ADMINISTRATIVE LAW

PUBLIC OFFICERS &

ELECTION LAWS

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 PART I

Notes on
Administrative Law

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 defined.
• Part of public law which fixes the organization and
determines the competence of the administrative
authorities, and indicates to the individual remedies
for the violation of his rights. (Goodnow)

• The law that governs the organization, functions and

procedures of administrative agencies of the
government to which quasi-legislative powers are
delegated and quasi-judicial powers are granted,
and the extent and the manner to which such
agencies are subject to control by the courts. (SEC v.
Chenery Corp. 332 US 194)
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 Kinds
1. Statutes setting up administrative authorities.
2. Rules, regulations or orders of such
administrative authorities promulgated
pursuant to the purposes for which they are
created.
3. Decisions or orders of such administrative
authorities made in the settlement of
controversies arising in their particular fields.
4. Body of doctrines and decisions dealing with the
creation, operation and effect of determinations
and regulations of such administrative
authorities.
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 Briefly:

Administrative Law consists of pertinent

provisions of the Constitution, special
legislations creating specialized agencies,
the 1987 Administrative Code and
provisions of the Revised Administrative
Code which are not inconsistent with
those of the 1987 Code.

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 administration vs. government
Government is the organization or agency
through which a political unit exercises
authority and performs functions usually
classified according to the distribution of
power within it; (GRP)
Administration refers to the aggregate of
those persons in whose hands the reins of
government are entrusted by the people
for the time being. (Duterte Admin)
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 “public office”
Administrative agencies, boards and commissions
are public office.
Public Office refers to the right, authority and duty,
created and conferred by law, by which, for a given
period either fixed by law or enduring at the
pleasure of the appointing power, an individual is
invested with some portion of the sovereign
functions of government, to be exercised by that
individual for the benefit of the public. (Fernandez vs.
St. Tomas, 248 SCRA 194; 1995)
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Administrative Body or Agency:
 Organ of government, other than a court and other
than a legislature, which affects the rights of private
parties either through adjudication or rule-making.
CRITERION:
A body or agency is administrative where its
function is primarily regulatory even if it conducts
hearings and determines controversies to carry out
its regulatory duty. On its rule-making authority, it
is administrative when it does not have discretion to
determine what the law shall be but merely
prescribes details for the enforcement of the law.
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how created and abolished?
 Consitutional provisions (COA, COMELEC,
CSC, OMBUDSMAN, CHR, CB, NAPOLCOM,
NEDA)
 Legislative enactment
 Authority of Law

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 reasons for creating
administrative agencies:

• To unclog court dockets.

• To meet the growing complexities of modern
society.
• To help in the regulation of ramified activities of
a developing country.
• To entrust to specialized agencies in specified
fields with their special knowledge, experience
and capability the task of dealing with problems
thereof as they have the experience and expertise
to provide solution thereto. (Packet Bell Phil Inc. vs.
SEC, 19 May 1987)
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 PRO & CON

PRO – expert in their particular field;

administrative functions that could not
be performed by Congress or the Court
(ex. Fixing rates, money claims,
franchising, etc.)
CON – arbitrary, lack of legal knowledge,
political bias, disregard fair hearing,
absence of standard rules of procedure,
dangerous combination of legislative-
executive-judicial functions
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 ADMINISTRATIVE ORGANIZATION
CONSTITUTION/Admin. Code of 1987:
Legislative power – Congress
Executive power – President
Judicial Power – Supreme Court and such
lower courts established by law
Independent Constitutional Commissions
Office of President/Departments (DFA, DOF,
DOJ, DA, DPWH, DepEd, DOLE, DND, DOH,
DTI, DAR, DILG, DOT, DOTC, DSWD, DBM,
DOST)
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 Types of Admin. Agencies

1. Offers gratuity, grant or special privileges (PVAO, GSIS,

SSS PAO)
2. Seeks to carry on certain functions of government (BIR,
BID, CSC, Central Bank, Customs, LRA)
3. Performs business service for the public (NEA, NFA,
NHA, PhilPostCorp, PNR, MWSA)
4. Regulates business affected with public interest (ERB,
NTC, LTFRB, Phil. Patent Office)
5. Seeks under police power to regulate private business
and individuals (SEC, MTCRB, GAB, PRC)
6. Seeks to adjust individual controversies because of a
strong social policy (ECC, PAGIBIG, DAR, NLRC)
7. Seeks to conduct investigation and gather evidence for
info, recommendation or prosecution of crimes (CHR,
NBI, Prosecution Office, Truth Commission)
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 power to reorganize
The legislature usually exercises the power to
create or abolish by delegating it to the President. The
means by which the legislature makes the delegation
is by authorizing reorganization.
REORGANIZATION is the process of
restructuring the bureaucracy’s organizational and
functional set-up, to make it more viable in terms of
the economy, efficiency, effectiveness and make it
more responsive to the needs of its public clientele as
authorized by law. (Simon v. CSC, 215 SCRA 410; 1992)
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 EXECUTIVE POWER:
“Executive power shall be vested in the President of the
Philippines.” (Art. VII, Sec. 1, Constitution)

i.e., “the power of control over all executive departments,

bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-
chief clause, the power to grant reprieves, commutations
and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee
foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget
to Congress, the power to address Congress (Art. VII, Secs.
14-23)

Other powers/residual power

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 Doctrine of Qualified Political
Agency
The department secretary acts as an alter
ego of the President, and his action is
presumed to be that of the President.
(Noblejas v. Salas, 67 SCRA 47)

BY AUTHORITY OF THE PRESIDENT:

The Executive Secretary or his deputy or
any cabinet secretary who acts and signs
“By authority of the President” acts not for
himself but for the President.
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Limitations on the
President’s Control Power
1. The abolition or creation of an executive office;
2. The suspension or removal of career executive
officials or employees without due process of
law; and
3. The setting aside, modification, or supplanting
of decisions of quasi-judicial agencies,
including that of the OP, on contested cases
that have become final pursuant to law or to
rules and regulations promulgated to
implement the law.
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President’s Power of
Supervision:
“Presidential power over local
governments is limited by the
Constitution to the exercise of general
supervision “to ensure that local affairs
are administered according to law.”
(Taule v. Santos, 200 SCRA 512, 1991)

The general supervision is exercised by

the President through the SILG.
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Delegation of legislative power to the
President:
Presidential Issuances--
Presidential Issuances in the exercise of his
ordinance power: executive order,
administrative order, proclamation,
memorandum order, memorandum circular and
general or special order.
Executive Order- act of the president providing for
rules of a general or permanent character in
implementaion or execution of constitutional or
statutory powers.
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Presidential issuances-- 2
Administrative Order – act of the president relating to
particular aspect of government operation
Proclamation – act of the President fixing a date or declaring a
statute or condition of public moment or interest
Memorandum Order - act of president on matters of
administrative detail or of temporary interest which concern
a particular officer or office.
Memorandum Circular – act of the president on matters
relating to internal administration which the president desires
to bring to the attention of all or some departments,
agencies, or offices.
General or specific order - act and command of the President in
his capacity as Commander-in-chief of the AFP

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powers of administrative agencies

Generally: The doctrine of separation of

powers prohibits the delegation of legislative
power, the vesting of judicial officers with non-
judicial functions, as well as the investing of
non-judicial officers with judicial powers.
But the doctrine of separation of powers
is not an iron-clad restriction against delegation
of powers.

