Marcial-2J-SandovalNotes-2016
ADMINISTRATIVE LAW
- Promulgated by Pres. Aquino when she still had legislative powers
pursuant to Article XIII, Section 6 (The incumbent President shall continue
to exercise legislative powers until the First Congress is convened).
-took effect in 1989, only after 2 years.
The Code is a general law and incorporates into a unified document the
major structural, functional and procedural principles of governance and
embodies changes in administrative structures and procedures designed
to serve the people (Ople v. Torres).
Two important definitions of Administrative Law
1. Dean Roscoe Pound 💕 🦄
it is that branch of modern law under the executive department of the
government, acting in quasi-legislative or quasi-judicial capacity,
interferes with the conduct of individual for the purpose of promoting the
well being of the community.
2. Professor Goodnow 💕 🦄
it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law
and indicates to the individual remedies for the violation of his rights. In
both definitions, the focus is on the executive department acting in quasi-
legislative and quasi-judicial functions.
THREE IMPORTANT DOCTRINES
(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY
The members of the cabinets are deemed alter egos of the President so
that their decision and acts performed in the regular course of business
are deemed acts or decisions of the President UNLESS reprobated by the
President.
(2) EXHAUSTION OF ADMINISTRATIVE REMEDY
Whenever there is an available administrative remedy provided by law, no
judicial recourse can be made until all such remedies have been availed
of and exhausted.
(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT
The courts cannot and will not resolve a controversy involving a question,
which is within the jurisdiction of an administrative tribunal.
ADMINISTRATIVE AGENCIES
· Generally, the function is EXECUTIVE
· It implements or enforces
Ex: COMELEC - main function is to enforce the laws relative to the
conduct of election.
- This is an executive function.
· But the law may vest the agency quasi-judicial and quasi-legislative
powers.
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
-refers to the corporate governmental entity through which the functions of
the government are exercised throughout the Philippines including
various arms through which political authority is made effective in the
Philippines, whether pertaining to the autonomous regions, the provincial,
city, municipal or barangay subdivisions or other forms of local
government.
2 COMPONENTS:
(1) Corporate governmental entity, through which the functions of
government are exercised throughout the Philippines.
(2) Various arms through which political authority is made effective in the
Philippines.
· Thus, LOCAL GOVERNMENTS are included in the definition of
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
(a) They are referred to as “various arms through which political
authority is made effective in the Philippines” (ADMINISTRATIVE CODE)
(b) They are referred to as “territorial and political subdivisions of
the Republic of the Philippines (Article X, Section 1, 1987
CONSTITUTION).
“The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras.”
*Under the first component, whether the agency is an incorporated or
unincorporated agency of the government is included in the definitions.
Q. Are government owned or controlled corporations (GOCC's) part of the
definition of the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES?
Marcial-2J-SandovalNotes-2016

A. It depends - Introductory Provisions E.O. 292)

(1) If the GOCC is performing governmental function, then it is part of the
definition.
(2) If the GOCC is performing proprietary function, then it is not part of the
definition.
Q. When is a GOCC deemed to be performing proprietary function?
Governmental function?
A. If the purpose is to obtain special corporate benefits, or earn pecuniary
profit intended for private benefit, advantage - the function is proprietary.
If it is in the interest of health, safety or the advancement of public good
and welfare affecting the public in general - the function is governmental.
💕🦄
💕🦄
- Ex: BIR under DOF, NBI under DOJ
4. OFFICE
- refers to any major functional unit of a department or bureau including
regional offices.
- Ex: Regional Office of the Bureau of Lands.
3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS
(Section 38, Chapter 7, Book IV)
(1) SUPERVISION AND CONTROL
“Supervision and Control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct
the performance of duty, restrain the commission of acts; review,
approve, reverse or modify acts and decision of subordinate officials or
units; determine priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs. Unless a different
meaning is explicitly provided in the specific law governing the
relationship of particular agencies, the word “control” shall encompass
supervision and control as defined in this paragraph.

