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Election Laws Reviewer 2011

This reviewer has two parts: 1. Outline based laws and cases 2. Discussion based Transcriptions ___________________________________________ Outline Based Laws and Cases III. COMMISSION ON ELECTIONS a. Composition and Qualifications Art. IX, C, Sec. 1 (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. 1 chairman 6 commissioners Qualifications: Natural-born citizen - Who are natural-born citizens? 1. citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship. 2. Those who elect Philippine citizenship under Art. IV, Sec 1(3). @ least 35 years old College degree Must NOT have been candidates for any elective position in the immediately preceeding elections. Chairman: member of Phil. Bar & practiced law for @ least 10 years @ least majority of commissioners member of Phil. Bar & practiced law for @ least 10 years Term: 7 years without reappointment, inorder to assure the independence of comelec. -Must not be engage in any other profession. -Salary is fixed by law and cannot be increased during tenure. Has fiscal autonomy and there is assurance that approval of annual appropriations shall be automatic and regular. -Removable only by impeachment. Art. VII, Sec. 13, par. 2 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Cayetano vs. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give

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notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." Is teaching considered practice of law? No. According to U.S. jurisprudence teaching is not practice of law. There must be a client and lawyer relationship. b. Appointment Commissioners and term of office of

Art. IX, C, Sec. 1(2) - The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. b.1. Disqualifications Art. IX, A, Sec. 4 - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b.2. Salary Art. XVIII, Sec. 17 - Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the VicePresident, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each. Art. IX, A, Sec 3 - The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure. b.3. Appointment of personnel Art. IX, A, Sec. 4 - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b.4. Removal Art. XI, Sec. 2 - The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
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c. Functions Baytan vs Comelec Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELECs administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELECs administrative powers in the "Commission on Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions. The COMELECs exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to "prosecute cases of violations of election laws." The prosecution of election law violators involves the exercise of the COMELECs administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. Notes: administrative powers Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform

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or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision. (9) Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. and adjucatory powers (quasi-judicial) Sec. 2. The Commission on Elections shall exercise the following powers and functions: (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests
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involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Importance of classifying the powers: because procedure/ remedies are different depending on whether it exercises adjucatory or administrative powers o Bayan vs. Comelec: requirement that decisions, ruling and final orders of comelec involving elective officials are required first to go through various stages, plus the requirement that must go through comelec in division before proceeding en banc (see Sec. 3, Art. 9-C of the 1987 Constitution) pertains only to powers exercised by comelec in its quasi-judicial powers

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polling places, appointment of election officials and inspectors, and registration of voters. Taule vs. Santos: Comelecs power to enforce laws relative to the conduct of election, refers to popular election (local (including barangay) and national elections)

Does not apply to the election of the Federation of Associations of Barangay Councils (as in this case) or SK officials, so comelec does not have jurisdiction Election of SK officials fall under the DILG

Other examples of this power to enforce and administer laws: o Power of comelec to look into issues regarding the determination of location of polling places, appointment of official and inspectors registration of voters

Note: constitutional prohibition that the right to vote is not part of comelec power --- no law can ever be passed transferring the inclusion or exclusion cases from the courts to comelec o Constitutional mandate that the right to vote is excluded from comelec powers because the disposition pertaining to rights is inherently judicial Thus, tegistration of voters, annulment of list of voters belongs to comelec bu the determination of whether a person has the right to vote is with the MTC

Taule v Santos The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. Administrative Powers c.1 Enforce election laws (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. c.2 Decide administrative questions pertaining to elections, except the right to vote [Art 9, C, Sec 2(3)] (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of

c.3. Petition for inclusion or exclusion of voters [Art 9, C, Sec 2(6)] upon a verified complaint or on its own initiative, file petitions in court for the inclusion and exclusion of voters c.4. Prosecute election law violators [Art 9, C, Sec 2(6)]; BP 881, Sec 265; E.O. 134 Sec 11 investigate and prosecute (where appropriate) cases of violation of election laws including acts or omissions constituting election frauds, offenses and malpractices Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. Sec. 11. Prosecution. The Commission shall, through its duly authorized legal officers, have
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exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act in any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper Investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government. De Jesus vs People COMELEC and not SB has jurisdiction to try election offices committed by public officer in relation to his office The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

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serious peril the integrity of the COMELEC, which filed the said case for vote-buying. If the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the COMELEC. People vs Basilla We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government (Section 2, Article IX-C of the 1987 Constitution; Executive Order No. 134). The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure free, honest, orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen, lacks substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched and niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precincts. Without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tanto subject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions e.g., suspension or removal - may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed
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Comelec vs Tagle It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. 11 The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC. In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the votebuying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the "vote-buyers" and put in

Election Laws Reviewer 2011


by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located. People vs Inting Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation. People vs Delgado Issue: authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and prosecution of election offenses filed in said court is the center of controversy of this petition. Aside from the adjudicatory or quasijudicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. The COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court. The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may rely on the

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resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest. Nevertheless the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest. The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable. what is contemplated by the term 'final orders, rulings and decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election contests or administrative questions brought before it are subject to judicial review only by this Court.

c.5. Recommend pardon, amnesty, parole, or suspension of sentence of election law violators [Art 9, C, Sec 5] favorable recommendation from the comelec to the President is required c.6. Deputize law enforcement agents and recommend their removal for violation of its orders [Art 9, C, Sec 2(4&8)] deputize with the concurrence of the president o law enforcement agencies and instrumentalities of the government o including AFP o for free, orderly, honest, peaceful and credible elections recommend to president the removal of any officer or employee it has deputized o imposition of any other disciplinary action for violation or disregard of or disobedience to its directive, order or decision c.7. Registration of political parties, organizations and coalitions and accreditation of citizens arms [Art 9, C, Sec 2(5); Sec 6,7,8; Art 6, Sec 5(2)] register after sufficient publication present their platform or program of government religious denominations and sects shall not be registered refuse registration to those o which seek to achieve goals through violence and unlawful means or o refuse to uphold and adhere to the constitution or
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which are supported by any foreign government cancel registration when accept financial contribution from foreign governments and their agencies free and open party system according to the free choice of the people for votes to be valid, the political party, organization or coalition shall be registered political parties, organizations or coalitions shall be entitled to appoint poll watchers in accordance with law but they shall not be represented in the voters registration BEI, BOC or other similar bodies party list representatives shall constitute 20% of the total number of representatives including those under the party list for 3 consecutive terms, of the seats allocated to party list representatives shall be filled from the labor, peasant, youth, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law except the religious sector o

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According to the Court, Section 5.4 was invalid because of three reasons: o (1) it imposed a prior restraint on the freedom of expression, o (2) it was a direct and total suppression of a category of expression even though such suppression was only for a limited period, and o (3) the governmental interest sought to be promoted could be achieved by means other than the suppression of freedom of expression.

c.9. Rule-making [Art 9, A, Sec 6] commission en banc may promulgate own rules concerning pleadings and practice before it or before any of its offices such rules shall not diminish, increase or modify substantive rights Aruelo vs CA Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art. VIII, Sec. 5 [5]). Petitioner filed the election protest (Civil Case No. 343-M-92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. c.10. Adjudicatory [Art 9, C, Sec 2(2)]; 3 exclusive jurisdiction over all contests relating to elections, returns and qualifications of all elective regional, provincial and city officials appellate jurisdiction over all contests involving elective municipal officials decided by RTC or involving elective barangay officials decided by MTCs decide except the right to vote all questions affecting elections (c.2.) comelec may sit en banc or in 2 divisions and shall promulgate its rules of procedure in order to expedite disposition of election cases including preproclamation controversies all such election cases shall be heard and decided in division motions for reconsideration of decisions shall be decided by the commission en banc Javier vs Comelec In making the Commission on Elections the sole judge of all contests involving the election,
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Bagong Bayani vs Comelec Give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. c.8 Regulation of public utilities and media of information [Art 9, C, Sec 4; Sec 9] supervise/ regulate franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concessions granted by the government or any subdivision, agency, or instrumentality thereof NPC vs Comelec The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." o Limited in the duration of its applicability and enforceability o Limited in the scope of application o Exempt from prohibition the purchase or donation to the Comelec The limitation bears a clear and reasonable connection with constitutional objective

SWS vs Comelec

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returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners The COMELEC en banc must hear and resolve a pre-proclamation controversy for Batasan members Canicosa vs Comelec Petition should have first been heard by a division of COMELEC and later by the COMELEC en banc upon motion for reconsideration; provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. It is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. The COMELEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. Its power of direct supervision and control includes the power to review, modify or set aside any act of such national and local officials. It exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required pursuant to law. Lazatin vs Comelec Petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. Lazatin vs HRET The Constitution vests exclusive jurisdiction over all contests relating to the election, returns and qualifications of the Members of the

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Senate and the House of Representatives in the respective Electoral Tribunals [Art. VI, Sec. 17]. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to election contests pertaining to elective regional, provincial and city offices and its appellate jurisdiction to those involving municipal and barangay offices [Art. IXC, Sec. 2(2)]. The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rulemaking power necessarily flows from the general power granted it by the Constitution. Each electoral tribunal o 9 members 3 justice of SC to be designated by chief justice 6 members of the senate/ HR chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein Chairman will be the senior justice in the electoral tribunal so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and "excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same. the Court declared that "[t]he judgment rendered by the Electoral] Commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." Under the 1987 Constitution, the scope of the Court's authority is made explicit. The power granted to the Court includes the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government" [Art. VIII, Sec. 1]. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no grave abuse of discretion
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that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed for has been clearly shown. Roces vs HRET The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives 38 and has the power to promulgate procedural rules to govern proceedings brought before it. 39 This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it. 40 Accordingly, it has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. 41 One of the three essential elements of jurisdiction is that proper parties must be present. 42 Consequently, the HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. There is no dispute that to support his motion to dismiss, Roces offered as evidence the COMELEC resolutions denying due course to Mrs. Ang Ping's COC. In doing so, Roces submitted to the HRET the admissibility and validity of these resolutions and the HRET cannot be faulted in reviewing the said resolutions especially for the purpose of determining whether Roces was able to discharge his burden of proving that Mrs. Ang Ping is not the proper party to assail his election. In passing upon the COMELEC resolutions especially for that purpose, it cannot be said that the HRET usurped the jurisdiction of the COMELEC. We hold that the HRET did not abuse its discretion in holding that Mrs. Ang Ping is a proper party to contest the election of Roces. The COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Ping's name from the Certified List of Candidates and denied the spouses Ang Ping's motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for reconsideration of the preceding order on May 10, 2004 within the five-day reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission. That motions for reconsideration of the COMELEC division's decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof.

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It is true that generally, the method of assailing a judgment or order of the COMELEC is via petition for certiorari. Mendoza vs Comelec issue with the COMELEC's appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control In this case, the COMELEC has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal separate and independent from the COMELEC and over which the COMELEC exercises no authority or jurisdiction. For the COMELEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers. COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer election laws), 11 quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). The COMELEC's adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature; 12 it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment. 13 Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense; 14 hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events
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such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of jurisdiction. Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other. Incidentally, the COMELEC authority to promulgate the above rule enjoys constitutional moorings; in the grant to the COMELEC of its jurisdiction, the Constitution provided it with the accompanying authority to promulgate its own rules concerning pleadings and practice before it or before any of its offices, provided that these rules shall not diminish, increase or modify substantive rights. 28 The Constitution additionally requires that the rules of procedure that the COMELEC will promulgate must expedite the disposition of election cases, including pre-proclamation controversies. 29 This constitutional standard is authority, no less, that the COMELEC can cite in defending its action. For ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook side by side with the SET's own revision of ballots, constitutes an exercise of discretion made under the authority of the above-cited COMELEC rule of procedure.

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the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

c.11. Review of decisions [Art 9, C, Sec 2(2)]; Art 9, A, Sec 7] appellate jurisdiction over all contests involving elective municipal officials decided by RTC or involving elective barangay officials decided by MTCs decisions, final orders or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable shall decide by a majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution deemed submitted for decision or resolution upon fling of the last pleading, brief or memorandum any decision or ruling may be brought to the SC on certiorari w/in 30 days from receipt of a copy thereof Flores vs Comelec the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra.

