ADMINISTRATIVE LAW BAR QUESTIONS

Administrative Law Questions

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice andHearing)

The Philippine Ports Authority (PPA) General Manager issued anadministrative order to the fact that all
existing regular appointments toharbor pilot positions shall remain valid only up to December 31 of
thecurrent year and that henceforth all appointments to harbor pilot positionsshall be only for a term of
one year from date of effectivity, subject to yearlyrenewal or cancellation by the PPA after conduct of a
rigid evaluation ofperformance. Pilotage as a profession may be practiced only by dulylicensed
individuals, who have to pass five government professionalexaminations.The Harbor Pilot Association
challenged the validity of said administrativeorder arguing that it violated the harbor pilots' right to
exercise theirprofession and their right to due process of law and that the saidadministrative order was
issued without prior notice and hearing. The PPAcountered that the administrative order was valid as it
was issued in theexercise of its administrative control and supervision over harbor pilots underPPA's
legislative charter; and that in issuing the order as a rule or regulation,it was performing its executive or
legislative, and not a quasi-judicial function.Due process of law is classified into two kinds, namely,
proceduraldue process and substantive due process of law. Was there, or, wasthere no violation of the
harbor pilots' right to exercise theirprofession and their right to due process of law?

SUGGESTED ANSWER:

The right of the pilots to due process was violated. As held, in Corona vs.United Harbor Pilots
Association of the Philippines, 283 SCRA 31 (1997),pilotage as a profession is a property right protected
by the guarantee of dueprocess. The pre-evaluation cancellation of the licenses of the harbor pilotsevery
year is unreasonable and violated their right to substantive dueprocess. The renewal is dependent on
the evaluation after the licenses havebeen cancelled. The issuance of the administrative order also
violatedprocedural due process, since no prior public hearing was conducted. Asheld in Commissioner r
of Internal Revenue vs. Court of Appeals, 261 SCRA237 (1999), when a regulation is being issued under
the quasi-legislativeauthority of an administrative agency, the requirements of notice, hearingand
publication must be observed.

TOPIC: LAW-MAKING POWER; ABOLISH; DESTROY

In 1963, Congress passed a law creating a government-owned corporationnamed Manila War Memorial
Commission (MWMC), with the primaryfunction of overseeing the construction of a massive memorial in
the heart ofManila to commemorate victims of the 1945 Battle of Manila.The MWMC charter provided
an initial appropriation of P1,000,000empowered the corporation to raise funds in its own name, and set
aside aparcel of land in Malate for the memorial site. The charter set the corporatelife of MWMC at 50
years with a proviso that Congress may not abolishMWMC until after the completion of the memorial.
Forty-five (45) years later,the memorial was only 1/3 complete, and the memorial site itself had
longbeen overrun by squatters. Congress enacted a law abolishing the MWMCand requiring that the
funds raised by it be remitted to the National Treasury.The MWMC challenged the validity of the law
arguing that under its charterits mandate is to complete the memorial no matter how long it takes.
Decidewith reasons.

SUGGESTED ANSWER:
The law abolishing the MWMC is valid. Within theplenary powers of the Congress, it can create as well
as destroy what iscreated after determination that its purpose could no longer be attained bysubsequent
circumstances. The power to create also carries with it the powerto destroy so long as it was done in
good faith and consistent with thepurpose of promoting the general welfare.

TOPIC: DELEGATION OF POWERS; COMPLETENESS TEST;SUFFICIENT STANDARD TEST

The two accepted tests to determine whether or not there is a validdelegation of legislative power are
the Completeness Test and theSufficient Standard Test.

Explain each.SUGGESTED ANSWER:

Under the COMPLETENESS TEST, a law must be complete in all its termsand provisions when it leaves the
legislature that nothing is left to the judgment of the delegate. The legislature does not abdicate its
functionswhen it describes what job must be done, who is to do it, and what isthe scope of his authority.
However, a delegation of power to make thelaws which necessarily involves a discretion as to what it
shall bemay not constitutionally be done. (Edu v. Ericta, G.R. No. L-32096, October24, 1970)Under the
SUFFICIENCY OF STANDARDS TEST, the statute mustnot only define a fundamental legislative policy,
mark its limits andboundaries, and specify the public agency to exercise the legislativepower. It must
also indicate the circumstances under which thelegislative command is to be effected. To avoid the taint
of unlawfuldelegation, there must be a standard, which implies at the very leastthat the legislature itself
determines matters of principle and laysdown fundamental policy. (Free Telephone Workers Union v.
Ministerof Labor, G.R. No. L-58184, October 30, 1981)

TOPIC: DOCTRINE OF OPERATIVE FACT

Define/Explain (a) Doctrine of operative facts

SUGGESTED ANSWER:

The general rule is that an unconstitutional law is void. It produces no rights,imposes no duties and
affords no protection. However, the doctrine ofoperative fact is an exception to the general rule and it
only applies as amatter of equity and fair play. Under the doctrine of operative fact, theunconstitutional
law remains unconstitutional, but the effects of theunconstitutional law, prior to its judicial declaration
of nullity, may be leftundisturbed as a matter of equity and fair play. It can never be invoked tovalidate as
constitutional an unconstitutional act.

TOPIC: DELEGATION OF POWERS (2002)

Suppose that Congress passed a law creating a Department of HumanHabitat and authorizing the
Department Secretary to promulgateimplementing rules and regulations. Suppose further that the
lawdeclared that violation of the implementing rules and regulationsso issued would be punishable as a
crime and authorized the DepartmentSecretary to prescribe the penalty for such violation. If the law
defines certainacts as violations of the law and makes them punishable, for example, withimprisonment
of three (3) years or a fine in the amount of P10,000.00,or both such imprisonment and fine, in the
discretion of the court,can it be provided in the implementing rules and regulationspromulgated by the
Department Secretary that their violation will alsobe subject to the same penalties as those provided in
the law itself? Explainyour answer fully.
SUGGESTED ANSWER:

The rules and regulations promulgated by the Secretary of Human Habitatcannot provide that the
penalties for their violation will be the same as thepenalties for the violation of the law. As held in
United States v. Barrias,11 Phil. 327 (1908), the fixing of the penalty for criminal offensesinvolves the
exercise of legislative power and cannot be delegated.The law itself must prescribe the penalty.

TOPIC: JUDICIAL REVIEW

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

SUGGESTED ANSWER:

1. The administrative action has already been fully completedand, therefore, is a final agency action;
and2. All administrative remedies have been exhausted. (Gonzales, Administrative Law, Rex Bookstore:
Manila, p. 136 (1979).

TOPIC: ELECTORAL TRIBUNAL; SET; PET JURISIDCTION

Mr. Yellow and Mr. Orange were the leading candidates in the vicepresidential elections. After elections,
Yellow emerged as the winner by aslim margin of 100,000 votes. Undaunted, Orange filed a protest with
thePresidential Electoral Tribunal (PET). After due consideration of the facts andthe issues, the PET ruled
that Orange was the real winner of the electionsand ordered his immediate proclamation.(a) Aggrieved,
Yellow filed with the Supreme Court a Petition for Certiorarichallenging the decision of the PET alleging
grave abuse of discretion. Doesthe Supreme Court have jurisdiction? Explain.

SUGGESTED ANSWER:

The Supreme Court has no jurisdiction over thepetition. The Presidential Electoral Tribunal is not simply
an agency to whichthe Members of the Senate Court were assigned. It is not separate from theSupreme
Court. (Macalintal vs. Presidential Electoral Tribunal, 631 SCRA239.)

(b) Would the answer in (a.) be the same if Yellow and Orange werecontending for a senatorial slot and it
was the Senate Electoral Tribunal(SET) who issued the challenged ruling?

SUGGESTED ANSWER:

The Supreme Court would have jurisdiction if itwere the Senate Electoral Tribunal who issued the
challenged ruling. TheSupreme Court can review its decision if it acted with grave abuse ofdiscretion.
(Lerias vs. House of Representatives Electoral Tribunal, 202SCRA 808.)

TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of AdministrativeRemedies)

A) Explain the doctrine of exhaustion of administrative remedies.B) Give at least three exceptions to its
application.

SUGGESTED ANSWER:
 A) The doctrine of exhaustion of administrative remedies meansthat when an adequate remedy is
available within the Executive Department, a litigant must first exhaust this remedy before he can resort
tothe courts. The purpose of the doctrine is to enable the administrativeagencies to correct themselves
if they have committed an error. (Rosales vs.Court of Appeals, 165 SCRA 344)B) The following are the
exceptions to the application of thedoctrine of exhaustion of administrative remedies.1. The question
involved is purely legal;2. The administrative body is in estoppel;3. The act complained of is patently
illegal;4. There is an urgent need for judicial intervention;5. The claim involved is small;6. Grave and
irreparable injury will be suffered;7. There is no other plain, speedy and adequate remedy;8. Strong
public interest is involved;9. The subject of the controversy is private law;10. The case involves a quo
warranto proceeding11. The party was denied due process12. The decision is that of a Department
Secretary13. Resort to administrative remedies would be futile14. There is unreasonable delay15. The
action involves recovery of physical possession of publicland16. The party is poor; and17. The law
provides for immediate resort to the court

TOPIC: RIGHT TO HEARING AND NOTICE

QUESTION:

Give examples of acts of the state which infringe the dueprocess clause:1. In its substantive aspect;
and2. In its procedural aspect

SUGGESTED ANSWER:

1.) A law violates substantive due process when it is unreasonableor unduly oppressive. For example,
Presidential Decree No. 1717,which cancelled all the mortgages and liens of a debtor, wasconsidered
unconstitutional for being oppressive. Likewise, as statedin Ermita-Malate Hotel and Motel Operators
Association, Inc. v. CityMayor of Manila, 20 SCRA 849, a law which is vague so that men ofcommon
intelligence must guess at its meaning and differ as to itsapplication violates substantive due process. As
held in Tañada v.Tuvera, 146 SCRA 446, due process requires that the law be published.2.) In State
Prosecutors v. Muro, 236 SCRA 505, it was held that thedismissal of a case without the benefit of a
hearing and without anynotice to the prosecution violated due process. Likewise, as held inPeople v.
Court of Appeals, 262 SCRA 452, the lack of impartiality ofthe judge who will decide a case violates
procedural due process.