💕🦄 (2) ADMINISTRATIVE SUPERVISION

“ Administrative Supervision which shall govern the administrative
relationship between a department or its equivalent and regulatory
VARIOUS ADMINISTRATIVE AGENCIES agencies or other agencies as may be provided by law, shall be limited to
1. AGENCY OF THE GOVERNMENT the authority of the department or its equivalent to generally oversee the
- refers to any of the various units of the government, including a operations of such agencies and to insure that they are managed
department, bureau, office, instrumentality, or government owned or effectively, efficiently and economically but without interference with day
controlled corporations, or a local government or district unit therein. to day activities; or require the submission of reports and cause the
conduct of management audit, performance evaluation and inspection to
*LGU's are not under the control power of the President. It falls under the determine compliance with policies, standards and guidelines of the
general supervision of the President. department, to take such actions as may be necessary for the proper
performance of official functions, including rectification of violations,
2. DEPARTMENT abuses and other forms of mal-administration, and to review and pass
- refers to man executive department created by law. (Section 2[7] upon budget proposals such agencies but may not increase or add to
Introductory Provisions E.O. 292) them.”
- Ex: DOJ, DENR, DOH
💕🦄 ATTACHMENT
3. BUREAU “This refers to the lateral relationship between the department or its
- any principal subdivision or unit of a department (Section 2 [8] equivalent and the attached agency or corporation for purposes of policy
Marcial-2J-SandovalNotes-2016
and program coordination. The coordination may be accomplished by
having the department represented in the governing board of the attached
agency or corporation either as chairman or as a member, with or without
voting rights.
If this is permitted by the charter, having the attached corporation or
agency comply with a system of periodic reporting which shall reflect the
progress of programs and projects and having the department or its
equivalent provide general policies through its representative in the board,
which shall serve as the framework for the internal policies of the attached
corporation or agency.”
OTHER AGENCIES
1. INSTRUMENTALITY
- refers to any agency of the National Government, not integrated within
the department framework vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special
funds, and enjoying operational autonomy, usually through a charter.
– this term includes regulatory agencies, chartered institutions and
GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292)
–
2. REGULATORY AGENCY
- refers to any agency expressly vested with jurisdiction to regulate,
administer, or adjudicate matters affecting substantial rights and interests
of private persons, the principal powers of which are exercised by a
collective body, such as a commission, board or council. (Sec. 2[4]
Introductory Provisions, E.O. 292)
- Ex: PRC, NLRC, SEC, Insurance Commission
3. CHARTERED INSTITUTIONS
- refers to any agency organized or operating under a special charter, and
vested by law with functions relating to specific constitutional policies or
objectives.
- this term includes the state universities and colleges and the monetary
authority of the state. Section 2 [12] Introductory Provisions, E.O. 292)
Ex: BSP
4. GOVERNMENT-OWNED OR CONTROLLED CORPORATION
- refers to any agency organized as a stock or non-stock corporation,
vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the government directly or through its
instrumentalities either wholly or where applicable as in the case of stock
corporations to the extent of fifty-one (51%) percent of its capital stock xxx
(Section 2[13] Introductory provisions, E.O. 292)
- Provided, the GOCC's may be further categorized by the Department of
Budget, Civil Service Commission and the Commission on Audit for
purposes of the exercise and discharge of their respective powers,
functions and responsibilities with respect to such corporations.
· These instrumentalities are NOT integrated to the department
framework.
· They do not fall within the control power of the president over the
departments.
· Under Article VII, Section 17, Instrumentalities are not included.
Q. What are the administrative relationships involved?
A. (1) Regulatory Agencies - mere administrative supervision, to oversee
with no interference with the day-to-day operation.
Ex: the relationship between NLRC and Secretary of Labor (Vertical
relationship)
(2) Chartered Institution/GOCC - attachment, lateral relationship
involving planning and program coordination.
POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
Q. Generally, how will you describe the functions of an administrative
agency?
A. The functions of an administrative agency are to enforce, implement,
administer and execute laws.
Q. What kind of function?
A. Executive. These agencies belong to the executive branch. They do
not perform legislative and judicial functions. However, these agencies
may perform quasi-legislative and quasi-judicial functions.
Ex: COMELEC - to administer all laws relative to plebiscite,
referendum, recall
CSC - to administer the Civil Service Law
Note: Not all administrative agencies perform all kind of functions.
Ex: NLRC - exercises in general quasi-judicial function
DOLE - the agency that administers labor law
SEC - has an executive function and quasi-legislative; no more
quasi-judicial
LTFRB - has quasi-judicial function
CSC - has an executive, quasi-legislative and quasi-judicial power
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QUASI-LEGISLATIVE POWER 💕 🦄
Q. What do you mean by Quasi-legislative?
A. It refers to the power or authority of an administrative agency to
promulgate rules and regulations in order to implement a law or a given
legislative policy.
Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation
· QUASI-LEGISLATIVE POWER includes the power to promulgate
ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES AND
REGULATIONS (IRR), which are pieces of subordinate legislation called
mini-laws, which may take the form of circulars or memoranda, but which
cannot prevail over the laws.
Q. In what capacity did the Secretary of Labor acted in promulgating the
rules and regulations implementing the Labor Code?
A. He acted in his quasi-legislative capacity.
· In exercising quasi-legislative functions, the administrative agency is
acting like Congress but not to enact laws. They cannot have more
powers than Congress.
· An administrative agency may not exercise this quasi-legislative function
unless it has been expressly delegated to it. It is a delegated power.
DOCTRINE OF DELEGATION OF POWERS
GENERAL RULE: A power that has already been delegated may no
longer be delegated.
EXCEPTIONS: Instances of Permissible Delegation of Powers:
(1) Delegation to the PEOPLE through plebiscite and referendum
(2) Delegation of EMERGENCY POWERS to the President
(3) Delegation to the President of TARIFF POWERS
(4) Delegation to ADMINISTRATIVE BODIES
(5) Delegation to the LOCAL GOVERNMENT
· The delegation to administrative bodies simply deals with Quasi-
Legislative powers.
Ex: Under Section 244, NIRC, “The Secretary of Finance, upon
recommendation of the Commissioner shall promulgate all needful rules
and regulations for the effective enforcement of the provisions of this
code.”
Read Imbong vs Ochoa-RH law-IRR expanded
meaning hence void
- This is a delegation to the Secretary of Finance. Without this delegated
authority, the Secretary of Finance may not exercise the power.
· The delegation must be valid. Even if the power has been delegated, if
the delegation is invalid, the exercise of the power becomes an abdication
of powers. Hence, it is not just a matter of delegating the power. The
delegation must be valid.
TEST OF A VALID DELEGATION
(1) COMPLETENESS TEST: The law delegating the power must be
complete in all its terms and conditions when it leaves the Congress, so
when it reaches the delegates, it will have nothing to do but to enforce it.
(2) SUFFICIENT STANDARD TEST: The law must offer a sufficient
standard, which are determinate, or at least determinable to specify the
limits of the delegate’s authority, announce the legislative policy and
specify the conditions under which is to be implemented.
KINDS OF ADMINISTRATIVE REGULATIONS
(1) LEGISLATIVE Regulation
a. Contingent
b. Supplemental
(2) INTERPRETATIVE Regulation
Q. What is their distinction?
A. If the regulation is merely interpretative, it will not require publication.
· When Article 2 of the New Civil Code refers to laws, these do not only
refer to those enacted by Congress but includes administrative
regulations promulgated by administrative bodies in their quasi-legislative
functions except those which are merely internal or interpretative in
nature. (Tanada v. Tuvera)
Q. What are the REQUISITES OF A VALID ADMINISTRATIVE
REGULATION?
A. (1) Its promulgation must be authorized by the legislature
(2) It must be within the scope of authority given by the legislature
(3) It must be promulgated in accordance with the prescribed procedure
(4) It must be reasonable
(5)
FIRST REQUISITE: its promulgation must be authorized by the
legislature - meaning, there is a valid delegation of power.
SECOND REQUISITE: it must be within the scope of authority given by
Marcial-2J-SandovalNotes-2016
the legislature.
- in the exercise of the delegated authority to promulgate administrative
regulations, the administrative agency cannot amend the main law it
seeks to implement. Otherwise, the delegate will act in excess of
authority.
THIRD REQUISITE: it must be promulgated in accordance with the
prescribed procedure.
– among the prescribed procedure is the requirement of:
a. PUBLICATION
· The clear objective of Article 2 of the NCC is to give the general public
adequate notice of the various laws, which are to regulate their actions
and conduct as citizens. Without such notice and publication, there would
be no basis for the application of the maxim ignorantia legis non excusat.
It would be the height of injustice to punish or otherwise burden a citizen
for the transgression of a law which he had no notice whatsoever, not
even a constructive one.
GR: Publication is required not only to laws passed by Congress, but
includes administrative regulations, which are issued in the exercise of
quasi-legislative power of the administrative agencies.
EXPNs:
(1) interpretative regulation
(2) internal regulation
b. Furnish a copy of the administrative regulation to the UP LAW
CENTER
- “Every agency shall file with the UP Law Center three (3) certified copies
of every rule adopted by it”
– there is nothing in the Administrative Code of 1987 which implies
that the filing of the rules with the UP Law Center is the operative
act that gives the rules force and effect.
– It is merely entrusted to the public officer
FOURTH REQUISITE: it must be reasonable
- it must not be unreasonable, whimsical, oppressive, confiscatory
- must pass the test of reasonableness
- absence of one of these, the administrative regulation ought to be
invalidated.
Quasi-Judicial: a) jurisdiction; b) due process
LAW ON PUBLIC OFFICERS
What is a public office? It refers to the right, authority or duty 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 sovereign power of the sovereign function of the government,
to be exercised by that individual for the benefit of the public.
Elements: CD-DIP 💕 🦄
1. It is created by law or authority of law
-the powers to create and abolish public office are vested in the legislative
-power to abolish is not absolute, it must be done in good faith
2. Possess a delegation of a portion of the sovereign powers of the
government, to be exercised for the benefit of the public.
3. Powers conferred and duties imposed must be defined directly of
impliedly by the legislature.
4. Duties must be performed independently and without the control of a
superior power other than the law.
5. Must have permanence or continuity.
Is salary an element in public office? No. It is merely an incident of public
office.
- Congress can pass a law eliminating salaries. As a rule this cannot be
questioned. If Congress can remove the public office itself, then by all
means. It may remove its incidence. However, everything must be done
on good faith.
Characteristics of a public office: PHOP 💕 🦄
1. Public office is a public trust
Article XI (Accountability of Public Officer), Sec. 1 provides: “Public
Office is a public trust. Public Officers and employees must at all means
be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, and act with patriotism, justice and lead
with modest lives.
2. It is not a heritable possession
Y? We live in a democratic and republican state.
 Marcial-2J-SandovalNotes-2016

Art. II, Sec. 26 provides: The State shall guarantee equal access to DESIGNATION -refers to the imposition of additional duties, usually by
opportunities for public service and prohibit political dynasties as may be law, on any person already in public office. It presupposes that a person
defined by law (provision is not self-executing). is already appointed.

3. It is outside the commerce of man. APPOINTMENT VS DESIGNATION Luego Doctrine

It cannot be the subject of a valid contract. If it is a subject, the contract is Appointment – selection by the proper authority of an individual who is to
void. exercise the functions of an office.

4. It is not a property. Designation – connotes merely the imposition of additional duties upon a
It is therefore not protected or guaranteed by the due process clause. person who is already in the public service by virtue of an earlier
Ex: A is holding public office, Congress decided to abolish it. A cannot appointment or election. A mere designation does not confer upon the
complain that there was a violation of the due process clause if he was designee security of tenure in the position or office which he occupies
not given an opportunity to be heard, provided that the abolition is done in only in an acting capacity.
good faith.
Nature of designation
ABOLITION VS REMOVAL 💕 🦄 → Essentially temporary and not entitled to security of tenure
In abolition, what is abolished is the office itself, while in removal, it is the
occupant that is removed, but the office remains. APPOINTMENT in focus
Ex: A is holding a public office, he was removed. In this case, A may Nature of appointment
validly invoke his security of tenure. He can only be removed for a just 1. Executive on character
and valid cause and there must be an observance of due process. 2. Discretionary

