the right to decide how and when the duty shall be performed.

Effects of acts of de facto officers? Is he entitled to salary? 1. Legal effects of the acts of de facto officers a. As regards the officers- a party suing or defending in his own right as a public officer must show that he is an officer de jure, and that it is NOT sufficient that he be merely a de facto officer. The acts of a de facto officer, as far as he is concerned, are void. b. As regards to the public/third persons - the acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient and such officers authority may not be collaterally attacked or inquired into by third persons affected. 2. Salary- As a general rule, a de facto officer cannot maintain an action to recover the salry, fees, or other emoluments attached to the office even though he has performed the duties thereof on the theory that the acts of such an officer as far as he is concerned are void. An exception would be if such officer does not act in bd faith and renders services required of the office. May a single position be occupied by two persons? Two different persons cannot, at the same time, be in the actual occupation and exercise of an office for which one incumbent only is provided by law. There cannot therefore be an officer de jure and another officer de facto in possession of the same office at the same time. Liabilities of a de facto officer? As a general rule, a de facto officer is held to the same degree of accountability for OFFICIAL ACTS as a de jure officer and cannot escape liability because he has not qualified. Scope of power of public officer? How construed? The authority of a public officer in any given case consists of those powers which are: 1. expressly conferred upon him by law under which he has been appointed or elected; 2. Expressly annexed to the office by the law which created it or some other law referring to it. 3. Attached to the office as incidents to it.

Can powers be delegated? 1. Delegation of discretionary powers- unless the power to substitute another in his place has been given to him, a public officer CANNOT delegate his duties to another. 2. Delegation of ministerial powers- The performance of duties of this nature may, unless expressly prohibited, be properly delegated to another. Thus, a ministerial act which may be lawfully done by another officer may be performed by him through any deputy or agent lawfully created or appointed. Code of Conduct 1. Public officer is a public trust- public officers must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. 2. Standards of personal conduct- it is the policy of the State to promote a high standard of ethics in the public service: a. Commitment to public interest- public officials and employees shall always uphold the public interest over and above personal interest. b. Professionalism- they shall perform and discharge their duties with the degree with the highest degree of excellence, professionalism, intelligence and skill.

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c. Justness and sincerity- they shall remain true to the people at all times and must act with justness and sincerity and shall not discriminate against anyone. d. Political neutrality- they shall provide service to everyone without unfair discrimination. e. Responsiveness to the public- shall extend courteous, prompt, and adequate service to the public. f. Nationalism and patriotism - they shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally-produced goods, resources and technology and encourage appreciation and pride of country and people. g. Commitment to democracy- shall commit themselves to the democratic way of life and values and maintain the principle of public accountability and manifest by deeds the supremacy of civilian authority over the military. h. Simple living- They and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. 3. Duties of the CSC- the Commission shall adopt positive measures to promote: a. observance of standards b. continuing research and experimentation on measures which provide positive motivation to public officials and employees. Duties of public officer; transparency of transaction 1. Duties- in the performance of their duties, all public officials and employees are under obligation to: a. Act promptly on letters and requests within 15 days. b. Submit annual performance reports by all heads or other responsible officers of offices and agencies within 45 working days from the end of the year. c. All official papers and documents must be processed and completed within a reasonable time from the preparation thereof and must contain as far as practicable, not more than 3 signatories therein. d. Act immediately on the publics persona; transactions e. All public documents must be made accessible to and readily available for inspection by the public within reasonable working hours. 2. Transparency- it is the responsibility of heads of departments, offices

and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices. Aside from the establishment of information systems and networks for information dissemination, every department, office, or agency shall provide official information EXCEPT: a. such information must be kept secret in the interest of national defense or security. b. such disclosure would put the life and safety of an individual in imminent danger. c. The information sought falls within the concepts of established privilege or recognized exceptions as may be provided by law (i.e. closed door Cabinet meetings) d. Such information comprises drafts of decisions, orders, rulings, etc. e. It would disclose information of a personal nature where disclosure would constitute invasion to personal privacy (i.e. physician-patient privilege) f. It would disclose investigatory records compiled for law enforcement purposes g. It would disclose information the premature disclosure of which would lead to frustrate implementation of proposed official action. Rights of Public officer to compensation? forms? is per diem a salary? emolument? basis of compensation? can a de jure officer recover compensation while office occupied by de facto? 1. Public officers have a right to compensation however it is NOT indispensable. It is not part of the office but merely incident thereto and attaches to the office itself and not to the officer. The object in allowing compensation for official service is to enable public officials to give due attention to their official duties and to perform them better. 2. Forms- the following are the forms of compensation entitled to officers a. compensation- pay for doing all that may be required of the official whether in the form of a fixed salary or wages, per diems, fees, commissions, or perquisites. b. salary- personal compensation to be paid to him for his services and is generally a fixed annual or periodical payment depending on the time and NOT on the amount of services he may render. c. per diem- merely one form of compensation granted to public officers which is fixed NOT as ordinarily by the year or by the

27

month but by THE DAY; it is a daily allowance given for each day an officer or employee of the government is away from home base. It is NOT A SALARY within a constitutional provision that no change in the compensation of officers shall affect the salary of any officer during his existing term. d. fees for services rendered/commission a maximum sum may be fixed beyond which the officer is NOT to receive any emoluments. e. emoluments- the profit arising from the office, that which is received as compensation for services or which is annexed to the office as salary, fees, or perquisites. 3. Basis for compensation a. Creation of law- the officers right to compensation is not the creation of contract and exists, if it exists at all, as the creation of law, i.e. Constitution, statute, or ordinance. b. Services rendered- After services have been rendered by the officer, the compensation thus earned cannot be taken away by subsequent law. c. Compensation fixed by law- If no compensation is fixed or attached by law, the officer is presumed to have accepted the office to serve GRATUITOUSLY. d. Legal title to office- It is the general rule that one without legal title to office either by lawful appointment or election and qualification is NOT entitled to recover salary or compensation attached. e. Amount of compensation- Sec. 5, Art. IX-B: the Congress shall provide for the standardization of compensation of government officials. f. Ex officio position- The official concerned has no right to receive additional compensation for his services in the said position as these services are already paid for and covered by the compensation attached to the principal office. 4. As a rule, a de jure officer can recover either from the government or the de facto officer the amount paid to the de facto officer for services rendered by him after notice of adjudication. On the other hand, one who becomes a public officer de facto in good faith and renders services required of the office, is legally entitled to emoluments. Rodriguez vs. Tan FACTS: R claims that in 1947, T usurped the office of Senator of the Philippines and until 1949 has continuously collected the salaries, emoluments and privileges thereto; and that such usurpation caused damage to R.

