Questions and Answers in Administrative Law

Q What is the essence of due process in administrative proceedings? Explain.

ANS: In administrative proceedings, due process simply means an opportunity to
seek a reconsideration of the order complained of; it cannot be fully equated to due
process in its strict jurisprudential sense. A respondent in an administrative case is
not entitled to be informed of the preliminary findings and recommendations; he is
entitled only to a reasonable opportunity to be heard, and to the administrative
decision based on substantial evidence. (Velasquez v. CA, G.R. No. 150732, August
31, 2004, 437 SCRA 357). Note that it is the administrative order, not the
preliminary report, which is the basis of any further remedies the losing party in an
administrative case may pursue. (Viva Footwear Mfg. Corp. v. SEC, et al., G.R. No.
163235, April 27, 2005).
Exhaustion of administrative remedies.
The general rule is that before a party may seek the intervention of the court, he
should first avail of all the means afforded him by administrative processes. The
issues which administrative agencies are authorized to decide should not be
summarily taken from them and submitted to a court without first giving such
administrative agency the opportunity to dispose of the same after due
deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of
primary jurisdiction; that is, courts cannot or will not determine a controversy
involving a question which is within the jurisdiction of the administrative tribunal
prior to the resolution of that question by the administrative tribunal, where the
question demands the exercise of sound administrative discretion requiring the
special knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the
corollary doctrine of primary jurisdiction, which are based on sound public policy
and practical considerations, are not inflexible rules. There are many accepted
exceptions, such as: (a) where there is estoppel on the part of the party invoking
the doctrine; (b) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (c) where there is unreasonable delay or official
inaction that will irretrievably prejudice the complainant; (d) where the amount
involved is relatively small so as to make the rule impractical and oppressive; (e)
where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted
acts violate due process; (i) when the issue of non-exhaustion of administrative
remedies has been rendered moot; (j) when there is no other plain, speedy and
adequate remedy; (k) when strong public interest is involved; and, (l) in quo
warranto proceedings. Exceptions (c) and (e) are applicable to the present case.
(Rep., et al. v. Lacap, et al., G.R. No. 158253, March 2, 2007).
Exhaustion of administrative remedies.
The underlying principles of the rule on exhaustion of administrative remedies rests
on the presumption that the administrative agency, if afforded a complete chance
to pass upon the matter, will decide the same correctly. There are both legal and
practical reasons for the principle. The administrative process is intended to provide
less expensive and speedier solutions to disputes. Where the enabling statute
indicates a procedure for administrative review and provides a system of
administrative appeal or reconsideration, the courts for reasons of law, comity,
and convenience will not entertain a case unless the available administrative
remedies have been resorted to and the appropriate authorities have been given an

opportunity to act and correct the errors committed in the administrative forum.
(Berdin, et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6, 2007,
Tinga, J).