PUBLIC OFFICER APPOINTING POWER

Who is a public officer? - ARTICLE VII, Sec. 16
A public office is one who holds a public office. Any person, who by direct - correlate with Law on Public Officers
provision of law, popular election of by appointment of competent Nature of Appointing Power
authority, shall take part in the performance of public function on the - vested in the President; executive in nature
Government of the Philippines or shall perform in said Gov’t or any of its - subject only to well-known exceptions
branches public duties as employer, agent, subordinate, or official of any - carries with it the removal power (power to hire carries with it the power
rank or class, shall be deemed to be a public officer. to fire)
Structure of ARTICLE VII, Sec. 16: 2 Paragraphs
May a notary public be considered as a public officer? Yes (1) list of officers who are to appointed by the President
(2) ad interim appointments
SELECTION FIRST SENTENCE, FIRST PARAGRAPH
How is public officer chosen? Q: Will all appointments of the President require confirmation of the
2 ways: Commission on Appointments?
1. Election A: Not all appointments require confirmation under the present
2. Appointment Constitution.
Ang Tibay vs Court of Industrial Relations: 7 Cardinal Only those officers enumerated in the 1st sentence require confirmation.
Rules of Administrative Due Process (Sarmiento vs. Mison)
Cariño vs CHR - Under the 1935 Constitution, all appointments need confirmation.
Simon Jr. vs CHR
Marcial-2J-SandovalNotes-2016

- Under the 1973 Constitution, all appointments no longer need
confirmation
(because Congress was then abolished by President Marcos).
- Experience shows that when all appointments required Confirmation, it
became a venue for horse-trading and similar malpractices. On the other
hand, placing absolute power to make appointments in the President with
hardly any check by the legislature, as what happened under 1973
Constitution, leads to abuse of such power. Thus, was perceived the need
to establish a “middle ground” between the 1935 and 1973 Constitution.
FOUR INSTANCES WERE CONFIRMATION IS REQUIRED
(1) Heads of executive departments
- appointment of cabinet secretaries requires Confirmation
- EXCEPTION: Vice-president may be appointed as a member of the
Cabinet and such appointment requires no confirmation. (ARTICLE VII,
Sec. 3, Par. 2)
(2) Ambassadors, other public ministers and consuls
- those connected with the diplomatic and consular services of the
country.
(3) Officers of the armed forces from the rank of colonel or naval
captain
Q: What about officers of PNP of equivalent ranks?
A: No.
(2) Those who he may be authorized by law to appoint
The Congress may, by law, vest the appointment of other officers lower in
rank in the president alone, in the courts, or in the heads of departments,
agencies, commissions or boards.
SECOND PARAGRAPH: AD INTERIM APPOINTMENTS
Q: What are ad interim appointments?
A: AD INTERIM literally means “in the meantime” or “for the time being”.
- These are appointments made by the President when Congress is not in
session.
- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE
VI
– “xxx The Commission on Appointments shall meet only while the
Congress is in session xxx”.
- RATIONALE: Commission on Appointments meets when Congress is
in session so that even if Congress is not in session, the President is not
precluded from making an appointment.
Q: What are regular appointments?
A: These are appointments made by the President when Congress is in
session.
Q: What is the real distinction between the two?
A: The real distinction between ad interim and regular appointment lies in
the effectivity of the appointment.

(4) Other officers of the government whose appointments are vested in

him in this Constitution
EX: Chairmen and members of CSC, Comelec, COA (by express
provision)
Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)
EXCEPTION: Judges, Justices, Ombudsman (by the creation of the
JBC, their appointments no longer require confirmation)
Sectoral representatives in Congress (Teresita Quintos deles et al vs.
Commision on Constitutional Commission)