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 Delegation of Power
Accordingly, with the growing complexities of
modern life, the multiplication of the subjects of
governmental regulations, and the increased
difficulty of administering the laws, the rigidity of
the theory of separation of governmental powers
has, to a large extent, been relaxed by permitting
the delegation of greater powers by the
legislature and the vesting of larger amount of
discretion in administrative and executive
agencies and officials, not only in the execution
of laws but also in the promulgation of certain
rules and regulations and the adjudication of
claims and disputes calculated to promote public
interest. (Calalang v Williams, 70 Phil 726, 1940)
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Tests to determine validity of
delegation:
Completeness Test. – the law must be
complete in all its items and conditions when
it leaves the legislature such that when it
reaches the delegate the only thing he will
have to do is enforce it.
Sufficiency standard Test. – there must be
adequate guidelines or limitations in the law
to map out the boundaries of the delegate’s
authority. Adequate standards are public
interest, public welfare, decency and good
order, justice and equity, public safety, public
policy, greater national interest, etc.
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 POWERS & FUNCTIONS
POWERS FUNCTIONS
QUASI-LEGISLATIVE RULE-MAKING
QUASI-JUDICIAL INVESTIGATIVE
INCIDENTAL DETERMINATIVE

EXPRESS “as so provided by law”

IMPLIED “if not excluded is included”
MINISTERIAL clear & specific duty to do
DISCRETIONARY requires exercise of judgment
MANDATORY must/shall
DIRECTORY may
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Express and Implied:

The grant of quasi-judicial power to the agency

carries with it the power to issue and
promulgate rules of procedures for the proper
exercise of its adjudicatory power, even
though the enabling law is silent on the
matter. For it is settled that where a general
grant of power is conferred or duty enjoined,
every particular power necessary for the
exercise of the one or the performance of the
other is also conferred by necessary
implication. (Angara v. Electoral Commission, 63 Phil 139)
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Ministerial and Discretionary:

A ministerial duty is one which is so

clear and specific as to leave no room
for the exercise of discretion in its
performance. On the other hand, a
discretionary duty is that which by its
nature requires the exercise of
judgment. (Carino v. Capulong, 222
SCRA 593)

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 Mandatory and Directory:
A mandatory statute is one that contains words of
command or of prohibition, the omission to
follow which renders the proceeding to which it
relates illegal and void, or the violation of which
makes the decision therein rendered invalid.
(Brehn v. Republic, 9 SCRA 172)
A directory statute is one which is permissive or
discretionary in nature and merely outlines the
act to be done in such a way that no injury can
result from ignoring it or that its purpose can be
accomplished in a manner other than that
prescribed and substantially the same result
obtained. (Miller v. Lakewood Housing Co., 180
NE 700, 81 ALR 1239)
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 Errors in Exercise of Powers
The Government is not bound by errors of public officers.

• The government can do no wrong. It authorizes only

legal acts by its officers. Its officers and agents do wrong
or commit unauthorized acts. xxx If the mistake or error
causes prejudice to another and it is done in bad faith or
beyond the scope of his authority, he alone is liable
therefor and he cannot invoke the non-suability of the
state as a defense against his personal liability. RP v.
Phil. Rabbit Bus Lines, 32 SCRA 211 (1970)

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 Presumption of Regularity.

The legal presumption is that official duty has

been duly performed. This presumption is particularly
strong as regards administrative agencies vested with
powers which are quasi-judicial in nature, in connection
with enforcement of laws affecting particular fields of
activity, the proper regulation and/or promotion of
which requires a technical or special training, aside from
a good knowledge and grasp of the over all conditions,
relevant to said fields, obtaining in the nation. For this
reason, unless there is absolutely no evidence to support
its decision or finding of such evidence is clearly,
manifestly and patently insubstantial, findings of fact of
an administrative agency are accorded respect and
finality. Sanders v. Veridiano II, 162 SCRA 88 (1988)
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 2 most important powers of
administrative officers:

Quasi-legislative or rule-making –
promulgate implementing rules
and regulations.

Quasi-judicial or adjudicatory
power – interpret and apply such
regulations.
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 Investigatory Power
• Inspect and examine
• Require attendance of witnesses, compel testimony and
produce evidence
• Hearing (although not necessary party)
• Contempt proceeding

Sec. 64(c) Revised Adm. Code_ “To order, when in his opinion
the good of the public service so requires, an investigation
of any action or the conduct of any person in the
Government service, and in connection therewith to
designate the official, committee or person by whom such
investigation shall be conducted.
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 Rule-making powers
This is the exercise of delegated
legislative power, involving no discretion
as to what the law shall be, but merely
the authority to fix the details in the
execution or enforcement of a policy set
out in the law itself. (ex. Implementing
Rules & Regulations, LOI, Executive
Orders)

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 Rule-making…2
REQUISITES OF VALIDITY:
1. It must be issued on the authority of law;
2. Not contrary to law and Constitution;
3. Reasonable;
4. Publication.

WITH PENAL PROVISIONS:

The law must itself declare as punishable the
violation of the rule or regulation;
The law shall define or fix the penalty for the
violation of the rule or regulation; and
The rule must be published in the Official Gazette.
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ADJUDICATORY POWERS

Proceedings partake of the nature of

judicial proceedings. Administrative
body is granted the authority to
promulgate its own rules of procedure.
Requisites of procedural due process
must be complied with.

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 administrative procedure
• Each quasi-judicial body has its own rules of
procedure, subject to Supreme Court modification;
• Procedure under 1987 Administrative Code and
Rules of Court suppletory;
• Technical rules not applicable;
• Case must be justiciable controversy;
• No forum shopping
• Substantial evidence required

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Administrative Due Process
(Ang Tibay v. CIR) REQUISITES--
• Right to a hearing;
• Tribunal must consider evidence presented;
• Decision must have something to support itself;
• Evidence must be substantial;
• Decision must be based on the evidence adduced at the
hearing or at least contained in the record and disclosed to
the parties;
• The Board or its judges must act on its or their independent
consideration of the facts and the law of the case, and not
simply accept the views of a subordinate in arriving at a
decision;
• Decision must be rendered in such a manner that the parties
to the controversies can know the various issues involved and
the reasons for the decision rendered.
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Determinative Powers (Incidental)
• Enabling Power- grant or demand permit
• Directing Power- power to assess by BIR
• Dispensing Power-exempt from or relax
from general prohibition
• Summary Power- compel or force
(witnesses, abatement of nuisance, levy)
• Examining Power- require production of
books, etc.
• Equitable Power- determine what is fair
and equitable
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EXHAUSTION OF ADMINISTRATIVE
REMEDIES
DOCTRINE:
Whenever there is an available
administrative remedy provided by law, no
judicial recourse can be made until all such
remedies have been availed of and
exhausted.

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 Reasons for the Doctrine
• If relief is sought from a superior administrative agency,
resort to the court may be unnecessary.
• The administrative agency should be given a chance to
correct its error.
• Principle of comity and convenience requires the courts
to stay their hand until the administrative processes are
completed.
• Since judicial review of administrative decisions is usually
made thru special civil actions, such proceedings will not
normally prosper if there is another plain, speedy and
adequate remedy in the ordinary course of law.