Garces vs CA This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the COMELEC's resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., must pertain to an election dispute. the settled rule is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7, Art. IX-A are those relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers involving "elective regional, provincial and city officials". In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. D. Fiscal Autonomy (Art 9, A, Sec 5) enjoy fiscal autonomy approved annual appropriations shall be automatically and regularly released IV. Fundamental Principle A. Peoples choice as consideration; 2nd placer rule fundamental

Geronimo vs Ramos it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
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Election Laws Reviewer 2011


constituency, the majority of which have positively declared through their ballots that they do not choose him. Labo vs Comelec he obtained only the second highest number of votes in the election, he was obviously not the choice of the people The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. Topacio v. Paredes (23 Phil. 238) "Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. . . . If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. . . ."

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who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who have obtained a plurality of votes and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected,

Domino vs Ocampo Thus, the votes cast for Domino were presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes cannot be treated as stray, void, or meaningless. It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate

Ocampo vs Crespo there must be final judgment before the election for the votes of a disqualified candidate to be considered stray hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray to do so would amount to disenfranchising the electorate in whom sovereignty resides
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Election Laws Reviewer 2011


rationale: the people voted for him bona fide without any intention to misapply their franchise and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of the government Subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the candidate who garnered the second highest number of votes to be declared the winner In Geronimo vs. Ramos, 18 if the winning candidate is not qualified and cannot qualify for the office to which he was elected, a permanent vacancy is thus created. The second placer is just that, a second placer he lost in the elections, he was repudiated by either the majority or plurality of voters. He could not be proclaimed winner as he could not be considered the first among the qualified candidates. To rule otherwise is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind voters' preferences. Part II LAWS ON PUBLIC OFFICERS I. INTRODUCTORY CONCEPTS public officer one who holds a public office Art 11, 1987 Constitution Sec 2b, RA 3019 Public officer includes A. PUBLIC OFFICE AND PUBLIC OFFICERS

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Concerned Citizens of Laoag City vs Arzaga being notoriously undesirable A court employee being a public servant must exhibit the highest sense of honesty and integrity not only in the performance of his duties but also in his personal and private dealings with other people to preserve the court's name and standing. Therefore, it becomes imperative and sacred duty of each and everyone in the court to maintain its good name and standing as a true temple of justice." (Paredes vs. Padua, 222 SCRA 81). The conduct and behavior of everyone connected with the office charged with the dispensation of justice from the presiding judge to the lowliest clerk should be circumscribed with the heavy burden of responsibility. Public service requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his official duties but in his personal and private dealings with other people. No less than the Constitution sanctifies the principle that a public office is a public trust, and enjoins all public officers and employees to serve with the highest degree of responsibility, integrity, loyalty, and efficiency. In addition, the Code of Conduct and Ethical Standards for Public Officials and Employees provide that every public servant shall at all times uphold public interest over his or her personal interest. By his acts and misdeeds, respondent has undermined the public's faith in our courts and, ultimately, in the administration of justice. The same make him unfit as a court employee. His employment must therefore be terminated at once Court personnel must adhere to the high ethical standards of public service in order to preserve the Court's good name and standing. Time and again, this Court has emphasized that the conduct required of court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and must be circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the judiciary.

elective and appointive officials and employees, permanent or temporary whether in the classified, unclassified or exempt service [ now career and noncarrier] receiving compensation, nominal from the government even

Art. 203, RPC Public officer is any person who by direct provision of law, popular election or appointment by competent authority shall take part in the performance of public functions in the government of the Phils. or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official of any rank or class

Fernandez vs Sto Tomas

public office the right, authority or duty


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- created and conferred by law - by which for a given period, either fixed by law or enduring at the pleasure of the creating power - an individual is invested with some portion of the sovereign functions of government - to be exercised by him for the benefit of the public Elements of a public officer 1. Must be treated by law or authority of law 2. It must possess a delegation of a portion of the sovereign powers of the government to be exercised for the benefit of the public 3. The powers conferred and the duties to be discharged must be defined, directly, or impliedly by the legislature or through legislative authority 4. The duties must be performed independently and without control of a superior power other than the law unless they be those of an inferior or subordinate office created or authorized by the legislature and placed by it under the general control of superior office or body 5. It must have some permanence and continuity and be only temporary or occasional Characteristics 1. It is not a party and cannot be subject of a contract 2. It is not a hereditable possession 3. It is personal to the holder We consider that Resolution No. 94-3710 has not abolished any public office as that term is used in the law of public officers. It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the Commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," "as the need [for such changes] arises."

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Assuming, for purposes of argument merely, that legislative authority was necessary to carry out the kinds of changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code which required the Civil Service Commission o Appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. ELEMENTS:

1. created by law or by authority of law 2. possess a delegation of a portion of the sovereign powers of government, public to be exercised for the benefit of the

3. powers conferred and duties imposed must be defined, directly or impliedly, by the legislature or by authority legislative

4. duties must be performed independently and without the control of a superior power other than the law Unless they be those of an inferior or subordinate office created or authorized by the legislature And by it placed under the general control of a superior office or body 5. must have permanence or continuity Creation

1. constitution (office of the president) 2. valid statutory enactments ( office of the insurance commissioner) 3. by authority of law (david commission) Laurel vs Desierto

salary is not a necessary element of public office the element of continuity cannot be considered as indispensable for public office Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not
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the most important characteristic which distinguishes an office from an employment is that the creation and conferring of an office involves delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public and that the some portion sovereignty of the country of the

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by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer."

either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit thus, unless the powers so conferred are of this nature, the individual is not a public officer The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. NCC performs executive functions; created by an Executive order; Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. 24 But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed

At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, whether the office expires as soon as the one act is done, or is to be held for years or during good behavior." Our conclusion that petitioner is a public officer finds support in In Re Corliss. 26 There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not restrictive. 28 The AntiGraft and Corrupt Practices Act is just one of several laws that define "public officers."

Segovia vs Noel

Though there is no vested right to an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated. Public office cannot be regarded as the property of the incumbent. A public office is not a contract. Ordinarily, a public official should not be removed from office without notice, charges, a trial, and an opportunity for explanation. ITC: we are dealing with an administrative proceeding and not with a judicial proceeding Due process of law is not necessarily judicial process; much of the process by means of which the Government is carried on, and the order of society maintained, is purely executive or administrative, which is as much due process of law, as is judicial process. While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise since they rest upon different principles.
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Cornejo vs Gabriel

Election Laws Reviewer 2011


In certain proceedings of an administrative character, the right to a notice and hearing are not essential to due process of law. A public office is not property within the sense of the constitutional guaranties of due process of law but is a public trust or agency. For this petition to come under the due process of law prohibition, it would be necessary to consider an office as property. public offices are mere agencies or trusts, and not property Power to suspend temporarily may be exercised without notice to the person suspended. Notice and hearing are not prerequisites to the suspension of a public officer under a statute which does not provide for such notice and hearing. The basic idea of government in the Philippine Islands, as in the United States, is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents. "The suspension of an officer pending his trial for misconduct, so as to tie his hands for the time being, seems to be universally accepted as fair, and often necessary. . . . Notice and hearing are not prerequisites to suspension unless required by statute and therefore suspension without such notice does not deprive the officer of property without due process of law. Nor is a suspension wanting in due process of law or a denial of the equal protection of the laws because the evidence against the officer is not produced and he is not given an opportunity to confront his accusers and cross-examine the witnesses." "The safety of the state, which is the highest law, imperatively requires the suspension, pending his trial, of a public officer, especially a custodian of public funds, charged with malfeasance or nonfeasance in office. Suspension does not remove the officer, but merely prevents him, for the time being, from performing the functions of his office; and from the very necessities of the case must precede a trial or hearing. Such temporary suspension without previous hearing is fully in accordance with the analogies of the law. It is a constitutional principle that no person shall be deprived of his liberty or property except by due process of law, which includes notice and a hearing, yet it was never claimed that in criminal procedure a person could not be arrested and deprived of his liberty until a trial could reasonably be had, or that in civil actions ex parte and temporary injunctions

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might not be issued and retained in proper cases, until a trial could be had, and the rights of the parties determined. We have no doubt, therefore, of the authority of the legislature to vest the governor with power to temporarily suspend a county treasurer pending the investigation of the charges against him, of official misconduct." 'The duty of suspension was imposed upon the Governor from the highest motives of public policy to prevent the danger to the public interests which might arise from leaving such great powers and responsibilities in the hands of men legally disqualified. To leave them in full charge of their office until the next biennial session of the legislature, or pending litigation which might be continued for years, would destroy the very object of the law. We also find as erroneous the substitution of the deceased Rosauro Radovan's widow, Ediltrudes Radovan, on the ground that private respondent had a counter-claim for damages. "Public office is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848 [1968]; De la Victoria vs. Comelec, 199 SCRA 561 [1991]). The heirs may no longer prosecute the deceased protestee's counterclaim for damages against the protestant for that was extinguished when death terminated his right to occupy the contested office (Dela Victoria, supra).

Abeja vs Tanada

B. KINDS OF PUBLIC OFFICERS DE JURE By right; by right in law validly appointed an officer who exercises the duties of an office for which the holder has fulfilled all the qualifications DE FACTO BLACKs

An officer who exercises the duties of an office under the color of an appointment or election but who has failed to qualify for office for any one of various reasons as by being under the required age, having failed to take oath having not furnished a required bond or having taken office under a statute later declared unconstitutional
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[d]

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In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular. In Monroy vs. Court of Appeals, this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary, this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus: ". . . in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office." In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. ITC: This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full
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w/o appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people w/o injury to submit or invoke his action supposing him to be an officer officer not eligible want of power appointing body in election or

one acting under color of right and with apparent authority but who is not legally a corporate officer the corporation is bound by all acts and contracts of an officer de facto in the same way as it is with those if de jure officer

[d] one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular may have reputation of being an officer he assumes to be but is not a good office in the point of law appointment is valid on its face one who continues in the exercise of the functions and duties of the office without legal authority or after his term or title has ended one who performs the functions of the officer in good faith and under color of right to the position involved policy and purpose o protection of the public and individuals insofar as they become involved in the official acts of person discharging the duties of an office without being lawful officers

Sampayan vs Daza ITC, congressman was a greencard holder and did not renounce his status as a permanent resident of US Appropriate remedy was to cancel COC or quo warranto But term already expired

As de facto officers, he cannot be made to reimburse the funds disbursed during his term of office because his acts were valid as those of a de jure officer. As de facto officer, he is entitled to emoluments for actual services rendered.

