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ARELLANO LAW SCHOOL

FINAL EXAMINATION IN ADMINISTRATIVE LAW,


LAW ON PUBLIC OFFICERS AND ELECTION LAW
1st SEMESTER SY 2008-2009

Read carefully each question before answering. Explain your


answers fully and support them with the applicable provisions
of the constitution, law and jurisprudence. 5 pts. each.

1. Distinguish term from tenure. The term of office is 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 the actual period of incumbency of
the public officer. Tenure represents the portion of the term
during which the incumbent actually holds the office.

2. When is there an effective resignation from public office? There


is an effective resignation from public office when i) there is a
formal renunciation of the remainder of the term; ii) there is
physical relinquishment of the office; and iii) there is acceptance
of the resignation by the appointing authority.

3. a) When may a public officer validly continue to hold his office


despite the expiration of his term? b) Can a Provincial Governor
hold over if there is no one elected to succeed him? a) A public
officer may validly continue to hold public office despite the
expiration of his term when he does so in a hold-over capacity.
A public officer can continue to hold office in a hold-over
capacity only if there is no express or implied prohibition against
such hold-over. b) No, a provincial governor cannot hold over
even if there is no one elected to succeed him because the
fixing by law of the term of a provincial governor to three (3)
years, with the beginning and the end of the term, is an implied
prohibition against holding over.

4. When is there appointment through certification? An


appointment through certification to a position in the civil
service occurs when it is issued to a person who has been
selected from a list of qualified persons certified by the Civil
Service Commission from an appropriate register of eligibles and
who meets all the other requirements of the position.

5. Can an appointment be validly issued for a position which will


become vacant only at a future date? Yes. An appointment can
be validly issued for a position that will become vacant at a
future date for as long as it becomes effective only upon the
vacancy of the office to which the appointment is made. There
can be no valid appointment to a public office which is not
vacant.

6. When does abolition of public office violate the constitutional


guarantee of security of tenure? The abolition of a public office
violates the constitutional guarantee of security of security
tenure when such abolition is attended with bad faith. When the
abolition of the public office is attended with bad faith, its only
obvious purpose is the separation of the incumbent from his
office without just cause.

7. Who may exercise the right of suffrage? Art. V of the


Constitution states that suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by law, who are at
least 18 years of age, and who shall have resided in the
Philippines at yeast 1 year, and in the place wherein they
propose to vote, for at least 6 months immediately preceding
the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

8. When is an appointment temporary and when is it


provisional? A temporary appointment is issued to a person,
who may or may not have the appropriate civil service eligibity,
to fill up a position needed only for a limited period not
exceeding six months. It is without a definite tenure and is
dependent upon the pleasure of the appointing authority. A
provisional appointment is issued to a person who has not
qualified in an appropriate examination but who otherwise
meets the requirements for appointment to a regular position in
the competitive service, whenever a vacancy occurs and the
filling thereof is necessary in the interest of the service and
there is no appropriate register of eligibles at the time of
appointment.

9. Distinguish the effect of the re-election of a public official on


pending administrative and criminal charges against him. The
re-election of a public official will have the effect of
automatically dismissing the administrative charges against him
for offenses allegedly committed during his previous term. His
re-election operates as a condonation by the people of whatever
faults or misconduct he may have previously committed
because it is presumed that when the people re-elected him,
they did so with full knowledge of his life and character and that
they disregarded or forgave his faults or misconduct. His re-
election will not, however, extinguish his criminal liability
because a crime is an offense against the state which is not
subject to compromise. Otherwise, his re-election will constitute
a pardon, which can only be extended by the President.

10. When is there abandonment of public office? There is


abandonment of public office when there is a voluntary and total
surrender and relinquishment of an office by the holder thereof
under such circumstances as clearly to indicate an intention of
absolute relinquishment, coupled with an overt or external act
by which the intention is carried out. It connotes the giving up
of the office but is not attended with the formalities observed in
resignation. The two offices cannot be held simultaneously by
the same person because public policy requires that they be
vested in different individuals lest a hostility or conspiracy of
powers in the two offices will result in irreparable detriment to
the people.

11. What is an incompatible public office? An incompatible office is


that which whose character or nature of office or relation to
another office is such that one person should not hold both
because of the contrariety and antagonism which would result in
the attempt by one person to faithfully and impartially discharge
the duties of one, toward the incumbent of the other.

12. Distinguish discretionary duty from ministerial duty. The duty is


discretionary if the officer is allowed to determine how and when
it is to be performed and to decide this matter in one wayor the
other and be right either way. The officer is allowed much
leeway in arriving at a decision as the duty is conferred on him
in recognition of his good sense or judgment. The duty is
ministerial when the law exacting its discharge prescribes and
defines the time, mode and occasion of its performance with
such certainty that nothing is left for judgment or discretion.

13. Define: a) non-feasance, b) misfeasance, and c) malfeasance?


a) Nonfeasance is the neglect or refusal, without sufficient
excuse, to perform an act which it was the officer’s legal duty to
the individual to perform. b) Misfeasance is the failure to use,
in the performance of a duty owing to the individual, that degree
of care, skill and diligence which the circumstances of the case
reasonably demand. c) Malfeasance is the doing, either
through ignorance, inattention or malice, of that which the
officer had no legal right to do at all, as where he acts without
any authority whatever, or exceeds, ignores or abuses his
powers.

14. Can the exercise of discretionary duty be delegated? Can its


exercise be compelled? No, the exercise of a discretionary duty
cannot be delegated to another because it is presumed that the
officer to whom discretionary duty has been conferred was
chosen because he was deemed fit and competent to exercise
that judgment and discretion, and unless the power to substitute
another in his place has been given to him. Yes, the exercise
of discretionary duty can be compelled but the officer upon
whom such duty has been conferred can only be required to act
in a general manner, i.e. not in any specific manner.