ELECTION LAWS QUESTIONS AND ANSWERS

Q Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,
Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor
filed a petition to annul/nullify his certificate of candidacy and/or to disqualify on the
ground that Cayat has been convicted of a crime involving moral turpitude. Twenty
three days before the election, Cayats disqualification became final and executory.
He, however won and was proclaimed and assumed office. Palileng filed an
electoral protest contending that Cayat was ineligible to run for mayor. The ViceMayor intervened and contended that he should succeed Cayat in case he is
disqualified because Palileng was only a second placer, hence, he cannot be
declared as the winner. Is the contention of the Vice-Mayor correct? Why?
ANS: No, because there was no second placer, hence, Palileng should be
proclaimed as the winner on the following grounds:
First, the COMELECs Resolution of 12 April 2004 cancelling Cayats certificate of
candidacy due to disqualification became final and executory on 17 April 2004
when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only
candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twentythree days before the Election Day, Cayat was already disqualified by final
judgment to run for Mayor in the 10 May 2004 elections. As the only candidate,
Palileng was not a second placer. On the contrary, Palileng was the sole and only
placer, second to none. The doctrine on the rejection of the second placer, which
triggers the rule on succession, does not apply in the present case because Palileng
is not a second-placer but the only placer. Consequently, Palilengs proclamation as
Mayor of Buguias, Benguet is beyond question.
Second, there are specific requirements for the application of the doctrine on the
rejection of the second placer. The doctrine will apply in Bayacsans favor,
regardless of his intervention in the present case, if two conditions concur: (1) the
decision on Cayats disqualification remained pending on Election Day, 10 May
2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in
the elections; and (2) the decision on Cayats disqualification became final only
after the elections. (Cayat v. COMELEC, April 27, 2007).
Q It was contended that the doctrine of rejection of the second placer laid
down in Labo v. COMELEC should apply. Is the contention correct? Why?
ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of
the second placer, does not apply because in Labo there was no final judgment of
disqualification before the elections. The doctrine on the rejection of the second
placer was applied in Labo and a host of other cases because the judgment
declaring the candidates disqualification in Labo and the other cases had not
become final before the elections. Labo and other cases applying the doctrine on
the rejection of the second placer have one common essential condition the
disqualification of the candidate had not become final before the elections. This
essential condition does not exist in the present case. (Cayat v. COMELEC).
Reason in Labo.
In Labo, Labos disqualification became final only on 14 May 1992, three days after
the 11 May 1992 elections. On Election Day itself, Labo was still legally a candidate.
In the case of Cayat he was disqualified by final judgment 23 days before the 10
May 2004 elections. On Election Day, Cayat was no longer legally a candidate for

mayor. In short, Cayats candidacy for Mayor was legally non-existent in the 10 May
2004 elections.
Q What is the effect if a candidate is disqualified by final judgment? Explain.
ANS: The law expressly declares that a candidate disqualified by final judgment
before an election cannot be voted for, and votes cast for him shall not be counted.
This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The
Electoral Reforms Law of 1987, states:
Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is
when the disqualification becomes final before the elections, which is the situation
covered in the first sentence of Section 6. The second is when the disqualification
becomes final after the elections, which is the situation covered in the second
sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms
Law governing the first situation is categorical: a candidate disqualified by final
judgment before an election cannot be voted for, and votes cast for him shall not
be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way
before the 10 May 2004 elections. Therefore, all the 8, 164 votes cast in Cayats
favor are stray. Cayat was never a candidate in the 10 May 2004 elections.
Palilengs proclamation is proper because he was the sole and only candidate,
second to none. (Cayat v. COMELEC).
Q Why is the proclamation of Cayat void? Explain.
ANS: Cayats proclamation is void because the decision disqualifying him had
already become final on 17 April 2004. There is no longer any need to ascertain
whether there was actual knowledge by the voters of his disqualification when they
casted their votes on Election Day because the law mandates that Cayats votes
shall not be counted. There is no disenfranchisement of the voters. Rather, the
voters are deemed by law to have deliberately voted for a non-candidate, and thus
their votes are stray and shall not be counted. (Cayat. v. COMELEC).
Q Is the intervention of the Vice-Mayor proper? Why?
ANS: No. The petition-in-intervention should be rejected because the doctrine on
the rejection of the second placer does not apply to this case. The doctrine applies
only if the winning candidates disqualification has not yet become final and
executory before the election. In this case, the disqualification was final and
executory before the election; hence, there was no second placer. (Cayat v.
COMELEC).
Three-term limit; even if as caretaker.
Q Mayor Marino Morales ran for a fourth term despite having served for three
(3) consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to
cancel his certificate of candidacy, he alleged that while he served his second term,
he did it as a caretaker of the office or as a de facto officer because he was
suspended by the Ombudsman from January 16, 1999 to July 15, 1999 and that his

