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OUTLINE IN ADMINISTRATIVE & ELECTION LAWS

SY 2023

A. ADMINISTRATIVE LAW - That branch of public law which fixes the organization
and determines the competence of administrative authorities and indicates to the
individual remedies for the violation of his rights.

Kinds:
a) Statutes setting up administrative authorities.
b) Rules, regulations or orders of such administrative authorities promulgated pursuant
to the purposes for which they were created.
c) Determinations, decisions and orders of such administrative
authorities made in the settlement of controversies arising in their particular fields.
d) Body of doctrines and decisions dealing with the creation, operation and effect of
determinations and regulations of such administrative authorities

I. General Principles; Administrative Code of 1987

II. The Civil Service Commission (Sec. B, Art. IX)

i. Scope of the Civil Service

SECTION 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or controlled corporations with
original charters.

ii. Objectives/Powers/Functions
iii. Conditions of Employment in the Civil Service
iv. Classes of Service

a) Careeer Service. Characterized by entrance based on merit and fitness to be determined, as

far as practicable by competitive examinations, or based on highly technical qualifications,
opportunity for advancement to higher career positions, and security of tenure. The positions
included are: (i) Open career positions, where prior qualification in an appropriate examination
is required; (ii) Closed career positions, e.g., scientific or highly technical in nature; (iii) Career
Executive Service, e.g., undersecretaries, bureau directors, etc., where the appointee is required
to possess the appropriate Career Executive Service Officer (CESO) eligibilty; (iv) Career
officers (other than those belong to the Career Executive Service) who are appointed by the
President; (v) Positions in the Armed Forces of the Philippines, although governed by a separate
merit system; (vi) Personnel of government-owned or -controlled corporations with original
charter; and (vii) Permanent laborers, whether skilled, semi-skilled or unskilled.

*** Career executive service. The two requisites that must concur in order that
an employee in the career executive service may attain security of tenure are: [1]
career executive service eligibility; and [2] appointment to the appropriate career
executive service rank. It must be stressed that the security of tenure of employees
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in the career executive service (except first and second level employees in the civil
service) pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a career executive service officer
suffers no diminution in salary even if assigned to a CES position with lower salary
grade, as he is compensated according to his CES rank and not on the basis of the
position or office which he occupies [General v. Roco, G.R. Nos. 143366 &
143524, January 29, 2001]. Accordingly, where the appointee does not possess the
required career executive service eligibility, his appointment will not attain
permanency. On this basis, the appointment of the respondent as Ministry Legal
Counsel, CESO IV, Department Legal Counsel or Director III — inasmuch as he
did not possess the appropriate CESO eligibility — was merely temporary. Thus, he
could be transferred or reassigned without violating security of tenure. [Dimayuga
v. Benedicto, G.R. No. 144153, January 16, 2002] .

b) Non-career service. Characterized by entrance on bases other than those of the usual tests
utilized for the career service, tenure limited to a period specified by law, or which is co-
terminous with that of the appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose the employment was made. The officers
and employees embraced in the non-career service are: (i) Elective officials, and their personal
and confidential staff; (ii) Department Heads and officials of Cabinet rank who hold office at
the pleasure of the President, and their personal and confidential staff; (iii) Chairmen and
members of commissions and boards with fixed terms of office, and their personal and
confidential staff; (iv) Contractual personnel or those whose employment in government is in
accordance with a special contract to undertake a specific work or job requiring special or
technical skills not available in the employing agency, to be accomplished within a specific
period not exceeding one year, under their own responsibility, with the minimum direction and
supervision; and (v) Emergency and seasonal personnel.

*** In Montecillo v. Civil Service Commission, G.R. No. 131954, June 28,
2001, the Supreme Court said that under the Administrative Code of 1987, the Civil
Service Commission is expressly empowered to declare positions in the Civil Service
as primarily confidential. This signifies that the enumeration in the Civil Service
decree, which defines the non-career service, is not an exclusive list. The
Commission can supplement this enumeration, as it did when it issued Memorandum
Circular No. 22, s. 1991, specifying positions in the Civil Service which are
considered primarily confidential and, therefore, their occupants hold tenure co-
terminous with the officials they serve.

*** In Orcullo v. Civil Service Commission, G.R. No. 138780, May 22,
2001, the co-terminous status of an officer or employee may be classified as follows:
[a] co-terminous with the project, i.e., when the appointment is coexistent with the
duration of a particular project for which purpose employment was made or subject
to the availability of funds for the same; [b] co-terminous with the appointing
authority, i.e., when the appointment is co-existent with the tenure of the appointing
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authority or at his pleasure; [c] co-terminous with the incumbent, i.e., when the
appointment is co-existent with the appointee, in that after the resignation,
separation or termination of the services of the incumbent, the position shall be
deemed automatically abolished; and [d] coterminous with a specific period, i.e., the
appointment is for a specific period and upon expiration thereof, the position is
deemed abolished.

Requisites. Shall be made only according to merit and fitness to be determined, as far as
practicable, and, except appointments to positions which are policy determining, primarily
confidential or highly technical, by competitive examination [Sec. 2(2), Art. IX-B].
a) In a department, the appointing power is vested in the Department Secretary, and
although such power may be delegated to the Regional Director, the same is still subject to the
approval, revision, modification or reversal by the Department Secretary [Umoso v. Civil
Service Commission, supra.].

b) In PAGCOR v. Rilloraza, G.R. No. 141141, June 25, 2001, three important points are
underscored: [i] The classification of a particular position as policy-determining, primarily
confidential or highly technical amounts to no more than an executive or legislative declaration
that is not conclusive upon the courts, the true test being the nature of the position; [ii] The
exemption provided in this section pertains only to exemption from competitive examination to
determin merit and fitness to enter the civil service; and [iii] Sec. 16, RD. 1869, insofar as it
declares all positions in PAGCOR as primarily confidential, is not absolutely binding on the
courts.

v. Merit System

SECTION 2. (2) Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical, by competitive examination.

vi. Policy Determining/Primarily Confidential/Highly Technical -

exempted from the competitive examination requirement are
appointments to positions:

a) Policy determining, in which the officer lays down principal or fundamental guidelines or
rules; or formulates a method of action for government or any of its subdivisions, e.g., a
department head.

b) Primarily confidential, denoting not only confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy which ensures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals on confidential matters of state; or one
declared to be so by the President of the Philippines upon recommendation of the Civil Service
Commission [De los Santos v. Mallare, 87 Phil 289; Salazar v Mathay 73 SCRA 275].

*** In Civil Service Commission and PAGCOR v. Salas, G.R. No. 123708, June 19,
1997, the Supreme Court said that prior to the passage of the Civil Service Act of 1959, there
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were two recognized instances when a position may be considered primarily confidential,
namely: (a) when the President, upon recommendation of the Civil Service Commission, has
declared the position to be primarily confidential; and (b) in the absence of such a declaration,
when from the nature of the functions of the office, there exists close intimacy between the
appointee and the appointing authority which insures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals on confidential matters of State. When
R.A. 2260 was enacted on June 19,1959, Sec. 5 thereof provided that “the non-competitive or
unclassified service shall be composed of positions declared by law to be in the non-competitive
or unclassified service, or those which are policy-determining, primarily confidential or highly
technical in nature”. Thus, at least since the enactment of the Civil Service Act of 1959, it is the
nature of the position which determines whether a position is primarily confidential, policy-
determining or highly technical. In Pinero v. Hechanova, 18 SCRA 417, it was declared that
executive pronouncements, such as P.D. 1869, can be no more than initial determinations that
are not conclusive in case of conflict; otherwise, it would lie within the discretion of the Chief
Executive to deny to any officer, by executive fiat, the constitutional protection of security of
tenure. This rule prevails even with the advent of the 1987 Constitution and the Administrative
Code of 1987, despite the fact that the phrase “in nature” was deleted. Furthermore, the
“proximity rule” enunciated in De los Santos v. Mallare, supra., is still authoritative, i.e., that
the occupant of a particular position could be considered a confidential employee if the
predominant reason why he was chosen by the appointing authority was the latter’s belief that
he can share a close intimate relationship with the occupant which ensures freedom of
discussion without fear of embarrassment or misgivings of possible betrayals of personal trust
and confidential matters of State. Where the position occupied is remote from that of the
appointing authority, the element of trust between them is no longer predominant, and therefore,
would not be primarily confidential. Thus, in PAGCOR v. Rilloraza, it was held that the
position of Casino Operations Manager (COM) is not a primarily confidential position. While
the COM is required to exercise supervisory, recommendatory and disciplinary powers with
wide latitude of authority, and he is a tier above the ordinary rank- and-file employee,
nonetheless, lacking is that amplitude of confidence reposed in him by the appointing authority.
For one thing, he reports directly to the Branch Manager, not to the appointing authority. It
becomes unmistakable that the stratum separating the COM from reporting directly to the
higher echelons renders remote the proposition of proximity between the respondent and the
appointing authority.

*** In Montecillo v. Civil Service Commission, supra, the Supreme Court recognized
the express authority of the Civil Service Commission, under the Administrative Code of 1987,
to declare positions in the Civil Service as primarily confidential. Accordingly, the enumeration
of primarily confidential employees in the Civil Service decree is not exclusive; the
Commission may supplement the same, as it did when it issued Memo Circular No. 22, s. 1991.

c) Highly technical, which requires possession of technical skill or training in a supreme or

superior degree. In Besa v. Philippine National Bank, supra., the position of legal counsel of the
PNB was declared to be both primarily confidential and highly technical, with the former aspect
predominating. In Cadiente v. Santos, 142 SCRA 280, the position of City Legal Officer is
primarily confidential, requiring the utmost degree of confidence on the part of the Mayor. In
Pacete v. Chairman, Commission on Audit, 185 SCRA 1, the position of City Attorney was
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held to be both confidential and technical in nature. In Borres v. Court of Appeals, 153 SCRA
120, it was held that the positions of Security Officer and Security Guards of the City Vice
Mayor are primarily confidential positions.

vii. Disqualifications/Prohibitions and Limitations

Prohibition and Limitation

In Appointment:

SECTION 6. No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government or any government-owned or controlled
corporations or in any of their subsidiaries.

SECTION 7. No elective official shall be eligible for appointment or designation in any

capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.

In Compensation or Double Compensation:

SECTION 5. The Congress shall provide for the standardization of compensation of

government officials and employees, including those in government-owned or controlled
corporations with original charters, taking into account the nature of the responsibilities
pertaining to, and the qualifications required for their positions.

*** Compensation of GOCCs organized other that the Corporation Code - Labor Code (may be
bargain collectively)

Double Compensation:

SECTION 8. No elective or appointive public officer or employee shall receive additional,

double, or indirect compensation, unless specifically authorized by law, nor accept without the
consent of the Congress, any present, emolument, office, or title of any kind from any foreign
government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

*** same in instances by reason of office being, designated in an ex officio capacity shall not
receive honorarium
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Santos v. CA with regard to retirement benefits: Retirement benefits do not constitute double
compensation because years of service in the judiciary should not be credited in the
computation of his separation pay under RA No. 7924

In electioneering or partisan political campaign:

SECTION 2 (4). No officer or employee in the civil service shall engage, directly or indirectly,
in any electioneering or partisan political campaign.

ARTICLE 16, SECTION 5 (3). Professionalism in the armed forces and adequate remuneration
and benefits of its members shall be a prime concern of the State. The armed forces shall be
insulated from partisan politics.

