J Estrella, Gil Garcia II, Daryl Ritchie Valles
JUNE 26
Definition of Terms
1. Administrative Law- is the branch of public law
which fixes the organization of government. It
determines the competence of administrative
authorities who execute the law and indicates to the
individual the remedies available in case of violation
of his rights.
- It also refers to the system of legal
principles in settlement of conflicting
claims involving administrative and
executive officers in their dealings with
individuals.
- The purpose is the protection of private
rights of individuals.
What concepts are important in the study of administrative
law?
- The Doctrine of Primary Jurisdiction
- Exhaustion of Administrative Remedies
- The Doctrine/Power of Control as
distinguished from Power of ______
- Doctrine of Qualified Political Agency
- Exceptions of Exhaustion of
Administrative Remedies
- Due process provision in the
administrative proceedings.
It also deals with powers and procedures of administrative
authorities, importantly, the relief against abuses committed by
administrative authorities. The power of judicial review of
administrative decisions.
So administrative law deals with all portions of administrative
law involving administrative and executive officers. The
objective here is the protection of private rights; therefore the
subject matter is the nature and the mode of exercise of the
administrative power and the system of the need against
administrative action.
The function of administrative law is to make the government
machinery work in an efficient and orderly manner.
The government has only a few functions to deal with. But
because of the complexities of the activities of individuals and
entities, the government found itself unable to deal with these
complexities and thus, the need to create administrative
authorities dealing on specific matters w/in their competence.
And so the legislature and courts felt that they were not
competent to deal with these intricacies and so the need
therefore for congress to create administrative bodies.
How then do we distinguish administrative authorities from the
court? Take note that the court has only one function, that is,
adjudication—the adjudication of legal rights, but not so in the
case of administrative authorities. It has multiple
functions. The exercise of quasi-legislative function and
quasi-judicial function of administrative bodies.
The administrative authorities are empowered under their laws
not only to promulgate rules. Principally, the purpose of
administrative authority is regulatory, although in the process it
may have the authority to adjudicate controversies. But take
note, in the latter _____, it is incident to the principal function,
still regulatory.
So the test here whether, the administrative body is
judicial or administrative is whether the body is tasked to
regulate even if it is empowered to hear but the latter is
only incident to its principal function to _____ out the
provisions of the law. Therefore, its authority is
administrative. Whereas, if that tribunal has only one kind of
power that is to adjudicate legal rights, to decide legal
controversies, then that tribunal is the court.
This has been asked in the bar, what are the types of
administrative authorities? The government may set up to
create bodies to offer some privilege, grant or gratuity, for
example, the Philippine Veteran’s Affairs Office, the GSIS,
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SSS. Or the government may establish an entity to carry out
certain business function of governmental activity, for example,
Bureau of Internal Revenue. Or the government may make a
body tasked to regulate business affected in public interest,
let’s say the Department of Energy. Certainly, there must be
administrative authorities to regulate these activities affected
with public interest. Or an agency may be created by
government through legislature in order to adjust
individual controversies. Basically, because of enshrined
constitutional social policy, for example, the NLRC, DOLE. Or
the government may create an agency that will perform some
kind of business activity, for example the Phil. Postal
Corporation. Or an entity may be established to consider the
government as a private entity, for example in the case of the
Commission on Audit, the authority under the constitution to
audit the transactions of government entities.
Very important! The distinction between the term Republic of
the Philippines aka the Government of the Republic of the
Philippines as distinguished from the term National
Government. So the GRP is defined under Sec. 2 of the
Revised Administrative Code (EO 292) refers to the
corporate governmental entity to which the functions of
the government are exercised throughout the Phils.
including the various arms of its political authority is made
effective, rather we’re talking of the various local government
units, such as the Autonomous Region, the province, city,
municipality and barangay; Whereas, the National
Government refers to the entire machinery of the central
government composed of the executive, legislative and
judicial departments. And this concept ought to be
distinguished from the LGUs, which are part of the term GRP.
LGU is not part of National Government.
Old case. Is the Central Bank part of the term National
Government? This arose because of the unilateral rescission
made by the Central Bank in the matter of construction
agreement, although verbal, it had with the Ablaza
Construction. And here the Central Bank contend that it is part
of the term National Government under the old administrative
code. Sec 607 of that code declared that whenever there is a
disbursement of public fund by the National Government, there
must be a certificate of availability. But there was none in this
case. The SC ruled that the CB is a government instrumentality
that has been (rated?) as an autonomous entity, it has its own
charter of ____ (??? 265 as amended). And the purpose of this
Institution is to administer the monetary and banking system of
the Philippines.
In the case of Bacani vs NACOCO. The issue of w/n the
coconut corporation is within the term GRP. COA contended
that there should be no payment because NACOCO is
embraced in GRP and under the Rules of Court, it is exempt
from payment of such fees. The SC ruled that this
government corporation has a personality separate and
distinct from the GRP.
In the Bar, this has been asked twice: Are GOCCs embraced
in the term GRP? Yes. If they are performing political or
governmental function. No. if they’re not. So clearly GOCCs
may perform governmental and corporate functions or
proprietary functions. The latter capacity, these GOCCs
performing proprietary functions are not embraced with the
term GRP.
What other important terms? Instrumentality of the
Government as defined in the Revised Admin Code. It refers to
the agency of the National Government that has not been
integrated within the department framework, but vested, it is
given special functions as provided by law. And this
instrumentality enjoys operational autonomy under its charter.
You have here the case of MIAA of the status of the MIAA. The
SC ruled that MIAA is not a GOCC but rather an
instrumentality of the National Government vested with not
only governmental functions but with corporate powers. So it is
vested with a corporate function in order for it to perform
efficiently governmental functions. The fact that the law vests
in the instrumentality corporate functions, it does not mean that
this corporation is already an instrumentality, unless this
J Estrella, Gil Garcia II, Daryl Ritchie Valles
corporation has been organized as a stock or non-stock
corporation. So it remains an instrumentality exercising both
corporate and governmental powers. So an instrumentality
may also be a GOCC, but not all GOCCs are instrumentalities
as defined under the Revised Administrative Code.
The case of RP vs. Rambuyong, pertainting to the definition
under Sec. 2 of EO 292. The term instrumentality includes
GOCCs. What about the status of the National Power
Corporation? It has dual status, it is also an instrumentality of
government. The problem here was that Rambuyong and the
Vice Mayor of Sibugan, Zamboanga, appeared as counsel in a
case filed against the NPC. Under the LGC, it declares that no
member of the Sangguniang Bayan for the LGU shall appear
as counsel in a case against the instrumentality, agency of a
government unit. The SC ruled that Rambuyong cannot appear
as counsel in this case for damages against NPC because
NPC is an instrumentality of government and therefore within
the ambit of the provision under Sec. 90 of LGC.
In an earlier case, Maceda vs Macaraig, the SC declared that
NPC is a government instrumentality that is tasked to
undertake the development of hydroelectric generation of
power, in order to improve the quality of life. This is on the
basis of Art. 2 Sec. 9 of the Constitution.
In the case of Iron and Steel Authority vs CA, in the status of
ISA. ISA was created under PD 272 for a term of 5 years.
Subsequently, after the lapse of 5 years, it was extended under
EO 555 for another 10 year period. And so during the
corporate life of ISA, it instituted an imminent domain
proceeding over the Ma. Cristina plant in Iligan. And so while
the case was pending, the corporate term of ISA expired. And
so the issue w/n the expiration of term also mean the extinction
of the suit it filed during its corporate term. The SC ruled,
looking into the status of the ISA that the GRP should
substitute in the place of ISA because the ISA is a non-
incorporated agency or instrumentality of the GRP. Therefore,
upon the expiration of its authority, all the powers of the ISA
ought to revert back and should be assumed by the principal,
the GRP, unless there is a specific provision in the law
providing for such disposition.
Very important! The Doctrine of Primary Jurisdiction. Under
this concept, the court cannot and will not determine
controversies involving an issue w/in the jurisdiction of the
administrative tribunal. More so, where the issue reminds the
exercise of sound administrative question and this calls for the
expertise and special knowledge of the administrative tribunal.
And so the court refer to the authority of the administrative
tribunal on the basis of this Doctrine of Primary Jurisdiction.
There are two reasons for this Doctrine of Primary Jurisdiction.
First, the person here is allowed the administrative agency to
decide the issue correctly and the Second is the need to
prevent resorting to two courts, in the process de-clogging the
court’s dockets.
Precisely issues were generally resolved under the provisions
of the Civil Code and were taken cognizance by the courts. But
not anymore. Because on the basis of the law, the
administrative tribunal may take cognizance of the issue
requiring its expertise. So ascertainment of factual matters
which used to be within the competence of the court is now
within the admin tribunal. And in fact, again on the basis of the
provision of law, the administrative tribunal may even award
damages.
A good illustration of this application of the doctrine of primary
jurisdiction, the case of Sagip Kalikasan vs Paderanga. The
authorities were able to confiscate in the alleged illegal _____
of timber products and these products were turned over to
CENRO. But what happened here was there was a private
individual who claimed ownership over the timber products and
filed a suit for replevin before the court presided by Judge
Paderanga. In here, the judge was even dismissed by the SC
for gross ignorance of the law because he took cognizance of
the case knowing that this was already been handled by the
competent authority, DENR. Under the law, DENR is
responsible in matters of enforcement of forestry laws (PD
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705 as amended). The forest products that were confiscated
were in custodia legis and therefore cannot be the subject of
replevin suit before the court against DENR.
The law provides that the enforcement of forestry laws as well
as rules and regulations, the protection, conservation and
management of forest lands are within the exclusive authority
of the DENR.
The exclusive authority being exercised by the Bureau of
Immigration over deportation cases. Applying the Doctrine
of Primary Jurisdiction. So whenever the issue in the
deportation of an alien, it is within the competence of the BI
and in the process, whenever there is a claim of citizenship of
this alleged alien, it will not divest the BI of its authority to take
cognizance of this case and in the process it will also look into
the issue of citizenship. As a rule, judicial is enjoined. The
court will have to defer to the authority of the BI.
This rule is subject to exceptions. What is the
exception to the primary authority of the BI over
deportation cases where there is judicial intervention?
1. Where the court itself believes that there is
substantial evidence in support of the claim by
the deportee of his citizenship; or
2. Whenever the evidence submitted by the
deportee is conclusive of his citizenship.
In these cases, the BI must defer in favor of the
authority of the court.
What is the nature of a citizenship proceeding? It is sui
generis. Therefore, the concept of the res judicata will not
apply. Whenever the issue of citizenship is raised time and
again, the concept of res judicata will not apply.
The Doctrine of Primary Jurisdiction is applicable only
whenever there is a concurrence of jurisdiction between the
court and the administrative tribunal. What the law provides,
the court should defer to respect the authority given to the
administrative agency under such a law. But where what is
involved is the concurrence of jurisdiction between two or more
disciplining authorities, the doctrine of primary jurisdiction does
not apply. So this principle will apply whenever there is a
concurrent jurisdiction between the court and the admin
tribunal. Because of what is provided by law the admin tribunal
must be given the power to decide the controversy. But where
there is concurrence of the authority of disciplining authorities.
For example, the CSC and OMB, these are both disciplining
authorities, the doctrine of primary jurisdiction does not apply.
So what applies is the exclusionary rule. The tribunal that
takes cognizance first of the complaint is an exclusion of
the other equally competent admin authority.
Another application of this doctrine, the case of the
Commission of the Settlement of Land Problems (under DOJ)
(EO 561). The competence of the COSLAP to resolve public
land disputes. So it is limited to those public lands or those
covered by specific agreements with the government, license
obtained from the government, such as pasture lease
agreements, timber concessions or reservation grants. In the
case of Machado vs Gatdula, there was such a complaint by
Gatdula against Machado pertaining to the need of
complainant to a right of way over the property owned by
Machado. But this was a private property and certainly the
COSLAP does not have and could not have jurisdiction over
such property classified as private. Not even in such in this
case, the parties participated in the proceedings even if there
was this writ of execution issued by the COSLAP, the COSLAP
never acquired jurisdiction. And so its authority may be
questioned at any time. The proceedings are in fact null and
void. SO the lack of jurisdiction could not be cured by the
participation of the parties. SO COSLAP’s authority is limited to
those involving public lands, covered by specific agreements
granted by the government. Doctrine of Primary Jurisdiction
does not apply in this case because what is at issue is the right
to pay the private individual.
In a case of UST vs Sanchez. The issue is w/n the doctrine of
primary jurisdiction applies. What happened here was that
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Sanchez filed a suit for damages against UST before the court
because UST refused to give Sanchez the transcript of records
despite repeated demands. UST said this should be claimed
within the competence of the Commission on Higher
Education. And in fact Sanchez filed an administrative
complaint against UST before the CHED. Sabi ng UST, the
fact that Sanchez instituted this complaint before the CHED is
an indication that they recognize that this should be a matter
brought before the CHED not before the court.
Take note, another concept. The Doctrine of Primary
Jurisdiction applies only in the exercise by the administrative
authority of its quasi-judicial or adjudicatory power. It has no
application in the exercise of a quasi-legislative/rule making
powers of the administrative authority.
Now the law of the CHED, RA 77, the Higher Education Act of
1994, does not confer to the CHED quasi-judicial power. In
other words, if this suit is one for damages, and the law itself,
RA 77, does not vest to CHED a power to adjudicate. The SC
ruled it is within the competence of the courts. In fact the
CHED, not only does not have such power of quasi-judicial, it
does not have the power also to award damages.
What is the law of HLURB? Applying the Doctrine of Primary
Jurisdiction, PD 957 as amended by PD 1344. Very
important, Section 1. Section 1 provides for the cases over
which the HLURB has the exclusive jurisdiction. What are
these cases? (1) Unsound real estate business practices. So if
the complaint involves the unsound real estate business
practice of the owner of a subdivision, this is within the
competence of HLURB. (2) Claims involving refund and any
other claims filed by subdivision lot or condominium unit buyer
against the project owner, developer, dealer, broker or
salesman. (3) Cases involving specific performance of
contractual and statutory obligations filed by buyer of
subdivision lot or condominium unit against the owner,
developer, dealer, broker or salesman. Whenever there is
failure on the part of the developer to comply with its
statutory and contractual obligations, let say providing for
the basic needs of the housing units in the subdivision, it
is clearly within the competence of HLURB.
In the case of CT Torres vs Hibionada, asked in the bar,
whenever the issue is specific performance with damages for
delivery of title. There was failure on the part of the developer
to deliver the Certificate of Title accompanied by a demand for
damages. The SC ruled that under the law HLURB is
empowered to award damages.
On the matter of a complaint for reimbursement of
expenses incurred by homeowners to repair defective
housing units as so constructed by the developer, again
this falls under the second situation, within the ambit of
the jurisdiction of the HLURB.
In the case of Chua vs Ang, take note, the authority of the
HLURB applies only the matter of imposition of administrative
fines, but not payment of penalties under Section 39 PD 1344
because there is criminal violation on the provisions of PD
1344, of course you have to file the case before the courts. It is
the courts that impose these penalties, not the HLURB. SO
HLURB must interpret and apply contracts. This used to be
within the competence of the court, not anymore, because of
PD 957 as amended by PD 1344.
Where the complaint refers to the need to declare void a
mortgage. The voidance of a mortgage of a lot done for a
violation of PD 957 as amended by PD 1344 and the
nullification of a foreclosure sale, this used to be the
function of the court, but not anymore. These are already
within the authority of the HLURB.
The mere claim of relationship between the subdivision owner
or developer and the lot buyer or condominium unit buyer does
not automatically confer jurisdiction to the HLURB. It should be
any of the three cases mentioned under Section 1.
In the case of Cadimas vs Carrion, there was this contract to
sell executed between seller Tagimas and buyer Carrion but
later on the buyer dispose of such unit. There was a transfer of
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the townhouse to a third party which is a violation of his
contract to sell. The SC ruled that it is not the HLURB that has
authority to take cognizance of the issue but rather the court.
This issue is not any of those three cases mention under
Section 1 of PD 1344.
In Arranza vs BF Homes, the problem here was that the
developer BF Homes was already placed under receivership.
In fact the SEC appointed a board of receivers to manage the
affairs of BF Homes. But nonetheless the aggrieved
homeowners filed this suit before the HLURB. The court ruled
that even if the developer was already placed under
receivership by the SEC, there was no violation of this order of
the SEC preventing payment to creditors. And in fact the
HLURB under the law still has the competence to take
cognizance of the case because the principal action is not
monetary in nature. So there is no violation of the SEC order
prohibiting payment to creditors. Although in the process of
adjudication of the HLURB, it may incidentally award monetary
claim, but that is not the principal action. If ever there is such
monetary award, such matter would be referred to the board of
receivers. Receivership as the objective of ascertaining the
rights of the parties, it does not mean the extinction of the
corporation itself. So here, the homeowners filed suit because
of the failure of BF Homes to comply with the statutory
obligations on the matter of providing open spaces, etc. The
SC ruled, even if the corporation is under receivership the
HLURB still has to take cognizance of the case.
In the case of Marina Properties Corp. vs CA, the issue,
whether there is forum shopping resorted to by HL Carlos.
What happened here was that there was an agreement
between HL Carlos for it to construct the houses and
condominiums of the Marina Properties Corp. There were
actually two contracts. The first one is a construction contract
and the other the contract to purchase, because here the
contractor also purchased a unit from Marina. So there was
failure of Marina Property to comply with its obligations under
its contract to purchase. So a suit was instituted by the
contractor before the HLURB and another suit was filed by the
contractor against the developer pertaining to the unpaid sum
of money in connection with its accomplishment with the
construction project. It was claimed by petitioner that it was
forum shopping because the contractor resorted to the filing of
suit before two courts. Is there forum shopping here? No,
because we are talking here of two separate actions. The first
one, the suit before the HLURB pertained to failure on the part
of the developer to comply with statutory obligations, etc.. and
the second one pertained to sum of money suit and it should
be filed before the courts. So there is no forum shopping.
Previously under PD 902-A, the SEC had the authority and
jurisdiction over intra-corporate or partnership cases, not the
courts, but not anymore. A new law, RA 8799, the Securities
Regulation Code, it now within the competence of the courts.
Whenever there is a claim of violation, criminal in nature, of the
provisions of the Securities Regulation Code, this is a
specialized dispute that should first be looked into by the SEC
under the doctrine of primary jurisdiction. So whenever there is
violation, criminal in nature, of the provisions of SRC, you
cannot immediately file the case before the prosecutor’s office.
Applying the doctrine of primary jurisdiction because this is a
specialized issue/dispute within the competence of the SEC.
SEC must have the power to look first into the alleged
violation. Whenever it makes a finding of probable cause then
it only when this matter shall be referred to the DOJ for the
conduct of preliminary investigation. But nonetheless,
whenever the SEC conducts the investigation, it already
interrupts the prescriptive period.
What happens if there is non-compliance with this
requirement? There was no adoption of this doctrine of primary
jurisdiction because the complaint immediately was filed before
the president’s office or prosecutor’s office. The prosecutor’s
office has the competence to dismiss the case.
Applying again the doctrine of primary jurisdiction, Toll
Regulatory Board, PD 1112 as amended. What therefore is the
remedy of an express way user, whenever he finds the toll rate
adjustments are oppressive and exorbitant? The remedy under
J Estrella, Gil Garcia II, Daryl Ritchie Valles
the TRB law is to file a petition for review of this adjusted toll
rates with the TRB, because this involves a question of fact
within the competence of the TRB. TRB has the expertise,
applying the formula in other factors as so provided by law.
This calls for the determination of factual matters thus the
doctrine of primary jurisdiction applies. Under the same law,
the decision of TRB is appealable within 10 days to the office
of the president. Again this is consistent with the doctrine of
exhaustion of administrative remedies. Within the
administrative realm, there must be exhaustion.
Under the same law, in relation to PD 8094, the TRB is
invested with the power to grant to any qualified entity or
person the authority to construct, to maintain, operate a toll
facility. Thus in the process issue the corresponding toll
operating permit, also known as toll operating certificate. If the
law confers such power to the administrative agency like TRB
to grant such franchise or _____, there is no need to secure
from legislature to secure a special franchise because the law
already provides the mechanism. The law itself confers the
power to the administrative agency to grant such privilege or
franchise or award such contract by explicit, express provision
of law. TRB is empowered to grant administrative privilege for
the operation of toll facility and impose, alter the terms and
conditions in the appropriate contract.
Same case, Francisco vs TRB, the Court made a distinction
between the fixing of initial toll rate and the fixing of the
subsequent periodic interim toll rates. What is the distinction?
(1) Quasi-legislative, rule-making power, no need of a public
hearing. But the subsequent fixing of interim/periodic toll rates,
whenever there are adjustments of the toll rates subsequent to
the initial fixing, this would require the conduct of a public
hearing. Even in the matter of fixing of initial toll rates, the
general rule here is there is no need of such hearing, there is
no violation of this due process requirement because the law
itself confers such power. But where there is a challenge, there
is a question on the initial toll rate made, it only in such
situation that public hearings are required. So there is a
challenge as to the fixing of toll rate, the general rule there is
no need as provided under the law. Of course in the latter
case, whenever subsequent to the initial rates, there have
been adjustments, so there are petitions filed for the
amendment or increase in the toll rates, there should be
conduct of public hearing because in the latter case this calls
for the exercise of a quasi-judicial function.
Quasi-judicial power, what does it mean? It simply means the
power to decide, to adjudicate. Take note, NOT ALL
administrative authorities are empowered, that possess a
quasi-judicial function. There must be an express conferment,
an empowerment on the basis of its law given to the
administrative tribunal. Even if there is such grant of this
adjudicatory power on the basis of law, this is simply incidental.
This is simply an aid to the principal power of any
administrative agency, which is regulatory, in order to carry out
the provisions of its charter that is regulatory. And in the
process in the express conferment, empowerment by law it
may decide controversies, it may adjudicate.
So what is the nature of this quasi-judicial power of the
administrative agency? This calls for the exercise of discretion,
the action or discretion of the administrative authority in
investigating facts. How do you investigate facts? First gather
your evidence and from such evidence gathered, you
determine the facts. This would be the basis of your decision.
So the exercise of discretion of judicial nature. This calls for the
taking and evaluating of evidence and determination of facts
based on such evidence gathered and presented. An order or
decision is issued. Such order or decision must be supported
by the facts.
If there is no authority given by law to the administrative body
to apply the law, although it be conferred the power to gather
evidence, does it mean that this administrative body possess
of a quasi-judicial power? It only means that that agency, given
the power to gather evidence, to determine facts is conducting
a fact finding investigation which is different from adjudicatory
power.
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The case of PCGG vs Judge Pena. The law of PCGG,
Executive Orders 1, 2, 14 and 14-A. To investigate alleged ill-
gotten wealth of the Marcos’ and his cronies. What happened
here was that, in its early years of existence, the PCGG had
the authority to issue freeze orders. This freeze order was
issued by PCGG over two apparel companies. These apparel
companies went to the court to enjoin, to prevent the PCGG
from carrying out its task. Question: May the court restrain the
PCGG from exercising its authority, in this case, from issuing
this freeze order. The SC ruled, the PCGG is a co-equal body
of the trial court and and exercises quasi-judicial power. The
court cannot restrain the PCGG.
In the matter of the power of the administrative tribunal either
to grant, deny or suspend or revoke a license or permit, that is
an exercise of a quasi-judicial power. So in the case of
Philippine Overseas Employment Authority, the authority of this
agency either to grant, deny, suspend or revoke a license of
any private placement agency, this is a quasi-judicial power.
When we talk of quasi-judicial power you should equate this to
observance of due process requirement. Always compliance
with the due process requirement although the law itself may
allow the agency to issue provisional authority. Because
provisional is temporary, it is still subject to a full blown
determination in a hearing where all the parties are the given
the opportunity to present their evidence. Here the POEA, in
the exercise of such quasi-judicial power has such competence
to suspend, cancel any license of the private agency on any
grounds whenever there is a violation of the terms or
provisions of its permit or license. Case of Sanado vs CA.
In the same manner as the NTC has such competence to issue
a certificate of public convenience and necessity for the
operation, installation of communication of facilities and
services. Therefore in the process determine the area of
operation that the applicant may have such competence for the
operation of this telecommunication services. The NTC is
under what department? DOTC. Even the DOTC can usurp
this power of the NTC to issue a certificate of public
convenience and applying the doctrine of primary jurisdiction.
And it can even, by provision of law, initiate the conduct of
investigation just like the POEA, it is empowered by the DOLE
to initiate, whenever there is a report of an alleged violation by
placement agencies pertaining to the rights of overseas Filipino
workers. The POEA has authority on its own to initiate and
conduct an investigation, quasi-judicial power.
In the case of Eastern Telecom vs International
Communication Corp. What happened here was that the NTC
granted the provisional authority to the ICC to operate of an
area that is already within the authority of the Eastern Telecom
as granted to it by its permit. The SC ruled that there was not
abuse of authority committed here by the NTC by issuing a
permit covering the area already within the coverage of Easter
Telecom’s permit because this is consistent with the policy of
healthy competition. Taking into account the technical and
financial capabilities of the ICC. There was no grave abuse
committed by the NTC.
The conduct of investigation by the prosecutors under the DOJ
is not a quasi-judicial function. Why do you say it is not a
quasi-judicial function? Because it will not, whatever the
resolution issued by the prosecutor will not resolve the finality,
which is in the competence of the court. The DOJ is not a
quasi-judicial agency whenever it releases the finding of the
prosecutor regarding the existence of probable cause.
Because the prosecutor simply makes a determination that
there is, the crime has been probably committed. It is within the
competence of the court to determine the finality of the case.
Any other agency you can think of where the question is not a
quasi-judicial power, whenever you can say the NBI conduct
an investigation, would you say that is an exercise of quasi-
judicial power? NBI? Pagmagimbestiga ang NBI, would you
say that it is already performing a quasi-judicial power? NO.
because it simply recommends. It will not put to rest the issue.
When filing, san ifafile yan? the prosecutor’s office or office of
the ombudsman. The resolution or recommendation of the NBI
does not terminate the proceeding. It is not a quasi-judicial
function.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
In the case of UP Board of Reagents vs CA, what happened
here there was this Indian national took her post graduate
studies in anthropology in the UP. Later on, she was issued a
Doctorate Degree by the UP. It was later found out that her
thesis was plagiarized. The issue here is w/n there was
violation of the rights of this Indian national, then the doctorate
degree given earlier was withdrawn from her by the UP board
of reagents. The SC ruled that as an act in the pursuit of
academic excellence and the need to defend its integrity, the
UP board of Reagents has such power to withdraw such
degree conferred whenever it was found to be issued because
there was fraud, or there were errors committed, but of course
subject to the requirement of due process. The UP board
cannot simply withdraw the degree without giving the person
opportunity to answer.
One other issue raised here, there was no formal hearing
conducted that is why violation. The SC ruled, whenever there
is such a case involving the student, the due process
requirement is already complied with whenever opportunities
are given to file pleading, etc. No need for the conduct of
formal hearing. So the UP board is empowered to determine
who should be its students and who should be given this
privilege to be considered its graduates. It follows that this
institution of higher learning has the power to withdraw this
degree whenever the grant was founded on fraud or error.
In the case of Carino vs CHR, there were public school
teachers of the Ramon Magsaysay Highschool who were on
strike sometime in 1990. They were required by the Sec. of
Education to report to classes, they refused. So administrative
cases were filed against them by the Sec. And some of them
were suspended and some were dismissed for service. One of
the public school teachers did was file a case against Carino
before the CHR. What is the CHR under the Constitution? The
CHR has the authority to investigate all kinds of human rights
violations involving civil and political rights. Its authority is
limited. It does not have the power to adjudicate. Its authority is
simply to make a determination of the facts. So fact finding
investigation, which is not adjudication. The SC ruled that the
CHR has no business interfering with the conduct of
investigation because the Constitution does not confer CHR
adjudicatory power.
What is the objective in creating the Philippine Truth
Commission? The PTC is a fact finding body. It does not have
the power to adjudicate. No quasi-judicial power is given to the
commission. It is not even a creation of legislature, simply to
the issuance of President which came into being. So quasi-
judicial power involves power to hear, determine questions of
facts. Not only in matters, but also the authority to apply and
decide in accordance with the standards provided by law. In
the absence of such authority, it is not an adjudicatory tribunal.
