Questions and Answers in

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

ANS: In administrative proceedings, due process simply means an opportunity to seek a

reconsideration of the order complained of; it cannot be fully equated to due process in its strict
jurisprudential sense. A respondent in an administrative case is not entitled to be informed of the
preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be
heard, and to the administrative decision based on substantial evidence. (Vealasquez v. CA, G.R.
No. 150732, August 31, 2004, 437 SCRA 357). Note that it is the administrative order, not the
preliminary report, which is the basis of any further remedies the losing party in an administrative
case may pursue. (Viva Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27, 2005).

Exhaustion of administrative remedies.

The general rule is that before a party may seek the intervention of the court, he should first avail of
all the means afforded him by administrative processes. The issues which administrative agencies
are authorized to decide should not be summarily taken from them and submitted to a court without
first giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is
within the jurisdiction of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services of the administrative tribunal to determine
technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of
primary jurisdiction, which are based on sound public policy and practical considerations, are not
inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the
part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to
make the rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g)
when its application may cause great and irreparable damage; (h) where the controverted acts
violate due process; (i) when the issue of non-exhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public
interest is involved; and, (l) in quo warranto proceedings. Exceptions (c) and (e) are applicable to the
present case. (Rep., et al. v. Lacap, et al., G.R. No. 158253, March 2, 2007).

Exhaustion of administrative remedies.

The underlying principles of the rule on exhaustion of administrative remedies rests on the
presumption that the administrative agency, if afforded a complete chance to pass upon the matter,
will decide the same correctly. There are both legal and practical reasons for the principle. The
administrative process is intended to provide less expensive and speedier solutions to disputes.
Where the enabling statute indicates a procedure for administrative review and provides a system of
administrative appeal or reconsideration, the courts – for reasons of law, comity, and convenience –
will not entertain a case unless the available administrative remedies have been resorted to and the
appropriate authorities have been given an opportunity to act and correct the errors committed in the
administrative forum. (Berdin, et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6,
2007, Tinga, J).

Philippine Bar Examination Cafe

Describe the Administrative Code of 1987.

Held: The Code is a general law and “incorporates in a unified document the major
structural, functional and procedural principles of governance (Third Whereas Clause,
Administrative Code of 1987) and “embodies changes in administrative structures and
procedures designed to serve the people.” (Fourth Whereas Clause, Administrative Code of
1987) The Code is divided into seven (7) books. These books contain provisions on the
organization, powers and general administration of departments, bureaus and offices under
the executive branch, the organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government budget, as well as
guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial
powers. The Code covers both the internal administration, i.e., internal organization,
personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside
government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
What is Administrative Power?

Held: Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the President to fix a
uniform standard of administrative efficiency and check the official conduct of his agents. To
this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R.
No. 127685, July 23, 1998 [Puno])

What is an Administrative Order?

Held: An administrative order is an ordinance issued by the President which relates to

specific aspects in the administrative operation of government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and carrying out the
legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What is the Government of the Republic of the Philippines?

Ans.: The 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, save as the contrary appears from the context, the
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. (Sec. 2[1], Introductory Provisions,
Executive Order No. 292)
What is an Agency of the Government?

Ans.: Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or controlled
corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory
Provisions, Executive Order No. 292)

What is a Department?

Ans.: Department refers to an executive department created by law. For purposes of Book
IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a
department, regardless of its name or designation. (Sec. 2[7], Introductory Provisions,
Executive Order No. 292)

What is a Bureau?

Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of
Book IV, this shall include any principal subdivision or unit of any instrumentality given or
assigned the rank of a bureau, regardless of actual name or designation, as in the case of
department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive
Order No. 292)

What is an Office?
Ans.: Office refers, within the framework of governmental organization, to any major
functional unit of a department or bureau including regional offices. It may also refer to any
position held or occupied by individual persons, whose functions are defined by law or
regulation. (Sec. 2[9], Introductory Provisions, Executive Order No. 292)

What is a Government Instrumentality? What are included in the term

Government Instrumentality?

Ans.: A government 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, enjoying
operational autonomy, usually through a charter. The term includes regulatory agencies,
chartered institutions and government-owned or controlled corporations. (Sec. 2[10],
Introductory Provisions, Executive Order No. 292)

What is a Regulatory Agency?

Ans.: A regulatory agency refers to any agency expressly vested with jurisdiction to
regulate, administer or adjudicate matters affecting substantial rights and interest of private
persons, the principal powers of which are exercised by a collective body, such as a
commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order
No. 292)

What is a Chartered Institution?

Ans.: A chartered institution 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 state universities and colleges and the monetary authority of
the State. (Section 2[12], Introductory Provisions, Executive Order No. 292)

What is a Government-Owned or Controlled Corporation?

Ans.: 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 at least fifty-one (51) per cent of its capital stock; x x x (Sec. 2[13],
Introductory Provisions, Executive Order No. 292)

When is a Government-Owned or Controlled Corporation deemed to be performing

proprietary function? When is it deemed to be performing governmental function?

Held: Government-owned or controlled corporations may perform governmental or

proprietary functions or both, depending on the purpose for which they have been created.
If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is
proprietary. If it is in the interest of health, safety and for the advancement of public good
and welfare, affecting the public in general, the function is governmental. Powers classified
as “proprietary” are those intended for private advantage and benefit. (Blaquera v.
Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

The Philippine National Red Cross (PNRC) is a government-owned and controlled

corporation with an original charter under R.A. No. 95, as amended. Its charter,
however, was amended to vest in it the authority to secure loans, be exempted
from payment of all duties, taxes, fees and other charges, etc. With the amendnt
of its charter, has it been “impliedly converted to a private corporation”?

Held: 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 corporation law? Those with special charters
are government corporations subject to its provisions, and its employees are under the
jurisdiction of the Civil Service Commission. The PNRC was not “impliedly converted to a
private corporation” simply because its charter was amended to vest in it the authority to
secure loans, be exempted from payment of all duties, taxes, fees and other charges,
etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo])

When may the Government not validly invoke the rule that prescription does not
run against the State? Illustrative Case.

Held: While it is true that prescription does not run against the State, the same may not be
invoked by the government in this case since it is no longer interested in the subject
matter. While Camp Wallace may have belonged to the government at the time Rafael
Galvez’s title was ordered cancelled in Land Registration Case No. N-361, the same no
longer holds true today.

Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of
1992, created the Bases Conversion and Development Authority. X x x

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or
interest to protect. Consequently, the Republic is not a real party in interest and it may not
institute the instant action. Nor may it raise the defense of imprescriptibility, the same
being applicable only in cases where the government is a party in interest. x x x. Being the
owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development
Authority, not the Government, which stands to be benefited if the land covered by TCT No.
T-5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their
extensions to the BCDA is basically for the purpose of accelerating the sound and balanced
conversion of these military reservations into alternative productive uses and to enhance the
benefits to be derived from such property as a measure of promoting the economic and
social development, particularly of Central Luzon and, in general, the country’s goal for
enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these
military reservations to the Conversion Authority does not amount to an abdication on the
part of the Republic of its interests, but simply a recognition of the need to create a body
corporate which will act as its agent for the realization of its program. It is consequently
asserted that the Republic remains to be the real party in interest and the Conversion
Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with a
personality separate and distinct from the government. X x x

It may not be amiss to state at this point that the functions of government have been
classified into governmental or constituent and proprietary or ministrant. While public
benefit and public welfare, particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to the operation of the BCDA, yet it is
certain that the functions performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular, and the
country’s goal for enhancement, in general, do not make the BCDA equivalent to the
Government. Other corporations have been created by government to act as its agents for
the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and
yet, the Court has ruled that these entities, although performing functions aimed at
promoting public interest and public welfare, are not government-function corporations
invested with governmental attributes. It may thus be said that the BCDA is not a mere
agency of the Government but a corporate body performing proprietary functions.

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action
to cancel petitioner’s title, not the Republic, the former being the real party in interest. One
having no right or interest to protect cannot invoke the jurisdiction of the court as a party
plaintiff in an action. A suit may be dismissed if the plaintiff or the defendant is not a real
party in interest. x x x

However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is the
proper party to sue for the recovery of possession of property which at the time of the
installation of the suit was no longer held by the national government body but by the
Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines,
acted as principal of the Philippine Ports Authority, directly exercising the commission it had
earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic
of the Philippines did not intend to retain the said rentals for its own use, considering that
by its voluntary act it had transferred the land in question to the Philippine Ports Authority
effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not
supplant, the Philippine Ports Authority, whose title to the disputed property it continues to
recognize. We may expect the that the said rentals, once collected by the Republic of the
Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the
purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court
considered the Republic a proper party to sue since the claims of the Republic and the
Philippine Ports Authority against the petitioner therein were the same. To dismiss the
complaint in E.B. Marcha would have brought needless delay in the settlement of the matter
since the PPA would have to refile the case on the same claim already litigated upon. Such
is not the case here since to allow the government to sue herein enables it to raise the issue
of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription
does not run against the State does not apply to corporations or artificial bodies created by
the State for special purposes, it being said that when the title of the Republic has been
divested, its grantees, although artificial bodies of its own creation, are in the same
category as ordinary persons. By raising the claim of imprescriptibility, a claim which
cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B.
Marcha, it even supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a bad
precedent as it would allow the Republic to prosecute, on behalf of government-owned or
controlled corporations, causes of action which have already prescribed, on the pretext that
the Government is the real party in interest against whom prescription does not run, said
corporations having been created merely as agents for the realization of government
programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value,
having acquired the property in 1963, or 5 years after the issuance of the original certificate
of title, as a third transferee. If only not to do violence and to give some measure of
respect to the Torrens System, petitioner must be afforded some measure of
protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20,
2001, 3rd Div. [Melo])

Discuss the nature and functions of the National Telecommunications Commission

(NTC), and analyze its powers and authority as well as the laws, rules and
regulations that govern its existence and operations.
Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the
functions formerly assigned to the Board of Communications and the Communications
Control Bureau, which were both abolished under the said Executive Order. Previously, the
NTC’s function were merely those of the defunct Public Service Commission (PSC), created
under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act,
considering that the Board of Communications was the successor-in-interest of the PSC.
Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency
of the Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue
Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and
maintenance of communications facilities and services, radio communications systems,
telephone and telegraph systems. Such power includes the authority to determine the
areas of operations of applicants for telecommunications services. Specifically, Section 16 of
the Public Service Act authorizes the then PSC, upon notice and hearing, to issue
Certificates of Public Convenience for the operation of public services within the Philippines
“whenever the Commission finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable
manner.” (Commonwealth Act No. 146, Section 16[a]) The procedure governing the
issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v.
Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div.
[Ynares-Santiago])

Is the filing of the administrative rules and regulations with the UP Law Center the
operative act that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied
Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. – Upon the filing of an application, complaint or petition or at any
stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the
relief prayed for, based on the pleading, together with the affidavits and supporting
documents attached thereto, without prejudice to a final decision after completion of the
hearing which shall be called within thirty (30) days from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC should have applied the Revised
Rules which were filed with the Office of the National Administrative Register on February 3,
1993. These Revised Rules deleted the phrase “on its own initiative”; accordingly, a
provisional authority may be issued only upon filing of the proper motion before the
Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a
certification to the effect that inasmuch as the 1993 Revised Rules have not been published
in a newspaper of general circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC
stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993
Revised Rules have not taken effect at the time of the grant of the provisional authority to
Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on
February 3, 1993 is of no moment. 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. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. – (1) Every agency shall file with the University of the Philippines Law Center three
(3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of
this Code which are not filed within three (3) months from the date shall not thereafter be
the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open
to public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished
only to the Office of the President, Congress, all appellate courts, the National Library, other
public offices or agencies as the Congress may select, and to other persons at a price
sufficient to cover publication and mailing or distribution costs (Administrative Code of
1987, Book VII, Chapter 2, Section 7). In a similar case, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise of
such quasi-legislative power. The original Administrative Order issued on August 30, 1989,
under which the respondents filed their applications for importations, was not published in
the Official Gazette or in a newspaper of general circulation. The questioned Administrative
Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code,
which reads:

“Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the
Philippines), unless it is otherwise provided. X x x”
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed
with, and published by the UP Law Center in the National Administrative Register, does not
cure the defect related to the effectivity of the Administrative Order.

This Court, in Tanada v. Tuvera stated, thus:

“We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative power or, at present, directly conferred by the
Constitution. Administrative Rules and Regulations must also be published if their purpose
is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.

We agree that the publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws.”

The Administrative Order under consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce and implement an existing law
pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.

Thus, publication in the Official Gazette or a newspaper of general circulation is a

condition sine qua non before statutes, rules or regulations can take effect. This is explicit
from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states
that:

Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided (E.O. 200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public
Service Act, fall squarely within the scope of these laws, as explicitly mentioned in the case
of Tanada v. Tuvera.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exception are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties (PHILSA International Placement & Services Corp. v. Secretary
of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper
of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates
that said Rules shall take effect only after their publication in a newspaper of general
circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978
Rules that govern. (Republic v. Express Telecommunication Co., Inc., 373 SCRA
316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

May a person be held liable for violation of an administrative regulation which was
not published?

Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA
Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which
may be collected from applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera, the Court held, as follows:

“We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing
law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and the public, need not be published. Neither is
publication required of the so-called letter of instructions issued by the administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.”

Applying this doctrine, we have previously declared as having no force and effect the
following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of
Health-Ministry of Labor and Employment Accreditation Committee regarding the
accreditation of hospitals, medical clinics and laboratories; b) Letter of Instruction No. 416
ordering the suspension of payments due and payable by distressed copper mining
companies to the national government; c) Memorandum Circulars issued by the POEA
regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No.
SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating
applications for importation from the People’s Republic of China; and e) Corporate
Compensation Circular No. 10 issued by the Department of Budget and Management
discontinuing the payment of other allowances and fringe benefits to government officials
and employees. In all these cited cases, the administrative issuances questioned therein
were uniformly struck down as they were not published or filed with the National
Administrative Register as required by the Administrative Code of 1987.