No member of the military shall engage directly or indirectly in any partisan political activity,
except to vote.

*** Vistan v. Nicolas: Vistan is guilty of gross misconduct; MTC Judge - prior to
commencement of campaign period, engaged in partisan political activity.

*** Trinidad v. Valle: Act of delivering speech advicing to support leadership of Enrile -
engage in partisan political activity; electioneering.

viii. Security of Tenure

ix. Removal

SECTION 2 (3). No officer or employee of the civil service shall be removed or suspended
except for cause provided by law.

All officers or employees including those occupying positions which are policy determining,
primarily confidential or highly technical cannot be removed or suspended unless for cause.

*** Administrative Order 292, Section 50. Summary Proceedings. - No formal investigation is
necessary and the respondent may be immediately removed or dismissed if any of the following
circumstances is present:

(1) When the charge is serious and the evidence of guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable
ground to believe that he is guilty of the present charge; and
(3) When the respondent is notoriously undesirable.

Resort to summary proceedings by the disciplining authority shall be done with utmost
objectivity and impartiality to the end that no injustice is committed: Provided, That removal or
dismissal except those by the President, himself or upon his order, may be appealed to the
Commission.
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Jurisdiction over offenses committed by officers and employees of the government or any of its
subdivision, agency, GOCCs:

ARTICLE 11, SECTION 2. The President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other
public officers and employees may be removed from office as provided by law, but not by
impeachment.

Including GOCCs incorporated under the Corporation Code which are governed by the Labor
Code. The same still falls under the jurisdiction of the Ombudsman and his Deputies for there is
no distinction as to which GOCC is covered.

SECTION 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite any
act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee
at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may
be provided by law, to furnish it with copies of documents relating to contracts or transactions
entered into by his office involving the disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the discharge
of its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other powers or perform such functions
or duties as may be provided by law.

R.A. 6770, SECTION 19. Administrative Complaints. — The Ombudsman shall act on all
complaints relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;
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(3) Are inconsistent with the general course of an agency's functions, though in accordance with
law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.

SECTION 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have 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 or over Members of Congress,
and the Judiciary.

SECTION 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority (meaning, all officials under
investigation by his office regardless of the branch of government which they are employed.
xpn: those removable by impeachment, members of congress and the judiciary) pending an
investigation, if in his judgement the evidence of guilt is strong, and (a) the charge against such
officer or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.

*** Preventive suspension in administrative cases is not a penalty in itself. It is designed merely
as measure of precaution so that the employee who is charged may be separated, for obvious
reasons, from the scene of his alleged misfeasance while the same is being investigated.

*** Preventive suspension and the right to salary. In Gloria v. Court of Appeals, G.R. No.
131012, April 21, 1999, the Supreme Court clarified that there are two kinds of preventive
suspension of civil service employees who are charged with offenses punishable by removal or
suspension, viz: (a) preventive suspension pending investigation under Sec. 51, Book V, Title I,
Subtitle A of the Administrative Code of 1987; and (b) preventive suspension pending appeal if
the penalty imposed by the disciplining authority is dismissal and, after review, the respondent
is exonerated under Sec. 47 of the same Code. It was then held that the employee has no right to
compensation during preventive suspension pending investigation, even if he is exonerated,
because in order to be entitled to payment of back salaries, it is not enough that an employee be
exonerated of the charges against him. In addition, it must be shown that his suspension is
unjustified. The preventive suspension of civil service employees charged with dishonesty,
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oppression, grave misconduct or neglect of duty, is authorized by the Civil Service Law. It
cannot, therefore, be considered “unjustified” even if later the charges are dismissed. It is one of
the sacrifices which holding a public office requires for the public good.

However, if the penalty imposed by the disciplining authority is suspension or dismissal and,
after review, the respondent is exonerated, the civil service officer or employee is entitled not
only to reinstatement but also to back salaries for the period of preventive suspension pending
appeal/

Preventive suspension pending investigation is not a penalty. It is a measure intended to enable

to enable the disciplining authority to investigate charges against respondent by preventing the
latter from intimidating or any way influencing witnesses against him. If the investigation is not
finished and a decision is not rendered within that period, the suspension will be lifted and the
respondent will automatically be reinstated. If after investigation respondent is found innocent
of the charges and is exonerated, he should be reinstated.

Preventive Suspension of Officials and Employees of Local Government Unit:

SEC. 60. Grounds for Disciplinary Actions. - An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and
sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws. An elective local
official may be removed from office on the grounds enumerated above by order of the proper
court.cralaw

SECTION 61. Form and Filing of Administrative Complaints. - A verified complaint against
any erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the President;
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(b) A complaint against any elective official of a municipality shall be filed before the
sangguniang panlalaw igan whose decision may be appealed to the Office of the President; and

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and
executory.cralaw

SECTION 62. Notice of Hearing. - (a) Within seven (7) days after the administrative complaint
is filed, the Office of the President or the sanggunian concerned, as the case may be, shall
require the respondent to submit his verified answer within fifteen (15) days from receipt
thereof, and commence the investigation of the case within ten (10) days after receipt of such
answer of the respondent.

(b) When the respondent is an elective official of a province or highly urbanized city, such
hearing and investigation shall be conducted in the place where he renders or holds office. For
all other local elective officials, the venue shall be the place where the sanggunian concerned is
located.

(c) However, no investigation shall be held within ninety (90) days immediately prior to any
local election, and no preventive suspension shall be imposed within the said period. If
preventive suspension has been imposed prior to the 90-day period immediately preceding local
election, it shall be deemed automatically lifted upon the start of aforesaid period.

SECTION. 63. Preventive Suspension. - (a) Preventive suspension may be imposed

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or
an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or

municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity of the offense, there is great probability that
the continuance in office of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence: Provided, That, any single preventive
suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further,
That in the event that several administrative cases are filed against an elective official, he
cannot be preventively suspended for more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be
deemed reinstated in office without prejudice to the continuation of the proceedings against
him, which shall be terminated within one hundred twenty (120) days from the time he was
formally notified of the case against him. However, if the delay in the proceedings of the case is
due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay
shall not be counted in computing the time of termination of the case.cralaw
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(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse
of authority.

SECTION 85. Preventive Suspension of Appointive Local Officials and Employees. - (a) The
local chief executives may preventively suspend for a period not exceeding sixty (60) days any
subordinate official or employee under his authority pending investigation if the charge against
such official or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty, or if there is reason to believe that the respondent is guilty of the charges
which would warrant his removal from the service.

(b) Upon expiration of the preventive suspension, the suspended official or employee shall be
automatically reinstated in office without prejudice to the continuation of the administrative
proceedings against him until its termination. If the delay in the proceedings of the case is due
to the fault, neglect or request of the respondent, the time of the delay shall not be counted in
computing the period of suspension herein provided.

SECTION. 87. Disciplinary Jurisdiction. - Except as otherwise provided by law, the local chief
executive may impose the penalty of removal from service, demotion in rank, suspension for
not more than one (1) year without pay, fine in an amount not exceeding six (6) months' salary,
or reprimand and otherwise discipline subordinate officials and employees under his
jurisdiction. If the penalty imposed is suspension without pay for not more than thirty (30) days,
his decision shall be final. If the penalty imposed is heavier than suspension of thirty (30) days,
the decision shall be appealable to the Civil Service Commission, which shall decide the appeal
within thirty (30) days from receipt thereof. - decision, penalty

Jurisdiction

GOCCs etc. with original Office of the Ombudsman

charter and his Deputy;

GOCCs etc. without original Security and Exchange post audit only - directed by
charter Commission the Commission on Audit

Officials and employees by Period: 60 | not more than 90 Local Government Code
Local Government Units days
Appeal: CSC

*** Garcia v. Mojica: The question of whether or not the Ombudsman may conduct an
investigation over particular act or omission is different from the question of whether or not
petitioner after investigation may be held administratively liable. The power to investigate is
distinct from the power to suspend officer. The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the Ombudsman is due to
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the fault, negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

*** Ombudsman and its Deputies - The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against officers or
employees of the government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.

*** Leyson v. Ombudsman: “Government owned or controlled corporation" contained in par.

(13), Sec. 2, Introductory Provisions of the Administrative Code of 1987, i. e., any agency
organized as a stock or non-stock corporation vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by the Government directly or
through its instrumentalities either wholly, or, where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) percent of its capital stock. The definition
mentions three (3) requisites, namely, first, any agency organized as a stock or non-stock
corporation; second, vested with functions relating to public needs whether governmental
or proprietary in nature; and, third, owned by the Government directly or through its
instrumentalities either wholly, or, where applicable as in the case of stock corporations,
to the extent of at least fifty-one (51) percent of its capital stock. - subject to the
jurisdiction of the Ombudsman.

*** Macalino v. Sandiganbayan: In as much that PNCC has no original charter as it was
incorporated under the Corporation Code it follows inevitably that petitioner is not a public
officer with the contemplation or coverage with Anti Graft and Corruption thus Sandiganbayan
has no jurisdiction over him. Sandiganbayan has jurisdiction over private individuals when a
complaint charges him as a co-principal, accomplice, or accessory of a public officer.

Read:
- Camporedondo vs. NLRC, GR No. 129049, August 6, 1999

Facts:

Camporedondo filed with the National Labor Relations Commission, a complaint for illegal
dismissal, damages and underpayment of wages against the Philippine National Red Cross and
its key officials as he was forced to "retire" after he was required to restitute shortages and
unremitted collections in the total sum of P135,927.78.

Philippine National Red Cross filed with the Department of Labor and Employment, a motion
to dismiss the complaint for lack of jurisdiction over the subject matter of the case because the
PNRC is a government corporation whose employees are members of the Government Service
Insurance System (GSIS), and embraced within the Civil Service Law and regulations. Labor
Arbiter issued an order dismissing the complaint for lack of jurisdiction.

Issue:
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Whether the Philippine National Red Cross (PNRC for short) is a government owned and
controlled corporation or it has been "impliedly converted to a private organization"?

Held:

It is a government owned corporation

Resolving the issue set out in the opening paragraph of this opinion, we rule that the Philippine
National Red Cross (PNRC) is a government owned and controlled corporation, with an
original charter under Republic Act No. 95, as amended. The test to determine whether a
corporation is government owned or controlled, or private in nature is simple. Is it created by
its own charter for the exercise of a public function, or by incorporation under the general
corporation law? Those with special charters are government corporations subject to its
provisions, and its employees are under the jurisdiction of the Civil Service Commission,
and are compulsory members of the Government Service Insurance System. The PNRC
was not "impliedly converted to a private corporation" simply because its charter was amended
to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees
and other charges of all kinds on all importations and purchases for its exclusive use, on
donations for its disaster relief work and other services and in its benefits and fund raising
drives, and be alloted one lottery draw a year by the Philippine Charity Sweepstakes Office for
the support of its disaster relief operation in addition to its existing lottery draws for blood
program.

- SC vs. NLRC 168 SCRA 122

Facts:
Credo was administratively charged by Sisinio S. Lloren, Manager of Finance and Special
Project and Evaluation Department of NASECO, stemming from her non-compliance with
Lloren's memorandum, dated 11 October 1983, regarding certain entry procedures in the
company's Statement of Billings Adjustment. Said charges alleged that Credo "did not comply
with Lloren's instructions to place some corrections/additional remarks in the Statement of
Billings Adjustment; and when [Credo] was called by Lloren to his office to explain further the
said instructions, [Credo] showed resentment and behaved in a scandalous manner by shouting
and uttering remarks of disrespect in the presence of her co-employees." Credo was placed on
"Forced Leave" status for 15 days.