Forum shopping. We mentioned this a while ago. When do
you say there is forum shopping? There is forum shopping
whenever a party against whom another decision has been
rendered, seeks a favorable decision or opinion in another
forum. In other words, the first one speaks of the concept of
res judicata, there has been adjudication of this same issue
that has already been resolved in another forum. Or where the
party files, the same cause of action before two or more
forums, litis pendentia. There is a pending suit filed before
another tribunal and here the party feels that he may not get a
favorable decision, files a case involving the same cause of
action before the court.
The rule on forum shopping also applies to quasi-judicial
proceedings. What is the test for us to conclude that there is a
violation against forum shopping? Where the elements of litis
pendentia are present, there is an ongoing investigation or
pending proceeding involving the same cause. Or where final
judgment in a case will amount to res judicata in another. So
the law as a rule, so many laws of agencies, there is a
requirement of filing a certificate of non-forum shopping.
This requirement is not jurisdictional but it is a mandatory
requirement. Failure to comply with this mandatory
requirement may justify the dismissal of a suit, of course at the
4 Manresa
discretion of the investigation officer. Whenever there is a
complaint filed verified under oath, attached to such verified
complaint is a certificate of non-forum shopping that there is
not similar case filed before any other tribunal.
Is the certification signed by the counsel of the parties
sufficient? No. The certification signed by the lawyer
representing the plaintiffs is defective, unless there is special
authority or power of attorney given. As a rule, the parties
themselves must sign the certificate of non-forum shopping.
What is the exception to this rule? The case of HL
Construction, the exception here is where it is impractical for all
of them to sign. One of them may sign on behalf of the others,
provided that they share the same cause, they have common
interest and the file the case collectively.
In the case of Ombudsman vs Valera, the issue is w/n there
was a violation of this rule against forum shopping. Here,
deputy commissioner Valera was the subject of an
administrative investigation by the Ombudsman and in fact
during the pendency of the investigation he was preventively
suspended. The one who preventively suspended Valera was
the Special Prosecutor. So he filed a motion for
reconsideration of his preventive suspension order, only for
him to file a petition before the appellate court, certiorari. The
SC ruled that there was no violation. Why? Because contested
in the court was the authority of the Special Prosecutor’s to
issue the preventive suspension and there was really basis
because under the law the Special Prosecutor does not have
the power to issue preventive suspension, only the
Ombudsman or Deputy Ombudsman. Even if the Special
Prosecutor is of the same rank as the Deputy Ombudsman, he
does not have the same rights/powers. The law does not
confer this power to the Special Prosecutor. So there is no
violation of this rule against forum shopping.
In the case of Montemayor vs Bundalian, there are theses two
cases filed against the Regional Director of Public Works,
Montemayor. First was the criminal case before the
Ombudsman, another case before the Special Anti-Graft
Commission. It happened that the Ombudsman dismissed the
criminal case and on that basis Montemayor agreed that the
administrative case ought to be dismissed. Is he correct? We
are talking here of two different causes of action. The first one
is criminal and the other one is administrative. So no violation
of this rule against forum shopping.
In Cabarrus vs Bernas, Atty. Bernas filed a civil suit for
damages against Cabarrus in connection with alleged perjury
committed by the latter. At the same time, Atty. Bernas filed a
criminal complaint before the NBI. The question now is w/n
forum shopping is applicable in this case. This rule is not
applicable to agencies not exercising judicial or quasi-judicial
functions. Take note, what it the nature of the case filed by
Atty. Bernas before the NBI? We look into the criminal liability
of Cabarrus for alleged perjury committed and the NBI is not
performing a quasi-judicial power. It conducts investigation
based on the complaint it received coming from Atty. Bernas.
And in fact it was the filing of the civil case independently with
the criminal case.
In the case of Velasquez vs Hernandez, there was this case
before the CSC and another case before the office of the
Ombudsman. two different causes of action. No violation.
In administrative cases involving the concurrent authority
before two or more disciplining bodies, the tribunal that take
cognizance of the complaint acquires authority to the exclusion
of other equal competent tribunals. In the case of Ombudsman
vs Rodriguez where the complaints were first filed with the
OMB means that the authority and jurisdiction is already
conferred with the OMB and this same admin case can no
longer be filed before the Sangguniang Bayan. Under the LGC
Sec. 60-69 the Sanggunian has also concurrent authority in
cases filed against the elective official. If the case was filed
before the Sanggunian then hindi na dapat makialam ang
OMB.
02 JULY
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Earlier, we discussed the exercise of a quasi-judicial power by
administrative authorities.
What is this quasi-legislative authority of administrative
tribunals? It is the power of administrative bodies to
promulgate rules and regulations in order to carry out or
implement the provisions of law that they are mandated
to…that they are tasked by the legislature to implement.
So this is, actually, the charge of this quasi-legislative power is
a relaxation of the principle of separation of powers and, in
fact, an exception to the rule of non-delegation of legislative
power. So the rule here is for the legislature not to delegate.
But because of the multifarious functions/activities now being
performed by individuals and entities, the need therefore for
legislature to authorize the discharge of certain governmental
functions and this is delegated to administrative authorities
and, thus, these administrative authorities are given such
power to promulgate rules and regulations.
So, what are the requirements for the validity of such rules
promulgated by administrative authorities? (1)The rules and
regulations must be germane to the purpose or objects of the
law;(2)Must conform to the requirements of such law and must
carry out the purposes; and of course one other important
requirement is (3) the need for publication of such rules and
regulations.
Take note that not all rules and regulations ought to be
published either in the Official Gazette or in a newspaper of
general circulation. Essentially, only those rules and
regulations that are intended to apply to the public, so where it
binds the public at large, therefore there’s a need for the
publication of such rules issued by the administrative authority.
Nonetheless, whatever rules and regulations of these
administrative authorities to carry out the mandate given to
them are merely interpretations or constructions of the law.
Moreso, if these rules are in excess of the authority given to
the administrative bodies, they do not have a binding effect
upon the courts. It’s simply an interpretation of such law and,
therefore, ultimately it is still the court that makes a decision on
the validity of such rules.
The fact that the administrative authority has not yet issued the
implementing rules does not mean that the law itself is no
longer valid. So, mere absence of the promulgation cannot
effectively ______________ the provisions of the law where
there can a reasonable construction made by administrative
authorities.
Now, what about a promulgation on the basis of law giving the
power to the chief executive to suspend the operation of the
law upon the happening of an act, the ascertainment of which
is left to the chief executive, is this a valid law? YES, in this
case, the president is simply implementing what is provided
under the law and, thus, the president has such power to
promulgate rules in order to carry out the mandate as provided
in such statute.
There are three (3)categories of rules that may be
promulgated by administrative tribunals.
1. Those intended to supply the details of legislation;
2. Those intended to make a construction or
interpretation of the particular statement that the
administrative authority is duty-bound to enforce.
4 Manresa
From time to time, government tribunals, especially those
performing front line operations issue rules and regulations in
interpretation of the provisions of law. Eg. BIR, CSC
3. Those intended to determine some fact or state of
things upon which the enforcement of a law shall
depend.
We mentioned earlier the president may himself be authorized
from the basis of such law, the ascertainment of such act is
dependent upon the rules as promulgated by the administrative
authority. Or let’s say the grant of the legislature of emergency
powers to the president, but for this law to be valid, giving such
emergency powers to the president, there must be sufficient
standards.
In the case of PhilBank vs. CIR, there was this circular issued
by the BIR changing the prescriptive period for claims of
excessive corporate income tax payments. Now, under the
law, the prescriptive period provided therein was only two (2)
years, but under this Memorandum Circular 7-885 this period
was extended to ten (10) years. So clearly, the rule is not in
conformity with what the law provides. It is, in fact, already an
amendment of the law itself. And so, there can be no vested
rights arising from the wrong construction or interpretation of
such law by administrative authorities, in this case the
Commissioner of the BIR. And this cannot a shield to be used
by the taxpayer against such action that may be instituted by
the government against the taxpayer.
Now, in the case of Ople vs. Torres, in the matter of the
issuance by the Office of the President of Administrative Order
No. 308 which provides for the adoption of the National
Computerized Identification Reference System—is this
constitutional? Take note that this rule involved contending
state policies, for example: the right of the state to gather
information against the right of individuals to privacy. So
clearly, this cannot be done simply through the issuance of AO
by the Office of the President, this involves a subject matter
that should be embodied in a law as passed by congress. So
the establishment of this identification reference system
requires delicate adjustments of contending state policies.
In the case of ________ vs. COA, in the matter of the issuance
by the DBM of this local budget circular setting the maximum
amount as additional honorarium or allowance that may be
given by the local government unit to officials of national
agencies. Now, take note, the basis for the issuance by the
DBM of this LBC is Sec. 458 of the LGC, but the LGC simply
provides that the LGU may grant such allowance whenever its
finances allowed. Nowhere in the provision of the LGC does it
provide a maximum limit, the maximum amount that may be
paid by the LGU to the national government official with office
in the locality in the LGU. So clearly, the LBC issued by the
DBM is contrary to the law itself. What did we say earlier? The
rules and regulations must always be in conformity with the
law. It cannot go beyond what it provided in the law, otherwise,
it will already be usurping a power belonging to legislature.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
In the case Lopangco vs. CA, a resolution was passed by the
PRC prohibiting the attendance by the reviewees of
accountancy review classes. You can just imagine if you will be
prohibited from attending review classes, of course this would
be a violation of the established right to liberty, and on the part
of the schools, the academic freedom of these institutions. So
clearly, take note, one other requirement we mentioned earlier,
that whatever promulgation made by the administrative
authority must be reasonable, must not be arbitrary or
capricious.
In the case of Confederacion vs. Quisumbing, there was an
order issued by then Minister Quisumbing phasing out Spanish
subjects.In place of Spanish, the inclusion of Arabic on an
optional basis. And so, the association of Spanish professors
all over the country questioned this order. The SC sustained
the validity of this order. This is a reasonable issuance, and it
is intended to apply to all similarly situated, all Spanish
teachers all over the country.
In the case of _____________ vs. Abad Santos, the Board of
Examiners of Nursing issued a regulation providing for periodic
inspection of nursing schools and preventing the graduates of
these nursing schools which are not able to conform to the
minimum standards set by the Board of Examiners. Of course,
this is a reasonable regulation, a valid exercise of police
power.
There was a time that then BIR Commissioner __________
issued this regulation Memorandum Circular 37-93
reclassifying these fourteen brands, Hope, Champion, and
more. They were classified as local, but on the basis of this
memorandum circular, they were classified as foreign brands
based on the World Tobacco Listing. And so, by reason of this
issuance, there was an imposition, and assessment of 55% ad
valorem tax, and the validity of this circular was questioned
before the court. Clearly, in the guise of an exercise of a quasi-
legislative power, it is actually a quasi-judicial power. It is made
applicable only to one tobacco company, the Fortune Tobacco
Company. Clearly, the requirements of the law have not been
met in the issuance of this memorandum circular, moreso, the
requirement of notice and hearing, and of course, the need to
have this published, none of which were complied with.
Clearly, the memorandum circular is arbitrary, is capricious, is
not in conformity with the law.
Subsequently, another case involving the issuance by the
commissioner of the BIR, this circular gives authority to the
commissioner of the BIR to make updates of the classification
of cigarette brands every two (2) years. Of course, there is no
such authority given under the law for the commissioner to
make such reclassification. This must be embodied in the law.
So nowhere in the NIRC is there authority given to the BIR
commissioner to update the classification of cigarette brands
periodically.
In the case of Romulo vs. HDMF, put in issue here are two (2)
amendments issued by the Board of Trustees of the HDMF,
amendments to the IRR of the HDMF. The first one, the 1995
amendments, declared that for the employer to be exempt from
the Pag-ibig Fund coverage, the employer must have both
provident retirement and housing benefits. Now, is this 1995
amendment valid? The law itself, RA 7742 does not require the
existence of both provident retirement and housing benefits. It
only provides, it declares that for purposes of exempting the
employer, there must be a showing that either he has provident
retirement or housing benefits, not both benefits. So clearly, in
4 Manresa
promulgating these 1995 amendments, the BOT of HDMF
amended the law itself.
Subsequently, the BOT issued the 1996 amendments,
abolishing these provident retirement and housing benefits.
And clearly, they do not have such authority because in doing
so, the BOT already repealed the law itself. The law provides
for the existence of either benefits, and here the 1996
amendments passed by the BOT abolished. So clearly
repealing the law.
Now, in the matter of the creation of the AFP Anti-Graft Board,
now take note that the powers of this Board must always be in
accord with what is provided under the law. What is the law of
the PCGG? Executive Orders Nos. 1 – 14 and 14A in the
matter of the conduct of an investigation involving unexplained
wealth cases of the Marcoses, their cronies, or their
associates. We have here a situation where the AFP Anti-Graft
Board created by the Commissioner Chair of the PCGG, that
time Salonga, conducted an investigation on the alleged
unexplained wealth of one Col. Pecson, and here there was no
allegation that this retired military officer was a crony or
associate of the Marcoses. And clearly, the issuance of this
rule creating this anti-graft board with the power to investigate
military officers whether in the active service or those retired,
or whether they are cronies or not, is not consistent with the
law of the PCGG.
Now, before discussing this ________________ vs. COA,
there is in fact a law, the Teves Retirement Act, RA 4968 which
prohibits the creation, or establishment of any insurance or
retirement scheme or package or plan other than that already
provided by the GSIS for govt officers and employees. The
reason for this law is to prevent the iniquitous and undue
proliferation of such retirement plans for gov’t officers and
employees. So this law bars the creation any similar insurance
or retirement plan. And there was such plan issued by the BOT
of the SSS. Now, earlier we mentioned the important rule that
this power to promulgate rules by the administrative agency,
being a delegated task given to it by the legislature, cannot be
used to defeat the authority given to it by congress or the
constitution itself by, for example, enlarging its powers or
issuing rules that go beyond the scope of the power of the
administrative authority. So here, clearly, the SSS, in
promulgating this resolution, and this resolution provides
supplementary retirement or pension plan for the retiring SSS
employee is a violation of this Teves retirement law. So this
resolution is null and void.
Another situation here, similar to the case of Conde vs. COA,
the BOT of GSIS also issued a promulgation establishing the
retirement financial plan for GSIS officers and employees. Of
course, we know that the officers and employees of GSIS are
already enjoying higher salaries compared to their counterparts
in ordinary offices of gov’t, and this in fact was an observation
of the SC in the case of GSIS vs. COA. Although, the GSIS
law, 8291, confers the power, the authority, to the GSIS
through the Board to create a financial scheme, but
nonetheless, this power is limited only to those officers and
employees availing, in the course of reorganization, of an early
retirement plan because they are not qualified under existing
retirement plan of the GSIS. So you know, the gov’t officer has
the option to retire upon reaching the age of 60, or mandatory
retirement at the age of 65 under the GSIS Act. Now, here,
what the BOT of GSIS did was to create such financial scheme
clearly in violation of this Teves Retirement Law because it
provides for some financial package apart from those existing
under the GSIS Act. So here, the retirement financial plan, as
adopted by the GSIS BOT is null and void. It is, in fact, a form
of reward for the GSIS employees’ lengthy service and loyalty,
J Estrella, Gil Garcia II, Daryl Ritchie Valles
which is already taken cared of under the GSIS Act. So clearly,
a violation of this Teves Retirement Act.
Now, earlier, we mentioned that even in the absence of rules
and regulations the law is still effective, so long as there can be
a reasonable construction made of such a law. So, in the case
of SEC vs. Inter_______ Corporation, the SC ruled that even in
the absence of the rules to implement the Revised Securities
Act, the Act was approved way back in 1982 but it was only
after 14 years, in 1996, that the full disclosure rules were
promulgated by the SEC, even in the absence of such IRR, it
does not invalidate nor make ineffective the Revised Securities
Act. So long as there are reasonable and sufficient standards
embodied in the law itself, and reasonable interpretation may
be given.
This is case ought to be distinguished from the earlier case we
mentioned, the case of PNU vs. Rector?? General. What
happened here was then Pres. GMA issued Executive Order.
420 directing all government agencies to adopt a unified
multipurpose ID system in order to reduce cost brought about
by the existence of multiple ID systems/requirements of
various government offices; and of course, to bring about
greater convenience on the part of the public dealing with
government offices. The question now is whether or not the EO
issued by GMA is a usurpation of legislative power. Is this EO
valid. Now, the SC ruled the validity of this EO. Why? This can
be done in two (2) ways in order to achieve this unified ID
system. The objective here is to reduce cost, bring about
efficiency and greater convenience in transacting with gov’t
agencies. The first mode is for these heads of gov’t agencies
to enter into a MOA. And this can be done if, on its own, the
government corporation, on the basis of law or its charter, is
allowed to formulate or establish an ID format, and there are so
many government offices vested with such authority under
their laws. With more reason that these heads of gov’t entities
may enter into a memorandum in order to adopt a uniform ID
format to make their systems uniform. And this is purely
administrative, not requiring the enactment of a law by
legislature. The second mode of having this unified
multipurpose ID system is on the basis of the power of control
under Art. VII, Sec. 17 of the President. Meaning, the Pres has
control over all departments, bureaus, and offices, and so
clearly, the President can issue this EO on the basis of her
power of control directing that these gov’t agencies ought to
adopt a uniform ID format. Again, this is merely administrative,
through the issuance of an EO by the president. This does not
require legislative function.
Again take note that this applies to offices under the office of
the President because the president, being the chief executive,
has control and supervision over all departments, bureaus, and
offices in the executive branch.
In the case of Review Center…You know, there was this
leakage in the nursing exam and the then President ordered
that the examinees retake the examination, and another act
was made to replace the members of the Board of Nursing,
and she further issued EO 566. This EO authorized the CHED
to supervise the operation of all review centers. And so, the
issue not is WON this EO is valid. Of course, the EO is not
valid. The issuance of this EO is a usurpation of a power
belonging to legislature. Why? Because the law of the CHED,
RA 7722 gives authority to the CHED only over institutions of
higher learning and degree granting programs and all
secondary educational institutions. Take note that review
centers are not under the category of secondary educational
institutions. A review center is not an institution of higher
learning. And clearly, the EO expands the coverage of
authority of CHED. Not a valid promulgation.
4 Manresa
Now, there’s also this important concept known as Fiscal
Autonomy. Take note, not all gov’t offices enjoy fiscal
autonomy. What offices are vested with fiscal autonomy?
Under the Constitution you have the SC, the members of
constitutional commissions, and the office of the Ombudsman.
These are the only offices under the constitution conferred with
fiscal autonomy. What about the CHR? It is also created under
the constitution because of the obligation of the Philippines
under the international law.
What is this fiscal autonomy all about? This means the
freedom of these institutions vested with fiscal autonomy from
outside limitations and control except those provided by
_________ (36:40) laws. It is the power, the authority to levy,
assess, and collect fees. You know, the CSC from time to time,
even the courts, collect fees. Any document you require from
CSC, you have to pay the necessary fees. The authority
likewise to fix the compensation rates. And this is not enjoyed
by other gov’t offices—theauthority to fix the compensation
rates provided that such compensation rates does not exceed
the highest rates authorized by the Salary Standardization
Law. It also refers to the power to allocate and disburse such
funds as may be provided by law. So, the alignment of funds,
and there’s no violation of law because this is a power
belonging to these offices. The authority likewise to formulate
and implement their organizational structure and compensation
of the personnel. But again, there’s an existing limitation on
this authority as provided under the Unified Position
Classification Plan of the DBM.
In the case of the CHR, you know these offices, the SC, COA,
CSC, and the COMELEC, and the Office of the Ombudsman
have this group known as CFAG, the _____________ (39:28)
Fiscal Autonomy Group. The CHR applied as a member and it
was admitted, so the CHR is also a member of the CFAG. So,
the SC ruled that the matter of enjoying this fiscal autonomy is
a grant given under the Constitution, it is not a grant obtained
by membership. But nonetheless, the CHR, being a member of
the CFAG, enjoys, in a limited sense, that is the right to have
its appropriations automatically and regularly released.
So, this offices enjoying fiscal autonomy, although they are
authorized to formulate and implement their administrative
structure, and even determine the compensation of their staff,
nonetheless, this power is not absolute. This must be
exercised within the parameters, the criteria, under the unified
position classification and compensation system as
administered by the DBM on the basis of RA 6758, the Salary
Standardization Law. Remember there’s such a restructuring
plan, that plan ought to be submitted for review by the DBM.
In the case of the CHR Employees Assoc. vs. CHR, what
happened here was that the management of the CHR made a
reorganization, and in so doing it created the finance
management office and the public affairs office, and this
creation, upgrading of positions, was opposed by the
employees assoc. on the ground, among others, that this will
diminish the benefits due to the CHR employees. And so the
SC ruled that while the members of the CFAG have the power
to formulate and implement organizational structures and even
determine the compensation of their personnel, nonetheless,
this power is not absolute, it must be done in accordance with
the requirements of the law, the parameters imposed under the
unified position classification and compensation system as
implemented by the DBM. And so, here, the SC ruled that the
creation of these offices by the CHR, in the absence of the
imprimatur by the DBM, is not valid. It is not even authorized
under the General Appropriations Law.
J Estrella, Gil Garcia II, Daryl Ritchie Valles 4 Manresa

The CHR here filed a MFR, and so the SC made the Is this valid? Is this within the concept of fiscal autonomy? No.
clarification that considering that the CHR has been made a But it’s valid because the constitution, as well as existing laws,
member of the CFAG, it is therefore given a certain degree of provide that the budget of government offices cannot be
fiscal autonomy, and that is in the matter of having its annual reduced. Even if there is no appropriations act passed by
appropriations regularly and automatically released. But not congress, the remedy here would be to adopt the same budget
the fiscal autonomy in its broad sense that is given to of the preceding year, but it cannot go below the preceding
constitutional offices, the Ombudsman, and the SC. appropriations. Clearly, A is valid but it is not within the concept
of fiscal autonomy.
In the case of CSC vs. DBM, what happened here was in the
2002 General Appropriations Act, the CSC was appropriated
the amount of P285M for the central office of CSC. Of this
amount, there remained a balance of P5.8M which was not B. A letter of the BM Secretary to the chief of the budget
released to the CSC by the DBM on the ground that the CSC office of the SC requesting for data on the judiciary
failed to submit its report. And DBM had the policy, ―No report, discretionary funds from 2005 up to the present.
no release.‖ Another reason cited by the DBM in refusing to
release the balance was that there was revenue shortfall, there
was shortfall in the collections of the gov’t. The SC ruled that
C. The president’s veto of an item in 2011 GA Law
these are not valid reasons for the DBM not to release the
allotting P900M as supplemental fund for retired
balance because the CSC enjoys fiscal autonomy, and fiscal
members of the judiciary.
autonomy means automatic and regular release of the
appropriations as provided under the General Appropriations
Act. In other words, even if there is no compliance with this
DBM requirement, this does not apply to the members of the Does the president have such power to veto this item? Yes, of
CFAG. What about the other excuse made by the DBM that course.
there was insufficient revenue collection? The SC ruled that
this contention was not even true, but granting that there is
such revenue shortfall, nonetheless, those agencies enjoying
fiscal autonomy should be given priority in the matter of the D. A COA circular requiring all gov’t offices to submit
release of their appropriations even if there is such revenue post-procurement report at the end of each fiscal
shortfall. The only exception to this rule where there can be no year.
release is where the total revenue collections of the gov’t are
so insufficient that they are not able to cover the entire Now, which of this is a violation of the judiciary’s fiscal
appropriations for these entities vested with fiscal autonomy. autonomy? Which concept falls within the concept of fiscal
This has never happened, this is improbable. So even if there autonomy?
is revenue shortfall on the part of the gov’t, nonetheless,
B is a violation of the judiciary’s fiscal autonomy. The demand
because the Constitution itself confers fiscal autonomy to these
of DBM to the SC requesting for data on the judiciary
institutions, these offices ought to be released their regular
discretionary funds…Of course it’s part of the prerogatives of
appropriations by the DBM.
the constitutional office, moreso the SC, this falls under the
In the matter of the creation by the SC of positions pertaining ambit of the judiciary’s fiscal autonomy. And no other branch of
to the Philippine Judicial Academy (PHILJA), a resolution was gov’t can intervene in such discretion in the matter of
passed by the SC creating the positions of Chief Judicial Staff disposition of its discretionary funds.
Officer with SG 25, and Supervising Judicial Staff Officer with
Now, the power to issue subpoena, take note, is not inherent in
SG 23 in the PHILJA. And so the SC submitted to the authority
administrative agencies. For the administrative agency to have
of the DBM, because this matter of formulating and
the authority to issue subpoena, there must be a law conferring
implementing its organizational structure and even the salary
such power. Administrative agencies do not have inherent
must conform with the requirements of the unified position
power to require the attendance of witnesses but they may be
classification system, and this plan was submitted to the DBM.
authorized by law to issue subpoena ducestecum or subpoena
Now, the DBM downgraded the created positions. The position
ad testificandum. Is there such a law? Yes, the Revised
of Chief JSO was downgraded from SG 25 to SG 24, while the
Administrative Code, EO 292, under this law, administrative
Supervising JSO was downgraded from SG 23 to SG 22. The
bodies are now given the power to require the attendance of
SC ruled that the DBM does not have the power to downgrade
witnesses or the production of records or documents. And the
these positions created by the SC. Why? Because this is within
authority here to take testimony or receive evidence includes
the power of the SC under fiscal autonomy. The authority of
the power to administer oaths, to summon witnesses, and
the DBM simply refers to the need to call the attention of the
issue subpoenas. And in case of refusal to comply with such
SC whenever such a resolution does not comply with the
subpoena issued by the administrative tribunal, there is
requirements of budgetary laws and rules, and on that basis,
disobedience, this may be the basis for the contempt of such
the SC, at its discretion, may amend or modify the resolution,
officer refusing to comply with the subpoena.
as dictated depending upon the needs of the questioned
offices. And so, the SC ruled that there was encroachment by
Now, is there a difference here between administrative
the DBM of the fiscal autonomy power of the SC.
subpoena and judicial subpoena? Administrative subpoena is
different from judicial subpoena because in the latter case,
Example of an MCQ: Which of the following violates the
such a subpoena is intended to prove a charge pending in
judiciary’s fiscal autonomy?
court, whereas in administrative subpoena, the issuance of this
A. An item in the 2011 GA Law allowing P13.5B to the subpoena has for the purpose of gathering and obtaining
judiciary, which is the same amount allotted last year evidence, and on the basis of this evidence gathered, this may
but less than 15% than the proposal of the SC. be the basis for the filing of the charge. So that is the objective
of the administrative subpoena, to gather evidence which may
be used as basis for the filing of the charge, whereas in the
J Estrella, Gil Garcia II, Daryl Ritchie Valles
case of judicial subpoena, this is for the purpose of proving the
charge.
The subpoena may be enforced if the investigation or the
inquiry to be conducted is within the competence of the agency
of the basis of the conferment to it of such power under the
law, and that the demand of the administrative tribunal is not
too indefinite. In other words, the subpoena itself must indicate
specifics, what documents are required. And the information is
reasonably relevant or related to the subject of inquiry.
In the same manner that, just like the power to issue
subpoena, the power to punish contempt is not inherent in
administrative authorities. There must be law clearly defining
and granting to administrative authorities this power to punish
contempt. And the law itself must make a determination of the
penalty for the administrative agency to punish such act as
contempt.
What about a situation where the law does not provide for such
authority to punish such contempt but there is refusal to submit
to the demands of the issuing officer, there is disregard of the
subpoena issued by the competent authority. In the absence of
such law giving the power to punish contempt, the remedy
available to the administrative tribunal or officer issuing such
subpoena is to invoke the aid of the courts to punish such act
as contempt.
Now, EO 292 provides that the agency, in case of
disobedience, may invoke the aid of the RTC to punish refusal,
or there is disobedience to its demand. That is in situations
where there is no such provision of law giving power to punish
contempt. One such example of a law giving to the
administrative office the power to punish contempt is under the
Ombudsman Act, RA 6770. The Ombudsman has the power to
punish contempt. There is in fact a decided case on this. So,
the power to punish contempt is limited to make effective this
power to elicit testimony or gather evidence, and this cannot be
exercised in furtherance of administrative quasi-legislative
functions. So this is limitation derives from the nature of this
power, it is not inherent. It is inherent in courts but not in
administrative tribunals.