HELD: T, who had been proclaimed and assumed office but was later ousted as a result of an election protest is a de facto officer. It is the rule that emoluments must go to the person who rendered the service. Explain prohibition against receiving additional or double compensation. 1987 Constitution, Art. IX-B, Sec. 8 states that No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. Such prohibitin is designed to counter the evils of double compensation. However, the prohibition does NOT apply in the following circumstances: 1. Payment of additional compensation to a particular officer or employee is specifically authorized by law. 2. Additional compensation is received not from the government but from any of its entities. 3. When there are two distinct offices, each of which has its own duties and compensation. Can government employees legally join or take part in concerted activity or mass resulting in disruption of work or service? Is it part of right to self organization? consequence? The right to self-organization shall not be denied to government employees. Section 8 of Article 3 declares that the right of the people including those employed in the public and private sectors to form associations, unions, or societies for purposes not contrary to law shall not be abridged. However, such right does NOT guarantee them the right to engage in concerted activities including the right to strike, which are enjoyed by PRIVATE employees. They are prohibited from staging strikes, demonstrations, mass leaves, walk-outs, and other forms of mass actions which will result in temporary stoppage or disruption of public services. Protection of temporary status employees? Temporary employees of the government shall be given such protection as established by law, although they do not enjoy security of tenure and they may be replaced anytime a qualified civil service eligible becomes available.

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Next in rank rule? The rule specifically applies only in cases of PROMOTION. It neither grants a vested right to the holder nor imposes a ministerial duty to appointing authority. In other words, one who is next in rank to a vacancy is given preferential consideration for promotion to a vacant position but it does NOT necessarily follow that he alone and no one else can be appointed. The ruling in Millares v .Subido has already superseded by later decisions in subsequent cases which held that such rule is NOT absolute and that it does not preclude the infusion of new blood, younger dynamism, or necessary talents into government service. What are the personnel actions? 1. Definition- Any action denoting the movement or progress of personnel in the civil service. 2. Appointment through certification- shall be issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles. 3. Promotion- it is a movement from one position to another with an increase in duties and responsibilities as authorized by law and usually accompanied by increase in pay. There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift, or reward which a person has a right to refuse. 4. Transfer- movement from one position to another which is of equivalent rank, level, or salary, without break in service involving the issuance of an appointment. 5. Reinstatement- it means restoration to a state or condition from which one has been removed or separated. Any person who has been permanently appointed to a position in the career service, through no delinquency or misconduct, may be reinstated to a position in the same level. The CSC has the authority to order the reinstatement of a government officer or employee who has been unlawfully demotd or dismissed. NOTE! The award of backwages has been limited to a maximum of 5 years (San Luis v. CA) 6. Reemployment- names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or

reorganization, shall be entered in a list from which selection for reemployment shall be made. 7. Detail- movement of an employee from one department or agency to another without the issuance of an appointment and shall be allowed only fro a limited period in the case of employees occupying professional, technical, and scientific positions. 8. Reassignment- an employee may be reassigned from on unit to another in the same department but such reassignment shall NOT involve a reduction in rank, status, or salary. 9. Demotion- movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status, or rank which may or may not involve reduction in salary. When is an employee entitled to back salary? reimbursement of expenses? Indemnity. 1. Right to reinstatement and back salary a. Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. Reinstatement means restoration to a state or condition from which one has been removed or separated while back salaries is a frm of relief that restors the income that was lost by reason of unlawful dismissal. b. The general proposition is that the official is NOT entitled to any compensation if he has not rendered any serviceas he works he shall earn. An officer who has been lawfully separated or suspended shall NOT be entitled to compensation for such period. c. Where an officer entitled to fixed annual salary was unlawfully removed or suspended and was prevented for a time by no fault of his own, it was held that he might recover and that the amout that he had earned in other employment during his unlawful removal should not be deducted frm his unpaid salary. 2. Right of reimbursement and indemnity a. When a public officer in the due performance of his duties has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and not attributable to his own neglect or default, the amount thereof forms a legitimate charge against the public for which he can be reimbursed. b. The officer is entitled to be indemnified by the public against the consequences of acts which he has been expressly or impliedly required to perform upon the public account.

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Disqualifications to hold any other officer or employment in the government Under Article VI, Section 13, above of the Constitution, a member of Congress is disqualified to hold two classes of office, namely: 1. Incompatible office- this includes any kind of office or employment in the government or any subdivision, agency, or instrumentality thereof, including GOCCs or their subsidiaries during his term. Any other office or employment includes any position in the government outside of Congress, including ex officio membership of any non-congressional body, committee, or commission in any guise whatsoever. Such prohibitions rationale is in the need for members of Congress to devote their time and attention to the discharge of their legislative responsibilities. 2. Forbidden office- refers to any office created or the emoluments of which have been increased during the term for which he was elected, not merely during his tenure or period of actual incumbency. Prohibition against partisan political activity? 1. Art. IX-B, sec. 2(4)- No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. 2. Art. XVI, sec 5(3)- Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. Both instances refer to acts designed to have a candidate elected or not, or to promote the candidacy of a person or persons to a public office, such as participation in political campaigns, conventions, caucuses, parades, etc. NOTE! Lecture: Wearing of campaign paraphernalia is not within this prohibition; Unless you open your mouth, you are not considered as engaging in partisan political activities. Explain the prohibition on local elected official on the practice of profession.