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 Corollary Principles
• Doctrine of Prior Resort (aka) primary
administrative jurisdiction. No resort to
court until such administrative body shall
have acted upon the matter.
• Doctrine of finality of administrative
action. No resort to court allowed unless
the administrative action has been
completed and there is nothing left to be
done in the administrative structure.

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Effect of failure to exhaust
administrative remedies.
The jurisdiction of the court is not affected;
but the complainant is deprived of a
cause of action which is a ground for a
motion to dismiss. However, if no motion
to dismiss is filed on this ground, there is
deemed to be a waiver. (Soto v. Jareno,
144 SCRA 116)

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 EXCEPTIONS:
Doctrine of Exhaustion of Administrative Remedies is
not a hard and fast rule, subject to limitations and
exceptions:

• Doctrine of Qualified Political Agency: when the

respondent is a department secretary whose acts,
as an alter ego of the President, bears the implied
approval of the latter;
• Where there is violation of due process.
• When the issue involved is purely a legal question;
• When the administrative body is in estoppel;
• When it would amount to a nullification of a
claim;
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 Exceptions--2
• When the act complained of is patently
illegal and amounts to lack or excess of
jurisdiction;
• When to require exhaustion of administrative
remedy would be unreasonable;
• When irreparable damage will be suffered;
• When strong public interest is involved;
• When the claim involved is small;
• When the subject matter is a private land in
land case proceedings;
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 Exceptions--3
 When there are circumstances indicating the
urgency of judicial intervention and unreasonable
delay would greatly prejudice the complainant;
 When no administrative review is provided by law;
 When there is no other plain, speedy and adequate
remedy;
 When the issue of non-exhaustion of administrative
remedies has been rendered moot and academic;
 In quo warranto proceedings.

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 Prudential Bank v. Gapultos,
181 SCRA 159 [1995])

Where pure questions of law are

raised, the doctrine of exhaustion of
administrative remedies does not apply
because issues of law cannot be resolved
with finality by the administrative officer.
Appeal to the administrative officer of
orders involving questions of law would be
an exercise in futility since administrative
officers cannot decide such issues with
finality; only the courts can.”
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 JUDICIAL REVIEW OF
ADMINISTRATIVE DECISIONS
Rule: Except when the constitution requires or allows
it, judicial review may be granted or withheld as
Congress chooses. Thus, the law may provide that
a determination made by an administrative agency
shall be final and ir-reviewable. In such a case,
there is no violation of due process.

BASES OF JUDICIAL REVIEW:

1. CONSTITUTION
2. STATUTES
3. GENERAL PRINCIPLES OF LAW.

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 BASIC APPROACH
TO JUDICIAL REVIEW
Questions of law or validity are for the Court,
while questions of fact, policy or discretion
are determined by the administrative agency.

“It is well settled rule that findings of facts on

executive decisions in matters within their
jurisdiction are entitled to respect from the
courts in the absence of fraud, collusion, or
grave abuse of discretion.”
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 Questions subject of Judicial
Review
• Question of Law

• Question of Fact (court precluded from reviewing

question of fact except: (a) when expressly allowed by
law; (b) fraud, imposition or mistake other than error of
judgment in evaluating evidence and (c) error in
appreciation of the pleadings and in interpretation of the
documentary evidence presented by the parties;

• Mixed Question of Law and Fact (Brandeis Doctrine of

Assimilation of Facts- where what purports to be a
finding upon a question of fact is so involved with and
dependent upon a question of law as to be in substance
and effect a decision on the latter, the Court will, in order
to decide the legal question, examine the entire record
including the evidence if necessary.)
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Judicial Review of Presidential
Discretion:
The court may exercise its judicial review only on the
validity of the exercise of discretionary power of the
president (not on the wisdom for its exercise but on
whether said powers are within the limits prescribed by
law). Llamas v. Orbos, 202 SCRA 844 (1991)

The usual excuse for the court’s non-interference in the

exercise by the President of his discretionarypower is the
doctrine of separation of powers or the so-called doctrine
of political question (or policy). However, this has been
relaxed as the court can still proceed to resolve the
question because the Constitution, in Sec. 1, Art. VII, has
broadly expanded judicial power to cover “in appropriate
cases, even the political question.” Daza v. Singson, 180
SCRA 496, (1989)
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 Rules for exercise of Judicial
Review
• Findings of fact are respected as long as they
are supported by substantial evidence, even if
not overwhelming or preponderant.
• It is not for the reviewing court to weigh the
conflicting evidence, determine the credibility of
witnesses, or otherwise substitute its judgment
for that of the administrative agency on the
sufficiency of evidence.
• The administrative decision on matters within the
executive jurisdiction can only be set aside on
proof of grave abuse of discretion, fraud,
collusion or error of law.
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 METHODS OF REVIEW
Direct or collateral: damage suits, etc.
Statutory: declaratory relief
appeal
injunction
declaratory judgment
Non-statutory: certiorari
mandamus
quo warranto
prohibition
habeas corpus

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52
 PART II

NOTES ON
LAW ON PUBLIC OFFICERS

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HOW PUBLIC OFFICE IS CREATED:
• It has been held that a public office may be created by
the Constitution, by law, or by authority of law.
Congress can delegate the power to create positions.
Congress has enacted reorganization laws which
authorize the President to create, abolish or merge
offices in the executive departments, which he may
himself exercise by issuing appropriate decree or
order or by authorizing executive departments or
agencies to do so. (Secretary of DOTC v. Mabalot,
378 SCRA 129 (2002)

• Public offices are filled up either by appointment, by

election, and in some instances by contract or by
some other modes authorized by law.
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CHARACTERISTICS OF A PUBLIC
OFFICE.

PUBLIC OFFICE IS A PUBLIC TRUST (created in the

interest and for the benefit of the public.)
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act
with patriotism and justice, and lead modest lives.
(Sec. 1, Art. XI, Constitution).

“KAYO ANG BOSS KO!”

(Officers are servants of the people and not their rulers)
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PUBLIC OFFICE IS NOT PROPERTY.
• Although public office is not property and one cannot
acquire a vested right to public office, it is, nevertheless,
a protected right. It cannot be taken from its incumbent
without due process. In this sense, a public position is a
sort of property right. Thus, a person who has been
proclaimed elected to an office, has taken his oath, and
assumed the position, cannot be deprived thereof by the
Commission on Elections by annulling or suspending the
proclamation without due notice and hearing. (Bince Jr. v
COMELEC, 218 SCRA 782, 1993)

• While a public office is not a property, but a public trust,

the right to office is nevertheless a right protected by the
security of tenure provision of the Constitution. (Morfe v.
Mutuc, 22 s
SCRA 424, 1968). 56
PUBLIC OFFICER.
“Public Officer includes elective and
appointive officials and employees,
permanent or temporary, whether in the
classified or unclassified or exempt service
receiving compensation, even nominal, from
the government.” [RA 3019, Sec. 2 (a) and (b)]

“Public officials includes elective and appointive

officials and employees, permanent or
temporary, whether in the career or non-career
service, including military and police personnel,
whether or not they receive compensation,
regardless of amount.” (Section 3(b) , RA 6713)
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ELECTIVE OFFICIALS:
Elective National Officials whose offices are
created by the Constitution include the
President, Vice President, Senators, and
Congressmen. All other elective officials are
local officials.