SECOND SENTENCE INSTANCES WHEN CONFIRMATION IS NO

LONGER REQUIRED
(1) All other officers of the government whose appointments are not
otherwise provided by law
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LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT
(1) ARTICLE VII, Sec. 13, Par. 2 – “The spouse and relative by
consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure be appointed as member of the Constitutional
Commissions, or the Office of the Ombudsman, or as secretaries,
undersecrataries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.”
(nepotic appointments)
- This is a prohibition against NEPOTISM on the President.
Q: To what positions?
A: (1) Constitutional Commissions – COA, Comelec, CSC
(2) Office of the Ombudsman
(3) Secretaries
(4) Undersecretaries
(5) Chairmen or heads of bureaus or offices, including GOCC’s and their
subsidiaries
(2) ARTICLE VII, Sec. 15 – “Two months immediately before the next
presidential elections and up to the end of his term, a President or acting
President shall not make appointments except temporary appointment to
executive positions when continued vacancies therein will prejudice public
service or endanger public safety.”
- This applies only to a presidential election: every 6 years.
Q: To what kind of appointment is this directed against?
A: This is directed against 2 types of appointments: (In Re: Valenzuela
and Vallaria)
(1) those made for buying votes (to influence the outcome of Presidential
elections)
- refers to those appointments made within the 2 months preceding a
Presidential election and are similar to those which are declared election
offenses in the Omnibus Election Code.
(2) those made for partisan considerations (the so-called “midnight
appointments”)
- refers to appointments made after election day but before the term of the
next president begins (30 June).
- Hence, this provision contemplate not only midnight appointments
(appointments made for partisan considerations where an outgoing
President fells up all vacant positions thereby preempting an incoming
president of his prerogative) but also appointments presumed made for
the purpose of influencing the outcome of the Presidential election.
Q: How do you detect if it’s a midnight appointment or for purpose of vote
buying?
A: If the appointment was made within 2 months immediately preceding
the presidential election, then the purpose is for vote-buying or to
influence the outcome of the elections. IF the appointment was made
after the Presidential election but before the outgoing president’s term
end (his term ends noon of June 30), then it is midnight appointment.
(3) ARTICLE VII, Sec. 13, Par. 1 – “The President, Vice President, the
Members of the Cabinet and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any
franchise, or special privilege, granted by the Government or any
subdivision, agency or instrumentality thereof, including government-
owned and controlled corporations or their subsidiaries. They shall strictly
avoid conflict in the conduct of their office.”
- This is a prohibition against HOLDING MULTIPLE POSITIONS.
Q: Directed against whom?
A: (1) President
(2) Vice President
(3) Member of the Cabinet and their deputies or assistants
- applies to private employment
- the idea is for them to focus in their functions
Q: What are the exceptions?
A: (1) unless otherwise provided in this Constitution
EX: The Vice President may be appointed as a Member of the
Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)
The Secretary of Justice is an ex-officio Member of the Judicial and Bar
Council (ARTICLE VIII, Sec. 8, Par. 1)
(2) If they will hold that other office in an ex-officio capacity. (Civil Liberties
Union vs. Exec. Sec.)
PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by
a member during his term without forfeiting his seat.
EX: Fiscal and PAO, Treasurer and Auditor, Congressman and Cabinet
Marcial-2J-SandovalNotes-2016
Secretary
ARTICLE VI, Sec 13 – “No Senator or Member of the House of
Representatives may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof,
including GOCC’s or their subsidiaries, during his term without forfeiting
his seat. Neither shall he be appointed to any office which may have been
created or emoluments thereof increased during the term for which he
was elected.
PRINCIPLE OF VACANCY
Q: Jose, an employee working for ten years already, was surprised to
learn that Pedro replaced him. Jose was removed. But the CSC ordered
the reinstatement of Jose which became final. Can Pedro validly complain
that there was a violation of security of tenure?
A: No. This is because there was no vacancy, hence security of tenure
did not attach.
2 PRINCIPLIES:
1. A person no matter how qualified cannot be appointed to an office
which is not vacant.
2. One who is illegally dismissed from office is, by fiction of law, deemed
not to have vacated his office. His security of tenure did not attach.
NEXT IN RANK RULE
Where can you find the said rule? Civil Service Law
What is the next in rank rule?
If there is a vacancy in a government office that ought to be filled up by
promotion, the person holding the position next thereto shall be
considered for promotion.
Q: If the next to the Head Chief Accountant is the Deputy accountant and
the third is the Administering Officer IV, then the office of Chief
Accountant became vacant and the then Deputy accountant and
Administering Officer IV applied, assume that another Chief Accountant
applied and was appointed, can the Deputy Accountant claim that there
was a violation of the next in rank rule?
A: No. The next in rank rule applies only in case of promotion. What is
involved here is a mere transfer, a lateral movement involving same rank
and position. In case of a promotion, vertical movement from lower to a
higher position.
Q: What if the one that was appointed was the Administering Officer, can
Deputy Accountant complain?
A: Yes, because it was filled by a promotion.
Q: Can the Deputy Officer claim that he should be the one to be
appointed?
A: No, appointment is discretionary.
Marcial-2J-SandovalNotes-2016
Rules:
1. It applies only in cases of promotion.
2. Even in promotions, it can be disregarded for sound reasons made
known to the next in rank as the concept does not import any mandatory
or
preemptory requirement that the person next in rank must be appointed to
the vacancy.
3. The appointing authority is allowed to fill vacancies by promotion,
transfer, reinstatement, etc.
4. There is no legal fiat that a vacancy must be filled only by promotion,
the appointing authority is given wide discretion to fill a vacancy from
among several alternatives provided by law.
5. One who is next in rank is entitled to preferential consideration for
promotion to higher vacancy BUT it does not necessarily follow that he
and no one else can be appointed.
DE JURE VS DE FACTO VS USURPER/INTRUDER
1. De Jure Officer – One who has lawful title. His acts are valid. His
title may not be questioned
2. De Facto Officer – One who is in actual possession but only has a
colorable title. His title is imperfect. His acts are valid insofar only
as third persons are concerned and the general public relied on
the said acts. His title may only be questioned directly in a quo
warranto proceedings.
3. Intruder/Usurper – No Title but in actual possession . His acts are
entirely void His acts may be questioned collaterally or directly.
Q: Is a De Facto Officer entitled to salary?
A: As a rule, No. This is because he is not allowed to benefit from his
acts. Otherwise it will encourage people to usurp other office. When he
assumes office knowing that his title is imperfect, he runs the risk of not
receiving a salary that attaches to the office.
EXCEPTIONS:
1. There is no de jure officer claiming for the salary OR
2. Assumption was made in good faith.
FLORES VS DRILON
SC: Gordon should not be made to reimburse for such emoluments.
Otherwise the gov‘t will be unjustly enriched by his services. Gordon was
a de facto officer.
Prescriptive Period to attack a colorable title:
- 1 year from the disposition from office. After 1 year, the de facto officer
will ripen into a de jure one.
REQUIREMENTS OF A DE FACTO OFFICERSHIP
1. Existence of a de jure office (NO such thing as a de facto office, office
is either valid or void)
2. Color of title.
3. Actual physical possession of the office.
DISQUALIFICATIONS:
Sec. 40, LGC. Disqualifications. – The following persons are disqualified
from running for any elective local position:
1. Those sentenced by final judgment for an offense involving moral
turpitude o r for an offense punishable by one year or more of
imprisonment within two years after serving the offense;
→ Within two years after serving the offense:
-partial disqualification
Q: What offenses?
A: Those sentenced by final judgment
1. Moral turpitude
2. Punishable by one year or more of imprisonment
DELA TORRE VS COMELEC
Violation of Anti-Fencing Law constitute an offense involving moral
turpitude.
2. Those removed from office as a result of an administrative offense;
→ Those removed from office as a result of an administrative offense:
LINGATING VS COMELEC
The administrative case must have attained finality for the disqualification
to apply. If still pending appeal or on certiorari, disqualification is not
applicable.
If the penalty is removal – disqualification shall apply
If the penalty is suspension – disqualification not applicable by express
provision of Sec. 66, LGC, as long as he meets the qualifications
required.
3. Those convicted by final judgment for violating an oath of allegiance to
the Republic;
4. Those with dual citizenship;
Marcial-2J-SandovalNotes-2016
5. Fugitives from justice in criminal or non-political cases here or abroad;
→ MARQUEZ JR VS COMELEC
In May 1995 election, Rodriguez ran for Governor (Quezon Province). He
won. Marquez, a defeated candidate, filed a disqualification case against
Rodriguez under sec. 40(e) after finding out that Rodriguez had criminal
charges against him of insurance fraud or grand theft of personal
property.
Contention of Rodriguez – Not fugitive from justice because he is not yet
convicted by final judgment.
SC: No. Fugitive from justice applies not only to those convicted by final
judgment and who absconds to evade punishment BUT also to one,
where a valid criminal information is already filed and he absconded to
evade jurisdiction.
RODRIGUEZ VS COMELEC
Although there was indeed fraud insurance case before the California
court, HE IS NOT A FUGITIVE FROM JUSTICE because the cases were
filed 5 months after he has returned to the Philippines, the controlling
factor was the intent to evade jurisdiction. He could not have the intent to
evade because there is no information yet.
6. Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
7. The insane or feeble-minded.
LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS
Art. V, Section 8 – The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three years
and no official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full
term for which he was elected.
Term: 3 years except barangay officials
Can serve for three consecutive terms
BORJA VS COMELEC
Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989, the
Mayor died, so he replaced the Mayor. During the 1992 elections, he ran
and won. In 1995, he again ran and won. In 1998, he ran again. His
qualification was questioned.
SC: Borja is qualified. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of
times before the disqualification can apply.
TWO POLICIES EMBODIED HERE:
1. To prevent the establishment of political dynasties
2. To enhance the freedom of choice of the people
TWO CONDITIONS FOR THE LIMITATION TO APPLY (both must
concur):
1. The local official must be elected for three consecutive terms for the
same position.
2. He has fully served the 3 consecutive terms.
If resigned: voluntary renunciation, not considered as an interruption from
office, limitation will apply
If suspended: interruption from office – involuntary renunciation
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
election. But there was an election protest regarding the 1995 election.
On March 1998, he was removed because of a COMELEC decision. Is he
qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
protest. In 1995, he is merely a presumptive winner. There is a failure of
the two conditions (LONZANIDA VS COMELEC).
Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he
ran and won again. In December 2000, as a result of an administrative
case, he was removed. He did not appeal. The administrative case
becomes final. Is he qualified to run in the 2001 election?
A: NO! He is disqualified to run because of Sec. 40 of the LGC and not
because of Art. X, Sec. 8.
LINGATING VS COMELEC – The administrative case must have attained
finality before the disqualification to apply. If still pending appeal or
certiorari, disqualification is not applicable.
Marcial-2J-SandovalNotes-2016
Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In
2000, as a result of an administrative case, he was removed but he has
able to appeal seasonably. In May 2001, he filed his certificate of
candidacy. The administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.
Q: What happens to his pending appeal?
A: It becomes moot and academic because of the Doctrine of
Condonation. The rationale for this is that when the electorate puts him
back to the position, it is presumed that they did so with knowledge of his
life, character and past mistakes.
SOCRATES VS COMELEC (Nov. 10, 2002, En Banc)
Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections. In the
next election, he ran as governor. However, he lost. Meanwhile, the one
elected as Mayor of Puerto Princesa was Socrates. Socrates‘ term started
June 30, 2001. After a year, a resolution calling for a special election was
passed. On the said special election, Hagedorn filed his certificate of
candidacy. His qualification was questioned.
SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and
reiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS
IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH
CONSECUTIVE TERM. In this case there is an intervening date.
Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run
again, is he qualified to run?
A: SC in the same case said that: The service of a recall term shall