1. All governors, city and municipal mayors are prohibited from practicing their professions or engaging in any occupation other than the exercise of their functions as local chief executives. 2. Sanggunian members may practice their professions, engage in any occupation, or teach in schools EXCEPT during session hours. Such members who are also members of the Bar shall not: a. Appeal as counsel before any court in any civil case wherein a LGU is the adverse party. b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. c. Collect any fee for their appearance in administrative proceedings involving the local government d. Use property and personnel of the Government except when the member concerned is defending the interest of the government. 3. Doctors of medicine MAY practice their profession even during official hours of work only on occasions of emergency. Prohibited acts and transactions under the anti graft & corrupt practice act; under the code of conduct & ethical standards; liability for unexplained wealth; 1. Prohibited acts and transactions under the Anti-graft and Corrupt Practices Act a. Influencing another public officer to perform an act constituting a violation of lawful rules and regulations or an offense in connection with the official duties of the latter. b. Requesting or receiving any gift or benefit in connection with any contract or transaction between the government and any party where the public officer in his official capacity has to intervene under the law. c. Causing undue injury to any party d. Entering on behalf of the government into any contract or transaction manifestly and grossly disadvantageous to the same e. Having financial or pecuniary interest in any business, contract, or transaction in which he is prohibited by the Constitution or by law. f. Becoming interested for personal gain or having material interest in any transaction requiring the approval of a board or committee of which he is a member. g. Approving or granting any license, permit, privilege or benefit in favor of any person

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2. Prohibited acts and transactions under the Code of Conduct and Ethical Standards a. Financial and material interest- public officials and employees shall not, directly or indirectly, have any financial or material interest n any transaction requiring the approval of their office. b. Outside employment and other activities related thereto (i.e. engaging in private practice of profession, own, control and manage employment as employee, consultant,broker, agent or trustee)- such prohibitions shall apply for a period of 1 year after resignation, retirement, or separation from public office c. Disclosure and/or misuse of confidential informationofficials and employees shall NOT use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public. d. Solicitation or acceptance of gifts- officials or employees shall not solicit, accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value. When is a public officer not liable for obeying superiors order to make an illegal payment A subordinate official who acts in good faith under orders or instructions of a superior officer acting in pursuance to law, is not personally liable for damages. This principal holds true even though the superior officer acts under an unconstitutional law before the same is adjudged to be void. Crimes peculiar to certain public officials; explain doctrine in the Arias vs Sandigan bayan Public officers are subject to liability for violation of particular laws regulating the conduct of their offices: 1. RPCa. malfeasance and misfeasance in office, i.e. malicious delay in the administration of justice, bribery b. frauds and illegal exactions and transactions c. malversation of public funds or property d. infidelity of public officers e. other offenses and irregularities committed by officers, i.e. disobedience, refusal of assistance, maltreatment of prisoners, etc. 2. Anti-graft and Corrupt Practices Act 3. Code of Conduct and Ethical Standards

a. Private individuals who participate in conspiracy as coprincipals, accomplices, or accessories, with public officials and employees. b. Official or employee concerned may bring an action against any person who obtains or uses a report for any purpose. 4. Forfeiture of Unexplained Wealth Act- such Act provides for the procedure to declare forfeited any property found to have been unlawfully acquired to declare forfeited any property found to have been unlawfully acquired by a public officer. It punishes with imprisonment for a term NOT exceeding 5 years or a fine not exceeding P10,000 or both. 5. Civil Service Decree- punishes with a fine not exceeding P1,000 or by imprisonment not exceeding 6 years or both, whoever makes any appointment or employs any person in violation of any provision of the decree or the rules made thereunder, or whoever commits fraud, deceit, or intentional misrepresentation of material facts. 6. Government Auditing Code- punishes with a fine not exceeding P1,000 or by imprisonment not exceeding 6 years or both in violation of Sections 67 (warrants and checks receivables for taxes or other indebtedness), 68 (issuance of official receipts), 89 (limitation on cash advances), 106 (liability for acts done by direction of superior officer), and 108 (prohibition against pecuniary interest) 7. LGC- punishes any local official and any person/s dealing with him who violate prohibitions. 8. National Internal Revenue Code- punishes those guilty of extortion or willful oppression through the use of his office, knowingly demanding or receiving unauthorized payment, willful neglect to give receipts, conspiring with another to violate the NIRC, unlawful divulgence of trade secrets or confidential information, having unlawful interest in business, and guilty of violation of the withholding tax provisions of the Code. 9. Omnibus Election Code- election offenses committed by public officers. Arias v. Sandiganbayan: FACTS: 6 persons, wherein two were public officials as an engineer and an auditor, were convicted in connection with the overpricing of land purchased by the Bureau of Public Works for a project intended to ease the perennial floods in Marikina and Pasig. The charge is causing undue injury to the government and giving a private party unwarranted benefits

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HELD: SB committed a reversible error in convicting petitioners in connection with the overpricing of the lands purchased by the government. There must be a necessity of proof to establish overpricing for purposes of a criminal conviction. Moreover, mere signature or approval is insufficient to prove conspiracy; as the prosecution has not shown any positive and convincing evidence of conspiracy, petitioners are acquitted on grounds of reasonable doubt. Termination of official relation of a public officer & employees Modes of termination of official relations are the following: (code: ERDRA-APRIACaR) 1. Expiration of the term or tenure of office 2. Reaching the age limit (expirement) 3. Death or permanent disability 4. Resignation 5. Acceptance of an incompatible office 6. Abandonment of office 7. Prescription of right to office 8. Removal 9. Impeachment 10. Abolition of office 11. Conviction of a crime 12. Recall NOTE! Term- the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. It is a fixed and definite period of time to hold office and perform its functions and is NOT affected by holding-over. NOTE! Tenure- represents the period during which the incumbent ACTUALLY holds the office; it may be shorter than the term for reasons within or beyond the power of the incumbent. Commencement of term of office; can congress fix, shorten or lengthen term? holdover 1. Commencement of terms of office- the Constitution or statutes creating public offices usually prescribe the limits of the terms provided for. a. The date for the commencement is ordinarily fixed for some appreciable period after the election or appointment. b. Where no time is fixed, the term will generally begin on the date of election/appointment.

c. Where the term runes from a certain date, the day of the date is EXCLUDED in the computation. 2. Congress CAN fix, shorten, or lengthen term a. Where fixed by the Constitution- it is beyond the power of Congress to affect the tenure of such constitutional office; it may NOT abridge or extend the time so provided for. b. Where term is NOT fixed by the Constitution- Congress MAY fix the terms of officers other than those provided for in the Constitution. If there is NO fixing of the term, Congress may limit the duration of the term of an office in any way it deems fit. NOTE! There is NO CONSTITUTIONAL BAR against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than at the imcumbent.

