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ADMINISTRATIVE LAW ADMINISTRATIVE AGENCIES


- Promulgated by Pres. Aquino when she still had legislative powers · Generally, the function is EXECUTIVE
pursuant to Article XIII, Section 6 (The incumbent President shall continue · It implements or enforces
to exercise legislative powers until the First Congress is convened). Ex: COMELEC - main function is to enforce the laws relative to the
-took effect in 1989, only after 2 years. conduct of election.
The Code is a general law and incorporates into a unified document the - This is an executive function.
major structural, functional and procedural principles of governance and · But the law may vest the agency quasi-judicial and quasi-legislative
embodies changes in administrative structures and procedures designed powers.
to serve the people (Ople v. Torres).
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
Two important definitions of Administrative Law -refers to the corporate governmental entity through which the functions of
1. Dean Roscoe Pound 💕 🦄 the government are exercised throughout the Philippines including
it is that branch of modern law under the executive department of the various arms through which political authority is made effective in the
government, acting in quasi-legislative or quasi-judicial capacity, Philippines, whether pertaining to the autonomous regions, the provincial,
interferes with the conduct of individual for the purpose of promoting the city, municipal or barangay subdivisions or other forms of local
well being of the community. government.

2. Professor Goodnow 💕 🦄 2 COMPONENTS:


it is that part of public law which fixes the organization of the government (1) Corporate governmental entity, through which the functions of
and determines the competence of the authorities who execute the law government are exercised throughout the Philippines.
and indicates to the individual remedies for the violation of his rights. In (2) Various arms through which political authority is made effective in the
both definitions, the focus is on the executive department acting in quasi- Philippines.
legislative and quasi-judicial functions. · Thus, LOCAL GOVERNMENTS are included in the definition of
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
THREE IMPORTANT DOCTRINES
(1) DOCTRINE OF QUALIFIED POLITICAL AGENCY (a) They are referred to as “various arms through which political
The members of the cabinets are deemed alter egos of the President so authority is made effective in the Philippines” (ADMINISTRATIVE CODE)
that their decision and acts performed in the regular course of business (b) They are referred to as “territorial and political subdivisions of
are deemed acts or decisions of the President UNLESS reprobated by the the Republic of the Philippines (Article X, Section 1, 1987
President. CONSTITUTION).

(2) EXHAUSTION OF ADMINISTRATIVE REMEDY “The territorial and political subdivisions of the Republic of the Philippines
Whenever there is an available administrative remedy provided by law, no are the provinces, cities, municipalities and barangays. There shall be
judicial recourse can be made until all such remedies have been availed autonomous regions in Muslim Mindanao and the Cordilleras.”
of and exhausted.
*Under the first component, whether the agency is an incorporated or
(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT unincorporated agency of the government is included in the definitions.
The courts cannot and will not resolve a controversy involving a question,
which is within the jurisdiction of an administrative tribunal. Q. Are government owned or controlled corporations (GOCC's) part of the
definition of the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES?
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A. It depends - Introductory Provisions E.O. 292)


(1) If the GOCC is performing governmental function, then it is part of the - Ex: BIR under DOF, NBI under DOJ
definition.
(2) If the GOCC is performing proprietary function, then it is not part of the 4. OFFICE
definition. - refers to any major functional unit of a department or bureau including
Q. When is a GOCC deemed to be performing proprietary function? regional offices.
Governmental function? - Ex: Regional Office of the Bureau of Lands.
A. If the purpose is to obtain special corporate benefits, or earn pecuniary
profit intended for private benefit, advantage - the function is proprietary. 3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS
If it is in the interest of health, safety or the advancement of public good (Section 38, Chapter 7, Book IV)
and welfare affecting the public in general - the function is governmental.
💕🦄 (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
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and program coordination. The coordination may be accomplished by corporations to the extent of fifty-one (51%) percent of its capital stock xxx
having the department represented in the governing board of the attached (Section 2[13] Introductory provisions, E.O. 292)
agency or corporation either as chairman or as a member, with or without - Provided, the GOCC's may be further categorized by the Department of
voting rights. Budget, Civil Service Commission and the Commission on Audit for
If this is permitted by the charter, having the attached corporation or purposes of the exercise and discharge of their respective powers,
agency comply with a system of periodic reporting which shall reflect the functions and responsibilities with respect to such corporations.
progress of programs and projects and having the department or its · These instrumentalities are NOT integrated to the department
equivalent provide general policies through its representative in the board, framework.
which shall serve as the framework for the internal policies of the attached · They do not fall within the control power of the president over the
corporation or agency.” departments.
· Under Article VII, Section 17, Instrumentalities are not included.
OTHER AGENCIES
1. INSTRUMENTALITY Q. What are the administrative relationships involved?
- refers to any agency of the National Government, not integrated within A. (1) Regulatory Agencies - mere administrative supervision, to oversee
the department framework vested with special functions or jurisdiction by with no interference with the day-to-day operation.
law, endowed with some if not all corporate powers, administering special Ex: the relationship between NLRC and Secretary of Labor (Vertical
funds, and enjoying operational autonomy, usually through a charter. relationship)
– this term includes regulatory agencies, chartered institutions and (2) Chartered Institution/GOCC - attachment, lateral relationship
GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292) involving planning and program coordination.