In the case of Lastimosa vs. Vasquez, there were provincial
prosecutors who refused to comply with the directives of the
Office of the Ombudsman and after due proceedings, they
were sanction. And the prosecutors question the authority of
the ombudsman to punish them for contempt. The SC
sustained the power of the Ombudsman under the
Ombudsman Act. So the argument made here by prosecutors
that they cannot be held liable for contempt because their
refusal, their alleged disregard of the orders of the
Ombudsman arose out of an administrative rather than judicial
proceeding. The SC held that this is without merit because the
law itself conferred such power to the Ombudsman.
Necessarily, in order for administrative authorities to be able to
effectively carry out their mandate, they must be given the
competence to interpret, to make a construction of the laws
that they are duty-bound to implement. We have mentioned
this, one of the categories of the promulgations that may be
made by administrative bodies, the authority to interpret or the
issuance of rules. But these interpretations are not binding
upon the courts but they carry persuasive effect. They have the
force and effect of law and therefore they must be respected.
The courts will respect the determination made by the
administrative authority, consistent with the Doctrine of Primary
Jurisdiction, because the law confers to them such expertise or
competence within the fields bestowed to them under the law.
So, the general policy therefore is to uphold the decision, the
4 Manresa
resolution, the order of the administrative tribunal because of
the principle of separation of powers and because of the
expertise and eligibility of these administrative tribunals as
conferred to them by law. In the passage of time,
administrative tribunals become experts in their particular
fields. But nonetheless, whatever interpretation made by the
administrative officer may be abrogated by the successor. The
successor is not duty-bound to uphold the interpretation of the
predecessor should the successor make a determination that
there should be a different interpretation of what the law should
be.
Now, in the case of Tanada vs. Tuvera, the SC provided for the
requirements for the validity of administrative rules. We have
mentioned this earlier, they must always be in conformity, must
be issued under authority of law, the rule making power is on
the basis of law, must be within the scope or purview of the
law, must be reasonable, must not be capricious, and last
important requirement, the need for publication.
The Civil Code Art. 2 provides that laws shall take effect after
15 days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation.
So Art. 2 has been amended by EO ____. So not only the O.G.
but also in a newspaper of general circulation.
Now, not all rules need to be published, only those issuances
which are of general application intended to be binding upon
the public. The rationale here is that the people cannot be
made liable under provisions of laws or the rules promulgated
by administrative authorities of which they were never notified
through this publication requirement. This is simply part of this
due process principle.
In the case of SEC vs PICOP, in the matter of the application
filed by PICOP for extension of its corporate existence. One
issue raised here is: which rule or circular of the SEC ought to
apply in the matter of the application filed by PICOP for
extension of its corporate existence. Should it be the 1986
circular or the 1990 circular issued by the SEC? The 1986
circular imposed ceilings on the filing fees to be paid by the
applicants, whereas under the 1990 circular, it removes the
filing fee ceilings. And so, if this 1986 circular was to be
applied, the filing fee payable by PICOP was only P1,000.00
But under the 1990 circular, because of the removal of the
filing fee ceiling, the fee would reach P12M. The SC ruled that
at the time of the filing of this application by PICOP, the 1990
circular was never published. So, in other words, because of
the lack of publication, the 1990 circular never became
effective. Even this 1990 circular was submitted to the UP Law
Center only in 2004. Now, the requirement of the law is that
there should be publication either in the O.G. or in a
newspaper of general circulation. So here, the SC ruled that
the rule applicable to the PICOP was the 1986 circular and not
the 1990 circular because at the time of the filing of the
application, the 1990 circular was never submitted for
publication.
In the case of GSIS vs. COA, there was this EO 79 issued,
providing for the compulsory membership in the GSIS of
qualified Reserved Armed Forces of the Philippines officers,
like retired Gen. Asuncion, and he died in a helicopter crash,
and here the heirs of Gen. Asuncion claimed the death
benefits. One argument raised here is that there should be no
payment of said death benefits because this EO has not yet
been implemented by the GSIS Board, the BOT did not yet
issued the resolution to implement the EO. Is this contention
valid? Take note that applying Art.2 of the Civil Code, if this EO
was published on December 22, 1986, when did the EO take
effect? After 15 days following the completion of the
J Estrella, Gil Garcia II, Daryl Ritchie Valles
publication, or on January 6, 1987. Here, it was not correct that
the EO was not yet effective because of the non-issuance of a
resolution by the BOT of GSIS because the law itself provides
for the validity of the EO following the completion of its
publication.
In the case of Phil. Int’l Trading vs. COA, here again the DBM
issued a circular disallowing the payment of allowances and
other emoluments to public officers and employees. Now, take
note that it is intended for general application, in the absence
of such publication this DBM circular is not effective. It is of no
force and effect. One other issue raised here was that there
was reissuance, and the submission by the DBM of this
circular cured the defect. The SC ruled that this requirement for
the publication of this rule is a prior condition, a condition
precedent for the effectivity of the law or the rules.
Now, the requirement of the law is that the rules must be
published either in the O.G. or a newspaper of general
circulation. Now, take note of an added requirement under the
Revised Administrative Code where the circular or rule issued
by the administrative tribunal imposes administrative sanctions.
Because where the circular issued by the administrative body
as authorized to it under the law imposes administrative
sanctions, the RAC provides that there must be filing and
registration of this rule with the UP Law Center under Sec. 3, 4,
and 7 of EO 292. So here, in the case of Philsa Int’l Placement,
the circular issued by the POEA was not filed with the National
Administrative Register with the UP Law Center and therefore
in cannot be used as a basis for the imposition of
administrative sanctions. So it is ineffective by reason of non-
observance of this requirement under the RAC. It does not
matter that this circular is addressed to a specific group, the
private employment agencies. It does not excuse compliance
with the registration requirement with the UP Law Center
through the National Administrative Register.
Take note, earlier, prior to this _________________, (74:05),
we had this joint circular Ombudsman-DOJ 95-01, and the
question raised here by Honasan in the case of Honasan vs.
DOJ Panel, Honasan question the authority of the DOJ Panel,
he being a high ranking official , and therefore it should be the
Ombudsman that ought to take cognizance of the cases for
coup detat filed against him. And another reason here is that
there was non-observance of an important requirement, no
publication of the Joint Circular 95-01. The SC ruled that the
DOJ Panel had the authority to proceed with the investigation
because it is a case of concurrent jurisdiction between the
Ombudsman and the DOJ. Now, as to this issue of publication,
considering that this circular is intended to apply only to the
prosecutors of the DOJ and the Ombudsman in the matter of
the conduct of preliminary investigation, there is no need for
publication. The circular is not intended to regulate the conduct
of outside persons or the public in general. The circular does
not even provide for penalties in case of violation. It does not
prescribe the performance of an act. It merely prescribes the
procedure to be followed by the prosecutors of the
Ombudsman and the DOJ in handling the cases filed against
public officers. Because under this Joint Circular, if a case of
concurrent jurisdiction, even if the case against the public
officer is filed with the DOJ, the DOJ has authority even in the
absence of the approval by the Office of the Ombudsman. But
nonetheless, under this Joint Circular, whenever the case
against the public officer is office related, moreso if he is high
ranking, there must be approval by the Ombudsman. But this
was already repealed by the Ombudsman-DOJ MOA dated
March 29, 2012. Now, under this MOA, there is no need
anymore to secure the authority of the Ombudsman for the
DOJ prosecutor to file the case against the public officer before
the court or even the dismissal of such case, again because of
4 Manresa
the concurrent jurisdiction before the DOJ and the
Ombudsman. The only situation where there is this imprimatur
in the handling of this case by the DOJ, the need to secure the
approval of the Ombudsman is in cases involving high ranking
government officials committing the offense in relation to his
office because in such situation, the Ombudsman has primary
jurisdiction. Meaning, primary jurisdiction, the ombudsman can
take over at any stage because the authority to prosecute
cases against high ranking officers before the Sandiganbayan
is vested under the law with the Office of the Ombudsman
through the Office of the Special Prosecutor. But for regular
cases, RTC/MTC, even if a case is filed against a public officer
before a DOJ prosecutor, there is no need for the prosecutor to
get the approval of the Ombudsman. Even if he files or
dismisses the case, he can already decide on the matter.
So what need to published? Of course, those of general
application. It follows that, those rules which are merely
internal to govern the internal affairs of the agency or to
provide for rules to be observed by the personnel of the office,
relating only to the personnel of the gov’t agency and not the
public, then there’s no need for publication. Letters of
instructions issued by superior officers or rules to be adopted
or followed by subordinates, these do not require publication
either in the O.G. or newspaper of general circulation.
In the case of Republic vs. Express Telecommunication, one
issue raised here is which rules the MTC ought to apply in the
matter of the application of BAYANTEL to be granted
provisional authority, should be the 1978 MTC rules or the
1993 MTC rules. The 1993 rules were never published at the
time of the application of BAYANTEL either in the O.G. or in a
newspaper of general circulation. Although, the MTC did file
the rules with the UP Law Center, is this is operative act? No,
the operative act is publication. Therefore, since the 1993 MTC
Revised Rules were not published, although filed with the UP
Law center, but that is not the operative act, it means therefore
that the application of the Bayantel shall be governed under
the 1978 MTC rules.
The requirement for the submission of this rule to the National
Administrative Register is merely a bulletin of qualified rules
that were furnished upon by important main offices of the gov’t,
the judiciary, the courts, and such other offices of the gov’t.
In the case of SEC vs. GMA Network, in the matter of the
authority of the SEC to collect filing fees under RA 3531. And
so, here, the SEC issued Circular No. 1 imposing a filing fee of
1/10 of 1% of the authorized capital. So here, the GMA filing an
application for the extension of its corporate existence. Now,
one issue raised here is there a need for the publication the
SEC Circular? Yes, of course, it is intended to bind the public
and therefore in the absence of such publication, the SEC
circular cannot be made effective.
JULY 3
Lets go to the requirements of administrative due process as
laid down in the case of Ang Tibay. (1) There must be and
impartial tribunal. (2) Due notice and hearing or the opportunity
to be heard. The essence of due process is simply the
opportunity to be heard. (3) the procedure of the admin tribunal
must be consistent with the essentials/requirements of fair trial
and fair dealing. (5) the proceedings should be conducted by
the admin tribunal in such manner for the court to determine
whether the applicable rules of law or procedure were in fact
observed.
In the case of Fabella vs CA, there were administrative cases
filed against public school teachers. The cases were filed
before the CSC. The proceedings were undertaken. This case
was ______ Department of Education. What law ought to apply
J Estrella, Gil Garcia II, Daryl Ritchie Valles
the admin cases against Public School Teachers? Under the
Magna Carta for Public School Teachers (RA 4670), the
Department of Education through the investigating committee
created under Sec. 9 of this law, has the original jurisdiction.
Indeed there was such proceeding undertaken by the
investigating committee of the DepEd. But Sec 9 provides for
the membership of this committee tasked to investigate the
cases. So the chair of this committee is the school division
superintendent, and the members include, the division
supervisor and a representative coming from the teacher’s
organization. The committee that _____ the cases did not
include the representation coming from the teacher’s
organization. So the SC ruled here that there was a tribunal
that did not comply with the requirements of Sec 9 of RA4670.
It cannot be said that the conduct of proceedings was
undertaken by an impartial tribunal. Because what gives flesh
to this requirement of an impartial tribunal is the inclusion in
this investigating committee of the representative of the
teacher’s organization. There was none in this case.
In Emin vs De Leon you have here an Non-formal education
supervisor Emin of the Dept. of Education, who was charged
before the CSC in connection with his acts of receiving fees in
return for the issuance of certificates, false certificates of
eligibility. When CSC came out with its decision, it was adverse
to Emin. He was dismissed from service. A finding that he
committed the offense of grave misconduct and dishonesty. It
was only for the first time that he raised the issue of the
competence of the CSC that under the Magna Carta law Sec
9. it should have been investigated by the investigating
committee. The SC ruled, applying the principle of Estoppel by
Laches, he may not anymore question the authority of the
CSC. There was sufficient opportunity in fact he participated in
all stages of the proceedings. It cannot be said that he was
denied due process by the CSC.
In the case of Alcala vs Villar, here the school principal Villar
was charged before the office of the OMB for dishonestly.
Proceedings were undertaken and he participated fully in these
proceedings before the OMB in Visayas. In fact he cross-
examined the witnesses of the complainant. Subsequently
when a resolution was issued by the OMB dismissing him from
service, he raised for the first time the issue of jurisdiction that
it should have been the DepEd through the investigation
committee. The SC ruled that it was estoppeled by laches.
There was no denial of due process. In fact this public school
principal fully participated in all the stages of the proceedings.
What happens if complainants file the admin case and
subsequently have a change of mind and would like the
transfer the admin complaint to some other tribunal equally
competent? What happened in this case was the DepEd first
took cognizance of the complaint and subsequently the
complainants later on wanted to withdraw the complaint in
favor their filing of the ______ admin case before the office of
the OMB. The DepEd was willing, so the OMB likewise
acquiesced in such transfer. The issue here w/n the transfer of
this case was during that the DepEd through the investigating
committee already acquired authority and in fact commenced
proceedings by virtue of the Magna Carta for Public School
Teachers. The original authority belongs to the schools
superintendent as the chair in the investigating committee. The
SC ruled that jurisdiction is conferred by law that it cannot be
simply transferred to another on the say so of the parties.
Jurisdiction is not lost upon the instance of the parties. And
once it is acquired the tribunal continues to have authority and
it should continue with the proceedings until the case is
terminated despite the acquiescence of such transfer by the
Office of the OMB and DepEd.
On the case of OMB vs Medrano, you have here the OIC
principal who was charged in connection with alleged acts of
sexually harassing his school teacher. So a complaint was filed
against him. Take note that the matter of jurisdiction is
concurrent, it is not exclusive. Here the law itself, the OMB Act
6770 recognizes the existence of some proper disciplinary
authorities these wordings of law Sec 23 and OMB may refer
the complaint to the proper disciplinary authority for the
institution of the appropriate administrative proceeding against
the public official or employee. The wording of the law is that
4 Manresa
the OMB has such discretion because this is not a case for
exclusive authority on the part of the DepEd. So the
proceedings were undertaken in the Office of the OMB and
after due proceedings, the OMB rendered a decision
dismissing OIC Principal Medrano and for the first time he
raised in his motion for reconsideration that under the Magna
Carta law. It should have been the investigating committee.
The SC ruled although the OMB should have desisted because
of this Magna Carta and in fact the OMB recognizes the
competence, it is not a case of exclusivity but one of
concurrence that there should be respect for the authority of
the DepEd, but nonetheless, proceedings were already
undertaken. In fact the principal fully participated in the
proceedings before the Office of the OMB, he is now barred
from assailing the jurisdiction of the OMB through the filing of
the motion for reconsideration. Incidentally this issue was
raised before the CA. The CA ruled against the OMB declaring
that the DepEd, under the Magna Carta law, has the exclusive
jurisdiction. But when this matter was elevated by the SC. The
SC ruled it is not a case of exclusive authority on the part of
the DepEd but rather it is a case of concurrent jurisdiction
between the office of the OMB and the DepEd. But the OMB
on the basis of Sec 23 of its charter has the option, it may
choose to refer this admin complaint to the other agency on the
basis of law concurring that power to the latter but this was not
done and in fact proceedings were already conducted by the
Office of the OMB.
In the case of OMB vs Delijero, again sexual harassment.
Principal Delijero was teaching mathematics, courted his pupil,
st
a 12 year old girl, 1 year highschool. Some place in Leyte. He
wrote letters to this pupil. He gave Php 200 allowance and so
the admin case was filed against him before the OMB. Again
the OMB took cognizance of the case and after the
proceedings he was dismissed from service. He appealed to
CA. The CA sustained him, declaring that the DepEd has the
exclusive authority under the Magna Carta law. The SC ruled
the OMB has concurrent jurisdiction together with the DepEd
despite the Magna Carta. It cannot be said there was no
violation of due process by reason of the active participation on
the part of Delijero in the proceedings before the Office of the
OMB. Although it would have been more prudent for the OMB
to have referred this matter to the DepEd but nonetheless this
was not done. But it does not meant that the OMB is deprived
of its authority.
A Davao City case of OMB vs Masing, The SC made the
clarification about the nature of this Magna Carta. It does not
mean exclusive jurisdiction granted by law to the DepEd.
Neither does this law prescribe an exclusive procedure in the
conduct of investigation of admin cases filed against public
school teachers. And more than that the _____ was enacted
way before so here the jurisdiction cannot be restricted by the
Magna Carta law. The SC ruled that this Sec 9 of the Magna
Carta for Public School Teachers referring to the creation of
the investigating committee simply provides for a specific
procedure. It does not mean the exclusive jurisdiction or an
exclusive procedure, rather a specific procedure that must be
observed to be followed by the investigating committee in the
handling of administrative investigation of the case filed against
a public school teacher.
The due process requirement in admin proceeding includes the
(1) right to an actual or constructive notice about the institution
of the proceeding, the case filed against him. (2) there must be
real opportunity to be heard. So service, either through mail or
personal service and the opportunity to be heard for him to file
his pleadings personally or with assistance of a lawyer and to
present evidence. And one other important requirement, (3)
that the tribunal must be impartial. Must be competent. Must be
authorized under the law. (4) the basis of its finding must be
substantial evidence. It is evidence that such fact and
circumstances sufficient to justify a conclusion.
In the case of Garcia vs Molina, the SC made the
pronouncement, a violation of any of the requirements of due
process is void for lack of jurisdiction. Lets say, the tribunal is
not empowered or there was absence of the compliance with
the procedural and substantive due process or the decision is
not supported by substantial evidence, etc. Any violation
pertaining to this requirements means the proceedings are null
J Estrella, Gil Garcia II, Daryl Ritchie Valles
and void. And anytime the decision may be questioned. So in
the case of Molina, involving lawyers of the GSIS, who were
charged by then president of GSIS, Garcia in connection with
the illegal acts of these lawyers in ________ of the GSIS in
concerted activities sometime in 2002. Garcia issued a formal
charge. The basic issue here is the was there observance of
the basic requirement of due process in the handling of the
administrative case, in the institution of a formal charge against
Molina? Take note, undisputedly, under the GSIS law (RA
8291), the president general manager has the competence as
the disciplining authority to initiate the case. But nonetheless,
this power of the General Manager of the GSIS under the
GSIS law to discipline its own personnel must be in
accordance with the Civil Service law, rules and regulation. In
other words, there must still be observance of the uniform rules
of admin cases in the civil service to be followed in the
handling of these cases involving GSIS personnel. So what
does the rule provide in this matter? That there must be a
preliminary investigation. During this preliminary investigation,
the parties will be given the opportunity to present their
evidence. It is just like a show cause order by <….???>. So
period: within 2 hours, is given under the Civil Service law,
rules and regulations for this officer to submit his counter
affidavit or answer under oath. A prima facie determination
must be made by the disciplining authority. If there is such
prima facie case, a formal charge follows. What happened in
this case was that, a day after the concerted activities led by
these lawyers, Molina and Velasco, a formal charge was
immediately issued by the GSIS general manager. And so
clearly, there was a shortcut of the procedure. There was no
preliminary investigation conducted. The SC ruled that there
was violation of due process. That when this formal charge
was issued by Garcia, directing Molina to answer within three
days, they were placed under preventive suspension.
The lawyer went to the CSC to question the issuance of the
preventive suspension. They also questioned the lack of
observance of the requirements as provided under the Civil
Service Uniform Rules. The SC granted the lawyers back
salaries. You know… subsequently in our discussion in Public
Officers that in preventive suspension there can be no back
salaries. An exception in this case where there was a violation
of the requirements of due process of the proceedings
undertaken by the disciplining authority of the GSIS where
totally null and void.
This has been asked in the bar. The administrative tribunal
performs multiple offices. It acts as investigator and in this
capacity it gathers evidence. After the evidence is gathered, it
proceeds with the preparation of the complaint. It becomes the
complainant. It files the complaint in the same agency and so it
also becomes the prosecutor as well as the judge. Is there
violation of due process here? There is none. So long as the
administrative body is brought with such power. It is within the
competence of the tribunal. And the decision rendered is still
based on substantial evidence. So given this, there must be
compliance with the requirements of procedural and
substantive due process.
In the case of Cruz vs CSC, Palitum, the municipal treasurer,
took the alleged sum on behalf of her friend Cruz from the
CSC. Later on this anomaly was discovered. On its own, the
CSC conducted an investigation and that with evidence, there
was such evidence as a basis for its filing. It became the
complainant, the CSC became the complainant so the case
was judged before the same office. Is there violation of due
process? The SC said, there was none. So long as the
decision rendered is based on substantial evidence.
In the case of Garcia as discussed a while ago. One other
issue here is the competence of the GSIS to act as
complainant, prosecutor and judge was disallowed. There was
violation of the procedural requirements as provided in the
Uniform Rules of the CSC.
In the case of Zambales Mining, it is important that whenever
there is a decision, the defeated party has the remedy of
appealing to higher authority. The reviewing official must not
be the same officer whose decision is under review. Otherwise,
it would be a violation of due process. So in the case of
Zambales, you have here Director Juson, in his capacity as the
4 Manresa
Director of Mines, issuing a decision adverse to the applicants,
denial of the application for operation of mineral claims. When
this appeal was taken, Juzon got promoted. He became the
Secretary. He is the same officer now reviewing his own
decision. Certainly a violation of due process. He should have
inhibited himself and allowed it to be handled by the next lower
rank official.
There is a distinction here between the authority of the
Commission under Section 12 and its authority under Section
47 of the Revised Administrative Code of EO 292. PD (67?)
Section 37.. Take note, under Sec. 12 of the Revised
Administrative Code, the CSC has the power, in its own
initiative, to institute, to conduct investigation, to institute motu
propio and directly administrative cases for dishonesty and
falsification. The reason is to protect the integrity of the CS
system by removing from the Civil Service list of eligibles those
who falsified their qualification. There are so many cases of
fraudulent appointments on the basis of falsified submission of
false credentials, etc. And the basis of the commission is Sec.
12. Whereas in Section 47 of the law refers to the ordinary
disciplinary action, the need to discipline a bona fide member
of the CS system. The grounds provided under Sec. 46 in
relation to 47. So here the case of CSC vs Albao, this
respondent Albao, who got an appointment as executive
assistant in the Office of the V-President, he declared in his
personal data sheet that he passed the electrical engineering
exam with a grade of 76%, but in fact he failed said exam. So
he was dismissed from service after the proceedings on the
basis of Sec. 12, the authority of the commission to directly
and motu propio conduct the case involving the act of the
public officer in falsifying documents.
In the case of Singson vs NLRC, here the labor arbiter Aquino,
rendered a decision, and his decision was subject of an appeal
before the NLRC. Then the LA got promoted and became a
commissioner and he was one of the commissioners reviewing
his own decision rendered in his capacity as LA and
participated. The fatal defect is not here, the fact that
subsequently, upon the filing of MR, he inhibited himself. And
the order denying the MR by the aggrieved party, was done by
the two other commissioners without his participation, this does
not cure the fatal defect. There was violation of due process.
In the case of Tejano vs Desierto, in the matter of an
investigation and later on the filing of graft charges against
Tejano, that time VP of PNB, in connection with the 2.2 million
fraud. In the first investigation, Desierto already had
participated in his capacity as Special Prosecutor. When he
became the OMB, he again participated in the conduct of
investigation. In fact denied the determination of the
reinvestigating officer for the dismissal of the case against PNB
VP. The SC ruled that there was commission of grave abuse of
authority by Desierto. This defect was not cured by the fact that
upon filing for reinvestigation this was resolved by his
successor, Simeon Marcelo, nonetheless the proceedings
were already in violation of the requirements of due process.
In the case of Rp. vs Express Telecom, an order was issued by
the NTC reviving the _________, the order was done without
notice with the other party, the oppositor Express Telecom. Is
there denial of due process? The SC ruled, there was none.
Why? Because all the parties, including the oppositor, will have
the full opportunity present their sides during the full blown
hearing.
As part of the requirement of due process, it is important that
the respondent should only be convicted of an offense with
which he was duly notified. The administrative proceedings are
not exempt from the fundamental requirements of procedural
principles, right to due process. IN the case of CSC vs Lucas,
Lucas was an employee of the Department of Agriculture. He
had been in the service for more than 20 years. He committed
the mistake of touching the thigh a female <convoy?>. This
woman filed this admin case before the Department of
Agriculture Secretary against Lucas. The secretary created this
committee on personnel to conduct investigation.
Subsequently after due proceedings, Lucas was found liable
for simple misconduct. The penalty imposed against him was
suspension of 1 month and 1 day. The woman filed an appeal
J Estrella, Gil Garcia II, Daryl Ritchie Valles
before the CSC. On appeal the CSC reversed, set aside, the
decision of the DA secretary and imposed the penalty of
dismissal for grave misconduct. The SC ruled violation of due
process, because the respondent should be due informed of
the charge of grave misconduct, in fact he was only notified of
simple misconduct. He cannot be convicted of an offense with
which he was not duly charged.
The essence of due process is simply the opportunity to be
heard or to seek a reconsideration of an adverse finding or
decision. There is a difference, a distinction between
procedural due process and substantive due process. What is
the distinction? Procedural due process refers to the method or
manner in which the law is being enforced by the admin
tribunal, the hearing officer. Whereas substantive due process
refers to the law itself whether it is fair. The application of this
law should fair, reasonable and just.
As applied to the requirement in tenurial protection given
under the constitution to public officers and employees, is due
process means in its procedural sense requires that the
dismissal of the public officer or any sanction for that matter
ought to be effected after due notice and hearing. Notice, part
of the requirement of procedural due process. Whereas,
substantive due process requires that the dismissal must be for
any of the grounds provided under the law. It must be for legal
cause. Art 9-B Sec. 2 par 3. No public officer or employee shall
be removed or suspended except for cause as provided by
law. The last part refers to the requirement of substantive due
process. It must be for legal cause provided by law.
In the case of Lacson vs PAGC, petitioners were officers of
Philippine Estate Authority. They were investigated for
violations on the basis of the findings of the PAGC
(Presidential Anti-Graft Commission). After the investigation
conducted by the PAGC, it submitted its report and the
recommendation for the dismissal of the petitioners, the
employees, officers of the Philippine Estate Authority. This
matter was submitted to the PEA management for
implementation. One issue raise here is what should be the
remedy available to the petitioners? The other one, w/n there is
violation of the requirements of substantive due process. Was
their dismissal for a valid cause? The SC ruled, yes. It was for
a question investigated, a ground provided by law. What is the
remedy here available to the aggrieved parties? What
happened here was that Lacson, et al filed a petition before the
CA, petition for certiorari. Is this the proper remedy? The
proper remedy should have been to seek an appeal before the
next administrative body. In this case, under the law, the CSC.
Of course, it follows that there should be filing of a motion for
reconsideration and is denied. The decision here is rendered
by the Office of the President(PAGC). The next step would be
an appeal before the CSC under rule what? Under Rule 43 of
the Rules of Court. If still aggrieved, if the CSC does not rule in
favor of the aggrieved party, what is the next remedy? The
remedy would be under Rule 45 of the Rules of Court. From
the CSC to the CA, then to the SC. Here there was failure on
the part the petitioners Lacson from taking the appeal to the
CSC, thus period to file said appeal expired. When this matter
was elevated, the SC could no longer act on the issue because
the decision already became final and executory because of
their failure to comply with the requirement in the matter of the
appeal to be taken. In here there was no violation of due
process because the petitioners fully participated in the
proceedings before the PAGC. They in fact submitted their
memoranda as their evidence.
In the case of Ruivivar vs OMB, an LTO employee. What
happened here was that she complained. While the decision
was issued by the OMB in the admin case filed against her,
she raised the issue that during the formal investigation there
was in fact denial of due process because she was not given
copies of the affidavits of the witnesses of the other party.
What happened was the OMB, in an order, directed her to
submit whatever pleadings she deems to submit. She was
furnished copies of those affidavits of witnesses. Question: Is
there denial of due process? No. Because she was given such
opportunity to file a motion for reconsideration and she was
furnished copies upon such filing, upon her filing of her MR.
She was furnished copies of those documents and was
4 Manresa
directed to submit whatever pleading she may desire. But she
refused to do so. And so the SC ruled, there was no denial of
due process.