proclamation was declared void and which became final and executory on August 6,
2001. The COMELEC declared him disqualified. Before the Supreme Court, he
contended that his second term from July 1, 1999 to June 30, 2001 may not be
counted since his proclamation was void. Is the contention correct? Why?
ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full
term, hence, the three-term limit rule applies to him. This is especially so that he
assumed office. He served as mayor up to June 30, 2001. He was mayor for the
entire period notwithstanding the decision in the electoral protest case ousting him
as mayor. As held in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23,
2006, 479 SCRA 473, such circumstance does not constitute an interruption in
serving the full term. In Ong, he served the full term even as there was a
declaration of failure of election.
Section 8, Article X of the Constitution provides that the terms of the office of
elected local officials x x x, shall be three years and no such official shall serve for
more than three consecutive terms. x x x
Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no
local official shall serve for more than three consecutive terms in the same position.
Morales has been mayor of Mabalacat continuously without any break since July 1,
1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and
Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).
Q Explain the reason for the maximum term limit.
ANS: The framers of the Constitution wanted to establish some safeguards
against the excessive accumulation of power as a result of consecutive terms.
As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601,
the three-term limit is an exception to the peoples freedom to choose those who
will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged
stay in the same office. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and
companion case, May 9, 2007).
Q Is not the case of Morales similar to the case of Lonzanida v COMELEC?
Explain.
ANS: No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily
vacated when there was a declaration of failure of election. He did not fully serve
the term, hence, he was qualified to run for a third term.
The difference between the case at bench and Lonzanida is at once apparent. For
one, in Lonzanida, the result of the mayoralty elections was declared a nullity for
the stated reason of failure of election, and, as a consequence thereof, the
proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him
to vacate the office of the mayor. For another, Lonzanida did not fully serve the
1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the
continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case.
But more importantly, here, there was actually no interruption or break in the
continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida,
Francis was never unseated during the term in question; he never ceased
discharging his duties and responsibilities as mayor of San Vicente, Camarines
Norte for the entire period covering the 1998-2001 term.
Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the

duties of the mayor of San Vicente, Camarines Norte for three consecutive terms.
But his proclamation as mayor in the May 1998 election was declared void. As
ruled, his service for the term 1998 to 2001 is for the full term. Clearly, the threeterm limit rule applies to him. There is no reason why this ruling should not also
apply to Morales who is similarly situated. (Rivera III, et al. v. COMELEC, et al., May
9, 2007).
Q Morales cited Borja v. COMELEC to apply to him. Is this case applicable?
Why?
ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by
virtue of the principle of succession, he, being the vice-mayor. He was not
therefore, elected even if he served the rest of the term of the mayor, hence, his
assumption of the office of the mayor upon the death of the incumbent mayor may
not be regarded as a term.
Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA
90, it was held that assumption of the office of mayor in a recall election for the
remaining term is not the term contemplated under Section 8, Article X of the
Constitution and Section 43(b) of R.A. 7160 (the Local Government Code). There
was a break in the service of the mayor. He was a private citizen for a time
before running for mayor in the recall elections. (Rivera III, e al. v. COMELEC, et al.,
G.R. No. 167591, May 9, 2007).
Q What is the effect if the certificate of candidacy of a candidate is cancelled?
Explain.
ANS: Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. (Secs. 6 and
7, RA 6646).
Any vote in favor of a person who has not filed a certificate of candidacy or in favor
of a candidate for an office for which he did not present himself shall be considered
as a stray vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus
Election Code).
Morales cannot be considered a candidate in the May 2004 elections. Not being a
candidate, the votes cast for him should not be counted and must be considered
stray votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007).
Q It was contended that since Morales was disqualified, the second placer
should be proclaimed as the winner. Is the contention correct? Why?
ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate
cannot be proclaimed as a substitute winner.
The rule is that, the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to
the office.
As a consequence of ineligibility, a permanent vacancy in the contested office has
occurred. This should now be filled by the vice-mayor in accordance with Sec. 44 of
the Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591,
May 9, 2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297).
Q What are the requirements which must concur for the three-term limit to
apply?
ANS: For the three-term limit to apply, the following two conditions must concur:
1)
that the official concerned has been elected for three consecutive terms in
the same local government post; and