Credo filed a complaint, docketed as Case No. 114944-83, with the Arbitration Branch,
National Capital Region, Ministry of Labor and Employment, Manila, against NASECO for
placing her on forced leave, without due process.

In NASECO's comment in G.R. No. 70295, it is belatedly argued that the NLRC has no
jurisdiction to order Credo's reinstatement. NASECO claims that, as a government corporation
(by virtue of its being a subsidiary of the National Investment and Development Corporation
 14

(NIDC), a subsidiary wholly owned by the Philippine National Bank (PNB), which in turn is a
government owned corporation), the terms and conditions of employment of its employees are
governed by the Civil Service Law, rules and regulations.

Issue:
Whether Labor Code or Civil Service Law will apply?

HELD:
Yes, application of the Labor Code will apply to NASECO being the subsidiary corporation of
PNB.

"including government-owned or controlled corporations WITH ORIGINAL CHARTERS." -

they were created by law, by an act of Congress, or by special law / are those with legislative
charters

The NLRC has jurisdiction to accord relief to the parties. As an admitted subsidiary of the
NIDC, in turn a subsidiary of the PNB, the NASECO is a government-owned or
controlled corporation without original charter.

RATIO: The contention of the respondent that they are not covered by the Labor Code
but the Civil Service Law is not correct. Under the 1987 Constitution it provides that the
Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned corporations with original charter. It means
that the term “original charter”, such corporation is created by law, by an act of Congress
or by special law.

Given that NASECO is subsidiarily owned by PNB and that it is without an original
charter, cannot claim that they are under Civil Service Law. Thus, NLRC has jurisdiction
over Credo’s issue.

- Lopez vs. CSC, 194 SCRA 269

Facts:

Petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto Abellana, was
appointed as Assistant Harbor Master at Manila International Container Terminal, Manila South
Harbor and Manila North Harbor, respectively. A law was passed wherein the DOTC was
reorganized, and the number of Assistant Harbor Master in the Philippine Ports Authority
(PPA) was reduced from (3) three to (2) two. After a careful evaluation of a placement
committee of the PPA, Luz was rated third.
 15

Luz protested/appealed the appointment of Lopez, but the PPA General Manager said Luz was
not qualified for the two slots. Luz then appealed to the CSC. The CSC ordered for a re-
assessment which the PPA complied. Still, the CSC found that the re-assessment was not in
order. It ruled that the immediate supervisor of respondent Luz was in the best position to assess
the competence of the respondent and not a psychiatric-consultant who was merely a
contractual employee and susceptible to partiality. It directed the appointment of Luz as the
Harbor Master instead of the petitioner Hence, the petition.

Issue:

Whether or not the CSC erred in nullifying Lopez’ appointment and instead substituting its
decision for that of the PPA.

Ruling:

The role of the Civil Service Commission in establishing a career service and in promoting the
morale, efficiency, integrity, responsiveness, and courtesy among civil servants is not disputed
by petitioner Lopez. On the other hand, the discretionary power of appointment delegated to the
heads of departments or agencies of the government is not controverted by the respondents. In
the appointment, placement and promotion of civil service employees according to merit
and fitness, it is the appointing power, especially where it is assisted by a screening
committee composed of persons who are in the best position to screen the qualifications of
the nominees, who should decide on the integrity, performance and capabilities of the
future appointees.

The law limits the Commission's authority only to whether or not the appointees possess
the legal qualifications and the appropriate civil service eligibility, nothing else. To go
beyond this would be to set at naught the discretionary power of the appointing authority
and to give to the Commission a task which the law (Sec. 6, Rep. Act No. 6656) does not
confer. This does not mean that the Commission's act of approving or disapproving becomes
ministerial. The Court has defined the parameters within which the power of approval of
appointments shall be exercised by the respondent Commission. In the case of Luego v. Civil
Service Commission, 143 SCRA 327 [1986], the Court ruled that all the Commission is actually
authorized to do is to check if the appointee possesses the qualifications and appropriate
eligibility: "If he does, his appointment is approved; if not it is disapproved." We further ruled
that the Commission has no authority to revoke an appointment simply because it believed
that the private respondent was better qualified for that would have constituted an
encroachment of the discretion vested solely in the appointing authority. The Commission
cannot exceed its power by substituting its will for that of the appointing authority.

- Torregoza vs. CSC, 211 SCRA 230

 16

Facts:

The original appointment of the petitioner on January 18, 1978, was one of the six (6) Staff
Aide positions, in the aforementioned office, issued by then Presidential Assistant Juan C.
Tuvera for a period of six (6) months. On June 5, 1978, less than five months after the first
appointment, petitioner was given another appointment to the same position effective "as of
June 18, 1978" and with a notation that "This appointment is declared confidential."

Obviously, since 1978 to February 8, 1990 when Republic Act No. 6850 became a law,
petitioner never left the same position. Then on March 5, 1990, respondent Commission issued
the "Rules Implementing Republic Act No. 6850, enabling the petitioner to file her application
for the appropriate eligibility to the position she has been occupying for the last thirteen (13)
years and having accordingly rendered efficient service.

Petitioner’s request was returned unacted upon by respondent’s field office in Malacañang,
Manila for the reason that based on the service record submitted by the Personnel Office of the
Office of the President, petitioner’s position had allegedly been declared confidential.

In the course of time, after the Salary Standardization Law was passed, the same position was
reclassified as Clerk II in July 1989.

Subsequently, Deputy Executive Secretary Mariano Sarmiento sent a letter to the respondent
dated November 7, 1990, requesting that based on the present certified function and actual
duties of the petitioner, the position be restored to the career service and that said petitioner be
granted the civil service eligibility under R.A. No. 6850.

Respondent Commission denied petitioner’s request on January 28, 1991, after determining that
petitioner’s appointment in 1978 was declared by the Office of the President as "confidential in
nature", nevertheless, respondent stated that "an analysis of the duties and responsibilities of the
subject position reveals that they are the same with the other positions in the career service . . ."

On February 27, 1991, petitioner moved for reconsideration of the foregoing Decision, but the
respondent stood firm in its resolution.

Issue:

Whether the writ of mandamus may be issued by this Court to compel the respondent
Commission to grant the petitioner the privilege of securing an appropriate civil service
eligibility under Republic Act No. 6850.

Held:
 17

NO. Under the law granting the privilege to government employees, there is a wide latitude of
discretion given to the Commission which determines in Section 1 thereof, "who are qualified
to avail themselves to the privilege granted under this Act." With such a discretion,
Section 2 of the same law requires the Civil Service Commission to promulgate the rules
and regulations to implement this Act using certain standards. Following are the pertinent
provisions of Republic Act No. 6850:

"Section 1. All government employees as of the approval of this Act who are holding
career civil service positions appointed under provisional or temporary status who
have rendered at least a total of seven (7) years of efficient service may be granted the
civil service eligibility that will qualify them for permanent appointment to their present
positions.

"The Civil Service Commission shall formulate performance evaluation standards in

order to determine those temporary employees who are qualified to avail themselves of
the privilege granted under this Act.

"The civil service eligibility herein granted may apply to such other positions as the
Civil Service Commission may deem appropriate.

"Sec. 2. The Civil Service Commission shall promulgate the rules and regulations to
implement this Act consistent with the merit and fitness principle within ninety (90)
days after its effectivity."

The Writ of Mandamus will not lie as the responsibility of the respondent Commission in
implementing the law is not ministerial, besides, what the law granted is a mere privilege
and not a right to those who are qualified according to the standards to be set by the
Commission.

In Marcelo v. Tantuico, Jr., this Court held that the "Remedy of mandamus is available only
to compel the performance of a ministerial duty, but not where the reinstatement involves
the exercise of sound judgment and discretion by the appointing power, absent a showing of a
clear and certain right by petitioner."

- Leyson vs. Ombudsman, GR No. 134990, April 27, 2000

Facts:

The Coconut Industry Investment Fund (CIIF) companies failed to comply with its contract
agreement with the International Towage and Transport Corporation (ITTC) for the transport of
coconut oil in bulk. ITTC Executive Vice President Manuel Leyson, Jr. filed a complaint with
the Office of the Ombudsman for breach of contract, among others. The complaint was
dismissed.
 18

Issue:

Whether the Office of the Ombudsman committed grave abuse of discretion in dismissing
petitioner’s complaint

Held:

NO. “Government owned or controlled corporation" contained in par. (13), Sec. 2, Introductory
Provisions of the Administrative Code of 1987, i. e., any agency organized as a stock or non-
stock corporation vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government directly or through its instrumentalities
either wholly, or, where applicable as in the case of stock corporations, to the extent of at least
fifty-one (51) percent of its capital stock. The definition mentions three (3) requisites,
namely, first, any agency organized as a stock or non-stock corporation; second, vested
with functions relating to public needs whether governmental or proprietary in nature;
and, third, owned by the Government directly or through its instrumentalities either
wholly, or, where applicable as in the case of stock corporations, to the extent of at least
fifty-one (51) percent of its capital stock.

The Court held that CIIF companies are, as found by public respondent, private corporations not
within the scope of its jurisdiction. All three (3) corporations comprising the CIIF companies
were organized as stock corporations. The UCPB-CIIF owns 44.10% of the shares of LEGASPI
OIL, 91.24% of the shares of GRANEXPORT, and 92.85% of the shares of UNITED
COCONUT. Obviously, the below 51% shares of stock in LEGASPI OIL removes this firm
from the definition of a government owned or controlled corporation. Our concern has thus
been limited to GRANEXPORT and UNITED COCONUT as we go back to the second
requisite. Unfortunately, it is in this regard that petitioner failed to substantiate his contentions.
There is no showing that GRANEXPORT and/ or UNITED COCONUT was vested with
functions relating to public needs whether governmental or proprietary in nature. The Court
thus concludes that the CIIF companies are, as found by public respondent, private corporations
not within the scope of its jurisdiction.

- Cruz vs. CSC, GR No. 144464, November 22, 2001

Facts:
In 1994, the Civil Service Commission discovered that petitioner Zenaida Paitim (municipal
treasurer of Norzagaray, Bulacan) took the non-professional examination for Gilda Cruz, after
the latter had previously failed in the said examination three times. The CSC found after a fact-
finding investigation that a prima facie case exists against Paitim and Cruz. A “Formal
Charge” for dishonesty, grave misconduct, and conduct prejudicial to the best interest of the
service. The petitioners, in their answer, entered a general denial of the formal charge. The
petitioners declared that they were electing a formal investigation on the matter. The
 19

petitioners subsequently filed a Motion to Dismiss averring that if the investigation will
continue,they will be deprived of their right to due process because the CSC was the
complainant, the prosecutor, and the judge, all at the same time. On November 16, 1995, Dulce
J. Cochon issued an investigation report and recommendation finding the petitioners guilty of
"Dishonesty" and ordering their dismissal from the government service. The report was
forwarded to the CSC for its consideration, and likewise found the petitioners guilty and
ordered the same to be dismissed from government service. Petitioners maintain that the CSC
did not have original jurisdiction to hear and decide the administrative case. Allegedly, in
accordance with Sec. 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of
1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the
penalty imposed is removal or dismissal from the office and where the complaint was filed by
a private citizen against the government employee.