2. REGULATORY AGENCY POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
- refers to any agency expressly vested with jurisdiction to regulate, Q. Generally, how will you describe the functions of an administrative
administer, or adjudicate matters affecting substantial rights and interests agency?
of private persons, the principal powers of which are exercised by a A. The functions of an administrative agency are to enforce, implement,
collective body, such as a commission, board or council. (Sec. 2[4] administer and execute laws.
Introductory Provisions, E.O. 292)
- Ex: PRC, NLRC, SEC, Insurance Commission Q. What kind of function?
A. Executive. These agencies belong to the executive branch. They do
3. CHARTERED INSTITUTIONS not perform legislative and judicial functions. However, these agencies
- refers to any agency organized or operating under a special charter, and may perform quasi-legislative and quasi-judicial functions.
vested by law with functions relating to specific constitutional policies or Ex: COMELEC - to administer all laws relative to plebiscite,
objectives. referendum, recall
- this term includes the state universities and colleges and the monetary CSC - to administer the Civil Service Law
authority of the state. Section 2 [12] Introductory Provisions, E.O. 292) Note: Not all administrative agencies perform all kind of functions.
Ex: BSP Ex: NLRC - exercises in general quasi-judicial function
DOLE - the agency that administers labor law
4. GOVERNMENT-OWNED OR CONTROLLED CORPORATION SEC - has an executive function and quasi-legislative; no more
- refers to any agency organized as a stock or non-stock corporation, quasi-judicial
vested with functions relating to public needs whether governmental or LTFRB - has quasi-judicial function
proprietary in nature, and owned by the government directly or through its CSC - has an executive, quasi-legislative and quasi-judicial power
instrumentalities either wholly or where applicable as in the case of stock
Marcial-2J-SandovalNotes-2016 Read Imbong vs Ochoa-RH law-IRR expanded
meaning hence void
QUASI-LEGISLATIVE POWER 💕 🦄 - This is a delegation to the Secretary of Finance. Without this delegated
Q. What do you mean by Quasi-legislative? authority, the Secretary of Finance may not exercise the power.
A. It refers to the power or authority of an administrative agency to · The delegation must be valid. Even if the power has been delegated, if
promulgate rules and regulations in order to implement a law or a given the delegation is invalid, the exercise of the power becomes an abdication
legislative policy. of powers. Hence, it is not just a matter of delegating the power. The
delegation must be valid.
Q. Other names?
A. (1) Rule-making power of an agency TEST OF A VALID DELEGATION
(2) Power of Subordinate Legislation (1) COMPLETENESS TEST: The law delegating the power must be
· QUASI-LEGISLATIVE POWER includes the power to promulgate complete in all its terms and conditions when it leaves the Congress, so
ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES AND when it reaches the delegates, it will have nothing to do but to enforce it.
REGULATIONS (IRR), which are pieces of subordinate legislation called (2) SUFFICIENT STANDARD TEST: The law must offer a sufficient
mini-laws, which may take the form of circulars or memoranda, but which standard, which are determinate, or at least determinable to specify the
cannot prevail over the laws. limits of the delegate’s authority, announce the legislative policy and
specify the conditions under which is to be implemented.
Q. In what capacity did the Secretary of Labor acted in promulgating the
rules and regulations implementing the Labor Code? KINDS OF ADMINISTRATIVE REGULATIONS
A. He acted in his quasi-legislative capacity. (1) LEGISLATIVE Regulation
· In exercising quasi-legislative functions, the administrative agency is a. Contingent
acting like Congress but not to enact laws. They cannot have more b. Supplemental
powers than Congress. (2) INTERPRETATIVE Regulation
· An administrative agency may not exercise this quasi-legislative function
unless it has been expressly delegated to it. It is a delegated power. Q. What is their distinction?
A. If the regulation is merely interpretative, it will not require publication.
DOCTRINE OF DELEGATION OF POWERS · When Article 2 of the New Civil Code refers to laws, these do not only
GENERAL RULE: A power that has already been delegated may no refer to those enacted by Congress but includes administrative
longer be delegated. regulations promulgated by administrative bodies in their quasi-legislative
functions except those which are merely internal or interpretative in
EXCEPTIONS: Instances of Permissible Delegation of Powers: nature. (Tanada v. Tuvera)
(1) Delegation to the PEOPLE through plebiscite and referendum
(2) Delegation of EMERGENCY POWERS to the President Q. What are the REQUISITES OF A VALID ADMINISTRATIVE
(3) Delegation to the President of TARIFF POWERS REGULATION?
(4) Delegation to ADMINISTRATIVE BODIES A. (1) Its promulgation must be authorized by the legislature
(5) Delegation to the LOCAL GOVERNMENT (2) It must be within the scope of authority given by the legislature
· The delegation to administrative bodies simply deals with Quasi- (3) It must be promulgated in accordance with the prescribed procedure
Legislative powers. (4) It must be reasonable
(5)
Ex: Under Section 244, NIRC, “The Secretary of Finance, upon FIRST REQUISITE: its promulgation must be authorized by the
recommendation of the Commissioner shall promulgate all needful rules legislature - meaning, there is a valid delegation of power.
and regulations for the effective enforcement of the provisions of this
code.” SECOND REQUISITE: it must be within the scope of authority given by
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the legislature. LAW ON PUBLIC OFFICERS


- in the exercise of the delegated authority to promulgate administrative What is a public office? It refers to the right, authority or duty created and
regulations, the administrative agency cannot amend the main law it conferred by law by which for a given period either fixed by law or
seeks to implement. Otherwise, the delegate will act in excess of enduring at the pleasure of the creating power, an individual is invested
authority. with some sovereign power of the sovereign function of the government,
to be exercised by that individual for the benefit of the public.
THIRD REQUISITE: it must be promulgated in accordance with the
prescribed procedure. Elements: CD-DIP 💕 🦄
– among the prescribed procedure is the requirement of: 1. It is created by law or authority of law
a. PUBLICATION -the powers to create and abolish public office are vested in the legislative
· The clear objective of Article 2 of the NCC is to give the general public -power to abolish is not absolute, it must be done in good faith
adequate notice of the various laws, which are to regulate their actions
and conduct as citizens. Without such notice and publication, there would 2. Possess a delegation of a portion of the sovereign powers of the
be no basis for the application of the maxim ignorantia legis non excusat. government, to be exercised for the benefit of the public.
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 3. Powers conferred and duties imposed must be defined directly of
even a constructive one. impliedly by the legislature.

GR: Publication is required not only to laws passed by Congress, but 4. Duties must be performed independently and without the control of a
includes administrative regulations, which are issued in the exercise of superior power other than the law.
quasi-legislative power of the administrative agencies.
EXPNs: 5. Must have permanence or continuity.
(1) interpretative regulation
(2) internal regulation Is salary an element in public office? No. It is merely an incident of public
office.
b. Furnish a copy of the administrative regulation to the UP LAW - Congress can pass a law eliminating salaries. As a rule this cannot be
CENTER questioned. If Congress can remove the public office itself, then by all
- “Every agency shall file with the UP Law Center three (3) certified copies means. It may remove its incidence. However, everything must be done
of every rule adopted by it” on good faith.
– 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 Characteristics of a public office: PHOP 💕 🦄
act that gives the rules force and effect. 1. Public office is a public trust
– It is merely entrusted to the public officer
FOURTH REQUISITE: it must be reasonable Article XI (Accountability of Public Officer), Sec. 1 provides: “Public
- it must not be unreasonable, whimsical, oppressive, confiscatory Office is a public trust. Public Officers and employees must at all means
- must pass the test of reasonableness be accountable to the people, serve them with utmost responsibility,
- absence of one of these, the administrative regulation ought to be integrity, loyalty and efficiency, and act with patriotism, justice and lead
invalidated. with modest lives.