2)
that he has fully served three consecutive terms. ( Lonzanida v. COMELEC,
G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473;
Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No.
167591, May 9, 2007).
Effect if there is a tie.
Q What is the proper procedure to be resorted to in case of a tie? Explain.
ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear
from the canvass that two or more candidates have received an equal and highest
number of votes, or in cases where two or more candidates are to be elected for the
same position and two or more candidates received the same number of votes for
the last place in the number to be elected, the board of canvassers, after recording
this fact in its minutes, shall by resolution, upon five-day notice to all the tied
candidates, hold a special public meeting at which the board of canvassers shall
proceed to the drawing of lots of the candidates who have tied and shall proclaim
as elected the candidates who may favored by luck, and the candidates so
proclaimed shall have the right to assume office in the same manner as if he had
been elected by plurality of votes. The board of canvassers shall forthwith make a
certificate stating the name of the candidate who had been favored by luck and his
proclamation on the basis thereof.
Nothing in this section shall be construed as depriving a candidate of his right to
contest the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No.
171063, March 2, 2007).
Withdrawal of certificate of candidacy.
Q Hans Roger filed his certificate of candidacy but withdrew the same. He was
substituted by Joy Luna but the COMELEC denied due course to her certificate on
the ground that Hans being under age, he could not have filed a valid certificate of
candidacy. There was, however, no petition to deny Hans certificate of candidacy.
Did the COMELEC act correctly? Why?
ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in declaring that Hans Roger, being under age, could not be
considered to have filed a valid certificate of candidacy and, thus, could not be
validly substituted by Luna. The COMELEC may not, by itself, without the proper
proceedings, deny due course to or cancel a certificate of candidacy filed in due
form. (Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In
Sanchez v. Del Rosario, the Court ruled that the question of eligibility or ineligibility
of a candidate for non-age is beyond the usual and proper cognizance of the
COMELEC.
If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified
petition to deny due course to or cancel such certificate of candidacy under Section
78 of the Election Code.
In this case, there was no petition to deny due court to or cancel the certificate of
candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a
valid certificate of candidacy and, thus, was not a valid candidate in the petition to
deny due course to or cancel Lunas certificate of candidacy. In effect, the
COMELEC, without the proper proceedings, cancelled Hans Rogers certificate of
candidacy and declared the substitution of Luna invalid. (Luna v. COMELEC, et al.,
G.R. No. 165983, April 24, 2007).
Pre-proclamation controversy; extent of power of COMELEC.
Q

What is the extent of the power of the COMELEC in pre-proclamation

controversy? Explain.
ANS: It is a well-established rule in pre-proclamation cases that the Board of
Canvassers is without jurisdiction to go beyond what appears on the face of the
election return. The rationale is that a full reception of evidence aliunde and the
meticulous examination of voluminous election documents would run counter to the
summary nature of a pre-proclamation controversy. However, this rule is not
without any exception. In Lee v. Commission on Elections, it was held that if there is
a prima facie showing that the return is not genuine, several entries having been
omitted in the questioned election return, the doctrine does not apply. The
COMELEC is thus not powerless to determine if there is basis for the exclusion of
the questioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al.
v. COMELEC, et al., G.R. No. 171882, April 3, 2007).
Handwritings have only one general appearance.
Q May the COMELEC invalidate certain ballots merely on a finding that the
writings have the same general appearance and pictorial effect? Explain.
ANS: No. General resemblance is not enough to warrant the conclusion that two
writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).
In order to reach the conclusion that two writings are by the same hand there must
not only be present class characteristics but also individual characteristics or dents
and scratches in sufficient quantity to exclude the theory of accidental coincidence;
to reach the conclusion that writings are by different hands we may find numerous
likeness in class characteristics but divergences in individual characteristics, or we
may find divergences in both, but the divergence must be something more than
mere superficial differences. (Osborns Questioned Documents, p. 244; Delos Reyes
v. COMELEC, et al., G.R. No. 170070, February 28, 2007).
Neighborhood rule.
The votes contested in this appeal are all misplaced votes, i.e., votes cast for a
candidate for the wrong or inexistent office. In appreciating such votes, the
COMELEC may be applied the neighborhood rule. As used by the Court, this
nomenclature, loosely based on a rule of the same name devised by the House of
Representatives Electoral Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34,
June 16, 1989, 1 HRET Rep. 138), refers to an exception to the rule on appreciation
of misplaced votes under Section 211(19) of Batas Pambansa Blg. 881 (Omnibus
Election Code) which provides:
Any vote in favor of a person who has not filed a certificate of candidacy or in favor
of a candidate for an office for which he did not present himself shall be considered
as a stray vote but it shall not invalidate the whole ballot.
Section 211(19) is meant to avoid confusion in the minds of the election officials as
to the candidates actually voted for and to stave off any scheming design to
identify the vote of the elector, thus defeating the secrecy of the ballot which is a
cardinal feature of our election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)).
Section 211(19) also enforces Section 195 of the Omnibus Election Code which
provides that in preparing the ballot, each voter must fill his ballot by writing in the
proper place for each office the name of the individual candidate for whom he
desires to vote.
Excepted from Section 211(19) are ballots with (1) a general misplacement of an
entire series of names intended to be voted for the successive offices appearing in
the ballot (Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v.
Gonzales, 152 Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29
June 1962, 5 SCRA 438) misplacement of names where such names were preceded
or followed by the title of the contested office or where the voter wrote after the
candidates name a directional symbol indicating the correct office for which the