Issue:
Whether or not petitioner’s right to due process was violated when the CSC acted as an
investigator, complainant, prosecutor and judge all at the same time.

Ruling:
The SC ruled in the negative. Petitioners' invocation of the law is misplaced. The provision is
applicable to instances where administrative cases are bled against erring employees in
connection with their duties and functions of the office. This is, however, not the scenario
contemplated in the case at bar. It must be noted that the acts complained of arose from a
cheating caused by the petitioners in the Civil Service (Sub professional) examination. The
examinations were under the direct control and supervision of the Civil Service
Commission. The culprits are government employees over whom the Civil Service
Commission undeniably has jurisdiction. Thus, after the petitioners were duly investigated
and ascertained whether they were indeed guilty of dishonesty, the penalty meted was dismissal
from the office. Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations
explicitly provides that the CSC can rightfully take cognizance over any irregularities or
anomalies connected to the examinations.

- Ontiveros vs. CA, GR No. 145401, May 7, 2001

Facts:
Petitioner was Security Officer I in the Investigation and Security Division of the Ministry of
Tourism, having been appointed to that position on July 27, 1976. On May 26, 1986, he was
dismissed from the service for inefficiency, incompetence, and unauthorized absences. ,
petitioner appealed to the CSC, invoking his status as a civil service eligible and a permanent
employee.

In response, CSC Director IV Angelito G. Grande informed petitioner that jurisdiction over his
appeal was vested in the Review Committee created under Executive Order No. 17 of then
 20

President Corazon C. Aquino and for that reason his (petitioner’s) appeal could not be given
due course by the CSC.

The Court of Appeals ruled that the CSC had no jurisdiction over petitioner’s appeal, the proper
appellate body being the Review Committee established under E.O. No. 17. In addition, the
appeals court held that review of petitioner’s dismissal was barred by laches. Hence this
petition.

Issue:
Petitioner argues that his case does not fall under the Review Committee’s jurisdiction because
his separation from the service was not in consequence of the reorganization of the government,
as provided in the Provisional Constitution (also known as the Freedom Constitution), but was
for cause; hence, appeal lies with the CSC

Ruling:
It is clear that petitioner’s dismissal came within the coverage of E.O. No. 17, §3(3) and (5).
Pursuant to §2 of the order, the memorandum of dismissal of Minister Gonzales is considered
the act of the then President.

SECTION 1. In the course of implementing Article III, Section 2 of the Freedom Constitution,
the Head of each Ministry shall see to it that the separation or replacement of officers and
employees is made only for justifiable reasons, to prevent indiscriminate dismissals of
personnel in the career civil service whose qualifications and performance meet the standards of
public service of the New Government. xxx

The Ministry concerned shall adopt its own rules and procedures for the review and
assessment of its personnel, including the identification of sensitive positions which
require more rigid assessment of the incumbents, xxx

SECTION 2. The Ministry Head concerned, on the basis of such review and assessment,
shall determine who shall be separated from the service. Thereafter, he shall issue to the
official or employee concerned a notice of separation which shall indicate therein the
reason/s or ground/s for such separation and the fact that the separated official or employee
has the right to file a petition for reconsideration pursuant to this Order. Separation from the
service shall be effective upon receipt of such notice, either personally by the official or
employee concerned or on his behalf by a person of sufficient discretion.

SECTION 3. The following shall be the grounds for separation/replacement of

personnel:chanrob1es virtual 1aw library
 21

1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service
Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act
as determined by the Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the service
or his separation/replacement is in the interest of the service.

Issue:
Petitioner argues that the Review Committee did not have jurisdiction over his appeal because it
was created only after he had been dismissed on May 26, 1986.

Ruling:
A petition for reconsideration may be filed with the [Review] Committee by the separated
official or employee within ten (10) days from receipt of the notice of separation. In case of
those already separated from the service upon issuance of this Order, including those
whose resignations were accepted or whose successors have been appointed/designated,
the petition shall be filed within ten (10) days from date of publication of this Order in a
newspaper of general circulation.

- Hon. Alma de Leon vs. CA, et al. GR No. 127182, Jan. 22,
2001

Facts:

Private respondent Atty. Jacob F. Montesa, who is not a Career Executive Service Officer
(CESO) nor a member of the Career Executive Service, was appointed as "Ministry Legal
Counsel-CESO IV in the Ministry of Local (now Department of Interior and Local
Government). Meanwhile, R.A No. 6758 (Salary

Standardization Law) took effect on July 1. 1989. Pursuant thereto, the position of "Department
Service Chiefs, which include the Department Legal Counsel, was re classified and ranked with
"Assistant Bureau Directors* under the generic position title of "Director III*. In 1994, when
Secretary Alunan III reassigned private respondent as "Director III (Assistant Regional
Director-Region XI), private respondent refused to report to his new post and instead filed a 90-
day sick leave.

On October 10, 1995, the Department directed private respondent to report to his new post in
Region XI, otherwise, he shall be considered on Absence Without Leave (AWOL) and as a
consequence, drop him from the rolls. Instead of complying therewith, private respondent filed
 22

with the Court of Appeals a Petition for Review with prayer for a temporary restraining order
and/or preliminary injunction. The CA subsequently reinstated private respondent, ruling that
his reassignment was actually an unconsented transfer which changed his appointment from
permanent to temporary and violated his right to security of tenure.

Issue:

Whether the appointment is valid

Ruling:

It is settled that a permanent appointment can be issued only 'to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate
eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded
only as temporary. And being so, it could be withdrawn at will by the appointing authority
and "at a moment's notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in
the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer
security or tenure on its occupant even if he does not possess the required qualifications.
Such right will have to depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite qualifications for the
position cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligible. The
appointment extended to him cannot be regarded as permanent even if it may be so
designated.

Evidently, private respondent's appointment did not attain permanency. Not having taken the
necessary Career Executive Service examination to obtain requisite eligibility, he did not at the
time of his appointment and up to the present, possess the needed eligibility for a position in the
Career Executive Service. Consequently, his appointment as Ministry Legal Counsel – CESO
IV/ Department Legal Counsel and/or Director III, was merely temporary. Such being the case,
he could be transferred or reassigned without violating the constitutionally guaranteed right to
security of tenure.

- PAGCOR vs. Rilloraza, GR No. 141141, June 25, 2001

Facts:

Respondent Carlos Rilloraza, casino operations manager who was recalled to the branch for
only 3 weeks, was administratively charged with dishonestly, grave misconduct, conduct
 23

prejudicial to the best interest of the service and loss of confidence resulting to his dismissal.
Petitioner PAGCOR alleged that Rilloraza was an employee occupying a confidential position
under Sec. 16 of PD1869, and therefore, exempt from the provisions of the Civil Service Law
and shall be governed by the personnel management policies set by the petitioner's Board of
Directors. However, Rilloraza maintained that he followed protocol and did not commit any
misconduct in the execution of his work. He contended that he followed procedures when he
was asked to exchange checks for gambling chips. He even asked his immediate supervisor and
another high-ranking official to verify and confirm said transaction, to which they both agreed.
As to the allegation that he failed to stop a top-ranking officer for gambling chips in violation of
PAGCOR's rules and regulations, he maintained that he accorded respect and credence to the
word of the said officer since he was only his subordinate. The CSC found him guilty of only
simple neglect which was also affirmed by the CA and ordered his reinstatement with payment
of full backwages and other monetary benefits.

Issue:

Whether or not respondent was a confidential appointee whose term had expired by reason of
loss of confidence

Held:

No. Petitioner's argued that Rilloraza was primarily a confidential appointee. Hence, he holds
office at the pleasure of the appointing power and may be removed upon the cessation of
confidence in him by the latter. Such would not amount to a removal but only the expiration of
his term. Citing their decision in CSC vs. Salas, the Court held that the last portion of Sec. 16 of
PD 1869, which provides that "employees of the casino and related services shall be classified
as 'confidential' appointees."

Three important points must be considered with regard to this. First, the classification of a
particular position as primarily confidential, policy-determining, or highly technical amount to
no more than an executive or legislative declaration that is not conclusive upon the courts, the
true test being the nature of the position. Second, whether primarily confidential, policy-
determining, or highly technical, the exemption provided in the Charter pertains to
exemption from competitive examination to determine merit and fitness to enter the civil
service. Such employees are still protected by the mantle of security of tenure. Lastly, insofar as
Sec. 16 of PD1869 declares all positions within PAGCOR as primarily confidential, such is
not absolutely binding on the courts.

*power or authority to determine whether a position is policy-determining or primarily

confidential or highly technical* - The initial decision is made by the legislative body or by the
executive department, but the final decision is done by the court.
 24

*exemption - merit system or the competitive system

- Abella vs. CSC, GR No. 152574, November 17, 2004

Facts:

Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone Authority
(EPZA), now the Philippine Economic Zone Authority (PEZA), on July 1, 1996 as Department
Manager of the Legal Services Department. He held a civil service eligibility for the position of
Department Manager, having completed the training program for Executive Leadership and
Management in 1982 under the Civil Service Academy, pursuant to CSC Resolution No. 850
dated April 16, 1979, which was then the required eligibility for said position.

On May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21, series
of 1994 with Section 4 enumerating the positions covered by the Career Executive Service
(CES). These positions require Career Service Executive Eligibility (CSEE) as a requirement
for permanent appointment. But, this provides that incumbents to CES shall retain their
permanent appointment but upon promotion or transfer to other CES positions, they shall be
under temporary status until they qualify.

Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan Authority
(SBMA) on a contractual basis. On January 1, 1999, petitioner was issued by SBMA a
permanent employment as Department Manager III, Labor and Employment Center. However,
when said appointment was submitted to respondent Civil Service Commission Regional Office
No. III, it was disapproved on the ground that petitioner’s eligibility was not appropriate.
Petitioner was advised by SBMA of the disapproval of his appointment. In view thereof,
petitioner was issued a temporary appointment as Department Manager III, Labor and
Employment Center, SBMA on July 9, 1999. Petitioner appealed the disapproval of his
permanent appointment by respondent to the Civil Service Commission, which issued
Resolution No. 000059, dated January 10, 2000, affirming the action taken by respondent.
Petitioner’s motion for reconsideration thereof was denied by the CSC in Resolution No.
001143 dated May 11, 2000.

Petitioner appealed to the Court of Appeals but it ruled that he did not have legal standing to
question the disapproval and was not the real party in interest.

Issues:
 25

1. Whether the petitioner has the personality and the real party in interest to question the
disapproval of his appointment.

2. Whether the issuance of Section 4 of CSC Memorandum Circular No. 21, s. 1994,
which deprived petitioner his property right without due process of law, is constitutional.

3. Whether the CSC correctly denied his appointment.

Ruling:

1. Personality and Real Party in Interest

As a general rule, one who has no right or interest to protect cannot invoke the jurisdiction of
the court as a party-plaintiff in an action. A real party in interest is one who would be
benefited or injured by the judgment, or one entitled to the avails of the suit. The petitioner
was prejudiced by the disapproval of his appointment, since he could not continue his office.
Although petitioner had no vested right to the position, it was his eligibility that was being
questioned. Corollary to this point, he should be granted the opportunity to prove his
eligibility. He had a personal stake in the outcome of the case, which justifies his challenge
to the CSC act that denied his permanent appointment.