To whom shall resignation be rendered? Is acceptance necessary? forms of acceptance? withdrawal of resignation; repudiation? under duress or attended by fraud. 1. The official with whom a resignation of a public office must be filed MAY be designated by statute. In the absence of a statutory direction, a public officer should tender hus resignation to the officer or body having authority to appoint his successor or to call an election to fill the office. 2. In the Philippines, acceptance is NECESSARY, and any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service shall suffer the penalty of arresto mayor. 3. The acceptance of the resignation may be manifested in two forms: either by formal declaration or by the appointment of a successor. Where the resignation was accepted, the tenure of the resigned officer ended upon such acceptance and NOT upon the appointment of his successor. 4. An immediately effective resignation MAY be withdrawn before it is acted upon but NOT after acceptance. It has also been held that the resignation of an officer, effective at the future date, may NOT be withdrawn after the resignation has been accepted. 5. There is repudiation of resignation in the following instances:

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a. A resignation is not effective although a successor has already been appointed if such has been transmitted without officers consent. b. Resignation procured by fraud or duress is voidable and may be repudiated c. A resignation is given as an alternative to have charges filed against the public officer may be repudiated. Explain concept of incompatible positions; effect of accepting an incompatible positions? except Incompatibility is to be found in the character of the offices and their relation to each other, in the subordination of one to the other, and in the nature of the functions and duties which attach to them. a. It exists- when there is conflict in duties and functions such that it causes interference, one is subordinate to the other and is subject to some degree to its supervisory power b. Exceptions i. Where the officer cannot vacate the first office by his own act ii. Where the first office is held under a different government from that which conferred the second. iii. Where the officer is expressly authorized by law to accept another officr iv. Where the second office is temporary. When is there an abandonment of office? Case of Canonizado vs. Aguirre Abandonment means the voluntary relinquishment of an office by the holder of ALL right, title or claim thereto with the intention of not reclaiming it, or terminating his possession and control. There is abandonment in office when: Code: (CACaFA) 1. Clear intention to abandon office- in order to constitute an abandonment of office, it must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment. 2 Acceptance of another office-abandonment by reason of acceptance of another in order to be binding and effective, should spring from and be accompanied by deliberate and freedom of choice. 3. Concurrence of overt acts and intention- there must be concurrence of the intention to abandon.

4. Failure to discharge duties of office, or to claim or resume it- refers to non-user or a neglect to use a right or privilege or to exercise an office 5. Acquiescence by the officer Canonizado v. Aguirre FACTS: Petitioner Canonizado, after accepting another position of Inspector General of the Internal Affairs Staff (IAS) of the PNP, sought reinstatement to his former position as a NAPOLCOM Commissioner for which he was removed under the provision of law which was subsequently declared violative of his constitutional right to security of tenure. The issue is whether such appointment to and acceptance of the position as Inspector General should result in an abandonment. HELD: Canonizado had NO willfull desire or intention to abandon his official duties. Prohibiting Canonizado from accepting a second position during the pendency of his position would be tounjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado can re-assume his post as Commissioner he should first resign as Inspector-General

LAW ON ELECTIONS
I. BEFORE ELECTIONS Right to vote 1. Suffrage- the right and obligation of qualified citizens to vote in the election of certain national and local officers of the government and in the decision of public questions submitted to the people. 2. Nature a. Suffrage is not a natural right of the citizens but merely a privilege to be given or withheld by the lawmaking power subject to constitutional limitations. b. The exercise of the right to suffrage is not absolute; it is subject to existing substantive and procedural requirements provided in the Constitution, statutes, and valild rules and regulations. c. Suffrage is a right because it is the expression of the sovereign will of the people.

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d. Right is based upon the theory that the people who bear the burden of the government should share in the privilege of choosing the officials. e. Suffrage is a duty in the nature of a public trust and constitutes a voter a representative of the whole people. 3. Scope- suffrage includes a. Election- means by which the people choose, through the use of the ballot, their officials for definite and fixed periods. b. Plebiscite- name given to a vote of the people expressing their choice for or against a proposed law or enactment submitted to them. c. Referendum- submission of a law passed by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection. d. Initiative- process whereby the registered voters directly propose, enact, or amend laws, national or local through an election for that purpose. e. Recall- method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition signed by a required percentage of the qualified voters. Powers of COMELEC and finality of decision 1. Powers (Constitution, art. IX-C, Sec. 2)- as an independent body, the COMELEC is clothed with the 3 powers of government. a. ENFORCE AND ADMINISTER laws and regulations relative to the conduct of an ELECTION, PLEBISCITE, REFERENDUM AND RECALL; b. Exercise JURISDICTION -. EXCLUSIVE ORIGINAL JURISDICTION Regional, provincial and city officials All contests relating to elections, returns and qualifications -. APPELLATE JURISDICTION Municipal officials decided by courts of general jurisdiction (RTCs?); Barangay officials decided by courts of limited jurisdiction (MTC?) c. DECIDE ALL QUESTIONS REGARDING ELECTIONS, including determination of the number and location of polling places, appointment of election officials and inspectors and registration of voters;