General Manager vs Monserate

Election Laws Reviewer 2011


backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

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An official BEGINS TO GOVERN ONLY UPON HIS PROCLAMATION AND ON THE DAY THAT HIS TERM BEGINS LGC speaks of qualifications of elective officials and not of candidates Loss of any qualifications during incumbency will be a ground for termination Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; able to read and write Filipino or any other local language or dialect." In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day." From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. ITC: Since Frivaldo re-assumed his citizenship on June 30, 1995 the very day the term of office of governor (and other elective officials) began he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose
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C. WHO MAY BE PUBLIC OFFICERS: ELIGIBILITY AND QUALIFICATIONS Qualification: 1. may refer to endowments, qualities or attributes which make an individual eligible for public office (e.g. citizenship) 2. may refer to the act of entering into the performance of the functions of public office (e.g. taking the oath of office) C.1. WHO MAY PRESCRIBE QUALIFICATIONS

When the qualifications are prescribed by the Constitution, they are generally exclusive, except where the constitution itself provides otherwise Relative to public offices created by statute, Congress has virtually plenary powers to prescribe qualifications, provided that

o the qualifications are germane to


the objective/s for which the public office was created AND

o the qualifications are not too


specific as to fit a particular, identifiable person because that would deprive the appointing authority of discretion in the selection of the appointee C.2. TIME QUAIFICATIONS OF POSSESSION OF

Must possess the qualifications AT THE TIME OF APPOINTMENT or ELECTION AND CONTINUOUSLY for as long as the official relationship continues

Frivaldo vs Comelec LGC does not specify the date when the candidate must possess Filipino citizenship Philippine citizenship is required in order to ensure that no alien shall govern our people

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for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction,

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seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration not the actual voting is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else. Before this Court, Frivaldo has repeatedly emphasized and Lee has not disputed that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judiciallydeclared" alienage. Hence, at such time, he was no longer ineligible. But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994. (curative/ remedial in nature; when create new rights) Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his
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it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter much less a validly registered one if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he

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citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held: "Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands." In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected o

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Same qualifications and term of office and be elected with and in the same manner as the president May be removed from office in the same manner as the president May be appointed as a member of the cabinet and such appointment requires no confirmation

o o

Art 9, B, C, Sec 1(1) Civil Service Commission o o o o o Chairman and 2 commissioners Natural born Philippines citizens of the

At least 35 years of age 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 Appointed by the president with the consent of the commission on appointments Term of 7 years w/o reappointment Chairman 7 years, a commissioner for 5 years and another for 3 years No member shall be appointed/ designated in a temporary or acting capacity

C.3. USUAL QUALIFICATIONS Art. 6, Sec 2 & 6 Senate o 24 senators elected at large by qualified voters of the Philippines as may be provided by law

House of Representatives o o o o Natural born Philippines citizen of the o o o

At least 25 years of age on the day of election Able to read and write Except the party list representatives, a registered voter in the district in which he shall be elected Resident thereof for a period of not less than one year immediately preceding the day of the election

COMELEC o o o o Chairman and 6 commissioners Natural born Philippines citizens of the

Art. 7, Sec 2,3 President o o o o o Natural born Philippines Registered voter Able to read and write At least 40 years of age on the day of election A resident of the Philippines for at least ten years immediately preceding such election citizen of the

At least 35 years of age at the time of their appointment Holders of a college degree Must not have been candidates for any elective position in the immediately preceding elections A majority including the chairman shall be members of the Philippine bar who have been engaged in the practice of law for at least 10 years Appointed by the president with the consent of the commission on appointments

Sec 22, Book V, E.0. 292 Vice president Art 3, Sec 5


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No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof Free exercise and enjoyment of religious profession and worship w/o discrimination or preference shall forever be allowed No religious test shall be required for the exercise of civil or political rights

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public office and that the people could validly vote for him; property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned

Maquera vs Borra Property qualifications may not be imposed for the exercise of the right to run for public office The law is declared unconstitutional for requiring each candidate to post a bond of P20,000 upon the filing of COC, subject to forfeiture if he did not obtain at least 10% of the total votes cast in the constituency where he ran Republic Act NO. 4421 requires a candidate to post a surety bond equivalent to one-year salary of the position to which he is a candidate, which bond shall be forfeited in favor of the government, if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office, there being not more than four candidates for the same office. The effect of said Republic Act No. 4421 is to impose property qualifications in order that a person could run for a public office, which property qualifications are inconsistent with the nature and essence of the Republican system ordained in the Constitution and the principle of social justice underlying the same. Consequently, Republic Act No. 4421 is unconstitutional and hence null and void. That the effect of said Republic Act No. 4421:

SJS vs Dangerous Drugs

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36 (g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. Sec. 36 (g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36 (g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test". Viewed, therefore, in its proper context, Sec. 36 (g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one
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o to prevent or disqualify from


running for President, VicePresident, Senator or Member of the House of Representatives those persons who, although having the qualifications prescribed by the Constitution therefor, cannot file the surety bond aforementioned, owing to failure to pay the premium charged by the bonding company and/or lack of the property necessary for said counterbond; o disqualifying for provincial, city or municipal elective offices, persons who, although possessing the qualifications prescribed by law therefor, cannot pay said premium and/or do not have the property essential for the aforementioned counter-bond; imposing property qualifications in order that a person could run for a

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aspiring to run for and serve as senator. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.

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No senator or member of the HR may hold any other office or employment in the government or any subdivision or agency or instrumentality thereof, including GOCCs or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the tern for which he was elected. No member of the constitutional commission shall during his tenure hold any other office or employment ( sec 2, art 9a) The same disqualification applies to ombudsman and his deputies ( sec 8, art 11) The ombudsman and his deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office (sec 11, art 11) Members of the constitutional commissions, the ombudsman and his deputies must not have been candidates for any elective position in the elections immediately preceding their appointment (sec 1, art 9b, sec 1 art 9c, sec 1 art pd, sec 8 art 11) Member s of the constitutional commission, the ombudsman and his deputies are appointed for a term of 7 years without reappointment The spouse and relatives by consanguinity or affinity within the 4th civil degree of the president shall not during his tenure be appointed as members of the constitutional commissions or the office of the ombudsman, or as secretaries, undersecretaries, chairmen or heads of bureaus or offices, including GOCCs. (sec 13, art 7)

C.4. DISQUALIFICATIONS c.4.1 under the constitution No candidate who lost in the election shall, w/in 1 year after such election be appointed to any office in the government (sec 6, art 9b) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure ( sec 7(1), art 9b) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other position in government (sec 7(2), art 9b) o Like when another office is held by a public officer in an ex officio capacity as provided by law and as required by the primary functions of his office because such other office does not comprise any other position The ex officio position is actually and in legal contemplation part of the principal office

c.4.2 under local government code c.4.3 other laws Provided that disqualifications do constitution o the not prescribed violate the

Law declared unconstitutional for being contrary to the constitutional presumption of innocence: when laws said the filing of a criminal information for disloyalty was a prima facie proof of guilt (dumlao vs comelec)

The president, VP, members of the cabinet ad their deputies or assistants shall not, unless otherwise provided in the constitution hold any other office or employment during his tenure (sec 13, art 7)

c.5. Effect of pardon Pardon is forgiveness and not forgetfulness hence it will not bring restoration to the civil and political rights of the person being pardon. Civil and political rights can only be restored when it is expressly stated in the pardon or when the pardon states that the
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person did not do the crime. ( sounds absurd, being pardon even though you did not commit the crime)... Italics supplied.. Art. 36, RPC - A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. MONSANTO V. FACTORAN ISSUE: w/n a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26 The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

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d.1 By election Selection and designation by a popular vote. - A mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through the selection by them of the functionaries who will represent them therein. d.2 By appointment- the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. CENTRAL BANK OF THE PHILS. V. CIVIL SERVICE COMMISSION It is well-settled principle that the appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions. This is a management prerogative which is generally unhampered by judicial intervention. Within the parameters of this principle, the right to select and appoint employees is the prerogative of the employer which may be exercised without being held liable therefore provided that the exercise thereof is in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements and provided further that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. It must be stressed that the law does not impose a rigid or mechanical standard on the appointing power. The appointing person enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and to assume the responsibilities of the position to be filled. As earlier ruled in Reyes vs. Abeleda, at least sufficient discretion, if not plenary, should be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the position to determine who can best fulfill the functions of the office thus vacated. Unless the law speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority. The power of appointment is essentially a political question involving considerations of wisdom which only the appointing authority can decide. d.2.1 Appointment designation SANTIAGO V. COA Strictly speaking, there is an accepted legal distinction between appointment and designation. While appointment is the selection by the proper authority of an individual who is to exercise the functions of a given office, designation, on the other hand, designation connotes merely the imposition of additional duties, usually by law,
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distinguished

from

d. Formation of Relations

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upon a person already in the public service by virtue of an earlier appointment (or election). Thus, the appointed Secretary of Trade and Industry is, by statutory designation, a member of the National Economic and Development Authority. A person may also be designated in an acting capacity, as when he is called upon to fill a vacancy pending the selection of a permanent appointee thereto or, more usually, the return of the regular incumbent. In the absence of the permanent Secretary for example, an undersecretary is designated acting head of the department. SEVILLA V. SANTOS There is a difference between an appointment an appointment and a designation. Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election (Santiago vs. Commission on Audit, 199 SCRA 125; Political Law Review by Gonzales, pp. 184-185). A mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. d.3 Next-in-rank rule SANTIAGO JR. V. CIVIL SERVICE COMMISSION We need only recall our previous ruling in Taduran vs. Civil Service Commission (L-52051, 31 July 1984, 131 SCRA 66) stating that there is "no mandatory nor peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment." One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. d. 4. Discretion of Appointing authority LAPINID V. CSC The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service

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Commission cannot substitute its judgment for that of the Head of Office in this regard. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointeetaking into account the totality of his qualifications, including those abstract qualities that define his personalityis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. LUEGOV. CSC The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary. The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. e. Assumption & Term of office BORROMEO V. MARIANO Appointment is the sole act of those vested with the power to make it. Acceptance is the sole act of the appointee. Persons may be chosen for office at pleasure; there is no power in these Islands which can compel a man to accept the office. (22 R. C. L. 423.) If, therefore, anyone could refuse appointment as a judge of first instance to a particular district, when once appointment to this district is accepted, he has exactly the same right to refuse an appointment to another district. No other person could be placed in the position of this Judge of First Instance since another rule of public officers is, that an appointment may not be made to an office which is not vacant. (29 Cyc., 1373.) In our judgment, the language of the proviso to section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another
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district against his will, thereby removing him from his district. "When the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled: it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated, in all cases where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it." The great jurist further or observed that "It is, emphatically, the province and duty of the judicial department, to say what the law is" e.1. Doctrine of Hold over Hold-over a public officers term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and had qualified. A public officer Rationale; public interest; prevent hiatus in public service. Rules: When law provides for it, incumbent will hold-over even beyond the term fixed by law until successor is chosen or appointed. Is officer de jure or de facto during period of holdover? Answer: De jure. -When you have been given a term of office, is it possible to stay longer than the period stated or given to you? Based on the doctrine of hold over, it says that a public officer whos term has expired or his services has already been terminated, may be allowed to continue holding the office or the post until his successor has been chosen or appointed. o Purpose or why this principle: to prevent hiatus in public service. Just imagine having an office without having an occupant discharging the functions of that office. o How do you know you are allowed to extend? The rules are that if the law provides for a hold-over, then you may hold over even beyond the term fixed by law. But it is not always the case that you have a law that expressly states such. o There may be a law that is totally silent on whether you can continue holding the post even after the term has expired. The rule here is you can hold over unless there is expressly or implied prohibition. o Express prohibition: shall be holding this office for 6 years and not a minute longer. o Implied prohibition: when the law is silent: o When you have a term that is fixed when hold over is impliedly prohibited, like the president.

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o If hold-over is allowed, what are you? You are a de jure officer in the period you held such office during the period of hold-over. o It matters because you will not be asked to reimburse, your actuations will be considered valid. f. Code of Conduct: RA 6713 * Code of Conduct that public officials and employees are required to observe: o Commitment to public interest, professionalism, justness and sincerity, political neutrality, responsiveness to the public, nationalism, patriotism, commitment to democracy and simple living. They are required to observe this by law.