If legal standing is granted to challenge the constitutionality or validity of a law or

governmental act despite the lack of personal injury on the challenger’s part, then more so
should petitioner be allowed to contest the CSC Order disapproving his appointment.

The Court ruled that the petitioner is a real party in interest.

2. Due Process and the Administrative Power of the CSC

The petitioner alleged that his civil service eligibility was rendered ineffective and that he was
consequently deprived of a property right without due process. The petitioner challenges the
constitutionality of CSC Memorandum Circular 21, s. 1994, which provides for the covered
positions under Career Executive Service and providing further for the criteria and
qualifications to be included as one. The petitioner was adversely affected by the said issuance
because he did not meet the minimum requirement set by the CSC for his appointment.

The Court held, Civil Service laws have expressly empowered the CSC to issue and enforce
rules and regulations to carry out its mandate. In the exercise of its authority, the CSC
deemed it appropriate to clearly define and identify positions covered by the Career
Executive Service. Logically, the CSC had to issue guidelines to meet this objective,
specifically through the issuance of the challenged Circular.
 26

The challenged Circular did not revoke petitioner’s eligibility. He was appointed to a CES
position; however, his eligibility was inadequate. Eligibility must necessarily conform to
the requirements of the position, which in petitioner’s case was a Career Service Executive
Eligibility (CSEE). The challenged Circular protects the rights of incumbents as long as they
remain in the positions to which they were previously appointed. They are allowed to retain
their positions in a permanent capacity, notwithstanding the lack of CSEE. Clearly, the
Circular recognizes the rule of prospectivity of regulations; hence, it is not an post facto
law or a bill of attainder.

In the present case, the government service of petitioner ended when he retired in 1996; thus,
his right to remain in a CES position, notwithstanding his lack of eligibility, also ceased. Upon
his reemployment years later as department manager III at SBMA in 2001, it was necessary for
him to comply with the eligibility prescribed at the time for that position.

On petitioner’s averment that he was not afforded due process for CSC’s alleged failure to
notify him of a hearing relating to the issuance of the challenged Circular, is not tenable. The
issuance of the circular was an exercise of a quasi-legislative function, as such, prior notice
to and hearing of every affected party, as elements of due process, are not required since
there is no determination of past events or facts that have to be established or ascertained.
As a general rule, prior notice and hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct.

3. Whether CSC correctly denied his appointment

The Court held, the CSC correctly denied his permanent appointment since the petitioner had
no CES eligibility. The CSC, in approving or disapproving an appointment, merely
examines the conformity of the appointment with the law and the appointee’s possession
of all the minimum qualifications and none of the disqualification. In sum, while petitioner
was able to demonstrate his standing to appeal the CSC Resolutions to the courts, he failed to
prove his eligibility to the position he was appointed to.

- UP vs. Regino, 221 SCRA 598

Doctrine: The Civil Service Law (PD 807) expressly vests in the Commission appellate
jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section
9(j) mandates that the Commission shall have the power to "hear and decide administrative
disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on
appeal." And Section 37(a), provides that, "The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposititon of a penalty of suspension for more
than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or
salary or transfer, removal or dismissal from office."
 27

Facts:

Private respondent Angel Pamplina, a mimeograph operator at the University of the Philippines
School of Economics, was dismissed on June 1982 due to dishonesty and grave misconduct for
causing the leakage of final examination questions.

His appeal was denied by the UP Board of Regents, hence he seek relief from the Merit
Systems Board (MSB), created under Presidential Decree No. 1409. The University of the
Philippines filed a motion to dismiss for lack of jurisdiction on the part of the MSB.

MSB denied the motion and exonerated Pamplina and ordered his reinstatement. UP moved for
reconsideration but it was denied.

UP appealed to the Civil Service Commission but it sustained the MSB decision.

Through the Office of the Solicitor General (OSG), UP filed a second motion for
reconsideration which was denied on the basis of Section 39(b) of PD 807, providing in part
that "only one petition for reconsideration shall be entertained" by the Civil Service
Commission.

Pamplina’s "Manifestation and Motion for Execution of Judgment" was granted by the
Commission however UP claimed that the resolutions of the Commission had not yet become
final and executory.

Pamplina filed a petition for a writ of mandamus which was granted by the RTC and ordered
the reinstatement of Pamplina to his former position as mimeograph operator.

UP filed a petition for certiorari to seek the annulment of the decision of the trial court and the
orders of the Commission directing the reinstatement of Pamplina. UP prays that the decision of
the UP President and Board of Regents ordering Pamplina's dismissal be upheld.

Issue:

Whether or not UP under its charter, to wit, Act 1870, enjoys academic freedom and
institutional autonomy regardless of the Civil Service Commission.

Held:

No. The petition is dismissed.

Under the 1972 Constitution, all government-owned or controlled corporations, regardless

of the manner of their creation, were considered part of the Civil Service. Under the 1967
Constitution only government-owned or controlled corporations with original charters fall
within the scope of the Civil Service pursuant to Article IX-B, Section 2(l), which states:
 28

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of
the government, including government-owned or controlled corporations with original charters.

As a mere government-owned or controlled corporation, UP was clearly a part of the Civil

Service under the 1973 Constitution and now continues to be so because it was created by a
special law and has an original charter. As a component of the Civil Service, UP is therefore
governed by PD 607 and administrative cases involving the discipline of its employees
come under the appellate jurisdiction of the Civil Service Commission.

- Samson vs. CA, 145 SCRA 654

Topic: Legality of Administrative Order no. 3 - challenged administrative order is section5(f) of

Republic Act No. 2260, otherwise known as the Civil Service Act of 1959

Doctrine: Under a strict construction of R.A. 2260, or who belong to the non-competitive
service, the position of Assistant Secretary to the Mayor is deemed to belong to the competitive
service inasmuch only secretaries to governors and mayors are expressly enumerated as non-
competitive.

Facts: Feliciano Talens was Assistant Secretary to the Mayor of Caloocan. The newly-elected
mayor, Marcial Samson, released an Administrative Order qualifying the services of Talens as
non-competitive and terminating his employment on the ground of “lack and loss of
confidence”. He appointed Liwas as replacement. Petitioner justifies that as Assistant Secretary,
like the Secretary, renders non-competitive service which is primarily confidential and highly
technical in nature where termination may be made due to lack and loss of confidence.
However, respondent contends that he is competitive employee and thus, can only be removed
for cause and after due process has been observed. Thus, he filed with the Court of First
Instance of Caloocan to annul the disputed administrative order. The CFI, as well as the CA,
ruled in favor of Talens.

Petitioner contends that the position of Assistant Secretary to the Mayor should be considered
as in the non-competitive service and that the tenure of assistant secretary lasts only as long as
the Mayor’s confidence in him remains. Petitioners’ submission is that the assistant secretary is
no less a secretary to the mayor.

Issue:
Whether or not Administrative Order No. 3 terminating the respondent for the position of
Assistant Secretary to the mayor is legal and considered as a non-competitive service.

Ruling:
 29

No. The Court affirmed the lower court’s decision. The position of Assistant Secretary to the
Mayor is deemed to belong to the competitive service.

Under a strict construction of R.A. 2260, or who belong to the non-competitive service, the
position of Assistant Secretary to the Mayor is deemed to belong to the competitive service
in as much only secretaries to governors and mayors are expressly enumerated as non-
competitive.—The parties are agreed that the nature of the functions attaching to office or
position ultimately determines whether such position is policy-determining, primarily
confidential or highly technical. It is the nature of the position which finally determines a
position to be primarily confidential (Leon A. Pinero, et al. vs. Rufino Hechanova, et al.,
18SCRA421). Stated differently, it is not the powers and duties exercised and discharged
by the Assistant Secretary to the Mayor as may be delegated and assigned by the Mayor
that makes the position of Assistant Secretary primarily confidential. While duties
possibly involving confidential matters are sometimes handled by the Assistant Secretary
to the Mayor, this does not necessarily transform the nature of the position itself as one
that is primarily and highly confidential.

*If the law intended assistant secretaries to belong to the non-competitive service, it should
have been worded: “Secretaries and their assistance."—It should be stressed that the position of
Secretary to the Mayor and that of Assistant Secretary to the Mayor are two separate and
distinct positions. While both individuals may be called “secretary,” nevertheless, one is
certainly of higher category and rank than the other with the added distinction that a Secretary
must enjoy the confidence of the Mayor. However, the position of Assistant Secretary being of
a lower rank, need not carry the requisites attaching to the primarily confidential position of the
actual Secretary to the Mayor. Moreover, if it was the intention of Congress to include the
Assistant Secretaries within the purview of Section5(f) of R.A. No. 2260, as amended, so that
Assistant Secretaries are also embraced in the non-competitive service, the law could have been
easily worded “secretaries and their assistance.”

*An “assistant secretary” although termed a “secretary and may incidentally perform work that
is confidential is technically different from a “secretary” to the mayor.—We are not disposed to
agree with petitioners. What petitioners fail to consider is that an “assistant secretary,” although
described as secretary, technically differs in function fromthe “Secretaries.” An “assistant”
merely helps, aids or serves in a subordinate capacity to the person who is actually clothed with
all the duties and responsibilities of “secretary.” Needless to say, the functions strictly
attributable to a “secretary” and which would repose on such person the trust and confidence of
the employer, is not automatically vested or transferred to an “assistant secretary,” because the
latter simply assists or aids the former in the accomplishment of his duties.

*Statutory exceptions are to be strictly but reasonably construed—Under the rules of statutory
construction. exceptions, as a general rule, should be strictly, but reasonably construed; they
 30

extend only so far as their language fairly warrants, and all doubts should be resolved in favor
of the general provisions rather than the exception. Where a general rule is established by
statute with exceptions, the court will not curtaO the former nor add to the latter by implication
x x x (Francisco, Statutory Construction, p. 304, citing 69C.J., Section 643, pp. 1092–1093,
italics supplied). Samson vs. Court of Appeals, 145 SCRA654, No. L-43182 November 25,
1986

- CSC vs. Dela Cruz, GR No. 158737, August 31, 2004

Facts:
Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC,
presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation
Safety Division.

Respondent was promotionally appointed to the said position on November 28, 1994, duly
attested by the Civil Service Commission (CSC). But prior thereto, he was a Check Pilot II in
the Air Transportation Office (ATO).

In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of
the ATO formally filed with the Department of Transportation and Communication (DOTC) her
protest against the promotional appointment of respondent as Chief Aviation Safety Regulation
Officer, claiming among others that respondent did not meet the four-year supervisory
requirement for said position.

Issues:
Petitioner contends that the appellate court erred in approving respondent’s appointment as
Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year
managerial and supervisory qualification for the position. It further contends that respondent’s
completion of the required experience during the pendency of the present case cannot be
counted in his favor because compliance with the prescribed mandatory requirements should be
as of the date of issuance of the appointment and not the date of approval by the CSC or the
resolution of the protest against the appointment.

Ruling:
Contrary to petitioner’s contention, respondent has sufficiently complied with the required
experience standards. The contested position required four years of work experience in
managerial position(s) per the Qualification Standards Manual prescribed by MC No. 46, s.
1993 and/or four years of experience in planning, organizing, directing, coordinating and
supervising the enforcement of air safety laws, rules and regulations pertaining to
licensing, rating and checking of all airmen and mechanics and regulation of the activities
of flying schools per the above-stated ATO-DOTC Qualification Standards.
 31

Respondent would indeed lack the required years of work experience to qualify for the
contested position if the managerial standards in the first clause above were to be strictly
followed. At the time of his permanent appointment on November 28, 1994 as Chief Aviation
Safety Regulation Officer, respondent had a little over one year of managerial experience from
his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993.
However, the work already rendered by respondent in the ATO at the time of his appointment
was well within the supervisory standard in the second clause. Planning, organizing, directing,
coordinating and supervising the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the
activities of flying schools were part of the work performed by respondent for more than 13
years prior to his appointment.