In the case of Gaoiran vs Alcala, there is here the term formal
charge, the complaint as mentioned under the law (Revised
Administrative Code). This refers to the verified complaint. It
has no reference to an unverified complaint. In fact a formal
investigation can only be undertaken on the basis of an
affidavit under oath. What happened here was that Castillejo
filed this unverified complaint against Gaoiran before the
CHED. The SC said this is not the complaint contemplated
under the law to commence formal investigation but it may be
the basis for the conduct of a fact finding investigation. In fact
there was such inquiry, fact finding conducted by the legal
office of the CHED. The formal charge of the legal office of the
CHED is the complaint contemplated under the law, not the
complaint that was filed by Castillejo because in the first place
it was never verified under oath. So the filing of the unverified
complaint may merit the conduct of a fact finding inquiry.
In the case of MWSS vs Vasquez, the SC ruled that the due
process requirement, the need to be heard, is made legal not
solely through verified presentation. It is not required in all
admin proceedings. Meaning, if the law itself confers such
prerogative to the hearing officer or the tribunal to decide the
case simply on the basis of submissions, there is no violation
of due process. So one may be heard not solely by verbal
presentation but also through submission of position papers,
counter affidavits and other documents in admin proceedings.
The technical rules and procedures of evidence as seen in
judicial proceedings are not strictly applied in administrative
adjudication.
You still recall the case of the Indian? The case of this woman
who submitted a plagiarized thesis and one of the issues she
raised was there was violation of due process because there
was no formal hearing conducted just like what is being done
in the courts. The SC ruled, in admin proceedings against
students, the requirement of due process is already observed if
the respondent is accorded the opportunity to file her evidence
to file whatever pleadings she deems necessary. So the
process here does not require the proceedings that is seen in
judicial proceedings.
In the case of National Power Corporation vs NLRC, on the
basis of law PD 478, the Office of the Solicitor General is the
representative of the Government, any of its instrumentalities
and agencies and it may also be the legal counsel of a GOCC
if there is authority given to the OSG by the President or Head
of the GOCC. In this case of NPC, it was represented by the
Office of the Solicitor General. Here is an adverse decision
rendered by the Labor Authorities binding upon the OSG
where the notice was given to the special agent of the OSG.
The SC ruled that the service of summons, or order, or any
decision adverse to the client should be made in the OSG. This
is part of the requirement, this is an indispensable ingredient of
due process. Where the decision of the rendered by the LA
was given not to the OSG but to the Special Attorney on behalf
of the OSG. The reglementary period to file appeal never
commenced to run. It commences to run only from the time of
the receipt of the decision by the OSG.
In the case of Lincoln Gerard, Inc. vs NLRC, there was an
adverse decision against petitioner in a labor case and the
decision was given to the counsel of record of petitioner. But
here, in reality the lawyer was no longer the counsel handling
the case. So Lincoln Gerard was the losing party in the labor
case, but the counsel never notified the client Lincoln Gerard
about of the adverse decision until the period to file appeal had
prescribed. The SC ruled, where the party appears by counsel
in proceedings either before the court or in admin bodies,
notices to be given must be served not to the client but to the
counsel. The notice to the counsel is already notice to the
Lincoln Gerard because on record there was no formal
withdrawal of his appearance as a lawyer for Lincoln Gerard.
On record it appears that the lawyer was still the lawyer of
Lincoln Gerard. So whatever fault committed is already binding
on this petitioner.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
In the case of Philippine Ports Authority vs Sargasso
Construction, if the principal, the Gov’t Office, in this case the
PPA, is represented by several lawyers on record, notice is
given to any of them is notice to all. Thus the period for the
filing already commenced to run, despite the fact the other
counsels on record have not received the copy of the decision.
For example in this case of PPA it was also represented by its
own in house counsel apart from the OSG, etc. Notice to any
participants is also notice to all of them.
In Alba vs Nitorreda, a Davao City case, the respondent in this
case, the Assistant ______ of the DepEd was charged
__________________ committed against the students. When
a decision was rendered after the observance of due process,
he was given the penalty of suspension of 1 month. He claims
that there was violation of his right to appeal, the decision
imposing the penalty of suspension under the law is already
final and executory, I need to appeal from such decision. The
SC ruled that appeal is not a matter of right, it is not even part
of due process. Here the aggrieved party is already given all
the chances during the formal investigation, the formal trial of
its case. So long as this requirement has been complied with,
there is no violation of due process where he is not given his
right to appeal where the law itself provides for the finality of
this decision, in those cases where the penalty imposed by the
administrative agency is reprimand, suspension not to exceed
thirty days, 1 month. In all other cases, subject to an appeal.
The issue in the case of Ampong vs CSC is w/n the
respondent in the admin case is ought as a matter of right to
be assisted by a lawyer. The assistance of a lawyer is not an
absolute requirement in admin proceedings. There is even no
duty imposed by law for the admin tribunal to provide counsel
to the parties, more so to the respondent in such admin case. It
is one that may be invoked by the respondent. The respondent
has such option whether to engage or not the services of a
lawyer. And so in this case where the aggrieved party Ampong
willingly submitted to the jurisdiction of the tribunal and in fact
she acknowledged her fault, she cannot complain later on that
there was violation of due process because she was not
assisted by a lawyer. So it is really up to the respondent
whether she would engage the services of a lawyer because
the tribunal, the admin authority is not duty bound to provide
the parties the counsel.
So a party of an admin investigation may or may not be
assisted by a lawyer. This rule applies regardless of the
gravity, the nature of the charges, even of the respondent is
facing so many grave charges, and regardless of the capacity
of the respondent to represent himself. There is no duty
imposed on the tribunal to furnish the person investigated with
services of a lawyer.
So in the case of Lumiqued vs Exevea, here the Regional
Director of the Department of Agriculture, he was charged with
so many offenses. So due proceedings were conducted and he
was not represented by a lawyer. Then there was this
committee in the Department of Justice that investigated the
cases upon instructions of the President, and after the due
proceedings a decision was rendered, dismissing him from the
service. He complained for the first time on appeal that he was
not represented by a lawyer. The SC ruled, that the respondent
has the option whether to engage in the services of a lawyer or
not. The right to a lawyer is not imperative because the admin
investigation has the objective of determining whether the facts
would merit disciplinary measure against the public officer. The
objective here is of course in relation to the purpose of the CS
system, the need to maintain the integrity, dignity of the Gov’t
Service.
What about in criminal cases? Custodial investigation, right to
counsel. May this be waived? Cannot be waived unless the
waiver be done in writing and in the presence of the accused.
Does not apply to admin cases.
In the case of Maquilan vs Maquilan, the negligence of the
counsel is binding on the client. The exception to this rule is
where the negligence of the lawyer is so gross, reckless and
inexcusable that this would tantamount to deprivation of his
day in court. There is actually absence of fair trial.
4 Manresa
In the case of Perez vs Abiera, the issue here is what happens
if during the pendency of the admin case against the public
officer, he later on is separated from the bureaucracy either by
resignation, abandonment or retirement. Is this a basis for the
extinction, the termination of the proceedings? The rule here is,
the jurisdiction is acquired at the time of the filing of the case
before the admin authority is not lost simply because of the
separation in office of the respondent public officer during the
pendency of the admin case. (So subsequent to the filing, new
developments, such as for example the public officer
respondent filed his certificate of candidacy. Yun ginagawa nila
yan. Dismiss ang charges. Why? what happens when you file
a certificate of candidacy? You are deemed resigned.) What is
the effect of this separation? It will not deprive the authority of
its jurisdiction, which was acquired upon such filing. The admin
tribunal continues to retain jurisdiction and the power to
continue with the proceedings and to make a pronouncement
that you’re innocent of the charge or to declare him guilty.
The rule here is that death of respondent in the admin case
does not prevent the finding of admin liability. This is consistent
with the early ruling mentioned, the admin tribunal acquires
jurisdiction upon the filing, upon its taking cognizance of the
complaint and whatever developments that are subsequent to
the finding will not have any effect on the jurisdiction of the
tribunal.
What happens if subsequent to the filing during the pendency
of the case, the respondent dies? It does not preclude a finding
of admin liability. But there are three exceptions to this rule:
(1) the respondent has not been heard and the continuation of
the proceedings would deny him of his right to due process.
Let us say, pagkatapos ng filing ng reklamo before the admin
tribunal. And before the filing of his answer even before the
issuance of an order requiring him to file an answer, namatay.
So here the first exception would apply. When respondent has
not been heard and the continuation of the proceedings would
deny him of the right to due process.
(2) Where exceptional circumstances exist in the case leading
to equitable and humanitarian considerations. This has been
applied so many times because of so many public officers,
because of the filing of cases against them, subsequently
namatay, na hear attack, I recall years back, I won’t mention a
name. There was this department director of a department in
the executive branch here in Region 11 Davao city. 2 to 3
weeks before he died he already made a _____ because of the
filing of the charges against him. There was a case filed before
the Sandiganbayan. Sabi ko tapos na eh. Wala na magawa.
So one of the exceptions where the tribunal be considered for
humanitarian reasons, we have applied liberality for
humanitarian reasons, instead of imposing the penalty or the
forfeiture of benefits. Allow the heirs to recover the benefits
from the deceased public officer.
(3) when the kind of penalty imposed or imposable would
render the proceedings useless.
The Cardinal Primary Right in Admin Proceedings as laid down
in the Ang Tibay case:
(1) The right to a hearing;
(2) The tribunal must consider the evidence presented;
(3) The decision must have something to support itself;
(4) The decision must be based on substantial evidence;
(5) The decision must be rendered on the evidence
presented. So the decision must be based on
evidence at least on record. The decision cannot be
made on the basis of evidence that was not given to
the respondent. Let us say, the basis of the decision
against the respondent is the inspection report, but
the respondent never knew about the existence of this
inspection report. This is clearly a violation of his
primary rights. So the proceeding is null and void;
(6) The tribunal must act on its own independent
consideration of the law and facts of the controversy.
Should not simply accept the views of the
subordinate, there must be an independent
ascertainment of the facts and law of the case;
J Estrella, Gil Garcia II, Daryl Ritchie Valles
(7) The decision rendered should be that the parties are
able to know the various issues and the reasons. So
the need therefore for statement of facts and of the
law as a basis for the issuance of the decision.
In the case of DOH Secretary vs Camposano, there was this
investigation conducted by the Presidential Commission
Against Graft and Corruption. After the proceedings, there was
this information. But take note any Anti-Graft Commission
under the Office of the President does not have the power itself
to discipline. What it is doing is on the basis of the authority
given to it by the president, the creation of the president, is to
make an investigation and submit its recommendation whether
to impose the necessary sanction against the public officer.
Here the Secretary of the DOH, upon submission to her of the
resolution she said even copied in toto in another ______ kahit
na mali mali. Here there was a violation of the according to the
SC of the Cardinal Requirement mentioned earlier that the
judge must act on her own independent consideration of the
law and facts of the controversy and not simply accept the
views of the subordinate conducting the investigation. Here in
the decision issued by the DOH Secretary relying on the
recommendation, it did not contain factual findings and legal
assessment. The SC ruled, there was violation of the cardinal
requirements of due process. There should be an independent
ascertainment by the disciplining authority of the facts and the
applicable law pertaining to the case.
In the case of Malinaw vs Reyes, the SC ruled that a decision
that is prepared by a member, the one who has been assigned
to prepare the resolution for the Sanggunian Panlalawigan,
should have been submitted to the SP and for the members of
the SP to deliberate on the issues and to make a decision. So
if the decision is prepared and signed by only one member, the
one who prepared the decision, it is not the decision of SP. It
does not comply with the requirements of the law, more so the
provision of the Local Government Code, particularly Sec. 66,
there must be statement of facts and the law of the case that
must be approved by at least majority of the members of the
SP.
We have emphasized that there should be notice and hearing
as an important part of due process. But there are instances in
the conduct of admin adjudication where notice and hearing
need not be observed:
(1) The summary abatement of a nuisance per se. Of
course we know the nature of a nuisance per se. Is
there somebody here who is a nuisance per se?
Summarily ejected. For example, the illegal structures
under the bridge all along the riverbanks. Is this
nuisance per so? Or a basketball court sa middle of
the street. The summary abatement of a nuisance per
se, but not where the thing is classified as a nuisance
per accidens because the requirement of notice and
hearing should be observed;
(2) Cancellation of the passport by the DFA;
(3) Summary proceedings of distraint and levy of
property of delinquent taxpayer as provided by law;
(4) Preventive suspension. Why? Because of the nature
of preventive suspension. What is the nature of
preventive suspension? Is this a penalty? No. It is not
yet penalty. There is no need for this requirement of
notice and hearing because the parties will still be
given the opportunity to hear their side in an
adversarial proceedings;
(5) The grant of provisional authority for increase rates or
to engage in a particular line of business. For
example, toll regulatory board, increase rates as
provided by law even there are so many agencies the
government empowered to already authorize
provisional increase of rate. But by its nature it is still
subject to a hearing to determine the final rate to be
set. The TRB resolution number 2099, authorizing the
provisional toll rate adjustment at the Manila Metro
Skyway was signed by the TRB executive director
and four directors none of whom personally attended
the hearing. Is there violation of due process? You
have here the TRB issuing a resolution. This
resolution was signed by the directors and executive
directors but not them. They attended the public
hearings. The task of conducting the hearing or
4 Manresa
gathering evidence may be delegated to subordinates
by the superiors. For example this case of the
executive director and directors, there is no violation,
there is nothing irregular in the issuance of this TRB
resolution.
The right against Self-Incrimination. It is available in all kinds of
proceedings, but nonetheless it applies only to natural persons.
The right against self-incrimination is not applicable to a
juridical entity. What is the reason for this? Simply because the
law may require the compliance of requirements. For example
the need for regular submission of financial reports. The need
to insure that there is compliance with the requirements of law.
So public policy.
In the case of Naco vs CSC. You have here an employee of
the Philippine Export(expo?) Zone Authority. She was charged
with dishonestly and grave misconduct because of her acts of
illegally collecting fees. In the proceedings against her, she
was requested to submit samples of her signature. She
voluntarily submitted such samples. May she later on claim
that this violates the right against self-incrimination? This right
against self-incrimination is not self-executory, it is not
automatically operational. It must be invoked, it must be
claimed within an appropriate time. Otherwise, there is a
waiver of this right against self-incrimination. So the fact that, in
this case of Naco, she voluntarily submitted samples of her
signature, it means that she waived such right against self-
incrimination.
An important doctrine, the Doctrine of Exhaustion of Admin
Remedies. This has been asked a number of times. Before the
aggrieved party may be allowed to seek judicial relief from the
courts he, by law, must exhaust all means of administrative
relief available to him. For example, a good illustration of the
application of this doctrine is the filing of a motion for
reconsideration. This is consistent with the doctrine of
exhaustion of admin remedies.
There are three reasons for this doctrine:
(1) The need to allow the admin tribunal to correct
whatever error it may have committed in the process
of adjudication.
(2) On the basis of separation of powers because
applying the doctrine of primary jurisdiction, the
tribunal is clothe with the expertise on the
determination a field within its expertise.
(3) The need to declog the court dockets.
A direct action in the court without complying with the
requirement of exhaustion of admin remedies is premature. If
the law provides that the party should file a motion for
reconsideration but this was not complied with. The aggrieved
party files the writ before the court, what happens? The case
may be dismissed by the court because it is still premature.
The other party may file a motion to dismiss for lack of cause
of action. It has nothing to do with the jurisdiction of the court. It
does not affect the jurisdiction of the court.
One important principle. This doctrine of exhaustion of admin
remedies applies only in the performance by the admin officer
or tribunal of a quasi-judicial power. It has no application in the
exercise of a quasi-legislative or rule-making power by admin
tribunal.
So in the case of Homeowner’s Association vs Defensor, what
is being put in issue is the validity of the implementing rules
and regulations issued by the National Government Center
Administration Committee on the basis of its law, RA 9207.
Clearly, this is not the discharge of a quasi-judicial power. The
relief is already before the court because the admin tribunal
cannot decide with finality of this issue of the validity of this
implementing rules and regulations. The court has such final
say on this matter. So there is no need to comply with the
requirement of exhaustion of admin remedies.
Under the rules of the NLRC, rules of procedure, before the
aggrieved party may file this special civil action for certiorari
under Rule 65 the sole ground of grave abuse, there must first
be observance of this requirement, consistent with the doctrine
J Estrella, Gil Garcia II, Daryl Ritchie Valles
of exhaustion of admin remedies, the filing of a motion for
reconsideration in accordance with the NLRC rules of
procedure before Rule 65 petition may be invoked by the
aggrieved party.
In Task Force Sagip Kalikasan vs Judge Pederanga, where
this guy (Edma?) filed a suit in court, action for replevin with
damages to recover this confiscated products timber which
was already under the custody of the CENRO. Clearly, what
should have been applied here is the doctrine of exhaustion of
admin remedies. The remedy here is not before the court
through this complaint for replevin and damages. The law itself
provides that the action of the Bureau Forest Development,
now known as the Land Management Bureau, is subject to
review, consistent with this doctrine of exhaustion, to the
higher admin authority, in this case the Secretary of the DENR.
Many departments of government are under them offices,
bureaus, agencies right? Applying this doctrine, whatever
decision that the director lets say, director of bureau or agency
attached to this department may be subject of authority to the
secretary of this department consistent on the doctrine of
exhaustion of admin remedies.
Is there a need for exhausting further from the DENR
Secretary to the Office of the President? May an appeal be still
taken from the Department Secretary to the Office of the
President? You know, all departments are under the Office of
the President in the executive branch. If it is already the
decision of the Department Secretary, may there still be appeal
to the Office of the President? IT DEPENDS upon the provision
of law. If there is such requirement, go the Office of the
President. But if there is none, what applies is the Doctrine of
Qualified Political Agency.
Under the PD 705, this law is being implemented by the
DENR. All the actions, decisions of the Land Management
Bureau Director are subject to review by the Secretary of the
DENR. The procedures embodied here are simply consistent
with the Doctrine of Exhaustion of Admin Remedies. The
decision of the DENR Secretary are appealable to the
president. So there is such provision, because in the absence
of this provision there is no need to go to the office of the
president. The courts may not and will not review the decision
of the department secretary unless there is commission of
grave abuse or arbitrariness. And if there is such grave abuse
or arbitrariness committed, the remedy under Rule 65 Special
Civil Action for Certiorari or prohibition.
JULY 9
So in our last meeting, we discussed the concept of exhaustion
of administrative remedies. Pursuant to this doctrine, whenever
the party has administrative remedies available to him as
provided by law, he must not only _______ (4:18) such
remedies, but he must ______ (4:22) until the conclusion of the
proceedings, until there is determination made by the
administrative tribunal. And of course, the reasons for this
would be the need of the superior administrative authority to
correct whatever error, abuse, or mistake that may have been
committed by the subordinate administrative officer, and of
course the need to reduce court dockets, because the law itself
has conferred the authority to the administrative tribunal to
decide on such a matter within its expertise, its competence.
There is a distinction between the Doctrine of Primary
Jurisdiction and the Doctrine of Exhaustion of Administrative
remedies. First off, the similarities between this two doctrines is
that both dealing with the proper relationships between the
administrative authorities and the courts. The distinction
between this two principles is that this Doctrine of Exhaustion
of Administrative Remedies is applicable where the issue, the
question is legally cognizable in the first instance by the
administrative authority. Whereas, the doctrine of Primary
Jurisdiction is applicable where the issue is within the
concurrent authority of the courts and the administrative
4 Manresa
tribunal, but because the issue requires the determination of
technical or factual matters certainly not within the competence
of the courts but rather the administrative authority, the court
will have to suspend proceedings, will have to defer to the
authority of the administrative tribunal, in line with what is
provided under the law.
What is the proper remedy or the process that ought to be
observed whenever there is an increase in the water rates by
local water districts? The law requires that before such an
increase in water rates be done, there should be public hearing
conducted by the local water district. And so, such
determination made in the course of public hearing,
nonetheless, must still be submitted for review and approval by
the local water utilities administration. And this is in line simply
with the doctrine of exhaustion of administrative remedies. It
follows therefore that the rate that was adjudged in the course
of the public hearing must be the same rate as submitted for
review and approval of the local water utilities administration.
Now, after the review made by the local water utilities
administration of this increase in water rates, and they are still
questioned by the water concessionaire, such rate may be the
subject of appeal, and again consistent with the doctrine of
exhaustion of administrative remedies, to the national water
resources board. And the law itself provide for further
administrative step from the decision of the National Water
Resources Board, the same may still be appealed to the Office
of the President, again in line with the doctrine of exhaustion of
administrative remedies. But take note, this mechanism is
resorted to by the aggrieved party whenever there is a
provision of law providing for the taking of such administrative
________ (9:03) to higher administrative tribunal.
Now in the case of Delta Ventures Resources vs.
_____________, there was this labor case filed against Green
Mountain Farm and Roberto Ongpin, and after the requisite
due proceedings, the labor authorities rendered a decision for
unfair labor practice and illegal dismissal against the labor
case respondent. But subsequently, there was this writ of
execution madeon properties owned by Roberto Ongpin, and
here the petitioner Delta Ventures filed a third party claim, not
before the NLRC but before the court for recovery of
possession and injunction, claiming that such property subject
of the writ is owned by Petitioner. Now, the court ruled that,
clearly, the proper remedy is not before the court for the
recovery of possession and injunction because this claim is
simply an incident to the action before the labor authorities.
This is simply an incident of the labor case and therefore, it
should be the NLRC that ought to take cognizance, and not the
court, of this third party claim. So here, the court ruled that the
RTC cannot enjoin the NLRC. So again, consistent with this
principle, the remedy available should be to exhaust
administrative remedies.
In Ombudsman vs. Valera, take note again, in line with the
administrative hierarchy, whenever a decision is rendered by a
lower administrative authority, the same may still be subject of
an appeal to or review made by the superior authority. And so,
the Office of the Special Prosecutor is simply a unit of the
Office of the Ombudsman under the 1987 Constitution, and in
fact, the former acts under the control and supervision of the
Office of the Ombudsman. So clearly, the determination made
by the OSP is still subject to the power of review by the
Ombudsman herself. Of course, in this case, the issue involved
here is _________ (12:12) and there is no need for exhaustion,
why? The special prosecutor issued an order for the preventive
suspension of Deputy Commissioner Valera. What is being
raised here is the authority of the special prosecutor in issuing
this preventive suspension order because the law provides that
it should be the Ombudsman or the Deputy. Even if the Special
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Prosecutor has the ____________ (12:42) as the Deputy
Ombudsman but, nonetheless, it does not mean that he
possess the same duties and responsibilities.
Now, in line with the doctrine of exhaustion of administrative
remedies, the head of the department clearly has the power of
control and supervision over the heads of bureaus and offices
under such department. And this in fact, is recognized in the
Revised Administrative Court. So in line with that thinking, the
review made by the DOJ Secretary is just consistent with the
power of control exercised by the secretary over the
subordinate officials under the department. Of course, we
know that the power of control includes the power of
supervision, and as consistent with the doctrine of exhaustion
of administrative remedies, whatever resolution or decision of
the prosecutor may still be the subject of an appeal to the
higher administrative authority, in this case, the DOJ Secretary.
And thus, the Secretary has the power either to affirm, modify,
or reverse the ruling of the provincial, city, or state prosecutor.
Simply, this is in order for the higher administrative authority to
make necessary corrections whenever any such mistake,
negligence, or abuse that may be made by the lower
administrative authorities in the course of the administrative
process.
Now, in the case Regional State Prosecutor Orillo vs.
Ravi(???), again you have to, you know, the nature of the
powers and function being performed by the RSP. You know
that the RSP is part of the hierarchy in the DOJ and he
exercises administrative supervision over all city and provincial
prosecutors. But take note, this authority exercised by the RSP
does not extend to the conduct of preliminary investigation. In
fact, the RSP, the nature of the functions of the RSP is simply
administrative, he’s not empowered to conduct PI. And so,
what happened here was that there was a resolution issued by
inquest prosecutor, as approved by the city prosecutor, but
nonetheless, the Petitioner here, Orillo, took cognizance of the
case and directed his asst. RSP to conduct a preliminary
investigation, and in so doing, he was no longer performing the
power of supervision. That is the power properly tasked to the
RSP. But in this case, in conducting the PI, he in fact took over
a function belonging to the inquest prosecutor and the city
prosecutor who approves the resolution of the inquest
prosecutor. And in the process, he also deprived the party to
file a motion for reconsideration of such resolution issued by
the city prosecutor, and if still denied, the party still has the
remedy to appeal to the Secretary of Justice. But here, by
reason of the conduct of the PI made by the RSP, clearly, he
was already usurping a power. He was exercising power
beyond what is given to him under the law.
In the case of DAR vs. ________ Coconut Plantation, Inc., this
issue refers to the matter of the implementation of the CARP
Law by the DAR. Here, what happened was that the
PARO(???) subjected the parcels of land owned by the
coconut plantation under the CARP. But instead of filing a
motion for reconsideration and later on appealing to higher
authority, in this case, the Secretary of DAR, what PCPI did
was to file a petition for certiorari before the CA, asserting that
there was grave abuse of discretion committed by the PARO.
Now, the SC ruled here that there was non-compliance by
PCPI of what is prescribed even under the rules of procedure
of the DARAB. Because the rules provide for the application of
the doctrine of exhaustion of administrative remedies. First off,
MR, and if still denied, file the appeal before the next superior
authority. In this case, the appeal should have been taken
before the Secretary of the DAR. Under the law, the DAR
Secretary has the exclusive authority to determine the
qualification and eligibility of tenants and beneficiaries. In fact,
in this case, the PCPI never questioned, never put in issue the
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qualification and eligibility of the beneficiaries, and it just filed
this petition for certiorari before the CA which is a violation of
the doctrine of exhaustion of administrative remedies. And the
law itself provides that the matter of the propriety of subjecting
a land under the CARP is still within the exclusive authority of
DAR and not before the court.
In Corsiga(???) vs. Defensor, there was this regional manager
of the NIA, Corsiga, who issued an order reassigning Senior
Engineer Isoc(???)(21:05) to a workplace different from that
stated in his appointment. If we were to apply the doctrine of
exhaustion of administrative remedies, what should have been
done in this ? First off, the aggrieved party Sr. Engr.Isoc ought
to have filed an MR. And if still aggrieved, if the MR is denied,
what is the next step? An appeal to be taken to the next
superior authority, in this case the head of the NIA, in this
case, Corsiga. But what the aggrieved party did was to file in
court a petition for prohibition and injunction. Clearly, this is not
the proper remedy. Now, take note, if you still recall the
provision in the Constitution, the CSC has the exclusive power
and authority over all personnel matter, personnel action,
including reassignment. Any movement of personnel is within
the exclusive competence of the CSC. And so, following what
is provided in the Constitution, and this is consistent with the
doctrine of exhaustion of administrative remedies, from the
decision of the NIA, the aggrieved party may still appeal the
same to the CSC because the issue involved personnel
reassignment.
In the case of Republic vs. Extelcom, again here, the Extelcom
violated the doctrine of exhaustion of administrative remedies
when it filed the petition for certiorari directly before the CA
without complying with what is required under the rules of
procedure of the NTC. The rules of the NTC provide that the
aggrieved party must first file his within a period of 15 days
from receipt of decision. And so, considering, let’s say if the
aggrieved party fails to do so and the 15-day period to file the
appeal or the MR, it means that the decision becomes final and
executory. And in this case, by reason of the lapse of this
period, the NTC order already become immediately executor.
Now, take note, the filing of the MR may still be allowed as
provided by law, even if the law itself provides for the
immediate execution of the order subject of the appeal. It does
not mean that the remedy is already not available to the
aggrieved party. So here, what is clearly provided is the filing
of the MR from the decision of the NTC. Here, Extelcom
violated this principle by not exhausting his administrative
remedies.
Now, in the case of SEC vs. _______(26:18), take note, under
Rule 43 of the Rules of Court, a petition for review may be
taken from the decision of the administrative authority to the
CA within 15 days from the date of the denial of the MR. Now,
take note again, under the Rules of Court, it allows only the
filing of only one, the first and only motion for reconsideration.
In this case, the SEC, when it received the denial of its MR,
persisted by filing a second MR. Of course, this is already a
prohibited pleading. And so what is the effect of the filing of a
prohibited pleading? The filing of the second MR does not
produce any legal effect. And so, if this is so, if the aggrieved
party still fails to make the necessary appeal within the
timeframe provided under the rules by filing the second motion
for reconsideration, certainly, the decision may have already
become final and executor and so the court may no longer act
on this matter. So here in this case, the SEC did not exhaust
the proper remedies as provided under existing laws, rather, it
filed a second MR before the Office of the President, and the
filing of the second motion before the Office of the President
which had already denied the first motion, did not stop the
running of the reglemantary period to file the petition for review
J Estrella, Gil Garcia II, Daryl Ritchie Valles
before the CA. What should have been done by the aggrieved
party, in this case, the SEC? Upon receipt of the denial of its
MR, the Rules of Court grants the aggrieved party a period of
25 days to file the petition. This was not complied in this case.