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as
the same was never published or filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of
placement and documentation fees for private employment agencies or authority holders.
Under the said Order, the maximum amount which may be collected from prospective
Filipino overseas workers is P2,500.00. The said circular was apparently issued in
compliance with the provisions of Article 32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances
which should be published for its effectivity, since its purpose is to enforce and implement
an existing law pursuant to a valid delegation. Considering that POEA Administrative
Circular No. 2, Series of 1983 has not as yet been published or filed with the National
Administrative Register, the same is ineffective and may not be enforced. (Philsa
International Placement and Services Corporation v. Secretary of Labor and
Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])

Does the publication requirement apply as well to administrative regulations

addressed only to a specific group and not to the general public?
Held: The Office of the Solicitor General likewise argues that the questioned administrative
circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is
addressed only to a specific group of persons and not to the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private
employment agencies or authority holders, does not take it away from the ambit of our
ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres,
the administrative circulars questioned therein were addressed to an even smaller group,
namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong
Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars
may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exceptions are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties. Administrative Circular No. 2, Series of 1983 has not been
shown to fall under any of these exceptions.

In this regard, the Solicitor General’s reliance on the case of Yaokasin v. Commissioner of
Customs is misplaced. In the said case, the validity of certain Customs Memorandum
Orders were upheld despite their lack of publication as they were addressed to a particular
class of persons, the customs collectors, who were also the subordinates of the
Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall
under one of the exceptions to the publication requirement, namely those dealing with
instructions from an administrative superior to a subordinate regarding the performance of
their duties, a circumstance which does not obtain in the case at bench. X x x

To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA
Administrative Circular No. 2, Series of 1983 could not be the basis of administrative
sanctions against petitioner for lack of publication. (Philsa International Placement and
Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April
4, 2001, 3rd Div., [Gonzaga-Reyes])
May a successful bidder compel a government agency to formalize a contract with
it notwithstanding that its bid exceeds the amount appropriated by Congress for
the project?

Held: Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be
paid out of the Treasury except in pursuance of an appropriation made by law.” (Sec. 29[1],
Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the
precise import of this constitutional restriction is to require the various agencies to limit
their expenditures within the appropriations made by law for each fiscal year.

It is quite evident from the tenor of the language of the law that the existence of
appropriations and the availability of funds are indispensable pre-requisites to or
conditions sine qua non for the execution of government contracts. The obvious intent is to
impose such conditions as a priori requisites to the validity of the proposed contract. Using
this as our premise, we cannot accede to PHOTOKINA’s contention that there is already a
perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom
Environmental Corporation that “the effect of an unqualified acceptance of the offer or
proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,”
however, such statement would be inconsequential in a government where the acceptance
referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to
execute a binding contract that would obligate the government in an amount in excess of
the appropriations for the purpose for which the contract was attempted to be made. This
is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the
bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine
whether the bids comply with the requirements. The BAC shall rate a bid “passed” only if it
complies with all the requirements and the submitted price does not exceed the approved
budget for the contract.”(Implementing Rules and Regulations [IRR] for Executive Order No.
262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to
PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under
Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.),the only fund
appropriated for the project was P1 Billion Pesos and under the Certification of Available
Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is
insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC
could enter into a contract with PHOTOKINA whose accepted bid was way beyond the
amount appropriated by law for the project. This being the case, the BAC should have
rejected the bid for being excessive or should have withdrawn the Notice of Award on the
ground that in the eyes of the law, the same is null and void.
Even the draft contract submitted by Commissioner Sadain that provides for a contract price
in the amount of P1.2 Billion Pesos is unacceptable. x x x While the contract price under the
draft contract is only P1.2 Billion and, thus, within the certified available funds, the same
covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only
1,000,000 voters in specified areas. In effect, the implementation of the VRIS Project will
be “segmented” or “chopped” into several phases. Not only is such arrangement disallowed
by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of
the uncertainty that will loom over its modernization project for an indefinite period of time.
Should Congress fail to appropriate the amount necessary for the completion of the entire
project, what good will the accomplished Phase I serve? As expected, the project failed “to
sell” with the Department of Budget and Management. Thus, Secretary Benjamin Diokno,
per his letter of December 1, 2000, declined the COMELEC’s request for the issuance of the
Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment
of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No.
8760, no agency shall enter into a multi-year contract without a multi-year obligational
authority, thus:

“SECTION 33. Contracting Multi-Year Projects. – In the implementation of multi-year

projects, no agency shall enter into a multi-year contract without a multi-year Obligational
Authority issued by the Department of Budget and Management for the purpose.
Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be
incurred in any given calendar year, shall in no case exceed the amount programmed for
implementation during said calendar year.”

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence
dictated them not to enter into a contract not backed up by sufficient appropriation and
available funds. Definitely, to act otherwise would be a futile exercise for the contract would
inevitably suffer the vice of nullity. x x x

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article
1409 of the Civil Code of the Philippines). This is to say that the proposed contract is
without force and effect from the very beginning or from its incipiency, as if it had never
been entered into, and hence, cannot be validated either by lapse of time or ratification.

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC
to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by
Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and
is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-
Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])
What is the remedy available to a party who contracts with the government
contrary to the requirements of the law and, therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the gove

rnment has no other recourse in law. The law itself affords him the remedy. Section 48 of
E.O. No. 292 explicitly provides that any contract entered into contrary to the above-
mentioned requirements shall be void, and “the officers entering into the contract shall be
liable to the Government or other contracting party for any consequent damage to the same
as if the transaction had been wholly between private parties.” So when the contracting
officer transcends his lawful and legitimate powers by acting in excess of or beyond the
limits of his contracting authority, the Government is not bound under the contract. It
would be as if the contract in such case were a private one, whereupon, he binds himself,
and thus, assumes personal liability thereunder. Otherwise stated, the proposed contract is
unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the
constitutional mandate cited above constrains us to remind all public officers that public
office is a public trust and all public officers must at all times be accountable to the people.
The authority of public officers to enter into government contracts is circumscribed with a
heavy burden of responsibility. In the exercise of their contracting prerogative, they should
be the first judges of the legality, propriety and wisdom of the contract they entered into.
They must exercise a high degree of caution so that the Government may not be the victim
of ill-advised or improvident action. (Commission on Elections v. Judge Ma. Luisa
Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners’ motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body. This view, however, has not heretofore been shared by this Court. In Carino v.
Commission on Human Rights, the Court x x x has observed that it is “only the first of the
enumerated powers and functions that bears any resemblance to adjudication of
adjudgment,” but that resemblance can in no way be synonymous to the adjudicatory power
itself. The Court explained:
“x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or duplicate much less take over
the functions of the latter.

“The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on
Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])

Does the Commission on Human Rights have jurisdiction to issue TRO or writ of
preliminary injunction?