APPOINTIVE OFFICIALS:
The appointive officers whose positions are
created by the Constitution include the Chief
Justice of the Supreme Court and Associate
Justices, the Chairmen and Members of the
Constitutional Commissions (CSC, COMELEC,
COA) and the Ombudsman and his deputies.
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 CLASSIFICATION OF OFFICERS:
EXECUTIVE, LEGISLATIVE and JUDICIARY.
• EXECUTIVE: tasked with execution and enforcement
of laws
President, Governors and City and Muncipal Mayors.

• LEGISLATIVE: primary function is to enact laws or

ordinances.
Members of Congress and local Sangguniang
Panlalawigan, Panglungsod and Pangbayan.

• JUDICIARY: exercise judicial power

Justices of the Supreme Court and other Judges of
lower rank.

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 CSC: Career and Non-Career
• CAREER – based on merit and fitness, to be determined as far
as practicable by competitive examination, or based on highly
technical qualifications, opportunity for advancement to higher
career positions, and security of tenure.
1. Open Career positions – prior qualifications in an appropriate
examination is required;
2. Closed career positions (scientific or technical; faculty of
SUCs)
3. Career Executive Service (USEC, ASEC, bureau director, RD,
ARD, etc. all of whom are appointed by the President
4. Career Officers, other than those in the Career Executive
Service, who are appointed by the President, such as Foreign
Service Officers in DFA
5. Commissioned Officers and enlisted men of the AFP which
maintain a separate merit system
6. Personnel of government-owned or controlled corporations
whether performing governmental or proprietary functions, who
do not fall under the non-career service; and
7. Permanent laborers, whether skilled, semi-skilled or unskilled.
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NON-CAREER SERVICE – characterized by (1) entrance on bases
other than those of the usual test of merit and fitness utilized for
the career service; and (2) tenure which is limited to a period
specified by laws, or which is coterminous with that of the
appointing authority.

1. Elective Officials and their personal or confidential staff

2. Secretaries and other officials of Cabinet rank who hold
positions at the pleasure of the President and their personal or
confidential staff/s;
3. Chairman and members of commissions and boards with
fixed terms of office and their personal or confidential staff;
4. Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake
specific work or job, requiring special or technical skills not available
in the employing agency, to be accomplished within a specified
period, which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his responsibility with a
minimum of directions and supervision from the hiring agency; and
5. Emergency and seasonal personnel. (Sec. 6, PD 807)

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 Not covered by
Civil Service Law
• Not covered by the civil service law are
government and controlled corporations
organized under the Corporation Code
because they are covered under the Labor
Code. Those with original charters (by
direct legislative creation), are covered by
the civil service laws. (Gamogamo v.
PNOC Shipping and Transit Corporation,
381 SCRA 742)

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 APPOINTMENT OF PUBLIC
OFFICERS
Appointment is one of the means by
which a person may claim a right to a public
office. The term “appointment’ means the
selection by the authority vested with the power
of an individual who is to exercise the functions
of a given office. (Binamira v. Garrucho, 188
SCRA 154, 1990)

To entitle a public officer to hold a public

office, he must possess all the qualifications and
none of the disqualifications prescribed by law
for the position not only at the time of his election
or appointment, but also during his incumbency.
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DISTINGUISHED FROM DESIGNATION AND
COMMISSION

Designation connotes merely the imposition of

additional duties, usually by law, upon a person who
is already in the public service by virtue of an earlier
appointment or election, WHILE commission is the
written evidence of the appointment.

APPOINTING AUTHORITY

The appointing authority is the officer or body

vested by the Constitution or by law with the power
to make appointments of public officers and
employees to public offices or positions.
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PRESIDENT’S APPOINTING POWER: Sec. 16, Art. VII,
Constitution
The president shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of
the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law; and those whom he may be
authorized by law to appoint. The congress may, by law,
vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until the disapproval by the Commission
on Appointments or until the next adjournment of the Congress.”
65
 Limitations on the President’s Power to
appoint: Section 14 and 15, Art. VII,
Constitution
Appointments extended by an acting president
shall remain effective, unless revoked by the
elected president within 90 days from his
assumption or reassumption of office.

Two months immediately before the next

presidential elections and up to the end of his
term, a president or acting president shall not
make appointments, except temporary
appointments to executive positions when
continued vacancy therein will prejudice public
service or endanger public safety. (MIDNIGHT
APPOINTMENT)
66
Other Limitations:
The President can only appoint Members of the Supreme Court
and Judges of lower courts from among the list of at least 3
members for each position prepared and recommended by
the Judicial and Bar Council. (Sec. 9, Art. VIII, Constitution)
The President cannot appoint officials and employees of the
Judiciary, as the power to appoint them belongs to the
Supreme Court in accordance with the civil service law. (Sec.
5(6), |Art. VIII, ibid)
The President can only appoint the Ombudsman and Deputies
persons from among the list of at least 6 nominees prepared
and recommended by the JBC. (Sec. 9, Art. XI, ibid)
Another constitutional limitation on the President’s appointing
power is Section 7, Art. IX-B, Constitution:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or
position during his tenure.

67
 CIVIL SERVICE COMMISSION
AND APPOINTMENTS IN THE CIVIL
SERVICE

CIVIL SERVICE COMMISSION.

The central personnel agency of the

Government. The civil service system rests on
the principle of the application of the merit and
fitness system instead of the spoils system in
the matter of appointment and tenure of office.

68
Powers and Functions:
Coverage:
The civil service shall embrace all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters. Government-owned
or controlled corporations with original charters are
those organized pursuant to special laws or charters
enacted by Congress. Government-owned or controlled
corporations which are organized under the Corporation
Code of the Philippines, whose shares of stock are
owned or controlled by the government or by
corporations with original charters, fall outside the
coverage of the civil service laws. Appointments in the
civil service shall be made only according to merit and
fitness to be determined, as far as practicable, except
appointments to positions which are policy-determining,
primarily confidential, or highly technical, by competitive
examination. 69
REQUISITES OF APPOINTMENT:

An appointment, to be valid, requires that the appointing

authority be vested with the power to make the
appointment at the time of the appointment is made; the
appointee possesses all the qualifications, including
appropriate civil service eligibility, and none of the
disqualifications prescribed by law for the position; the
position is vacant; the appointment has been approved
by the Civil Service Commission; and the appointee
accepts the appointment by taking the oath and entering
the discharge of his office. If any one of the requisites is
lacking, the appointment is invalid and the officer, who
assumes and discharges the functions thereof, may only
be considered a de facto officer. (Conde v National
Tobacco Corp., 1 SCRA 118, 1961)
70
STEPS IN THE PROCESS OF
APPOINTMENT:
1. THE ACT OF NAMING THE APPOINTEE.
2. THE ISSUANCE OF THE COMMISSION OR
FORMAL EVIDENCE OF APPOINTMENT.
3. ACCEPTANCE BY THE APPOINTEE BY HIS
ASSUMPTION OF OFFICE.