misplaced name was intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a
single misplacement of a name written (a) off-center from the designated space
(Mandac v. Samonte, 54 Phil. 706 (1930)), (b) slightly underneath the line for the
contested office (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438;
Moya v. Del Fierro, 69 Phil. 199 (1939)), (c) immediately above the title for the
contested office ((Villavert v. Fornier, 84 Phil. 756 (1949)), or (d) in the space for an
office immediately following that for which the candidate presented himself. ((Abad
v. Co, G.R. No. 167438, 25 July 2006, 496 SCRA 505 and Ferrer v. Commission on
Elections, 386 Phil. 431 (2000)). In these instances, the misplaced votes are
nevertheless credited to the candidates for the office for which they presented
themselves because the voters intention to so vote is clear from the face of the
ballots. This is in consonance with the settled doctrine that ballots should be
appreciated with liberality to give effect to the voters will. (Velasco v. COMELEC, et
al., G.R. No. 166931, February 22, 2007).
Marked ballot.
Q When is a ballot considered as marked? Explain.
ANS: In order for a ballot to be considered marked, in the sense necessary to
invalidate it, it must appear that the voter designedly place some superfluous sign
or mark on the ballot which might serve to identify it thereafter. No ballot should be
discarded as a marked ballot unless its character as such is unmistakable. The
distinguishing mark which the law forbids to be placed on the ballot is that which
the elector may have placed with the intention of facilitating the means of
identifying said ballot, for the purpose of defeating the secrecy of suffrage which
the law establishes. Thus, marked ballots are ballots containing distinguishing
marks, the purpose of which is to identify them. (Perman v. COMELEC, et al. G.R.
No. 174010, February 8, 2007, Tinga, J).
Failure of election.
Q When is there failure of election?
ANS: There are three instances where a failure of elections may be declared, thus:
(a) the election in any polling place has not been held on the date fixed on account
of force majeure, violence, terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by
law for the closing of the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to
elect on account of force majeure, violence, terrorism, fraud or other analogous
causes.
In all three instances, there is a resulting failure to elect. In the first instance, the
election has not been held. In the second instance, the election has been
suspended. In the third instance, the preparation and the transmission of the
election returns give rise to the consequent failure to elect; the third instance is
interpreted to mean that nobody emerged as a winner. (Mutilan v. COMELEC, et al.,
G.R. No. 171248, April 2, 2007).
Note:
None of the three instances is present in this case. In this case, the elections took
place. In fact, private respondent was proclaimed the winner. Petitioner contests the
results of the elections on the grounds of massive disenfranchisement, substitute