II. POWERS, DUTIES, PRIVILEGES AND PROHIBITIONS Two things that would stand out in Lo Cham case: 1. Germane 2. Essential Lo Cham from being head of medico department to assist prosecutor in signing information accused said it is not valid, he is asked to assist prosecution but SC said the power to sign is inherent or essential to the performance to assisting the prosecutor. It is necessary implied from the express function of assisting the prosecutor. What if authority granted is only to issue subpoena. Can you cite in contempt? No. this power to cite a person in contempt is inherently judicial/coercive. Inherently judicial but still exercisable by other agencies. Not exclusive to courts also exercised by legislative bodies. Citing in person in contempt is germane and essential. One expressly authorize subpoena, no express cite person in contempt a. Authority of Public Officers consist of those powers which are: 1. Expressly conferred upon him by the act appointing him 2. Expressly annexed to the office by law 3. Attached to the office by common law as incidents to it b. Doctrine of Necessary Implication All powers necessary for the effective exercise of the express powers are deemed impliedly granted. c. Kinds of Authority: Ministerial vs Discretionary Ministerial: one the discharge of which by the officer concerned is imperative and required neither judgment nor discretion. The exercise of which may be compelled. Ex. Sheriffs role to execute judgment.
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Discretionary: one imposed by law upon a public officer wherein the officer has a right to decied how and when the duty shall be performed. Mandamus will not lie to compel the performance of a discretionary power. When function is discretionary, mandamus will not lie except in cases when there is grave abuse of discretion in which case mandamus lie. Why do you think? That if there is grave abuse of discretion, mandamus will lie? Lo Cham vs Ocampo The reason is that the power to sign informations, make investigations and conduct prosecutions is inherent in the power "to assist" a prosecuting attorney, as these words are used in the Administrative Code. It does not emanate from the powers of the Attorney General or Solicitor General conferred upon the officer designated by the Secretary of Justice; it is ingrained in the office or designation itself. The powers of the Solicitor General bestowed on the appointee to assist the fiscal must be held as cumulative or an addition to the authority to sign informations, which is inherent in his appointment. In other words, the clause "with the same authority therein as might be exercised by the Attorney General or Solicitor General" does not exclude the latter authority. The former practice of the Attorney General to which we have alluded portrays a distinction between and separation of the powers or sets of powers. The power of the Attorney General to sign informations, as we have pointed out, owed its being, not to the powers legitimately pertaining to his office as Attorney General but to the special provision authorizing him to assist fiscals. And it may be pertinent to know that when the Attorney General's power to assist provincial fiscals ceased, he stopped signing informations. The phraseology of section 17 of Act No. 867 before cited also affords an illustration of the idea that the authority to assist is separate and apart from the general powers of the Attorney General. In the language of this section, the person appointed was (1) to assist the fiscal in the discharge of his duties and (2) to represent the Attorney General in such matters. If the two phrases meant the same thing, then one of them would be superfluous. There is no apparent reason for holding that one or the other was a surplusage. Laws must receive sensible interpretation to promote the ends for which they were enacted. The duties of a public office include all those which truly lie within its scope, those which are essential to the accomplishment of the main purpose for which the office was created and those which, although incidental and collateral, are germane to, and serve to promote the accomplishment of the principal purposes. (43 American Jurisprudence, 68, 70.) The authority to sign informations, make investigations and conduct prosecutions is within the inferences to be gathered from the circumstances which prompted the passage of section 4 of Commonwealth Act No. 144 and its predecessors. can you say that the power to cite in contempt is incidental? The power that you can deemed implied is the power that is not higher than is

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expressly given. The power thats not expressly given must be lesser in scope and strength than that expressly given. To cite in contempt, in the absence for express provision, you go to court. Citing in contempt - Its not just something incidental and its a higher power than the power to issue subpoena. KINDS OF AUTHORITY: a. Express authority or Implied authority b. Ministerial of Discretionary First Phil Holdings vs Sandiganbayan As provided under Rule 12, Sec. 2 (b), intervention shall be allowed "in the exercise of discretion" by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is "gross abuse of discretion, manifest injustice or palpable excess of authority" equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue. Although, as averred by respondents, the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or the other, "yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice or palpable excess of authority. In Antiquera vs. Baluyot, et al. 21, such exceptions were allowed, "because the discretion must be exercised under the law, and not contrary to law. Law protects exercise of discretion. d. Rights and Privileges d.1 Right to Office Term: period during which the officer may claim to hold the office as of right while Tenure us the period which the officer actually holds office. d.2 Right to Salary Salary is the personal compensation to be paid to the public office his services and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the services he may render. Basis: legal title to the office and the fact that the law attaches compensation to the office. Art.IV SEC.10 1987 Constitution: Salaries of Senators and Members of HR a. Determined by law b. No increase until after expiration of full term ART.VII SEC.6 1987 Constitution: Salaries of Pres and VP a. Determined by law b. Shall not be decreased during tenure c. No increase until after expiration of term
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d. Not receive any other emolument from gov. or any other source ART.VIII SEC.10 1987 Constitution: Salaries of Chief Justice and Asso. Justice, lower courts a. Fixed by law b. During continuance decreased of office, not be

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b.3 malfeasance the doing through ignorance, inattention or malice of an act which he had no legal right to perform. Three Fold Liability Rule the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability.

c.

ART.IX-B SEC.8 1987 Constitution No elective or appointive public office or employee shall receive additional, double or indirect compensation unless specifically authorized by law, nor accept without consent of Congress, any present, emolument, office or title of any kind from any foreign government. Pension or gratuities shall not be considered as additional, double or indirect compensation. d.3 Presidential Immunity from Suit Immunity from civil damages cover only official acts. This privilege us enjoyed only during tenure. After tenure, he cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. She may not be prevented from initiating suit. d.4 Doctrine of Official Immunity see transcriptions d.5 Preference in Promotion d.6 Leave of Absence d.7 Retirement Pay e. Prohibitions (Sec.5 (3),8 ART.IX-B 1987 Constitution) 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. Only active members, not those in the reserve force, are covered by prohibition. III. LIABILITIES OF PUBLIC OFFICERS a. Presumption of good faith and regularity in the performance of duties Sec.38 a public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or negligence Sec.39 no subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instruction of his superiors. b. Kinds of Liability b.1 nonfeasance neglect or refusal to perform an act which is the officers legal obligation to perform b.2 misfeasance failure to use that degree of care, skill and diligence required in the performance of official duty

SAN LUIS V CA - It is well-settled that when a public officer goes beyond the scope of his duty, particularly when acting tortiously, he is not entitled to protection on account of his office, but is liable for his acts like any private individual [Palma v. Graciano, 99 Phil. 72 (1956)]. Thus, in Mendoza v. De Leon [33 Phil. 508 (1916)], it was held: Nor are officers or agents of the Government charged with the performance of governmental duties which are in their nature legislative or quasi-judicial liable for the consequences of their official acts, unless it be shown that they act wilfully and maliciously and with the express purpose of inflicting injury upon the plaintiff. Accordingly, applying the principle that a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith, the Court holds that petitioner Felicisimo T. San Luis, the Provincial Governor of Laguna who has been sued both in his official and private capacities, must be held personally liable to Berroya for the consequences of his illegal and wrongful acts. Chavez vs Sandiganbayan - The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. Domingo vs Rayala - Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others. This rule applies with full force to sexual harassment.

d. Liability of Superior Officers for Acts


of Subordinates a head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of suty, negligence or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of. Arias vs Sandiganbayan - We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those
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prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. IV. TERMINATION OF RELATIONS a. Modes of Termination in General 1. Expiration of Term or Tenure of Office End of a fixed term End of Pleasure where one holds office at pleasure of appointing authority Loss of confidence in primarily confidential employment 2. Reaching the age limit; Retirement 3. Bona fide abolition of office 4. Abandonment of office 5. Acceptance of an incompatible office 6. Resignation 7. Removal for cause 8. Temporary appointments termination 9. Recall 10. Impeachment 11. Prescription of right to office 12. Death 13. Conviction of crime where disqualification is an accessory penalty 14. Filing of certificate of candidacy 15. Performance of act or accomplishment of purpose for which the office was created 16. Failure to assume elective office within six months from proclamation b. End of Term 1. Term period of time during which a public officer has the right to hold office 2. Tenure period of time during which the public officer actually held office End of Fixed Term Upon the expiration of the officers term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must be ipso facto terminated. End of pleasure where one holds office at the pleasure of the appointing authority President can validly terminate tenure of Vice Mayor of Roxas City as the office was created at the pleasure of the President. What is involved here is

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not the question of removal, or whether legal cause should precede or not that of removal. What is involved here is the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President (Alba v. Evangelista). Fernandez v Ledesma The Charter of Basilan City provides that the President shall appoint and may remove at his discretion any of the citys officers, including its Chief of Police, with the exception of the municipal judge, who may be removed only according to law. The legislative intent is to make continuance in office dependent upon the pleasure of the President. Congress has the power to vest such power of appointment. Further, A public office is the right for a given period, either fixed by law or enduring at the pleasure of the creating power. Alba v. Evangelista states that the replacement is not removal, but an expiration of tenure, which is an ordinary mode of terminating official relations. What is involved is not removal, or whether legal cause should precede such removal, but the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President. Loss of Confidence Confidential Employment in Primarily

Hernandez v. Villegas Official and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case, their cessation from office involves no removal but merely the expiration of the term of office. c. Retirement a. Conditions for entitlement to retirement benefits (R.A. No. 8291) b. he has rendered at least fifteen (15) years of service; c. he is at least sixty (60) years of age at the time of retirement; and d. he is not receiving a monthly pension benefit from permanent total disability. e. Compulsory Retirement f. Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least 65 years of age with at least 15 years of service; Provided that if he has less than 15 years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. NOTE: different in Nachura Reviewer: Compulsory Retirement Age is 70 yrs for the members of the Judiciary and 65 yrs for
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other government officers and employees (Under New GSIS Charter) Beronilla v GSIS The compulsory retirement of government officials and employees upon reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose on them. d. Abolition of Office As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with the abolished office as an accessory following the principal. Busacay v. Buenaventura Busacay was laid off as toll collector when the bridge was destroyed. However, the bridge was later reconstructed and opened to the public with a new collector being appointed. Busacay was ordered reinstated by the SC. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. In the case at bar, there was never any thought of not rebuilding the bridge. The collapse of the bridge did not work to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-opening, the collectors right to the position was similarly and automatically restored. Manalang v. Quitoriano The National Employment Service was established by R.A. No. 761 in lieu of the Placement Bureau. Quitoriano was

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appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manalang who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. A removal implies that the office still exists. R.A. No. 761, creating NES, expressly abolished the Placement Bureau and, by implication, the office of the Director of the Placement Bureau. Had Congress intended the NES to be a mere enlargement of the Placement Bureau, it would have directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commissioner and thus could not have been removed therefrom. Abolition Must Be in Good Faith The abolition of an office does not amount to an illegal removal or separation of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law. Facundo v. Pabalan There is no law which expressly authorizes a municipal council to abolish the positions it has created. However, the rule is wellsettled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules providing otherwise. But the office must be abolished in good faith. The rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules expressly or impliedly providing otherwise . However, the office must be abolished in good faith; and if immediately after the office is abolished, another office is created with substantially the same duties, and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will intervene. Cruz v. Primicias As well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void. In the case at bar, while 22 positions were abolished, 28 new positions with higher salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon their pleasure and discretion. e. Reorganization
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This
occurs where there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to affect economy and make it more responsive to the needs of their public clientele. It may result in the loss of ones position through removal or abolition of office. Reorganization of the government may be required by law independently of specific constitutional authorization. But in order to be valid, it must also be done in good faith. Dario v. Mison A reorganization is carried out in good faith if it is for the purpose of economy or to make the bureaucracy more efficient. Good faith, as a component of reorganization under a constitutional regime, is judged from the facts of each case. In the case at bar, there was lack of good faith. Dela Llana v. Alba Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. The termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in the Supreme Court. Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. Section 2, Article VIII, 1987 Constitution The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. f. Abandonment A public office may become vacant ipso facto by abandonment and nonuser. When an office is once abandoned, the former incumbent

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cannot legally repossess it even by forcible re-occupancy. Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. The officer should manifest a clear intention to abandon the office and its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient.

Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an acting judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time. g. Incompatible Office He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule. And even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected. If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition. Incompatibility of offices exists where: There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated. The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there
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is no inconsistency in the nature and functions of the offices. Exceptions to the Rule on Holding of Incompatible Offices Where the officer cannot vacate the first office by his own act, upon the principle that he will not be permitted to thus do indirectly what he could not do directly, as where the law requires the approval of the provincial board before a municipal official can resign. First office is held under a different government from that which conferred the second. Officer is expressly authorized by law to accept another office. Second office is temporary. h. Resignation A resignation of a public officer need not be in any particular form, unless some form is prescribed by statute. Ordinarily, it may either be in writing or by parol. There must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until election and qualification of a successor. Conflicting Views: According to some authorities, no acceptance is necessary to render a resignation effective, especially when the resignation is unconditional and purports to take effect immediately. Many other cases take the view that to be effective, the resignation must be accepted by competent authority. Without acceptance, the resignation is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163) Two elements are necessary to constitute an effective acceptance: (1) intention to relinquish office coupled with actual relinquishment; and (2) acceptance of resignation. A courtesy resignation cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of a person to the will of the political authority. Courtesy resignation is not allowed in (1) career positions and (2) non-career positions with security of tenure (i.e. local elective officials). i. Removal 1. Protection from Removal without Cause No officer or employee of the civil service shall be removed or suspended except for cause provided by law (Sec. 2(3), Art. IX, 1987 Constitution). 2. Grounds for Removal from Office For Presidential appointees, there is no specific law providing for the grounds for their removal. Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable. For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which

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provides for at least 30 grounds for disciplinary action. For local elective officials, Sec. 60 of the Local Government Code provides for the grounds where an elective local official may be disciplined, suspended or removed from office. Misconduct need not be in office in case of appointive officers. Misconduct must be in office in case of elective officers. Misconduct committed during a prior term, not a ground for dismissal

3. Transfer from One Position to Another May or May Not Constitute Violation of Security of Tenure A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, he may appeal to the SC. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, however that any movement from the non-career service to the career service shall not be considered a transfer. The intended transfer to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from office in Negros. Since the transfer is considered a removal, such should be for cause in order for the other person to legally occupy the office in Negros. There was no cause for Lacsons removal. He therefore remains as fiscal of Negros (Lacson v. Romero). g. Others Recall The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987 Constitution) The procedure for recall is provided in Sections 69-75 of the Local Government Code. Prescription of Right to Office Unabia v. City Mayor Any person claiming a right to a position in the civil service is required to file his petition for
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reinstatement within one year, otherwise he is deemed to have abandoned his office. Reason is public policy and convenience, stability in the public service. The one-year period is the prescriptive period to claim public office (whether through quo warranto or otherwise). The one-year period presupposes judicial action, not administrative action. Failure to Assume Office Sec. 11, BP 881 provides: The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant , unless said failure is for cause or causes beyond his control. V. ADMINISTRATIVE DISCIPLINE a. Over Presidential Appointees a.1. Exceptions MACEDA V. VASQUEZ Issue: Whether the Office of the Ombudsman could entertain a criminal complaint for the alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it can, whether a referral should be made first to the Supreme Court. Ruling: In fine, where a criminal complaint against a Judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said Judge or court employee had acted within the scope of their administrative duties. The investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. The

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Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint DOLALAS V. OMBUDSMAN Issue: WON the Office of the Ombudsman may take cognizance of the complaint against petitioner for purposes of investigation and possible prosecution in accordance with its mandate under Section 13 (1) and (2) of Article XI of the 1987 Constitution for alleged violation of the Anti-Graft and Corrupt Practices Act. Ruling: The complaint against petitioner-judge before the Office of the Ombudsman is basically administrative in nature. In essence, petitionerjudge is being charged with having violated Rule 1.02, Canon 1 and Rule 3.05, Canon 3 of the Code of Judicial Conduct. It must be borne in mind that the resolution of the administrative charge of unduly delaying the disposition of the said criminal case involves the determination of whether, in resolving the alarms and scandals case, petitioner-judge acted in accordance with the guidelines provided in the Rules of Court and in the Administrative Circulars in pursuance of the ideals embodied in the Code of Judicial Conduct. Such is clearly an administrative matter. Unquestionably, this Court is mandated of the 1987 Constitution to assume under section 6, Article VIII of the 1987 Constitution to assume administrative supervision over all courts and the personnel thereof. b. Over Non-Presidential Appointees Section 46. Discipline: General Provisions. (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: (1) Dishonesty; (2) Oppression; (3) Neglect of duty; (4) Misconduct; (5) Disgraceful and immoral conduct; (6) Being notoriously undesirable; (7) Discourtesy in the course of official duties; (8) Inefficiency and incompetence in the performance of official duties; (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; Conviction of a crime involving moral turpitude; (11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children; (12) Violation of existing Civil Service Law and rules or reasonable office regulations; (13) Falsification of official document; (14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequently unauthorized absence from duty during
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regular office hours; (15) Habitual drunkenness; (16) Gambling prohibited by law; (17) Refusal to perform official duty or render overtime service; (18) Disgraceful, immoral or dishonest conduct prior to entering the service; (19) Physical or mental incapacity or disability due to immoral or vicious habits; (20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers; (21) Lending money at usurious rates or interest; (22) Willful failure to pay just debts or willful failure to pay taxes due to the government; (23) Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations; (24) Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations; (25) Insubordination; (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office; (27) Conduct prejudicial to the best interest of the service; (28) Lobbying for personal interest or gain in legislative halls and offices without authority; (29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority; (30) Nepotism as defined in Section 60 of this Title. (c) Except when initiated by the disciplining authority, no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant. (d) In meeting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand. c. Over Elective Officials see Art. XI, 1987 Consti & Sec 60-69 of LGC. d. Ombudsman d.1. Jurisdiction OMB V. CA Issue: WON the Office of the Ombudsman has the power to impose the penalty of 1 month suspension for simple misconduct of the DENR officers. Ruling: (Case at bar) In the present case, the Court similarly upholds the Office of the Ombudsmans power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault, in the exercise of its administrative disciplinary authority. The exercise of such power is well founded in the Constitution and Republic Act No. 6770. The authority of the Ombudsman to conduct administrative

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investigations is beyond cavil. It is mandated by no less than Section 13(1), Article XI of the Constitution. In conjunction therewith, Section 19 of Republic Act No. 6770 grants to the Ombudsman the authority to act on all administrative complaints. Other provisions in Republic Act No. 6770, likewise, pertain to the exercise by the Office of the Ombudsman of its administrative disciplinary authority. Section 19 states that Republic Act No. 6770 shall apply "to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee x x x, during his tenure of office." Section 21 defines the jurisdiction of its disciplinary authority to include "all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned, or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary." Section 22 thereof vests in the Office of the Ombudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. Such power, likewise, includes the investigation of private persons who conspire with public officers and employees. Section 23 requires that the administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. The Office of the Ombudsman is, however, given the option to refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees. Section 24, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges.

All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. Remedy available to the aggrieved party Findings of facts by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one months salary shall be final and unappealable. In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within
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ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. REMOLONA V. CSC Issue: WON a civil service employee can be dismissed from the government service for an offense which is not work-related or which is not connected with the performance of his official duty. Ruling: It cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292. And the rule is that dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. The rationale for the rule is that if a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service. The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in the government. ACOP V. OFFICE OF THE OMBUDSMAN Issue:

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powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770. Through the said law, the Office of the Special Prosecutor was made an organic component of the Office of the Ombudsman, while the Ombudsman was granted powers 2. The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveals otherwise. As previously established, the Ombudsman "may exercise such other powers or perform such functions or duties" as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment. Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no irregularity attended the referral by the Acting Ombudsman of the Kuratong Baleleng case to respondent Casaclang who, in turn, created a panel of investigators. CAMABAG V. GUERRERO Issue: WON Sections 15 and 17 of RA 6770 which empowers the Ombudsman to conduct preliminary investigations of matters and/or referred to it is null and void for being contrary to and violative of the provisions of the Constitution. Ruling: The inevitable conclusion is that the Ombudsman, under the 1987 Constitution, particularly under paragraph 8, Section 13, Article XI, may be validly empowered with prosecutorial functions by the legislature, and this the latter did when it passed R.A. No. 6670, which gave the Ombudsman, among others, the power to investigate and prosecute individuals on matters and/or complaints referred or filed before it. The Office of the Ombudsman is a distinct constitutional body whose duties and functions
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1. WON

the Ombudsman has prosecutorial powers 2. WON respondent Casaclang as Deputy Ombudsman for Military Affairs has the authority to conduct a preliminary investigation involving civilian personnel of the Government must first be resolved. Ruling:

1. When one considers that by express


mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other

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are provided for by the Constitution itself. Considering that the power of the Ombudsman to investigate and prosecute criminal cases emanates as it does from the Constitution itself, particularly, under paragraph 8, Section 13, Article XI as above-quoted, which empowers the Ombudsman to "exercise such other powers or perform such other functions or duties" as Congress may prescribe through legislation, it cannot be logically argued that such power or the exercise thereof is unconstitutional or violative of the principle of separation of powers enshrined in the Constitution. Equally devoid of merit is the contention of petitioner that R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions on the Ombudsman, infringes on Section 7, Article XI of the Constitution, in that it invariably diminishes the authority and power lodged in the Office of the Special Prosecutor. This ground relied upon by petitioner, like the first ground, has also been extensively dealt with and answered in, the aforecited case of Acop v. Office of the Ombudsman. Addressing the contention raised by petitioners that the Office of the Special Prosecutor is not subordinate to the Ombudsman and is, in fact, separate and distinct from the Ombudsman, such that Congress may not, under the present Constitution, validly place the Office of the Special Prosecutor under the Office of the Ombudsman, this court has upheld not only the power of Congress to so place the Office of the Special Prosecutor under the Ombudsman, but also the power of the Congress to remove some of the powers granted to the then Tanodbayan, now Office of the Special Prosecutor, under P.D. 1630, and transfer them to the Ombudsman. d.2. Power to Investigate Administrative Charges d.2.1 Concurrent with the Office of the President HAGAD V. DADOLE Issue: WON the Ombudsman under RA No. 6770, otherwise known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subsequent enactment of R.A. No. 7160, otherwise known as the Local Government Code of 1991. Ruling: There is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office

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from the long tentacles of officialdom." The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of RA 6770. The Local Government Code (RA 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President. d.2.2 Concurrent with the DOJ HONASAN V. DOJ PANEL OF INVESTIGATING PROSECUTORS The Constitution does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. It is noteworthy that the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act (RA 6770) which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases. That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled. The provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary jurisdiction. As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" and to "investigate any act or omission of any public official when such act or omission appears to be illegal, unjust, improper or inefficient." The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official and to recommend his prosecution". The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish,
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neither should we. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office." While it may be true that the Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary (shared/concurrent authority) and not an exclusive authority (no prior approval of Ombudsman necessary to file info). Thus, the noninvolvement of the office of the Ombudsman does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or amended information. RA 8249 which the Sandiganbayan Law (PD 1861) likewise provides that for other offenses to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office. In summation, the Constitution, the Ombudsman Act and the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage. Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit: the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees: 1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman. 2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation

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to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality. 3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. 4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him. d.2.3. Power to investigate cases of illgotten wealth after Feb 25, 1986 REPUBLIC V. SANDIGANBAYAN Issue:
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WON the PCGG had the power to conduct an investigation as required by Sec. 2 of Republic Act No. 1379. Ruling: The power of the PCGG to conduct preliminary investigation of cases of this nature does not extend only to cases brought to recover ill-gotten wealth accumulated by former President Marcos or his close associates but includes as well cases of graft and corruption assigned by the President to the PCGG for investigation. For what has not been sufficiently noticed is that complaints for graft and corruption, although not committed because of close association with former President Marcos, can be investigated by the PCGG if directed by the President of the Philippines. In accordance with Sec. 1 of Executive Order No. 14, dated May 7, 1986, the PCGG, with the assistance of the Solicitor General, is the agency of the government empowered to bring these proceedings for forfeiture of property allegedly acquired unlawfully before February 25, 1986, the date of the EDSA Revolution. The power to investigate cases of ill-gotten or unexplained wealth acquired after that date is now vested in the Ombudsman. (Case at bar) But although there is neither allegation nor showing in the case at bar that former Mayor Argana had unlawfully acquired his wealth by reason of close association with former President Marcos, the PCGG had jurisdiction to conduct the investigation because this is a case of graft and corruption assigned to it by the President of the Philippines pursuant to Sec. 2(b) of Executive Order No. 1. d.2.4. Ombudsman for the Military AGBAY V. DEPUTY OMBUDSMAN FOR THE MILITARY The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveal otherwise. The Ombudsman "may exercise such other powers or perform such functions or duties" as Congress may prescribe through legisiation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment. In this light, Section 31 of RA 6770 provides: Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein shall be under his supervision and control. Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. The Deputy Ombudsman for the Military, despite his designation as such, is by no means a

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member of the military establishment. The said Office was established "to extend the Office of the Ombudsman to the military establishment just as it champions the common people against bureaucratic indifference". It must be borne in mind that the Office of the Ombudsman was envisioned by the framers of the 1987 Constitution as the "eyes and ears of the people," "a champion of the citizen and "protectors of the people." Thus, first and foremost, the Ombudsman and his deputies, including the Deputy Ombudsman for the Military owe their allegiance to the people and ordinary citizens, it is clearly not a part of the military. We fail to see how the assumption of jurisdiction by the said office over the investigation of cases involving the PNP would detract from or violate the civilian character of the police force when precisely the Office of the Ombudsman is a civilian office. d.2. Preventive Suspension LASTIMOSA V. VASQUEZ Issue: WON the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. WON the Office of the Ombudsman can preventively suspend Lastimosa for failure to comply with the orders of the Ombudsman. WON prior notice and hearing is required when an official is preventively suspended.