d. DEPUTIZE, with the concurrence of the president, law enforcement agencies, including AFP, for the purpose of ensuring free, orderly elections; e. REGISTER, political parties, orgs, and coalitions; - The parties must present their platforms f, ACCREDIT, citizens arms of the comelec. g. FILE, petitions in court for inclusion or exclusion of voters; - INVESTIGATE AND PROSECUTE cases of violations of election laws h. RECOMMEND TO CONGRESS measures to minimize election spending, limitation of places for propaganda materials and prevent and penalize all forms of election frauds, offenses and malpractice; i. RECOMMEND TO THE PRESIDENT the removal of any officers or employee deputized or for the imposition of disciplinary actions for violations blah blah; j. SUBMIT TO PRESIDENT AND CONGRESS comprehensive report on conduct of election, plebiscite, referendum, recall, etc. 2. Finality of decisions- Where the election contests involve elective municipal or barangay officials, the decisions, final orders, or rulings of the COMELEC shall be final, executory and appealable. Those involving elective regional, provincial, and city officials may beappealed to the SC. Registration of Voters 1. Registration is essential to the exercise of the right of suffrage, not the possession thereof. It is part and parcel of the right to vote and an indispensable element in the election process. In order that a qualified elector may vote in any election, plebescite or referendum, he must be registered in the permanent list of voters of rthe city of municipality in which he resides and UNLESS excused by some fact which the law itself deems sufficient, the voter must register to exercise such privilege. 2. Registration with the ERB (Election Registration Board) a. ERB- there shall be n each city and municipality as many as ERBs are there are election officers therein to act on all applications for registration in thickly populated cities/municipalities. - Board shall be composed of: i. the Election Officer as chairman (if disqualified, COMELEC shall designate an acting Election Officer) and as members: ii. the public school official (most

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senior in rank), i. the local civil registrar OR in his absence, the city or municipal treasurer. (if disqualified or unavailable, COMELEC shall designate any other appointive civil service official from the same locality as substitute) b. Illiterate or disabled applicants- refer to persons who cannot by themselves prepare an application for registration due to physical disability/ or inability to red and write; such persons may register with assistance of the Election Officer or any member of an accredited citizens arms, placing such person under oath and read the accomplished form aloud, which shall be subscribed and attested by the majority of the Board members; such application for registration may be prepared by ANY relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizens arm. c. Change of residence/address- any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his new residence for the transfer of his registration records. Such application shall be subject to the approval of the ERB and only upon approval shall the Election Officer transmit by REGISTERED MAIL the voters registration record to the Election Officer of the voters new residence. d. Notice and hearing- upon receipt of applications for registration, the Election Officer shall set them for hearing: i. notice of which shall be posted in the city/municipal bulletin board and in his office for at least 1 week before the hearing, ii. furnish copies thereof to the applicant concerned, the heads/representatives of political parties, and other accredited groups or organizations who participate in the electoral process; iii. On the date of the date of the hearing, the Election Officer shall receive such evidence for or against the applicant. - Physical presence of the applicant concerned shall, however, be mandatory in all cases where objections against his application have been seasonably filed for him to rebut/refute evidence presented. - All applications for registration shall be heard and processed on a QUARTERLY basis. Thus, the ERB shall meet and convene on the third Monday of April, July, October and January of every calendar year or on the next following working day if such designated days fall on a non-working holiday e. Challenges to right to register- any voter, candidate, or representative of a registered political party may challenge in writing any application for registration which shall be under oath and attached to the application together with the proof of notice of hearing.

f. Approval/disapproval of application- the Election Officer shall submit to the Board all applications for registration filed, together with evidence received,. The ERB shall, by majority vote, approve or disapprove the applications. - Upon approval, the Election Officer shall assign a voters identification number and issue the corresponding identification card to the registered voter. Upon disapproval, the applicant shall be furnished with a certificate of disapproval. Inclusion or exclusion of voters 1. Judicial proceedings a. Petition for inclusion or correction of names of voters shall be filed during office hours. b. Notice of the place, date, and time of hearing of the petition shall be served upon the ERB members and the challenged voter upon filing of the petition. Service of such notice may be made by sending a copy by personal delivery, by leaving it in the possession of a person of sufficient discretion in the residence of the challenged voter or by registered mail. If impractical, notice shall be posted in the bulletin board of the city/municipal hall and in 2 other conspicuous places with the city/municipality. c. Petition shall refer only to 1 precinct and implead the Board as respondent. d. NO costs shall be assessed against any party in thee proceedings. e. Any voter, candidate, or political party who may be affected may intervene and present his evidence. f. Decision shall be based on the evidence presented and in NO case rendered upon a stipulation of facts. g. Petition shall be heard and decided within 10 days from the ate of its filing. Cases appealed to the RTC shall be decided with 10 days from receipt of the appeal; in ALL vases the court shall decide not later than 15 days before the election shall become final and executory. 2. Jurisdiction- the Municipal and Metropolitan TC shall have original and exclusive jurisdiction over all cases of inclusion/exclusion of voters in their respective cities or municipalities. Decisions MAY be appealed to the RTC within 5 days from receipt of notice thereof. The RTC shall decide on the appeal within 10 days from the time it is received. 3. Petition for inclusion of voters in the list- any person whose application for registration has been DISAPPROVED or whose name has been stricken out from the list may file with the

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court a petition to include his name at ANY time EXCEPT 105 days prior to a regular election or 75 days prior to a special election. Such petition shall be decided 15 days after its filing. 4. Petition for exclusion of voters from the list- any registered voter, representative of a political party or the Election officer, may file with a sworn petition for the exclusion of a voter from the permanent list, giving the name, address, and the precinct of the challenged voter at ANY time EXCEPT 100 days prior to a regular election or 65 days before special election NOTE! The proceedings for the exclusion or inclusion of voters in the list of voters are SUMMARY in character. Thus, the factual findings of the court and its resultant conclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are NOT conclusive upon the COMELEC. Qualifications and disqualifications of a voter 1. Qualifications: a. At least 18 years of age b. Shall have resided in the Philippines for at least 1 year and in the place wherein they propose to vote for at least 6 months immediately preceding the election. NOTE! NO literacy, property or other substantive requirements imposed on the exercise of suffrage. 2. Disqualifications (code: ICI) a. Any person who has been sentenced by final judgment to suffer imprisonment for not less than 1 year. b. Any person ho has been adjudged by final judgment of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, or any crime against national security. c. Insane or incompetent persons NOTE! For (a) and (b), any such person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence. Election precincts & polling places 1. Election precinct a. Definition: the basic unit of territory established by the COMELEC for the purpose of voting.