Quasi-Judicial: a) jurisdiction; b) due process 2. It is not a heritable possession


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

(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 president of his prerogative) but also appointments presumed made for
(1) ARTICLE VII, Sec. 13, Par. 2 – “The spouse and relative by the purpose of influencing the outcome of the Presidential election.
consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure be appointed as member of the Constitutional Q: How do you detect if it’s a midnight appointment or for purpose of vote
Commissions, or the Office of the Ombudsman, or as secretaries, buying?
undersecrataries, chairmen or heads of bureaus or offices, including A: If the appointment was made within 2 months immediately preceding
government-owned or controlled corporations and their subsidiaries.” the presidential election, then the purpose is for vote-buying or to
(nepotic appointments) influence the outcome of the elections. IF the appointment was made
- This is a prohibition against NEPOTISM on the President. after the Presidential election but before the outgoing president’s term
end (his term ends noon of June 30), then it is midnight appointment.
Q: To what positions?
A: (1) Constitutional Commissions – COA, Comelec, CSC (3) ARTICLE VII, Sec. 13, Par. 1 – “The President, Vice President, the
(2) Office of the Ombudsman Members of the Cabinet and their deputies or assistants shall not, unless
(3) Secretaries otherwise provided in this Constitution, hold any other office or
(4) Undersecretaries employment during their tenure. They shall not, during said tenure,
(5) Chairmen or heads of bureaus or offices, including GOCC’s and their directly or indirectly, practice any other profession, participate in any
subsidiaries business, or be financially interested in any contract with, or in any
franchise, or special privilege, granted by the Government or any
(2) ARTICLE VII, Sec. 15 – “Two months immediately before the next subdivision, agency or instrumentality thereof, including government-
presidential elections and up to the end of his term, a President or acting owned and controlled corporations or their subsidiaries. They shall strictly
President shall not make appointments except temporary appointment to avoid conflict in the conduct of their office.”
executive positions when continued vacancies therein will prejudice public - This is a prohibition against HOLDING MULTIPLE POSITIONS.
service or endanger public safety.”
- This applies only to a presidential election: every 6 years. Q: Directed against whom?
A: (1) President
Q: To what kind of appointment is this directed against? (2) Vice President
A: This is directed against 2 types of appointments: (In Re: Valenzuela (3) Member of the Cabinet and their deputies or assistants
and Vallaria) - applies to private employment
(1) those made for buying votes (to influence the outcome of Presidential - the idea is for them to focus in their functions
elections) Q: What are the exceptions?
- refers to those appointments made within the 2 months preceding a A: (1) unless otherwise provided in this Constitution
Presidential election and are similar to those which are declared election EX: The Vice President may be appointed as a Member of the
offenses in the Omnibus Election Code. Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)
The Secretary of Justice is an ex-officio Member of the Judicial and Bar
(2) those made for partisan considerations (the so-called “midnight Council (ARTICLE VIII, Sec. 8, Par. 1)
appointments”) (2) If they will hold that other office in an ex-officio capacity. (Civil Liberties
- refers to appointments made after election day but before the term of the Union vs. Exec. Sec.)
next president begins (30 June).
- Hence, this provision contemplate not only midnight appointments PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by
(appointments made for partisan considerations where an outgoing a member during his term without forfeiting his seat.
President fells up all vacant positions thereby preempting an incoming EX: Fiscal and PAO, Treasurer and Auditor, Congressman and Cabinet
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Secretary PRINCIPLE OF VACANCY


Q: Jose, an employee working for ten years already, was surprised to
ARTICLE VI, Sec 13 – “No Senator or Member of the House of learn that Pedro replaced him. Jose was removed. But the CSC ordered
Representatives may hold any other office or employment in the the reinstatement of Jose which became final. Can Pedro validly complain
Government, or any subdivision, agency, or instrumentality thereof, that there was a violation of security of tenure?
including GOCC’s or their subsidiaries, during his term without forfeiting A: No. This is because there was no vacancy, hence security of tenure
his seat. Neither shall he be appointed to any office which may have been did not attach.
created or emoluments thereof increased during the term for which he
was elected. 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.
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Rules: Prescriptive Period to attack a colorable title:


1. It applies only in cases of promotion. - 1 year from the disposition from office. After 1 year, the de facto officer
2. Even in promotions, it can be disregarded for sound reasons made will ripen into a de jure one.
known to the next in rank as the concept does not import any mandatory
or REQUIREMENTS OF A DE FACTO OFFICERSHIP
preemptory requirement that the person next in rank must be appointed to 1. Existence of a de jure office (NO such thing as a de facto office, office
the vacancy. is either valid or void)
3. The appointing authority is allowed to fill vacancies by promotion, 2. Color of title.
transfer, reinstatement, etc. 3. Actual physical possession of the office.
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 DISQUALIFICATIONS:
among several alternatives provided by law. Sec. 40, LGC. Disqualifications. – The following persons are disqualified
5. One who is next in rank is entitled to preferential consideration for from running for any elective local position:
promotion to higher vacancy BUT it does not necessarily follow that he
and no one else can be appointed. 1. Those sentenced by final judgment for an offense involving moral
turpitude o r for an offense punishable by one year or more of
DE JURE VS DE FACTO VS USURPER/INTRUDER imprisonment within two years after serving the offense;
1. De Jure Officer – One who has lawful title. His acts are valid. His → Within two years after serving the offense:
title may not be questioned -partial disqualification
2. De Facto Officer – One who is in actual possession but only has a Q: What offenses?
colorable title. His title is imperfect. His acts are valid insofar only A: Those sentenced by final judgment
as third persons are concerned and the general public relied on 1. Moral turpitude
the said acts. His title may only be questioned directly in a quo 2. Punishable by one year or more of imprisonment
warranto proceedings. DELA TORRE VS COMELEC
3. Intruder/Usurper – No Title but in actual possession . His acts are Violation of Anti-Fencing Law constitute an offense involving moral
entirely void His acts may be questioned collaterally or directly. turpitude.