15. D is a bona fide member of the Philippine Bar. In 2007, he was


elected a member of the Provincial Board of Rizal Province. a)
Can D appear as counsel for E who is accused of the offense of
bigamy? D was later elected Congressman in a special election
held in October 2008. b) Can D continue to appear as counsel
for E? a) Yes, D can appear as counsel for an accused in a
criminal case for as long as the accused is not an officer or
employee of the national or local government who is accused
of an offense committed in relation to his office. It does not
appear that E is an employee of the national or local
government; but even if he is, the offense of bigamy is one the
commission of which is not in relation to public office. b) No,
he can no longer continue to appear as counsel for E. Article VI,
Sec. 14 of the Constitution prohibits members of Congress from
personally appearing as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other
administrative bodies.

16. G is a public school teacher whose husband ran for municipal


mayor during the national elections in May 2007. In one of the
faculty meetings, G called the attention of her fellow teachers to
the deteriorating state of their school building and why she
thinks that once elected mayor, her husband could help in its
renovation and improvement. Did G violate any official
inhibition? Yes, G being a member of the Civil Service, she is
prohibited by Art. IX-B, Sec. 2(4) of the Constitution from
engaging in electioneering or partisan political campaign. By
stating during the faculty meeting that once her husband is
elected mayor he would be able to help in the renovation and
improvement of the school building, she was practically
promoting his candidacy and indirectly urging her fellow
teachers to vote for him. Asking others to vote for a particular
candidate is a form of partisan political campaign.

Alternative answer: The Civil Service law does not prohibit, and
in fact allows, any civil service official or employee to express
his views on current problems or issues, or to mention the
names of candidates for public office whom he supports. The
mere act of G of expressing her view of how her husband could
help in the renovation and improvement of the school building
once he is elected mayor is a form of expression of why she
supports her husband’s candidacy.

17. The daughter of the President passed the rigorous written and
oral examinations for Foreign Service officers. She possesses all
the qualifications and the eligibility required for appointment as
Consul of Republic of Philippines. a) Explain why the President’s
daughter cannot be appointed a member of the Foreign Service.
b) Will your answer be the same if she was instead appointed
Secretary of the Department of Foreign Affairs? a) The
President’s daughter cannot be appointed a Consul of the
Republic of the Philippines because that will constitute
nepotism. The power to appoint members of the Foreign
Service is vested on the President. There is nepotism when the
appointment is made in favor of a relative within the third
degree of consanguinity or affinity of the appointing power or
recommending authority or the chief of the bureau of office or of
the offices exercising immediate supervision over the appointee.
b) Yes, because her appointment as Secretary of the
Department of Foreign Affairs will not only constitute nepotism
but the Constitution expressly prohibits the appointment of the
spouse and relatives by consanguinity or affinity within the
fourth civil degree of the President as department Secretaries.

18. K and L are both employees of the Bureau of Customs. K


obtained a loan from L. To ensure payment of the loan, K
executed a promissory note where she also expressly assigned
her salary for two (2) months to L. On payroll day, L went to the
disbursing officer of the Bureau of Customs, presented the
promissory note and deed of assignment executed by K, and
claimed the salary of K. Can L compel the payroll officer of the
Bureau of Customs to deliver to her the salary of K? Explain.
No. Public policy prohibits the assignment of the salary of a
public officer not only because such salary still belongs to the
state as long as it has not yet been actually collected by the
public officer. Before the salary of a public officer is actually
delivered to him, the same still forms part of the public funds
which cannot be the subject of a private contract or agreement.
The public officer to whom the salary is due has no power over it
prior to its delivery to him. He cannot assign it without the
consent of the government.

19. Explain why a temporary appointment or designation in an


acting capacity cannot be made in favor of a member of the
Commission on Elections. Art. IX-A, Sec. 1 of the Constitution
expressly describes the Constitutional Commissions as
“independent”. Although essentially executive in nature, they
are not under the control of the President in the discharge of
their respective functions. A temporary appointment and a
designation in an acting capacity are by their very terms
temporary and revocable at will by the appointing authority
who, in this case, is the President. They can be withdrawn
anytime by the President at any time and for whatever reason
that the President may deem fit. No cause need be established
to justify the revocation or withdrawal of the appointment or
designation. The members of the Comelec will, thus, lose their
security of tenure, which is one of the safeguards to their
independence.

20. Teehankee was convicted of murder for the shooting of Maureen


Hultmann on the eve of election day and for violation of the
election laws because he did not have any certificate of
exemption from the gun ban issued by the Comelec. Seventeen
years into the service of his sentence, the President granted
absolute pardon to Teehankee and he was released from prison.
Rule on the validity of the pardon of Teehankee. Teehankee
committed two (2) separate crimes of murder and violation of
the election law. The pardon is valid insofar as the commission
of the crime of murder is concerned. Since it does not appear
that the President sought the favorable recommendation of the
Comelec, the pardon is not valid with respect to the violation of
the election law is concerned. Art. IX-C, Sec. 5 of the
Constitution states that “No pardon, amnesty, parole, or
suspension of sentence for violation of election laws, rules, and
regulations shall be granted by the President without the
favorable recommendation of the Commission.”

21. At the forefront of the US$700 Billion financial bailout program


of the US Federal Government for ailing US banks and quasi-
banking institutions is the US Federal Reserve which is the
central banking system of the United States. Its current
chairman is Ben Shalom Bernanke. Whom did he succeed? Alan
Greenspan

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