QUESTION:

On April 6, 1963. Police Officer Mario Gatdula was chargedby the Mayor with Grave Misconduct and
Violation of Law before theMunicipal Board. The Board investigated Gatdula but before the casecould be
decided, the City charter was approved. The City Fiscal, citingSection 30 of the city charter, asserted that
he was authorized thereunder toinvestigate city officers and employees. The case against Gatdula was
thenforwarded to him, and are-investigation was conducted. The office of theFiscal subsequently
recommended dismissal. On January 11, 1966, the CityMayor returned the records of the case to the
City Fiscal for the submissionof an appropriate resolution but no resolution was submitted. On March
3,1968, the City Fiscal transmitted the records to the City Mayorrecommending that final action thereon
be made by the City Board ofInvestigators (CBI). Although the CBI did not conduct an investigation,
therecords show that both the Municipal Board and the Fiscal's Officeexhaustively heard the case with
both parties afforded ample opportunity toadduce their evidence and argue their cause. The Police
Commission foundGatdula guilty on the basis of the records forwarded by the CBl. Gatdulachallenged
the adverse decision of the Police Commission theorizing that hewas deprived of due process.Questions:
Is the Police Commission bound by the findings of the CityFiscal? Is Gatdula's protestation of lack or
nonobservance of due processwell-grounded? Explain your answers.

SUGGESTED ANSWER:

The Police Commission is not bound by thefindings of the City Fiscal. In Mangubat v. de Castro, 163 SCRA
608, it washeld that the Police Commission is not prohibited from making its ownfindings on the basis of
its own evaluation of the records. Likewise, theprotestation of lack of due process is not well-grounded,
since thehearings before the Municipal Board and the City Fiscal offeredGatdula the chance to be heard.
There is no denial of due process ifthe decision was rendered on the basis of evidence contained in
therecord and disclosed to the parties affected.

QUESTION:

On November 7, 1990, nine lawyers of the Legal Department ofY Bank who were all under Fred Torre,
sent a complaint to managementaccusing Torre of abusive conduct and mismanagement. Furnished with
acopy of the complaint, Torre denied the charges. Two days later, the lawyersand Torre were called to a
conference in the office of the Board Chairman togive their respective sides of the controversy. However,
no agreement wasreached thereat. Bank Director Romulo Moret was tasked to look further intothe
matter. He met with the lawyers together with Torre several times but to no avail. Moret then submitted
a report sustaining the charges or the lawyers.The Board Chairman wrote Torre to inform him that the
bank had chosen thecompassionate option of "waiting" for Torre's resignation. Torre was asked,without
being dismissed, to turn over the documents of all cases handled byhim to another official of the bank
but Torre refused to resign and requestedfor a "full hearing", Days later, he reiterated his request for a
"full hearing",claiming that he had been "constructively dismissed", Moret assured Torrethat he is "free
to remain in the employ of the bank" even if he has noparticular work assignment. After another request
for a "full hearing" wasignored, Torre filed a complaint with the arbitration branch of NLRC for
illegaldismissal. Reacting thereto, the bank terminated the services of Torre.(a) Was Torre "constructively
dismissed" before he filed his complaint? (b)Given the multiple meetings held among the bank officials,
the lawyers andTorre, is it correct for him to say that he was not given an opportunity to beheard?
Explain your answers.

SUGGESTED ANSWER:

a) Torre was constructively dismissed, as held in Equitable BankingCorporation v. National Labor

Relations Commission, 273 SCRA 352. Allowing an employee to report for work without being assigned
anywork constitutes constructive dismissal.b) Torre is correct in saying that he was not given the chance
to beheard. The meetings in the nature of consultations and conferencescannot be considered as valid
substitutes for the proper observanceof notice and hearing.

TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Department of National Defense entered into contract withRaintree Corporation for the supply of
ponchos to the Armed Forces ofthe Philippines (AFP), stipulating that, in the event of breach,action may
be filed in the proper court in Manila.Suppose the AFP fails to pay for delivered ponchos where
mustRaintree Corporation file its claim? Why?

SUGGESTED ANSWER:

Raintree Corporation must file its claim with the Commission on Audit. Under Section 2(1) IX-D of the
Constitution, the Commission on Audit has the authority to settle all accounts pertaining toexpenditure
of public funds. Raintree Corporation cannot file a casein court. The Republic of the Philippines did not
waive its immunityfrom suit when it entered into the contract with Raintree Corporationfor the supply of
ponchos for the use of the Armed Forces of thePhilippines. The contract involves the defense of the
Philippines andtherefore relates to a sovereign function.In-United States vs. Ruiz, 136 SCRA 487,492, the
Supreme Court held:"The restrictive application of State immunity is proper only whenthe proceedings
arise out of commercial transactions of the foreignsovereign, its commercial activities or economic
affairs. Stateddifferently, a State may be said to have descended to the level of anindividual and can thus
be deemed to have tacitly given its consentto be sued only when it enters into business contracts. It does
notapply where the contract relates to the exercise of its sovereignfunctions. In this case the project are
an integral part of the navalbase which is devoted to the defense of both the United States andthe
Philippines, indisputably a function of the government of thehighest order: they are not utilized for nor
dedicated to commerce orbusiness purposes"The provision for venue in the contract does not constitute
a waiverof the State immunity from suit, because the express waiver of thisimmunity can only be made
by a statute.In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled:"Apparently respondent
Judge was misled by the terms of the contractbetween the private respondent, plaintiff in his sala, and
defendantRice and Com Administration which, according to him, anticipated thecase of a breach of
contract between the parties and the suits thatmay thereafter arise. The consent, to be effective though,
must comefrom the State acting through a duly enacted statute as pointed outby Justice Bengzon in
Mobil."

Topic: ADMINISTRATIVE RULINGS SUBJECT TO FINALDETERMINATION OF THE COURT

Andres Ang was born of a Chinese father and a Filipino mother inSorsogon, Sorsogon, on January 20,
1973. In 1988, his father wasnaturalized as a Filipino citizen On May 11, 1998. Andres Ang waselected
Representative of the First District of Sorsogon. Juan Bontowho received the second highest number of
votes, filed a petition forQuo Warranto against Ang. The petition was filed with the House
ofRepresentative Electoral Tribunal (HRET). Bonto contends that Ang isnot a natural born citizen of the
Philippines and therefore isdisqual1fied to be a member of the House.The HRET ruled in favor of Ang.
Bonto filed a petition for certiorariin the Supreme Court. The following issues are raised:1. Whether the
case is justiciable considering that Article VI.Section 17 of the Constitution declares the HRET to be the
sole Judgeof all contests relating to the election returns anddisqualifications of members of the House of
Representatives.2. Whether Ang is a natural born citizen of the Philippines.How should this case be
decided?

SUGGESTED ANSWER:

1. The case is justiciable. As stated in Lazatin vs.House ElectoralTribunal. 168 SCRA 391, 404, since
judicial power includes the dutyto determine whether or not there has been a grave abuse ofdiscretion
amounting to lack or excess of jurisdiction on the part ofany branch or instrumentality of the
Government, the Supreme Courthas the power to review the decisions of the House of
RepresentativesElectoral Tribunal in case of grave abuse of discretion on its part.2. Andres Ang should be
considered a natural born citizen of thePhilippines. He was born of a Filipino mother on January 20,
1973.This was after the effectivity of the 1973 Constitution on January17, 1973. Under Section (I), Article
III of the 1973 Constitution,those whose fathers or-mothers are citizens of the Philippines arecitizens of
the Philippines. Andres Ang remained a citizen of thePhilippines after the effectivity of the 1987
Constitution. Section 1. Article IVof the 1987 Constitution provides: "The following are citizens of
thePhilippines: "(1) Those who are citizens of the Philippines at the time of theadoption of this
Constitution:"

TOPIC: SELF INCRIMINATION

Suppose Congress passed a law to implement the Constitutionalprinciple that a public office is a public
trust, by providing asfollows:"No employee of the Civil Service shall be excused from attending
andtestifying or from producing books, records, correspondence, documents orother evidence in any
administrative investigation concerning the office inwhich he is employed on the ground that his
testimony or the evidencerequired of him may tend to incriminate him or subject him to a penalty
orforfeiture: but his testimony or any evidence produced by him shall not beused against him in criminal
prosecution based on the transaction, matter orthing concerning which is compelled, after invoking his
privilege against self-incrimination to testify or produce evidence. Provided, however, that suchindividual
so testifying shall not be exempt from prosecution and punishmentfor perjury committed in so testifying
nor shall he be exempt from demotionor removal from office. Any employee who refuses to testify or
produce anydocuments under this Act shall be dismissed from the service."Suppose further, that Ong, a
member of the Professional RegulatoryBoard, is required to answer questions in an investigation
regardinga LEAKAGE in a medical examination.1. Can Ong refuse to answer questions on the ground that
he wouldincriminate himself?2. Suppose he refuses to answer, and for that reason, is dismissedfrom the
service; can he pausibly argue that the Civil Commission hasinferred his guilt from his refusal to answer
in violation of theConstitution?3. Suppose on the other hand, he answers the question and on thebasis
of his answers, he is found guilty and is dismissed. Can hepausibly assert that his dismissa1 is based on
coerced confession?