voting, and farcical and statistically improbable results. Petitioner alleges that no
actual election was conducted because the voters did not actually vote and the
ballots were filled up by non-registered voters.
Q May an interlocutory order of a COMELEC Division be the subject of certiorari
to the SC? Explain.
ANS: As a rule, No. The exception is in an unusual case where the petition for
certiorari questioning the interlocutory order of a COMELEC Division was pending
before the SC, the main case which was meanwhile decided by the COMELEC En
Banc was likewise elevated to the Court. Thus, there was a situation where the
petition for certiorari questioning the interlocutory orders of the COMELEC Division
and the petition for certiorari and prohibition assailing the Resolution of the
COMELEC En Banc on the main case were consolidated. The issues raised in the
petition for certiorari were also raised in the main case and therefore there was
actually no need to resolve the petition assailing the interlocutory orders. (Rosal v.
COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., et al. v.
COMELEC, et al., G.R. No. 164496-505, April 2, 2007).
Note:
The general rule is that a decision or an order of a COMELEC Division cannot be
elevated directly to the Supreme Court through a special civil action for certiorari.
Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a
COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to
reconsider an interlocutory order of a COMELEC Division shall be resolved by the
division which issued the interlocutory order, except when all the members of the
division decide to refer the matter to the COMELEC En Banc.
Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor
can they be proper subject of a petition for certiorari. To rule otherwise would not
only delay the disposition of cases but would also unnecessarily clog the Court
docket and unduly burden the Court. This does not mean that the aggrieved party
is without recourse if a COMELEC Division denies the motion for reconsideration.
The aggrieved party can still assign as error the interlocutory order if in the course
of the proceedings he decides to appeal the main case to the COMELEC En Banc.
The exception enunciated in Kho and Repol is when the interlocutory order of a
COMELEC Division is a patent nullity because of absence of jurisdiction to issue the
interlocutory order, as where a COMELEC Division issued a temporary restraining
order without a time limit, which is the Repol case, or where a COMELEC Division
admitted an answer with counter-protest which was filed beyond the reglementary
period, which is the Kho case.
The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that it is the
decision, order or ruling of the COMELEC En Banc that, in accordance with Section
7, Art. IX-A of the Constitution, may be brought to the Supreme Court on certiorari.
The exception provided in Kho and Repol is unavailing in this case because unlike in
Kho and Repol, the assailed interlocutory orders of the COMELEC First Division in
this case are not a patent nullity. The assailed orders in this case involve the
interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply
because in that case the petition for certiorari questioning the interlocutory orders
of the COMELEC Second Division and the petition for certiorari and prohibition
assailing the Resolution of the COMELEC En Banc on the main case were already
consolidated.
The Court also notes that the COMELEC First Division has already issued an Order
dated 31 May 2005 dismissing the protests and counter-protests in EPC Nos. 200436, 2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and
2004-45 for failure of the protestants and protesters to pay the required cash
deposits. Thus, the Court have this peculiar situation where the interlocutory order

of the COMELEC First Division is pending before the Court but the main case has
already been dismissed by the COMELEC First Division. This situation is precisely
what the Court is trying to avoid by insisting on strict compliance of the rule that an
interlocutory order cannot by itself be the subject of an appeal or a petition for
certiorari.
Misrepresentation in a certificate of candidacy; effect.
Q When is misrepresentation in a certificate of candidacy material? Explain.
ANS: A misrepresentation in a certificate of candidacy is material when it refers to
a qualification for elective office and affects the candidates eligibility. Second,
when a candidate commits a material misrepresentation, he or she may be
proceeded against through a petition to deny due course to or cancel a certificate
of candidacy under Section 78, or through criminal prosecution under Section 262
for violation of Section 74. Third, a misrepresentation of a non-material fact, or a
non-material misrepresentation, is not a ground to deny due course to or cancel a
certificate of candidacy under Section 78. In other words, for a candidates
certificate of candidacy to be denied due course or cancelled by the COMELEC, the
fact misrepresented must pertain to a qualification for the office sought by the
candidate. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007).
Q If a candidate misrepresents his profession, is he disqualified? Explain.
ANS: No. No elective office, not even the office of the President of the Republic of
the Philippines, requires a certain profession or occupation as a qualification.
Profession or occupation not being a qualification for elective office,
misrepresentation of such does not constitute a material misrepresentation.
Certainly, in a situation where a candidate misrepresents his or her profession or
occupation in the certificate of candidacy, the candidate may not be disqualified
from running for office under Section 78 as his or her certificate of candidacy
cannot be denied due course or canceled on such ground. (Nelson T. Lluz, et al. v.
COMELEC, et al., G.R. No. 172840, June 7, 2007).

ADMINISTRATIVE LAW
Powers of Administrative Agencies
1.
2.
3.

Quasi-legislative power / Power of subordinate legislation

Quasi-judicial power/Power of adjudication
Determinative powers (Note: Senator Neptali Gonzales calls them incidental powers)

Definition of Quasi-legislative power

It is the authority delegated by the law-making body to the administrative body to adopt rules
and regulations intended to carry out the provisions of a law and implement legislative policy.