Held: In Export Processing Zone Authority v. Commission on Human Rights, the Court x x
x explained:

“The constitutional provision directing the CHR to ‘provide for preventive measures and legal
aid services to the underprivileged whose human rights have been violated or need
protection’ may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, if that were the intention, the Constitution would
have expressly said so. ‘Jurisdiction is conferred only by the Constitution or by law.’ It is
never derived by implication.”

“Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from the proper courts on behalf of the victims of human rights
violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ,
for a writ of preliminary injunction may only be issued ‘by the judge of any court in which
the action is pending [within his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available
only in a pending principal action, for the preservation or protection of the rights and
interest of a party thereto, and for no other purpose.”

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government. (Simon, Jr. v. Commission
on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

Does the petition for annulment of proclamation of a candidate merely involve the
exercise by the COMELEC of its administrative power to review, revise and reverse
the actions of the board of canvassers and, therefore, justifies non-observance of
procedural due process, or does it involve the exercise of the COMELEC’s quasi-
judicial function?

Held: Taking cognizance of private respondent’s petitions for annulment of petitioner’s

proclamation, COMELEC was not merely performing an administrative function. The
administrative powers of the COMELEC include the power to determine the number and
location of polling places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and governmental instrumentalities to ensure
free, orderly, honest, peaceful and credible elections, register political parties, organizations
or coalition, accredit citizen’s arms of the Commission, prosecute election offenses, and
recommend to the President the removal of or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation or disregard of its directive, order
or decision. In addition, the Commission also has direct control and supervision over all
personnel involved in the conduct of election. However, the resolution of the adverse claims
of private respondent and petitioner as regards the existence of a manifest error in the
questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the veracity of their allegations and to
decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls
for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a
power rests in judgment or discretion, so that it is of judicial nature or character, but does
not involve the exercise of functions of a judge, or is conferred upon an officer other than a
judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial
tribunal, cannot ignore the requirements of procedural due process in resolving the petitions
filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.
26, 2000 [Puno])
Discuss the contempt power of the Commission on Human Rights (CHR). When
may it be validly exercised.

Held: On its contempt powers, the CHR is constitutionally authorized to “adopt its
operational guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court.” Accordingly, the CHR acted within its authority in
providing in its revised rules, its power “to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court.” That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor summons,
and the like, in pursuing its investigative work. The “order to desist” (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in character
but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v.
Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug,
J.])

Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within
the jurisdiction of an administrative tribunal, especially where the question demands the
exercise of sound administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases
involving matters that demand the special competence of administrative agencies even if
the question involved is also judicial in character. It applies “where a claim is originally
cognizable in the courts, and comes into play whenever enforcement of the claim requires
the resolution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative body; in such case, the judicial process is
suspended pending referral of such issues to the administrative body for its view.”
In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot
arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is
lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA
297, Oct. 9, 1992, 3rd Div. [Panganiban])

Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the

exceptions thereto?

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition
that he should have availed of all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery can still be resorted to by giving the
administrative officer concerned every opportunity to decide on a matter that comes within
his jurisdiction then such remedy should be exhausted first before the court’s judicial power
can be sought. The premature invocation of court’s jurisdiction is fatal to one’s cause of
action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of
dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies
was not without its practical and legal reasons, for one thing, availment of administrative
remedy entails lesser expenses and provides for a speedier disposition of controversies. It
is no less true to state that the courts of justice for reasons of comity and convenience will
shy away from a dispute until the system of administrative redress has been completed and
complied with so as to give the administrative agency concerned every opportunity to
correct its error and to dispose of the case.

This doctrine is disregarded:

when there is a violation of due process;

when the issue involved is purely a legal question;

when the administrative action is patently illegal amounting to lack or excess of jurisdiction;

when there is estoppel on the part of the administrative agency concerned;

when there is irreparable injury;

when the respondent is a department secretary whose acts as an alter ego of the President
bears the implied and assumed approval of the latter;
when to require exhaustion of administrative remedies would be unreasonable;

when it would amount to a nullification of a claim;

when the subject matter is a private land in land case proceeding;

when the rule does not provide a plain, speedy and adequate remedy, and

when there are circumstances indicating the urgency of judicial intervention.

(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the

action premature, i.e., claimed cause of action is not ripe for judicial determination and for
that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269
SCRA 132, March 3, 1997, 3rd Div. [Davide])

BAR QUESTIONS IN ADMINISTRATIVE LAW FROM 1989-

2003

2001 BAR EXAMINATION

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Philippine Ports Authority (PPA) General Manager issued an

administrative order to the fact that all existing regular

appointments to harbor pilot positions shall remain valid only up to

December 31 of the current year and that henceforth all appointments

to harbor pilot positions shall be only for a term of one year from

date of effectivity, subject to yearly renewal or cancellation by the

PPA after conduct of a rigid evaluation of performance. Pilotage as

a profession may be practiced only by duly licensed individuals, who

have to pass five government professional examinations.

The Harbor Pilot Association challenged the validity of said

administrative order arguing that it violated the harbor pilots'

right to exercise their profession and their right to due process of

law and that the said administrative order was issued without prior

notice and hearing. The PPA countered that the administrative order

was valid as it was issued in the exercise of its administrative

control and supervision over harbor pilots under PPA's legislative

charter; and that in issuing the order as a rule or regulation, it

was performing its executive or legislative, and not a quasi-judicial

function.

Due process of law is classified into two kinds, namely, procedural

due process and substantive due process of law. Was there, or, was

there no violation of the harbor pilots' right to exercise their

profession and their right to due process of law?

Suggested Answer:

The right of the pilots to due process was violated. As held, in

Corona vs. United Harbor Pilots Association of the Philippines, 283

SCRA 31 (1997), pilotage as a profession is a property right

protected by the guarantee of due process. The pre-evaluation

cancellation of the licenses of the harbor pilots every year is

unreasonable and violated their right to substantive due process.

The renewal is dependent on the evaluation after the licenses have

been cancelled. The issuance of the administrative order also

violated procedural due process, since no prior public hearing was

conducted. As held in Commissioner r of Internal Revenue vs. Court

of Appeals, 261 SCRA 237 (1998) , when a regulation is being issued

under the quasi-legislative authority of an administrative agency,

the requirements of notice, hearing and publication must be observed.

II

TOPIC: JUDICIAL REVIEW

Give the two (2) requisites for the judicial review of administrative
decision/actions, that is, when is an administrative action ripe for

judicial review?

Suggested Answer:

1. The administrative action has already been fully completed

and, therefore, is a final agency action; and

2. All administrative remedies have been exhausted. (Gonzales,

Administrative Law, Rex Bookstore: Manila, p. 136 (1979).

2000 BAR EXAMINATION

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Maritime Industry Authority (MARINA) issued new rules and

regulations governing pilotage services and fees and the conduct of

pilots in Philippine ports. This it did without notice, hearing nor

consultation with harbor pilots or their associations whose rights

and activities are to be substantially affected. The harbor pilots

then filed suit to have the new MARINA rules and regulations declared

unconstitutional for having been issued without due process.