SUGGESTED ANSWER:

1. No. Ong cannot refuse to answer the question on the ground that hewould incriminate himself, since
the Jaw grants him immunity andprohibits the use against him in a criminal prosecution of thetestimony
or evidence produced by him. As stated by the United StatesSupreme Court in Brown vs. Walker, 161
U.S.591, 597, what theconstitutional prohibition against self-incrimination seeks toprevent is the
conviction of the witness on the basis of testimonyelicited from him. The rule is satisfied when he is
granted immunity.2. No Ong cannot argue that the Civil Service Commission inferredhis guilt from his
refusal to answer. Be was not dismissed because ofhis involvement in the leakage in the medical
examination but for hisrefusal to answer. This is a violation of the law. He could becompelled to answer
the question on pain of being dismissed in caseof his refusal, because he was granted immunity.In
Lefkowitz vs. Turley, 414 U.S. 70,84, the United States SupremeCourt said: "Furthermore, the
accommodation between the interest of theState and the Fifth Amendment requires that the State have
means at itsdisposal to secure testimony if immunity is supplied and testimony isstill refused. This is
recognized by the power of courts to compeltestimony, after a grant of immunity, by use of civil
contempt andcoerced imprisonment. Shilitani vs. United States, 384 US 364, 16 LEd 2d 622, 86 5 Ct 1531
(1966). Also, given adequate immunity theState may plainly insist that employees either answer
questions underoath about the performance of their job or suffer the loss ofemployment."3. Yes, Ong
can argue that his dismissal was based on coercedconfession. In Garrity vs. New Jersey, 385 U.S. 493,
500, the UnitedStates Supreme Court held: "We now hold the protection of the individualunder the
Fourteenth Amendment against coerced statements prohibits usein subsequent criminal proceedings of
statements obtained under threat of removal from office, and that it extends to all, whether they are
policemen orother members of the body politic."

TOPIC: LIMITATIONS OF POWER

The police had suspicions that. Juan Samson, member of the subversiveNew-Proletarian Army, was using
the mail for propaganda purposes ingaining new adherents to its cause. The Chief of Police ofBantolan.,
Lanao del Sur ordered the Postmaster of the town tointercept and open all mail addressed to and
coming from Juan Samsonin the interest of the national security. Was the order of the Chiefof Police
valid?

SUGGESTED ANSWER:

No, the order of the Chief of Police is not valid, because there isno law which authorizes him to order
the Postmaster to open theletters addressed to and coming from Juan Samson. An official in
theExecutive Department cannot interfere with the privacy ofcorrespondence and communication in the
absence of a law authorizinghim to do so or a lawful order of the court.Section 3(1), Article III of the
Constitution provides:"The privacy of communication and correspondence shall be inviolableexcept
upon lawful order of the court, or when public safety or orderrequires otherwise as prescribed by law."

TOPIC: JURISDICITON

Suppose a Commissioner of the COMELEC is charged before theSandiganbayan for allegedly tolerating
violation of the election lawsagainst proliferation of prohibited billboards and electionpropaganda with
the end in view of removing him from office. Will theaction prosper?

SUGGESTED ANSWER:

No, the action will not prosper. Under Section 8 Article Xl of theConstitution. the Commissioners of the
Commission on Elections areremovable by impeachment. As held in the case of In re Gonzales, 160SCRA
771,774-775, a public officer who is removable by impeachmentcannot be charged before the
Sandiganbayan with an offense whichcarries with it the penalty of removal from office unless he is
firstimpeached. Otherwise, he will be removed from office by a methodother than impeachment.

TOPIC: SUPERVISION; COURT & ITS PERSONNEL

Pedro Masipag filed with the Ombudsman a complaint against RTC JudgeJose Palacpac with violation of
Article 204 of the Revised Penal Code forknowingly rendering an unjust judgment in Criminal Case No.
617. JudgePalacpac filed a motion with the Ombudsman to refer the complaint to theSupreme Court to
determine whether an administrative aspect was involvedin the said case. The Ombudsman denied the
motion on the ground that noadministrative case against Judge Palacpac relative to the decision
inCriminal Case No. 617 was filed and pending in his office.State with reasons whether the
Ombudsman's ruling is correct.
SUGGESTED ANSWER:

The Ombudsman's ruling is not correct. Under Section 6, Article VIII of theConstitution, it is the Supreme
Court which is vested with exclusiveadministrative supervision over all courts and its personnel.
Prescinding fromthis premise, the Ombudsman cannot determine for itself and by itselfwhether a
criminal complaint against a judge, or court employee, involves anadministrative matter. The
Ombudsman is duty bound to have all casesagainst judges and court personnel filed before it, referred to
the SupremeCourt for determination as to whether an administrative aspect is involvedtherein. (Judge
Jose Caoibes v. Ombudsman, G.R. No. 132177, July 19,2001)

TOPIC: ADMINISTRATIVE CODE

Are the government-owned or controlled corporations within the scopeand meaning of the
"Government of the Philippines"?

SUGGESTED ANSWER:

Section 2 of the Introductory Provisions of the Administrative Codeof 1987 defines the government of
the Philippines as the corporategovernmental entity through which the functions of government
areexercised throughout the Philippines, including, save as the contraryappears from the context, the
various arms through which politicalauthority is made effective in the Philippines, whether pertaining
tothe autonomous regions, the provincial, city, municipal or barangaysubdivisions or other forms of local
government.Government-owned or controlled corporations are within the scope andmeaning of the
Government of the Philippines if they are performinggovernmental or political functions.

TOPIC: ADMINISTRATIVE CODE; FLAG CEREMONY

Section 28, Title VI, Chapter 9, of the Administrative Code of 1987requires all educational institutions to
observe a simple anddignified flag ceremony, including the playing or singing of thePhilippine National
Anthem, pursuant to rules to be promulgated bythe Secretary of Education, Culture and Sports. The
refusal of ateacher, student or pupil to attend or participate in the flagceremony is a ground for dismissal
after due investigation. The Secretary of Education, Culture and Sports issued a
memorandumimplementing said provision of law. As ordered, the flag ceremonywould be held on
Mondays at 7:30 a.m. during class days. A group ofteachers, students and pupils requested the Secretary
that they beexempted from attending the flag ceremony on the ground thatattendance thereto was
against their religious belief. The Secretarydenied the request. The teachers, students and pupils
concerned wentto the Court to have the memorandum circular declared null and void.Decide the case.

SUGGESTED ANSWER:

The teachers and the students should be exempted from the flagceremony. As held in Ebralinag vs.
Division Superintendent of Schoolsof Cebu, 251 SCRA 569 , to compel them to participate in the
flagceremony will violate their freedom of religion. Freedom of religioncannot be impaired except upon
the showing of a clear and presentdanger of a substantive evil which the State has a right to prevent.The
refusal of the teachers and the students to participate in theflag ceremony does not pose a clear and
present danger.

TOPIC: ADMINISTRATIVE REMEDIES

 1. Distinguish the doctrine of primary jurisdiction from thedoctrine of exhaustion of administrative
remedies.2. Does the failure to exhaust administrative remedies beforefiling a case in court oust said
court of jurisdiction to hear thecase? Explain.

SUGGESTED ANSWER:

1. The doctrine of primary jurisdiction and the doctrine ofexhaustion of administrative remedies both
deal with the properrelationships between the courts and administrative agencies. Thedoctrine of
exhaustion of administrative remedies applies where aclaim is cognizable in the first instance by an
administrative agencyalone. Judicial interference is withheld until the administrativeprocess has been
completed. As stated in Industrial Enterprises, Inc.vs. Court of Appeals, 184 SCRA 426, the doctrine of
primary jurisdiction applies where a case is within the concurrent jurisdiction of the court and an
administrative agency but thedetermination of the case requires the technical expertise of
theadministrative agency. In such a case, although the matter is withinthe jurisdiction of the court, it
must yield to the jurisdiction ofthe administrative case.2. No, the failure to exhaust administrative
remedies beforefiling a case in court does not oust the court of jurisdiction tohear the case. As held in
Rosario vs. Court of Appeals, 211 SCRA 384,the failure to exhaust administrative remedies does not
affect the jurisdiction of the court but results in the lack of a cause ofaction, because a condition
precedent that must be satisfied beforeaction can be filed was not fulfilled.

TOPIC: DUE PROCESS

What is the essence of due process in administrative proceedings? Explain.

SUGGESTED ANSWER:

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

TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY

The Municipality of Binangonan, Rizal passed a resolution authorizingthe operation of an open garbage
dumpsite in a 9-hectare land in theReyes Estate within the Municipality's territorial limits. Some
concernedresidents of Binangonan filed a complaint with the Laguna LakeDevelopment Authority (LLDA)
to stop the operation of the dumpsite due toits harmful effects on the health of the residents.The LLDA
conducted an on-site investigation, monitoring, testing andwater sampling and found that the dumpsite
would contaminate Lagunade Bay and the surrounding areas of the Municipality. The LLDA
alsodiscovered that no environmental clearance was secured by theMunicipality from the Department of
Environment and Natural Resources(DENR) and the LLDA as required by law. The LLDA therefore issued
tothe Binangonan Municipal Government a cease and desist order to stopthe operation of the dumpsite.
The Municipality of Binangonan filed acase to annul the order issued by the LLDA.1. Can the Municipality
of Binangonan invoke police power toprevent its residents and the LLDA from interfering with
theoperation of the dumpsite by the Municipality? Explain.2. Can the LLDA justify its order by asserting
that the healthof the residents will be adversely affected? Explain.