b. Arrangement- Every barangay shall have at least 1 precinct; each shall have NO MORE that 200 voters and shall comprise of contiguous and compact territories. - A precinct may have less than 200 registered voters under the following conditions: I. As soon as the 200-limit for every precinct has been reached, a spin-off or daughter precinct shall be created authomatically by the COMELEC; ii. An island with less than 200 may be comprised of 1 precinct. c. Consolidation or merger of at most 3 precincts may be allowed. 2. Polling places a. Definition- refers to the building or place where the board of election inspectors conducts its proceedings and where the voters cast their votes. b. The location of polling places designated in the preceding regular election shall continue with such changes as the COMELEC may find necessary, after notice to registered political parties and candidates in the political unit affected, if any, and hearing. No location shall be changed within 45 days before a regular election and 30 days before a special election or a referendum or plebiscite. c. Each polling place shall be, if practicable, a ground floor, of sufficient size and comfortable accommodate 40 voters at one time outside the guard rail for the board of election inspectors. Such polling place shall be located WITHIN the territory of the precinct as centrally as possible, such location shall be along a public road. Filing of certificate of candidacy time & place 1. Certificate of Candidacy- in the nature of a formal manifestation to the whole world of the candidates political creed or lack of political creed; it is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs to if any, and his post office address. 2. It is within the competence of the COMELEC to determine whether false representation as to material facts was made in the certificate that will include the residence of the candidate.

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3. Time and place of filing- Under RA 7166, such certificates shal be filed in 5 legible copies not later than the date before the date legally fixed for the beginning of his campaign period in the places below: a. President, VP, and Senators- filed at the main office of COMELEC in Manila. b. HOR members- filed with the provincial election supervisor of the province concerned. c. Those for legislative districts in the NCR- filed with the regional election director of said region. d. Those for legislative districts in cities outside the NCR which comprise one or more legislative districts- filed with the city election registrar concerned. Withdrawal of certificate of candidacy 1. A person who has filed a certificate may, PRIOR to the election, withdraw the same by submitting to the office concerned a written declaration under oath. (Sec 73, Omnibus Election Code)Such filing of withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. a. Sec. 73 (Omnibus Election Code)- nothing which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Automatic Resignation 1. Any person holding a public appointive office or position, including active members of the AFP, and officers and employees in GOCC shall be considered ipso facto resigned from his office upon the filing of his CC. 2. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for the President and Vice-President. Death or disqualification or withdrawal of a candidate If AFTER the last day for the filing of the certificates, an official candidate DIES, WITHDRAWS, or is DISQUALIFIED for any cause, only a person belonging to, and certified by, the same political party amy file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. a. Substitute may file his certificate for the office affected not later than MID-DAY of the day of election. Such substitute need

NOT be a member of the political party concerned prior to his nomination as its official candidate. b. If the death, withdrawal or disqualification should occur between the day before the election and the mid-day of election day, said certificate may be filed with ANY board of election inspectors in the political subdivision where he is a candidate. c. In case of valid substitutions AFTER the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. NOTE! Petition to cancel certificate must be before election; when already elected people have spoken, minor defects shall be disregarded such as late filing. II.DURING ELECTIONS Election and campaign periods 1. Election period: 90 days before election and 30 days thereafter (1987 Constitution, ART. IX-C, Sec. 6) 2. COMELEC/Congress, in special cases, may change the duration of the election period. 3. The limitation is designed to minimize partisan political activities and expensive election contests. 4. ELECTION PERIOD NOT SAME WITH CAMPAIGN PERIOD; a. Election period includes 30 days after election as election period b. Campaign period can only include the 90 days prior to election day

III. CAMPAIGN PERIOD Election campaign propaganda; equal access to media time; comelec space poster area Election campaign/partisan political activity/propaganda refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office. 1. Lawful election propaganda: code: PaL-CaSAM-SO)

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a. pamphlets, leaflets, cards, decals, stickers , or other written printed materials of a size not more than 8.5 in. in width and 14 in. in length. b. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office. c. Cloth, paper, or cardboard posters , framed or posted, with an area 2x3 ft. d. In announcing the holding of said meeting or rally, streamers not exceeding 3x8 ft. in size, shall be allowed but may NOT be displayed 5 days before the date of the meeting or rally and shall be removed within 74 hours after said meeting or rally e. Paid advertisements in print or broadcast media f. Mobile units, vehicles, motorcades of all types, whether engine or man-power driven or animal drawn, with or without sound systems or loud speakers, and with or without lights. g. In headquarters or residences of candidates, lawful election paraphernalia that may be displayed, but banners and streamers must not exceed 3x8 ft. h. All other forms not prohibited by the Omnibus Election Code. ALL registered parties and bona fide candidates shall have equal access to media time and space with the following guidelines: NATIONAL CANDIDATE 120 mins. 180 mins. SIZE 1/4 1/2 LOCAL CANDIDATE 60 mins. 90 mins. FREQUENCY 3x/week 3x/week 2.

1. Contribution- includes a gift, donation, subscription, loan, advance or deposit of money or anything of value or a contract, promise, or agreement to contribute, whether or not illegally enforceable, made for the purpose of influencing the results of the elections. 2. Prohibited contributions- no contributions shall be made by any of the ffcode: PEC-FaLE-CaF) a. Public/private institutions (but they are NOT prohibited from making any loan) b. Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources c. Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its subdivisions with goods and services or to perform construction or other works d. Natural or juridical persons granted franchises, incentives, exemptions allocations or similar privileges e. Natural and juridical persons who, within 1 year prior to the date of election, have been granted loans in excess of P25, 000 f. Educational institutions which have received grants of public funds no less than P100K f. Officials or employees in the Civil Service or AFP members g. Foreigners and foreign corporations 3. Limitations on expenses a. President and VP- P10 b. Voter registered in the constituency where he filed his certificate- P3 c. Candidate without any political party and without support form any political party- P5 d. Political parties- P5 for every voter in constituency Political parties 1. Political parties- an organized group of persons pursuing the same ideology, political idras or platforms of government and includes its branches and divisions; requires that the group be joined in a party corporate, articulate with the attributes of social personality, set of by-laws, rules or charter, or agreement, as to how the group shall function. 2. Registration

TV RADIO PRINT ADVERTISEMENTS BROADSHEET TABLOID

a. The COMELEC shall require all mass media entities to furnish the COMELEC with a copy of all contracts for advertising, promoting, or opposing any political party or the candidacy of any person for public office within 5 days after its signing. Prohibited contribution - limitation upon expenses