constitute one full term. Reason: Elected official in a recall election should
know that the service of recall term shall constitute one full term. (OBITER
DICTUM)
MENDOZA VS COMELEC
In 1992, Tet Garcia won as governor. In 1993, Recall election was made,
Ting Roman won as governor. In 1995 and 1998 elections, Roman won
again. In 2001, Roman ran again. Is he qualified to run?
SC: He is qualified. Recall term is not a full term. Looking at the
Constitutinal records and the Constitution, it can be seen that they both
envision continuance and uninterrupted service of term. The service of
recall term should not be counted in applying the disqualification.
Q: With this ruling, has the ruling in Socrates been abandoned?
A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
No actual controversy yet.
Service of recall term will not constitute one full term in applying the
disqualification.
CIVIL SERVICE COMMISSION
One of the Constitutional Commissions
It is the central personnel agency of the government tasked to administer
all the civil service.
COMPOSITION AND QUALIFICATION
Art. IX-B, Sec. 1(1) – The civil service shall be administered by the Civil
Service Commission composed of a Chairman and 2 Commissioners who
shall be a natural born citizens of the Philippines, and at the time of their
appointment, at least 35 years of age, with proven capacity for public
administration, and must not have been a candidates for any elective
position in the elections immediately preceding their appointment.
SCOPE
Art. IX-B, sec. 2(1) – The Civil Service embraces all branches,
subdivisions, instrumentalities and agencies of the government, including
the GOCC with original charters.
TEST: WITH OR WITHOUT ORIGIANL CHARTERS
(1) If a GOCC was created by special law, it is with original charter
- The special law creating it is the charter
- It is governed by the Civil Service law
- In case of illegal termination, it is under the jurisdiction of the regular
courts
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS
(2) If a GOCC was incorporated pursuant to the General Corporation, it is
without original charter
-It is nor governed by Civil Service Law
-In case of illegal termination, jurisdiction is with the Labor Arbiter or
NLRC, hence governed by Labor Code.
Marcial-2J-SandovalNotes-2016
BOY SCOUTS OF THE PHILIPPINES VS NLRC
The BSP is an instrumentality attached to DECS and no less than the
President himself is the Chief Scout. No less than 7 members of the
Cabinet are members of the BSP. In short, there is so much government
exposure. They are governed Civil Service Laws and not the Labor Code.
CAMPOREDONDO VS NLRC
Baltazar Camparedondo was a chapter administrator of PNRC. During a
field audit, he was found short. His request for a re-audit by an
independent auditor of his account was denied. Thereafter, he filed with
NLRC a complaint for illegal dismissal. PNRC moved to dismiss the
complaint on the ground of lack of jurisdiction over the subject matter,
alleging that it is embraced within the Civil Service rules and regulations,
being a GOCC with an original charter. Camporedendo questioned this
contending that its charter was already amended corverting it to a public
corporation.
SC: Philippine National Red Cross is a GOCC with an original charter
under R.A> 95, as amended. The test to determine whether a corporation
is government owned or controlled or private in nature is simple. Is it
created by its own charter for the exercise of a public function or by
incorporation under the general incorporation law? Those with special
charters are government corporations subject to its own provisions and its
employees are under the jurisdiction of CSC and are compulsory
members of the GSIS. The PNRC was not impliedly converted to a
private corporation simply because its charter was amended.
Kinds of Appointments
1. Permanent – extended to one who possesses all the qualifications
including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but
without the civil service eligibility.
The law requires publication of all vacant positions in the government.
This is mandatory so that all eligible can apply.
Positions that need not be published include PRIMARILY
CONFIDENTIAL POSITIONS, which are co-terminus with the appointing
authority.
Duration of Temporary Appointment
- one year
- but it may even be shorter
Q: X was given an extended temporary appointment to a given office. In
the meantime, A took the Civil Service examination and passed. Is the
appointment status of X automatically converted to permanent?
A: NO! There is a need for a new appointment.
Regular employee – used in Labor Code only, not in Civil Service
CLASSIFICATION OF CIVIL SERVICE
1. Career Service
2. Non-career Service
BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career –
a. Entrance is based on merit and fitness to be determined based
on competitive examination or it is based on highly technical
qualifications;
b. There is security of tenure;
c. Opportunity for advancement to a higher position.
2. Non-Career –
a. Entrance is based other than those tests of merit and fitness
utilized for the career service;
b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the appointing authority or
subject to his pleasure; or
3. Limited to the duration of a particular project for which
the purpose for employment was made.
Q: How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
All elective officials occupy non-career positions since no examination is
required to be taken and the tenure is limited to a period specified by law.
HIGHLY TECHNICAL POSITIONS
- One which requires the possession of skill or training in the supreme or
superior degree
Ex: Scientist in the government service
Professors in the state universities
Marcial-2J-SandovalNotes-2016
Q: How do you classify highly technical positions?
A: Career
Q: Are engineers in the government occupy highly technical positions?
A: NO! They may possess technical skills or training but not in the
supreme or superior degree, hence non-career.
PRIMARILY CONFIDENTIAL POSITIONS
Q: What are their classifications?
A: Non-Career. There tenure is co-terminous with that of the appointing
authority or subject to his pleasure.
DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS
It is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office bur primarily close intimacy which
insures freedom from the intercourse without embarrassment from
misgivings or betrayals of personal trust or confidential matters of state.
GRINO VS CSC
The position of a provincial attorney is both highly technical and primarily
confidential position. But its predominant feature is primarily confidential.
Hence, he can be removed based on loss of trust or confidence. However
his staff is highly technical. He holds the position co-terminous with the
pleasure of the appointing authority. There is no removal but only
expiration of term.
When pleasure becomes displeasure, the term becomes fixed and
automatically expires. One who is holding a primarily confidential position,
who was removed from in the ground of loss of trust and confidence
cannot complain on the ground that there was a violation of his security of
tenure.
PROXIMITY RULE
- This is the test to determine whether or not the position is primarily
confidential or not. The distance between the positions of the appointing
authority and the employee is considered.
CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC with an original charter.
He was a supervisor of the dealers in the casino. He was suspected in
engaging in proxy betting. There was a discreet investigation conducted
of his act. He was later removed on the ground of loss of trust and
confidence. His defense was that he cannot be removed from office on
the ground that under the Constitution, no employee of the Civil Service
shall be removed except for causes provided by law. On the other hand,
PAGCOR contends that under its charter, all positions are primarily
confidential and hence may be removed in the ground of loss of
confidence. CSC affirmed his dismissal. On appeal, CA reversed and
applied the proximity rule.
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
The occupant of a particular position could be considered a confidential
employee if the predominant reason why he was chosen by the
appointing authority was the latter‘s belief that he can share a close
intimacy with the occupant which ensures freedom of discussion without
fear of embarrassment or misgivings of possible betrayal of personal trust
or confidential matters of the State.
Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made
only according to merit and fitness to be determined as far as practicable
and except to positions which are policy-determining, primarily
confidential or highly technical, by competitive examination. (It has
nothing to do with the classification of his position as career on non-
career).
ADMINISTRATIVE DISCIPILINARY CASES
Q: Who has jurisdiction over administrative disciplinary cases?
A: Under the Civil Service Law:
ORIGINAL: CSC or head of office, agency or bureau
APPEAL: CA under its expanded jurisdiction
Secretary/head of bureau- CSC- CA
CSC CA
Q: Can you bring an administrative case directly with the CSC?
A: Yes. CSC has original and appellate jurisdiction. Under the Civil
Service law, a complaint against a government official or employee may
be filed directly to the CSC (not only to the heads of office).
Q: Under LGC, where do you file?
A: Local Chief Executive
OMBUDSMAN ACT OF 1989 (RA 6770)
Marcial-2J-SandovalNotes-2016
- the charter of the Ombudsman
- under this law, the Ombudsman has disciplinary authority overall public
officers whether appointive or elective, national or local, except:
(1) Impeachable officers – Pres, VP, Members of SC, ConCon,
Ombudsman (Justices of the Sandiganbayan – not included).
(2) Members of Congress
(3) Members of the Judiciary
Appeal from the decision of Ombudsman in an administrative case
Under the Ombudsman Act - Directly to the Supreme Court (Remember,
the Constitution provides that no law shall be passed increasing the
appellate jurisdiction of the SC without its advice and concurrence.)
FABIAN VS DESIERTO
Direct appeal to the SC has been declared unconstitutional. Its enactment
was in violation of Art. VI Sec. 30 of the Constitution which provides that
no law shall be passed increasing the appellate jurisdiction of the SC
without its advice and concurrence. The provision in the Ombudsman Act
has the effect of increasing the appellate jurisdiction of the SC without its
advice and concurrence.
Now, the rule is: Ombudsman → CA
GOVERNOR LITO LAPID VS CA
An administrative case was filed against Lapid by the Ombudsman. After
investigation, it was found that he was guilty. The penalty was suspension
from office for one year without pay. He was able to appeal seasonably.
Ombudsman Desierto wanted to execute the decision pending appeal.
SC: Under the Ombudsman Act, only the following cases are final and
executory:
1. Provisional orders of the Ombudsman;
2. Decision where the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension against
Lapid is clearly not among those enumerated as immediately executory.
The clear import of these provisions, taken together, is that all other
decisions of the Office of the Ombudsman which impose penalty outside
than those which are enumerated are not final and unappealable, hence
not immediately executory. An appeal timely filed will suspend or stay
immediate execution of the decision.
APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES
Q: Is appeal available in administrative disciplinary cases?
A: Depends on the penalty imposed –
1. If the penalty is:
a. demotion;
b. dismissal;
c. suspension for more than 30 days or a fine equivalent to
more than 30 day salary;
Appeal is available.
2. If the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
Appeal will not lie; the decision is final and executory by express
provision of the law.
Appeal is not a constitutional right but merely a statutory right.
Why? Not part of the Constitution
Q: X was charged administratively, she was later on exonerated. May the
complainant appeal?
A: No. However, with respect to the meaning of party adversely affected,
the ruling under Paredes has already been abandoned. Hence the
answer now is YES.
PAREDES VS CSC
Appeal is not a constitutional right but merely a statutory right. A reading
of the Civil Service Law will tend to show that appeal is available only to
the party adversely affected by the decision. A further reading of the law,
the party adversely affected by the decision is the respondent who was
found guilty. In fact, even if he was found guilty but the penalty was
suspension or fine for not more than 30 days, appeal cannot be made
because the decision in such a case becomes final and executory. With
more reason that if he is exonerated, no more appeal. In an administrative
case, the real offended party is the government; the complainant is a
mere complaining witness so that he has no personality to pursue the
appeal. Hence, party adversely affected was limited to the defendant.
Marcial-2J-SandovalNotes-2016
CSC VS DACOYCOY
Dacoycoy was the head of a government vocational school in Samar.
Two of his sons were extended permanent appointment under his
administrative supervision although he was not the one who neither
appointed nor recommended them. A case was filed against him for
violation of the law on nepotism. CSC found him guilty. The penalty was
dismissal. As the party adversely affected, he appealed to CA. CA
exonerated him. If we will follow the Paredes ruling, there is no more
appeal and the complainant cannot appeal because is merely a
complaining witness.
SC: CSC can appeal because it was their decision that was reversed by
the CA. To this extent only, CSC became the party adversely affected. By
this ruling, the Paredes Doctrine, up to this extent, is abandoned. The
phrase ‗party adversely affected‘ refers to the government employee
against whom the administrative case is filed for the purpose of a
disciplinary action which may take the form of suspension, demotion in
rank or salary, etc. and not included are the cases where the penalty
imposed is suspension for not more than 30 days or fine in an amount not