Q: Is a De Facto Officer entitled to salary? 2. Those removed from office as a result of an administrative offense;
A: As a rule, No. This is because he is not allowed to benefit from his → Those removed from office as a result of an administrative offense:
acts. Otherwise it will encourage people to usurp other office. When he LINGATING VS COMELEC
assumes office knowing that his title is imperfect, he runs the risk of not The administrative case must have attained finality for the disqualification
receiving a salary that attaches to the office. to apply. If still pending appeal or on certiorari, disqualification is not
applicable.
EXCEPTIONS: If the penalty is removal – disqualification shall apply
1. There is no de jure officer claiming for the salary OR If the penalty is suspension – disqualification not applicable by express
2. Assumption was made in good faith. provision of Sec. 66, LGC, as long as he meets the qualifications
required.
FLORES VS DRILON
SC: Gordon should not be made to reimburse for such emoluments. 3. Those convicted by final judgment for violating an oath of allegiance to
Otherwise the gov‘t will be unjustly enriched by his services. Gordon was the Republic;
a de facto officer. 4. Those with dual citizenship;
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5. Fugitives from justice in criminal or non-political cases here or abroad; qualification was questioned.
→ MARQUEZ JR VS COMELEC SC: Borja is qualified. The term limit for elective local officials must be
In May 1995 election, Rodriguez ran for Governor (Quezon Province). He taken to refer to the right to be elected as well as the right to serve in the
won. Marquez, a defeated candidate, filed a disqualification case against same elective position. Consequently, it is not enough that an individual
Rodriguez under sec. 40(e) after finding out that Rodriguez had criminal has served three consecutive terms in an elective local office, he must
charges against him of insurance fraud or grand theft of personal also have been elected to the same position for the same number of
property. times before the disqualification can apply.
Contention of Rodriguez – Not fugitive from justice because he is not yet TWO POLICIES EMBODIED HERE:
convicted by final judgment. 1. To prevent the establishment of political dynasties
SC: No. Fugitive from justice applies not only to those convicted by final 2. To enhance the freedom of choice of the people
judgment and who absconds to evade punishment BUT also to one,
where a valid criminal information is already filed and he absconded to TWO CONDITIONS FOR THE LIMITATION TO APPLY (both must
evade jurisdiction. concur):
1. The local official must be elected for three consecutive terms for the
RODRIGUEZ VS COMELEC same position.
Although there was indeed fraud insurance case before the California 2. He has fully served the 3 consecutive terms.
court, HE IS NOT A FUGITIVE FROM JUSTICE because the cases were
filed 5 months after he has returned to the Philippines, the controlling If resigned: voluntary renunciation, not considered as an interruption from
factor was the intent to evade jurisdiction. He could not have the intent to office, limitation will apply
evade because there is no information yet.
If suspended: interruption from office – involuntary renunciation
6. Permanent residents in a foreign country or those who have acquired Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
the right to reside abroad and continue to avail of the same right after the election. But there was an election protest regarding the 1995 election.
effectivity of this Code; and On March 1998, he was removed because of a COMELEC decision. Is he
7. The insane or feeble-minded. qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS protest. In 1995, he is merely a presumptive winner. There is a failure of
Art. V, Section 8 – The term of office of elective local officials, except the two conditions (LONZANIDA VS COMELEC).
barangay officials, which shall be determined by law, shall be three years
and no official shall serve for more than three consecutive terms. Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he
Voluntary renunciation of the office for any length of time shall not be ran and won again. In December 2000, as a result of an administrative
considered as an interruption in the continuity of his service for the full case, he was removed. He did not appeal. The administrative case
term for which he was elected. 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
Term: 3 years except barangay officials because of Art. X, Sec. 8.
Can serve for three consecutive terms
LINGATING VS COMELEC – The administrative case must have attained
BORJA VS COMELEC finality before the disqualification to apply. If still pending appeal or
Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989, the certiorari, disqualification is not applicable.
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
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Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In Q: With this ruling, has the ruling in Socrates been abandoned?
2000, as a result of an administrative case, he was removed but he has A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
able to appeal seasonably. In May 2001, he filed his certificate of No actual controversy yet.
candidacy. The administrative case was not yet decided. Is he qualified? Service of recall term will not constitute one full term in applying the
A: Yes he is qualified to run. disqualification.

Q: What happens to his pending appeal? CIVIL SERVICE COMMISSION


A: It becomes moot and academic because of the Doctrine of One of the Constitutional Commissions
Condonation. The rationale for this is that when the electorate puts him It is the central personnel agency of the government tasked to administer
back to the position, it is presumed that they did so with knowledge of his all the civil service.
life, character and past mistakes.
COMPOSITION AND QUALIFICATION
SOCRATES VS COMELEC (Nov. 10, 2002, En Banc) Art. IX-B, Sec. 1(1) – The civil service shall be administered by the Civil
Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections. In the Service Commission composed of a Chairman and 2 Commissioners who
next election, he ran as governor. However, he lost. Meanwhile, the one shall be a natural born citizens of the Philippines, and at the time of their
elected as Mayor of Puerto Princesa was Socrates. Socrates‘ term started appointment, at least 35 years of age, with proven capacity for public
June 30, 2001. After a year, a resolution calling for a special election was administration, and must not have been a candidates for any elective
passed. On the said special election, Hagedorn filed his certificate of position in the elections immediately preceding their appointment.
candidacy. His qualification was questioned. SCOPE
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 Art. IX-B, sec. 2(1) – The Civil Service embraces all branches,
IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH subdivisions, instrumentalities and agencies of the government, including
CONSECUTIVE TERM. In this case there is an intervening date. the GOCC with original charters.

Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run TEST: WITH OR WITHOUT ORIGIANL CHARTERS
again, is he qualified to run? (1) If a GOCC was created by special law, it is with original charter
A: SC in the same case said that: The service of a recall term shall - The special law creating it is the charter
constitute one full term. Reason: Elected official in a recall election should - It is governed by the Civil Service law
know that the service of recall term shall constitute one full term. (OBITER - In case of illegal termination, it is under the jurisdiction of the regular
DICTUM) courts
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS
MENDOZA VS COMELEC
In 1992, Tet Garcia won as governor. In 1993, Recall election was made, (2) If a GOCC was incorporated pursuant to the General Corporation, it is
Ting Roman won as governor. In 1995 and 1998 elections, Roman won without original charter
again. In 2001, Roman ran again. Is he qualified to run? -It is nor governed by Civil Service Law
SC: He is qualified. Recall term is not a full term. Looking at the -In case of illegal termination, jurisdiction is with the Labor Arbiter or
Constitutinal records and the Constitution, it can be seen that they both NLRC, hence governed by Labor Code.
envision continuance and uninterrupted service of term. The service of
recall term should not be counted in applying the disqualification.
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BOY SCOUTS OF THE PHILIPPINES VS NLRC Q: X was given an extended temporary appointment to a given office. In
The BSP is an instrumentality attached to DECS and no less than the the meantime, A took the Civil Service examination and passed. Is the
President himself is the Chief Scout. No less than 7 members of the appointment status of X automatically converted to permanent?
Cabinet are members of the BSP. In short, there is so much government A: NO! There is a need for a new appointment.
exposure. They are governed Civil Service Laws and not the Labor Code.
Regular employee – used in Labor Code only, not in Civil Service
CAMPOREDONDO VS NLRC CLASSIFICATION OF CIVIL SERVICE
Baltazar Camparedondo was a chapter administrator of PNRC. During a 1. Career Service
field audit, he was found short. His request for a re-audit by an 2. Non-career Service
independent auditor of his account was denied. Thereafter, he filed with
NLRC a complaint for illegal dismissal. PNRC moved to dismiss the BAR Question:
complaint on the ground of lack of jurisdiction over the subject matter, What are the characteristics pf career positions as well as non-career
alleging that it is embraced within the Civil Service rules and regulations, positions?
being a GOCC with an original charter. Camporedendo questioned this 1. Career –
contending that its charter was already amended corverting it to a public a. Entrance is based on merit and fitness to be determined based
corporation. on competitive examination or it is based on highly technical
SC: Philippine National Red Cross is a GOCC with an original charter qualifications;
under R.A> 95, as amended. The test to determine whether a corporation b. There is security of tenure;
is government owned or controlled or private in nature is simple. Is it c. Opportunity for advancement to a higher position.
created by its own charter for the exercise of a public function or by 2. Non-Career –
incorporation under the general incorporation law? Those with special a. Entrance is based other than those tests of merit and fitness
charters are government corporations subject to its own provisions and its utilized for the career service;
employees are under the jurisdiction of CSC and are compulsory b. Tenure is:
members of the GSIS. The PNRC was not impliedly converted to a 1. Limited to a period specified by law;
private corporation simply because its charter was amended. 2. Coterminous with that of the appointing authority or
subject to his pleasure; or
Kinds of Appointments 3. Limited to the duration of a particular project for which
1. Permanent – extended to one who possesses all the qualifications the purpose for employment was made.
including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but Q: How do you classify position of members of the Sangguniang
without the civil service eligibility. Panlalawigan?
The law requires publication of all vacant positions in the government. A: Non-career. It is an elective office.
This is mandatory so that all eligible can apply. All elective officials occupy non-career positions since no examination is
Positions that need not be published include PRIMARILY required to be taken and the tenure is limited to a period specified by law.
CONFIDENTIAL POSITIONS, which are co-terminus with the appointing
authority. HIGHLY TECHNICAL POSITIONS
- One which requires the possession of skill or training in the supreme or
Duration of Temporary Appointment superior degree
- one year
- but it may even be shorter Ex: Scientist in the government service
Professors in the state universities
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Q: How do you classify highly technical positions? confidence. His defense was that he cannot be removed from office on
A: Career 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,
Q: Are engineers in the government occupy highly technical positions? PAGCOR contends that under its charter, all positions are primarily
A: NO! They may possess technical skills or training but not in the confidential and hence may be removed in the ground of loss of
supreme or superior degree, hence non-career. confidence. CSC affirmed his dismissal. On appeal, CA reversed and
applied the proximity rule.
PRIMARILY CONFIDENTIAL POSITIONS SC: Applying the proximity rule, Salas cannot be removed on the said
Q: What are their classifications? ground. The position of Salas as a supervisor is too remote from the
A: Non-Career. There tenure is co-terminous with that of the appointing appointing authority, the Chairman. There are so many intermediaries
authority or subject to his pleasure. between them.
The occupant of a particular position could be considered a confidential
DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS employee if the predominant reason why he was chosen by the
It is one which denotes not only confidence in the aptitude of the appointing authority was the latter‘s belief that he can share a close
appointee for the duties of the office bur primarily close intimacy which intimacy with the occupant which ensures freedom of discussion without
insures freedom from the intercourse without embarrassment from fear of embarrassment or misgivings of possible betrayal of personal trust
misgivings or betrayals of personal trust or confidential matters of state. or confidential matters of the State.

GRINO VS CSC Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made
The position of a provincial attorney is both highly technical and primarily only according to merit and fitness to be determined as far as practicable
confidential position. But its predominant feature is primarily confidential. and except to positions which are policy-determining, primarily
Hence, he can be removed based on loss of trust or confidence. However confidential or highly technical, by competitive examination. (It has
his staff is highly technical. He holds the position co-terminous with the nothing to do with the classification of his position as career on non-
pleasure of the appointing authority. There is no removal but only career).
expiration of term.
When pleasure becomes displeasure, the term becomes fixed and ADMINISTRATIVE DISCIPILINARY CASES
automatically expires. One who is holding a primarily confidential position, Q: Who has jurisdiction over administrative disciplinary cases?
who was removed from in the ground of loss of trust and confidence A: Under the Civil Service Law:
cannot complain on the ground that there was a violation of his security of ORIGINAL: CSC or head of office, agency or bureau
tenure. APPEAL: CA under its expanded jurisdiction
Secretary/head of bureau- CSC- CA
PROXIMITY RULE CSC CA
- This is the test to determine whether or not the position is primarily
confidential or not. The distance between the positions of the appointing Q: Can you bring an administrative case directly with the CSC?
authority and the employee is considered. A: Yes. CSC has original and appellate jurisdiction. Under the Civil
Service law, a complaint against a government official or employee may
CSC VS SALAS be filed directly to the CSC (not only to the heads of office).
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 Q: Under LGC, where do you file?
engaging in proxy betting. There was a discreet investigation conducted A: Local Chief Executive
of his act. He was later removed on the ground of loss of trust and OMBUDSMAN ACT OF 1989 (RA 6770)
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- the charter of the Ombudsman than those which are enumerated are not final and unappealable, hence
- under this law, the Ombudsman has disciplinary authority overall public not immediately executory. An appeal timely filed will suspend or stay
officers whether appointive or elective, national or local, except: immediate execution of the decision.
(1) Impeachable officers – Pres, VP, Members of SC, ConCon,
Ombudsman (Justices of the Sandiganbayan – not included). APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES
(2) Members of Congress Q: Is appeal available in administrative disciplinary cases?
(3) Members of the Judiciary A: Depends on the penalty imposed –
1. If the penalty is:
Appeal from the decision of Ombudsman in an administrative case a. demotion;
Under the Ombudsman Act - Directly to the Supreme Court (Remember, b. dismissal;
the Constitution provides that no law shall be passed increasing the c. suspension for more than 30 days or a fine equivalent to
appellate jurisdiction of the SC without its advice and concurrence.) more than 30 day salary;
Appeal is available.
FABIAN VS DESIERTO 2. If the penalty is:
Direct appeal to the SC has been declared unconstitutional. Its enactment a. suspension for not more than 30 days;
was in violation of Art. VI Sec. 30 of the Constitution which provides that b. fine not more than 30 days salary;
no law shall be passed increasing the appellate jurisdiction of the SC c. censure;
without its advice and concurrence. The provision in the Ombudsman Act d. reprimand;
has the effect of increasing the appellate jurisdiction of the SC without its e. admonition
advice and concurrence. Appeal will not lie; the decision is final and executory by express
Now, the rule is: Ombudsman → CA provision of the law.
Appeal is not a constitutional right but merely a statutory right.
GOVERNOR LITO LAPID VS CA Why? Not part of the Constitution
An administrative case was filed against Lapid by the Ombudsman. After Q: X was charged administratively, she was later on exonerated. May the
investigation, it was found that he was guilty. The penalty was suspension complainant appeal?
from office for one year without pay. He was able to appeal seasonably. A: No. However, with respect to the meaning of party adversely affected,
Ombudsman Desierto wanted to execute the decision pending appeal. the ruling under Paredes has already been abandoned. Hence the
SC: Under the Ombudsman Act, only the following cases are final and answer now is YES.
executory:
1. Provisional orders of the Ombudsman; PAREDES VS CSC
2. Decision where the penalty is: Appeal is not a constitutional right but merely a statutory right. A reading
a. suspension for not more than 30 days; of the Civil Service Law will tend to show that appeal is available only to
b. fine not more than 30 days salary; the party adversely affected by the decision. A further reading of the law,
c. censure; the party adversely affected by the decision is the respondent who was
d. reprimand; found guilty. In fact, even if he was found guilty but the penalty was
e. admonition 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
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension against more reason that if he is exonerated, no more appeal. In an administrative
Lapid is clearly not among those enumerated as immediately executory. case, the real offended party is the government; the complainant is a
The clear import of these provisions, taken together, is that all other mere complaining witness so that he has no personality to pursue the
decisions of the Office of the Ombudsman which impose penalty outside appeal. Hence, party adversely affected was limited to the defendant.
Marcial-2J-SandovalNotes-2016