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a. To acquire juridical personality, qualify it for subsequent accreditation and entitle it to rights and privileges granted to political parties- register with COMELEC a verified petition attaching: i. Constitution, ii. By-laws, iii. Platforms/program of government, iv. such other relevant information. b. Fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration shall, after notice and hearing- forfeited such status as a registered political party in such constituency. c. COMELEC- require publication of the petition in at least 3 newspapers of general circulation and after due notice and hearing, resolve petition within 15 days from date of submission. d. No religious set shall be registered as a political party and no political party which seeks to achieve its goal through violence shall be accredited. Party-list system a. Definition- a mechanism of proportional representation in the election of representatives to the HOR from national, regional, and sectoral parties, organizations and coalitions thereof registered with the COMELEC. Component parties or organizations of a coalition may participate independently provided the coalition of which they form does NOT participate in the party-list system Registration of Party-list (COMELEC Resolution No. 2847) 1. Register with the COMELEC not later than 180 days BEFORE the election: i. verified petition by its president/secretary, attaching its: ii. constitution, ii. by-laws, iii. platform/program of government, iv. list of officers, v. coalition agreement, and vi. other relevant information needed. 2. Sectors that may file: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, OFWs, and professionals. 3. Cancellation of registration if party is any of the following: code: (RaVaFaS-CUEP) a. It is a religious sect or denomination b. It advocates violence or unlawful means to seek its goal c. It is receiving support from any foreign government, foreign political party, foundation organization, etc. d. It violates or fails to comply with laws, rules and regulations relating to elections e. It declares untruthful statements in its petition

f. It has ceased to exist for at least 1 year g. It fails to participate in the last 2 preceding elections or fails to obtain at least 2% of the votes case under the party-list system in the 2 preceding elections. Postponement of Election 1. COMELEC shall motu propio, or upon a verified motion by any verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall POSTPHONE the election for any serious cause such as: a. Violence b. Terrorism c. Loss d. Destruction of election paraphernalia or records e. Force Majeure f. Other analogous causes of such nature that the holding of a free, orderly, and honest election should become impossible. 2. COMELEC shall fix a new election to a date which should be reasonably close to the date of the election NOT held, but not later than 30 days after the cessation of the cause for such postponement. Failure of election 1. Petition to declare a failure of elections is a SPECIAL action governemd by Rule 26 of the COMELEC Rules of Procedure. 2. Instances when a failure of election may be declared; if on account of force majeure, violence, terrorism, fraud, or other analogous cause: a. The election is any polling place has not been held on the date fixed; b. Had been suspended before the hour fixed by law for the closing of the voting; c. After the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election. 3. In any of such cases, if the failure or suspension of election would affect the result of the election, the COMELEC shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect on a date reasonably close to the date of the election NOT held.

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4. Grounds for the COMELEC to act on a verified petition seeking to declare a failure of election: a. No voting has taken place or even of there was voting, the election nevertheless results in failure to elect; b. The votes not cast would affect the result of the election; c. The cause of such failure of election should have been force majeure, violence, terrorism, fraud or other analogous causes. Official watchers 1. Every political party or coalition of political parties, and every candidate shall be each entitled to 1 watcher in every polling place and canvassing center. 2. Those belonging to the same political slate or ticket shall collectively be entitled to only 1 watcher Panlalawigan, Panglungsod and Bayan 3. There shall be 6 principal watchers, representing 6 accredited major political parties, who shall be designated by the COMELEC upon nomination; 4. The political parties shall be determined by the COMELEC on the basis of the following circumstances: 1. Established record of the said parties; their showing in the past elections; 2. Number of incumbent elective officials belonging to them 90 days before date of election; 3. Identifiable political organizations and strengths as evidenced by their organized chapters; 4. Ability to fill a complete slate of candidates from municipal level to president; 5. Other analogous circumstances that may determine their relative organizations and strengths. Casting of votes; ballot for illiterates; spoiled ballots 1. Casting of votes a. Voter must vote in person- the voter must personally deposit his ballot; by the principle that what is done in ones presence and by his express direction is, in law, his act. b. Voter must vote but once- it is also a fundamental principle in all popular elections that each voter shall vote but once, at any election, for each office or measure to be voted for. If such voter has once voted by mistake, he has no right to vote again.

c. Voter need not vote the whole ticket- it is entirely optional with the voter whether he will vote at all or not, and if he votes, he need not vote for every office to be filled at that election nor for every one of several joint candidates. d. Absentee voting- Under RA 7166, absentee voting is provided for in EO 157 dated March 30, 1987 applying to the Prsident, VP, and Senators. 2. Ballots for illiterates- a voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by a relative by affinity or consanguinity within the fourth civil degree of if he has none, by any person of his confidence who belongs to the same household or any member of the board of election inspectors. 3. Spoiled ballots- If a voter should accidentally spoil or deface a ballot in such a way that it CANNOT be lawfully used, he shall surrender it folded to the chairman who shall note in the corresponding space in the voting record. The voter shall then be entitle to another ballot which the chairman shall give him after announcing the serial number of the second ballot. No voters shall change is ballot more than twice Counting of votes by Board of Election inspector 1. As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. 2. The Board of Election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC; 3. The COMELEC may order the Board of Election inspectors to count the votes and to accomplish the election returns and other forms prescribed under the code in any other place within a public building in the same municipality or city Marked ballots; liberal construction in the appreciation of ballots in the light of the automated election 1. The Board of Election inspectors shall determine whether there are marked ballots, and, if any be found, the shall be placed in an envelope labeled marked ballots, which shall be sealed and signed shall not be counted; A majority of the board of election inspectors shall be sufficient to determine whether any ballot is marked or not. 2. Purpose of disallowing marked ballots