SUGGESTED ANSWER:

1. No, the Municipality of Binangonan cannot invoke its policepower. According to Laguna Lake
Development Authority vs. Court of Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA
ismandated to promote the development of the Laguna Lake area,including the surrounding Province of
Rizal, with due regard to theprevention of pollution. The LLDA is mandated to pass upon andapprove or
disapprove all projects proposed by local governmentoffices within the region.2. Yes, the LLDA can justify
its order. Since it has beenauthorized by Executive Order No. 927 to make orders requiring
thediscontinuance of pollution, its power to issue the order can beinferred from this. Otherwise, it will
be a toothless agency.Moreover, the LLDA is specifically authorized under its Charter toissue cease and
desist orders.

TOPIC: ADMINISTRATIVE BODIES OR AGENCY

On July 1991, the Energy Regulatory Board (ERB), in response topublic clamor, issued a resolution
approving and adopting a schedulefor bringing down the prices of petroleum products over a period
ofone (1) year starting 15 August 1991, over the objection of the oilcompanies which claim that the
period covered is too long to prejudgeand foresee.Is the resolution valid?

SUGGESTED ANSWER:

No, the resolution is not valid, since the Energy Regulatory Boardissued the resolution without a
hearing. The resolution here is not aprovisional order and therefore it can only be issued after
appropriate noticeand hearing to affected parties. The ruling in Philippine CommunicationsSatellite
Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an orderprovisionally reducing the rates which a
public utility could charge, could beissued without previous notice and hearing, cannot apply.

TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS

Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquinocreated the Presidential
Commission on Good Government (PCGG) andempowered it to sequester any property shown prima
facie to be ill-gotten wealth of the late President Marcos, his relatives andcronies. Executive Order No. 14
vests on the Sandiganbayan jurisdiction to try hidden wealth cases. On April 14, 1986, after
aninvestigation, the PCGG sequestered the assets of X Corporation, Inc.(1) X Corporation, Inc, claimed
that President Aquino as President,could not lawfully issue Executive Orders Nos. 1, 2, 14, which havethe
force of law, on the ground that legislation is a function ofCongress. Decide.(2) Said corporation also
questioned the validity of the threeexecutive orders on the ground that they are bills of attainder
and,therefore, unconstitutional. Decide

SUGGESTED ANSWER:

(1) The contention of X Corporation should be rejected. Executiveorders Nos. 1, 2 and 14 were issued in
1986. At that time PresidentCorazon Aquino exercised legislative power Section 1, Article II ofthe
Provisional Constitution established by Proclamation No. 3,provided: "Until a legislature is elected and
convened under a newconstitution, the President shall continue to exercise legislativepower."In case of
Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas,Inc. vs. Tan, 163 SCRA 371, the Supreme Court
ruled that theProvisional Constitution and the 1987 Constitution, both recognizedthe power of the
President to exercise legislative powers until thefirst Congress created under the 1987 Constitution was
convened onJune 27, 1987.(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. Abill of attainder
is a legislative act which inflicts punishmentwithout trial. On the contrary, the expressly provide that any
judgment that the property sequestered is ill-gotten wealth is to bemade by a court (the Sandiganbayan)
only after trial.

TOPIC: CONTROL POWER

Does the President exercises the power of control over all executivedepartments and agencies, including
government-owned or controlledcorporations

SUGGESTED ANSWER: YES. The president exercises the power ofcontrol over all executive departments
and agencies, includinggovernment-owned or controlled corporations with or without originalcharters.
But the President does not have the power of control overLGUs (Cruz vs. Secretary of Environment and
Natural Resources, 347SCRA 128 [2000]; National Marketing Corporation vs. Arca, 29 SCRA648 [1969]).

TOPIC: INTERNAL REVENUE ALLOTMENT FUND

The Provincial Governor of Bataan requested the Department of Budget andManagement (DBM) to
release its Internal Revenue Allocation (IRA) of P100million for the current budget year. However, the
General Appropriations Act provided that the IRA may be released on Iy if the province meets
certainconditions as determined by an Oversight Council created by the President.a. Is this requirement
valid?b. The Provincial Governor is a party-mate of the President. May theBataan Representative instead
file a petition to compel the DBM torelease the funds?

SUGGESTED ANSWER:

a. No, this requirement is not valid. Under the 1987 Constitution, it is

provided that “local government units shall have a just share, as

determined by law, in the national taxes which shall be automatically

released to them.” As held in the case of Alternative Center for

Organizational Reforms and Development, et.al. v. Zamora, G.R. No.144256 (June 08, 2005), a basic
feature of local fiscal autonomy isthe automatic release of the shares of LGUs in the national
internalrevenue. The Local Government Code specifies further that therelease shall be made directly to
the LGU concerned within five (5)

days after every quarter of the year and “shall not be subject to any

lien or holdback that may be imposed by the national government for

whatever purpose.”
 b. Yes. A congressman from a particular LGU may validly havestanding to demand that IRA for his
province be released inaccordance with the Constitution and the Local Government Code. As a
representative of his province, he has a

responsibility towardshis constituencies who can expect no less than faithful compliancewith the
Constitution. Moreover, the issue presented could becharacterized as involving transcendental
importance to the peopleand the local government units which had been guaranteed greaterlocal
autonomy.

TOPIC: OMBUDSMAN; POWER TO IMPOSE PENALTIES

Decisions of the Ombudsman imposing penalties in administrativedisciplinary cases are merely

recommendatory.

SUGGESTED ANSWER:

FALSE. Under Section 15(3) of theOmbudsman Act, the Ombudsman has the power to ensurecompliance
with the imposition of penalty on public officers it finds atfault by virtue of its disciplinary authority
(Office of the Ombudsmanvs. Madriaga, 503 SCRA 631 [2006]).

PUBLIC OFFICERS QUESTIONS

TOPIC: DE FACTO OFFICER

A person who occupies an office that is defectively created is a de factoofficer.

SUGGESTED ANSWER: FALSE. A de facto officer occupies a validexisting office however under a color of
title of the office. For him to bea de facto officer, the office must be validly created. (Tuanda
vs.Sandiganbayan, 249 SCRA 342 [1995]).TOPIC: LAW ON PUBLIC OFFICERS

A. After 2 February 1987, the Philippine National bank (PNB) grants aloan to congressman X. Is the loan
violative of the Constitution?Suppose the loan had instead been granted before 2 February 1987, butwas
outstanding on that date with a remaining balance on theprincipal in the amount of P50,000, can the
PNB validly giveCongressman X an extension of time after said date to settle theobligation?B. For being
notoriously undesirable and recidivist, Jose Tapulan, anemployee in the first level of the career service in
the Office ofthe Provincial Governor of Masbate, was dismissed by the Governorwithout formal
investigation pursuant to Section 40 of the CivilService Decree (P.D. No. 807) which authorizes summary
proceedings insuch cases. As a lawyer of Jose what steps, if any, would you take to protect hisrights?

SUGGESTED ANSWER:

A. whether or not the loan is violative of the 1987 Constitutiondepends upon its purpose, if it was
obtained for a business purpose,it is violative of the Constitution. If it was obtained for someother
purpose, e.g. for housing, it is not violative of theConstitution because under Section 16, Article XI,
Members ofCongress are prohibited from obtaining loans from government-ownedbanks only if it is for a
business purpose.If the loan was granted before the effectivity of the Constitution onFebruary 2, 1987,
the Philippine National Bank cannot extend itsmaturity after February 2, 1987, if the loan was obtained
for abusiness purpose. In such case the extension is a financialaccommodation which is also prohibited
by the Constitution.B. Section 40 of the Civil Service Decree has been repealed byrepublic Act No. 6654.
As a lawyer of Jose Tapulan, I will file apetition for mandamus to compel his reinstatement. In
accordance withthe ruling in Mangubat vs. Osmeña, G.R. No. L-12837, April 30, 1959,there is no need to
exhaust all administrative remedies by appealingto Civil Service Commission, since the act of the
governor ispatently illegal.

TOPIC: LAW ON PUBLIC OFFICERS

An existing law grants government employees the option to retire uponreaching the age of 57 years and
completion of at least 30 years oftotal, government service. As a fiscal retrenchment measure, theOffice
of the President later issued a Memorandum Circular requiringphysical incapacity as an additional
condition for optionalretirement age of 65 years. A government employee, whose applicationfor
optional retirement was denied because he was below 65 years ofage and was not physically
incapacitated, filed an action in courtquestioning the disapproval of his application claiming that
theMemorandum Circular is void. Is the contention of the employeecorrect? Explain.

SUGGESTED ANSWER:

Yes, the contention of the employee is correct. In Marasigan vs.Cruz, it was held that such memorandum
circular is void. Byintroducing physical capacity as additional condition for optionalretirement, the
memorandum circular tried to amend the law. Suchpower is lodged with the legislative branch and not
with theexecutive branch.

TOPIC: LAW ON PUBLIC OFFICERS

In 1986, F, then the officer-in-charge of Botolan, Zambales, wasaccused of having violated the ANTI-Graft
and Corrupt Practices Actbefore the Sandigan Bayan. Before he could be arraigned, he waselected
Governor of Zambales. After his arraignment, he put underpreventive suspension by the Sandiganbayan
" for the duration of thetrial".(1) Can F successfully challenge the legality of his preventivesuspension on
the ground that the criminal case against him involvedacts committed during his term as officer-in-
charge and not duringhis term as Governor?(2) Can F validly object to the aforestated duration of
hissuspension?

SUGGESTED ANSWER:

(1) No, F cannot successfully challenge the legality of hispreventive suspension on the ground that the
criminal case againsthim involve acts committed during his term as OIC and not during histerm as
governor because suspension from office under Republic Act3019 refers to any office that the
respondent is presently holdingand not necessarily to the one which he hold when he committed
thecrime with which he is charged. This was the ruling in Deloso vs.Sandiganbayan, 173 SCRA 409(2) Yes,
F Can validly object to the duration of the suspension. InDeloso vs. Sandiganbayan, 173 SCRA 409, it was
held that theimposition of preventive suspension for an indefinite period of timeis unreasonable and
violates the right of the accused to due process.The people who elected the governor to office would be
deprived ofhis services for an indefinite period, and his right to hold officewould be nullified. Moreover,
since under Section 42 of the CivilService Decree the duration of preventive suspension should belimited
to ninety (90) days, equal protection demands that theduration of preventive suspension under the Anti-
Graft and CorruptPractices Act be also limited to ninety (90) days only.