In Laguna ________ vs. ________ (29:20), consistent with Art.
128 of the Labor Code, the authorized representative of the
Secretary of Labor, has, after due proceedings, the authority to
order a monetary award in the exercise of the department
secretary’s visitorial and enforcement powers, and so, by
delegation of law, this authority is also exercised by the
regional director of the DOLE. What should have been done?
The aggrieved party should have filed the appeal before the
next superior administrative authority, in this case, the
Secretary of Labor. Now, what the petitioner did in this case,
upon receipt of the order of the DOLE Regional Director
denying the motion it filed to quash the writ of execution,
because here the regional director issued an order granting
monetary award adverse to Petitioner. What Petitioner did was
to file a motion to quash the writ of execution issued by the
regional director, and upon denial, the Petitioner filed before
the CA, of course this is not a proper remedy, a motion for
extension of time to file a petition for review. What should have
been done was for petitioner to appeal to the Secretary of
Labor consistent with the doctrine of exhaustion of
administrative remedies.
I have emphasized repeatedly that this doctrine of exhaustion
of administrative remedies must be applied whenever there is
a provision of law providing for such administrative mechanism
before there may be recourse to the courts. One such example
is under Sec. 408 of the LGC. Sec. 408 provides that the
parties in a dispute must submit the issue, their conflict, to the
LuponngTagapamayapa for amicable settlement or mediation.
Now, question, supposing the complainant, one of the parties
in the dispute, files an action before the court without
complying with Sec. 408, what is the effect? The effect is that
the court has basis to dismiss the complaint that was directly
filed before the court without complying with what is required
under the LGC. So here, a motion to dismiss on the ground of
prematurity, on the ground of lack of cause of action. But
nonetheless, again, I have emphasized that the party must
invoke at the earliest time, generally before the filing of the
answer, availing of this doctrine of exhaustion of administrative
remedies because the failure to comply with this doctrine does
not mean that the court no longer has jurisdiction. In fact, this
does not involve the jurisdiction of the court, it simply means
that the action is premature by reason of failure to comply with
what is required under the law. So if the party does not invoke
this timely, the court may even look into the merits of the case
despite the non-compliance with the doctrine of exhaustion of
administrative remedies.
In the case of Alexandra Condominium Corporation vs. Laguna
Lake Development Authority, here the Laguna Lake issued an
order after complying with this principle of due process
imposing a penalty of more than a million upon Alexandra
because of its polluted waste water discharge causing pollution
to the Laguna Lake. Again, if we are to apply the doctrine of
exhaustion of administrative remedies, file first an MR before
the tribunal issuing the questioned order, so LLDA. But this
was not done, and so, if not done, what should have been the
next proper administrative step? To go to the higher
administrative authority, which in this case would be the DENR
because under EO 149, the LLDA has been placed under the
DENR through the Pollution Adjudication Board in the Office of
the Secretary of the DENR. So here there was failure to
comply with this requirement when the Petitioner immediately
filed a petition for certiorari in the CA under Rule 65. Of course,
this is not a proper remedy. In fact, here the matter does not
4 Manresa
involve a legal issue but rather a factual issue, and so this
must be threshed out before the administrative agency and not
before the court. Now, take note also, under Rule 65 on the
filing of this action, petition for certiorari, of course we know the
ground, the sole ground is grave abuse. Now, this cannot be
invoked without taking the administrative step as provided by
law such as the filing a MR. In fact, this petition is available
when there is no other plain, speedy, adequate remedy in the
ordinary course of law. What is the plain, speedy, adequate
remedy under the course of law? That is the filing of the MR,
and this was not complied with by the Petitioner.
Now, on another issue upon the offer of Petitioner to pay a
reduced amount, condoned amount. It offered to pay about a
million, now it depends. The question now is which body has
the power to compromise claims? Applying the government
auditing code, PD 1445, the authority to compromise claims if
the amount is P100K and below, belongs to the COA, if the
amount of compromise is more than such, under the RAC, the
authority is vested with congress. So in this case, congress
has such power to compromise claims.
In the Province of Siquijor vs. COA, what happened here was
the Province, on the basis of the resolution passed by the
sanggunian, granted a Christmas Bonus of P20k to each
employee of the province. And so the COA disallowed the
payment of this bonus. It was argued by the Province that this
grant was in fact approved by the President. And so,
nonetheless, when there was this disallowance made by the
COA Region VII, and this was affirmed by the COA legal office,
and so, what should have been the proper remedy in case of
the denial of this motion filed by the Province? Consistent with
the doctrine of exhaustion of administrative remedies and
under the government auditing code, the remedy should have
been an appeal before the COA Central, the office of the Chair
of the COA, but this was not done. In fact, under the COA rules
of procedure, clearly, it so provided that the appeal should be
taken before the COA through the Chairman. Until such time
that the disallowance, because of the failure to make the
appeal within the timeframe, the disallowance became final
and executory. And so, clearly, the remedy of certiorari may no
longer be invoked when the timeframe has already lapsed. As I
mentioned a while ago, the remedy of certiorari may be availed
only when there is no appeal or when there is no plain, speedy,
adequate remedy in the ordinary course of law. So, if the law
itself and even the rules of procedure of the agency provides
for the filing of MR, then that is the speedy adequate remedy
provided under the law.
The SC further ruled in this case that the matter of determining
whether indeed the marginal note made by the president is
approval of the grant is a factual matter and therefore should
have been determined by the COA and not before the court.
Take note, whatever decision, under the law and even under
rules of procedure of the COA, what is the remedy of the
aggrieved party? If the COA Central still denies the appeal,
what is the remedy? It is before what court? IT IS BEFORE
THE SC, not before the CA.
Now, PD 242, and old law, 1973 law, is a general law providing
for the administrative adjudication or settlement by the DOJ of
matters, controversies, disputes, involving agencies of
government, instrumentalities, agencies, GOCCs, so long as
the disputants belong to the government, under this law, the
matter may be submitted if let’s say the disputants are in the
same branch, let’s say, office of the President, the matter may
be submitted to the office of the Sol. Gen.;if the disputants are
GOCCs, the matter may be submitted to the Gov’t Corporate
Counsel; in all other cases, the matter has to be submitted to
the DOJ for resolution. This is the general law, so broad.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Now there is this special law, PD 464 pertaining to the matter
of assessment, appraisal, and collection of real property tax by
LGUs. Now, in the case of the Province of Misamis vs.
NAPOCOR, here the province of Misamisfiled an action before
the court of the basis of PD 464 for the collection of realty
taxes from the NPC. NPC failed to pay the realty taxes to the
LGU. Now, in this case, the NPC raises the issue of
administrative settlement on the basis of PD 242. According to
NPC, there should be application of the doctrine of exhaustion
of administrative remedies in relation to doctrine of primary
jurisdiction, so the need for the DOJ can solve this issue
because the disputants are both gov’t entities, the LGU and the
NPC, a GOCC. So the SC ruled, between the general law and
a special law, this special law providing authority to the LGU
for the assessment, appraisal, and collection of realty taxes,
this should prevail over PD 242 and so the court has the
authority to take cognizance over the matter because of the
failure on the part of NPC to pay the realty taxes.
Now, there’s a distinction between the doctrine of exhaustion
of administrative remedies and the due process principle. This
has been asked in the bar. Take note that these two principles
are related. The distinction here is that this principle of
exhaustion of administrative remedies is based on the view
point of the ruling tribunal. So if this is decision rendered by the
ruling tribunal, applying doctrine of exhaustion of administrative
remedies, opportunity should be given for the higher authority
to amend the decision. Whereas from the view point of the
litigant, the adverse party against whom the decision is
rendered, so due process has to be considered. So due
process is considered from the view point of the party against
whom the decision is rendered. So clearly, in both doctrines
there is this opportunity given to them. What is the opportunity?
Under the doctrine of exhaustion of administrative remedies,
opportunity is given to the higher administrative authority to
make a ruling in order to correct whatever error that may have
been made by the lower administrative subordinate. Whereas,
in the administrative adjudication opportunity is also given to
the aggrieved party against whom the decision is rendered by
making necessary remedies provided by law, an opportunity
for the party to be heard, part of the requirement of due
process.
We have mentioned that the rule is there should be filing of a
motion for reconsideration consistent with the doctrine of
exhaustion of administrative remedies, and what are the
exceptions to this rule? In what cases may there be no prior
motion for reconsideration?
1. If the order of the administrative authority is a clear
nullity, null and void. For example, the tribunal issuing
the order or decision never, under the law, never had
the power or jurisdiction. Of course, we know if what
is being raised is the jurisdiction, if in the first place
the tribunal never acquired jurisdiction, all
proceedings are null and void, at any time the
decision can be questioned. So there is no need to
exhaust, what is there to exhaust? The immediate
recourse is before the court.
2. Where there is an urgent necessity for the
determination of the issue, then any _______ may
cause irreparable damage or injury to the parties, it
may be the gov’t or any of the parties. There is the
clear prejudice by reason of, let us say, undue delay.
Let us say, in a petition to oust the possessor of the
office, what is the proper remedy for one who claims
that he is lawfully entitled to the possession, what is
4 Manresa
the remedy? Quo warranto, this should be filed within
what timeframe? Within one year. So to wait further
will cause will only cause grave irreparable damage.
So there is no need to wait further, go to court.Or
when there is a deprivation of the due process clause,
and the need for urgent remedy, or as we said, where
the issue is purely legal. If purely legal, of course the
administrative authority does not have the
competence to rule on such issue; or where what is
involved is public interest.
You know, the rules in administrative law are not so rigid. The
court time and against has applied liberality in the
implementation of administrative rules and regulations. What
are the exceptions to this doctrine of exhaustion of
administrative remedies? Let’s discuss not the cases applying
the exceptions to this doctrine of exhaustion of administrative
remedies.
In the case of Dimaisip vs. Bakal (???), if your recall you study
of public officers, there was this head of PAO, Bakal, she was
the chief of the PAO during the time of Pres. Ramos, but
during the time of Estrada, she was replaced and transferred to
PAO Region 10, so from Chief, she became a subordinate, a
regional director of PAO Region 10. So the issue is whether
there is a need to exhaust administrative remedies. What’s the
issue? Whether the transfer of Bakal, she was replaced by
Dimaisip who was not even CESO, to Region 10, which was
made without the consent of Bakal is constructive dismissal in
violation of her security of tenure guaranteed under the
Constitution. Clearly, this is a legal issue that ought to be
looked into by the court, there is no need to exhaust
administrative remedies.
In the case of Rimao vs. Tajer(???), the Petitioner was
promoted by then ARMM Gov. Missuari, from Education
Supervisor to director, but unfortunately was disapproved by
the CSC, and later on an order was issued by Missuari
reinstating her to her former position of supervisor. During
period that Petitioner was director, her old position was
occupied by Respondent as supervisor. Of course, the concept
of de facto applies in this case. The issue here is whether the
memorandum issued by Missuari reinstating Petitioner in spite
of the fact that she was already on AWOL. Clearly, this already
exceeds the authority given to the governor. So clearly there is
here grave abuse of discretion, an act done in excess of
jurisdiction which is also a legal issue, and so there is no need
exhaust administrative remedies. There is no need for the
aggrieved party to wait further for the resolution of this matter
by the Office of the Governor because the governor is the
same person who issued conflicting resolutions. In fact, the
order of reinstatement issued was done based on an
outmoded civil service resolution. So according to the SC,
there is no need, the matter ought to be heard before the court
and not before the local government of ARMM, Office of the
Governor.
In the case of Lastimoso vs. Asayo (???), what is being raised
here is whether or not the chief of the PNP has the authority to
take cognizance of the administrative complaint filed by a
private citizen against Sr. Insp. Asayo, because what
happened here was that the PNP Chief took cognizance of the
case. Now, again, this is a matter within the competence of the
court and not within the authority of the PNP. In fact, under RA
6975 as amended by RA 8551, the law of the PNP, there is in
such a law created the PLEB, People’s Law Enforcement
Board. The authority of the PLEB is to take cognizance of
citizens’ complaints filed by citizens against police officers. So
what’s being raised here by Asayo, is that this matter should
have been taken cognizance by PLEB rather than the chief.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
In the case of Quisumbing vs. Lumbang (??), there was this
District Supervisor of DepEd Esther Yap. And you have this
issuance made by the Minister of DepEd, at that time
Quisumbing, transferring/reassigning Esther Yap from Mlang to
______________, and so instead of exhausting administrative
remedies, the aggrieved party Yap went to court. Is there a
violation of the doctrine of exhaustion of administrative
remedies? One exception to this doctrine is that if the issuance
emanated from the superior, in this case the head of the
department, Quisumbing. And so, if the issuance is from the
dept. secretary, there is no other higher authority, of course
except the office of the Pres., but applying the alter ego
principle, the act of the dept. secretary is the act of the Pres.,
so there is no need to take the matter to the office of the Pres.,
unless there is a provision of law providing for such
administrative mechanism, in this case there is none. And so,
since the issuance emanated from the dept. secretary herself,
therefore, it was just proper for the aggrieved party to file the
case before the court where the respondent is the dept.
secretary whose acts as alter ego, bear the approval of the
Pres.
In the Case of Benamira vs. Garucho (???), Benamira was not
even appointed but designated, not by the president who is the
appointing power, but by the head of the tourism dept. And so
Benamira got designated as the GM of the PTA. And Benamira
complained violation of his security of tenure. Where the
doctrine of qualified political agency applies, of course this is
also another exception. Under the doctrine of QPA, the alter
ego principle, whenever the action was done by the superior
authority, the dept. secretary, of course this means that that act
of the dept. secretary is the act of the Pres. And so, applying,
as an exception to this doctrine, the remedy here is before the
court.
In the case of Castro vs. Gloria, this complainant Gutang filed
an administrative case against Castro, a public school teacher
for disgraceful and immoral conduct, because Castro had an
illicit affair with the wife of Gutang. And so, when a decision
was rendered after complying with the requirements of due
process, Castro was dismissed. Take note, he had been in
service for so long a time and this was the first violation he
committed, and dismissal kaagad. What is being raised by
Castro is the propriety in imposing the penalty of dismissal
considering that this is first administrative case. So it is a
question of law, and as the SC ruled, there is no need for the
aggrieved party, Castro, to exhaust administrative remedies,
he can already seek relief before the court in order to make a
determination. He is not even questioning the conviction
rendered in the administrative case, he is only questioning
what is the proper penalty that ought to be imposed against
him?
In the case of Regino vs. Pangasinan Colleges of Science and
Technology, here the student, Regino, was not able to take the
final examination because of her refusal to buy the tickets sold
to her by her teachers and so hindisiyanaka-graduate. So here,
the student filed a damage suit against the school, and here
the college argued that what ought to apply is the doctrine of
exhaustion of administrative remedies. Is this doctrine
applicable? No, because the suit is for damages and the
CHED does not have the authority to award damages. It is in
fact a matter resolvable under the provisions of the Civil Code.
In fact, she is not questioning the policies of the school, the
nature of her action is simply one of damages.
This has been asked twice in the bar, the case of Sabello vs.
DECS(???), you know this guy Sabello was then a public
school principal, he was charged and he was convicted by the
court, and so one of the accessory penalties in conviction is
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dismissal from service, and he was in fact removed from
service by reason of his conviction. And later on, he was
granted absolute pardon, and he was reinstated by reason of
this absolute pardon but not to his original higher position but a
lower position of school teacher. And without exhausting
administrative remedies, he went to court arguing that poverty
denied him the services of a lawyer. I have said earlier, the
rules of administrative law are not strictly applied, from time to
time liberality is applied by the court. And so here the SC
applied liberality, taking into account that the petition filed
before the court was by a non-lawyer who claims that poverty
denied him the services of a lawyer, he could not pay a lawyer,
and so he has to rely on his own in seeking legal review, and
so the SC set aside the requirement of the doctrine of
exhaustion of administrative remedies and decided to look into
the merits of the position filed Sabello.
In the case of Sta. Maria vs. Lopez, this involves the issuance
by the President of UP Diliman of an order reassigning Sta.
Maria from the College of Arts Education of UP to the Office of
the President. Now, take note, the appointment given to Sta.
Maria was as Dean of the College Arts for a term of 5 years,
but even before the expiration of this 5-year term, the president
issued this reassignment order, so he was reassigned to the
Office of the President with the rank of Dean, and so he
claimed that this is constructive dismissal in violation of his
security of tenure. And so SC ruled that there is nothing left to
be done except for court action. This raises a legal issue, and
so there is no need to exhaust administrative remedies.
What other exceptions are there to the rule? When there is
estoppel on the part of the party invoking. For example, if the
administrative officer or tribunal declares that it should have
been court action, upon the filing of the petition in court, he
cannot declare that it should have been raised before the
administrative tribunal, he is already in estoppel. Or when there
is unreasonable delay of official action such that it will cause
irreparable damage or injury to the complainant. Non-action
despite compliance, there is undue delay, so this may be a
basis for the filing the suit. Or as I mentioned a while ago, there
is no other plain, speedy, and adequate remedy except for
court action. Now, take note, the doctrine of exhaustion of
administrative remedies applies only to public lands. Because
if it’s a public land, where should the exhaustion be made?
Before the DENR. If it involves private property, it means that it
is already under the Torrens system, and it is only the court
that can revoke such title. So, if the property in question is
private, the authority belongs to the court and not the
administrative tribunal. Or, one exception, the amount is so
small to make the application of the rule to so impractical.
There is nothing left to be done except court action.
Very important doctrine in administrative law is the doctrine of
qualified political agency, the alter ego doctrine. In the absence
of provision either in the law or the Constitution, the official acts
of the dept. secretary are deemed the acts of the president
unless the president himself disapproves the acts of the
subordinate dept. secretary. So, unless the Constitution or the
law requires personal action by the Pres., you know under our
existing system of gov’t, all the functions in these various
depts. are performed by the dept. heads and not by the pres.
himself, otherwise, mauubosnayungbuhokniPNoy. So, this
QPA simply is a recognition of one executive, the president,
and all branches, offices, departments in the executive branch
are mere adjuncts of the executive depts., and the heads of
those offices, bureaus, and departments are mere agents of
the chief executive. So they are mere agents who implement
the policies that may have been adopted by the Pres. They are
the alter ego of the President.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Now, is it correct to say that the executive secretary is of the
same level as the dept. secretary in the executive hierarchy?
That is not a correct statement because the executive
secretary is higher than the department secretary, he acts by
authority of the President, that is known as the ―little president‖.
So the executive secretary has the authority either to affirm,
modify, set aside, nullify the decision of the director, even if the
decision of the director has been affirmed by the dept.
secretary. Again, that is simply consisted with the doctrine of
QPA, he acts by authority of the President.
Now, one other important principle you need to know, you
should remember that this doctrine does not apply to offices
outside the Office of the President. So meaning, this does not
have any application whatsoever to Constitutional
Commissions or the Office of the Ombudsman. Why? Because
this commissions created under the constitution are supposed
to be non-political, independent of the office of the president.
That is the case of Perez vs. Sandiganbayan. So the doctrine
of QPA does not apply to the office of the Ombudsman.
In the case of the Province of CamarinesNorte vs. Province of
Quezon, you know there was this boundary dispute between
the Province of CamNor and Quezon. And so because of this
conflict, there was an order issued for the conduct of a survey,
and because of this order, there was a special order issued by
the Secretary of DENR authorizing the creation of this
technical team from the DENR with the objective of conducting
the survey in order to delineate the boundaries of these two
provinces. And so here the governor of Quezon claimed that
the conduct of the survey is null and void because this was not
authorized by the President. The SC ruled that the fact the
special order creating the survey team came from the
secretary of DENR, it means that such act is the act of the
President, applying the doctrine of QPA.
Now, there are laws providing that the dept. secretaries, by
reason of their position, are ex-officio members of governing
boards of GOCCs. By provision of law, the head of the
department is made ex-officio member, by reason of his office.
And so, in those cases where the dept. secretaries are made
ex-officio members of GOCCs and other instrumentalities
where there is a board of trustees, it means that personal
judgment must be made by the department secretary. And so,
this duty, this authority to vote and approve resolutions of the
board must not be conferred to the subordinate. Rather, this is
one that involves the exercise of utmost sound discretion. It
can only be exercised by the dept. secretary. He cannot
delegate such task to his agent. You know, there have been so
many times in the past, I was once a corporate secretary in a
GOCC, and many of the members of the board are department
secretaries, but because of the distance of Mindanao, they
designate their representatives. And so many resolutions
passed by the board were made with the participation of these
representatives, and at that time wala pa itong decision naito,
mali-malipalayungginagawanamin.
Anywasy, so here the SC ruled that, you know there was this
resolution passed by the NP Board declaring that effective
January 2003, all the NPC employees were terminated from
their positions, but the matter was raised before the SC. Of the
9 board members in the passage of this resolution, upon
determination, only 3 were declared valid. Why? Because the
thee were declared valid because the 3 came from the
department secretaries, all others were merely representatives,
so null and void yung resolution. So the task of voting on the
resolution cannot be delegated to the representative, this is a
function that is exclusive to the department secretary be
reason of his office, it involves an act of utmost discretion.
4 Manresa
In the case of DENR Secretary vs. DENR employees, you
know there this conduct of plebiscite determining which
provinces should belong to the ARMM. And so, after that, an
order was issued by the Secretary transferring the regional
office of DENR from Cotabato City to Koronadal. And so
because of this issuance, the families of the employees were
affected, so they complained that the issuance was illegal
because it did not have the imprimatur of the president. The
SC ruled that the order of the DENR Secretary is also the act
of the President under the doctrine of QPA, that’s one. Another
reason here is that the President under Sec. 17, Art. 7, has the
power of control over all departments, bureaus, and offices
within the executive branch. And you know, the multifarious
acts of the executive branch are performed through this
departments, and certainly the department heads are within
their competence, within their power to issue such an order in
implementation of the policies of the president. This power may
be delegated to the members of his cabinet under the doctrine
of QPA. And another reason here, take note that under the
Constitution, not only the power of control, and this power of
control includes the power of supervision in the need for the
faithful observance of laws by the subordinates. So the
principle of this Presidential power of control as provided in Art.
7, Sec. 17. I’ve already mentioned this a number of times, the
authority of the president over the executive branch of
government including all executive officials and subordinates,
and this power of control refers to the authority of the president
to modify, set aside what the subordinate had done. So the
question, may the president nullify the action of the
subordinate and perform the act himself? Yes, because this is
consistent with the power of control. He can also issue an
order that the act be undone or the act be re-done. This is
again within the concept of power of control. May he issue the
rules? Yes, because this is consistent with the doctrine of
control, presidential control. But as distinguished from the
power of supervision, the president does not have the power to
issued rules. This applies only, the issuance of rules applies
only whenever he performs consistent with his power of
control. But under the power of supervision, and this applies to
LGUs under Art. 10, Sec. 4, and the ARMM under Art. 10, Sec.
16, it is one of supervision. In the latter case, power of
supervision does not include to issue himself the rules. The
authority of the president in so far as his power of supervision
simply means the power to ensure that these rules faithfully
carried out in accordance with law, but he cannot order the
formulation of new rules to suit the manner of the doing of the
act. So the power to substitute the judgment of the former with
that of the latter.
In the case of Tondo(??) Medical Center Employees
Association vs. CA, in the matter of the reorganization effected
in the DOH in the time of Pres. Estrada under EO 102, and it is
claimed that this is a usurpation of legislative power. Even
without specific legislative fiat, the President issued this EO
calling for or giving authorityto reorganization the DOH. Is this
proper? There is no usurpation of a power belonging to
legislature because there is already an existing law conferring
to the president a blanket authority to undertake changes in
any office or department of the executive branch. Take note,
the authority belongs to the president whenever what is
involved is a department, or office, or bureau under the
executive branch of gov’t. So clearly, under the Revised Admin
Law, there is a continuing authority granted to the President to
effect reorganization whenever the need arises. So whenever
to reorganize the structure of existing offices in the executive
branch, can he do this? Yes, because that is within the powers
given to him under the RAC. Again, this rule applies only to
offices in the executive branch.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Again, the same principle applies in the case of Manda vs.
Mipa (??), the president has the authority to effect
reorganization of offices, agencies, instrumentalities in the
executive dept. And the basis here is the Constitution, the
grant of power of control under Art. 7, Sec. 17, and by virtue of
a valid delegation of legislative power under the RAC to effect
reorganization of executive offices under EO 292. So that’s the
basis in any reorganization effected by the President without
securing specific authority from the executive.
JULY 10
Under the doctrine of qualified political agency, the President
as Chief of the Executive branch has the power to alter,
modify, or affirm whatever decisions may be rendered or acted
upon by the subordinates in their respective departments.
In the case of Chavez v NHA, even without the required
authorization of the secretary of the DENR, the President
issued an Executive Order motu proprio for the development of
the housing project known as the Smoky Mountain Dagat-
Dagatan Housing Project with the directive for the
implementation of the undertaking. In fact, this project
happened during the time of President Aquino and this
program was extended even way beyond the term of office of
then President Corazon Aquino, so during the time of
President Ramos. The issue here is WON there is still a need
to secure the authorization needed for the implementation of
this project more so that there is here the need to claim public
land and thus the authorization of the DENR should be
obtained. Nonetheless, the Supreme Court ruled that this
authority the President can exercise, being the Chief Executive
of the executive branch and in fact the president ordered the
creation of this project through the implementing committee
and included in this committee was the DENR. The DENR was
made part of the implementing committee, so this already
complies with the requirement needed that there should be
authorization of the DENR. The other reason here is that the
ultimate authority over disposable and alienable public land is
vested NOT in the secretary of the DENR but rather with the
Office of the President. Otherwise, if the requirement is that
there should be prior authorization of the DENR secretary, this
would negate the power of the President over the department
secretaries. So this would in fact be a derogation of the
authority of the power of the President as Chief Executive of
the executive branch of government.
In the case of Meralco v Philippine Truth Commission, one
of the issues raised in this case is the basis for the creation of
the Philippine Truth Commission. The basis here is not the
power of control, under Art. 7 Sec 17 because this provision,
power of control, applies already to those existing
departments, offices, bureaus in the executive branch and
clearly, this Philippine Truth Commission, is not yet part of the
structure of the executive branch of government when the
Executive Order 1 was issued. So, the Philippine Truth
Commission is not born out of the restructuring of the Office of
the President so as to justify this power of control. Rather, the
authority here is on the basis of the obligation, the duty
imposed under the Constitution in the same provision, Article
7, Section 17 that there should be faithful compliance of the
laws and this is carried out by the President. And so the need
to ensure that there is faithful adherence, and in case of
violation, it follows that the President has the authority and duty
in fact to file the necessary cases against the erring public
officials.
There is here a distinction between the power of control
and the power to create a public office. In the case of power
of control, this refers to the authority of the President to adopt,
4 Manresa
to alter, modify or nullify the action taken by the department
secretary, the president’s agent. In the case of this power to
create a public office, take note, the basis is the conferment to
the President by law. There must be a law granting such
power, delegated authority to create. There must be a law and
in fact, there is such a law, the Revised Administrative Code,
EO 292, conferring the power to the President but only to
reorganize the existing bureaucracy in the Executive branch of
the government. But more than that, the duty likewise imposed
under the Constitution to the President to ensure that there is
faithful compliance or observance of the laws.
The question is, whether or not the President has the authority
to reorganize the Executive branch of government. Take note,
the rule here is that the power to create includes the power to
destroy. This principle is made applicable to offices that have
been created on the basis of legislative fiat. Congress itself
provides for the creation of these public offices, and so it
follows therefore that, proceeding from this power to create,
Congress likewise has the power to destroy. There may be
amendatory law or there may be a delegated conferment given
by Congress to the Chief Executive.
What are the bases for the authority of the President to
reorganize the Executive department? We mentioned that
there must be legislative imprimatur. This principle is not
applicable to an office created under the Constitution as
Congress does not have the power to abolish an office created
under the Constitution. This authority of Congress is limited to
those offices Congress itself created on the basis of legislative
enactment. The authority likewise of the President under the
power of control is to ensure that there is faithful observance of
the law and so the need for the President to review the actions
of the subordinate officers.
In the case of Buklod ng Kawaning Manggagawa,
Economic Intelligence and Investigation Bureau. This
bureau was created during the time of Corazon Aquino.
