ADMINISTRATIVE LAW

PUBLIC OFFICERS &

ELECTION LAWS

PART I

Notes on
Administrative Law

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)
3

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.
4

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.
5

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)
6

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)
7

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 rulemaking.
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.
8

how created and abolished?

Consitutional
provisions
(COA,
COMELEC, CSC, OMBUDSMAN, CHR,
CB, NAPOLCOM, NEDA)
Legislative enactment
Authority of Law

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)

10

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 legislativeexecutive-judicial functions
11

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)
12

Types of Admin. Agencies

1.
2.
3.
4.
5.
6.
7.

Offers gratuity, grant or special privileges (PVAO,

GSIS, SSS PAO)
Seeks to carry on certain functions of government
(BIR, BID, CSC, Central Bank, Customs, LRA)
Performs business service for the public (NEA, NFA,
NHA, PhilPostCorp, PNR, MWSA)
Regulates business affected with public interest
(ERB, NTC, LTFRB, Phil. Patent Office)
Seeks under police power to regulate private
business and individuals (SEC, MTCRB, GAB, PRC)
Seeks to adjust individual controversies because of
a strong social policy (ECC, PAGIBIG, DAR, NLRC)
Seeks to conduct investigation and gather
evidence for info, recommendation or prosecution
of crimes (CHR, NBI, Prosecution Office, Truth
Commission)
13

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 bureaucracys 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)
14

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

15

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.
16

Limitations on the
Presidents 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.
17

Presidents 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.
18

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.
19

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
20

powers of administrative agencies

Generally: The doctrine of separation of
powers prohibits the delegation of legislative
power, the vesting of judicial officers with nonjudicial 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.
21

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)

22

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 delegates
authority. Adequate standards are public
interest, public welfare, decency and good
order, justice and equity, public safety, public
policy, greater national interest, etc.
23

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
24

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)
25

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)
26

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)
27

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)
28

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 quasijudicial 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)
29

2 most important powers of

administrative officers:
Quasi-legislative
making

implementing
regulations.

or rulepromulgate
rules
and

Quasi-judicial or adjudicatory
power interpret and apply
such regulations.
30

Investigatory Power
Inspect and examine
Require attendance of witnesses,
testimony and produce evidence
Hearing (although not necessary party)
Contempt proceeding

compel

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.

31

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)
32

Rule-making2
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.
33

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.

34

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
35

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.
36

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
37

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.

38

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.
39

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.
40

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)
41

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;
42

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;

43

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.
44

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.
45

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.
46

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.
47

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.)
48

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 courts 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)
49

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.
50

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
51

52

PART II

NOTES ON

LAW ON PUBLIC OFFICERS

53

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.
54

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)
55

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)
57

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.
58

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.
59

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.
60

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)
61

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)

62

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.
63

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.
64

PRESIDENTS 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 Presidents 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 Presidents 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
Revocation of an appointment,
to be OF
successful, must be
made before the appointment is completed or before its
APPOINTMENT

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
OFisNEXT-IN-RANK
A qualified next-in-rank
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 Blacks
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

Complainants
desistance
and interest:
loss of interest in
being
impressed
with public
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

Office of the Ombudsman has disciplinary authority over
OMBUDSMAN
all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including
members of the cabinet, local government, governmentowned 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)
Presidents 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

Criminal Liabilities under Revised Penal Code
OFFICERS:

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
VOTERS 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
ofA election.
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
individuals 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 v. HRET,
199 SCRA 692, 1991)
106

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 reacquired 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]
118

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, COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications
ends, and the HRETs own jurisdiction begins. The
opponents 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 peoples
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.
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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 partylist 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