CSC VS DACOYCOY GLORIA VS CA


Dacoycoy was the head of a government vocational school in Samar. Preventive suspension pending investigation is not a penalty. It is simply
Two of his sons were extended permanent appointment under his a means of preventing the latter from interfering or intimidating the
administrative supervision although he was not the one who neither witnesses against him.
appointed nor recommended them. A case was filed against him for
violation of the law on nepotism. CSC found him guilty. The penalty was YABOT VS OMBUDSMAN VASQUEZ
dismissal. As the party adversely affected, he appealed to CA. CA An administrative case was filed against Vice-Mayor Yabot by an
exonerated him. If we will follow the Paredes ruling, there is no more American doctor. He was placed under preventive suspension for 60
appeal and the complainant cannot appeal because is merely a days. Yabot contends that he was already suspended and hence, can no
complaining witness. longer be suspended again.
SC: CSC can appeal because it was their decision that was reversed by SC: The first suspension that was imposed was not the penalty. It is
the CA. To this extent only, CSC became the party adversely affected. By merely a preventive suspension. The second suspension was the penalty.
this ruling, the Paredes Doctrine, up to this extent, is abandoned. The The two suspensions are of different nature. The service of preventive
phrase ‗party adversely affected‘ refers to the government employee suspension cannot be credited with the service of suspension as penalty.
against whom the administrative case is filed for the purpose of a
disciplinary action which may take the form of suspension, demotion in LAYNO VS SANDIGANBAYAN
rank or salary, etc. and not included are the cases where the penalty If the preventive suspension, however, becomes indefinite, so much that
imposed is suspension for not more than 30 days or fine in an amount not the term of the elective official is about to expire and his suspension is not
exceeding 30 days salary. (PAREDES VS CSC) 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
PREVENTIVE SUSPENSION (pending investigation) due process, hence must be nullified. Also, the right to due process of the
Nature: Not a penalty. It is imposed while the case is being investigated or people who voted for him is likewise violated.
pending appeal. It should be distinguished from dismissal or suspension A preventive suspension that lasted for 5 years becomes an indefinite
which may only be imposed upon investigation and subsequent finding of suspension and therefore violative of due process.
guilt. A preventive suspension is not an action by itself but merely an incident
to an action.
BEJA, SR VS CA To know what law is applicable in case of a preventive suspension,
Preventive suspension is not a penalty by itself; it is imposed only during determine first if administrative or criminal case.
the pendency of an administrative investigation. It is merely a measure of
precaution so that the employee who is charged may be separated for A. ADMINISTRATIVE CASE
obvious reasons, from the scene of his alleged misfeasance, ehilr the 1. Civil Service Law
same is being investigated. Thus, preventive suspension is distinct from Period - 90 days
the administrative penalty of removal from office such as the one Case – Gloria vs CA
mentioned in Sec 8 (d) of PD 807. While preventive suspension may be
imposed on a respondent during the investigation of the charges against 2. Local Government Code
him, the removal from office is a penalty which may only be meted out Period – 60 days for appointive officials
upon him at the termination of the investigation or the final disposition of  60 or 90 days fro elective officials
the case.
3. Ombudsman Act
Period – 6 months
Case – Hagad vs Gonzales
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B. CRIMINAL CASE charges against the respondent by preventing the latter from intimidating
1. Anti-Graft and Corrupt Practices Act or in any way influencing witnesses against him. If the investigation is not
Period – 90 days applying by analogy finished and the decision is not rendered within the period, the
suspension will be lifted and the respondent will automatically be
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE reinstated. If after the investigation, the respondent is found innocent of
I. CIVIL SERVICE LAW the charges and is exonerated, he should be reinstated. However, no
If one is charged administratively, while pending investigation, he can be compensation was due for the preventive suspension pending
preventively suspended for a period of 90 days. investigation.
If after the lapse of the 90 day period and the investigation has not been In case of a suspension pending appeal, he is entitled to compensation
terminated, there will be an automatic reinstatement. for the period of their suspension pending appeal if eventually he is found
However if one contributed to the delay of the proceedings or has filed a innocent. Why? It is actually punitive in character although it is in effect
petition for certiorari, the period of the delay or certiorari will not be subsequently considered illegal if respondent is exonerated and the
included in the computation of the 90 day period of preventive administrative decision finding him guilty is reversed. Hence, he should be
suspension. reinstated with full pay for the period of the suspension.

Q: Who shall impose the preventive suspension? SIGNIFICANCE OF THE DIFFERENCE:


A: The CHIEF of the office, agency or bureau shall be the disciplinary Pending Investigation – not entitled. Why? Not a penalty but is entitled t
authority. reinstatement.
Pending Appeal – if on appeal he is exonerated, he is entitled to full
GLORIA VS CA backwages and reinstatement; it is punitive in character.
During the teachers‘ strike, the public school teachers in this case did not
report for work. Accordingly, they were administratively charged and II. LOCAL GOVERNMENT CODE
placed under preventive suspension. The investigation concluded before
their 90 day suspension and they were found guilty. On appeal, Merit 1.) Sec. 85 LGC – ―Preventive Suspension of Appointive Local Officials
Systems and Protection Board, later affirmed by the CSC, dismissed their and Employees.
claim. Before the CA, they asked that they be paid for their salaries during a.) The local chief executives may preventively suspend for a
their suspension beyond 90 days. This was granted. Hence, Sec. Gloria period not exceeding sixty (60) days, any subordinate official or employee
questioned this. under his authority pending investigation, if the charge against such
SC: The public school teachers are entitled to their salaries computed official or employee involves dishonesty, oppression or grave misconduct
from the time of their dismissal or suspension until their actual or neglect in the performance of duty, or if there is reason to believe that
reinstatement, for a period of not exceeding 5 years. the respondent is guilty of the charges which would warrant his removal
from the service.
There are two kinds of preventive suspension of civil service employees b.) Upon the expiration of the preventive suspension, the
who are charged with offenses punishable by removal or suspension: suspended official or employee shall be automatically reinstated in office
1. Preventive Suspension pending investigation without prejudice to the continuation of the administrative proceedings
2. Preventive suspension pending appeal, if the penalty imposed is against him until its termination, if the delay in the proceedings of the case
suspension or dismissal and after review the respondent is exonerated on is due to the fault, neglect or request of the respondent, the time of the
appeal. delay shall not be counted in computing the period of suspension herein
provided.
Preventive suspension pending investigation is not a penalty. It is a
measure intended to enable the disciplining authority to investigate
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Q: Maximum period of preventive suspension? Q: Period?