TOPIC: FREEDOM OF RELIGION; BENEVOLENT NEUTRALITY TEST

Angelina, a married woman, is a Division Chief in the Department of Scienceand Technology. She had
been living with a married man, not her husband,for the last fifteen (15) years. Administratively charged
with immorality andconduct prejudicial to the best interest of the service, she admits her live-
inarrangement, but maintains that this conjugal understanding is in conformitywith their religious
beliefs. As members of the religious sect,

Yahweh'sObservers

, they had executed a Declaration of Pledging Faithfulness whichhas been confirmed and blessed by their
Council of Elders. At the formalinvestigation of the administrative case, the Grand Elder of the sect
affirmed Angelina's testimony and attested to the sincerity of Angelina and her partnerin the profession
of their faith. If you were to judge this case, will youexonerate Angelina? Reasons.

SUGGESTED ANSWER:

Yes. (Estrada vs Escritor, August, 4, 2003 andJune 22, 2006)

Right to freedom of religion must prevail. Benevolentneutrality recognizes that government must pursue
its secular goals andinterests, but at the same time, strive to uphold religious liberty to thegreatest
extent possible within flexible constitutional limits. Although themorality contemplated by laws is
secular, benevolent neutrality could allowfor accommodation of morality based on religion, provided it
does not offendcompelling state interest. Benevolent neutrality approach requires that thecourt make
an individual determination and not dismiss the claim outright.

TOPIC: DISCIPLINE; PREVENTIVE SUSPENSION

Maximino, an employee of the Department of Education, is administrativelycharged with dishonesty and

gross misconduct. During the formalinvestigation of the charges, the Secretary of Education
preventivelysuspended him for a period of sixty (60) days. On the 60th day of thepreventive suspension,
the Secretary rendered a verdict, finding Maximinoguilty, and ordered his immediate dismissal from the
service.Maximino appealed to the Civil Service Commission (CSC), which affirmedthe Secretary's
decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA reversed the CSC
decision, exonerating Maximino.The Secretary of Education then petitions the Supreme Court (SC) for
thereview of the CA decision.a. Is the Secretary of Education a proper party to seek the review of theCA
decision exonerating Maximino? Reasons.b. If the SC affirms the CA decision, is Maximino entitled to
recoverback salaries corresponding to the entire period he was out of theservice? Explain your answer.

SUGGESTED ANSWER:

a. The Secretary of Education is not the proper party to seek review ofthe decision of the Court of
Appeals, because he is the one whoheard the case and imposed the penalty. Being the
disciplinaryauthority, the Secretary of Education should be impartial and shouldnot actively participate in
prosecuting Maximino (National AppellateBoard of the National Police Commission vs. Mamauag, 446
SCRA624 [2005]).b. As a general rule, Maximo is not entitled to recover back salariescorresponding to
the entire period he was out of the service becauseof the NO WORK NO PAY RULE. But if it is found that
he is illegallydismissed or suspended he is entitled to back wages and othermonetary benefits from the
time of his illegal dismissal or suspensionup to his reinstatement.

ALTERNATIVE ANSWER:

Maximo cannot recover back salariesduring his preventive suspension. The law does not provide for
it.Preventive suspension is not a penalty. During the preventivesuspension, he was not yet out of service.
However, he is entitled toback wages from the time of his dismissal until his reinstatement.The
enforcement of the dismissal pending appeal was punitive, andhe was exonerated (Gloria vs. Court of
Appeals, 306 SCRA 287[1999]). Impeachment; Grounds (2013)

TOPIC: VACANCY; SANGGUNIANG PANLALAWIGAN

On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesarsucceeded him by operation of
law. Accordingly, Benito, the highest rankingmember of the Sangguniang Panlalawigan was elevated to
the position ofVice-Governor. By the elevation of Benito to the office of Vice-Governor, avacancy in the
Sangguniang Panlalawigan was created.How should the vacancy be filed?

SUGGESTED ANSWER:

The vacancy shall be filled in the following manner:1. If Benito is affiliated with a political party, the
vacancy in the SangguiniangPanlalawigan shall be filled by a nomination and certificate of membership
ofthe appointee from the highest official of the political party. (must be filledwith someone who belongs
to the political party to maintain the partyrepresentation as willed by the people in the election).2. If
Benito is not affiliated with a political party, the vacancy shallbe filled by the PRESIDENT through the
executive secretary. (sec. 44-46, RA7160)

TOPIC: LAW OF PUBLIC OFFICERS; NEXT-IN-RANK RULE

No. 15 Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacantposition, the City Mayor
appointed Jose Reyes, a civil engineer who formerlyworked under Cruz but had been assigned to the
Office of the Mayor for thepast five years.Vicente Estrada, the Assistant City Engineer filed a protest with
the CivilService Commission claiming that being the officer next in rank he shouldhave been appointed
as City Engineer.1) Who has a better right to be appointed to the contested position?

SUGGESTED ANSWER:

1) On the assumption that Jose Reyes possesses the minimum qualificationrequirements prescribed by
law for the position, the appointment extended tohim is valid. Consequently, he has a better right than
Vicente Estrada. Theclaim of Estrada that being the officer next in rank he should have beenappointed as
City Engineer is not meritorious. It is a settled rule that theappointing authority is not limited to
promotion in filling up vacancies but maychoose to fill them by the appointment of persons with civil
service eligibilityappropriate to the position. Even if a vacancy were to be filled by promotion,the
concept of "next in rank" does not import any mandatory requirement thatthe person next in rank must
be appointed to the vacancy. What the civilservice law provides is that if a vacancy is filled by promotion,
the personholding the position next in rank thereto "shall be considered for promotion."Espanol v. Civil
Service Commission 206 SCRA 715.

ELECTION LAW QUESTIONS

TOPIC: ELECTION LAW; SECOND PLACER

Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,Benguet for the May 2004
elections. Thomas Palileng, another candidate forMayor filed a petition to annul/nullify his certificate of
candidacy and/or todisqualify on the ground that Cayat has been convicted of a crime involving

moral turpitude. Twenty three days before the election, Cayat’s

disqualification became final and executory. He, however won and wasproclaimed and assumed office.
Palileng filed an electoral protest contendingthat Cayat was ineligible to run for mayor. The Vice-Mayor
intervened andcontended that he should succeed Cayat in case he is disqualified becausePalileng was
only a second placer, hence, he cannot be declared as thewinner. Is the contention of the Vice-Mayor
correct? Why?

SUGGESTED ANSWER:

No, because there was no second placer, hence, Palileng should beproclaimed as the winner on the
following grounds:

First, the COMELEC’s Resolution of 12 April 2004 cancelling Cayat’s

certificate of candidacy due to disqualification became final and executory on17 April 2004 when Cayat
failed to pay the prescribed filing fee. Thus,Palileng was the only candidate for Mayor of Buguias,
Benguet in the 10 May2004 elections. Twenty-three days before the election day, Cayat wasalready
disqualified by final judgment to run for Mayor in the 10 May 2004elections. As the only candidate,
Palileng was not a second placer. On thecontrary, Palileng was the sole and only placer, second to none.
The doctrineon the rejection of the second placer, which triggers the rule on succession,does not apply
in the present case because Palileng is not a second-placer

but the only placer. Consequently, Palileng’s proclamation as Mayor of

Buguias, Benguet is beyond question.Second, there are specific requirements for the application of the
doctrine on

the rejection of the second placer. The doctrine will apply in Bayacsan’s

favor, regardless of his intervention in the present case, if two conditionsconc

ur: (1) the decision on Cayat’s disqualification remained pending on

election day, 10 May 2004, resulting in the presence of two mayoraltycandidates for Buguias, Benguet in
the elections; and (2) the decision on

Cayat’s disqualification became final only

after the elections. (Cayat v.COMELEC, April 27, 2007).

QUESTION:

It was contended that the doctrine of rejection of the secondplacer laid down in Labo v. COMELEC
should apply. Is the contentioncorrect? Why?

SUGGESTED ANSWER:

No. Labo, Jr. v. COMELEC, which enunciates thedoctrine on the rejection of the second placer, does not
apply because inLabo there was no final judgment of disqualification before the elections. Thedoctrine
on the rejection of the second placer was applied in Labo and a hostof

other cases because the judgment declaring the candidate’s

disqualification in Labo and the other cases had not become final before theelections. Labo and other
cases applying the doctrine on the rejection of thesecond placer have one common essential condition

the disqualification ofthe candidate had not become final before the elections. This essentialcondition
does not exist in the present case. (Cayat v. COMELEC).

In Labo, Labo’s disqualification became final only on 14 May 1992, three

days after the 11 May 1992 elections. On election day itself, Labo was stilllegally a candidate. In the case
of Cayat he was disqualified by final judgment 23 days before the 10 May 2004 elections. On election
day, Cayatwas no longer legally a candidate for mayor.

In short, Cayat’s candidacy for

Mayor was legally non-existent in the 10 May 2004 elections.

QUESTION:

What is the effect if a candidate is disqualified by final judgment? Explain.