Distinctions between Quasi-legislative power and legislative power

1.

LEGISLATIVE power involves the discretion to determine what the law shall be. QUASIlegislative power only involves the discretion to determine how the law shall be enforced.
2. LEGISLATIVE power CANNOT be delegated. QUASI-legislative power CAN be delegated.

Tests of Delegation (applies to the power to promulgate administrative regulations )

1. COMPLETENESS test. This means that the law must be complete in all its terms and
conditions when it leaves the legislature so that when it reaches the delegate, it will have
nothing to do but to enforce it.
2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of
the delegates authority, announce the legislative policy and specify the conditions under
which it is to be implemented.

Definition of Quasi-Judicial Power

It is the power of administrative authorities to make determinations of facts in the performance
of their official duties and to apply the law as they construe it to the facts so found. The
exercise of this power is only incidental to the main function of administrative authorities, which
is the enforcement of the law.
Determinative Powers
1. ENABLING powers
Those that PERMIT the doing of an act which the law undertakes to regulate and would be
unlawful without government approval.
Ex. Issuance of licenses to engage in a particular business.
2.DIRECTING powers
Those that involve the corrective powers of public utility commissions, powers of assessment
under the revenue laws, reparations under public utility laws, and awards under workmens
compensation laws, and powers of abstract determination such as definition-valuation,
classification and fact finding
3.DISPENSING powers
Exemplified by the authority to exempt from or relax a general prohibition, or authority to
relieve from an affirmative duty. Its difference from licensing power is that dispensing power
sanctions a deviation from a standard.

4. SUMMARY powers
Those that apply compulsion or force against person or property to effectuate a legal purpose
without a judicial warrant to authorize such action. Usually without notice and hearing.
Ex. Abatement of nuisance, summary destraint, levy of property of delinquent tax payers
5. EQUITABLE powers
Those that pertain to the power to determine the law upon a particular state of facts. It refers to
the right to, and must, consider and make proper application of the rules of equity.
Ex. Power to appoint a receiver, power to issue injunctions

Kinds of Administrative Regulations

DISTINCTIONS

LEGISLATIVE

INTERPRETATIVE

1. Capacity that
administrative agency is
acting in

Legislative

Judicial

2. What administrative
agency is doing

It supplements the
statute by filling in the
details

It says what the statute

means

3. Force and effect

Legislative regulations
have the force and effecr
of law immediately upon
going into effect. Such is
accorded by the courts
or by express provision
of statute.

Merely
persuasive/Received by
the courts with much
respect but not accorded
with finality

Requisites of a Valid Administrative Regulation

1.
2.
3.
4.

Its promulgation must be authorized by the legislature.

It must be within the scope of the authority given by the legislature.
It must be promulgated in accordance with the prescribed procedure.
It must be reasonable

Need for Previous Notice and Hearing

1. General Rule: Administrative rules of GENERAL application do NOT require previous notice
and hearing.
2. Exception: When the legislature itself requires it and mandates that the regulation shall be
based on certain facts as determined at an appropriate investigation.
3. If the regulation is in effect a settlement of a controversy between specific parties, it is
considered an administrative adjudication, requiring notice and hearing.

Prescribing of Rates
It can be either:
1.LEGISLATIVE
If the rules/rates are meant to apply to all enterprises of a given kind throughout the country.
No prior notice and hearing is required.
2. QUASI-JUDICIAL
If the rules and rates imposed apply exclusively to a particular party, based upon a finding of
fact. Prior notice and hearing is required.
Requirement of Publication
Administrative Regulations that MUST be published:
1. Administrative regulations of GENERAL application.
2. Administrative regulations which are PENAL in nature.
Administrative regulations that do NOT NEED to be PUBLISHED:
1. Interpretative regulations
2. Internal rules and regulations governing the personnel of the administrative agency.
1. Letters of instruction issued by administrative superiors concerning guidelines to be followed
by their subordinates. (Tanada v. Tuvera)

Special Requisites of a Valid Administrative Regulation with a PENAL sanction

1.
2.
3.