Subsequently, during the time of President Estrada, he issued
an Office Order 3149(?) effecting the deactivation of the EIIB
and so the employees who were affected by such issuance
questioned this order on the ground that this usurps the power
belonging to the Legislature. The SC ruled that the authority of
the President is recognized, in fact, there may be a law passed
by Congress, giving to the President the power to carry out
organizational measures but this authority applies to
departments, offices in the Executive branch of government. Is
there such authority? Yes, under the Revised Administrative
Code, EO 292, conferring to the President the power in order
to achieve, simplicity, economy and efficiency to reorganize the
administrative structure of the office of the President. And so,
consistent with this authority given by Congress on the basis of
law, the Revise Administrative Code, the President has the
power to transfer the functions of agencies and departments,
to the office of the President. Take not that the EIIB is a
Bureau under the Department of Finance and the Department
of Finance of the structure of the Office of the President. Thus,
it is within the authority of the President to effect the changes
in the Executive branch of government.
In the earlier case Domingo v Zamora, here this was during
the time of President Estrada; he issued EO 321 which
provides for the transfer of the sports programs and activities
from the Department of Education to the Philippines Sports
Commission. The affected employees questioned the issuance
and the SC upheld the authority of the President and in fact,
the rationale for this continuing authority granted to the
President under existing law, EO 292, is that the Office of the
President is the command post, it is the nerve center and
therefore, the President has the prerogative to shape or
J Estrella, Gil Garcia II, Daryl Ritchie Valles
reshape, being the commander of the administration, this
bureaucracy within his control. The objective here is efficiency
and effectivity of those departments and offices in the
Executive branch of government.
So, continuing authority given by Congress on the basis of EO
292, the RAC to effect this reorganization of the Office of the
President. But this is subject to the caveat, (important in our
study of Public Officers), that one mode of the termination of
the public office is abolition, but the condition here is that it
must be done BONA FIDE, in good faith.
We have mentioned and discussed the power of the President
of control. On the other hand, there is also the President’s
power of general supervision. As earlier said, power of control
applies to the departments, bureaus offices in the executive
branch, whereas the power of supervision applies to the LGUs
under Art. 10, Sec. 4 and Art 10, Sec 16 and insofar as the
ARMM is concerned, we have Art. 10, Sec 18 of the
Constitution. This simply means that the authority of the
President to make sure that there is faithful compliance and
execution by the local government units acting through their
local chief executives, of the law of the land.
This power of general supervision exercised by the President
over LGUs is not inconsistent with the power of the President
to order the conduct of investigation or whatever. The laws of
the land are not faithfully observed by the local chief
executives. It therefore follows that the President has the
power or authority, whenever these laws are breached, there is
no faithful adherence by the local chief executive, for the
President to conduct investigation, even the filing of
disciplinary cases against erring local chief executives.
There is here a distinction between disciplining authority and
investigating authority. Disciplining authority is vested with the
President as the Chief Executive who has the power of control
as well as the power of supervision over the LGUs. This task of
conducting the investigation in order to obtain the ends of this
administrative, disciplinary action may be conferred or
delegated to subordinate officers. Thus, this task may be
assigned to the alter ego and this alter ego becomes the
investigating authority. Assuming (?) this task is being
performed by the DILG Secretary or the Secretary may create
an investigating committee. Some other body may be tasked
by the President other than the DILG secretary, for example,
the President may task the secretary of the Department of
Justice. In those cases, the investigating official becomes the
investigating authority. And so there is no incompatibility here
because the authority to disciple is vested with the President.
There is NO delegation of the power to disciple but simply the
power to investigate. In fact, the authority here of the
investigating tribunal or committee is conducting the
investigation as so directed by the President and submitting
the report with recommendation. And so, ultimately it is still
with the President to impose the necessary final action.
Whatever action that must be made still belongs to the
President as the disciplining authority.
Specifically, the power of supervision is one of mere oversight
over local government units as declared by the Supreme
Court in Bituonon v Fernandez. This simply refers to the
authority of the President to check whether the officials of the
LGU or LGUs, perform their obligations as prescribed by law
and if the rules are being followed. But the President himself
CANNOT by himself lay down the rules for the doing of the act.
And if these rules or laws are not observed, what the
President, as the superior, may do is to order that the work be
done or undone, in order to conform to the prescribed rules or
what was provided by law. But the superior, in this case the
4 Manresa
Chief Executive, cannot himself prescribe his own manner for
the performance of the act. Otherwise, if this were so, it would
already be power of control and no longer power of
supervision.
The power of general supervision exercised by the President
extends to the Liga ng mga Barangay. Of course we know that
the Liga ng mga Barangay is recognized in the Local
Government Code. What is this Liga ng mga Barangay? This is
simply an aggroupment of barangays which are represented by
their barangay captains. And in fact, the representatives of this
Liga sit in an ex officio capacity at the higher aspect, the
administrative aspect, municipal, city and provincial
Sanggunians and so in this manner, the Liga ng mga Barangay
now becomes the medium, to which the barangay is able to
participate in the enactment of ordinances and the formulation
of policies beneficial to the barangay. Of course, before the
Present Vice Mayor of Davao became the Vice Mayor, he used
to be sitting in the Sangguian, ex officio as the head of the
Liga.
Again we emphasize that the authority of the President is one
of supervision insofar as the Liga ng mga Barangay is
concerned. So in the case in David v Paredes, where the
judge here Victoria Paredes, issued the order designating the
DILG as the interim caretaker to manage the affairs of the Liga
and because of this order of the court, the DILG issued orders
nullifying the results of the Liga election in Caloocan and in fact
promulgated rules and regulations for the holding synchronized
elections and more than that, the DILG appointed Rayos as
president of the Liga ng mga Barangay in the local city and this
guy was not the duly elected. The one chosen by the Liga ng
mga Barangay in Caloocan was David. Clearly, in so issuing
these acts, performing these powers, the DILG already
usurped a power. It already went beyond the authority which is
only one of supervision. Here, the DILG was already
performing powers of control. The DILG deprived the National
Liga Board of its authority of its authority over the Liga. So
clearly a grave abuse of discretion was committed here by the
DILG and as to the part of the judge in issuing this order.
What is the rule in the review of administrative decisions?
We know that before there may be a judicial review of the
administrative decisions, what we have to follow is the doctrine
of exhaustion of administrative remedies. Before there may be
resort to court, you have to exhaust your administrative
remedies within the administrative realm.
Let us say there is compliance and in the proper case as so
provided by law, the decision of the administrative tribunal is
elevated before the court. What is the general rule? The
general rule is that the findings of fact of administrative
authorities are not only given respect but even FINALITY.
Meaning, this factual findings of administrative authorities are
not subject to judicial review insofar as the findings of facts of
administrative authorities are concerned, premised on the
condition that the decision rendered by the administrative
tribunal is supported by SUBSTANTIAL evidence and another
requirement is that such decision or proceeding was done
within the ambit of authority of the administrative tribunal or
body.
There is an exception of the many exceptions to this rule. In
what cases, even the factual findings of administrative
authorities may be subject to judicial review? Because the rule
here is the factual findings of administrative authorities ought
not to be given only respect but finality. What are the
exceptions?
J Estrella, Gil Garcia II, Daryl Ritchie Valles
1. If there is misappreciation of facts by the
administrative authority or if the decision is not
supported by substantial evidence. There is here a
disparity since the decision is not supported by
evidence on record or where the findings are vitiated
because of the existence of fraud, collusion or
imposition or there is an irregular proceeding done by
the administrative authority in violation of procedural
due process; or there are serious, grave errors
committed by the administrative authority, grave
abuse of discretion or there is clear arbitrariness or
capriciousness committed by the hearing officer or
tribunal.
The rule here is that factual findings must be respected and
accorded finality.
2. What about more than factual findings? The issue
now involves not only factual but even a legal issue.
nd
MIXED factual finding of facts and of law. Thus the 2
exception: the doctrine of assimilation of facts.
In the case of Bautista v Araneta, where the petitioner argues
that the certification issued by the agrarian authorities to the
effect that he is a tenant of Araneta is a factual issue because
a certification has been issued. And in the basis of this
declaration, this finding, the MARO, the DARAB likewise
affirmed this certification. The Supreme Court here said that
the issue of tenancy is NOT purely a factual relationship. What
is the factual relationship here? The factual relationship is the
fact of this guy tilling the land. But more than that, the Supreme
Court said that there is a need also to establish a legal
relationship. Whether indeed consent has been obtained or
whether the consent of the lawful owner has been given. So
more than being a factual relationship, tenancy is also a legal
relationship. What does this mean? This means that this mixed
finding of fact and law is subject to judicial review.
In the case of Republic v Imperial, the Supreme Court ruled
that the classification of whether the land is public or not is
made by the Director of the Land Management Bureau under
the DENR. The fact is that this Director of LMB declares that
the land is public land. Of course this is within the competence
and technical expertise of the executive official, in this case the
LMB Director, and so this is a factual finding and is thus
conclusive upon the court and the latter cannot interfere with
such declaration made by the administrative officer exercising
his authority under the law within the powers given to him
under the law. The classification of public land is the duty, the
function of the LMB Director and his decision when affirmed by
the Secretary of the DENR as to this question of fact, is
conclusive and not subject to judicial review. The exception
would apply if there is arbitrariness, capriciousness, there is an
irregular proceeding, a violation of the requirements of due
process, etc. In this situation, the general rule would not apply.
The issue of whether to file the case in court or not involves
determination of the evidence, the required evidence to sustain
the filing of the case, that is probable cause. This
determination is made by the prosecutor whether of the DOJ or
the Office of Ombudsman whether there is sufficient basis,
there is probable cause that a crime has been committed and
this crime was committed by this public officer. The
determination of evidence to assess whether a prima facie
graft case exists is a question of fact. It involves the exercise of
discretion. And whenever what is being performed by the
administrative or quasi-judicial officer is an exercise of
discretion, mandamus will not lie. Mandamus may not be filed
in order to compel the official, in this case, the prosecutor, to
perform a discretionary function. But if the power being
4 Manresa
performed by this public officer is ministerial, mandamus will lie
in order to compel the officer to perform not a discretionary act
but rather a ministerial function. The matter of determining
whether there is probable cause so to warrant the filing of the
criminal case before the court involves the exercise of
discretion and so, the aggrieved parties cannot compel the
filing of the case where the prosecutor himself declares that
there is no evidence. So it is one of discretion. We know that
the exception would apply if clearly there is arbitrariness, clear
capriciousness in the exercise of this power by the public
officer.
We mentioned the general rule that factual findings are not
rd
only accorded respect but finality. One exception, the 3
exception, is where there are conflicting factual findings at
various levels of the investigation by the different
tribunals. Here is the case of Fabian v Agustin. In here,
Agustin was charged by Teresita Fabian, a contractor. They
used to be sweethearts, the petitioner is the paramour of
Agustin and because of such relationship, the petitioner
contractor was able to have lucrative contracts in the public
works but their relationship turned sour and the petitioner, the
woman, filed administrative cases against Agustin for grave
misconduct and conduct prejudicial to the best interest of the
public service, immorality, etc. and after due proceedings, the
hearing officer rendered a decision finding Agustin guilty and
imposed the penalty of dismissal from the service. Of course,
this has to be approved by the head which is Desierto and he
modified the penalty, that it was not grave misconduct, so
instead of dismissal from service, he imposed the penalty of 1
year suspension. Desierto was subsequently asked to inhibit
himself and this was assigned to a deputy Ombudsman
Guerrero and the latter subsequently dismissed the case.
When the matter was raised before the Court of Appeals, it
adopted the earlier decision of Desierto of 1 year suspension.
But later, it issued a modified decision dismissing the case
against Agustin. So at various stages there are conflicting
factual findings and so this is an exception to the rule when this
matter was elevated to the SC. The SC looked into the factual
milieu of the case because of the conflicting versions.
In the case of Matuguina Wood Products v CA, the issue is
whether or not Matuguina Wood Products, a party in this
natural resources case is the alter ego of Milagros Matuguina.
It is one of fact and this matter should be threshed out not in
court. This involves a factual issue and this should be resolved
in the natural resources case. Again, the rule here is that the
court would not interfere with such competence, with the
authority given by law to the administrative tribunal to
determine factual and technical issues. And in fact, the court
will support the decision of the administrative tribunal, it will not
interfere with the latter’s exercise of power.
In what cases may there be a review by the courts of
administrative decisions?
1. To determine the constitutionality of a law or order or
2. To determine the jurisdiction of the administrative
tribunal or
3. Or in order to determine a question of law or
4. When there’s a need to determine a question of fact
in order to determine a higher issue which may be
jurisdictional or constitutional. So in order to
determine a constitutional or jurisdictional issue or
5. The commission by the admin tribunal by abuse of
authority amounting to lack or excess of jurisdiction or
J Estrella, Gil Garcia II, Daryl Ritchie Valles
6. There has been error of law committed by the
administrative hearing officer.
Take note that under the Constitution, Article 8, Section 5, this
justifies judicial review on all the errors or decisions of
administrative bodies involving questions of law. These are
subject to judicial review. And this is based on what rule? Rule
43, Rule 45 of the Rules of Court. Rule 43 on quasi-judicial
agencies to be reviewed by the CA. Under Rule 45, petition for
review on certiorari is from the CA to the SC, not on factual
findings but on legal issues.
The principle that only questions of law shall be raised in
appeal in a petition for review on certiorari under rule 45 has
exceptions. The rule under Rule 45 that only questions of law
may be reviewed in a petition for review on certiorari from the
CA to the SC.
What are the exceptions?
1. Where the findings of the tribunal are grounded on
mere speculations, conjectures and there is no basis
at all;
2. There is contradiction between the evidence on
record and the findings of the administrative tribunal;
3. Or the inference made by the administrative authority
is manifestly mistaken, GAD has been committed;
4. Misappreciation of facts; or
5. As mentioned earlier in Fabian v Agustin, the findings
of fact are conflicting; or
6. In Section 66 of the LGC, the decision must be, valid
and legal, there must be a statement of the facts and
the law. Kung walang ganun, not even citation of
specific evidence which would be the basis of the
decision. Of course this would call for a a judicial
review;
SECTION 66. Form and Notice of Decision. - (a) The
investigation of the case shall be terminated within ninety (90)
days from the start thereof. Within thirty (30) days after the end
of the investigation, the Office of the President or the
Sanggunian concerned shall render a decision in writing
stating clearly and distinctly the facts and the reasons for such
decision. Copies of said decision shall immediately be
furnished the respondent and all interested parties.
In the case of Bernaldo v Ombudsman, Barrita Bernaldo was
charged in the Office of the Ombudsman for conduct
prejudicial to the best interest of the service and after due
proceedings, the penalty imposed by the Ombudsman finding
that she was guilty of this offense was suspension for 9
months. This decision was affirmed by the CA. The SC
decided otherwise on the ground that clearly contrary to this
disposition, there is no evidence on record to sustain such a
finding. In fact the SC ruled that the decision of the
Ombudsman was based on conjectures. The SC nullified the
decision rendered by the Ombudsman where the factual
findings are premised on supposed evidence or not supported
by evidence on record. The requirement is substantial
evidence and if this requirement is not met, this will be a basis
for the court to set aside the decision.
The basic rule we should all know that under Rule 65, factual
or evidentiary matters are not basis in a Petition for Certiorari
because the basis is grave abuse of discretion; or the act done
4 Manresa
by the administrative tribunal or officer was without or is in
excess of jurisdiction.
In the case of Alexandra Condominium Corporation, the
emission of waste matter pollution into the Laguna Lake and
this resulted in the imposition of penalties and what the
Alexandra Condominium Corporation did was to file a petition
under Rule 65.
Was this the proper remedy? No, because there must be
taking of this petition before the court, this can only be done if
there is no other plain, speedy, adequate remedy available. Is
there such a remedy here? Yes, there is. It may file an MR, an
appeal before the proper Department Secretary or before the
Department. The law created this PAB (Pollution Adjudication
Board) which is under the DENR. So the LLDA has been
placed under the DENR. The remedy of the aggrieved party is
not immediately to file a petition, Original Action for Certiorari
under Rule 65 but rather exhaust first administrative remedies.
So, dun muna sa Secretary ng DENR in his capacity as head
of the PAB. Here, the petition of the ACC cannot be given merit
because there is no showing of grave abuse committed by
LLDA and more than that, there is a remedy available to the
aggrieved party and this was not invoked or availed of by
Alexandra Condominium Corporation. So the filing of the
petition under Rule 65 will not prosper.
The doctrine of assimilation of facts which involves mixed
questions of facts and law and these are subject to judicial
review. This doctrine states that when the finding of fact is
intimately involved and dependent upon the more important
matter, a question of law, in order for the court to resolve the
higher issue which is one of law, it may look into the evidence,
the factual setting of the case. The more important matter here
which is one of law assimilates the facts under the doctrine of
assimilation of facts. Although the general rule here is, as we
have emphasized, factual findings must not only be respected
but given finality by the courts. The court will not interfere. BUT
if this fact is intimately related with the question of law, there is
a need to determine this question, how to resolve this question
of law, you have to go into the merits of the case, the factual
setting of the case, so applying this doctrine, the court is
authorized to review factual matters under this doctrine in order
to determine the more important issue which is one of law.
In the case of Lacson v PEA (Philippine Estates Authority),
(not the Lacson we know) the petitioners were officials from the
Philippine Estates Authority, deputy managers etc. but they
were not appointed by the President but nonetheless, they
were career officers. Upon order of the President, they were
the subject of investigation because of the alleged commission
of graft and corruption and after the proceedings conducted by
the PAGC (Presidential Anti-Graft Commission), the PAGC
submitted its report and recommendation to the President. The
recommendation was the dismissal of the respondents now
petitioners. This became the decision of the PEA management
by reason of the fact that this decision was approved by the
President. What is the remedy therefore of the aggrieved
parties? What the petitioners did here was to file in court this
Petition for Certiorari under Rule 65. Is this the proper remedy?
Of course, what they did first was to file a Motion for
Reconsideration which was denied. And because of this denial
of the Office of the President, they went straight to the
Supreme Court. Is this proper? The decision of the President
may be appealed to what office? To the Civil Service
Commission under Rule 43 of the Rules of Court (since this
involved the movement, i.e. dismissal of career officers). This
was not done. Rather, the petitioners, immediately filed their
petition under Rule 65 clearly violating these available
J Estrella, Gil Garcia II, Daryl Ritchie Valles
remedies given to them under the law such that when they
went to the Supreme Court, the matter, the decision already
became final and executory and thus the Court no longer has
the competence to review the decision by reason of the lapse
of the period for the petitioners in this case to take the
necessary remedy. The applicable remedy was supposed to
be before the CSC but this was not done.
So you have to verify: if the decision is rendered by the Office
of the Ombudsman, there is no need to go to the CSC. From
the Ombudsman, go to the CA under Rule 43. But if the
decision is rendered by OTHER offices, for example, any
Department in the Executive branch or even if the Office of the
President has rendered such a decision, what is the remedy?
The remedy under Rule 43 is from the Department Secretary
or from the Office of the President to the CSC. Is there any
other remedy from the CSC? YES. To the Court. From the
CSC to the Court of Appeals. And from the CA to the Supreme
Court under Rule 45. Here, clearly, this remedy was not
availed of by the aggrieved parties, the petitioners. So, from
the decision of the CSC it can be elevated to the CA under
Rule 43 Petition for Review and from the CSC, it can be further
appealed to the SC through a Petition for Review on Certiorari
under Rule 45.
You should know these. The differences between a Rule 45
Petition and a Rule 65 Petition whenever the administrative
tribunal has rendered a decision, of course, Rule 43 and Rule
45 this has to be distinguished from Rule 65.
Rule 65 is an original action whereas Rule 45 is not an original
action. Rule 65 is a Petition dwelling on jurisdictional errors,
whether there has been commission of GAD whereas a Rule
45 Petition is not an original action, it is a mode of appeal,
centering on the review of the judgment or order or decision or
award rendered by the tribunal involving, as a general rule, a
question of law, unless it involves mixed question of fact and
law (assimilation doctrine) or there is error committed.
MCQ
In judicial review of administrative decisions:
A. Courts can examine the sufficiency of evidence and
are authorized to receive additional evidence not
submitted earlier. Tama or mali? Parang di kayo sure
sa inyong answer. True or false? FALSE! Very good!
(HAHA) Parang tayong nasa kinder. :P
C. Letter C muna. (Kay B man ang answer.) Factual Findings
are accorded not only respect but finality binding on the court
so long as supported by preponderance of evidence. Is this
statement true? FALSE. Why? Substantial evidence. Simple
lang.
D. Errors on decisions of administrative bodies may be
questioned in a Petition for Certiorari under Rule 65. False.
Why? Errors yan. So, under Rule? 45, yes! Susmaryosep.
B. The correct answer is B: Trial de novo is not contemplated.
Take note, there’s this distinction: review of administrative
decision to a higher administrative authority v review of
administrative decision to a judicial body. In the first instance,
pwede yan trial de novo. Meaning, pag–iakyat mo yan sa
administrative agency pwede mag-conduct ng panibagong
trial, new evidence may be submitted. Pag-dating sa korte,
wala nang ganun. No trial de novo because the review
conducted by the court is limited to evidence earlier submitted
earlier before the administrative tribunal. There is already
opportunity granted so pag-dating sa korte, di na factual, but
4 Manresa
purely question of law or under Rule 65 pag may grave abuse
na.
The rule here is administrative authorities do not have the
inherent power to grant criminal and civil immunities to
persons. The exception, first, there must be conferment of this
power to grant immunity or the administrative tribunal (you
know this power is inherent in courts, but not in administrative
tribunals), unless there is authority or express provision of law
conferring the power to the administrative tribunal to grant
immunity from criminal and civil suits. Example of such body:
the PCGG (Presidential Commission on Good Government)
under AO 1 up to 14-A. 14-A because this law grants immunity
from criminal prosecution to any person who testifies in any
conduct of investigation made by the PCGG in the matter of
the alleged ill-gotten acquisitions by the Marcoses, cronies or
associates.
The law, AO 14-A clearly mentions the power of the PCGG to
grant immunity from criminal prosecution. This has been asked
(in the bar). What about the authority of the PCGG to grant
immunity from civil prosecution? Yes, although there is no such
express provision under the AOs, under the law of PCGG,
what applies is the general law, the Civil Code under Article
2028 referring to the amicable settlement in civil cases which
rule is also applicable to cases of the PCGG.
Another law, RA 6770, the Ombudsman Act particularly
Section 17 which confers authority to the Ombudsman to grant
immunity from criminal prosecution to any person who is
essential to the successful prosecution of the case the
Ombudsman may file against any public officer. Of course
there are conditions which you ought to know before the grant
of this immunity.
What is the three-fold responsibility of public officers? Very
easy. Civil, criminal and administrative. These remedies exist
independently of the other. One is not dependent upon the
other. Whenever there is a conclusion reached in one remedy,
it will not be res judicata on the other. A public official may be
held civilly, criminally, and administratively liable for any
violation of duty or the wrongful act or omission of such public
officer. These remedies may be invoked separately,
simultaneously, alternately or successively. Meaning, the
general rule is, administrative cases are independent from
criminal cases.
Is there an exception? Yes, if the law itself prescribes that
there should be prior administrative determination before a
criminal action may be resorted to. But the general rule, in the
absence of such provision of rule, the GR here is that
administrative cases are independent from criminal cases and
vice-versa.
Exceptions where the law itself declares the need for prior final
administrative determination: In prosecution of unfair labor
practice under the Labor Code. No criminal prosecution for
ULP can be filed without first making a determination in the
administrative proceeding. There must be a final judgment in a
previous administrative proceeding. But in the absence of such
law, paminsan-minsan lang yan, hiwalay talaga yan.
In the case of Chua v Ang, where the petitioner filed a criminal
case against the developer of a real estate because of violation
of PD 957 as amended by PD 1344, what is this law all about?
Yung the competence of the HLURB, unsound real estate
business practices, failure of the contractor to provide for the
basic necessities. There was failure here on the part of the
developer to construct and deliver to the petitioner the
condominium unit. So, there was this supposed violation
criminal in nature and the petitioner filed the case before the
J Estrella, Gil Garcia II, Daryl Ritchie Valles
prosecutor’s office. But what the prosecutor’s office did was to
dismiss the criminal on the ground that there should be prior
determination, there should be a finding of administrative
liability before the criminal case may be allowed.
Is this correct? No. because the law, PD 957 as amended by
PD 1344 never mentions any mode of this nature that there
should be prior administrative determination. And so clearly,
the city prosecutor was wrong. There is no law requiring that
there should be prior administrative determination for the
criminal suit to prosper. Where the law is silent on this matter,
what should be adopted? The fundamental rule that is that the
administrative case is independent form the criminal action.
This was already asked in the bar: Hierarchy of quantum of
evidence. Of course the highest is criminal case: proof of guilt
beyond reasonable doubt. Followed by clear and convincing
evidence; next in line is preponderance of evidence and lastly,
the lowest: substantial evidence in administrative cases.
In the case of Gatchalian Talents Pool v Mendoza, wag sana
kayon gumaya kay Atty. Mendoza. Atty. Mendoza, a lawyer
defrauded this Gatchalian Talents Pool. GTP was the losing
party in a POEA case but there was lack of full disclosure of
Atty. Mendoza declaring that there is still an appeal to be taken
from the decision rendered by the POEA. And so for this
purpose, Atty. Mendoza asked the amount of $2,555.00 as the
supposed bond for the filing of the petition. But actually the
decision already became final and so he pocketed the amount.
And so the client filed a disbarment case against Mendoza
which is administrative in nature as well as a criminal case for
estafa. But unfortunately, the trial court dismissed the criminal
case for estafa filed against Mendoza. And because of the
dismissal, Mendoza argued that the administrative case should
also be dismissed because of the dismissal of the case.
Is this contention correct? Of course not. A criminal
prosecution will not constitute a prejudicial question even if the
same facts are attendant in the administrative proceedings.
Regardless of the results in either case, it will not have any
bearing on the other because of the different requirements of
evidence, the quantum of evidence is different in administrative
cases and different likewise in criminal cases. It simply means
that if the criminal case is dismissed, the requirement proof of
guilt beyond reasonable doubt has not been established.
Whereas we have the lower kind of evidence in administrative
cases, the required evidence is simply substantial evidence.
In the case of Ocampo v Ombudsman, Ocampo, an
employee of the National Irrigation Authority who received the
amount of $9,600.00 as training fee but he did not remit this
amount to the agency so he malversed this amount so
administrative cases as well as criminal cases for falsification
and estafa were filed against him before the regular courts and
administrative cases before the Ombudsman for dishonesty,
grave misconduct. And again the criminal case was dismissed
by the court. Does this mean that the Ombudsman has to
dismiss the administrative case? In fact here, he was
dismissed by the Ombudsman he went to the Court and
alleged that because of the dismissal of the criminal case, the
administrative case should likewise be dismissed. Of course
the requirements are different in those cases. In the criminal
case, it simply means that there is absence of proof beyond
reasonable doubt but it does not mean that there is no more
evidence to pin down the respondent.
In criminal cases, you have prescription of offenses. The RPC
provides for that. Is there such a similar concept in
administrative law? In administrative law, administrative cases
do not prescribe.
4 Manresa
The case of Guiang (?) v Sunga, Guiang a woman
government employee in the court of appeals was
administratively charged because she had an illicit affair with a
co-employee of the court of appeals. She argued that she
should not anymore be sanctioned because this was a thing of
the past. Tapos na yan. Matagal na, years back. But
nonetheless, the courts here took cognizance of this case
stating that administrative offenses did not prescribe. The
stigma of this immorality still attaches. Here the SC instead of
imposing a more serious penalty simply imposed the fine of
10T against her. Administrative offenses do not prescribe.
In the case of Dr. Melendres, Executive Director of the Lung
Centre v Pasig, it is possible, take note, that the criminal
cases are filed in another administrative tribunal whereas the
administrative charges are in a different tribunal. For example,
in this case, the administrative charges against Dr. Melendres
were filed before the PAGC under the Office of the president
whereas the criminal cases were filed before the Office of the
Ombudsman. Here, the SC ruled that the dismissal of these
criminal cases either by the Sandiganbayan or the
Ombudsman will not result in the dismissal of the
administrative case in the absolution or acquittal of the
petitioner from the administrative charges filed against him
before the PAGC. He was sanctioned by the PAGC.