SUGGESTED ANSWER

: The law expressly declares that a candidatedisqualified by final judgment before an election cannot be
voted for, andvotes cast for him shall not be counted. This is a mandatory provision of law.Section 6 of
Republic Act No. 6646, The Electoral Reforms Law of 1987,states: Any candidate who has been declared
by final judgment to be disqualifiedshall not be voted for, and the votes cast for him shall not be
counted. If forany reason a candidate is not declared by final judgment before an electionto be
disqualified and he is voted for and receives the winning number ofvotes in such election, the Court or
Commission shall continue with the trialand hearing of the action, inquiry, or protest and, upon motion
of thecomplainant or any intervenor, may during the pendency thereof order thesuspension of the
proclamation of such candidate whenever the evidence ofhis guilt is strong.Section 6 of the Electoral
Reforms Law of 1987 covers two situations. Thefirst is when the disqualification becomes final before the
elections, which isthe situation covered in the first sentence of Section 6. The second is whenthe
disqualification becomes final after the elections, which is the situationcovered in the second sentence
of Section 6.The present case falls under the first situation. Section 6 of the ElectoralReforms Law
governing the first situation is categorical: a candidatedisqualified by final judgment before an election
cannot be voted for, and

votes cast for him shall not be counted. The Resolution disqualifying Cayatbecame final on 17 April 2004,
way before the 10 May 2004 elections.

Therefore, all the 8, 164 votes cast in Cayat’s favor are stray. Cayat wasnever a candidate in the 10 May
2004 elections. Palileng’s proclamation is

proper because he was the sole and only candidate, second to none. (Cayatv. COMELEC).

QUESTION:

Why is the proclamation of Cayat void? Explain.

SUGGESTED ANSWER:

Cayat’s proclamation is void because the decision

disqualifying him had already become final on 17 April 2004. There is nolonger any need to ascertain
whether there was actual knowledge by thevoters of his disqualification when they casted their votes on
election day

because the law mandates that Cayat’s votes “shall not be counted”. There is

no disenfranchisement of the voters. Rather, the voters are deemed by law tohave deliberately voted for
a non-candidate, and thus their votes are stray

and “shall not be counted”. (Cayat. v. COMELEC).

QUESTION:

Is the intervention of the Vice-Mayor proper? Why?

SUGGESTED ANSWER

: No. The petition-in-intervention should be rejectedbecause the doctrine on the rejection of the second
placer does not apply to

this case. The doctrine applies only if the winning candidate’s disqualification

has not yet become final and executory before the election. In this case, thedisqualification was final and
executory before the election, hence, there wasno second placer. (Cayat v. COMELEC).
TOPIC: SECOND PLACER

It was contended that since Morales was disqualified, the second placershould be proclaimed as the
winner. Is the contention correct? Why?

SUGGESTED ANSWER:

In Labo v. COMELEC, the Court has ruled that asecond place candidate cannot be proclaimed as a
substitute winner.The rule is that, the ineligibility of a candidate receiving majority votes doesnot entitle
the eligible candidate receiving the next highest number of votes tobe declared elected. A minority or
defeated candidate cannot be deemedelected to the office. As a consequence of ineligibility, a
permanent vacancy in the contestedoffice has occurred. This should now be filled by the vice-mayor
inaccordance with Sec. 44 of the Local Government Code. (Rivera III, et al. v.COMELEC, et al., G.R. No.
167591, May 9, 2007 citing Labo v. COMELEC,G.R. No. 105111, July 3, 1992, 211 SCRA 297).

TOPIC: THREE TERM LIMIT; EVEN AS CARETAKER

QUESTION:

Mayor Marino Morales ran for a fourth term despite havingserved for three (3) consecutive terms as
Mayor of Mabalacat, Pampanga. Inanswer to a petition to cancel his certificate of candidacy, he alleged
thatwhile he served

his second term, he did it as a “caretaker of the office” or asa “de facto officer” because he was
suspended by the Ombudsman from

January 16, 1999 to July 15, 1999 and that his proclamation was declaredvoid and which became final
and executory on August 6, 2001. TheCOMELEC declared him disqualified. Before the Supreme Court,
hecontended that his second term from July 1, 1999 to June 30, 2001 may notbe counted since his
proclamation was void. Is the contention correct? Why?

SUGGESTED ANSWER:

No, because his service from July 1, 1999 to June30, 2001 was for a full term, hence, the three-term
limit rule applies to him.This is especially so that he assumed office. He served as mayor up to June30,
2001. He was mayor for the entire period notwithstanding the decision inthe electoral protest case
ousting him as mayor. As held in Ong v. Alegre,G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA
473, suchcircumstance does not constitute an interruption in serving the full term. InOng, he served the
full term even as there was a declaration of failure ofelection.Section 8, Article X of the Constitution
provides that the terms of the office ofelected local officials x x x, shall be three years and no such official
shallserve for more than three consecutive terms. x x xSection 43(b) of R.A. No. 7160 (the Local
Government Code) clearlyprovides that no local official shall serve for more than three consecutiveterms
in the same position.Morales has been mayor of Mabalacat continuously without any break sinceJuly 1,
1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R.No. 167591 and Dee v. COMELEC, et al.,
G.R. No. 170577, May 6, 2007).

QUESTION:
Explain the reason for the maximum term limit.

SUGGESTED ANSWER:

The framers of the Constitution wanted to establishsome safeguards against the excessive accumulation
of power as a result ofconsecutive terms. As held in Latasa v. COMELEC, G.R. No. 154829, December 10,
2003, 417SCRA 601, the three-term limit is an exception to the peop

le’s freedom to

choose those who will govern them in order to avoid the evil of a singleperson accumulating excessive
power over a particular territorial jurisdictionas a result of a prolonged stay in the same office. (Rivera III,
et al. v.

COMELEC, et al., G.R. No. 167591 and companion case, May 9, 2007).

QUESTION:

Is not the case of Morales similar to the case of Lonzanida vCOMELEC? Explain.

SUGGESTED ANSWER:

No. In Lonzanida v. COMELEC, while he assumedoffice, he voluntarily vacated when there was a
declaration of failure ofelection. He did not fully serve the term, hence, he was qualified to run for athird
term.The difference between the case at bench and Lonzanida is at onceapparent. For one, in Lonzanida,
the result of the mayoralty elections was

declared a nullity for the stated reason of “failure of election”, and, as a

consequence thereof, the proclamation of Lonzanida as mayor-elect wasnullified, followed by an order

for him to vacate the office of the mayor. Foranother, Lonzanida did not fully serve the 1995-1998
mayoral term, therebeing an involuntary severance from office as a result of legal processes. Infine,
there was an effective interruption of the continuity of service.On the other hand, the failure-of-election
factor does not obtain in the presentcase. But more importantly, here, there was actually no interruption
or break

in the continuity of Francis’ service respecting the 1998

-2001 term. UnlikeLonzanida, Francis was never unseated during the term in question; henever ceased
discharging his duties and responsibilities as mayor of SanVicente, Camarines Norte for the entire period
covering the 1998-2001 term.Instead, Ong v. Alegre applies to Morales. Francis Ong was elected
andassumed the duties of the mayor of San Vicente, Camarines Norte for threeconsecutive terms. But
his proclamation as mayor in the May 1998 electionwas declared void. As ruled, his service for the term
1998 to 2001 is for thefull term. Clearly, the three-term limit rule applies to him. There is no reasonwhy
this ruling should not also apply to Morales who is similarly situated.(Rivera III, et al. v. COMELEC, et al.,
May 9, 2007).

QUESTION:
What are the requirements which must concur for the three-term limit to apply?

SUGGESTED ANSWER:

For the three-term limit to apply, the following twoconditions must concur:1) that the official concerned
has been elected for three consecutive terms inthe same local government post; and2) that he has fully
served three consecutive terms. (Lonzanida v.COMELEC, G.R. No. 133495, September 3, 1998, 295 SCRA
157; Ong v. Alegre, 479 SCRA 473; Adormeo v. COMELEC, 376 SCRA 90; Rivera III, etal. v. COMELEC, et al.,
G.R. No. 167591, May 9, 2007).

TOPIC: ASSUMPTION OF OFFICE; TERM

Morales cited Borja v. COMELEC to apply to him. Is this case applicable?Why?

SUGGESTED ANSWER:

No, because with the death of Mayor Cruz, Capcoassumed office as mayor by virtue of the principle of
succession, he beingthe vice-mayor. He was not therefore, elected even if he served the rest ofthe term
of the mayor, hence, his assumption of the office of the mayor uponthe death of the incumbent mayor
may not be regarded as a term.Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002,
376SCRA 90, it was held that assumption of the office of mayor in a recall

election for the remaining term is not the “term” contemplated under Section

8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local

Government Code). There was a “break” in the service of the mayor. H

e was

a “private citizen” for a time before running for mayor in the recall elections.

(Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).

TOPIC: VACANCY; SUCCESSION; RECALL

Governor Diy was serving his third term when he lost his governorship in arecall election.(a) Who shall
succeed Governor Diy in his office as Governor?

SUGGESTED ANSWER:

The candidate who received the highest number of votes in the recallwill succeed Governor Diy (Section
72 of the Local Government Code).

(b) Can Governor Diy run again as governor in the next election?

SUGGESTED ANSWER:

Yes, because recall election is aninterruption of the consecutiveness of the term of office it cannot
becounted. A recall election is a mid-way election and the term is notcompleted when one is conducted.
The third term of Governor Diyshould not be included in computing the the=ree-term limit.(Lonzanida
vs. Commission on Elections, 311 SCRA 602 [1999]).(c) Can Governor Diy refuse to run in the recall
election and insteadresign from his position as governor?

SUGGESTED ANSWER:

Governor Diy cannot refuse to run in therecall election. He is automatically considered as a duly
registeredcandidate. (Section 71, Local Government Code).

ALTERNATIVE ANSWER:

YES, Governor Diy is not compelled to runin a recall election. Recall election is called because the
electorate haslost confidence to the elective official. He may instead resign from hisposition.