Ruling:

1. The office of the Ombudsman has the


power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient." 14 This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from, the performance of his official duty. It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. When a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman.
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2. The Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." Section 22. Preventive Suspension. The Ombudsman or his Deputy may suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Case at bar) Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. 3. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in an administrative investigation.

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must be a member of the bar who practiced law for 10 years. Practice of law has a modern concept which is practice of law in and out of court. See cayetano vs monsod case. Common notion is that if you practice law it means you have practice litigation. Now, for as long as you apply legal knowledge, that is practice of law. Practice of law in the modern concept it is in and out of court in the same decision must apply legal knowledge and perform such act to establish that whenever you do apply legal knowledge you have atty-cient relationship. Applying that teaching cannot be likened to that. The application of knowledge is in the concept of rendering legal knowledge that will lead to an atty-client relationship. Element there is that such person becomes the client. Teaching is not equivalent to practice of law (although there is yet no decision about it) In monsod you do not have to appear in court to have engaged in the practice of law. What is this rotational scheme? In succeeding appointment, all seven will serve for 7 years. What authority does court have over Comelec? Does court have supervisory powers over Comelec? It is a matter of constitutional provisions. What about the decision of Comelec in the exercise of its quasi judicial powers? You can have this corrected by court only when you have grave abuse of discretion. If its appeal and you go to SC, you address the question of jurisdiction. Art. VIII Sec. 1. Remember, that when there is grave abuse of discretion it will amount to lack of or excess of jurisdiction. See Lokin Case. What is the remedy of Lokin in this case. It was contention here of Lokin that Comelec enlarged the law it was meant to implement by promulgating this IRR. What was the remedy of Lokin in questioning such implementation? Court said that is enlargement here is considered grave abuse of discretion. So going back to the question do courts have supervisory powers over Comelec? Yes. There is fully no independent tribunal in the light of expanded jurisdiction under 1987 Constitution. When we speak of functions of Comelec, we are talking about two kinds of function. These are administrative and adjudicatory or quasi judicial. Why do we even have to distinguish? Baytan case answered this. Because the remedy varies and depends on whether the action was done in accordance with its administrative or quasi judicial powers. You cannot go to SC without filing motion for reconsideration and it is a precondition to certiorari. There is one quasi judicial function of the comelec and that is Sec.3 par 2. All the rest are administrative including power to administer.

Transcriptions 1 What is the nature of Comelec? Is it something created by the Constitution? This one is mandated by the Constitution. What is the composition of Comelec? Chair and 6 commissioners. Term of office? is it possible for Comelec Larazabal to reappointed by Aquino? Cannot. But how they are appointed? President cannot appoint unless appointee is recommended by COMELEC. There also has to be consent of Commission on Appointment. COA is within Congress. So youve got President appointing COMELEC to be confirmed by COA by serving 7 years without reappointment. Qualification: you must not have an elective position in the immediately preceeding elections.There is also requirement that you must be a lawyer. member of the bar. There is requirement that a chair as well as the majority

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Why do you have to know if this one is done in administrative or quasi judicial functions? When it is comelec exercising in its quasi judicial power, you will first have to file that in comelec division because whatever decision comelec may have will have to be challenged with motion for reconsideration to be filed with Comelec en banc. If its quasi judicial function thats involve and you go directly to en banc, thats not only violation of rules of court but constitution as well. Motion for reconsideration it will be division that will forward to Comelec En Banc you have to state that you are filing motion for reconsideration to the Comelec en banc. It has to be first in division then MR en banc and then certiorari to SC. Certiorari: Rule 65 you have 60 days from receipt of judgment or denial of MR within which to file. It is not a mode of appeal. It is a special mode of appeal on the ground of grave of abuse of discretion. If its comelec you go to SC within 30 days. If you appeal rule 45 appeal question of law. You have 15 days from receipt. 2 If it is adjudicatory it has to be filed with Comelec division first and then in the en banc to which the remedy asked is motion for reconsideration. But then in the enumeration of the functions of COMELEC, how many would be considered as adjudicatory? There is only one function which is adjucatory from the nine functions the rest are administrative. In Sec.2 what is adjudicatory? There is a case telling you how many adjudicatory function and that is the case of Baytan, and there is only one adjudicatory function and that par. 2, all the rest is considered administrative. Starting off this authority to administer and enforce law pertaining to election. Does it include all elections? No. it does not include in barangay elections like in Federation and Association of barangay council. Why do you think the Constitutional committee expressly takes out from comelec this right to vote? The right to vote is inherently judicial. Why is it inherently judicial? 3 If all election contests are exclusive to Comelec what is the purpose of courts then? Comelec has exclusive original jurisdiction if region, province, city. Municipal RTC. If its barangay position go to MTC. If municipal RTC of general jurisdiction LAW ON PUBLIC OFFICERS What is public office? what element should be there when we say publc office? created by law. There should be a law creating such office: there has to be performance of sovereign functions. Public Officers when do you know he is a public officer. Its office is created by law and vested with

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sovereign functions. In laurel vs desierto she wanted to bring in ombudsman, laurel says you cannot because I am not a public officer, but SC said compensation is not an element for creation of public office. Would you consider public officer a public employee? Yes. If you look Art. 203 of RPC. Every public officer is public employee. In the loose sense on the code of conduct you would think you can interchange the two concepts but in other laws and even in constitution, there is a need to make a distinction. In the loose sense, public officer and public employee are the same. In the strict sense they are different. The only thing that separates it from the each other - one has discretion and one does not have (public employee). Characteristics of Public Officer Art.11 Sec.1 1987 Constitution wherein public office is a public trust Public Office is not a property nor a property right. If you die, you can ask your heirs to succeed you because you cannot ask your heirs to occupy and because public office is personal to the occupant. If you die, can heirs claim salary? Yes. You have got distinguished between the office itself and the earned salary. Earned salary becomes your property so it can be claimed and succeeded upon by the heirs. KINDS OF OFFICERS There are two kinds. Thats De Jure and De facto officer. A de facto one actually occupying the position under some color of appointment except that first it is entirely possible that he may have failed to comply with precondition to him taking the office. Ex. The other is when he is not eligible the he is a de facto officer. More importantly, if there is want of power of the appointing or the electing body but such want of power is not known to the public or if he had been appointed pursuant to a law which later on have been declared invalid. De jure one who is in position plus one who has all the qualifications. Appointed under a valid law and had complied with all requirements to the position. What if you are a de facto officer and discharge function and receive salary? What happened to the function and salary? Do you think function have not been given credence or invalidated upon declaration if you are de facto officer? They must be honored until such time he is declared de facto officer. How about the salary? See Sampayan vs Daza case. Is it always the same that de facto officer gets to retain the emoluments for services actually rendered? The rule is the de facto officer gets to retain the salary received for actual services rendered only if there is no de jure officer. But if there is a de jure officer, then he must have to return that even if he took the office in good faith. General Rule: de facto retains salary except if there is de jure officer. You have to honor acts done of a de facto because you cannot have the public checking on the performance of a de facto officer.
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An officer is a de facto if he suffered ineligibility issues. Who can prescribe qualifications? One is the Constitution. The other is the law or congress. There are restrictions as to power of congress to prescribe qualifications. Remember this case of SJS vs Dangerous Drugs it is inconsistent with Constitutional provision. There is a case of requiring all candidates to post a bond to which bond will be forfeited if you dont get the required number of votes. But this law was held unconstitutional. If you have to prescribe qualifications apply reasonable relations rule this tells you qualification must be germane in the position. If congress has to prescribe qualification - it must be reasonable connected to the position. MMDA case congress created that position but the one who can appoint is the President of the Philippines and one can be appointed is the mayor of Olongapo City SC said that is unconstitutional because thats usurpation of the appointing authority. This takes away discretion from the power to appoint. Sc said this law is unconstitutional. Congress must not prescribe so detailed as to take away discretion from the appointing authority. When must you possess those qualifications? See Case Frivaldo vs comelec and dissent. You first have to possess the qualifications at the time said either in the Constitution or the law promulgated by Congress. Ex. Age of president, 40 age. What if the law is silent on the time that you should possess the qualification? when should you possess it? Possess it on the day you commence service. You start to be governed only at the time you commence performing function. Dissent: how can you be voter if you are not citizen. SC says it retroacts to the day of election. If the law is totally silent you must possess it from the time you start performing the function. What is the usual qualification? Art. VI. Nationality, age, residence, registered voter and also in Art. VII. Then for local and elective official Art. IX b. Art. 3 section 5 you cannot require religious test. 4 What is De Facto Officer? They have the reputation of a public officer but lack the qualification. DISQUALIFICATIONS One is conviction of a crime which carries with it forfeiture of office. PARDON what is the effect of Pardon? It forgives but it does not forgets. The effect on the position that you by reason of the conviction, you would have to re-apply. Can you request for backwages? No. in all instances you cannot ask for backwages. The rule is that pardon does not warrant the persons reinstatement and claim for backwages but as an exception it will really have to depend whether pardon is given because he is innocent or convicted.

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There are several ways by which you become a public officer: by election, appointment or designation. See Central Bank vs CSC. There are 3 independent Commission. COMELEC, CSC, and COA. What is the function of CSC, look at Art. IX. What comprises CSC? All branches, subdivisions, instrumentalities of government including GOCCs but only those with original charters. The role of CSC, that appointment to CS are made according to merit and fitness. Is there an exception? Are there other ways by which you can be appointed to CSC other than through merit and fitness? As a rule, the merit and fitness is determined through competitive exams. Exceptions would be these three positions, in which case merit and fitness may be determined through other modes. In sec.3 function of CSC is really is to determine whether or not the qualifications pertinent to merit and fitness are complied with. See Luego and Lapinid Case. SC said the most that CSC can do is acertain whether or not the appointee possesses the qualifications. If the appointee has the qualifications, it cannot override the discretion of the appointing authority, never mind that somebody else is more qualified. We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee taking into account the totality of his qualifications, including those abstract qualities that define his personalityis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. Commenting on the limits of the powers of the public respondent, Luego declared: It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shall have inter alia the power to:

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9(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (Emphasis supplied) However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts onor as the Decree says, "approves" or "disapproves'an appointment made by the proper authorities. Why do you think thats the rule? Any other constitutional sounding reason? CSC cannot change the decision of the appointing authority because inherent in the power of appointing is discretion. What is this next in rank rule? It is not mandatory because it is simply a matter of preferential consideration. Can there be a rule that makes it mandatory? Why not? Because the power to appoint is discretionary. The moment you make the next in rank rule to be a mandatory provision, what is the evil in their? In the case, the evil is that you reduced it into a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment. APPOINTED OR DESIGNATED would it matter if you are appointed or designated? Is it a matter of semantics? Can you invoke security of tenure in designation? No. See case of Santiago vs COA here issue is whether or not his additional compensation will be included in the computation of retirement benefits. It is appointment if you have been given you a position wherein in designation, you are given additional task. In the case of Seville Seville is only designated in an acting capacity. Being temporarily appointed you cannot ask for security of tenure. Mere designation there is no security of tenure. In the case of Borromeo vs Mariano when you speak assumption of office, that is already acceptance of appointment. Acceptance sole act of a person being appointed. Hold-over principle this one allows you to continue holding office even after your term has expired. We have this because you want to avoid hiatus. Is hold over apply to elective officials? Or to appointed? Assignment. 5 What is this Doctrine of hold over? The rule there is when the la expressly provides for it then no problem. There are times when law is silent

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whether hold over is allowed. When law is silent consider whether there are some other laws providing express prohibitions on hold over on certain positions. When the term of office is fixed would it be safe to say that elective officials are not allowed hold over? You need only to recall that while city, provincial, national they cannot hold over. Their term of office does not allow hold over. In barangay officials there is a law where hold over is allowed. Hold over If permitted by law de jure officer. In the Code of Conduct you need to be committed to public interest by always upholding public interest over and above private interest. There has to be professionalism, intelligence, skill, Justness and sincerity. Political neutrality. You also have to be prompt and courteous and lead modest live appropriate to your position and income. You cannot indulge in indulgence and ostentacious and extravagance display of wealth. These are if you want to join government service. Kinds of powers - no problem if expressly given. Necessary Implication what is this doctrine? See Lo Cham vs Ocampo. From being head of medica legal department he is to assist the prosecutor. He hacing assisted the prosecutor and filing information. Accused said he is not authorized the filing of information. SC said that can be done because the filing of information is something that is essential in assisting the prosecutor. Sc says that even if the power or function is not expressly stated, it can still be performed if it can be necessarily implied from the express function. Ex. A person who is asked to conduct investigation. Law vests him to conduct investigation and call witness to which he is expressly authorized to issue subpoena. If the person summoned fails to appeal, can he cite such person in contempt? Law is silent. All that is granted is the authority to issue subpoena. Nothing stated in contempt. Does he have the power to cite in contempt still? Does this power cite in contempt be exercised by necessary implication? Yes. Another fact, such power to cite in contempt is inherently judicial but still exercisable by other bodies. The point being it can be exercised by non-judicial entity. It is not exclusively judicial. Yes because, it is germane and essential. Power to subpoena vs Power to cite in contempt are these of the same weight? Can you say that the power to cite in contempt is incidental with the subpoena power? The thing with subpoena power is that it is not lesser in scope and in strength than contempt power. By necessary implication - The power here that you can deemed implied is that which is a power that is not higher than the power that is expressly given. To know that the power to be exercised by necessary implication, you have to first understand and determine whether or not the power notg expressly given is higher than or is superior in scope and strength than the power expressly given. this is the limitation.