In Rapisora vs. Civil Service Commission, this Court held that the rule that appointees must
possess the prescribed mandatory requirements cannot be so strictly interpreted as to
curtail an agency’s discretionary power to appoint, as long as the appointee possesses
other qualifications required by law. The appellate court was therefore correct in setting aside
the assailed CSC resolutions and considering the respondent’s total work experience as
sufficient to meet the supervisory standards under the second clause, thereby finding
respondent qualified for appointment to the contested position.

- General vs. Roco, GR Nos. 143366 & 143524, Jan. 29, 2001

Facts:

The respondent Ramon S. Roco was appointed (by then Pres. Ramos) in 1996 as Regional
Director of the Land Transportation Office (LTO) in Region, a position equivalent to CES rank
level V. He was re-appointed (in the term of Pres. Estrada) to the same position in 1999. He
was NOT a CES eligible on both times he was appointed. He was only conferred CES (Career
Executive Service) eligibility, or on August 13, 1999.

On September 7, 1999, petitioner Luis Mario General, who is NOT a CES eligible, was
appointed by President Estrada as Regional Director of the LTO in Region V, the same position
being occupied by the respondent. Pursuant to the said appointment, DOTC Undersecretary
Herminio B. Coloma, Jr. issued a Memorandum directing petitioner Luis General to assume the
said office and asked respondent Roco to report to the Office of the Secretary for further
instructions. Accordingly, petitioner General assumed office.

Then, Roco filed before the Court of Appeals a petition for quo warranto with prayer for the
issuance of a writ of preliminary injunction and/or temporary restraining order. CA issued a
TRO enabling respondent Roco to re-assume the disputed office. After the lapse of 60 days,
there being no writ of preliminary injunction issued, petitioner General again assumed the said
 32

office. On March 10, 2000, the Court of Appeals rendered a decision affirming the appointment
of respondent Roco to the Office of Regional Director of the LTO, Region V, nullified the
appointment of petitioner General and ordered him to vacate the subject post in favor of
respondent Roco. Upon motion of respondent Roco, the Court of Appeals issued a writ of
execution pending appeal.

Hence, these two separate petitions for review under Rule 45 were filed before the SC. The
Court issued a Resolution on the first case of General vs Roco directing the parties to maintain
the status quo ante. Both petitions were later consolidated.

Respondents’ arguments: A career executive service (CES) eligibility is all that an employee
needs to acquire security of tenure in the service; and that appointment to a CES rank is not
necessary for the acquisition of such security of tenure.

Petitioners’ in G.R. No. 143524 and G.R. No. 143366 arguments: CES eligibility alone will not
suffice. Petitioners contended that unless and until an employee in the career executive service
is appointed to the appropriate CES rank, he acquires no security of tenure.

Issue:

Whether or not CES eligibility alone will suffice for one to acquire security of tenure?

Ruling:

NO. The court provided that under the rules and regulations provided by the Career Executive
Service Board, two requisites must concur in order that an employee in the Career Executive
Service may attain security of tenure, to wit:

a) CES eligibility; and

b) Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career
executive service (except first and second-level employees in the civil service), pertains
only to rank and not to the office or to the position to which they may be appointed. Thus,
a career executive service officer may be transferred or reassigned from one position to another
without losing his rank which follows him wherever he is transferred or reassigned. In
fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on the basis of the
position or office he occupies.

In the case at bar, the respondent Ramon S. Roco, though a CES eligible, does not possess the
appropriate CES rank, which is – CES rank level V, for the position of Regional Director of the
 33

LTO (Region V). Absent of that qualifications that would complete his membership in the CES,
respondent cannot successfully interpose violation of security of tenure. Accordingly, he could
be validly reassigned to other positions in the career executive service.

The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of appropriate eligibles. The appointment extended
to him cannot be regarded as permanent even if it may be so designated.

Achacoso v. Macaraig, the Court held that:

It is settled that a permanent appointment can be issued only to a person who meets all the
requirement for the position to which he is being appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at will by the appointing
authority and at a moments notice, conformably to established jurisprudence.

*Can the president appoint any person who is not a CES eligible? Yes. The President may,
however, in exceptional cases, appoint any person who is not a Career Executive Service
eligible; provided that such appointee shall subsequently take the required Career Executive
Service examination and that he shall not be promoted to a higher class until he qualifies
in such examination.

*What is the mobility and flexibility principle? This is based on the Integrated Reorganization
Plan, CES personnel may be reassigned or transferred from one position to another and from
one department, bureau or office to another; provided that such reassignment or transfer must
me:

1. Made in the interest of public service and involves no reduction in rank or salary;

2. that no member shall be reassigned or transferred oftener than every two years;

3. that if the officer concerned believes that his reassignment or transfer is not justified, he
may appeal his case to the President.

- Montecillo vs. CSC, GR No. 131954, June 28, 2001

Topic: Powers of the Civil Service Commission

 34

Doctrine: The assailed memorandum circular can not be deemed as an unauthorized

amendment of the law. On the contrary, it was issued pursuant to a power expressly vested by
law upon respondent. As such, it must be respected by this Court as a valid issuance of a
constitutionally independent body.

Facts:

The petitioners seeks Resolution No. 972512 for having been issued by respondent Civil
Service Commission allegedly with grave abuse of discretion, petitioners assail the validity of
CSC Memorandum Circular No. 22, Series of 1991, on the ground that its issuance amounted to
an abuse of respondent’s power to promulgate rules and regulations pursuant to the Civil
Service Law.

Employee positions in the Metropolitan Cebu Water District (MCWD) were re-classified during
the latter part of 1995 to conform with position descriptions and corresponding salary grades in
the civil service. Accordingly, while the personnel structure of the MCWD was being modified,
three of its employees -- petitioners Asela B. Montecillo, Marilou Joan V. Ortega and Charrishe
Dosdos -- applied for promotional appointment to the position of "Secretary to the Assistant
General Manager" or "Private Secretary C", as the position later came to be known. At the time
of their application, petitioners had been occupying the position of "Department Secretary" and
were employed in the MCWD for six to seven years.

When their appointments were forwarded to the Civil Service Commission Field Office (CSC
FO) by MCWD General Manager Dulce Abanilla, the CSC FO refused to approve petitioners’
appointments as "permanent" on the ground that the position applied for was a "primarily
confidential" and "co-terminous" position. This ruling was upheld by the CSC Regional Office2
and affirmed on appeal by respondent.

Resolution No. 972512, is based on CSC Memorandum Circular No. 22, Series of 1991.

Upon denial of their motion for reconsideration by the CSC, petitioners brought this special
civil action under Rule 65 of the Revised Rules of Court.

Argument of the petitioners: Memorandum Circular No. 22, s. of 1991, unduly amended and
expanded the scope of the non-career service under Section 6, Article IV of the Civil Service
Decree,5 P.D. 807, which appears almost identical to Section 9, Chapter 2, Book V of the 1987
Administrative Code. The respondent abused its power to promulgate rules and regulations by
issuing the challenged circular, because the grant of rule-making power to respondent did not
authorize it to amend the law by adding to the statutory enumeration. Petitioners conclude that
since said memorandum circular was issued in excess of the powers granted to respondent, it is
null and void and consequently, the assailed CSC resolution has no leg to stand on.
 35

Issue:

Whether or not CSC committed a grave abuse of discretion in Resolution No, 972512.

Ruling:

No. The court ruled that there is no clear and persuasive showing that respondent grossly
abused its discretion or exceeded its powers when it issued the assailed circular. On the
contrary, respondent was expressly empowered to declare positions in the Civil Service as
may properly be classified as primarily confidential under Section 12, Chapter 3, Book V of
the Administrative Code of 1987.10 To our mind, this signifies that the enumeration found in
Section 6, Article IV of the Civil Service Decree, which defines the non-career service, is not an
exclusive list. Respondents could supplement the enumeration, as it did when it issued
Memorandum Circular No. 22, s. of 1991, by specifying positions in the civil service, which are
considered primarily confidential and therefore their occupants are co-terminous with the
official they serve.

In our view, the assailed memorandum circular can not be deemed as an unauthorized
amendment of the law. On the contrary, it was issued pursuant to a power expressly vested
by law upon respondent. As such, it must be respected by this Court as a valid issuance of
a constitutionally independent body. Moreover, absent any showing by petitioners that
respondent acted on their case in an arbitrary or whimsical manner, it could not be successfully
contended that the respondent acted with grave abuse of discretion. The cited circular amply
provides valid reason and justification for the Commission’s resolution, which affirmed on
appeal the ruling of the CSC Regional Office that earlier upheld the action taken by its field
office. This three-tiered process in the CSC ensured that petitioners’ plea had undergone
a thorough consideration and was found devoid of substantial merit. Given these
circumstances, we see no sufficient ground to disturb the respondent's resolution.

- CSC & PAGCOR vs. Salas, GR No. 123708, June 19, 1997

Facts:
Respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS)
member and assigned to the casino at the Manila Pavilion Hotel. Respondent was allegedly
engaged in proxy betting as detailed in the affidavits purportedly executed by two customers
who claimed that they were used as gunners by respondent. Thus, his employment was
terminated by the Board of Directors of PAGCOR allegedly for loss of confidence, citing PD
1869 (which created PAGCOR) that all employees are confidential employees and may be
terminated by the same cause.
However, respondent Salas argues that it is the actual nature of an employee's functions, and not
his designation or title, which determines whether or not a position is primarily confidential,
and that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be
 36

confidential appointees, such executive pronouncement may be considered as a mere initial

determination of the classification of positions which is not conclusive in case of conflict.

Issue:
Whether or not respondent Salas is a confidential employee and may be dismissed on the
ground of loss of confidence.

Ruling:
No, he is not a confidential employee, and thus, can only be dismissed for cause and after due
course, not on the ground of loss of confidence.
Under Civil Service Act of 1959, there were two recognized instances when a position may
be considered primarily confidential: Firstly, when the President, upon recommendation
of the Commissioner of Civil Service, has declared the position to be primarily
confidential; and, secondly, when by the nature of the functions of the office there exists
"close intimacy" between the appointee and appointing power which insures freedom of
intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state.

Taking into consideration the nature of his functions, his organizational ranking and his
compensation level, it is obviously beyond debate that private respondent cannot be considered
a confidential employee. The fact that, sometimes, private respondent may handle
ordinarily "confidential matters" or papers which are somewhat confidential in nature
does not suffice to characterize his position as primarily confidential.

- Vistan vs. Nicolas, 201 SCRA 524

Facts:

These consolidated cases (AM No. MTJ-87-79, Respondent was charged with gross ignorance
of the law and grave abuse of authority and immorality; and, AC No. 3040, for disbarment)
were brought by the same complainant, Leonila A. Vistan, against Respondent Judge Ruben T.
Nicolas, Municipal Trial Court (MTC), Pandi, Bulacan.