Suggested Answer:

The issuance of the new rules and regulations violated due process.

Under Section 9, Chapter II, Book VII of the Administrative Code of

1987, as far as practicable, before adopting proposed rules, an

administrative agency should publish or circulate notices of the

proposed rules and afford interested parties the opportunity to

submit their views; and in the fixing of rates, no rule shall be

valid unless the proposed rates shall have been published in a

newspaper of general circulation at least two weeks before the first

hearing on them. In accordance with this provision, in Commissioner

of Internal Revenue vs. Court of Appeals, 261 SCRA 236 (1996), it was

held that when an administrative rule substantially increases the

burden of those directly affected, they should be accorded the chance

to be heard before its issuance.

Alternative Answer:
Submission of the rule to the University of the Philippines Law

Center for publication is mandatory. Unless this requirement is

complied with, the rule cannot be enforced.

II

TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of Administrative

Remedies)

A) Explain the doctrine of exhaustion of administrative remedies.

B) Give at least three exceptions to its application.

Suggested Answer:

A) The doctrine of exhaustion of administrative remedies means

that when an adequate remedy is available within the Executive

Department, a litigant must first exhaust this remedy before he can

resort to the courts. The purpose of the doctrine is to enable the

administrative agencies to correct themselves if they have committed

an error. (Rosales vs. Court of Appeals, 165 SCRA 344 (1988) .

B) The following are the exceptions to the application of the

doctrine of exhaustion of administrative remedies.

1. The question involved is purely legal;

2. The administrative body is in estoppel;

3. The act complained of is patently illegal;

4. There is an urgent need for judicial intervention;

5. The claim involved is small;

6. Grave and irreparable injury will be suffered;

7. There is no other plain, speedy and adequate remedy;

8. Strong public interest is involved;

9. The subject of the controversy is private law;

10. The case involves a quo warranto proceeding (Sunville Timber

Products, Inc. vs. Abad, 206 SCRA 482 (1992);

11. The party was denied due process (Samahang Magbubukid ng

Kapdula, Inc. vs. Court Appeals, 305 SCRA 147 (1999);

12. The decision is that of a Department Secretary (Nazareno vs.

Court of Appeals, G. R. No. 131641, February 23, 2000);

13. Resort to administrative remedies would be futile (university

of the Philippines Board of Regents vs. Rasul, 200 SCRA 685 (1991)

14. There is unreasonable delay (Republic vs. Sandiganbayan, 301

SCRA 237 (1999)

15. The action involves recovery of physical possession of public

land (Gabrito vs. Court of Appeals, 167 SCRA 771 (1988) ;

16. The party is poor (Sabello vs. Department of Education,

Culture and Sports, 180 SCRA 623 (1989); and

17. The law provides for immediate resort to the court (Rullan

vs. Valdez, 12 SCRA 501 (1964).

1999 BAR EXAMINATION

TOPIC: RIGHT TO HEARING AND NOTICE

A. Give examples of acts of the state which infringe the due

process clause:

1. In its substantive aspect; and

2. In its procedural aspect

B. On April 6, 1963. Police Officer Mario Gatdula was charged

by the Mayor with Grave Misconduct and Violation of Law before the

Municipal Board. The Board investigated Gatdula but before the case

could be decided, the City charter was approved. The City Fiscal,

citing Section 30 of the city charter, asserted that he was

authorized thereunder to investigate city officers and employees. The

case against Gatdula was then forwarded to him, and are-investigation

was conducted. The office of the Fiscal subsequently recommended

dismissal. On January 11, 1966, the City Mayor returned the records

of the case to the City Fiscal for the submission of an appropriate

resolution but no resolution was submitted. On March 3, 1968, the

City Fiscal transmitted the records to the City Mayor recommending

that final action thereon be made by the City Board of Investigators

(CBI). Although the CBI did not conduct an investigation, the records

show that both the Municipal Board and the Fiscal's Office

exhaustively heard the case with both parties afforded ample

opportunity to adduce their evidence and argue their cause. The

Police Commission found Gatdula guilty on the basis of the records

forwarded by the CBl. Gatdula challenged the adverse decision of the

Police Commission theorizing that he was deprived of due process.

Questions: Is the Police Commission bound by the findings of the City

Fiscal? Is Gatdula's protestation of lack or nonobservance of due

process well-grounded? Explain your answers.

C. On November 7, 1990, nine lawyers of the Legal Department of Y

Bank who were all under Fred Torre, sent a complaint to management

accusing Torre of abusive conduct and mismanagement. Furnished with a

copy of the complaint, Torre denied the charges. Two days later, the

lawyers and Torre were called to a conference in the office of the

Board Chairman to give their respective sides of the controversy.

However, no agreement was reached thereat. Bank Director Romulo Moret

was tasked to look further into the matter. He met with the lawyers

together with Torre several times but to no avail. Moret then

submitted a report sustaining the charges or the lawyers. The Board

Chairman wrote Torre to inform him that the bank had chosen the

compassionate option of "waiting" for Torre's resignation. Torre was

asked, without being dismissed, to turn over the documents of all

cases handled by him to another official of the bank but Torre

refused to resign and requested for a "full hearing", Days later, he

reiterated his request for a "full hearing", claiming that he had

been "constructively dismissed", Moret assured Torre that he is "free

to remain in the employ of the bank" even if he has no particular

work assignment. After another request for a "full hearing" was

ignored, Torre filed a complaint with the arbitration branch of NLRC

for illegal dismissal. Reacting thereto, the bank terminated the

services of Torre.

Questions: (a) Was Torre "constructively dismissed" before he filed

his complaint? (b) Given the multiple meetings held among the bank

officials, the lawyers and Torre, is it correct for him to say that

he was not given an opportunity to be heard? Explain your answers.

SUGGESTED ANSWER:

A.

1.) A law violates substantive due process when it is unreasonable

or unduly oppressive. For example, Presidential Decree No. 1717,

which cancelled all the mortgages and liens of a debtor, was

considered unconstitutional for being oppressive. Likewise, as stated

in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City

Mayor of Manila, 20 SCRA 849, a law which is vague so that men of

common intelligence must guess at its meaning and differ as to its

application violates substantive due process. As held in Tañada v.

Tuvera, 146 SCRA 446, due process requires that the law be published.

2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the

dismissal of a case without the benefit of a hearing and without any

notice to the prosecution violated due process. Likewise, as held in

People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of

the judge who will decide a case violates procedural due process.

B.

The Police Commission is not bound by the findings of the City

Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was held that the

Police Commission is not prohibited from making its own findings on

the basis of its own evaluation of the records. Likewise, the

protestation of lack of due process is not well-grounded, since the

hearings before the Municipal Board and the City Fiscal offered

Gatdula the chance to be heard. There is no denial of due process if

the decision was rendered on the basis of evidence contained in the

record and disclosed to the parties affected.

C.

a) Torre was constructively dismissed, as held in Equitable Banking

Corporation v. National Labor Relations Commission, 273 SCRA 352.