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There are two kinds of authority flowing from doctrine of necessary implication: implied and express authority. The other classification of authority is that which includes MINISTERIAL and DISCRETIONARY. Ministerial - if he cannot do anything but perform the function Discretionary - can decide See Case of Aprueba what did we learn? What is this? away palengke? Literally. The mayor did not allow operation. To compel the mayor to grant them licenses, they filed mandamus. SC said mandamus is not available to compel a discretionary function. When function is discretionary mandamus will not lie. Except when there is grave abuse of discretion then mandamus will lie. If there is grave abuse of discretion, mandamus may lie. Why included in expanded power of court? Law protects discretion such that you cannot compel the exercise of discretion but by way of exception if you abuse it, you lose such protection. The discretion that is protected is that discretion which is exercised under the law and not contrary to law. 6 Compensation is not an element of public office. Can members of Congress hold multiple positions? Youve got to qualify. There is a prohibition in holding any other office aside from government. There is a meaning given of any other office. Would a position held in ex-officio capacity be any other office? Ex officio capacity means that it is required by the primar function of office and you do not get additional salary Think if secretary finance to sit as well in the Monetary Board of BSP. His seat there in BSP is not another office. Article 9(b) Sec 7 and 8 elective officials being allowed to hold another office. It allows by law or by the primary function of the position. It says there, appointive officials shall be allowed to hold office if permitted by law or by the primary function of his position to hold office. Members of cabinet appointive officials distinguished with other appointive officials named in article 9(b). In so far as other appointive officials are concerned, they can hold other office if allowed by law or primary functions of office. Which one is more strict? Provisions in art. 7 or provisiin in 9(b) sec.7? it is article 7 right? Why is it more strict? Because in Art. 7 - members of cabinet can hold the other positions and not be considered another office if required by law whereas if you go to art.9 (b) appointive officials can hold office if they can hold office if allowed by law. So if allowed by law and primary function of office, then they can hold another office and receive of course salary for that. The other privilege is that President is immune from suit. The immunity extends during tenure and rightly so. The immunity is there because you

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do not want to bother the president in cases that she would have to attend to. The same immunity may extend to an official. Doctrine of Official Immunity remember what you have learned about suits about state. Can you file a case against a government entity performing governmental function? Cannot. Can you file a case against a local government unity performing governmental function? Can you? Ex. DOH. Can you file a case against DOH for wasting of funds in distributing condoms? Can you file a case against DOH? Against LGU? Lets say city government purchase millions of condoms? Can you file? Can you file a case against DENR for illegally giving out timber licenses? NO. How about against city government in the performance of governmental function? Conversely, can you file a case against government official in the national government? Would it be the same if it is a local government? If INCORPORATED Whether or not governmental or proprietary function you can file a case and not considered suit against state because it has a charter of its own, If UNINCORPORATED thats when you distinguish whether performing in proprietary or governmental. If proprietary you can file, if governmental you cannot. If to government official of national government as a rule you cannot file in lansang case suit against government officials is suit against state. Why? Remember it is a suit against the state if you make the state liable in terms of giving out money to pay you or in terms of release of property to you. Its a suit against state if you make state liable. If suit will result either in the positive action of the state then thats suit against state. If you file a case against a government of official who is simply performing his function even if is decreed to be liable he will have to ask from the state for the money to compensate the judgment this is a suit against a state because to satisfy a judgment will be a positive act of the state. Conversely you file a case against government official in his private capacity involving the performance of official function, will that suit prosper? For as long as suit is labeled as suit against his personal capacity suit will prosper. If you file a case against a government official in the performance in his official capacity but which performance was done with malice, can suit prosper? Yes,if it is performed with malice and bad faith or corruption then he wouldnt be going to state to satisfy his obligation because he exceeded his authority. That means he can be sued.

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As a rule you shouldnt be suing an official because there is a presumption of good faith and regularity of the performance of duty. Public officials are presumed to have acted in good faith. We have this presumption because we do not want to hamper the efficiency of the official. What happens if good faith is not presumed? Ex. Assume fixers are all over the place. In the administrative code superior is liable if there is a written order/authority. Is there a way superior officer is liable without written authority? In administrative code you find liability of a superior officer for acts of subordinates if he actually authorizes it by written order. If there is no written order, what can be done? All that needs to be done is not issue an order. The administrative order also says if it can be found that superior is guilty to gross negligence, it can be used. You can hold superior liable if there is an order. In absence of order, you may want to prove if his acts can be accompanied with malice/bad faith/gross negligence. In the absence of some legal ground can you exonerate yourself by saying I was instructed by the mayor to release the culprit? Can you exonerate a subordinate? The order of superior can be insubordination or gross insubordination. called

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indeed it was composed of OPP film scraps, 20 contrary to the evidence submitted by the National Institute of Science and Technology that the same was pure oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are not hampered in the performance of their duties or in making decisions for fear of personal liability for damages due to honest mistake. Whatever damage they may have caused as a result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque injuria. Mistakes concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. After all, "even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith. In other words, Damage here is one when there is no injury. There will only be a relief if there is an injury. Here sure you sustained losses but such loss was in a nature of a damage which did not result in injury. Mere mistake of an officer should be not amount bad faith, malice or gross negligence. KINDS OF LIABILTY There are 3 kinds of liability: you can be held civilly, criminally and administratively liable. Three-fold Liability Rule - If judgment says that he is not liable administratively (exonerated in the admin case) it does not mean that he is exonerated from criminal or civil liability. Each is independent of the other. Regardless of the outcome of the other criminal or civil, you can made liable in the other. KINDS OF LIABILITY Misfeasance; Malfeasance; Non-feasance. Give examples. Remember this provision in RPC Art. 27 of NCC. Knowingly rendering an unjust judgment the commission of this crime, judgment through negligence what is this? ARIAS DOCTRINE When does this apply? Have you heard of the term Ghost payroll? Ghost employees they are not there, some are there but did not work or some are literally ghost meaning dead already. Where do funds go? To pockets of officials concerned. If you have a mayor who does this, do you think you can invoke arias doctrine against him? No. In what scenario is this doctrine commonly used? What do we usually have if someone uses this doctrine? What transaction? There are transactions requiring final approval of head of office but not applicable to all transactions. What is the reason for the doctrine? 7 Three fold liability a single act or omission of an officer could amount to administrative, civil and criminal liability. Each of these liabilities are independent of each other. Just because you have been exonerated with one, like in an administrative liability. If you are an elective candidate and reelected the administrative offense, this will necessary become moot and
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Is there a liability in subordination? Yes there is even if he simple obeys order. Because we are presumed to know the law. Ignorance will not excuse no one. Ex. Youve got this mayor interpreting ordinance by himself. And taking it so wrongly it implemented it against by law. Should the mayor being the superior here be held liable? While administrative code provides for liability, in cases of bad faith, malice or gross negligence, you cannot equate these 3 with mistake of law / mistake of fact. In the case of FAROLAN this is about shipment of substance propylene film. What did the member of the team of bureau of customs do? They withheld the substance because it was allegedly a stronger substance than declared. What made them think that way? They were simply acting in their own interpretation. The issue here do you hold the one who committed a mistake liable? SC said it is plain and simple mistake and not tainted with bad faith, malice and gross negligence. Sc said they acted erroneously but not whimsically. What happens now to the damage sustained? Who is to bear the loss? There is damage but it cant be attributed to bureau of customs. What did SC say? What happened to damage? Farolan vs Solmac But even granting that the petitioners committed a mistake in withholding the release of the subject importation because

Election Laws Reviewer 2011


academic it carries with it the penalty of you being removed from office. because if you are reelected, it will show the peoples confidence. But that doesnt exonerate you from civil or criminal liability. When you are held liable arias doctrine the superior is actually excused if he has to rely on what has been done by a subordinate in the particular transaction. This case of arias stems from several release of funds stemming from what is called ghost transactions. SC said if transaction is such that the documentation are so voluminous you cannot expect the head of office to go through them one by one, you cannot. SC said it is but okay for him not to personally examine a detail and not to painstakingly trace from inception to end and so in this case, he has the right and can he justify if he relies on the approval made by the subordinate and the final approving authority here would be exonerated. Thats the general rule. Then came your case in Cesa in another doctrine. Both of which are civil cases: arias and cesa. Cesa is another doctrine that says that maybe the case except that if transaction is such that you are expected to have fore knowledge of facts and circumstances that may suggest an irregularity, then it is incumbent upon the approving authority to exercise a certain degree of circumspection. and this may take away arias defense and come into play gross negligence. If it such that from the face that it is irregular and you did not take highest degree of circumspection gross negligence may come in. Cesa vs Office of Ombudsman On the second issue, in Alfonso v. Office of the President,[23] where this Court held that Arias was not applicable, we ruled that a public official's foreknowledge of facts and circumstances that suggested an irregularity constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents.[24] By failing to prevent the irregularity that Cesa had reason to suspect all along or to take immediate steps to rectify, Cesa had tolerated the same and allowed it to wreak havoc on the coffers of the city. TERMINATION Being terminated from office is one of the ways of discipline or of terminating official relations. Other modes of termination other than termination from office: One way terminating public office is by the 1. End of term term here, remember two kinds a. term thats fixed period of which is fixed and b. then if it is still a term when you serve at the pleasure of appointing authority. Can you think of a term thats fixed? Or one at a pleasure of appointing authority? Ex. Members of cabinet they serve at the pleasure of the appointing authority, such that if by tomorrow Acquino says I dont like the face of

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Lasierda remove or terminated? The obvious answer thats the end of his term because for that position, his term is at the pleasure of the appointing authority. Its entirely different from removal. When we say you have been removed from office - that denotes that the term hasnt ended yet but for some cause legal or not, your stay on office has not been continued. If it is end of the term, is it removal from office? it is not it is only termination of office by way of end of term but not removal from office. And so when appointing authority says I dont like your face anymore and dont attend, thats not removal that is just the end of your term. There is also one way of ending your ending of public office and thats through retirement. 2. Retirement prevailing law is GSIS law, you must already be sixty or compulsory age sixty five. See RA 8291. There is compulsory age 65. But if you want to avail of optional retirement, 60 must be your age and not be under total disability pension.

The retiree must have rendered at least 15 years of service and must be at least 60 years if age upon retirement.