Ultimate Act required to complete an appointment:

An appointment made by an officer duly

empowered to make it is not final or complete until
after the CSC has certified that such appointment may
be made. Without such certification, the appointment
may be recalled or withdrawn by the appointing
officer.
71
OPPOSITION TO APPOINTMENT

Any person aggrieved by the appointment of a person

may file a protest against the appointment. The protest
must, however, be for a cause. The cause must be based
on the following grounds: (1) that the appointee is not
qualified; (2) that the appointee is not the next-in-rank;
and (3) in the case of appointment by transfer,
reinstatement or by original appointment, that the
protestant is not satisfied with the written special reason
or reasons given by the appointing authority. The fact that
the protestant is more qualified than the protestee in
terms of education, experience and training does not fall
within the meaning of “for cause”, which would warrant
the revocation of the appointment. ( Aquino v. CSC, 208
SCRA 240, 1992)
72
REVOCATION OR RECALL OF
APPOINTMENT
Revocation of an appointment, to be successful, must be
made before the appointment is completed or before its
approval by the CSC in the case of appointments in the
civil service. Before such approval or certification that the
approval has been made, the appointment may be
recalled or withdrawn by the appointing authority.
(Gorospe v. Secretary of DPWC, 105 Phil 129, 1959)
After completion of the appointment and the appointee
has assumed the position, he acquires a legal, not
merely equitable right, which is protected not only by
statute, but also by the Constitution, and it cannot be
taken away from him, either by revocation of the
appointment or by removal, except for cause, and after
previous notice and hearing. (Mitra v. Subido, 21 SCRA 127,
1967) 73
Exception: Revocation of
appointment

Where an office is removable at the will of

the executive the circumstance which completes
his appointment is of no concern because such
act is at any time revocable; and the commission
may be arrested if still in the office. But when the
officer is not removable at the will of the
executive, the appointment is not revocable and
cannot be annulled. It has conferred legal rights
which cannot be revoked.
74
HOLD OVER CONCEPT
The general rule is that, in the absence of an express or implied
constitutional or statutory provision to the contrary, an officer is
entitled to hold office until his successor is elected or appointed and
has qualified. (Topacio Nueno v Angeles, 76 Phil 12, 1946)

TEMPORARY OR ACTING APPOINTMENT.

The purpose of an acting or temporary appointment is to prevent a
hiatus in the discharge of official functions by authorizing a person to
discharge the same pending the selection of a permanent or another
appointee.

REINSTATEMENT
Technically, it is the issuance of a new appointment which is
essentially discretionary, to be performed by the officer in which it is
vested according to his best lights, the only condition being that the
appointee should possess the qualifications required by law.
75
APPOINTMENT OF NEXT-IN-RANK
A qualified next-in-rank is an employee appointed on a
permanent basis to a position previously determined to
be next-in-rank to the vacancy proposed to be filed and
who meets the requisites for appointment thereto as
previously determined by the appointing authority and
approved by the Civil Service Commission. The law
requires that the next-in-rank shall be considered for
promotion whenever a position in the first level becomes
vacant. However, there is no mandatory nor peremptory
requirement that persons next-in-rank be appointed to the vacant
position as it neither grants a vested right to the holder nor imposes
a ministerial duty on the appointing authority. For to apply the
next-in-rank rule peremptorily would impose a rigid
formula on the appointing power contrary to the policy of
the law that among those qualified and eligible, the
appointing authority is granted discretion and
prerogative of choice of the one he deems fit for
appointment, even if he is less qualified than the next-in-
rank. (Espanol v. CSC, 206 SCRA 715, 1992) 76
DE FACTO OFFICER
A de facto officer is one who assumed office under a
color of a known appointment or election, void because
the officer was not eligible or because there was a want
of power in the electing body, or by reasons of some
defect or irregularity in the exercise, such ineligibility,
want of power, or defect being unknown to the public.
(Aparri v. CA, 127 SCRA 231, 1984)

He cannot be made to reimburse funds during his term of

office because his acts are as valid as those of a de jure
officer. (Sampayan v. Daza, 213 SCRA 807, 1992)

Although there may be a de facto officer in a de jure

office, there cannot be a de facto officer in a de facto
office. There is no such thing as a de facto office under
an unconstitutional law. (Government v. Springer, 50 Phil
259, 1927) 77
 SECURITY OF TENURE
AND DISCIPLINARY ACTIONS
SECURITY OF TENURE.
“No officer or employee of the Civil Service shall
be removed or suspended except for cause as
provided by law and after due process”.

DISCIPLINARY ACTION
• A disciplinary action is a proceeding which seeks
the imposition of disciplinary sanction against, or
the dismissal or suspension of, a public officer or
employee on any of the grounds prescribed by
law after due hearing.

78
PERSONNEL ACTION AMOUNTING TO
ILLEGAL REMOVAL:
• Extending temporary appointment
• unconsented Transfer or re-assignment
• detail
• shortening term is removal
• demotion
• denial of optional retirement and refusal to
reinstate

79
DISCIPLINARY ACTION BY THE CSC

Original and appellate jurisdiction to hear and

decide administrative cases.

GROUNDS FOR DISCIPLINE:

• Malfeasance – performing some act which

ought not to be done;
• Misfeasance – improper performance of some
act which might lawfully be done.
• Nonfeasance – omission of an act which ought
to be performed.

80
Some of the grounds for proceeding
against an employee in the civil service:

a. Grave or simple misconduct;

b. Discourtesy;
c. Willful failure to pay just debts.
d. Habitual absenteeism;
e. Habitual tardiness;
f. Dishonesty
g. Acts prejudicial to the best interest of
the service
81
Administrative Offense; work-related

To constitute an administrative offense,

misconduct should relate to or be
connected with the performance of the
official functions and duties of a public
officer. Lacson v. Roque, 92 Phil. 456
(1953)]

82
 Misconduct:
Misconduct means intentional
wrongdoing or deliberate violation of a rule
of law or standard of behavior, especially
by a government official. Maguad v. de Guzman,
A.M. No. P-94-1015,March 29, 1999, 305 SCRA 469

Simple misconduct is a transgression of

some established and definite rule of
action, more particularly, unlawful
behavior, or gross negligence by a public
officer. Civil Service Commission v. Ledesma, G.R.
No. 154521, 30 September 2005, 471 SCRA 589]
83
Grave Misconduct:

In grave misconduct, the acts complained of are corrupt

or inspired by an intention to violate the law, or
constitute a flagrant disregard of well-known legal rules.
It is a transgression of some established and definite
rule of action, a forbidden act, a dereliction of duty,
willful in character and implies wrongful intent and not a
mere error in judgment. [Baquero v. Sanchez, etc.,
A.M.No.P-051974 April 6, 2005]
Corruption as an element of grave misconduct consists
in the act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure
some benefit for himself or for another persons, contrary
to duty and the rights of others. (Civil Service
Commission v. Belagan, G.R. No. 132164, October 19,
2004 citing Black’s Law Dictionary, p. 345)
84
 Impressed with public interest:
• Administrative proceedings against public
officials and employees relating or
incidental to, or in connection with the
performance of their duties are necessarily
impressed with public interest. (Sy v.
Academia, 198 SCRA 705,July 3, 1991)