A: 60 days A: 60 days for every administrative charge
90 days if there are several administrative charges, during a given year
Q: Who shall impose?
A: the local chief executives Q: who shall impose?
A: if respondent is-
2.) Sec. 63 LGC- “Preventive Suspension. – a.) Barangay official – mayor
a.) Preventive suspension may be imposed: b.) Official of component city or municipality – Governor
(1) By the President, if the respondent is an elective official c.) Official of independent component or highly urbanized city or province-
of a province, a highly urbanized or an independent component city; President
(2) By the governor, if the respondent is an elective official
JURISDICTION
of a component city or municipality; or
Appointive Officials
(3) By the mayor, if the respondent is an elective official of Q: Where do you file an administrative complaint against local appointive
the barangay officials?
A: From Local chief executive  Civil Service Commission  Court of
b.) Preventive suspension may be imposed at any time after the Appeals
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 Elective Officials
office of the respondent could influence the witnesses or pose a threat to Q: where do you file an administrative complaint against local elective
the safety and integrity of the records and other evidence: Provided, that offificals?
any single preventive suspension of local elective officials shall not extend A: (1) Barangay official in a
beyond sixty (60)days; Provided further that in the event that several a. Municipality- sangguniang bayanq
administrative cases are filed against an elective official, he cannot be
b. City – sangguniang panglungsod
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. (2) Official of a municipality – sangguniang panlalawigan
(3) City official and provincial official – Office of the President
c.) Upon expiration of the preventive suspension, the suspended
*Sec. 63 relate to Sec. 62 (c) LGC – ―xxx no investigation shall be held
elective official shall be deemed reinstated in office without prejudice to
within ninety (90) days immediately prior to any local election, and no
the continuation of the proceedings against him, which shall be
preventive suspension shall be imposed within the said period. If the
terminated within one hundred twenty (120) days from the time he was
preventive suspension has been imposed prior to the 90-day period
formally notified of the case against him. However, if the delay in the
immediately preceding local election, it shall be deemed automatically
proceedings of the case is due to his fault, neglect or request, other than
lifted upon the start of aforesaid period.‖
the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
GANZON vs. CA
d.)Any abuse of the exercise of the power of preventive Ombudsman Act (RA 6770) – administrative jurisdiction
suspension shall be penalized as abuse of authority. - 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 ―shall be suspended from office‖
argued that being a local elective official his preventive suspension  Preventive Suspension is mandatory. The Court has no discretion
cannot exceed 60 days as provided in the LGC and the LGC being later whether to place the officer under preventive suspension or not.
enactment, is deemed to have repealed the Ombudsman Act with respect  While preventive suspension is mandatory, it is NOT automatic. The
to the imposition of the preventive suspension. court must conduct a PRE-SUSPENSION HEARING, the purpose of
SC: There is nothing in the LGC (RA 7160) to indicate that it has repealed which is for the court to determine the validity of the criminal information
the pertinent provisions of the Ombudsman Act (RA 6770). Repeals by filed against the accused public officer. It is only when the court is
implication are not favored. Every statute must be so interpreted and satisfied that the criminal information was validly filed that the court will
brought into account with other laws as to form a uniform system of impose preventive suspension. Only then that the preventive suspension
jurisprudence. Besides, the grounds to impose preventive suspension becomes mandatory. (SOCRATES vs. SANDIGANBAYAN)
under the LGC and the Ombudsman Act are different. The Ombudsman
has concurrent jurisdiction with the officers who have authority to impose Q: What is the duration of the preventive suspension?
preventive suspension pursuant to Section 63 of LGC. A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, the
court held that the Civil Service Law should be applied by analogy since
PREVENTIVE SUSPENSION IN CRIMINAL CASE Sec. 13, RA 3019 is silent as to the duration of the preventive suspension.
Anti-Graft and Corrupt Practices Act (RA 3019) Hence, the duration is ninety (90) days. There are no more cases now of
Section 13 RA 3019 – Suspension and Loss of Benefits – ―Any indefinite suspension.
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 BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN;
any offense involving fraud upon government or public funds or property DELLOSA vs. SANDIGANBAYAN
whether as simple or as complex offenses and in whatever stage of X was a municipal mayor. He was criminally charged before the
execution and mode of participation, is pending in court shall be Ombudsman. While the Ombudsman was investigating the criminal
suspended from office. Should he b e convicted by final judgment, he complaint, there was an election. X ran for governor and won. In the
shall lose all retirement or gratuity benefits under any law, but if he is meantime, the Ombudsman filed the criminal case against him with the
acquitted, he shall be entitled to reinstatement and to the salaries and Sandiganbayan. The Sandiganbayan issued the preventive suspension
benefits which he failed to receive during the suspension, unless in the against X. X now contends that he can no longer be preventively
meantime administrative proceedings have been filed against him.‖ 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
Q: Who has the authority to impose preventive suspension? incumbent public officer against whom any criminal prosecution under a
A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR, valid information under RA 3019 or for any offense involving fraud upon
the Court interpreting Sec.13 held that ―It is the court where the criminal the government or public funds or property whether as a simple or as a
case was filed that has the authority to impose preventive suspension complex offense and in whatever stage or execution and mode of
pursuant to Sec. 13.‖ It is not the fiscal or prosecutor nor the participation, is pending in court shall be suspended from office. Thus by
Ombudsman. A court that has acquired jurisdiction will have to exercise the use of the word ―office‖ the same applies to any office which the
jurisdiction also over the incidence of the case. officer charged may be holding and not only the particular office which he
was charged.
Q: Before what court should the case be filed? *Section 13 RA 3019 does not state that the officer concerned must be
A: Depends – suspended only for the office he was charged.
a. Salary grade 27 and over – Sandiganbayan *Moreover, should the purposes behind preventive suspension become
b. Below salary grade 27 – RTC or MTC manifest, the respondent court is not bereft of remedies or sanctions. The
petitioner may still be suspended but for specifically expressed reasons
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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
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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 SC: Clearly, there are four situations covered. In the last two mentioned
(2) on the other hand is a general provision. Hence, the EO is situations, it is immaterial who the appointing or recommending authority
unconstitutional. is. To constitute a violation of the law, it suffices that an appointment is
*see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006 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