Why is retirement acknowledge? Case of Beronilla. We said we want to maintain efficiency in the government. The other reason is to enjoy the remainder of his life. The compulsory retirement of government officials and employees upon their reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompense, inadequate perhaps for their long service and devotion to. the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. Needless to say, therefore, the officials charged with the duty of implementing this policy cannot be too careful in insuring and safeguarding the correctness and integrity of the records they prepare and keep. In this case, all that the Board has done is to set aside what it found to be an erroneous decision of the General Manager in approving the change of date of petitioner's birth, because from the evidence before it, the Board was convinced that the originally recorded date of birth should not be disturbed. We cannot see where the charged inequity of such action of the Board could lie. 3. ABOLITION OF OFFICE or ORGANIZATION find mostly in local government unit. Ex. You competed with incumbent and he again won and at the end of the day, your position became vacant and suddenly youve been we are reorganizing or abolishing the office when you know the reason is political. Busakay vs Buena - office collapsed and he was terminated and few months after it was rebuilt
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and he applied again but said to him that there is abolition of office but SC said there is no abolition because in abolition there has to be the intention formally to do away with office. The intention to do away permanently. If you have got to abolish, it must be shown that you abolish because the abolition must have to be done in good faith. But when do you know its done in good faith. The good reason you can put up so then the abolition be in good faith is before you could say that the abolition is for promotion of simplicity, economy and efficiency in the operation of the government. If that is the case, then the abolition is done in good faith. Main ground for denial of the petition by the lower court is that the position in dispute is temporary and its functions transitory and precarious. The Solicitor General in this instance simplifies the issue by confining the point of discussion to whether or not by the total destruction of the bridge in 1947 the positions of toll collectors provided therefor were abolished. He opines that they were. We agree with the Solicitor General's approach of the case but are constrained to disagree with his conclusions. To consider an office abolished there must have been an intention to do away with it wholly and permanently, as the word "abolish" denotes. Here there was never any thought, avowed or apparent, of not rebuilding the aforementioned bridge. Rather the contrary was taken for granted, so indispensable was that bridge to span vital highways in northern Luzon and to Baguio. This being so, the collapse of said bridge did not, in our opinion, work to destroy but only to suspend the plaintiff's position, and that upon the bridge's rehabilitation and its reoperation as a toll bridge, his right to the position was similarly and automatically restored. To prove good faith abolition, you must prove that the abolition is for simplicity, efficiency in the operation If it is a valid abolition it isnt removal. Security of Tenure it is nothing but the right not to be removed from office without cause and without due process of law. What does that tell you? The issue of violation will only come in if it is removal. So if it is the end of your term or if it is a case of valid abolition these cases will tell you these are not removal from office Ergo, Not being a case of removal from office, you immediately take away discussion on violations of security of tenure. Then if you have established it is a valid abolition then there is no violation of security of tenure. Office is a position in the government. If an office is abolished there has to be a law.

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Cruz vs Primicias we transitioned from one government to the other. SC said almost always that with every transition, comes declaration of an office to be vacant. As a rule, you abolish an office through law. As rule it can also be a transition from one government to another. Abolition has to be through law. 4. Reorganization you abolish an office through reorganization. It means that there certain office you retain and that there are certain offices abolished. The reorganization must also be done in good faith. It is such if it done in the name of economy, simplicity and efficiency in the operation of the government. Read case Darion vs Mison this is your authority telling when is it therefore not done in good faith. SC has given us example of reorganization done in good faith. SC already told us when is it in good faith when it is for economy or you reorganize because of the efficiency. SC said if its done in bad faith, SC says you wanted to reorganize and so abolish certain offices but thenagain you go about increasing the number of positions in the new department very clearly thats not done in good faith. That;s not reorganization for purposes of economy. SC said if you abolish office and create new offices with substantially the same functions, SC said reorganization done in bad faith. Darion vs Mison Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However, under Republic Act No. 6656, we are told: SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof.
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If reorganization is done in bad faith, SC said reinstatement or reappointment of aggrieved party. Abolition or reorganization required to be done in good faith and it is good faith if it is for purposes of economy, efficiency and simplicity of operation of government. The effect if reorganization in good faith it is not removal from office because you are being removed only if office still exist. If a valid reorganization and abolition no more office to speak of. And so you are terminated but not removed. If not removed, no violation of security of tenure. In COnsti I, consider judiciary differently because they had it placed in the Constitution - Sec.11 Art. VIII which says no law shall be passed reorganizing the judiciary when it undermines security of tenure. (very tricky) When we say reorganization thats valid we say no removal. Reorganization is not removal because there is (no more office) while in removal (there is still office) and occupant is removed. Q: if you reorganize the judiciary, do you violate security of tenure? No. because security of tenure is removal and Reorganization is not removal. It did not violate security of tenure but you take away that judge along with the office, not removal right? But you see it undermines the security of tenure because hes not there anymore. And so you cant argue that that law is unconstitutional. Reorganization presupposes no more office, you do not remove, you do not undermine security of tenure because security tenure only concerns with removal. Removal presupposes there is still office but no more occupant. BUT Now, 1987 Constitution it says no law shall be passed reorganization of judiciary when it undermines Security of tenure. Therefore you cannot reorganized if it violates security of tenure. The moment you removed me from office it did not directly violate security of tenure but you have under ined my security tenure. So reorganization can be argued that it so undermine security of tenure. This is only for judiciary. Here you cannot criticize in such a way that you are undermining the image of the institution. 5. Incompatible office when accepted you lose that office. You accept the incompatible office lose that office Art. VI Sec. 13. Ex. Can you appoint de lima as ombudsman? or kiko as sec. of justice?

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Can be? Yes. There are only 2 kinds of forbidden offices: a. Newly created during your term or b. Old office but the emoluments for which have been increased during your term. Newly created d.i ang secretary of justice post? It is not forbidden, it is just incompatible. You can give up your senate post so that you can accept this secretary of DOJ which is why acceptance of an incompatible office will amount to termination. It is the acceptance that will result in the giving up of post. It is when you accept that you are deemed resigned. Recall what youve learned in Public Corp? 6. Prescription there this case of Unabia which he forgot to file a case for quo warranto such that he filed it many years after. SC said your right to file quo warranto had prescribed. You can lose office by prescription or for failure to assume office or being administratively disciplined. You see you can be disciplined possibly by 3 persons. You can be disciplined by President, by CSC, by Ombudsman if it would like to discipline you. As to President - as disciplining authority. If you are appointed by president does that mean that you can also be removed by him or disciplined by him - because the power to appoint is the power to remove but it can happen that it can be otherwise. Like the power to appoint Ombudsman but removal by impeachment because Constitution says so. Simply because that you have appointed does not mean that you can be removed by him, like in Ombudsman. You can be removed because the power to appoint comes the power to remove except if law provided otherwise. It can happen that law will provide otherwise like the Constitution like Ombudsman appointed by President and removable by impeachment. Members of judiciary appointed by President but judges of lower can be removed by SC because Constitution says so. There are also those appointed by him but removable by another entity because the law says so. Ex. Civil servants appointed by him but removable by CSC because law says so. So when it comes to those removable by CSC, the rule is if you are employee in the civil service you can only be suspended or dismiss for cause as provided by law and after due process. It has to be for cause as provided by law and after due process. Chapter 7 Sec. 46 the moment you say as may be provided by law wrong! Why? When you say as may be provided by law thats to admit he can be removed on grounds as to exist after his entry to the civil service. But you see the Law says he can only be removed for cause as provided by law, cause must already be provided by law and not to be provided some time after. The way it should be stated, for cause as
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provided by law and after compliance with due process. If you are a CSC employee you can only be removed as caused provided by law and due process. Read : Chapter VII sec.46 on CS code service can be preventively suspended. - civil

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Can OMB investigate on anonymous complaints? Yes. If there is a complainant then he will be the one to sign affidavit of complaint but if anonymous complaint then it will have to be investigated upon the OMB and if it finds that there are grounds to hold the person liable then it will have to be signed by investigating officer. After OMB shall have investigated, is the power Preliminary Investigation something exclusive only to it? Exclusive? Concurrent but it is still the one having primary power. There is a law that was passed that says if complaint involving acts of public school teachers, Deped should investigate that but OMB still has primary jurisdiction. In impeachable officers, can OMB conduct PI on acts or omissions of impeachable officer? You can investigate for the purpose of preparing the articles of impeachment. The articles of impeachment can be prepared by OMB, with endorsements of members of the House of Representatives. Once you fixed the forum for administrative complaint with OMB, you are stuck there. Or once you fixed administrative aspect with office of president then you cannot anymore file with OMB. You cant do forum shopping. Remember 3 fold liability criminal aspect stays with OMB. Admin may lie with CSC, office of Pres and OMB and civil aspect may lie with court. What about for election offenses? Can ombudsman investigate election offenses? Yes along with office of prosecutor if they are deputized by Comelec. OMB can only come if they have been deputized. Can OMB investigate a judge for falsifying certification? the rule is that you cannot get salary for the month unless you certify under oath that you dont have cases pending in you sala that are submitted for decision beyond day period within which you must decide. Judge has got to decide within 90 days and you can only raw your salary if make certification under oath that you dontt have a case that hasnt been decided yet within 90day period. And it is found out that this judge had a certification despite having a case not decided yet. And so a case was filed against a judge before OMB. Here, OMB must ask first SC to rule on whether indeed the judge had not performed his administrative function. Why? Because in the Constitution, it is SC that has administrative supervision so if the act complained of against judge has got something to do with his performance of his administrative function. The SC must make a finding that indeed it has made an administrative violation before OMB can act on it. It is really OMB has authority to investigate all acts or omission of all elective and appointive officials including GOCCs includeing members of a cabinet. Can it impose preventive suspension? Yes. And for OMB 6 months. PREVENTIVE SUSPENSION

Sec. 47 what is important to remember CSC can be preventively suspend. Distinguish the power of CSC to preventively suspend vs power of Ombudsman and president of LCG to preventively suspend. Sec. 51 of CS code, It says, CSC may preventively suspend an employee under his authority pending investigation if the charge involves dishonesty, oppression, grave misconduct, neglect in the performance of duty or there is reason to believe that respondent is guilty of charges which would warrant removal from service. Under this, you can be preventively suspended for 90 days (3months). Can you preventively suspended, without hearing or having heard? Yes. It is not violation of due process. Also, because it is not a penalty. It can be imposed without having heard you first, it can be heard without violating due process. And it is for a maximum period of 90 days. What about elective officials? They can be removed if they are impeachable officers under Art. XI. List of impeachable officers is exclusive. For Local officials Sec.60-69 will come in. See Admin Discipline Local Government Code. If its a complaint against elective official of a province, highly organized city it is the office of president that has authority to sit on your complaint. For a case against municipal it should be sangguniang panlalawigan. For elective barangay officials it should be file to sanggunian panglungsod concerned. Can you as an elective official can you be preventively suspended? LGC has a different requirement. You can only be preventively suspended only after issues have been joined. If the issues have been joined which means you have already been answered. And the period is 60 days max. However if you are facing several charges it cannot exceed 90 days within a single year. Lets look at Ombudsman it has jurisdiction over the conduct of all public officials. Ombudsman has jurisdiction over all acts done by government officials including GOCCs. What if the act of the officer has got nothing to do with his function? Concubinage? Has it anything to do with public office? There are acts not related to performance of an office, would OMB still has jurisdiction? Yes. OMB has still jurisdiction in all acts whether or not done in relation to the performance of functions. On all acts of government official whether or not related to official duty.

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Election Laws Reviewer 2011


CSC 90 days even before issues are joined; OMB 6 months; LGC 60 days when issues are joined. Can a person admin cases under LGC and in the OMB? Yes. Can it happen that OMB and Office of President have concurrent jurisdiction? Yes. But for admin liability, you must choose which forum. You cannot forum shop. Only with criminal aspect you can go with the OMB. For administrative aspect, you can lodge it wither Office of President or OMB. When OMB decides, you have very little time MR. if an admin decision, you have 10 days to MR. if criminal case, 5 days to MR. in an admin case and penalty is dismissal or penalty is suspension or reprimand SC keeps on flipflopping, the decision of OMB is immediately executory. Criminal case you can file MR in 5 days but OMB will deny youre MR. where will you go? You go to SC in criminal case but in admin case, remember Fabian case. Fabian vs Desierto law saying OMB appeal to SC and SC said is unconstitutional because it increases appellate jurisdiction of SC without its advise and concurrence. If in its admin case you appeal to CA. In criminal case, you appeal to SC on pure question of law because Constitution says so.

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End

God Bless To Us All, We CAN do this!

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