85
Legal effects of administrative proceedings
being impressed with public interest:
Complainant’s desistance and loss of interest in
prosecuting his administrative case does not bar
the taking of the disciplinary action against the
respondent. Neither does it warrant the dismissal
of the administrative case. Nor does it dissuade
the court from imposing the appropriate
disciplinary sanction, if the evidence so warrants,
against respondent. If administrative actions are made
to depend upon the will of every complainant, who may,
for one reason or another, condone a detestable act, the
disciplining authority or the court will be stripped of its
disciplining power and subvert fair and prompt
administration of justice. (Estreller v. Mantad, 268 SCRA 608, 1997;
Jacob v. Tambo, 158 SCAD 135, 2001) 86
DISCIPLINARY ACTION BY THE
OMBUDSMAN
Office of the Ombudsman has disciplinary authority over
all elective and appointive officials of the Government
and its subdivisions, instrumentalities and agencies,
including members of the cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed
only by impeachment, members of congress and of the
Judiciary. (Sec. 21, RA No. 6770)

Decisions of the Ombudsman in administrative cases absolving the

respondent of the charge or imposing upon him the penalty of public
censure or reprimand, suspension of not more than one month, or a
fine equivalent to one month salary is final and unappealable. In all
other cases the decision shall become final after the
expiration of 10 days from receipt thereof by the respondent,
unless a motion for reconsideration or a petition for review is
filed with the Court of Appeals pursuant to Rule 43 of the
Rules of Court. (Fabian v. Ombudsman, 295 SCRA 470, 1998)
87
DISCIPLINARY ACTION BY THE
CONGRESS OVER ITS MEMBERS

• Each house may determine the rules of its

proceedings, punish its members for
disorderly behavior and, with the
concurrence of 2/3 of all its members,
suspend or expel a member. A penalty of
suspension when imposed, shall not
exceed 60 days.” (Sec. 16(3) Art. VI,
Constitution
88
DISCIPLINARY POWER OF THE
OFFICE OF THE PRESIDENT
• The president shall have control of all the
executive departments, bureaus, and
offices. (Sec. 17, Art. VII, Constitution)
• President’s disciplinary power over
elective local officials.
• The penalty of suspension not to exceed
six months. (Salalima v. Guingona, 257
SCRA 55, 1996)

89
Effects of election or re-election on
administrative misconduct:
• Re-election of a local official would render a
pending administrative case moot and
academic.
A municipal mayor cannot be removed from
office for his misconduct committed during his
prior term because each term is separate and
the people by re-electing him are deemed to
have forgiven his misconduct. (Aguinaldo v.
Santos, 212 SCRA 768)
90
DISCIPLINARY AUTHORITY OF THE
SUPREME COURT

• The Supreme Court shall have

administrative supervision over all courts
and the personnel thereof. (Sec. 6, Art.
VIII, Constitution)

91
TERMINATION OF OFFICIAL RELATIONS
• REORGANIZATION OR ABOLITION OF OFFICES
• OTHER MODES OF TERMINATION
– Termination of tenure of members of Congress
– Automatic Resignation upon filing certificate of
candidacy
– Recall as mode of removal of elective local officer
– Acceptance of an incompatible office
– Resignation
– Impeachment
– Abandonment of office
– Expiration of Term
– Reaching of Age Limit
– Removal
– Death
– Abolition of the Office 92
CIVIL, CRIMINAL and ADMINISTRATIVE
LIABILITIES
It is a basic principle on public officers that a public
official or employee is under a 3-fold responsibility for
violation of duty or for a wrongful act or omission. This
means that a public officer may be held civilly, criminally
and administratively liable for wrong doing. If such
violation or wrongful act results in damages to an
individual, the public officer may be held civilly liable to
reimburse the injured party. If the law violated attaches a
penal sanction, the erring officer may be punished
criminally. Finally, such violation may also lead to
suspension, removal from office, or other administrative
sanctions. Thus, the dismissal of an administrative case
does not necessarily bar the filing of criminal prosecution
for the same or similar acts, which were the subject of
the administrative complaint. (Tecson v. Sandiganbayan, 318
SCRA 80, 1999) 93
IMMUNITY OF STATE FROM SUIT, AS
DEFENSE OF PUBLIC OFFICIAL
Where a public officer is sued for acts claimed to be
actionable and done in the performance of his official
duties, the suit is in effect a suit against the government,
as he acted on behalf of the government and within the
scope of his authority, which could not be maintained in
accordance with the doctrine of state immunity from suit.
Even under the law of public officers, the act of the
officer is protected by the presumption of good faith.
Even mistakes concededly committed by a public officer
are not actionable as long as it is not shown that they
were motivated by malice or gross negligence
amounting to bad faith. (Sanders v. Veridiano, 162
SCRA 88, 1988)
94
CRIMINAL LIABILITIES OF PUBLIC
OFFICERS:
• Criminal Liabilities under Revised Penal Code
• Criminal liabilities under Anti-Graft Act (RA 3019)
• Other Crimes:
– CRIME OF PLUNDER
– VIOLATION OF CODE OF CONDUCT FOR PUBLIC OFFICIALS
– TRANSFER OF UNLAWFULLY ACQUQIRED PROPERTY
– VIOLATION OF RIGHT TO COUNSEL
– VIOLATION OF CIVIL SERVICE LAW
– FAILURE TO PUBLICIZE MONTHLY COLLECTIONS AND
DISBURSEMENTS
– ENGAGING IN PROHIBITED BUSINESS TRANSACTIONS OR
POSSESSION OF ILLEGAL INTEREST
– OMISSION TO MAKE PROPERTY ASSESSMENT OR TAX ROLLS
– FAILURE TO DISPOSE OF DELINQUENT REAL PROPERTY AT
PUBLIC AUCTION
– PROHIBITED ACTS RELATED TO AWARD OF CONTRACTS
• Others

95
JURISDICTION OVER CRIMINAL
OFFENSES OF PUBLIC OFFICERS

• JURISDICTION DETERMINED.
• JURISDICTION OF SANDIGANBAYAN
• JURISDICTION OF REGIONAL TRIAL
COURTS
• JURISDICTION OF MUNCIPAL TRIAL
COURTS
• JURISDICTION OF COURT-MARTIAL
96
THANK YOU.

TAKE A BREAK.

97
 PART III

NOTES ON
LAW ON ELECTIONS

98
 BASIC LAWS ON ELECTIONS:
• OMNIBUS ELECTION CODE OF THE PHILS. (B.P.
Blg. 881)
• LAWS ON SUFFRAGE
PARTY- LIST LAW (R.A. No. 7941)
ELECTORAL REFORMS LAW OF 1987 (R. A. No.
6646)
R. A. No. 7166 – AN ACT PROVIDING FOR
SYNCHONIZED NATIONAL AND LOCAL ELECTIONS
AND FOR ELECTORAL REFORMS, as amended by
R.A. No. 9369
VOTER’S REGISTRATION ACT OF 1996 (RA 8189)
• FAIR ELECTION ACT (RA 9006)
• OVERSEAS ABSENTEE VOTING ACT OF 2003 (RA
9189)
99
 ELECTION
• Is the embodiment of the popular will, the
expression of the sovereign power of the
people. It involves the choice or selection
of candidates to public office by popular
vote.