4 . Article VI section 13 – ―No Senator or Member of the House of exercising immediate supervision over the appointee.
Representatives may hold any other office or employment in the
government, or any subdivision, agency or instrumentality thereof, EXCEPTIONS TO THE LAW ON NEPOTISM
including government owned or controlled corporations or their 1. Teachers
subsidiaries during his term without forfeiting his seat. Neither shall he be 2. Physicians
appointed to any office which may have been created nor the emoluments 3. Persons employed in a confidential capacity
thereof increased during the term for which he was elected. 4. Members of the Armed Forces of the Philippines
 Prohibition on incompatible and forbidden office 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
5. Article XVI, Section 5, par 4 – ― No member of the armed forces in the bureau, in which event, the employment or retention therein of both
active service shall, at any time be appointed or designated in any husband and wife may be allowed.
capacity to a civilian position in the Government including government Under Article VII, Section 13 – ― The President may not appoint his
owned or controlled corporations or any of their subsidiaries spouse or relatives within the 4th civil degree of consanguinity or affinity
to
6. Law on Nepotism a. Member of Constitutional Commission
- Violation results to dismissal with forfeiture of benefits b. Office of the Ombudsman
- Found in the Civil Service Law c. Secretaries and Undersecretaries
- Under Section 59, Civil Service Law – ― All appointments in the d. Chairman, heads of bureau or offices
national, provincial, city, and municipal governments or in any branch or
instrumentality thereof, including government owned or controlled Prohibited relationships
corporations, made in favor of a relative of the appointing or - Under the Civil Service Law = 3rd Civil Degree
recommending authority, or of the chief of the bureau or office or of the - Under the LGC = 4th civil degree SEC. 79. Limitation on Appointments. -
persons exercising immediate supervision over him, are hereby No person shall be appointed in the career service of the local
prohibited. government if he is related within the fourth civil degree of consanguinity
The word ―relative‖ and members of the family referred to are those or affinity to the appointing or recommending authority.
related within third (3rd) degree of either consanguinity of affinity.‖
DEBULGADO vs. CIVIL SERVICE COMMISSION
CSC vs. DACOYCOY April 1999 En Banc It was contended that the law on nepotism applies only to original
Under the law on nepotism, a public official is guilty of nepotism, if an appointments but not to promotional appointments.
appointment is issued in favor of a relative within the third civil degree of SC: The law on nepotism applies to all kinds of appointment because the
consanguinity or affinity of any of the following: law does not distinguish.
a. Appointing authority A textual examination of Section 69 at once reveals that the prohibition
b. Recommending authority was cast in comprehensive and unqualified terms. Firstly, it explicitly
c. Chief of bureau or office covers ―all appointments‖ without seeking to make ay distinction
d. One who exercises immediate supervision over the appointee between differing kinds or types of appointments. Secondly, Section 59
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covers all appointments to the national, provincial, city, and municipal *for purposes of the law on nepotism, appointment and designation are
governments, as well as any branch or instrumentality thereof and all the same.
government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list. 7. Section 90, LGC – ―Practice of Profession –
Both an original appointment and a promotion are particular species of (a) All governors, city and municipal mayors are prohibited from
personnel action. The original appointment of a civil service employee practicing their profession or engaging in any occupation other than the
and all subsequent personnel actions undertaken by or in respect of that exercise of their functions as local chief executives.
employee such as promotion, transfer, reinstatement, reemployment, etc. (b) Sanggunian members may practice their professions, engage
must comply with the Implementing Rules including of course the in any occupation, or teach in schools except during session hours,
prohibition against nepotism in Rule XVIII. Provided, that sanggunian members who are also members of the Bar
The conclusion we reach is that Section 59 Book V, EO 292 means shall not:
exactly what it says in plain and ordinary language. It refers to all (1) Appear as counsel before any court in any civil case
appointments whether original or promotional in nature. The public policy wherein a local government unit or any office, agency or instrumentality of
embodied in section 59 is clearly fundamental in importance, and the the government is the adverse party;
court has neither authority nor inclination to dilute that important public (2) Appear as counsel in any criminal case wherein an
policy by introducing a qualification or discretion here. LAUREL vs. CSC officer or employee of the national or local government is accused of an
Laurel who was the governor of Batangas granted his brother, Benjamin offense committed in relation to his office;
Laurel a promotional appointment as Civil Security Officer, a position (3) Collect any fee for their appearance in administrative
classified as primary confidential by the Civil Service. proceedings involving the local government unit of which he is an official;
and
Q: Was there a violation of the law on nepotism? (4) Use property and personnel of the Government except
A: No. It is under the exceptions of the law when the Sanggunian member concerned is defending the interest of the
Later on, he designated his brother to the position of Provincial government.
Administrator a position in the Career Civil Service. Laurel contends that (c) Doctors of medicine may practice their profession even during
he did not violate the law on nepotism because he merely designated his official hours of work only on occasions of emergency. Provided, that
brother not appointed him. Designation presupposes that he has already officials concerned do not derive monetary compensation therefrom.
been appointed and merely given additional function.
SC: The appointment or designation as Acting Provincial Administrator Q: Can a mayor practice his profession?
was violative of the prohibition against nepotism, then embodied in A: No.
Section 49 PD No. 807. Moreover, the Court emphatically agrees with the
CSC that although what was extended to Benjamin was merely a Q: Can members of the sanggunian practice their profession?
designation and not an appointment xxx the prohibitive mantle on A: Yes, except during session hours.
nepotism would include designation because what cannot be done
directly cannot be done indirectly. We cannot accept petitioner‘s view. His Q: Can Vice mayor exercise his profession?
specious and tenuous distinction between appointment and designation is A: Yes. Vice Mayor belongs to the legislative, while sanggunian members
nothing more than either a play ingeniously conceived to circumvent the must be interpreted in general terms. There is no prohibition. Hence, the
rigid rule on nepotism or a last ditch maneuver to cushion the impact of its Vice Mayor can e belongs to the legislative, while sanggunian members
violation. The rule admits of no distinction between appointment and must be interpreted in general terms. There is no prohibition. Hence, the
designation. ―Designation‖ is also defined as all appointment or Vice Mayor can exercise or practice his profession. However, in case the
assignment to a particular office, and ―to designate‖ means to indicate, Vice Mayor becomes acting mayor or acting governor, he cannot practice
select, appoint, or set apart for a purpose of duty. 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;