The charge for violation of election laws was brought up in AC No. 3040. Complainant narrated
that as early as 10 February 1987, prior to 24 March 1987, or the date set by the Commission on
Election (COMELEC) to be the start of the campaign period, and while still an MTJ Judge of
Guiguinto, Bulacan, Respondent started circulating handbills/letters addressed to electoral
constituents in the second district of Bulacan indicating his intention to run for a congressional
seat.
 37

Respondent admitted having circulated such a letter. He denies, however, that he was
electioneering, stating that he was merely voicing out his intention to run for Congressman as a
matter of consultation.

Issue:

Whether respondent judge engaged in electioneering while still an MTC judge

Held:

Yes. Respondent had acted improperly when he sent out letters/handbills, manifesting his
intention to run as a congressional candidate, addressed to electoral constituents of the second
district of Bulacan as early as 10 February 1987, while still the incumbent MTC Judge of
Guiguinto, Bulacan, and prior to the commencement of the campaign period on 24 March
1987.chanrobles law library

Section 45 of Pres. Decree No. 807 (Civil Service Law) clearly states:jgc:chanrobles.com.ph

"Section 45. No officer or employee in the Civil Service including members of the Armed
Forces, shall engage directly or indirectly in any partisan political activity or take part in
any election except to vote nor shall be use his official authority or influence to coerce the
political activity of any other person or body. Nothing herein provided shall be understood to
prevent any officer or employee from expressing his views on current political problems or
issues, or from mentioning the names of candidates for public office whom he supports: . . ."In
addition, Rule 5.10, Canon 5, of the Code of Judicial Conduct provides:jgc:chanrobles.com.ph

"Rule 5.10. A judge is entitled to entertain personal views on political questions. But to avoid
suspicion of political partisanship, a judge shall not make political speeches, contribute to
party funds, publicly endorse candidates for political office or participate in other partisan
political activities."y

For having held himself out as a congressional candidate while still a member of the
Bench, Respondent took advantage of his position to boost his candidacy, demeaned the
stature of his office, and must be pronounced guilty of gross misconduct.

- Cabagnot vs. CSC, 223 SCRA 59

FACTS:

A new organizational structure and staffing pattern of the provincial government of Aklan was
approved by the Joint Commission on Local Government Personnel Administration. The
reorganization provided three hundred sixty four (364) regular plantilla positions from the
previous three hundred thirty nine (339) with the Office of the Governor allocated one hundred
 38

forty four (144) from the previous sixty(60) positions. Petitioner herein, issued a Memorandum
inviting all provincial officials and employees to apply for any of the authorized positions in the
new staffing pattern for the evaluation and assessment of the Provincial Placement Committee.

21 supposedly aggrieved employees jointly appealed to petitioner pursuant to Section 18 of the

Rules on Government Reorganization issued by the Civil Service Commission and Sections 2,
3, 4, 5 and 12 of Republic Act 6656(1988) entitled An Act to Protect the Security of Tenure of
Civil Officers and Employees in the Implementation of Government Reorganization.

They prayed that they be appointed to the positions they applied for to which they are eligible,
having the required educational background, training and experience. They likewise sent
petitioner individual letters reiterating their qualifications and praying for reconsideration of
their new appointments to positions lower in rank than their positions prior to the
reorganization. Petitioner denied their plea. Upon appeal, CSC found that irregularities attended
the election of the two members representing the first and second level personnel to the
Placement Committee based on the affidavit executed by one Nida E. Melgarejo and the letter
appeal of some thirty- seven (37) employees of the provincial lgovernment of Aklan.

Furthermore, it found petitioner to have violated Sec. 7of the Rules on Reorgnization and
Memorandum Circular No. 5, s. of 1988 providing preference for appointment of employees
holding permanent positions considering that private respondents who were all holding
permanent appointments to regular items prior to the reorganization were proposed to positions
much lower than their former items despite the fact that their old items were carried over in the
new staffing pattern. The Commission found no reason for displacing the services of private
respondents primarily because there are eighty-four (84) additional positions for the Office of
the Governor alone.

The CSC found that sixteen (16) of the seventeen (17) private respondents were demoted
because of the wide disparity between the former positions held by them and the positions to
which they were proposed by petitioner.

ISSUE/S:

Whether CSC committed grave abuse of discretion in reinstating the dismissed employees.

HELD:

Yes. With respect to the sixteen private respondents, respondent Commission committed no
grave abuse of discretion in ordering that they be "immediately appointed and restored to their
positions or positions of comparable or equivalent rank without loss of seniority rights with
back salaries reckoned from dates they should properly have been appointed thereto effective
the date of the reorganization of said province."It is within the power of public respondent to
 39

order the reinstatement of government employees who have been unlawfully dismissed. The
CSC, as the central personnel agency, has the obligation to implement and safeguard the
constitutional provisions on security of tenure and due process. In the present case, the issuance
by the CSC of the questioned resolutions, for the reasons clearly explained therein, is
indubitably in the performance of its constitutional task of protecting and strengthening the civil
service.

However, with respect to private respondent Oczon, we hold that respondent Commission did
commit grave abuse of discretion in ordering his reinstatement with back salary, considering
that he was not terminated as a result of the reorganization.

- Abalos vs. CSC, 196 SCRA 81

Facts:
Shortly after assuming office as Provincial Governor of Lanao del Norte, the petitioner, by
resolution of the provincial board, filed with the Tanodbayan a complaint for malversation
against his predecessor, Arsenio A. Quibranza, for having used for personal purposes several
bulldozers belonging to the province. Cited as witnesses were the operators of the bulldozers,
private respondents Villabona and Yap, who allegedly executed on September 6, 1986,
affidavits in support of the complaint.

The private respondents admitted their guilt in affidavits which he said he submitted later to the
Civil Service Commission as an annex to his formal appeal. Such sworn confessions rendered
the usual investigation unnecessary as, according to him, "it will just be a waste of government
time and money to investigate a charge that has already been admitted by the respondents. By
pleading guilty, respondents waived whatever rights to a formal investigation they had."c

Issue:
Whether investigation is still required

Ruling:
In view of their rejection of the confessions supposedly made by them, the evidence of their
guilt cannot by any standard be regarded as strong. Indeed, that guilt had yet to be established
by preponderant evidence, especially against the dismissal by the Ombudsman of the perjury
charge against them. Consequently, we cannot find that Item (a) of Section 40 of the Civil
Service Decree could be validly applied against the private respondents to justify their summary
dismissal.

In view of their rejection of the confessions supposedly made by them, the evidence of their
guilt cannot by any standard be regarded as strong. Indeed, that guilt had yet to be established
by preponderant evidence, especially against the dismissal by the Ombudsman of the perjury
 40

charge against them. Consequently, we cannot find that Item (a) of Section 40 could be validly
applied against the private respondents to justify their summary dismissal.

- Jacinto vs. CA, GR No. 124540, November 17, 1997

Facts:
"Petitioners are public school teachers from various schools in Metropolitan Manila. Between
the period September 17 to 21, 1990, they incurred unauthorized absences in connection with
the mass actions then staged; and on September 17, 1990, DECS Secretary Isidro Cariño
immediately issued a return-to-work order.tual 1aw library

The directive was ignored by petitioners. Consequently, on separate dates, Secretary Cariño
issued formal charges and preventive suspension orders against them. They were
administratively charged with gross misconduct; gross neglect of duty, etc. for joining
unauthorized mass actions; ignoring report-to-work directives; unjustified abandonment of
teaching posts; non-observance of Civil Service law, rules and regulations; non-compliance
with reasonable office rules and regulations; and incurring unauthorized absences without leave,
etc. An investigation committee was then created by Sec. Cariño to look into the matter.
However, during the investigation, petitioners did not file their answers or controvert the
charges against them. As a consequence, Sec. Cariño, in his decisions found them guilty as
charged and imposed the penalty of dismissal, except with respect to petitioners Merlinda
Jacinto and Adelina Agustin who were meted only six (6) months suspension.

The decisions were appealed to the Merit Systems Protection Board (MSPB) which dismissed
the appeals for lack of merit and then to the Civil Service Commission which set aside the
Orders of the MSPB in the contested resolutions. Acting on the motions for reconsideration, the
CSC rendered the assailed resolutions denying the motions for lack of merit."

Issue:
The Respondent Court of Appeals committed grave abuse of discretion when it upheld the
resolutions of the Civil Service Commission that penalized all the petitioners whose only
‘offense’ (except Jacinto) was to exercise their constitutional right peaceably to assemble and
petition the government for redress of grievances.
Ruling:
As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in
accordance with law." This is a clear manifestation that the state may, by law, regulate the use
of this right, or even deny certain sectors such right. Executive Order 180 29 which provides
guidelines for the exercise of the right of government workers to organize, for instance,
implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative
sanctions, all government officers and employees from staging strikes, demonstrations, mass
leaves, walkouts and other forms of mass action which will result in temporary stoppage or
 41

disruption of public service," 30 by stating that the Civil Service law and rules governing
concerted activities and strikes in the government service shall be observed.

Alliance of Government Workers v. Minister of Labor and Employment:

Since the terms and conditions of government employment are fixed by law, government
workers cannot use the same weapons employed by the workers in the private sector to
secure concessions from their employers. The principle behind labor unionism in private
industry is that industrial peace cannot be secured through compulsion by law. Relations
between private employers and their employees rest on an essentially voluntary basis. Subject to
the minimum requirements of wage laws and other labor and welfare legislation, the terms and
conditions of employment in the unionized private sector are settled through the process of
collective bargaining. In government employment, however, it is the legislature and, where
properly given delegated power, the administrative heads of government which fix the
terms and conditions of employment. And this is effected through statutes or
administrative circulars, rules, and regulations, not through collective bargaining
agreements.

Social Security System Employees Association (SSSEA) v. Court of Appeals:

Government employees may, therefore, through their unions or associations, either petition the
Congress for the betterment of the terms and conditions of employment which are within the
ambit of legislation or negotiate with the appropriate government agencies for the improvement
of those which are not fixed by law. If there be any unresolved grievances, the dispute may be
referred to the Public Sector Labor-Management Council for appropriate action. But employees
in the civil service may not resort to strikes, walkouts and other temporary work
stoppages, like workers in the private sector, to pressure the Government to accede to
their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern
the Exercise of the Right of Government Employees to Self-Organization, which took effect
after the instant dispute arose, ‘[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality thereof and
government-owned and controlled corporations with original charters are governed by
law and employees therein shall not strike for the purpose of securing changes [thereto].

Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of
their right to assemble peacefully and to petition the government for a redress of grievances.
Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best
interest of the service for having absented themselves without proper authority, from their
schools during regular school days, in order to participate in the mass protest, their
absence ineluctably resulting in the non-holding of classes and in the deprivation of
students of education, for which they were responsible. Had petitioners availed themselves
of their free time — recess, after classes, weekends or holidays — to dramatize their grievances
and to dialogue with the proper authorities within the bounds of law, no one — not the DECS,
 42

the CSC or even this Court — could have held them liable for the valid exercise of their
constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting
from their activity necessarily disrupted public services, the very evil sought to be
forestalled by the prohibition against strikes by government workers. Their act by its
nature was enjoined by the Civil Service law, rules and regulations, for which they must,
therefore, be made answerable.