TOPIC: EFFECT OF CANCELLED CERTIFICATE OF CANDIDACY

What is the effect if the certificate of candidacy of a candidate is cancelled?Explain.

SUGGESTED ANSWER:

Any candidate who has been declared by final judgment to be disqualifiedshall not be voted for, and the
votes cast for him shall not be counted. (Secs.6 and 7, RA 6646). Any vote in favor of a person who has
not filed a certificate of candidacy or infavor of a candidate for an office for which he did not present
himself shall beconsidered as a stray vote but it shall not invalidate the whole ballot. (Sec.211, Omnibus
Election Code)Morales can not be considered a candidate in the May 2004 elections. Notbeing a
candidate, the votes cast for him should not be counted and must beconsidered stray votes. (Rivera III, et
al. v. COMELEC, G.R. No. 167591,May 9, 2007).

TOPIC: EFFECT OF A TIE

What is the proper procedure to be resorted to in case of a tie? Explain.

SUGGESTED ANSWER:

To resolve the tie, there shall be drawing of lots.Whenever it shall appear from the canvass that two or
more candidates havereceived an equal and highest number of votes, or in cases where two ormore
candidates are to be elected for the same position and two or morecandidates received the same
number of votes for the last place in thenumber to be elected, the board of canvassers, after recording
this fact in itsminutes, shall by resolution, upon five days notice to all the tied candidates,hold a special
public meeting at which the board of canvassers shall proceedto the drawing of lots of the candidates
who have tied and shall proclaim aselected the candidates who may favored by luck, and the candidates
soproclaimed shall have the right to assume office in the same manner as if hehad been elected by
plurality of votes. The board of canvassers shallforthwith make a certificate stating the name of the
candidate who had beenfavored by luck and his proclamation on the basis thereof.Nothing in this section
shall be construed as depriving a candidate of his rightto contest the election. (Sec. 240, BP 881; Tugade
v. COMELEC, et al., G.R.No. 171063, March 2, 2007).

TOPIC: EFFECT OF WITHDRAWAL OF CERTIFICATE OF CANDIDACY

 Hans Roger filed his certificate of candidacy but withdrew the same. He wassubstituted by Joy Luna but
the COMELEC denied due course to hercertificate on the ground that Hans being under age, he could not
have filed avalid certificate of candidacy. There was, however, no petition to deny Hanscertificate of
candidacy. Did the COMELEC act correctly? Why?

SUGGESTED ANSWER:

No. The COMELEC acted with grave abuse ofdiscretion amounting to lack or excess of jurisdiction in
declaring that HansRoger, being under age, could not be considered to have filed a validcertificate of
candidacy and, thus, could not be validly substituted by Luna.The COMELEC may not, by itself, without
the proper proceedings, deny duecourse to or cancel a certificate of candidacy filed in due form.
(Cipriano v.COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchezv. Del Rosario, the
Court ruled that the question of eligibility or ineligibility ofa candidate for non-age is beyond the usual
and proper cognizance of theCOMELEC.If Hans Roger made a material misrepresentation as to his date
of birth orage in his certificate of candidacy, his eligibility may only be impugnedthrough a verified
petition to deny due course to or cancel such certificate ofcandidacy under Section 78 of the Election
Code.In this case, there was no petition to deny due court to or cancel thecertificate of candidacy of
Hans Roger. The COMELEC only declared thatHans Roger did not file a valid certificate of candidacy and,
thus, was not a

valid candidate in the petition to deny due course to or cancel Luna’s

certificate of candidacy. In effect, the COMELEC, without the proper

proceedings, cancelled Hans Roger’s certificate of candidacy and declared

the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983, April 24, 2007).

TOPIC: PRE-PROCLAMATION CONTESTS

The 1st Legislative District of South Cotabato is composed of GeneralSantos and three municipalities
including Polomolok. During the canvassingproceedings before the District Board of Canvassers in
connection with the2007 congressional election, candidate MP objected to the certificate pfcanvass for
Polomolok on the ground that it was obviously manufactured,submitting as evidence the affidavit of a
mayoralty candidate of Polomolok.The certificate of canvass for General Santos was likewise objected to
by MPon the basis of the confirmed report of the local NAMFREL that 10 electionreturns from non-
existent precincts were included in the certificate. MPmoved that the certificate of canvass for General
Santos be corrected toexclude the the result from the non-existent precincts. The District Board of

Canvassers denied both objections and ruled to include the certificate ofcanvass. May MP appeal the
rulings to the COMELEC? Explain.

SUGGESTED ANSWER:

NO. COMELEC’s Jurisdiction over pre

-proclamation cases pertains only toelections of regional, provincial and city officials. (Sec. 15, RA 7166)

–
 Nopre-proclamation cases in election of national officials. For purposes of theelections for President, V-
President, Senator and Member of the House ofRepresentatives, no pre-proclamation cases shall be
allowed on mattersrelating to the preparation, transmission, receipt, custody and appreciation ofthe
election returns or the certificates of canvass, as the case may be.

TOPIC: PRE-PROCLAMATION CONTROVERSIES; EXTENT OF

COMELEC’S POWER

What is the extent of the power of the COMELEC in pre-proclamationcontroversy? Explain.

SUGGESTED ANSWER:

It is a well-established rule in pre-proclamationcases that the Board of Canvassers is without jurisdiction

to go beyond whatappears on the face of the election return. The rationale is that a fullreception of
evidence aliunde and the meticulous examination of voluminouselection documents would run counter
to the summary nature of a pre-proclamation controversy. However, this rule is not without any
exception. InLee v. Commission on Elections, it was held that if there is a prima facieshowing that the
return is not genuine, several entries having been omitted inthe questioned election return, the doctrine
does not apply. The COMELECis thus not powerless to determine if there is basis for the exclusion of
thequestioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc,et al. v. COMELEC, et al., G.R.
No. 171882, April 3, 2007).

TOPIC: INVALIDATION OF BALLOTS; SAME GENERAL APPEARANCEAND PICTORIAL EFFECT

May the COMELEC invalidate certain ballots merely on a finding that thewritings have the same general
appearance and pictorial effect? Explain.

SUGGESTED ANSWER:

No. General resemblance is not enough to warrantthe conclusion that two writings are by the same
hand. (Silverio v. Clamor,125 Phil. 917 (1967)).In order to reach the conclusion that two writings are by
the same hand theremust not only be present class characteristics but also individualcharacter

istics or ‘dents and scratches’ in sufficient quantity to exclude the

theory of accidental coincidence; to reach the conclusion that writings are bydifferent hands we may find
numerous likeness in class characteristics butdivergences in individual characteristics, or we may find
divergences in both,but the divergence must be something more than mere superficial

differences. (Osborn’s Questioned Documents, p. 244; Delos Reyes v.

COMELEC, et al., G.R. No. 170070, February 28, 2007).

TOPIC: NEIGHBORHOOD RULE

What is the “neighborhood rule”? Explain.

SUGGESTED ANSWER:

The votes contested in this appeal are all misplaced votes, i.e., votes cast fora candidate for the wrong or
inexistent office. In appreciating such votes, the

COMELEC may applied the “neighborhood rule.” As used by the Court, this

nomenclature, loosely based on a rule of the same name devised by theHouse of Representatives
Electoral Tribunal (HRET) in Nograles v. Dureza,HRET Case No. 34, June 16, 1989, 1 HRET Rep. 138), refers
to anexception to the rule on appreciation of misplaced votes under Section211(19) of Batas Pambansa
Blg. 881 (Omnibus Election Code) whichprovides:

“Any vote in favor of a person who has not filed a certificate of candidacy or

in favor of a candidate for an office for which he did not present himself shall

be considered as a stray vote but it shall not invalidate the whole ballot.”

Section 211(19) is meant to avoid confusion in the minds of the electionofficials as to the candidates
actually voted for and to stave off any schemingdesign to identify the vote of the elector, thus defeating
the secrecy of theballot which is a cardinal feature of our election laws. (Amurao v. Calangi, 10Phil. 347
(1958)). Section 211(19) also enforces Section 195 of the OmnibusEle

ction Code which provides that in preparing the ballot, each voter must “fill

his ballot by writing in the proper place for each office the name of the

individual candidate for whom he desires to vote.”

Excepted from Section 211(19) are ballots with:(1) a general misplacement of an entire series of names
intended tobe voted for the successive offices appearing in the ballot (Corderov. Hon. Moscardon, 217
Phil. 392 (1984));(2) a single (Farin v. Gonzales, 152 Phil. 598 (1973)) or double(Sarmiento v. Quemado,
No. L-18027, 29 June 1962, 5 SCRA 438)misplacement of names where such names were preceded
orfollowed by the title of the contested office or where the voter wrote

after the candidate’s name a directional symbol indicating the correct

office for which the misplaced name was intended (Moya v. DelFierro, 69 Phil. 199 (1939)); and(3) a
single misplacement of a name written(a) off-center from the designated space (Mandac v.Samonte, 54
Phil. 706 (1930)),

(b) slightly underneath the line for the contested office(Sarmiento v. Quemado, No. L-18027, 29 June
1962, 5SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)),(c) immediately above the title for the
contested office((Villavert v. Fornier, 84 Phil. 756 (1949)), or(d) in the space for an office immediately
following that forwhich the candidate presented himself. ((Abad v. Co, G.R.No. 167438, 25 July 2006, 496
SCRA 505 and Ferrer v.Commission on Elections, 386 Phil. 431 (2000)).In these instances, the misplaced
votes are nevertheless credited to thecandidates for the office for which they presented themselves
because the
voters’ intention to so vote is clear from the face of the ballots. This is in

consonance with the settled doctrine that ballots should be appreciated with

liberality to give effect to the voters’ will. (Velasco v. COMELEC, et al., G.R.