100
 COMELEC
• The Constitution vests in the COMELEC
the power to enforce and administer all
laws and regulations relative to the
conduct of an election, plebiscite,
initiative, referendum and recall for the
purpose of ensuring free, orderly and
honest elections.

101
 ELIGIBILITY OF CANDIDATES
Qualifications:

• President and VIP – natural born citizen,

registered voter, able to read and write, at
least 40 years old on the day of election,
and a resident of the Philippines for at
least 10 years immediately preceding such
election. (Sec. 2 & 3, Art. VII, Constitution)

102
 Members of Congress – natural born citizen, at least
25 years old on the day of election, able to read and
write, registered vote in the constituency in which he
shall be elected and a resident thereof for a period of
not less than 6 months immediately preceding the day
of election.
A sectoral representative shall be a natural born
citizen, able to read and write, a resident of the
Philippines for a period of not less than 1 year
immediately preceding the day of election, a bona fide
member of the sector he seeks to represent, and in
case of a representative of the agricultural and
industrial labor sector, shall be a registered voter, and
on the day of election is at least 25 years of age. The
youth sectoral representative should at least be 18 and
not be more than 25 years old on the day of election;
provided, however, that any youth sectoral representative who
attains the age of 25 years during his term shall be entitled to
continue in office until the expiration of his term.
103
 Age requirement:
• President/Vice President – 40 years of age
• Senators – 35
• Congressmen – 25
• Governor, Vice Governor, SP, Mayor, Vice Mayor
and councilors of HUC - 23
• Mayor, vice mayor for component cities or
municipalities – 21
• Sangguniang Panglungsod or Bayan - 18
• Punong Barangay, Sangguniang Barangay – 18
• SK – 15 to 21

104
 Citizenship Qualification:
• President, VP, Congress – natural born
citizens – those citizens of the Philippines
from birth without having to perform any
act to acquire or perfect their Philippine
citizenship.
• Elective Local Official – either natural born
or naturalized citizen.

105
 Residence Requirement
• For an elective position, residence means “domicile” or
the individual’s permanent home, a place to which,
whenever absent for business or for pleasure, one
intends to return, and depends on facts and
circumstances in the sense that they disclose intent. It
includes the twin elements of the fact of residing or
physical presence in a fixed place, and animus manendi,
or the intention of returning there permanently.
(Romualdez-Marcos v. COMELEC, 248 SCRA 300,
1995)

• Owning a house is not required to establish residence

and domicile. It is enough that he should have live in the
municipality or district or in the rented house or in that of
a friend or relative for the required period. For nowhere
is it required by law or the Constitution that a candidate
should own a property in order to be qualified to run. (Co 106
v. HRET, 199 SCRA 692, 1991)
 Change of Residence
• In order to acquire a new domicile by
choice, there must concur: (1) residence
or bodily presence in the new locality; (2)
an intention to remain there, and (3) an
intention to abandon the old domicile. In
other words, there must basically an
animus manendi coupled with animus non
revertendi. (Romualdez v. RTC of
Tacloban, 226 SCRA 408, 1993)
107
 Three-Term disqualification.

• No elective official shall serve for more

than 3 consecutive terms. (Except for
senators, they shall serve for not more
than 2-consecutive terms). Two requisites
must concur: (1) that the official concerned
has been elected for 3 consecutive terms
in the same local government post; and (2)
that he has fully served 3 consecutive
terms.
108
 CERTIFICATE OF CANDIDACY
• Certificate required. The law requires that no person
shall be eligible for any elective public office unless he
files a sworn certificate of candidacy within the period
fixed herein. A person who has filed a certificate of
candidacy may, prior to the election, withdraw the same
by submitting to the office concerned a written
declaration under oath. No person shall be eligible for
more than one office to be filled in the same election,
and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.
However, before the expiration of the period for the filing
of certificate of candidacy, the person who has filed
more than one certificate of candidacy may declare
under oath the office for which he desires to be eligible
and cancel the certificate of candidacy for the other
office or offices. (Sec. 73, OEC). 109
 Substitution of candidacy: substitute
must belong to same party.
• “When the candidate of a registered political
party dies, withdraws or is disqualified by the
COMELEC, he can be substituted by a person
belonging to, and certified by the same political
party to replace said candidate. (Sec. 77, OEC)

Withdrawal of certificate, required for substitution.

• A person who has filed a certificate of
candidacy may, prior to the election, withdraw
the same by submitting to the office concerned
a written declaration under oath. (Sec. 76,
OEC).
110
PETITION FOR DISQUALIFICATION:
(Pre-election disputes)
• Petition for disqualification – if candidate does
not possess all the qualifications of a candidate
as provided for by the Constitution or law; or
who commits any act declared by law to be
grounds for disqualification
• Petition to declare a candidate a nuisance
candidate – to put election process in mockery
or disrepute or to cause confusion among the
voters by the similarity of the names of
candidates
• Petition to deny due course or cancel the
certificate of candidacy – on any material
misrepresentation on the qualifications for
elective position. 111
 REGISTRATION OF VOTERS

• Qualified voters who have registered under RA

8189 (Voters Registration Act of 1996) are
entitled to vote.
• Sec. 9 – Who may register: all citizens of the
Philippines not otherwise disqualified by law
who are at least 18 years of age, and who shall
have resided in the Philippines for at least 1
year and in the place wherein they propose to
vote, for at least 6 months immediately
preceding the election.
112
 PETITION FOR INCLUSION, EXCLUSION AND
CORRECTION OF NAMES OF VOTERS
Inclusion:
• Sec. 34 – any person whose application for registration
has been disapproved by the Board or whose name has
been stricken out from the list may file with the court a
petition to include his name in the permanent list of voters
in his precinct at any time except 105 days prior to a
regular election or 75 days prior to a special election.

Exclusion:
• Sec. 35 - Any registered voters, representatives of a
political party or the Election officer, may file with the court
a sworn petition for the exclusion of a voter from the
permanent list of voters giving the name, address and the
precinct of the challenged voter at any time except 100
days prior to a regular election or 65 days prior to a
special election. 113
 ABSENTEE VOTING LAW (RA 9189)
Coverage:

• All citizens of the Philippines abroad, who are

not otherwise disqualified by law, at least
eighteen (18) years of age on the day of
elections, may vote for president, vice-president,
senators and party-list representatives.” (Sec. 4,
Rep. Act No. 9189, the Overseas Absentee
Voting Law)

114
Rationale:
• The right to vote under Republic Act No. 9189 the
Overseas Absentee Voting Act of 2003 of a former
Filipino citizen, a permanent resident of the U.S., who
has re-acquired Philippine citizenship under Rep. Act No.
9225, the Citizenship Retention and Re-Acquisition Act of
2003 may not be questioned on the ground that he is not
a resident of Philippines as so required under Sec. 1,
Article V, of the 1987 Constitution.