The law itself must make violation of the administrative regulation punishable.
The law itself must impose and specify the penalty for the violation of the regulation.
The regulation must be published.

Requisites for Proper Exercise of Quasi-Judicial Power

1.
2.

Jurisdiction
Due process

Administrative Due Process : Requirements

1. Right to Notice, be it actual or constructive
2. Reasonable opportunity to appear and defend his rights and to introduce witnesses
3. Impartial tribunal with competent jurisdiction
4. Finding or decision supported by substantial evidence
Exceptions to the Notice and Hearing Requirement
1. Urgency of immediate action
2. Tentativeness of the administrative action
3. Right was previously offered but not claimed
4. Summary abatement of a nuisance per se
5. Preventive suspension of a public servant facing administrative charges
6. Padlocking of filthy restaurants/theaters showing obscene movies
7. Cancellation of a passport of a person sought for criminal prosecution
8. Summary distraint and levy of properties of a delinquent taxpayer
9. Replacement of a temporary or acting appointee
Questions Reviewable on Judicial Review:
1. Questions of FACT
The general rule is that courts will not disturb the findings of administrative agencies acting
within the parameters of their own competence so long as such findings are supported by
substantial evidence. By reason of their special knowledge, expertise, and experience, the
courts ordinarily accord respect if not finality to factual findings of administrative tribunals.
2. Question of LAW
Administrative decision may be appealed to the courts independently of legislative permission.
It may be appealed even against legislative prohibition because the judiciary cannot be
deprived of its inherent power to review all decisions on questions of law.
Doctrine of Finality
Courts are reluctant to interfere with action of an administrative agency prior to its completion
or finality, the reason being that absent a final order or decision, power has not been fully and
finally exercised, and there can usually be no irreparable harm.
EXCEPTIONS: Interlocutory order affecting the merits of a controversy; Preserve status quo
pending further action by the administrative agency; Essential to the protection of the rights
asserted from the injury threatened; Officer assumes to act in violation of the Constitution and
other laws; Order not reviewable in any other way; Order made in excess of power
Doctrine of Primary Jurisdiction
1. This doctrine states that courts cannot or will not determine a controversy which requires the
expertise, specialized skills and knowledge of the proper administrative bodies because
technical matters of intricate questions of fact are involved.
2. Relief must first be obtained in an administrative proceeding before a remedy will be supplied
by the court even though the matter is within the proper jurisdiction of a court.

Doctrine of Prior Resort

When a claim originally cognizable in the courts involves issues which, under a regulatory
scheme are within the special competence of an administrative agency, judicial proceedings will
be suspended pending the referral of these issues to the administrative body for its view.

Note: The doctrines of primary jurisdiction and prior resort have been considered to be
interchangeable.
Doctrine of Exhaustion of Administrative Remedies
1. Under this doctrine, an administrative decision must first be appealed to the administrative
superiors up to the highest level before it may be elevated to a court of justice for review.
1. Reasons :
1.
to enable the administrative superiors to correct the errors committed by their
subordinates.
2.
courts should refrain from disturbing the findings of administrative. bodies in
deference to the doctrine of separation of powers.
3.
courts should not be saddled with the review of administrative cases
4.
judicial review of administrative cases is usually effected through special civil
actions which are available only if their is no other plain, speedy and adequate
remedy.
3. Exceptions
a. when the question raised is purely legal, involves constitutional questions
b. when the administrative body is in estopped
c. when act complained of is patently illegal
d. when there is urgent need for judicial intervention
e. when claim involved is small
f. when irreparable damage is involved
g. when there is no other plain, speedy , adequate remedy
h. when strong public interest is involved
I. when the subject of controversy is private land
1. in quo warranto proceedings
2. When the administrative remedy is permissive, concurrent
3. utter disregard of due process
4. long-continued and unreasonable delay
5. amount involved is relatively small
6. when no administrative review is provided
7. respondent is a department secretary (DOCTRINE OF QUALIFIED POLITICAL AGENCY ALTER
EGO DOCTRINE)
Substantial evidence defined to mean not necessarily preponderant proof as required in
ordinary civil cases but such kind of relevant evidence which a reasonable mind might accept
as adequate to support a conclusion.