No. 166931, February 22, 2007).

TOPIC: MARKED BALLOT

When is a ballot considered as marked? Explain.

SUGGESTED ANSWER:

In order for a ballot to be considered marked, inthe sense necessary to invalidate it, it must appear that
the voter designedlyplace some superfluous sign or mark on the ballot which might serve toidentify it
thereafter. No ballot should be discarded as a marked ballot unlessits character as such is unmistakable.
The distinguishing mark which the lawforbids to be placed on the ballot is that which the elector may
have placedwith the intention of facilitating the means of identifying said ballot, for thepurpose of
defeating the secrecy of suffrage which the law establishes. Thus,marked ballots are ballots containing
distinguishing marks, the purpose ofwhich is to identify them. (Perman v. COMELEC, et al. G.R. No.
174010,February 8, 2007, Tinga, J).

TOPIC: FAILURE OF ELECTION

When is there failure of election?

SUGGESTED ANSWER:

There are three instances where a failure ofelections may be declared, thus:(a) the election in any polling
place has not been held on the date fixedon account of force majeure, violence, terrorism, fraud or
otheranalogous causes;(b) the election in any polling place has been suspended before thehour fixed by
law for the closing of the voting on account of forcemajeure, violence, terrorism, fraud or other
analogous causes; or(c) after the voting and during the preparation and transmission ofthe election
returns or in the custody or canvass thereof, suchelection results in a failure to elect on account of force
majeure,violence, terrorism, fraud or other analogous causes.In all three instances, there is a resulting
failure to elect. In the firstinstance, the election has not been held. In the second instance, theelection
has been suspended. In the third instance, the preparationand the transmission of the election returns
give rise to theconsequent failure to elect; the third instance is interpreted to meanthat nobody
emerged as a winner. (Mutilan v. COMELEC, et al., G.R.No. 171248, April 2, 2007).

TOPIC: CERTIORARI OF INTERLOCUTORY ORDER OF A COMELECDIVISION

May an interlocutory order of a COMELEC Division be the subject ofcertiorari to the SC? Explain.

SUGGESTED ANSWER:

As a rule, No. The exception is in an unusual casewhere the petition for certiorari questioning the
interlocutory order of aCOMELEC Division was pending before the SC, the main case which
wasmeanwhile decided by the COMELEC En Banc was likewise elevated to theCourt. Thus, there was a
situation where the petition for certiorari questioningthe interlocutory orders of the COMELEC Division
and the petition forcertiorari and prohibition assailing the Resolution of the COMELEC En Bancon the
main case were consolidated. The issues raised in the petition forcertiorari were also raised in the main
case and therefore there was actuallyno need to resolve the petition assailing the interlocutory orders.
(Rosal v.COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., etal. v. COMELEC, et al.,
G.R. No. 164496-505, April 2, 2007).Note:Thus, in general, interlocutory orders of a COMELEC Division
are notappealable, nor can they be proper subject of a petition for certiorari. To ruleotherwise would not
only delay the disposition of cases but would alsounnecessarily clog the Court docket and unduly burden
the Court. This doesnot mean that the aggrieved party is without recourse if a COMELEC Divisiondenies
the motion for reconsideration. The aggrieved party can still assign aserror the interlocutory order if in
the course of the proceedings he decides toappeal the main case to the COMELEC En Banc. The
exception enunciatedin Kho and Repol is when the interlocutory order of a COMELEC Division is apatent
nullity because of absence of jurisdiction to issue the interlocutoryorder, as where a COMELEC Division
issued a temporary restraining orderwithout a time limit, which is the Repol case, or where a COMELEC
Division

admitted an answer with counter-protest which was filed beyond thereglementary period, which is the
Kho case.

The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that “it is

the decision, order or ruling of the COMELEC En Banc that, in accordancewith Section 7, Art. IX-A of the
Constitution, may be brought to the Supreme

Court on certiorari.” The exception provided in Kho and Repol is unavailing in

this case because unlike in Kho and Repol, the assailed interlocutory ordersof the COMELEC First Division
in this case are not a patent nullity. Theassailed orders in this case involve the interpretation of the
COMELEC Rulesof Procedure. Neither will the Rosal case apply because in that case thepetition for
certiorari questioning the interlocutory orders of the COMELECSecond Division and the petition for
certiorari and prohibition assailing theResolution of the COMELEC En Banc on the main case were
alreadyconsolidated.The Court also notes that the COMELEC First Division has already issued anOrder
dated 31 May 2005 dismissing the protests and counter-protests inEPC Nos. 2004-36, 2004-37, 2004-38,
2004-39, 2004-40, 2004-41, 2004-42,2004-43, 2004-44, and 2004-45 for failure of the protestants and
protesteesto pay the required cash deposits. Thus, the Court have this peculiarsituation where the
interlocutory order of the COMELEC First Division ispending before the Court but the main case has
already been dismissed bythe COMELEC First Division. This situation is precisely what the Court aretrying
to avoid by insisting on strict compliance of the rule that aninterlocutory order cannot by itself be the
subject of an appeal or a petitionfor certiorari.

TOPIC: MISREPRESENTATION IN THE CERTIFICATE OF CANDIDACY

QUESTION:

When is misrepresentation in a certificate of candidacymaterial? Explain.

SUGGESTED ANSWER:

A misrepresentation in a certificate of candidacy ismaterial when it refers to a qualification for elective

office and affects the

candidate’s eligibil

ity. Second, when a candidate commits a materialmisrepresentation, he or she may be proceeded

against through a petition todeny due course to or cancel a certificate of candidacy under Section 78,
orthrough criminal prosecution under Section 262 for violation of Section 74.Third, a misrepresentation
of a non-material fact, or a non-materialmisrepresentation, is not a ground to deny due course to or
cancel a

certificate of candidacy under Section 78. In other words, for a candidate’s

certificate of candidacy to be denied due course or cancelled by theCOMELEC, the fact misrepresented
must pertain to a qualification for theoffice sought by the candidate. (Nelson T. Lluz, et al. v. COMELEC, et
al.,G.R. No. 172840, June 7, 2007).

QUESTION:

If a candidate misrepresents his profession, is he disqualified?Explain.

SUGGESTED ANSWER:

No. No elective office, not even the office of thePresident of the Republic of the Philippines, requires a
certain profession oroccupation as a qualification.Profession or occupation not being a qualification for
elective office,misrepresentation of such does not constitute a material misrepresentation.Certainly, in a
situation where a candidate misrepresents his or herprofession or occupation in the certificate of
candidacy, the candidate maynot be disqualified from running for office under Section 78 as his or
hercertificate of candidacy cannot be denied due course or canceled on suchground. (Nelson T. Lluz, et
al. v. COMELEC, et al., G.R. No. 172840, June 7,2007).

TOPIC: PARDON; RUNNING FOR ELECTIVE POSITION

During his campaign sortie in Barangay Salamanca, Mayor Galicia wasarrested at a PNP checkpoint for
carrying high-powered firearms in his car.He was charged and convicted for violation of the COMELEC
gun ban. Hedid not appeal his conviction and instead applied for executive clemency. Acting on the
favorable recommendation of the Board of Pardons and Parole,the President granted him pardon. Is he
eligible to run against for an electiveposition?. Explain Briefly.

SUGGESTED ANSWER:

Mayor Galicia can run again for an elective officebut not immediately. Under Section 40 of the Local
Government Code, hecannot run for an elective office within two (2) years after serving sentence.Under
Section 12 of the Omnibus Election Code, he can run for an electivenational office after the expiration of
five (5) years from his service ofsentence. The pardon granted to him is invalid. The offense involved
aviolation of the Omnibus Election Code and the pardon was granted withoutthe favorable
recommendation of the Commission on Elections. (Section 5, Article IX-C of the Constitution).

ALTERNATIVE ANSWER:
No. Galicia is not eligible to run for an electiveposition because the executive clemency is not valid and
effective because itwas granted with constitutional infirmity. The Constitution requiresrecommendation
from the COMELEC before the President may grantexecutive clemency for offenses violating election
laws.

TOPIC: THREE-TERM LIMIT; CONTEST; SUBSTITUTION

Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi. After
being proclaimed Vice-Governor in the 2004elections, his opponent, Khalil, filed an election protest
before theCommission on Election. Ruling with finalty on the protest, the COMELEC

declared Khalil as the duly elected Vice-Governor though the decision waspromulgated only in 2007,
when Abdul had fully served his 2004-2007 termand was in fact already on his 2007-2010 term as Vice
Governor.a. Abdul now consults you if the can still run for Vice-Governor of Tawi-Tawi in the forthcoming
May 2010 election on the premise that hecould not be considered as having served as Vice-Governor
from2004-2007 because he was not duly elected to the post, as heassumed office merely as a
presumptive winner and thatpresumption was later overturned when COMELEC decided withfinality that
had lost in the May 2004 elections. What will be youradvice?b. Abdul also consults you whether his
political party can validlynominate his wife as subtitute candidate for Vice-Mayor of Tawi-Tawiin May
2010 elections in case the COMELEC disqualifies him anddenies due course to or cancels his certificate of
candidacy in view ofa false material representation therein. What will be your advice?

SUGGESTED ANSWER:

a. Abdul can no longer run for Vice-Governor in the forthcoming May2010 election because there is no
interruption of service of his 2004-2007 term. He is considered to have already served and thereof it
iscounted in the consecutiveness of his term of office. (Ong v. Alegre,Jan. 23, 2006).b. I will advise him
that his wife can be a substitute if his wife is amember of the political party and is certified by such
political partythat she is going to substitute Abdul as candidate for Vice-Governorand that the
substitution must be made within the prescribed periodprovided by law. Provided further that his wife is
eligible to holdpublic office meaning she has all the qualifications and none of thedisqualifications.