exceeding 30 days salary. (PAREDES VS CSC)
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or
pending appeal. It should be distinguished from dismissal or suspension
which may only be imposed upon investigation and subsequent finding of
guilt.
BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it is imposed only during
the pendency of an administrative investigation. It is merely a measure of
precaution so that the employee who is charged may be separated for
obvious reasons, from the scene of his alleged misfeasance, ehilr the
same is being investigated. Thus, preventive suspension is distinct from
the administrative penalty of removal from office such as the one
mentioned in Sec 8 (d) of PD 807. While preventive suspension may be
imposed on a respondent during the investigation of the charges against
him, the removal from office is a penalty which may only be meted out
upon him at the termination of the investigation or the final disposition of
the case.
GLORIA VS CA
Preventive suspension pending investigation is not a penalty. It is simply
a means of preventing the latter from interfering or intimidating the
witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against Vice-Mayor Yabot by an
American doctor. He was placed under preventive suspension for 60
days. Yabot contends that he was already suspended and hence, can no
longer be suspended again.
SC: The first suspension that was imposed was not the penalty. It is
merely a preventive suspension. The second suspension was the penalty.
The two suspensions are of different nature. The service of preventive
suspension cannot be credited with the service of suspension as penalty.
LAYNO VS SANDIGANBAYAN
If the preventive suspension, however, becomes indefinite, so much that
the term of the elective official is about to expire and his suspension is not
yet lifted, in effect he was being penalized and considering that after the
investigation is not yet terminated, to that extent, there was a denial of
due process, hence must be nullified. Also, the right to due process of the
people who voted for him is likewise violated.
A preventive suspension that lasted for 5 years becomes an indefinite
suspension and therefore violative of due process.
A preventive suspension is not an action by itself but merely an incident
to an action.
To know what law is applicable in case of a preventive suspension,
determine first if administrative or criminal case.
A. ADMINISTRATIVE CASE
1. Civil Service Law
Period - 90 days
Case – Gloria vs CA
2. Local Government Code
Period – 60 days for appointive officials
 60 or 90 days fro elective officials
3. Ombudsman Act
Period – 6 months
Case – Hagad vs Gonzales
Marcial-2J-SandovalNotes-2016
B. CRIMINAL CASE
1. Anti-Graft and Corrupt Practices Act
Period – 90 days applying by analogy
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE
I. CIVIL SERVICE LAW
If one is charged administratively, while pending investigation, he can be
preventively suspended for a period of 90 days.
If after the lapse of the 90 day period and the investigation has not been
terminated, there will be an automatic reinstatement.
However if one contributed to the delay of the proceedings or has filed a
petition for certiorari, the period of the delay or certiorari will not be
included in the computation of the 90 day period of preventive
suspension.
Q: Who shall impose the preventive suspension?
A: The CHIEF of the office, agency or bureau shall be the disciplinary
authority.
GLORIA VS CA
During the teachers‘ strike, the public school teachers in this case did not
report for work. Accordingly, they were administratively charged and
placed under preventive suspension. The investigation concluded before
their 90 day suspension and they were found guilty. On appeal, Merit
Systems and Protection Board, later affirmed by the CSC, dismissed their
claim. Before the CA, they asked that they be paid for their salaries during
their suspension beyond 90 days. This was granted. Hence, Sec. Gloria
questioned this.
SC: The public school teachers are entitled to their salaries computed
from the time of their dismissal or suspension until their actual
reinstatement, for a period of not exceeding 5 years.
There are two kinds of preventive suspension of civil service employees
who are charged with offenses punishable by removal or suspension:
1. Preventive Suspension pending investigation
2. Preventive suspension pending appeal, if the penalty imposed is
suspension or dismissal and after review the respondent is exonerated on
appeal.
Preventive suspension pending investigation is not a penalty. It is a
measure intended to enable the disciplining authority to investigate
charges against the respondent by preventing the latter from intimidating
or in any way influencing witnesses against him. If the investigation is not
finished and the decision is not rendered within the period, the
suspension will be lifted and the respondent will automatically be
reinstated. If after the investigation, the respondent is found innocent of
the charges and is exonerated, he should be reinstated. However, no
compensation was due for the preventive suspension pending
investigation.
In case of a suspension pending appeal, he is entitled to compensation
for the period of their suspension pending appeal if eventually he is found
innocent. Why? It is actually punitive in character although it is in effect
subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he should be
reinstated with full pay for the period of the suspension.
SIGNIFICANCE OF THE DIFFERENCE:
Pending Investigation – not entitled. Why? Not a penalty but is entitled t
reinstatement.
Pending Appeal – if on appeal he is exonerated, he is entitled to full
backwages and reinstatement; it is punitive in character.
II. LOCAL GOVERNMENT CODE
1.) Sec. 85 LGC – ―Preventive Suspension of Appointive Local Officials
and Employees.
a.) The local chief executives may preventively suspend for a
period not exceeding sixty (60) days, any subordinate official or employee
under his authority pending investigation, if the charge against such
official or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty, or if there is reason to believe that
the respondent is guilty of the charges which would warrant his removal
from the service.
b.) Upon the expiration of the preventive suspension, the
suspended official or employee shall be automatically reinstated in office
without prejudice to the continuation of the administrative proceedings
against him until its termination, if the delay in the proceedings of the case
is due to the fault, neglect or request of the respondent, the time of the
delay shall not be counted in computing the period of suspension herein
provided.
Marcial-2J-SandovalNotes-2016
Q: Maximum period of preventive suspension?
A: 60 days
Q: Who shall impose?
A: the local chief executives
2.) Sec. 63 LGC- “Preventive Suspension. –
a.) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official
of a province, a highly urbanized or an independent component city;
(2) By the governor, if the respondent is an elective official
of a component city or municipality; or
(3) By the mayor, if the respondent is an elective official of
the barangay
b.) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and given the
gravity of the offense, there is great probability that the continuance in
office of the respondent could influence the witnesses or pose a threat to
the safety and integrity of the records and other evidence: Provided, that
any single preventive suspension of local elective officials shall not extend
beyond sixty (60)days; Provided further that in the event that several
administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single
year on the same ground or grounds existing and known at the time of
first suspension.
c.) Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without prejudice to
the continuation of the proceedings against him, which shall be
terminated within one hundred twenty (120) days from the time he was
formally notified of the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect or request, other than
the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
d.)Any abuse of the exercise of the power of preventive
suspension shall be penalized as abuse of authority.
Q: Period?
A: 60 days for every administrative charge
90 days if there are several administrative charges, during a given year
Q: who shall impose?
A: if respondent is-
a.) Barangay official – mayor
b.) Official of component city or municipality – Governor
c.) Official of independent component or highly urbanized city or province-
President
JURISDICTION
Appointive Officials
Q: Where do you file an administrative complaint against local appointive
officials?
A: From Local chief executive  Civil Service Commission  Court of
Appeals
Elective Officials
Q: where do you file an administrative complaint against local elective
offificals?
A: (1) Barangay official in a
a. Municipality- sangguniang bayanq
b. City – sangguniang panglungsod
(2) Official of a municipality – sangguniang panlalawigan
(3) City official and provincial official – Office of the President
*Sec. 63 relate to Sec. 62 (c) LGC – ―xxx no investigation shall be held
within ninety (90) days immediately prior to any local election, and no
preventive suspension shall be imposed within the said period. If the
preventive suspension has been imposed prior to the 90-day period
immediately preceding local election, it shall be deemed automatically
lifted upon the start of aforesaid period.‖
GANZON vs. CA
Ombudsman Act (RA 6770) – administrative jurisdiction
- The ombudsman or his deputy has the power to preventively suspend
- For a period of 6 months
HAGAD vs. JUDGE GOZO-DADOLE
An administrative case was filed against a Mayor in one of the towns in
Marcial-2J-SandovalNotes-2016
Visayas. He was placed under preventive suspension for 6 months. He
argued that being a local elective official his preventive suspension
cannot exceed 60 days as provided in the LGC and the LGC being later
enactment, is deemed to have repealed the Ombudsman Act with respect
to the imposition of the preventive suspension.
SC: There is nothing in the LGC (RA 7160) to indicate that it has repealed
the pertinent provisions of the Ombudsman Act (RA 6770). Repeals by
implication are not favored. Every statute must be so interpreted and
brought into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive suspension
under the LGC and the Ombudsman Act are different. The Ombudsman
has concurrent jurisdiction with the officers who have authority to impose
preventive suspension pursuant to Section 63 of LGC.
PREVENTIVE SUSPENSION IN CRIMINAL CASE
Anti-Graft and Corrupt Practices Act (RA 3019)
Section 13 RA 3019 – Suspension and Loss of Benefits – ―Any
incumbent public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the RPC or for
any offense involving fraud upon government or public funds or property
whether as simple or as complex offenses and in whatever stage of
execution and mode of participation, is pending in court shall be
suspended from office. Should he b e convicted by final judgment, he
shall lose all retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during the suspension, unless in the
meantime administrative proceedings have been filed against him.‖
Q: Who has the authority to impose preventive suspension?
A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR,
the Court interpreting Sec.13 held that ―It is the court where the criminal
case was filed that has the authority to impose preventive suspension
pursuant to Sec. 13.‖ It is not the fiscal or prosecutor nor the
Ombudsman. A court that has acquired jurisdiction will have to exercise
jurisdiction also over the incidence of the case.
Q: Before what court should the case be filed?
A: Depends –
a. Salary grade 27 and over – Sandiganbayan
b. Below salary grade 27 – RTC or MTC
―shall be suspended from office‖
 Preventive Suspension is mandatory. The Court has no discretion
whether to place the officer under preventive suspension or not.
 While preventive suspension is mandatory, it is NOT automatic. The
court must conduct a PRE-SUSPENSION HEARING, the purpose of
which is for the court to determine the validity of the criminal information
filed against the accused public officer. It is only when the court is
satisfied that the criminal information was validly filed that the court will
impose preventive suspension. Only then that the preventive suspension
becomes mandatory. (SOCRATES vs. SANDIGANBAYAN)
Q: What is the duration of the preventive suspension?
A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, the
court held that the Civil Service Law should be applied by analogy since
Sec. 13, RA 3019 is silent as to the duration of the preventive suspension.
Hence, the duration is ninety (90) days. There are no more cases now of
indefinite suspension.
BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN;
DELLOSA vs. SANDIGANBAYAN
X was a municipal mayor. He was criminally charged before the
Ombudsman. While the Ombudsman was investigating the criminal
complaint, there was an election. X ran for governor and won. In the
meantime, the Ombudsman filed the criminal case against him with the
Sandiganbayan. The Sandiganbayan issued the preventive suspension
against X. X now contends that he can no longer be preventively
suspended for the acts he did when he is still a mayor. SC: the contention
is not correct. The amendatory provisions clearly states that any
incumbent public officer against whom any criminal prosecution under a
valid information under RA 3019 or for any offense involving fraud upon
the government or public funds or property whether as a simple or as a
complex offense and in whatever stage or execution and mode of
participation, is pending in court shall be suspended from office. Thus by
the use of the word ―office‖ the same applies to any office which the
officer charged may be holding and not only the particular office which he
was charged.
*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.
*Moreover, should the purposes behind preventive suspension become
manifest, the respondent court is not bereft of remedies or sanctions. The
petitioner may still be suspended but for specifically expressed reasons
Marcial-2J-SandovalNotes-2016