• Reason: The whole point of Overseas Absentee Voting

Act is precisely to enfranchise “dual citizens” with the
right of suffrage thru the absentee voting scheme and as
overseas absentee voters. (Nicolas-Lewis, et al., v.
Commission on Elections, G. R. No. 1162759, August 4,
2006)

115
 Derivative Citizenship:
• Derivative Citizenship under Rep. Act No. 9225, the
Citizenship Retention and Re-Acquisition Act of 2003.
The unmarried child, whether legitimate, illegitimate or
adopted, below eighteen (18) years of age, of those who
re-acquire Philippine citizenship under this Act shall be
deemed citizens of the Philippines. (Sec. 4, Rep. Act No.
9225, the Citizenship Retention and Re-Acquisition Act
of 2003)
The next generation of “duals” may avail themselves of
the right to enjoy full civil and political rights including the
right to vote, including the right of suffrage as an
overseas absentee. (Obiter in Nicolas-Lewis, et al., v.
Commission on Elections, G. R. No. 1162759, August 4,
2006)
116
 CASTING AND COUNTING OF VOTES
• During automation in the casting and counting of votes,
a great number of election anomalies will supposedly
be eliminated such as those arising from the writing of
the names of candidates by the voters in the ballots, the
reading of the candidates voted for and the appreciation
of ballots by the teachers who compose the BEIs, the
preparation of election returns and the transmission of
these returns to the Board of Canvassers, the counting
of votes reflected in the election returns, the so-called
“dagdag-bawas” of votes, the pre-proclamation
controversies which arise in these processes. In these
steps, the machines will do the work and prevent, if not
eliminate, election frauds and anomalies connected
therewith.
117
 CANVASS AND PROCLAMATION
• Canvass proceedings are administrative and summary
in nature.
The local boards of canvassers only need to determine
the authenticity and due execution of the election
returns or certificates of canvass on the face thereof.
As for the COMELEC en banc, acting as the NBC, the
determination of the authenticity and due execution of
the certificates of canvass shall be limited only to those
submitted before it by the local boards of canvassers
and in accordance with the criteria provided in Sec. 30
of RA 7166, as amended by RA 9369.
The limitations on the powers and duties of the boards
of canvassers are meant to avoid any delay in the
proclamation of the elected official. Issues whose
resolution would require the presentation and
examination of witnesses are more properly raised in a
regular election protest. [Pimentel III, v. Comelec, etc.,
et al., G.R. No. 178413, March 13, 2008]
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 PRE-PROCLAMATION
CONTROVERSY
A pre-proclamation controversy refers to election
question pertaining to or affecting the
proceedings of the Board of Canvassers that
may be raised by any candidate or by any
registered political party or coalition of political
parties before the Board or directly with the
Comelec, or any matter raised in relation to the
preparation, transmission, receipt, custody and
appreciation of the election returns (B. P. Blg.
881, Sec. 241) and certificates of canvass. (as
amended by R.A. No. 7166, 9369)
In automated elections: only illegality of
composition or proceedings of board.
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 POST ELECTION DISPUTES
Kinds: Election protests and Quo
warranto.
Distinctions:

1. An election protest contests the results of the

election on grounds of fraud, terrorism, irregularities or
illegal acts committed before, during, or after the casting
and counting of ballots WHILE quo warranto
proceedings contests the ineligibility or disloyalty to the
Republic of the Philippines;

2. An election protest may be filed by a losing candidate

WHILE quo warranto proceedings may be brought by
any person.
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Quo Warranto: Effect of Disqualification

• The candidate who obtained the second

highest number of votes should not be
proclaimed if the candidate with the
highest number of votes was subsequently
declared to be disqualified because he
was not the choice of the people. (Labo v.
Comelec, 176 SCRA 1, 1989)

121
 Jurisdiction over election contests:
• The following have jurisdiction over election contests:
1. Barangay officials - Municipal Trial Court,
Metropolitan Trial Court, Municipal Circuit Trial Court,
Municipal Trial Court in Chartered Cities.
2. Municipal officials - Regional Trial Court
3. Regional, provincial and city officials –
Commission on Elections. [Art. IX-C, Sec. 2 (2), 1987
Constitution]
4. Congressman - House of Representatives Electoral
Tribunal
5. Senators - Senate Electoral Tribunal. (Art. VI, Sec.
17, 1987Constitution)
6. President and Vice President - The Supreme Court
sitting as the Presidential Electoral Tribunal. (Art. VII,
Sec.4, 1987 Constitution)
122
 Appeals of election contests:
a. The decision of the inferior court in election contests
involving the barangay officials and of the Regional
Trial Court in election contests involving municipal
officials are appealable to the COMELEC.[Art. IX-
C,Sec.2(2), 1987 Constitution]
b. The decision of the COMELEC in election contests
involving barangay and municipal officials may be
brought to the Supreme Court on certiorari on pure
questions of law. (Rivera v. COMELEC, 199 SCRA 178)
c. The decision of the COMELEC in election contests
involving regional, provincial and city officials may
be brought to the Supreme Court on certiorari. [Art. IX-A,
Sec. 7 and Art. IX-C, Sec. 2(2), both of the 1987 Constitution]
d. The decisions of the Senate Electoral Tribunal and
of the House Electoral Tribunal may be elevated to
the Supreme Court on certiorari if there was grave
abuse of discretion. (Lazatin v. Commission on Elections, 168 SCRA
391)
123
 Jurisdiction of HRET
• Once a winning candidate has been proclaimed, taken
his oath, and assumed as a Member of the House of
Representatives, COMELEC’s jurisdiction over election
contests relating to his election, returns, and
qualifications ends, and the HRET’s own jurisdiction
begins. The opponent’s only recourse would have been
to file an election protest before the HRET, and not a
petition for certiorari with the Supreme Court. The issues
are best addressed to the sound judgment and
discretion of the electoral tribunal.
Allegation of nullity of proclamation does not divest the
HRET of its jurisdiction. Reason: It avoids duplicity of
proceedings and a clash of jurisdiction between
constitutional bodies, with due regard to the people’s
mandate. [Aggabao v. COMELEC, G.R. No. 163756,
January 26, 2005]
124
 Party-List System (RA 7941)
• The party-list system is a mechanism of proportional
representation in the election of representatives to
the House of Representatives from national, regional
and sectoral parties or organizations or coalitions
thereof registered with the Commission on Elections
(COMELEC).

• It is part of the electoral process that enables small

political parties and marginalized and
underrepresented sectors to obtain possible
representation in the House of Representatives,
which traditionally is dominated by parties with big
political machinery.
125
What are the qualifications of a party-list
nominee?
[a] A natural-born citizen of the Philippines;
[b] A registered voter;
[c] A resident of the Philippines for a period of not less than
one (1) year immediately preceding the election day;
[d] Able to read and write;
[e] A bona fide member of the party he seeks to represent for at
least ninety (90) days preceding election day; and
[f] At least twenty-five (25) years of age on election day.
In case of the youth sector, he must be at least twenty-five (25)
but not more than thirty (30) years of age on the day of the
election. Any youth sectoral representative who reaches the age
of thirty (30) during his term shall be allowed to continue in
office until the expiration of his term
126
How many seats are available
under the party-list system?
• Twenty percent (20%) of the total
membership in the House of
Representatives is reserved for party-
list representatives, or a ratio of one (1)
party list representative for every four
(4) legislative district representatives.

127
 GOOD LUCK!

GOD BLESS YOU ALL.

128