There may be a provision of law giving the power to the
administrative tribunal not to investigate anymore the
administrative offense but take note in the light of what we
mentioned earlier that administrative offenses do not prescribe,
such provision as provided by law simply refers to the
discretion exercised by the administrative authority
whether or not to still proceed with the investigation, to
pursue the administrative charge. So a matter of discretion.
Under Sec 20 of the Ombudsman Act, the Ombudsman may
no longer conduct the necessary investigation of an act
complained of if the complaint was filed after or more than the
year from the occurrence of the act complained of. It does not
mean that under this provision, the ombudsman is duty bound
NOT to investigate anymore. It is an exercise of sound
judgment, discretion on the part of the Ombudsman whether to
conduct the investigation. It may do so even after the lapse of
so many years. More than 1 year. That is at the option of the
Ombudsman. This provision is not mandatory but rather
directory, an exercise of discretion on the part of the
Ombudsman, whether to still proceed with the investigation. It
has nothing to do with prescription of offenses.
A good illustration of what we have mentioned a while ago is
the case of Ombudsman v De Sahagun. Sahagun in his
capacity as the chair of the Bids and Awards Committee of the
Intramuros Administration, a government entity. This has
relation to the giving of a award without public bidding of a
video event. Etong public bidding, required sa Procurement
Act. But this was not complied with. So, this guy with the other
members of the bids and awards committee were charged.
Take note here, the alleged act constituting the administrative
offense or even the criminal case happened in 1992 and it was
only in 1996 that this complaint, anonymous at that, was filed
before the Ombudsman against De Sahagun. What is the
effect of such filing of an anonymous complaint? It only
commences the fact finding investigation. It is not yet the
formal investigation. It was only in September of 2000 that the
fact finding investigation Bureau of the Ombudsman issued this
report and information for the filing of formal charges against
De Sahagun et al. That was more than 7 years after the
commission and it was only after a few years that the
administrative proceeding was promulgated and the decision
rendered against De Sahagun adverse to them. Clearly here
J Estrella, Gil Garcia II, Daryl Ritchie Valles
there was a long lapse of time from the appealing of the act
complained of to the investigation not yet even formal to the
disposition of the administrative case. Here, there is NO
prescription.
What is the reason of the non-application of the prescription
concept? Because the object of administrative proceedings is
not the punishment of the public official but rather the need to
preserve the integrity of the public service, the improvement of
public service and the need to preserve the public face and
confidence in the bureaucracy. Unlike in criminal cases,
because the liability there is directly applied on the public
officer like imprisonment and the accessory penalties.
What is the effect on an administrative case upon the
happening of an event subsequent to the filing of the
administrative charge against the public officer? Let us say,
after such filing, namatay yung respondent or he was able to
retire. So does it mean that the case should already be
dismissed by reason of the fact that he is no longer in
government service? No. The rule here is the death or
retirement of the public officer from service does not prevent
the finding of administrative liability and the imposition of the
proper penalty because he is answerable to all such offense.
We have mentioned so many times, jurisdiction over the
administrative complaint is acquired at the time of the filing,
upon taking cognizance by the administrative complaint, upon
filing of the complaint and this is not lost because of
subsequent events such as the death or retirement during the
pendency of the administrative case. Here, the administrative
tribunal continues to retain jurisdiction in order to pronounce
the respondent either guilty if there is evidence or the need to
vindicate his name to acquit him in the administrative case.
In the case of Ombudsman v Deputy Director (Andutan) (?)
the one stop shop of the Department of Finance. What
happened here was that before the filing of the charges against
Andutan et al, they were officers of a Bureau under the
Department of Finance. A memorandum was issued by
Executive Secretary Zamora for them to enter their resignation.
They were not career officers. They complied. It was only when
they were no longer in service that they were charged
criminally and administratively. This pertains to alleged illegal
transfer of tax credit certificates, tax scam cases. The
prevailing doctrine is that the administrative authority or
jurisdiction can no longer be exercised by the administrative
tribunal, in this case, the Ombudsman, if the public officer is
already separated from the service prior to the filing of the
charge. Take note, PRIOR to the filing of the case. The general
rule, dapat mauna yung separation mo. If so, as a rule, you
can no longer be administratively charged. The rule would be
different if kinasuhan ka and subsequently you separate
yourself from the public service. That is a different scenario.
Here, in the case of Andutan, what happened here was that
the respondents Andutan et al were no longer connected with
the government service at the time the administrative and
criminal cases were filed. Of course, the criminal case will
subsist and may prosper. What about the administrative
cases? Depende. If at the time of the filing you are no longer
with the government service, the administrative case will no
longer prosper. But that is the general rule. There is also an
exception to that rule. On the other hand if the separation from
the service came after the filing of course the rule here is the
administrative tribunal continues to acquire jurisdiction and has
to decide the case.
Exception: Bacano (?) v Nasap. Etong si Ester Bacano was
the cashier of the Provincial Treasurer’s Office in the province
4 Manresa
of Benguet and she was involved in this shortage upon audit.
She was found to have a shortage in here accountabilities of
more than 1.4 million and she was ordered to explain why not
formal charge should be filed against her. But 4 days PRIOR to
the issuance of said notice for her to explain, she filed her
certificate of candidacy! What is the effect of the filing a
certificate of candidacy under Section 66 of the OEC?
Automatically resigned ka na. Sabi nya, Yehey! Wala na ako
from service! The exception here is if it was done in bad faith;
if the separation was made in bad faith. Clearly in this case,
there was bad faith because she anticipated the filing of formal
charges against her. That was a precursor that the filing of this
requirement, explained why she should not be formally
charged, that is the procedure in the civil service law, the need
for the conduct of a preliminary investigation in order to
determine a prima facie case before a formal charge may be
issued. So she anticipated this. So the exception is when the
public offer resigned in BAD FAITH or the resignation was
done in anticipation of the filing of charges against her. This
case is the exception to the rule.
Now, in so many cases especially those coming from the
autonomous region of Muslim Mindanao (ARMM) magfafile sila
ng kaso, then subsequently they issue an affidavit of
desistance or the withdrawal of the complaint. What does this
mean? Does this have any effect on the charge?
The withdrawal of the complaint or the desistance by the party
complainant will NOT automatically result in the dismissal of
the administrative case because the rule here is if you file an
administrative case, the State has a higher stake in this
charge. You are merely an informant, a witness because the
objective here is to preserve the integrity of the public service.
This rule applies if there is sufficient evidence to justify or to
support the charge. But of course, the rule would be different if
it is only through the testimony of the complainant that the case
may prosper and therefore the tribunal will no longer have an
option except to dismiss. But the general rule is even if you
execute an affidavit of desistance, it does not mean that the
case you filed will already be dismissed. The reason here is
that the tribunal has an interest apart from the complainant.
This tribunal represents the State, perhaps through the COA or
the Office of the Ombudsman, to determine the truth and to
determine the proper imposition of sanctions against the
employee including the accessory penalties of forfeiture of
benefits, retirement benefits and perpetual disqualification.
This is important. Even if the public officer is no longer in
service, the tribunal may impose perpetual disqualification to
hold public office.
What is the rule on anonymous complaints?
It will not justify the outright dismissal of this complaint where
the allegations of this anonymous complaint can be verified
and established by competent evidence. Of course we have
mentioned so many times that it triggers the fact finding
investigation if there is such evidence, if there are sufficient
leads.
What is the doctrine of forgiveness or condonation?
This applies only to ELECTIVE officials. It simply means that
the elective official can no longer be subject to disciplinary
action for prior misconduct or any act or offense committed
during a prior term. Why? Because the two terms are NOT a
continuation. The succeeding term is not a continuation of the
prior term of office. It is a separate term. If you commit or
violate a law and you are answerable administratively, the
State no longer has the power to sanction you administratively
by reason of the lapse of the term of office as provided under
J Estrella, Gil Garcia II, Daryl Ritchie Valles
the law. The reason here is if this guy is again re-elected gaya
ng nangyayari sa bayan natin, the bad guys always get re-
elected, and so this simply means that the doctrine of
forgiveness also known as the Aguinaldo doctrine, the doctrine
of condonation, applies. And kasalanan ng tao eh. Pinatawad
na xa nga taong bayan by electing him to public office. In the
other hand, if he does not get re-elected, penalty na yan. He
has been sanctioned by the people by not electing him to
public office. Take note, this is NOT applicable to appointive
officers but rather to elective officials seeking re-election.
In Garcia v Mojica, the case here of Garcia of Cebu. A few
days before the election is that the Mayor of Cebu entered into
a contract negotiated without public bidding in violation of the
Anti-Graft and Corrupt Practices act, and of course, an act or
omission of a public officer gives rise to administrative and
criminal liabilities. And so, charges were filed, administrative
and criminal. Sabi ng Supreme Court, only the criminal case
will prosper or will be looked into but not the administrative
case because of expiration of the term. 4 days before the end
of the term of Mayor Garcia, entered illegally into these
negotiated agreements and his term expired thereafter.
In the case of Ombusdman v Maricar Torres, this Maricar
Torres was the executive assistant of her father. Her father
was a councilor in Malabon City. And so during her tenure as
such assistant of her father councilor, she was charged
allegedly for falsifying her daily time records before the Office
of the Ombudsman. She claimed that since she ran for elective
office as councilor, and she won, and so applying this doctrine,
she should no longer be administratively charged nor
sanctioned. Is this contention proper? NO. Because she was
an appointive officer, NOT an elective officer so the doctrine
cannot benefit the appointive officer seeking elective office. But
nonetheless, the Ombudsman still dismissed the administrative
case because of the failure to produce the daily time records
by the complainant.
Same principle was applied in the case of Salumbides (?) v
Ombudsman, the condonation by the electorate of the prior
administrative infractions. Violations committed by the re-
elected official cannot be extended to re-appointed con-
terminus employees. Whenever the term of office of an elective
official ends, together with the expiration of his term, the other
appointive employees who were appointed on the basis of
confidence, are also terminated. Co-terminus yan. So they
have no more business in office. Pag ma-tapos na yung
termino ng superior nyang elective official, the other co-
terminus elective officers likewise have to end their term. And
so because of such fact, they claim that they should no longer
be sanctioned. Of course this principle is NOT applicable to
appointive officers more so these co-terminus appointive
officials. There is here no violation of the condonation doctrine.
Moreover, is this a violation of the equal protection of the law?
Kasi if ganun sa elective official, dapat din ganun ang principle
sa appointive officials. Right to equal protection? The situation
is totally different because in the case of elective officials, they
have the mandate of the people electing them. There is no
disenfranchisement of the electorate in the case of appointive
co-terminus employees. They cannot claim that they have the
mandate of the electorate unlike the elective officials.
Otherwise, if the rule would be different, lahat na lang, wala
nang makasuhan.
JULY 16
The civil service law as well as the revised administrative code
it provides that appeals shall be made by the party adversely
affected by the decision. In the earlier ruling of the court in
4 Manresa
Paredes vs CSC, the SC ruled that the aggrieved party who
has the right to appeal the decision is the government officer.
The issue here is whether or not an appeal may still be taken
from a decision extenuating the respondent more so on
appeal. Take note that section 39 should be read in relation to
section 37. Section 37 of PD 87 provides that the Commission
shall have appellate authority over all administrative and
disciplinary cases. So the remedy of the aggrieved party is
from the decision of the department and to the civil service
commission and from the decision the civil service commission
to the court of appeals. So under section 37 the civil service
commission decides on appeal on disciplinary cases involving
the imposition of a penalty suspending the officer for more than
30 days or a fine in amount not exceeding 30 day salary or
their penalty is demotion or dismissal of such employee from
the public service.
Take note. In all other cases, meaning if the decision imposes
the penalty of suspension of 30 days or less or even the
imposition of a fine equivalent to a salary of 1 month or less the
law provides that such a decision is already final and executor.
But in all these cases where appeal is allowed, it should be
lodged before the civil service commission. In the case of civil
service commission vs. dacoycoy where the CSC in the
administrative case against school administrator dacoycoy
imposed, after due proceedings, the penalty of dismissal from
the service or violation of the ______ rule against dacoycoy.
Here, the aggrieved party went to the court of appeals, where it
reversed the judgment rendered by the CSC. The SC ruled
that the aggrieved party here is certainly the CSC because
under the Constitution, it has the mandate to uphold the
integrity of the CS system. The aggrieved party here cannot be
the respondent because precisely on appeal, he was
exonerated by the Court of Appeals. Because of this ruling, the
SC abandoned its earlier rulings that the CS Law as well as the
Revised Administrative Code does not _____ review on the
decisions exonerating public officials from administrative
charges.
The decision of the CSC may still be the subject of appeal
under Rule 43, Petition for review. In the case of OMB vs City
Treasurer Samaniego, the Court of Appeals on the motion of
the OMB to intervene in a case. Theres an earlier
administrative case decided against a government officer CT
Samaniego. The SC ruled that the OMB is the aggrieved party
it has clear legal interest to intervene in the petition for review
on certiorari brought out before the court under Rule 43.
If you recall, we have discussed the concept of res judicata.
This may apply in cases where there is already an existence of
litis pendentia or by reason of the fact that a decision has
already been rendered in one forum and that the same cause
is now being raised before another forum in order to obtain a
different ruling. The rule, of course, is that the decision of the
administrative agency upon the finality of such decision has a
binding effect of a final judgment within the ambit of the res
judicata principle.
So what are the exceptions to this rule, this res judicata may
not apply? Of course when there are: (1) supervening events
making it imperative to modify a final judgment to harmonize it
with prevailing circumstances. For example the decision is not
__________ with the evidence on record. (2) the application of
this principle would mean sacrificing justice to technicality or
(3) the parties themselves waived this principle or do not timely
raise this as a matter of defense and (4) in the case of
citizenship where this issue is raised by the party.
Lets discuss some of the more important administrative
organizations of government.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
The Philippine National Police. The basis for the creation of the
PNP is article 16 section 6 of the constitution. ―the state shall
establish and maintain one police force, national in scope and
civilian in character to be administered and controlled by the
national police commission. The authority of local executives
over the police units in their jurisdiction shall be provided by
law.‖
So what is, therefore, the authority of the local chief
executives? Of course in the news lately is… our own mayor in
light of what happened here in claveria. Is it within the authority
of the local chief executive? Yes. Because under the law RA
8551, the local chief executive exercises operational control
and supervision of units and elements of the PNP. So what
does this mean the authority of the local chief executive is one
of operational control and supervision? It is the power of the
local chief executive to employ and deploy the elements of
police, in police functions such as crime prevention, traffic
control and police investigation.
In what instances may there be no control by the local chief
executive? 30 days prior and 30 days after the election. So that
is the exception to the rule. The rule here is the authority of this
local chief executive is one of operational control and
supervision. The power of the mayor to deploy the police
resources.
So what are the authority of the NAPOLCOM? It is one of
administrative control and supervision which is different from
operational control and supervision. In the bar, the question
asked was about the function given to the armed forces of the
Philippines to act as the protector of the people. Now is this
mandate equally applicable to the PNP? Take note under this
law RA 8551, the ________ under which the PNP has been
attached is only given a supporting role. The main role in
matters pertaining to the suppression of insurgency belongs to
the armed forces of the Philippines. The authority of the PNP is
information gathering and police investigation but nonetheless
the exception here is on the basis of the order of the chief
executive, the president of the Philippines calling on the PNP
to play a supporting role to AFP in combat operations in
matters pertaining to insurgency.
In the law, RA 8551, it provides for the creation of the People’s
Law Enforcement Board. It has the power to take cognizance
of citizen’s complaints. Here, the authority of the PLEB in
administrative cases against members of the PNP after due
proceedings. The board has the power to dismiss or suspend
the members of the PNP. This authority is concurrent with the
authority of the PNP chief and the regional directors of the
PNP. So it’s a case of concurrent jurisdiction over
administrative cases involving the members of the PNP.
Take note of this creation this national appellate board and
regional appellate board which are both appellate machineries
belonging to the NAPOLCOM. So it is erroneous to make
appeal from the NAP or the RAB to the NAPOLCOM because
the NAP and the RAB are the appellate machineries of the
NAPOLCOM itself. So what should be the remedy from a
decision rendered by PLEB? Under the law, the decision of the
PLEB the basis of which is the citizen’s complaint, shall be
appealable to the RAB, whereas the decision the chief of the
PNP is appealable to the NAB and from such board an appeal
may be taken to the Secretary of the Department of the Interior
and Local Government and not the NAPOLCOM. Because
these courts are part of the integral machineries of the
NAPOLCOM. From the decision of the Secretary of the DILG,
where should it be taken? Of course applying again the
principle of the doctrine of exhaustion of administrative
remedies, the appeal may be further taken to the CSC, in
4 Manresa
accordance with the provisions of the CS Law and Revised
Administrative Code.
Let me mention that prior to the 87 Constitution, you know that
then integrated national police were not subject to the civil
courts. Other words there was fusion of the AFP and the
Integrated National Police or Municipal Constabulary such that
offenses, crimes committed by the officers of the then
Integrated National Police were not brought before the Civil
Courts but rather on the basis of the provisions of CA 408 the
court marshal law. Court marshal is not part of our judicial
system, it is part of the executive branch of government. And
so because of the 87 Constitution there is delineation now. The
members of the PNP are civilian and therefore whenever they
are involved in cases in violation of the revised penal code or
special penal laws, they shall be brought not before the courts
marshal but before the regular courts. So courts marshal are
not judicial courts but are instrumentalities of the executive
branch government.
What about the authority to appoint the local chief of police? In
our case, Dela Rosa. Who has the power to appoint the police
chief, city or provincial police chief? The authority of course is
vested under the law the local chief executive but nonetheless
such authority is limited in a sense that he must rely on the list
submitted to him by the regional police director. The regional
police director has the authority to name the 5 eligibles for the
position of city police chief. In the case of the appointment to
the regional police chief, the regional police director has to
submit 3 names and these shall be from the pool of eligible
officers also screened by the senior officers of the _________
and selection board in camp crame. So the authority here is to
select one or among the list.
In the case of Dayap vs RTC, the mayor of Cebu filed a case in
court to compel the inclusion of Inspector Andres Sarmiento for
him to appoint as police chief. The SC ruled that the authority
of the mayor is limited. He has to select from among the
names submitted to him by the regional police director. So the
regional police director cannot be compelled to include a name
because that involves the exercise of discretion on the part of
the police director.
What is the law applicable to the Armed Forces of the
Philippines? You have RA 7055. An act strengthening civilian
supremacy over military by returning to civil courts the
jurisdiction over certain offenses involving not only AFP
members, but also CAFGU. What is the CAFGU? Citizen
Armed Force Geographical Unit. Yes. Anybody is a CAFGU
here? So the AFP as well as the members of the CAFGU are
subject to this law. The need to return _______ … the authority
to try certain offenses involving the members of the AFP. What
is the rule? There is in fact a delegation of the authority here
between the court marshal under CA 408 pertaining to office-
connected (service-connected siguro) offenses committed by
the members of the armed forces as well as offenses
committed under the RPC and special penal laws. So the
General Rule here is that these officers, AFP and other
individuals subject to military law committing crimes penalized
under the RPC, special criminal laws or even local ordinances
are to be tried by the proper civil court.
What is the exception to this rule? The exception here if there
is determination before arraignment by the court that the
offense committed by the AFP member is service-connected.
When do we say that the offense is service-connected? When
it is any of the offenses mentioned in the articles of war (CA
408). So where the civil court makes a determination before
arraignment of the accused member of the AFP that the
J Estrella, Gil Garcia II, Daryl Ritchie Valles
offense is service-connected, then the offender should be filed
to the court marshal.
Exception to the exception. Again before arraignment, the
president, in the interest of justice, directs that such a crime be
tried by the proper civil court.
What are these service-connected offenses? These are
defined and enumerated in the Articles of War CA 408.
Violations of this Articles are triable by the court marshal. So
there is here a distinction, delineation of jurisdiction between
the military court and the civil court over cases involving
military officers or personnel. The reason for this delineation is
the need to achieve the highest form of discipline in order to
insure the highest degree of military efficiency.
So in the case of Gonzales vs Abaya, where the petitioners
were charged with coup de etat. Now there was in fact an
order issued by the RTC, that handled the cases filed against
petitioners, to the effect that the charges filed against them in
court, the court marshal are not service connected and
therefore they are absorbed(?) in the crime of coup de etat and
therefore these offenses should be tried by the RTC. The SC
ruled that such an order is null and void. Here the petitioners
were charged in connection with the act committed, coup de
etat, under the RPC and this in fact is a violation of article 96 of
the Articles of War. The violation of their solemn oath to defend
the constitution and the duly constituted authorities. That’s
putting the suspect to the military institution which clearly is
service connected.
Is it possible for the military officer to be tried before both the
court marshal and the civil court? Yes, if it is being charged
before the civil court for violation of any of the crimes under
the revised penal code such as coup de etat and such an
offense is also service-connected, a violation of the articles of
war. Take note that the court marshal has to its objective the
dismissal of the military officer from the service.
The OSG, the creation of this agency, this office of government
is under PD 478 as well as Book 4 of the Revised
Administrative Code EO 292.
The mandate given under the law to the SG is that he acts as
the lawyer of the government authorities or agencies including
government owned and controlled corporations with or without
a charter and officials. So here he represents the public officer
in all proceedings whether civil, criminal or administrative.
Such proceedings ought to arise from the discharge of official
functions by the public officer. So the rule here is any action
taken or initiated in the name the republic of the Philippines or
any of its instrumentalities or agencies should be done by the
SG otherwise there is basis for the summary dismissal of such
petition filed without the participation of intervention of the SG.
So remember the petition is filed in the name of the Republic or
any of its intrumentalities, it should be initiated, should be filed
with the office of the SG.
What are the exceptions to this rule? Of course we mentioned
earlier that the OSG is the lawyer of government offices and it
is possible that there may be conflict involving 2 or more
government offices. One government office takes a position
contrary to the position taken by the other. So the SG has to
take a side. Such position taken in favor of one government
office may be adverse to another. So that is one exception. (1)
when the government office is adversely affected by the
adverse position taken by the OSG. If you recall the case of
Orbos vs CSC, in the matter of the organization effected by
petitioner Orbos in his capacity as Secretary of the Department
of Transportation and Communication during the time of
Corazon Aquino. Here there was an order issued by the CSC
4 Manresa
for the appointment of these employees who invested the
appointments issued by Orbos. The OSG took the side of the
DOTC and the position is certainly adverse to the CSC. So if
the government office still believes in the merits of its case that
its position is not the same position taken by the OSG it has to
represent itself through its in-house lawyers.
Second exception on the basis of the provision of law, (2)
where the authority is given under the law for the SG to
deputize legal counsels to government offices to represent him
in the cases involving their respective offices. Under Section
35 of Book 4 of the Revised Administrative Code.
I mentioned a while ago that the SG may represent a public
officer in these proceedings, some proceedings arise from the
officers acts in his official capacity. What is the exception? (1) if
the public officer is being charged criminally. Certainly the SG
cannot represent the public officer because the state can never
be author of a wrongful act. (2) the SG cannot represent the
public officer in civil cases for damages arising from the
commission of felonies. Because any judgment rendered
against the public officer, say monetary board, is adjudged
against the respondent public officer, it is the sole liability of the
public officer and not the government or any of its agencies. So
here in this cases, the SG cannot represent the public officer.
In Dir. Pascual vs Judge Beltran, a suit was filed, a civil suit for
damages was filed by employee Raymundo against her boss,
the Regional Director of the Telecommunication office,
TELECOM. She made mention in the suit the fact that Pascual
is the TELECOM director, is in itself sufficient basis to
transform the case as one filed against the public officer in his
official capacity. Clearly there is no basis here for the OSG to
represent Dir. Pascual in this suit for damages filed by
Raymundo before the Regional Trial Court. So it does not
transform the action into one filed against a public officer in his
official capacity.
In Urbano vs Chavez, in the matter of the institution of a graft
charge against SG Chavez. At the time of Corazon Aquino,
Chavez was represented by OSG. The SC ruled that in no
case may the OSG represent the public officer charged with
the commission of graft before any tribunal or court. In the
same manner in the case of CO vs Chavez where a civil suit
for damages was filed because of alleged defamation
committed by Chavez in an interview with the Business World
and made insinuations against the petitioner CO. The SC ruled
that the OSG cannot represent Chavez in this case against
him.
I mentioned a while ago that many petitions filed in behalf of
the Rp of the Phils. there should be intervention by OSG. We
have here the case of Republic vs Desierto as an exception to
this rule. What happened here was that the PCGG had filed
cases against Coguangco et al before the office of the OMB
and subsequently the OMB dismissed the cases filed by the
PCGG. PCGG was not satisfied, they felt that there was
arbitrariness committed by the OMB dismissing the case filed
against Coguangco. PCGG filed a petition under Rule 65 for
certiorari. In such petition on behalf of the Republic should
have been lodged by the office of the OSG, but nonetheless
here the SC adopted liberality because according the SC
whatever defect in the filing of this petition without the
intervention of the SG was cured when in the Consolidated
Reply the OSG signed as co-counsel for the Republic of the
Philippines. So there was ratification of whatever defect that
occurred in the filing of the petition.
Under the Constitution, the OMB has the authority to act
promptly on complaint filed in any manner against any public
J Estrella, Gil Garcia II, Daryl Ritchie Valles
officer when such act or omission appears to be illegal,
improper or unjust. So broad. So the OMB is given the
authority to act as protector of the people so it must take
cognizance of any complaint filed from any Citizen against any
action or inaction of the public officer.
In Tatad vs Sandiganbayan, in the matter of alleged undue
delay in the disposition _____ then followed by the
predecessor of the OMB when the case was filed for failure on
the part of Tatad to comply with the requirements under the
law _____ (ambot). Here the SC ruled that gross violation of
Tatad’s right to due process and the right to speedy disposition
of cases. The cases were before the Sandiganbayan were
ordered dismissed by the SC.
Same case in Angchangco vs OMB, you here the deputy
sheriff, despite several follow-ups, took 6 years for the OMB to
decide. Then the case was finally decided before the
Sandiganbayan. The SC ordered the dismissal because there
was violation by OMB of the right to speedy disposition of
cases.
If you recall one important principle that there is no prescription
of administrative offenses and so here the case of OMB vs
Jurado, where there was the filing of administrative charges
against an employee of customs for an act committed in 1992
but it was only year after that a formal complaint was initiated
by the fact finding bureau. Between 1992 and 1997, there was
a conduct of fact finding investigation. It was only in 1997 that
he was formally charged and ordered to submit his answer. It
was only in 1999 that a decision adversely was rendered
imposing the penalty of 6 month suspension. Was there
violation of due process? The SC ruled, No. No violation of due
process because in the interim from the time of the occurrence
in 1992 up to the time of the supposed filing of the admin case
against him in 1997, he was not yet subjected into formal
investigation. What happened was that the OMB was still
conducting a fact finding investigation.
The process of fact finding investigation, the public officer is
not yet considered a respondent. He is merely a subject of
investigation.
The authority over all kinds of malfeasance, misfeasance and
nonfeasance committed by any public officer during his tenure
of office is clear in the case of Uy vs OMB. Because in the
early ruling of the SC this case was that the authority of the
OMB was only to investigate administrative cases before
sandiganbayan. The authority as provided under the
Constitution is disciplinary is quite absolute. And so it is
empowered to conduct investigation and prosecute all kinds of
criminal cases involving public officers and employees not only
those within the authority of the sandiganbayan but also those
within the competence of the regular courts, whether MTC or
RTC, whether office related or non office related. But there are
rules pertaining to the handling of cases by the DOJ and the
OMB.
Is there a conflict here between the powers, authorities vested
under the law to the DOJ and the OMB? No. Because they
both have concurrent jurisdiction. This power of the OMB is
shared with the DOJ. Recall the case of Sanchez vs Demetrio.
The mayor was the charged with ______ in the bidding. The
municipal mayor claim that I am the municipal mayor and the
OMB should be investigating me, not DOJ. The SC ruled that
this case is of concurrent jurisdiction. More so, you don’t have
to be a public officer to commit these crimes.
In the case of Honasan vs DOJ Panel, again Honasan at the
time was charge with coup de etat under the RPC and was
investigated by special panel created by the DOJ Secretary.
4 Manresa
He claimed that he is a high ranking officer with salary grade
31 and therefore it should be the OMB not the DOJ. _______ .
Under the law, it should be the OMB that takes primary
authority over cases cognizable by the Sandiganbayan. The
DOJ could not be prevented from conducting the preliminary
investigation even if the case falls under the exclusive authority
of the Sandiganbayan. The authority of the OMB is primary.