Allowing an employee to report for work without being assigned any

work constitutes constructive dismissal.

b) Torre is correct in saying that he was not given the chance to be

heard. The meetings in the nature of consultations and conferences

cannot be considered as valid substitutes for the proper observance

of notice and hearing.

1998 BAR EXAMINATION

TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Department of National Defense entered into contract with

Raintree Corporation for the supply of ponchos to the Armed Forces of

the Philippines (AFP), stipulating that, in the event of breach,

action may be filed in the proper court in Manila.

Suppose the AFP fails to pay for delivered ponchos where must

Raintree Corporation file its claim? Why?

SUGGESTED ANSWER:

Raintree Corporation must file its claim with the Commission on

Audit. Under Section 2(1) IX-D of the Constitution, the Commission on

Audit has the authority to settle all accounts pertaining to

expenditure of public funds. Raintree Corporation cannot file a case

in court. The Republic of the Philippines did not waive its immunity

from suit when it entered into the contract with Raintree Corporation

for the supply of ponchos for the use of the Armed Forces of the

Philippines. The contract involves the defense of the Philippines and

therefore relates to a sovereign function.

In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held:

"The restrictive application of State immunity is proper only when

the proceedings arise out of commercial transactions of the foreign

sovereign, its commercial activities or economic affairs. Stated

differently, a State may be said to have descended to the level of an

individual and can thus be deemed to have tacitly given its consent

to be sued only when it enters into business contracts. It does not

apply where the contract relates to the exercise of its sovereign

functions. In this case the project are an integral part of the naval

base which is devoted to the defense of both the United States and

the Philippines, indisputably a function of the government of the

highest order: they are not utilized for nor dedicated to commerce or

business purposes"

The provision for venue in the contract does not constitute a waiver

of the State immunity from suit, because the express waiver of this

immunity can only be made by a statute.

In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled:

"Apparently respondent Judge was misled by the terms of the contract

between the private respondent, plaintiff in his sala, and defendant

Rice and Com Administration which, according to him, anticipated the

case of a breach of contract between the parties and the suits that

may thereafter arise. The consent, to be effective though, must come

from the State acting through a duly enacted statute as pointed out

by Justice Bengzon in Mobil."

ALTERNATIVE ANSWER:

In accordance with the doctrine of exhaustion of administrative

remedies, Raintree Corporation should first file a claim with the

Commission on Audit. If the claim is denied, it should file a

petition for certiorari with the Supreme Court.

II

Topic: Administrative rulings subject to final determination of the

Courts

Andres Ang was born of a Chinese father and a Filipino mother in

Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was

naturalized as a Filipino citizen On May 11, 1998. Andres Ang was

elected Representative of the First District of Sorsogon. Juan Bonto

who received the second highest number of votes, filed a petition for

Quo Warranto against Ang. The petition was filed with the House of

Representative Electoral Tribunal (HRET). Bonto contends that Ang is

not a natural born citizen of the Philippines and therefore is

disqual1fied to be a member of the House.

The HRET ruled in favor of Ang. Bonto filed a petition for certiorari

in the Supreme Court. The following issues are raised:

1. Whether the case is justiciable considering that Article VI.

Section 17 of the Constitution declares the HRET to be the sole Judge-

of all contests relating to the election returns and

disqualifications of members of the House of Representatives.

2. Whether Ang is a natural born citizen of the Philippines.

How should this case be decided?

SUGGESTED ANSWER:

1. The case is justiciable. As stated in Lazatin vs.House Electoral

Tribunal. 168 SCRA 391, 404, since judicial power includes the duty

to determine whether or not there has been a grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of

any branch or instrumentality of the Government, the Supreme Court

has the power to review the decisions of the House of Representatives

Electoral Tribunal in case of grave abuse of discretion on its part.

2. Andres Ang should be considered a natural born citizen of the

Philippines. He was born of a Filipino mother on January 20, 1973.

This was after the effectivity of the 1973 Constitution on January

17, 1973. Under Section (I), Article III of the 1973 Constitution,

those whose fathers or-mothers are citizens of the Philippines are

citizens of the Philippines. Andres Ang remained a citizen of the

Philippines after the effectivity of the 1987 Constitution. Section

1. Article IV of the 1987 Constitution provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the

adoption of this Constitution:"

III

TOPIC: SELF INCRIMINATION

Suppose Congress passed a law to implement the Constitutional

principle that a public office is a public trust, by providing as

follows:

"No employee of the Civil Service shall be excused from attending and

testifying or from producing books, records, correspondence,

documents or other evidence in any administrative investigation

concerning the office in which he is employed on the ground that his

testimony or the evidence required of him may tend to incriminate him

or subject him to a penalty or forfeiture: but his testimony or any

evidence produced by him shall not be used against him in criminal

prosecution based on the transaction, matter or thing concerning

which is compelled, after invoking his privilege against self-

incrimination to testify or produce evidence. Provided, however, that

such individual so testifying shall not be exempt from prosecution

and punishment for perjury committed in so testifying nor shall he be

exempt from demotion or removal from office. Any employee who refuses

to testify or produce any documents under this Act shall be dismissed

from the service."

Suppose further, that Ong, a member of the Professional Regulatory

Board, is required to answer questions in an investigation regarding

a LEAKAGE in a medical examination.

1. Can Ong refuse to answer questions on the ground that he would

incriminate himself?

2. Suppose he refuses to answer, and for that reason, is dismissed

from the service; can he pausibly argue that the Civil Commission has

inferred his guilt from his refusal to answer in violation of the

Constitution?

3. Suppose on the other hand, he answers the question and on the

basis of his answers, he is found guilty and is dismissed. Can he

pausibly assert that his dismissa1 is based on coerced confession?

SUGGESTED ANSWER:

1. No. Ong cannot refuse to answer the question on the ground that he

would incriminate himself, since the Jaw grants him immunity and

prohibits the use against him in a criminal prosecution of the

testimony or evidence produced by him. As stated by the United States

Supreme Court in Brown vs. Walker, 161 U.S.591, 597, what the

constitutional prohibition against self-incrimination seeks to

prevent is the conviction of the witness on the basis of testimony

elicited from him. The rule is satisfied when he is granted immunity.

ALTERNATIVE ANSWER:

1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108,

if Ong is being cited merely as a witness, he may not refuse to

answer. However, if the question tends to violate his right against

self-incrimination, he may object to it. On the other hand, under the

ruling in Chavez vs. Court of Appeals. 24 SCRA 663, 680, if be is a

respondent, Ong may refuse to answer any question because of his

right against self-incrimination.

SUGGESTED ANSWER:

2. No Ong cannot argue that the Civil Service Commission inferred

his guilt from his refusal to answer. Be was not dismissed because of

his involvement in the leakage in the medical examination but for his

refusal to answer. This is a violation of the law. He could be

compelled to answer the question on pain of being dismissed in case

of his refusal, because he was granted immunity.