and not from an automatic application of Section 13, RA 3019. positions. (FLORES vs. DRILON)

SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN 2. Article IX-B, Section 7, par 2 – ―Unless otherwise allowed by law or by
When X was a governor, a criminal complaint against him for violation of the primary functions of his position, no appointive official shall hold any
anti-graft was filed. While the Ombudsman was investigating, there was other office or employment in the Government or any subdivision, agency,
an election. X ran for Congressman and won. In the meantime, the or instrumentality thereof, including government owned and controlled
Ombudsman filed the criminal information against X before the corporations or their subsidiaries.‖
Sandiganbayan. The Sandiganbayan issued a suspension order
addressed to the Speaker of the House of Representatives for him to General Rule: Appointive official not allowed from holding other position in
carryout the order. The Speaker refused to execute because it violated the government
Section 16 par 3 Article VI of the Constitution (Each House may Exceptions: a. allowed by law
determine the rules of its proceedings, punish its own members for
disorderly behavior and either the concurrence of 2/3 of all its members, b. allowed by the primary functions of their position
suspend or expel a member. A penalty of suspension, when imposed (CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY)
shall not exceed 60 days)
3 . Article VII Section 13, par 1 – ―The President, Vice-President, the
SC: there is no encroachment here. What is being imposed by the
members of the Cabinet, and their deputies or assistants shall not, unless
Sandiganbayan is not a penalty but merely a preventive suspension.
otherwise provided in this Constitution, hold any other office or
Members of Congress are not exempted from the operation of Section 10,
employment during their tenure. They shall not, during said tenure,
RA 3019. The law says ―any incumbent public officer‖. We are only
directly or indirectly, practice any other profession, participate in any
interpreting the law as you wrote it. The Speaker of the House was held in
business or be financially interested in any contract with, or in any
contempt of the Sandiganbayan.
franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof. Including government
SUSPENSION AS A PENALTY
owned or controlled corporations or their subsidiaries. They shall strictly
Q: Can imprisonment of 10 days be imposed if found guilty?
avoid conflict of interest in the conduct of their duties.‖
A: No. Administrative cannot impose penalties which involve deprivation
of life and liberty. Hence cannot impose imprisonment,
General Rule: President, Vice President, Cabinet Members, deputies,
Doctrine of Condonation – only in administrative cases AGUINALDO vs.
assistants shall not hold any office or employment
SANTOS – term of elective officials are distinct from each other and when
*the provision is new
elected again the public is deemed to have condoned his past
*the prohibition is broad – covers both public and private position
misconduct; he cannot be punished under the new term of office.
Exception: Unless otherwise provided in the 1987 Constitution
e.g. 1) Vice President may become member of the Cabinet
PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS
2) Secretary of Justice is an ex-officio member of JBC
1. Article IX-B, Section 7, par 1 – ―No elective official shall be eligible for
appointment or designation in any capacity to any public office or position
CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY
during his tenure.‖
President Aquino issued an executive order (EO284) allowing her Cabinet
members to hold more than 2 offices. The appointments were challenged
General Rule: ―No elective official shall be eligible for appointment or
by the Civil Liberties Union. Defense of the Solicitor General, members of
designation in any capacity to any public office or position during his
the Cabinet are appointive officials hence Article IX-B sec 7 (2) shall apply
tenure.‖
and that they fall under the exception.
Exception: Elective official can hold other positions/ office in an ex-officio
SC: this cannot be allowed. The work of the cabinet members demands
capacity. The prohibition extends only to public and not to private
full time work. Their position is sui generis. Article VII, section 13 is a new
Marcial-2J-SandovalNotes-2016
provision. The reason is to avoid what happened in the Marcos era. It is a
special provision which applies to Cabinet members. Article IX-B sec. 7
(2) on the other hand is a general provision. Hence, the EO is
unconstitutional.
*see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006
4 . Article VI section 13 – ―No Senator or Member of the House of
Representatives may hold any other office or employment in the
government, or any subdivision, agency or instrumentality thereof,
including government owned or controlled corporations or their
subsidiaries during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created nor the emoluments
thereof increased during the term for which he was elected.
 Prohibition on incompatible and forbidden office
5. Article XVI, Section 5, par 4 – ― No member of the armed forces in the
active service shall, at any time be appointed or designated in any
capacity to a civilian position in the Government including government
owned or controlled corporations or any of their subsidiaries
6. Law on Nepotism
- Violation results to dismissal with forfeiture of benefits
- Found in the Civil Service Law
- Under Section 59, Civil Service Law – ― All appointments in the
national, provincial, city, and municipal governments or in any branch or
instrumentality thereof, including government owned or controlled
corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office or of the
persons exercising immediate supervision over him, are hereby
prohibited.
The word ―relative‖ and members of the family referred to are those
related within third (3rd) degree of either consanguinity of affinity.‖
CSC vs. DACOYCOY April 1999 En Banc
Under the law on nepotism, a public official is guilty of nepotism, if an
appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:
a. Appointing authority
b. Recommending authority
c. Chief of bureau or office
d. One who exercises immediate supervision over the appointee
SC: Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending authority
is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office, or the person
exercising immediate supervision over the appointee.
EXCEPTIONS TO THE LAW ON NEPOTISM
1. Teachers
2. Physicians
3. Persons employed in a confidential capacity
4. Members of the Armed Forces of the Philippines
5. Member of a family who, after his or her appointment to any position in
an office or bureau, contacts marriage with someone in the same office or
bureau, in which event, the employment or retention therein of both
husband and wife may be allowed.
Under Article VII, Section 13 – ― The President may not appoint his
spouse or relatives within the 4th civil degree of consanguinity or affinity
to
a. Member of Constitutional Commission
b. Office of the Ombudsman
c. Secretaries and Undersecretaries
d. Chairman, heads of bureau or offices
Prohibited relationships
- Under the Civil Service Law = 3rd Civil Degree
- Under the LGC = 4th civil degree SEC. 79. Limitation on Appointments. -
No person shall be appointed in the career service of the local
government if he is related within the fourth civil degree of consanguinity
or affinity to the appointing or recommending authority.
DEBULGADO vs. CIVIL SERVICE COMMISSION
It was contended that the law on nepotism applies only to original
appointments but not to promotional appointments.
SC: The law on nepotism applies to all kinds of appointment because the
law does not distinguish.
A textual examination of Section 69 at once reveals that the prohibition
was cast in comprehensive and unqualified terms. Firstly, it explicitly
covers ―all appointments‖ without seeking to make ay distinction
between differing kinds or types of appointments. Secondly, Section 59
Marcial-2J-SandovalNotes-2016
covers all appointments to the national, provincial, city, and municipal
governments, as well as any branch or instrumentality thereof and all
government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list.
Both an original appointment and a promotion are particular species of
personnel action. The original appointment of a civil service employee
and all subsequent personnel actions undertaken by or in respect of that
employee such as promotion, transfer, reinstatement, reemployment, etc.
must comply with the Implementing Rules including of course the
prohibition against nepotism in Rule XVIII.
The conclusion we reach is that Section 59 Book V, EO 292 means
exactly what it says in plain and ordinary language. It refers to all
appointments whether original or promotional in nature. The public policy
embodied in section 59 is clearly fundamental in importance, and the
court has neither authority nor inclination to dilute that important public
policy by introducing a qualification or discretion here. LAUREL vs. CSC
Laurel who was the governor of Batangas granted his brother, Benjamin
Laurel a promotional appointment as Civil Security Officer, a position
classified as primary confidential by the Civil Service.
Q: Was there a violation of the law on nepotism?
A: No. It is under the exceptions of the law
Later on, he designated his brother to the position of Provincial
Administrator a position in the Career Civil Service. Laurel contends that
he did not violate the law on nepotism because he merely designated his
brother not appointed him. Designation presupposes that he has already
been appointed and merely given additional function.
SC: The appointment or designation as Acting Provincial Administrator
was violative of the prohibition against nepotism, then embodied in
Section 49 PD No. 807. Moreover, the Court emphatically agrees with the
CSC that although what was extended to Benjamin was merely a
designation and not an appointment xxx the prohibitive mantle on
nepotism would include designation because what cannot be done
directly cannot be done indirectly. We cannot accept petitioner‘s view. His
specious and tenuous distinction between appointment and designation is
nothing more than either a play ingeniously conceived to circumvent the
rigid rule on nepotism or a last ditch maneuver to cushion the impact of its
violation. The rule admits of no distinction between appointment and
designation. ―Designation‖ is also defined as all appointment or
assignment to a particular office, and ―to designate‖ means to indicate,
select, appoint, or set apart for a purpose of duty.
*for purposes of the law on nepotism, appointment and designation are
the same.
7. Section 90, LGC – ―Practice of Profession –
(a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage
in any occupation, or teach in schools except during session hours,
Provided, that sanggunian members who are also members of the Bar
shall not:
(1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency or instrumentality of
the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is accused of an
offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an official;
and
(4) Use property and personnel of the Government except
when the Sanggunian member concerned is defending the interest of the
government.
(c) Doctors of medicine may practice their profession even during
official hours of work only on occasions of emergency. Provided, that
officials concerned do not derive monetary compensation therefrom.
Q: Can a mayor practice his profession?
A: No.
Q: Can members of the sanggunian practice their profession?
A: Yes, except during session hours.
Q: Can Vice mayor exercise his profession?
A: Yes. Vice Mayor belongs to the legislative, while sanggunian members
must be interpreted in general terms. There is no prohibition. Hence, the
Vice Mayor can e belongs to the legislative, while sanggunian members
must be interpreted in general terms. There is no prohibition. Hence, the
Vice Mayor can exercise or practice his profession. However, in case the
Vice Mayor becomes acting mayor or acting governor, he cannot practice
or exercise his profession because in such case then, he exercises an
Marcial-2J-SandovalNotes-2016