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a. It is a well-settled rule in election contests that marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed in his ballot for the purpose of identifying it thereafter b. Only in an unmistakable case where the ballot appeared to marked, should it be rejected. In the absence of evidence alliunde clearly showing that the intention or plan was for purposes of identification, signs on ballots are presumed accidental. 3. Instances of marked ballots- the determinative factor in the nullification of ballots for being marked as following a design or pattern, is the existence of evidence aliunde (evidence from another place) tending to show the intention or purpose in the use of the contested manner or means of voting, which is to identify the ballots. 4. Liberal construction- in the appreciation of ballots, the same should be liberally construed, and the intendments should be in favor of a reading and construction which will render the ballot effective rather than in favor of a conclusion which on some technical grounds render it ineffective. Technicalities should NOT be permitted to defeat the intention of the voter especially so if that intention is discoverable from the ballot itself. Canvassers- provincial; city or municipal & national board of canvassers 1. Board of Canvassers- there shall be a board of canvassers for each province, city and municipality as follows: a. Provincial Board of Canvassers i. Provincial election supervisor or a lawyer in the regional office of COMELEC as chairman; ii. Provincial fiscal as vice chairman iii. Provincial superintendent of schools as member b. City Board of Canvassers i. City election registrar or a representative of the comelec chairman; ii. City fiscal vice chairman iii. City superintendent of schools member c. Municipal Board of Canvassers i. Election registrar or representative of the Comelec chairman ii. Municipal treasurer vice chairman iii. Most senior district school superintendent member

Proclamation of winners; election resulting in a tie; failure to assume within six months causes vacancy 1. Proclamation by the Board- the proclamation of a candidate as the winner is a ministerial duty of the canvassing board. It enjoys the presumption of regularity. To destroy the presumption, the protestant must convincingly show that the protestees victory was procured through extra legal measure. a. On the basis of the certificate of canvass- Board shall proclaim as elected the candidates obtaining the HIGHEST number of votes cast in the province, city, municipality, or barangay. b. No provision in laws which requires that a majority of registered voters must cast their votes. All that is required is that a winning candidate must be elected by a plurality of valid votes. Thus, even if less than a majority of the electorate cast their votes, the same must still be respected. c. Where a proclamation is null and void as where it is based on a faulty or erroneous tabulation, or an incomplete canvass, it is no proclamation at all and the proclaimed candidates assumption of office cannot deprive the Commission of the power to declare such nullity and annul the proclamation. 2. Election resulting in a tie a. Instances where a tie arises i. Whenever it shall appear from the canvass that 2 or more candidates have received an equal and highest number of votes, AND ii. In case where 2 or more candidates received the same number of votes for the last place in the number to be elected. b. The Board of Canvassers, after recording this fact in its minutes, shall, by resolution, upon 5 days notice to ALL the tied candidates, hold a special public meeting at which the Board shall proceed to the drawing of lots of the candidates who may be favored by LUCK. The candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. c. The office of any official elected who FAILS or REFUSES to take his oath of office within 6 months from his proclamation shall be considered VACANT. (exception: unless said failure is for a cause/s beyond his control.) Contested election COMELEC jurisdiction over all preproclamation controversies 1. Pre-proclamation controversy- Any question or matter pertaining to or affecting the proceedings of the Board of

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Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC; it should refer to an election controversy raised BEFORE proclamation. 2. Election contest- Any controversy raised AFTER proclamation. 3. COMELEC has exclusive jurisdiction a. The COMELEC shall have exclusive jurisdiction over ALL pre-proclamation controversies involving local elective officials. b. Exception: Pre-proclamation cases are NOT allowed under Sec. 15 RA 7166 in elections for President, Vice President, Senator or HoR member. What is allowed is the correction of manifest errors in the certificate of canvass or election returns. c. Constitution Art IX-C Sec 3: All election cases, including pre-proclamation controversies x x x shall be heard and decided in division, provided that motions for reconsideration shall be decided by the Commission en banc. i. In division- original jurisdiction to hear and decide election cases at the first instance ii. En banc- petition for correction of manifest error in the Statement of Votes, or in the tabulation or tallying of the results filed directly Suspension of proclamation & election protest 1. Sec. 248, Omnibus Election Code- the filing with the COMELEC of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. 2. The COMELEC shall have exclusive jurisdiction of ALL pre-proclamation controversies and may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally the proclamation, if one has been made. III. OFFENSES Remedy where candidate has been proclaimed 1. After proclamation and assumption of office by the candidate, a pre-proclamation controversy no longer viable and should be dismissed because the proper remedy is an electoral protest where parties are to present witnesses subject to the right of confrontation instead of mere affidavits to settle the controversy once and for all.

2. Proclaimed and installed candidate may be unseated when: code: (OICaN) a. When his opponent is adjudged true winner by final judgment of a court in the election contest b. Prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case c. Incumbent is removed from office for cause d. Proclamation is null and void as declared by COMELEC Election offenses 1. COMELEC exclusive jurisdiction to prosecute election offenses committed by any private individual or public officer or employee, instance, irrespective of whether the offense relation to his official duties or not. investigate and person, whether and in the latter is committed in

NOTE! It is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense, jurisdiction over the same rests exclusively with the COMELEC. 2. Prohibited acts and election offenses under the Omnibus Election Code: a. Vote-buying and vote-selling b. Conspiracy to bribe voters c. Wagering upon result of elections d. Coercion of subordinates to vote for or against any candidate e. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion f. Coercion of election officials and employees g. Appointment of new employees, creation of new positions, promotion ,or giving of salary increases within election period. h. Transfer of officers and employees in the civil service within the election period i. Intervening of public officers and employees in the civil service within the election period j. Use of undue influence k. Unlawful electioneering l. Dismissal of employees, laborers or tenants for refusing or failing to vote for any candidate

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m. Appointment or use of special policemen, special agents or the like during the campaign period n. Illegal release of public funds for an election campaign o. Use of public funds for an election campaign p. Carrying deadly weapons within the prohibited area q. Carrying firearms outside residence or place of business r. Use of armored land vehicle, water or aircraft during campaign period s. Wearing uniforms and bearing arms outside the immediate vicinity of ones place of work t. Acting as bodyguards or security in the case of policemen and prov. Guards during the campaign period u. Organization or maintenance of reaction forces, strike forces, or other similar forces during election period v. Release, disbursement, or expenditure of public funds during prohibited period w. Construction of public works during prohibited period x. Suspension of elective official during the election period without prior approval of COMELEC y. Others

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