In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States Supreme

Court said:

"Furthermore, the accommodation between the interest of the State and

the Fifth Amendment requires that the State have means at its

disposal to secure testimony if immunity is supplied and testimony is

still refused. This is recognized by the power of courts to compel

testimony, after a grant of immunity, by use of civil contempt and

coerced imprisonment. Shilitani vs. United States, 384 US 364, 16 L

Ed 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity the

State may plainly insist that employees either answer questions under

oath about the performance of their job or suffer the loss of

employment."

3. Yes, Ong can argue that his dismissal was based on coerced

confession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the United

States Supreme Court held:

"We now hold the protection of the individual under the Fourteenth

Amendment against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under threat of removal

from office, and that it extends to all, whether they are policemen

or other members of the body politic."

IV

TOPIC: LIMITATIONS OF POWER

The police had suspicions that. Juan Samson, member of the subversive

New-Proletarian Army, was using the mail for propaganda purposes in

gaining new adherents to its cause. The Chief of Police of

Bantolan., Lanao del Sur ordered the Postmaster of the town to

intercept and open all mail addressed to and coming from Juan Samson

in the interest of the national security. Was the order of the Chief

of Police valid?
SUGGESTED ANSWER:

No, the order of the Chief of Police is not valid, because there is

no law which authorizes him to order the Postmaster to open the

letters addressed to and coming from Juan Samson. An official in the

Executive Department cannot interfere with the privacy of

correspondence and communication in the absence of a law authorizing

him to do so or a lawful order of the court.

Section 3(1), Article III of the Constitution provides:

"The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order

requires otherwise as prescribed by law."

IV

TOPIC: JURISDICITON

Suppose a Commissioner of the COMELEC is charged before the

Sandiganbayan for allegedly tolerating violation of the election laws

against proliferation of prohibited billboards and election

propaganda with the end in view of removing him from office. Will the

action prosper?
SUGGESTED ANSWER:

No, the action will not prosper. Under Section 8 Article Xl of the

Constitution. the Commissioners of the Commission on Elections are

removable by impeachment. As held in the case of In re Gonzales, 160

SCRA 771,774-775, a public officer who is removable by impeachment

cannot be charged before the Sandiganbayan with an offense which

carries with it the penalty of removal from office unless he is first

impeached. Otherwise, he will be removed from office by a method

other than impeachment.

1997 BAR EXAMINATION

TOPIC: ADMINISTRATIVE CODE

Are the government-owned or controlled corporations within the scope

and meaning of the "Government of the Philippines"?

Suggested Answer:

Section 2 of the Introductory Provisions of the Administrative Code

of 1987 defines the government of the Philippines as the corporate

governmental entity through which the functions of government are

exercised throughout the Philippines, including, save as the contrary

appears from the context, the 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.

Government-owned or controlled corporations are within the scope and

meaning of the Government of the Philippines if they are performing

governmental or political functions.

II

TOPIC: ADMINISTRATIVE CODE – FLAG CEREMONY

Section 28, Title VI, Chapter 9, of the Administrative Code of 1987

requires all educational institutions to observe a simple and

dignified flag ceremony, including the playing or singing of the

Philippine National Anthem, pursuant to rules to be promulgated by

the Secretary of Education, Culture and Sports. The refusal of a

teacher, student or pupil to attend or participate in the flag

ceremony is a ground for dismissal after due investigation. The

Secretary of Education, Culture and Sports issued a memorandum

implementing said provision of law. As ordered, the flag ceremony

would be held on Mondays at 7:30 a.m. during class days. A group of

teachers, students and pupils requested the Secretary that they be

exempted from attending the flag ceremony on the ground that

attendance thereto was against their religious belief. The Secretary

denied the request. The teachers, students and pupils concerned went

to the Court to have the memorandum circular declared null and void.

Decide the case.

Suggested Answer:

The teachers and the students should be exempted from the flag

ceremony. As held in Ebralinag vs. Division Superintendent of Schools

of Cebu, 251 SCRA 569 , to compel them to participate in the flag

ceremony will violate their freedom of religion. Freedom of religion

cannot be impaired except upon the showing of a clear and present

danger of a substantive evil which the State has a right to prevent.

The refusal of the teachers and the students to participate in the

flag ceremony does not pose a clear and present danger.

1996 BAR EXAMINATION

TOPIC: ADMINISTRATIVE REMEDIES

1. Distinguish the doctrine of primary jurisdiction from the

doctrine of exhaustion of administrative remedies.

2. Does the failure to exhaust administrative remedies before

filing a case in court oust said court of jurisdiction to hear the

case? Explain.

Suggested Answer:

1. The doctrine of primary jurisdiction and the doctrine of

exhaustion of administrative remedies both deal with the proper

relationships between the courts and administrative agencies. The

doctrine of exhaustion of administrative remedies applies where a

claim is cognizable in the first instance by an administrative agency

alone. Judicial interference is withheld until the administrative

process has been completed. As stated in Industrial Enterprises, Inc.

vs. Court of Appeals, 184 SCRA 426, the doctrine of primary

jurisdiction applies where a case is within the concurrent

jurisdiction of the court and an administrative agency but the

determination of the case requires the technical expertise of the

administrative agency. In such a case, although the matter is within

the jurisdiction of the court, it must yield to the jurisdiction of

the administrative case.

2. No, the failure to exhaust administrative remedies before

filing a case in court does not oust the court of jurisdiction to

hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384,

the failure to exhaust administrative remedies does not affect the

jurisdiction of the court but results in the lack of a cause of

action, because a condition precedent that must be satisfied before

action can be filed was not fulfilled.

1995 BAR EXAMINATION

TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY

The Municipality of Binangonan, Rizal passed a resolution authorizing

the operation of an open garbage dumpsite in a 9-hectare land in the

Reyes Estate within the Municipality's territorial limits. Some

concerned residents of Binangonan filed a complaint with the Laguna

Lake Development Authority (LLDA) to stop the operation of the

dumpsite due to its harmful effects on the health of the residents.

The LLDA conducted an on-site investigation, monitoring, testing and

water sampling and found that the dumpsite would contaminate Laguna

de Bay and the surrounding areas of the Municipality. The LLDA also

discovered that no environmental clearance was secured by the

Municipality from the Department of Environment and Natural Resources

(DENR) and the LLDA as required by law. The LLDA therefore issued to

the Binangonan Municipal Government a cease and desist order to stop

the operation of the dumpsite. The Municipality of Binangonan filed a

case to annul the order issued by the LLDA.

1. Can the Municipality of Binangonan invoke police power to

prevent its residents and the LLDA from interfering with the

operation of the dumpsite by the Municipality? Explain.

2. Can the LLDA justify its order by asserting that the health

of the residents will be adversely affected? Explain.

Suggested Answer:
1. No, the Municipality of Binangonan cannot invoke its police

power. According to Laguna Lake Development Authority vs. Court of

Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA is

mandated to promote the development of the Laguna Lake area,

including the surrounding Province of Rizal, with due regard to the

prevention of pollution. The LLDA is mandated to pass upon and

approve or disapprove all projects proposed by local government

offices within the region.