executive position. (Atty. Sandoval) (e) Fugitives from justice in criminal or nonpolitical cases here or
abroad;
JAVELLANA vs. DILG (f) Permanent residents in a foreign country or those who have
Atty. Javellana is a member of the Sanggunian Panlalawigan. Two of the acquired the right to reside abroad and continue to avail of the same right
employees of the Provincial Engineer‘s Office were removed. They asked after the effectivity of this Code; and
for his assistance and so Atty. Javellana appeared in their behalf. He was (g) The insane or feeble-minded.
prohibited from appearing on the ground that the same is prohibited by
the LGC where the adverse party is the government. He went to the
Supreme Court and challenged the constitutionality of Section 90, LGC on
two grounds: 1) the provision is unconstitutional because it encroached
the power of the Supreme Court to regulate the practice of law; and 2) the
provision violates the equal protection clause because the law profession
was singled out.
SC: There is no encroachment on the power of the SC to regulate the
practice of law. Section 90 LGC is a reasonable regulation designed to
ensure that there shall be no conflict of interest in the exercise of his
functions as a sanggunian member and his function as a lawyer.
There is no violation of the equal protection clause. Under the equal
protection clause, not all classifications are invalid. There is a substantial
distinction between the law profession and the other professions. Of all
the professions, it is this profession that is most likely to affect the area of
public service.
Moreover, Section 90 LGC does not discriminate against lawyers and
doctors. It applies to all provincial and municipal officials in the
professions or engaged n any occupation. It explicitly provides that
Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours. If there are
some prohibitions that apply particularly to lawyers, it is because of all the
professions, the practice of law is more likely than others to relate to, or
affect, the area of public service.

8 . SEC. 40. Disqualifications. - The following persons are disqualified

from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative
case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;