Meaning, the OMB in the exercise of its primary jurisdiction,
may take over the investigation at any stage.
In the case of Orcullo vs Gervacio, Davao City case. Councilor
Nenita Orcullo was charged by a certain _______ for unpaid
wages. According to Morales, the complainant, this constitutes
a violation of anti-graft and corrupt practices act because of the
failure to pay the salaries. The SC ruled, a money claim
against a public officer is within the authority of the court and
not the OMB. If the money claim is against the government,
therefore it should be submitted for the city council. Why is
there such a need to such submission to the city council? In
order for the city council to make appropriation for such a
claim.
You have here the memorandum of agreement between the
OMB and the DOJ dated March 29, 2012 modifying or
amending the earlier circular regarding these offices. Take
note again, concurrent jurisdiction but nonetheless what is
important here is the control of the OMB is only over criminal
cases committed by high ranking officers even those in
conspiracy with high ranking officers and these cases are
cognizable by the Sandiganbayan. Office related offenses
committed by these officials. So the OMB exercises primary
jurisdiction.
What about other cases? The law recognizes the concurrent
jurisdiction over these cases between these two offices. Let’s
say a criminal case is filed before the DOJ prosecutor against
a public officer, because it is a case of concurrent jurisdiction,
the DOJ can already proceed and decide the case without
even the approval of the OMB. In the same manner that if the
case of filed before the OMB, it has the option of whether in
referring or allowing the DOJ to conduct the preliminary
investigation. Or if the OMB itself may conduct the
investigation and proceed to determine whether the case ought
to be filed to the court or not. Even in those cases where it is
the OMB that conducted the preliminary investigation, it is still
referred to the DOJ for prosecution of the case. And whatever,
that once there is referral of this case to be filed before the
court through the DOJ prosecutor, therefore that case so filed
shall now be under the full control of the DOJ, even without the
participation of the office of the OMB. Know that the OMB will
only insist of taking cognizance of cases cognizable by the
Sandiganbayan. So Primary Jurisdiction yan.
Under the MOA, the OMB
will have ―primary jurisdiction in the
conduct of preliminary investigation
and inquest proceedings over
complaints for crimes cognizable by
the Sandiganbayan.‖
Under Sec. 4 of RA 8249,
among the cases over which the
Sandiganbayan has exclusive
jurisdiction are the following: ―I)
Violations of RA 3019 (Anti-Graft
and Corrupt Practices Act); II)RA
1379 (Forfeiture of Illegally
Acquired Wealth); III)Crimes by
public officers or employees
embraced in Ch. II, Sec. 2 Title VII,
J Estrella, Gil Garcia II, Daryl Ritchie Valles
Bk. II of the Revised Penal code
(Crimes committed by Public
Officers) namely : Direct Bribery,
Indirect Bribery, Qualified Bribery,
Corruption of Public Officials; IV)
Other offenses or felonies whether
simple or complexed with other
crimes committed in relation to their
office by the public officials and
employees mentioned above‖ and
cases involving government officials
and employees with Salary Grade
27 or higher for a)Violation of RA
6713 (Code of Conduct and Ethical
Standards) b)Violation of RA 7080
(The Plunder Law) c)Violation of RA
7659 (The Heinous Crime Law) d)
RA 9160 (Violation of the Anti-
Money Laundering Law when
committed by a public officer) e)
PD 46 (Prohibition Against Gift-
Giving) and f)PD 749(law granting
immunity to bribe-givers who
voluntarily gives information).
It said that when complaints
involving the above-mentioned
cases were filed before the DOJ,
the same shall immediately be
endorsed to the OMB.
The two officials also agreed
that the OMB and the DOJ shall
have concurrent jurisdiction over
cases involving public officials
falling outside the exclusive
jurisdiction of the Sandiganbayan.
However, ―the office where such
complaint is filed for preliminary
investigation shall acquire
jurisdiction over the complaint to the
exclusion of the other‖. (sa net ni
gikan. Dili klaro ang gina ingon ni
sir)
We mentioned a while ago the mandate applies to all public
officers and employees. What are the excretions? Who are not
subject to the authority, take note the administrative authority
of the OMB? Under Article 11 Sec. 2 of the Constitution
pertaining to (1) impeachable officials. Who are the
impeachable officials? (a) The president, (b) vice president, (c)
members of the SC, (d) members of the constitutional
commissions, (e) and the Ombudsman. So these are the
impeachable officials.
In re: Raul Gonzales, there was such a complaint filed before
the office of Gonzales in his capacity as then Tanodbayan
against justice Fernan. Of course the Supreme Court ordered
the dismissal of this case. Impeachable Officials have to be
impeached before a case may be filed against them.
(2) Members of congress. Why? Because the constitution itself
provides under Article 6 Section 16 the house of congress shall
have the power to discipline its members by a vote, the
concurrence of 2/3s of all members to suspend for good such a
member. Or where the respondent is a (3) member of the
Judiciary, an employee of the judiciary from the highest to the
lowest rank. So many cases here. Maceda vs Vasquez,
Caoibes vs Alumbres, these parties here were both judges,
nagsuntukan silang dalawa over a piece of wood. So the
4 Manresa
aggrieved party who got a black eye filed this administrative
case against the other party to the OMB. The Ombudsman
was directed by the SC, ―you have no authority to take
cognizance of this case‖.
In Maceda vs Vasquez, judge maceda signed a certificate of
service declaring that he had no pending cases. But in he still
had pending cases. And so a criminal case for falsification was
filed against him before the OMB. He went to the SC when he
was ordered by this OMB to submit his answer to the criminal
charge. Take note a criminal case filed against him before the
OMB. Here the SC ruled that when a criminal case against the
judge arises from the discharge of his official duties as such
judge, the OMB ought to refer to the authority, must respect
the authority of the SC because the SC was made prior to the
determination whether the judge had acted within the scope of
his administrative duties.
The case of Dulalas (?). Simple case of alarms and scandals
that was not allegedly acted with dispatch by the judge Dulalas
in Zamboanga and here the SC ruled: clearly, the criminal case
filed against her for alleged violation of the Anti-Graft and
Corrupt Practices Act produced undue injury because she
failed to dispose of the case promptly, this simple case of
alarms and scandals. There is a need for a determination by
the SC whether indeed the judge had acted in accordance with
the provisions of the Code of Judicial Conduct.
Davao City case: Fuentes v Ombudsman. Judge Fuentes
issued an order garnishing government property sa Buhangin
and so he was charged before the Ombudsman and here the
SC ruled: there should be prior determination by the court even
if the case filed before the Ombudsman is criminal in nature
because there is a need for the SC to make a determination if
indeed the judgment or order issued by the judge is unjust.
And now, how is there a determination whether the decision or
order of the judge is unjust? It is only through the filing of the
administrative case before the court or on the basis of a
petition for certiorari or prohibition before the court. So there
must be first a judicial declaration that the decision is indeed
unjust.
Recently, in a way, the SC already allowed the immediate filing
of a criminal case against a member of the judiciary where the
offense is not office connected. In the case of Garcia v Miro,
this MTC judge in Negros Occidental Garcia was involved in a
vehicular accident which caused the death of several persons
and a criminal case was filed against him before the Office of
the Ombudsman and subsequently the Ombudsman filed a
case for Reckless Imprudence Resulting to Homicide before
the court. And here the SC sustained the authority of the
Ombudsman because the act committed by petitioner judge
has nothing to do with his official functions. And so the
Ombudsman has the authority to take immediate action, to
investigate and file the case before the court
Of course we know that the authority of the administrative
tribunal under the law includes the power to issue preventive
suspension order and the basis here is Sec 24 of the
Ombudsman Act.
Section 24. Preventives Suspension. — The Ombudsman or
his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment
the evidence of guilt is strong, and (a) the charge against such
officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case
filed against him.
J Estrella, Gil Garcia II, Daryl Ritchie Valles
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than
six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due
to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in
computing the period of suspension herein provided.
Now there have been so many court rulings pertaining to this
phrase under this authority because the argument of these
aggrieved public officers charged was that the phrase under
this authority refers only to those public officers and employees
in the Office of the Ombudsman. Here the SC ruled that as
soon as administrative complaint is filed against a public
officer, it is already subject to the administrative authority of the
Ombudsman and therefore he will be the subject of suspension
order.
Yabut v Office of the Ombudsman, the Vice Mayor of Makati
at that time Yabut was directing traffic in a busy intersection in
Makati and there was this American national motorist who
made a dirty finger sign at him and so nagsuntukan sila and
later on since the VM had several body guards, bugbog sarado
yung Amerikano and the latter filed administrative charges.
Pending determination, Yabut was preventively suspended
served a preventive suspension of 82 days and after due
proceedings, the Ombudsman imposed the penalty of 60 days
suspension. According to Yabut, he already served 82 days.
The SC ruled that the concept of preventive suspension is
separate from suspension as a penalty and this suspension of
60 days as a penalty cannot be credited to the period that was
meted as preventive suspension.
In Buenaseda v __, even before a full blown trial, and even
before the parties are able to present evidence, the
Ombudsman already has the authority to preventive orders.
Even before a full blown or even before authority is given to
respondent to file a pleading, the ombudsman can already
issue the order of preventive suspension. Why? Because by
the nature of preventive suspension, it is not yet a penalty.
In Ombudsman v Valera, if you recall, where Valera was
preventively suspended by the special prosecutor. Under the
law who has the power to preventively suspend the public
officer? Under RA 6770, the authority belongs to the
ombudsman not the deputy ombudsman not the special
prosecutor even if the special prosecutor has the same rank as
the deputy ombudsman because it does not mean that since
they have the same rank, they have the same privileges, they
have the same responsibilities and functions. The law is very
clear that the authority belongs to the Ombudsman and the
deputy Ombudsman.
I mentioned a while ago that there are instances where the law
itself provides for the finality of the imposition. So where the
decision is final and executory and appealable, what are these
instances?
1. The respondent is either impleaded or where the
imposition is mere reprimand.
What about censure? If let us say accordingly respondent
public officer is sternly warned, is this a penalty? No. But
reprimand is.
2. Suspension of not more than 1 or fine equivalent to 1
month salary is final and unappealable.
In the case of Assistant __ Alba, he complained that his rights
were violated because the Office of the Ombudsman already
considered the order imposing the penalty of 30 days
4 Manresa
suspension against him for violation of the Code of Conduct of
Ethical Standards. Final, executory and unappealable. The SC
ruled that the matter of filing an appeal is not natural right. It
exists by reason of provision of law and this right may be
denied in the basis of the law itself. So long as the
indispensible requirement of due process is given her during
the formal proceedings but not during the period of an appeal
because such a right may be denied under the law.
Take note again that the remedy as we have emphasized quite
a number of times from the decision of the Ombudsman in
administrative cases is not before the SC because there is a
provision in the Ombudsman Act, Sec 27 stating that the
remedy is a petition for certiorari before the SC and here the
SC has ruled that this provision is unconstitutional because it
unduly expanded the jurisdiction of the SC without its consent
and so, in all of these administrative cases decided by the
Ombudsman, in all those instances when an appeal may be
filed, it should be lodged before the CA, verified petition for
review within 10 days. Under what rule? Rule 43,
administrative cases. Pag Rule 45, CA to the SC. 3 lang yan
43, 44, 65. Tandaan nyo ang difference nyan.
In the case of Reyes v Belisario (?), you know this guy
administrator of LWUA was charged by his employees with
violation of the Anti Graft law and in retaliation, Reyes issued
an order reassigning the complaining employees to other areas
and the assignment order was ruled as invalid by the CSC.
Sabi ng SC, this was done in bad faith and on the basis of this
declaration by the CSC, an administrative case was filed
against Reyes before the Ombudsman. But despite the CSC
ruling, the Ombudsman dismissed the administrative case. So
what is the remedy of the aggrieved employees who filed this
case against the administrator but the Ombudsman dismissed
the administrative case? A Rule 65 petition.
I mentioned a while ago, as a rule, the exoneration of the
respondent is already final, unappealable. But is there a
remedy under the law? Yes. Under Rule 65, grave abuse of
discretion. But what the employees did was not a resort under
Rule 65 but rather, under Rule 43, petition for review. It’s not
the proper remedy but nonetheless, again, the SC applied
liberality. It ruled that the petition had the effect of the filing
under Rule 65 because it alleges the commission of
arbitrariness, grave abuse on the part of the office of the
Ombudsman in dismissing the administrative case against
Reyes. The remedy here in case of exoneration is not under
Rule 43, petition for review, but rather, an original action for
certiorari under Rule 65.
In the case of Ledesma v CA, take note, the wording of the
law under RA 6770, the Ombudsman shall make the
recommendation to the SC. So the implementation of this
phrase. Does this mean that the authority of the Ombudsman
in administrative cases against public officers is merely
recommendatory? No. The SC in the case of Ledesma v CA,
here an employee of the Bureau of Immigration in his capacity
st
as chairman of the 1 division of the Board of Special Inquiry
and he was found to have issued irregularly this temporary
resident visas. The Ombudsman imposed the penalty of 1 year
suspension and later on this was reduced to 9 months. On
appeal to the CA, naging 6 months. But nonetheless,
according to the petitioner Ledesma, the authority of the
Ombudsman is merely to recommend. The SC ruled that it is
not only recommendatory but mandatory because the law itself
in other provisions provide for the filing of proper charges
against any officer who refuses to comply with the directive. In
fact, the refusal without just cause of any official who has been
directed to implement the order of the Ombudsman and he
refuses to do so is administratively liable. It is a ground for
J Estrella, Gil Garcia II, Daryl Ritchie Valles
administrative action. This clearly means that the authority is
not merely recommendatory but mandatory.
And the same principle applies in the case of Fajardo v
Ombudsman. The Ombudsman Act itself, Sec 15 provides
that the failure of the official or his refusal to comply with the
order of the Ombudsman to sanction the respondent officer is
a ground for a disciplinary case against the latter.
Section 15. Powers, Functions and Duties. — The Office of
the Ombudsman shall have the following powers, functions
and duties: x x x
(3) Direct the officer concerned to take appropriate action
against a public officer or employee at fault or who neglect to
perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure,
or prosecution, and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section 21 of this Act:
provided, that the refusal by any officer without just cause to
comply with an order of the Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an officer or employee
who is at fault or who neglects to perform an act or discharge a
duty required by law shall be a ground for disciplinary action
against said officer;
What is the effect of an appeal in the administrative case?
Whenever a decision is rendered adverse to the officer, the
filing of the appeal, take note of the important principle, on
what is provided under Administrative Order 17, the decision is
already executory despite the filing of an appeal. The appeal
will not stop the decision from being executory. Even if an
appeal has been taken before the CA, it does not prevent the
decision from being executory. But in the event that he raises
the case on appeal, he shall be considered as being under
preventive suspension and accordingly, he shall be paid his
salary during such period. But not during the period of the
penalty of suspension. There is no payment of salaries during
the period of preventive suspension.
Under Sec 26 of the Ombudsman act, the decision of the
Ombudsman shall be executed as a matter of course and any
delay or the refusal of the superior to comply with the order to
implement shall be a ground for disciplinary action it being the
basis for the filing of both administrative and criminal cases.
NB: Section 27.
Section 27. Effectivity and Finality of Decisions. — (1) All
provisionary orders of the Office of the Ombudsman are
immediately effective and executory.
A motion for reconsideration of any order, directive or decision
of the Office of the Ombudsman must be filed within five (5)
days after receipt of written notice and shall be entertained
only on any of the following grounds:
(1) New evidence has been discovered which materially affects
the order, directive or decision;
(2) Errors of law or irregularities have been committed
prejudicial to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from
filing: provided, that only one motion for reconsideration shall
be entertained.
Findings of fact by the Officer of the Ombudsman when
supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or
reprimand, suspension of not more than one (1) month's salary
shall be final and unappealable.
4 Manresa
In all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration
in accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of
the Ombudsman as the interest of justice may require.
The case here of Mayor Buencamino of San Miguel in
Bulacan. The SC ruled that the imposition of the Ombudsman
of six months suspension against mayor Buencamino for
abuse of authority is immediately executory despite the filing of
an appeal by Buencamnino. In the same manner in the case of
Ombudsman v City Treasurer Samaniego, Samaniego was
found to have incurred shortages in his accountabilities. The
decision of the Ombudsman imposing a 1 year suspension is
immediately executory despite the pendency of the appeal.
May the Ombudsman be compelled to issue an order for the
production of records or documents? May the parties insist that
the Ombudsman issue an order for him to produce or examine
the records?
In so many cases, like in Mamburam v Ombudsman, the SC
ruled that the parties cannot compel the Ombudsman to issue
subpoena or any order for the production of records,
documents if in the judgment of the Ombudsman, those
documents or records are not necessary to prove the
commission of an offense or to prove probable cause. Why?
Because this involves the exercise of sound, utmost discretion
on the part of the Ombudsman.
In the case of Duterte v Sandiganbayan, this happened a
long time ago, in 1990, the automation project of the city
government where the city government awarded without public
bidding, negotiated to Systems Plus 11.6M automation project.
And so the Ombudsman issued a directive to Duterte to file his
comment on the basis of the COA report. Duterte and Ben De
Guzman complied (best of friends worst of enemies.) They
were just surprised that a graft charge was filed against them
with the Sandiganbayan. They went to the SC and the SC
sustained them. There was a violation of due process. Why?
The SC ruled that you cannot compel or require the public
officer respondent to submit his verified answer on the basis of
a COA report. Here, on the basis of merely this COA report,
without the sworn statement of the auditor, such does not
comply with the requirement of a sworn complaint.
In the case of Garcia v Brimo, Cebu case. Mayor Garcia on
the basis again of a COA report was directed to file his answer
with the Ombudsman but what distinguishes this case from the
Duterte case was that the auditor executed an affidavit
complaint under oath and so the SC ruled that this satisfies the
requirement. So apart from the COA audit report, there was
also the verified affidavit complaint executed by the COA
auditor. The fact that the investigator of the Ombudsman
already resigned, the one who issued his report under oath to
justify the filing of the case against Garcia, does not alter the
fact that his finding is still to file the case in court and the court
in fact can issue an order to this investigator. The investigator
is merely an informant. The real party in interest is the State
through the COA and the office of the Ombudsman.
Consistent with the doctrine of primary jurisdiction, as a rule,
the court will not review the factual findings of an administrative
authority thus, the findings of the Ombudsman will not be
looked into be the Court because the SC is not a trier of facts
J Estrella, Gil Garcia II, Daryl Ritchie Valles
therefore it will no longer review the evidence submitted by the
parties before the Ombudsman.
Let’s say that the finding of the Ombudsman is that there is no
probable cause and it dismisses the complaint, the Court will
not anymore look into the factual setting of the case because
this involves the exercise of sound discretion by the
Ombudsman. We mentioned that mandamus will not lie to
compel the Ombudsman to file the case in court because this
involves the exercise of discretion.
The case of PCGG v Desierto, for commission of grave abuse
of discretion where the Ombudsman dismissed the case
against Simeon (?), et al despite the evidence and here the SC
reversed the decision of the Ombudsman and directed the
filing of the proper information against them. The requirement
of the law of finding probable cause is there is evidence to
show that more likely than not a crime has been committed by
the public officer. And so what where the evidence submitted
here? The stock certificates when the Marcoses left the
Malcanang, these were recovered and one officer, an
associate of __, executed an affidavit, but despite the
evidence, the Ombudsman still dismissed the case. And so the
SC ruled that there was grave abuse of discretion committed
by the Ombudsman justifying the reversal of the decision and
directing the Ombudsman to file the information in court.
What about the finding of the COA of non-liability? Is this
sufficient basis for the dismissal of the criminal case against
the same public officer? In so many cases the SC has
consistently ruled that even if the COA has already approved
the public officer’s disbursements, na clear na xa in the
process of audit conducted by COA but nonetheless a criminal
case was still filed against him, can he use this as a defense,
the fact that the COA already cleared him of any liability? No.
The SC ruled that even if the COA in the exercise of its
auditorial power already approved the transactions and
disbursements of t public officer, this only relates to the
administrative aspect of the matter of his liability. It will not
prevent the Ombudsman from conducting an investigation and
determining whether he should be made criminally liable for
violation of the penal laws because the clearance issued by the
COA is only with respect to accounting rules. This fact will not
be a sufficient basis for the dismissal by the Ombudsman by
the criminal case filed against the same public officer.
The same principle applies in the case of Ramos v Aquino,
even if the accounts, vouchers have passed audit, but it will not
be a ground to prevent the prosecutor either of the
Ombudsman or the DOJ from conducting the preliminary
investigation to determine possible criminal liability. The matter
of the determination of probable cause is not dependent on the
COA findings. But of course, generally, the practice is
whenever what is involved is the alleged financial records of
the public officer, we rely on the finding of the COA although
there is such rule.
In criminal cases filed, say the finding of probable cause, one
MR shall be allowed 5 days from notice. Is it possible that even
without the respondent public officer receiving the adverse
resolution, the information is already filed, is this not violation
of due process?
Many years ago there was this lawyer who graduated in this
law school, a bar topnotcher pa, I will not mention the name,
he used to be my teacher in Ateneo Highscool, naging
moderator ko pa, so I respected him. But we had this client,
and it happened that the case was filed before the court. And
this lawyer sought me and he pointed his finger at me because
according to him, there was violation of due process. His client
4 Manresa
was deprived of notice and the information was filed in violation
of due process.
Is this allowed? Yes. The SC has consistently ruled. Yun lang,
you have to be cool under the circumstances. Baka
makasuhan din tayo, baka magsuntukan pa. But I respect still
respect him.
The validity of the information is not affected by lack of notice.
When you become lawyers, wag nyong gawin sa akin ha and
use this as a basis.
In the filing of a motion for reconsideration, even when there is
this resolution adverse to the client, what is the remedy if the
information has been filed, you file a MR or motion for
reinvestigation with the court NOT with the Ombudsman
because the latter has already been divested of his authority
by reason of the filing of the information in court.
What is the reason, rationale for this? Take note again in
criminal cases, it is not the CA that has the authority to have a
look or review the resolutions of the office of the Ombudsman
in criminal cases. The authority of the CA is limited to
administrative cases. Baka magkamali kayo dyan.
Here, the case of Guramco (?) v COA (?) where an
information for violation of anti graft laws was filed against an
employee of the POEA, Atty. Ong. And he went to the CA and
the CA directed the Ombudsman to withdraw the information
filed against Ong before the court. The SC held that the CA
acted beyond its authority. The jurisdiction of the CA applied
only to directives and decisions of the Ombudsman in
administrative disciplinary cases and therefore it cannot review
the decision of the Ombudsman in criminal cases. What is the
remedy here? It is not before the CA, it should be before the
SC. You file a petition. Let’s say probable cause, or even no
finding of probable cause, it should be under Rule 65 with the
SC. Here, the CA does not have jurisdiction over decisions of
the Ombudsman in criminal cases.
In Republic v Sandiganbayan, take note of this date,
February 25, 1986, the authority to bring proceedings for
forfeiture of property illegally acquired, ill gotten wealth,
illegally, unlawfully acquired before February 25, 1986, the
authority belongs to the PCGG while the power to investigate ill
gotten wealth cases, those properties acquired by the public
officer after February 26, 1986 is vested in the Ombudsman.
In the light of RA 1379, the law on the forfeiture of unlawfully
acquired property, a petition must be filed. By whom? Should it
be the PCGG? Actions on behalf of the Republic is filed by the
Office of the Solicitor General. Under the law, it should be the
PCGG that will conduct the investigation and if it finds probable
cause, it issues a certification, submits the evidence to the
Office of the Sol Gen for the latter office to file a petition under
the provisions of RA 1379.
But nonetheless, take note, even if the Ombudsman is without
authority to initiate forfeiture proceedings for the recovery of ill-
gotten or unexplained wealth acquired prior to Feb 25, 1986,
STILL, the Ombudsman, under the general law, RA 6770 has
the power to investigate cases for the forfeiture or recovery of
such ill gotten wealth even acquired prior to such date. The
basis here is RA 6770. For the purpose of conducting
investigation. Of course, the authority to initiate belongs to the
PCGG. Later on, the indispensable participation of the Solicitor
General.
Commission on Audit
What is the mandate given to the COA? Under Article 9-A
Section 2 (1), in relation to Paragraph 2, here, 2 things: first,
J Estrella, Gil Garcia II, Daryl Ritchie Valles 4 Manresa

the mandate given to the COA under the Constitution is to
examine, audit and settle all accounts pertaining to the
revenues and receipts as well as disbursements of public
funds and the usage of properties by the government, or any of
its agencies or instrumentalities. This is the first mandate.
The second is the authority of the COA to promulgate rules for
the prevention and disallowance of unnecessary, excessive,
irregular, unconscionable expenses or disbursements of public
funds.
Is it possible that there may be a separate audit conducted by
an agency apart from COA? Yes. The law recognizes
concurrent jurisdiction between the COA and the Central Bank
to examine and audit government banks. But nonetheless, still
the COA audit ought to prevail as against the finding made by
the Central Bank in the matter of the financial accounts,
records, transactions of government banks. Why? Because the
Constitution itself mandates the COA as the government
auditor. And another reason here is that the Central Bank itself
does not have the power to allow or disallow expenditures of
public offices. This power belongs to the COA.
and so COA does not have the competence to make such
distinction.
Central Bank
There is this rule now in cases of insolvency, the Central Bank
Act allows the CB through the Monetary Board in proceedings
on insolvency to place under receivership such bank it finds to
be insolvent, the actions of the monetary board in insolvency
proceedings are final and executory and may not be set aside.
Because of the rule, factual findings within the competence of
the administrative tribunal, is consistent with this policy. The
exception here is if there is proof that the action taken by the
Monetary Board of the CB is arbitrary or illegal or done with
grave abuse of discretion.
So there is also this clause and policy where the Monetary
Board may already order the stoppage of operations of the
bank in question when its continued business would only
further dissipate the assets, the resources of the bank and thus
increase further the liabilities and cause damage to the
depositors, stockholders and the public at large.

On the basis of the provisions of the National Internal Revenue
Code (NIRC), it provides for authority to grant an informer’s
reward, entitlement of informer’s reward as recommended by
the BIR and approved by the Department of Finance. The BIR
is under the Department of Finance, in relation to the
provisions of the Government Auditing Code, PD 4845 and so
such entitlement of such informer’s reward is conclusive of this
executive offices or agencies of government but is not binding
on the COA because of the mandate given to it under the
Constitution. But nonetheless, whatever determination made
by the COA, for example, disallowing the payment of this
informer’s reward, and this is certainly within the competence
of COA, is still subject to judicial review. The Court may still
look into the action of COA disallowing such grant of informer’s
reward.
Even if there is no requirement of this prior notice and hearing
on the basis of this clause and policy, there is still a remedy
available under the law by the aggrieved bank by filing a case
before the court questioning (?) from the closure of such bank.
But again, the provision here of the CB from the Monetary
Board to exercise this authority, it must be on the basis of an
examination conducted by the examining department of the
CB. Where the CB may order that the bank be placed under
receivership. This is to protect the depositors, stockholders and
public at large.

If there has been a decision rendered by an agency of the

government, for example the CSC, allowing the payment of
back wages to employees of government, the COA no longer
has authority to disallow such judgment that has become final
and executory. Where the CSC declaring the grant of back
wages and this decision has already become final and
executory, the COA no longer has power to disallow payment.

In the case of NHA v COA, here the NHA argued that the
extension of its foreign loan pertaining to the Dagat-dagatan
Project as it was able to obtain a foreign loan from a German
entity, KFW (not KFC), is dependent upon the extension of the
foreign consultant services. But here the COA disallowed this
extension of foreign consultant services. And the SC sustained
the power of the COA, even if the grant for the extension of
such loan is dependent on the extension of such foreign
consultant, because the Constitution gives clear mandate to
the COA to disallow unnecessary or excessive expenditures of
government.

In the case of Cruz v COA, the matter of the COA making a

delineation between those employees who were hired before
October 31, 1989 were entitled to the Social Amelioration
Benefits and those hired after this date were not given the
same benefits on the basis of a COA resolution. The SC ruled
that there was no basis for COA to make such classification
because the law itself did not provide for such classification. If
you recall the earlier principle that rules and regulations must
be made in conformity with the law. The law here is the Salary
Standardization Law, RA 6758, does not make any such
distinction as to make a delineation between the employees