2. Yes, the LLDA can justify its order. Since it has been

authorized by Executive Order No. 927 to make orders requiring the

discontinuance of pollution, its power to issue the order can be

inferred from this. Otherwise, it will be a toothless agency.

Moreover, the LLDA is specifically authorized under its Charter to

issue cease and desist orders.

1991 BAR EXAMINATION

TOPIC: ADMINISTRATIVE BODIES OR AGENCY

On July 1991, the Energy Regulatory Board (ERB), in response to

public clamor, issued a resolution approving and adopting a schedule

for bringing down the prices of petroleum products over a period of

one (1) year starting 15 August 1991, over the objection of the oil

companies which claim that the period covered is too long to prejudge

and foresee.

Is the resolution valid?

Suggested Answer:

No, the resolution is not valid, since the Energy Regulatory Board

issued the resolution without a hearing. The resolution here is not a

provisional order and therefore it can only be issued after

appropriate notice and hearing to affected parties. The ruling in

Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA

218, to the effect that an order provisionally reducing the rates

which a public utility could charge, could be issued without previous

notice and hearing, cannot apply.

1990 BAR EXAMINATION

I
TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS

Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquino

created the Presidential Commission on Good Government (PCGG) and

empowered it to sequester any property shown prima facie to be ill-

gotten wealth of the late President Marcos, his relatives and

cronies. Executive Order No. 14 vests on the Sandiganbayan

jurisdiction to try hidden wealth cases. On April 14, 1986, after an

investigation, the PCGG sequestered the assets of X Corporation, Inc.

(1) X Corporation, Inc, claimed that President Aquino as President,

could not lawfully issue Executive Orders Nos. 1, 2, 14, which have

the force of law, on the ground that legislation is a function of

Congress. Decide.

(2) Said corporation also questioned the validity of the three

executive orders on the ground that they are bills of attainder and,

therefore, unconstitutional. Decide

Suggested Answer:

(1) The contention of X Corporation should be rejected. Executive

orders Nos. 1, 2 and 14 were issued in 1986. At that time President

Corazon Aquino exercised legislative power Section 1, Article II of

the Provisional Constitution established by Proclamation No. 3,

provided:

"Until a legislature is elected and convened under a new

constitution, the President shall continue to exercise legislative

power."

In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas,

Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that the

Provisional Constitution and the 1987 Constitution, both recognized

the power of the President to exercise legislative powers until the

first Congress created under the 1987 Constitution was convened on

June 27, 1987.

(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. A

bill of attainder is a legislative act which inflicts punishment

without trial. On the contrary, the expressly provide that any

judgment that the property sequestered is ill-gotten wealth is to be

made by a court (the Sandiganbayan) only after trial.

II

TOPIC: LAW ON PUBLIC OFFICERS

A. After 2 February 1987, the Philippine National bank (PNB) grants a

loan to congressman X. Is the loan violative of the Constitution?

Suppose the loan had instead been granted before 2 February 1987, but

was outstanding on that date with a remaining balance on the

principal in the amount of P50,000, can the PNB validly give

Congressman X an extension of time after said date to stele the

obligation?

B. For being notoriously undesirable and recidivist, Jose Tapulan, an

employee in the first level of the career service in the Office of

the Provincial Governor of Masbate, was dismissed by the Governor

without formal investigation pursuant to Section 40 of the Civil

Service Decree (P.D. No. 807) which authorizes summary proceedings in

such cases.

As a lawyer of Jose what steps, if any, would you take to protect his

rights?

Suggested Answer:

A. whether or not the loan is violative of the 1987 Constitution

depends upon its purpose, if it was obtained for a business purpose,

it is violative of the Constitution. If it was obtained for some

other purpose, e.g. for housing, it is not violative of the

Constitution because under Section 16, Article XI, Members of

Congress are prohibited from obtaining loans from government-owned

banks only if it is for a business purpose.

If the loan was granted before the effectivity of the Constitution on

February 2, 1987, the Philippine National Bank cannot extend its

maturity after February 2, 1987, if the loan was obtained for a

business purpose. In such case the extension is a financial

accommodation which is also prohibited by the Constitution.

B. Section 40 of the Civil Service Decree has been repealed by

republic Act No. 6654. As a lawyer of Jose Tapulan, I will file a

petition for mandamus to compel his reinstatement. In accordance with

the ruling in Mangubat vs. Osmeña, G.R. No. L-12837, April 30, 1959,

there is no need to exhaust all administrative remedies by appealing

to Civil Service Commission, since the act of the governor is

patently illegal.

1989 BAR EXAMINATION

TOPIC: LAW ON PUBLIC OFFICERS

An existing law grants government employees the option to retire upon

reaching the age of 57 years and completion of at least 30 years of

total, government service. As a fiscal retrenchment measure, the

Office of the President later issued a Memorandum Circular requiring

physical incapacity as an additional condition for optional

retirement age of 65 years. A government employee, whose application

for optional retirement was denied because he was below 65 years of

age and was not physically incapacitated, filed an action in court

questioning the disapproval of his application claiming that the

Memorandum Circular is void. Is the contention of the employee

correct? Explain.

Suggested Answer:

Yes, the contention of the employee is correct. In Marasigan vs.

Cruz, SCRA , it was held that such memorandum circular is void. By

introducing physical capacity as additional condition for optional

retirement, the memorandum circular tried to amend the law. Such

power is lodged with the legislative branch and not with the

executive branch.

II

TOPIC: LAW ON PUBLIC OFFICERS

In 1986, F, then the officer-in-charge of Botolan, Zambales, was

accused of having violated the ANTI-Graft and Corrupt Practices Act

before the Sandigan Bayan. Before he could be arraigned, he was

elected Governor of Zambales. After his arraignment, he put under

preventive suspension by the Sandiganbayan " for the duration of the

trial".

(1) Can F successfully challenge the legality of his preventive

suspension on the ground that the criminal case against him involved

acts committed during his term as officer-in-charge and not during

his term as Governor?

(2) Can F validly object to the aforestated duration of his

suspension?
Suggested Answer:

(1) No, F cannot successfully challenge the legality of his

preventive suspension on the ground that the criminal case against

him involve acts committed during his term as OIC and not during his

term as governor because suspension from office under Republic Act

3019 refers to any office that the respondent is presently holding

and not necessarily to the one which he hold when he committed the

crime with which he is charged. This was the ruling in Deloso vs.

Sandiganbayan, 173 SCRA 409

(2) Yes, F Can validly object to the duration of the suspension. In

Deloso vs. Sandiganbayan, 173 SCRA 409, it was held that the

imposition of preventive suspension for an indefinite period of time

is unreasonable and violates the right of the accused to due process.

The people who elected the governor to office would be deprived of

his services for an indefinite period, and his right to hold office

would be nullified. Moreover, since under Section 42 of the Civil

Service Decree the duration of preventive suspension should be

limited to ninety (90) days, equal protection demands that the

duration of preventive suspension under the Anti-Graft and Corrupt

Practices Act be also limited to ninety (90) days only.