- Central Bank vs. CSC, 171 SCRA 744

Facts:
petitioners Dr. Angela 0. Jordan ** and the Central Bank of the Philippines under Section 7,
Paragraph A, Article IX of the 1987 Constitution. They are questioning Resolution Nos. 87-156
1 and 87-375 2 of the Civil Service Commission dated May 26, 1987 and October 16, 1987,
respectively. The questioned resolutions directed the immediate revocation of the appointment
of Dr. Angela P. Jordan to the position of Assistant Bank Physician of the Central Bank of the
Philippines and the issuance of an appointment in favor of herein private respondent, Dr.
Basilio E. Borja to the said position.

Issue:
It is the contention of the petitioner Central Bank that the Civil Service Commission acted
without or in excess of jurisdiction in revoking the appointment of Dr. Jordan and in directing
the issuance of the appointment in favor of Dr. Borja when all the while the qualifications of
Dr. Jordan were certified by the Promotions Board and a representative of the Civil Service
Commission who was present in the deliberations of the same board. Petitioner Bank added that
the power of the Commission is limited to determining whether or not the appointee has the
appropriate eligibility and qualification and that once such qualification was certified, the
Commission is duty bound to attest to the appointment.

Ruling:

The Solicitor General prays for the dismissal of the instant petition on the ground that the
decision of the Merit Systems Board dated October 28, 1986 had already become final and
executory for failure of Dr. Jordan to appeal or seek reconsideration within fifteen (15)
days from receipt of the said decision citing Section 2, Board Resolution No. Ill in relation
to Section 39, Presidential Decree No. 807. The Solicitor General also stressed that the
petition is devoid of merit.
It is well-settled principle that the appointing authority is given ample discretion in the
selection and appointment of qualified persons to vacant positions. This is a management
prerogative which is generally unhampered by judicial intervention. 9 Within the
parameters of this principle, the right to select and appoint employees is the prerogative of the
employer which may be exercised without being held liable therefor provided that the exercise
thereof is in good faith for the advancement of the employer's interest and not for the purpose of
defeating or circumventing the rights of the employees under special laws or under valid
agreements and provided further that such prerogatives are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner, or out of malice or spite.10
 43

There is no question that the Central Bank of the Philippines is vested with the power of
appointment under Section 14 of Republic Act No. 265, as amended, otherwise known as the
Central Bank Act. At issue in this petition is the extent of the power of the Civil Service
Commission to approve or disapprove a particular appointment. May the Commission
revoke an appointment and direct the issuance of the appointment to somebody else whom
it believes is more qualified for the position?
Under the Civil Service Act of 1959, 11 the Commissioner of Civil Service has the final
authority on appointments. 12 But the situation has changed under the new law, Presidential
Decree No. 807, 13 otherwise known as the Civil Service Decree, wherein the Commission is
not authorized to curtail the discretion of the appointing official on the nature or kind of
appointment to be extended. 14 The authority of the Commission is limited to approving
or reviewing the appointment in the light of the requirements of the law governing the
Civil Service.
In the case at bar, the qualifications of Dr. Jordan were never disputed. The fact that she was
qualified was attested to by the Promotions Board. A representative of the Commission was
present in the deliberation of the said board.
Private respondent anchors his protest on the ground that he is more qualified than the
appointee. It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to attest to
the appointment in accordance with the Civil Service Laws. 15 The Commission has no
authority to revoke an appointment on the ground that another person is more qualified
for a particular position. It also has no authority to direct the appointment of a substitute
of its choice. To do so would be an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within the discretionary power of
whomsoever it is vested, subject to the only condition that the appointee should possess the
qualifications required by law.
Private respondent alleges, however, that the power of appointment is not absolute and that the
Commission is empowered to approve or disapprove the same, citing Section 9(h) of Article V
of the Civil Service Decree and Section 4 of Civil Service Commission Resolution No. 83-343.
This is correct As noted earlier, the appointment is subject to verification by the
Commission as to whether or not the appointing authority complied with the
requirements of the law, otherwise, it may revoke the appointment. However, to conclude
that the Commissioner may also direct the appointment of individuals other than the choice of
the appointing power is certainly not contemplated by the law. Section 9(h) of Article V of the
Civil Service Decree provides that the Civil Service Commission is authorized to perform the
following functions with respect to appointments in the Civil Service, to wit:
Approve all appointments, whether original or promotional, to positions in the civil service,
except those of presidential appointees, members of the Armed Forces of the Philippines, police
forces, firemen, and jailguards, and disapprove those where the appointees do not possess
appropriate eligibility or required qualifications. . . . (Emphasis supplied.)
From the foregoing, it is clear that the Commission has the authority to check whether or
not the appointee possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment must be approved; if not it should be
 44

disapproved. No other criterion may be employed by the Commission when it acts on an

appointment.
Prior to her promotion to the contested position, she held the position of bank physician
from September 6, 1976 to July 9, 1981. On July 9, 1981, Dr. Jordan was promoted to the
position of coordinating assistant. On the other hand, the private respondent was
appointed to the position of bank physician only on October 9, 1984. On one occasion
private respondent was found guilty of dishonesty for failing to reveal in his information
sheet that he has a sister-in-law employed in the Central Bank. 17
The stand of the Commission that the appointee did not hold a special medical position prior to
her appointment, unlike in the case of the private respondent who held the position of bank
physician is devoid of merit. The position of coordinating assistant which was held by Dr.
Jordan prior to her promotion in the Medical and Dental Unit where she belongs is filled up
only by qualified and competent physicians.
On the basis of the foregoing, the appointing authority found that Dr. Jordan satisfied all the
requirements set by the Central Bank on promotion the wisdom of which cannot be questioned.
It must be stressed that the law does not impose a rigid or mechanical standard on the
appointing power. The appointing person enjoys sufficient discretion to select and appoint
employees on the basis of their fitness to perform the duties and to assume the responsibilities
of the position to be filled. 18 As earlier ruled in Reyes vs. Abeleda, 19 at least sufficient
discretion, if not plenary, should be granted to those entrusted with the responsibility of
administering the offices concerned, primarily the department heads. They are in the
position to determine who can best fulfill the functions of the office thus vacated. Unless
the law speaks in mandatory and peremptory tone, there should be full recognition of the
wide scope of such discretionary authority. The power of appointment is essentially a
political question involving considerations of wisdom which only the appointing authority
can decide.19a
Dr. Jordan holds the position of coordinating assistant (Salary Grade 20) which is next in rank
to the contested position of Assistant Bank Physician (Salary Grade 22). Private respondent
holds the position of Physician (Salary Grade 16) which without doubt is not next in rank to the
contested position. As the position of private respondent is not next-in- rank, the Commission
should have dismissed his appeal as he had no legal personality to contest the appointment of
Dr. Jordan. Only employees who are next-in-rank may protest an appointment. 21 In
implementing Section 19 of P.D. No. 807 the Civil Service Commission promulgated
Resolution No. 83-34322 which provides as follows:
Within fifteen (15) days from notice of issuance of an appointment, a next in-rank employee who
is competent and qualified and who feels aggrieved by the promotion of another may file a
protest to the ministry or agency head. . . . (Emphasis supplied)
The Court takes note that at the time Dr. Jordan was considered and recommended for
promotion to the contested position on October 3, 1984, private respondent was not yet an
employee of the Central Bank. It was only on October 5, 1984 that he was appointed as
physician and he assumed the position only on October 9, 1984. It was, therefore, impossible to
consider him for appointment to the contested position before that time.
 45

Anent the argument of the respondents that the Central Bank lacks the legal personality to
contest the decision of the Commission and hence the decision became final and executory for
failure of Dr. Jordan to file a motion for reconsideration, the Court finds the argument
untenable. In an earlier case, 23 this Court held that it is the appointing authority who stands
adversely affected where the Civil Service Commission disapproves the appointment made.
This rule is acknowledged by the Solicitor General. However, the Solicitor General contradicted
himself by insisting that the decision of the MSB dated October 28, 1981 became final and
executory for failure of Dr. Jordan to file a motion for reconsideration when all the while the
Central Bank filed a timely motion for reconsideration thereof.
Petitioner Central Bank, as the appointing authority is the one which can defend its appointment
since it knows the reasons for the same. Any final determination of the issue can only be
enforced through it. Moreover, it is the act of the appointing authority that is being questioned.
Indeed, when the Commission directed the Central Bank to submit its Comment on the appeal
filed by private respondent the Commission must have been aware that the participation of the
Central Bank is indispensable. Although the Commission also directed Dr. Jordan to file a
separate Comment, it denied the latter's request for an extension of time within which to file the
same on the ground that a protest case is not strictly an adversary proceedings where the
protestant and the protestee play active roles. The Commission pointed out that a protest case is
an action of the protestant against a determination made by the appointing authority, a
determination which only the appointing authority could defend inasmuch as it is the latter who
knows the reasons for such determination.24 Thus, for the Commission to say thereafter that the
decision became final and executory for failure of Dr. Jordan to appeal is obviously erroneous.
As a matter of fact that Commission is now in estoppel. After making the parties believe that
the Central Bank may participate in the controversy, the Commission cannot later make a total
tum about by alleging that the participation of the Central Bank is inconsequential as it lacks the
requisite legal personality.
IN VIEW OF THE FOREGOING, the questioned Resolutions of the Civil Service Commission
dated May 26, 1987 and October 16, 1987, respectively, are hereby declared null and void and
the Commission is directed to attest the appointment of Dr. Angela Jordan as Assistant Bank
Physician. No costs.
This Decision is immediately executory.

PRESCRIPTION
GR: Prescription does not brought against the State
XPN: When the government is no longer interested in the subject matter or when such corporations or
artificial body created by the state for special purposes
*** Corporations are created merely as agents for the realization of government programs. When the
title is deemed divested, and they government is no longer interested, they descend to the level of
ordinary persons.

III. Administrative Bodies/Agencies; Powers

 46

a) Organization/Creation/Reorganization/Abolition
- Eugenio vs. CSC, GR No. 115863, 03/31/1995
- Sec. Of DOTC vs. Mabalot, GR No. 138200, 02/27/2002
- Biraogo vs. Phil. Truth Com. Of 2010, GR No. 192935, 12/07/2010
- Pitchay vs. Exec. Sec., GR No.196425, 07/24/2012
- Domingo vs. Zamora, GR No.142283, 02/06/2003
-Blaquera vs CSC, GR No. 103121, 09/10/1993

b) Agency of the Government

Department refers to an executive department created by law. For

purposes of Book IV, this shall include any instrumentality, as herein
defined, having or assigned the rank of a department, regardless of its
name or designation.

Bureau refers to any principal subdivision or unit of any department. For

purposes of Book IV, this shall include any principal subdivision or unit
of any instrumentality given or assigned the rank of a bureau, regardless
of actual name or designation, as in the case of department-wide regional
offices.

Office refers, within the framework of governmental organization, to any

major functional unit of a department or bureau including regional
offices. It may also refer to any position held or occupied by individual
persons, whose functions are defined by law or regulation.

Government Instrumentality refers to any agency of the National

Government, not integrated within the department framework vested
within special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying
operational autonomy, usually through a charter. This term includes
regulatory agencies, chartered institutions and government-owned or
controlled corporations.

Regulatory Agency refers to any agency expressly vested with

jurisdiction to regulate, administer or adjudicate matters affecting
substantial rights and interests of private persons, the principal powers of
which are exercised by a collective body, such as a commission, board or
council.

Chartered Institution refers to any agency organized or operating under a

special charter, and vested by law with functions relating to specific
constitutional policies or objectives. This term includes the state
universities and colleges and the monetary authority of the State.
 47

Government-Owned or Controlled Corporation refers to any agency

organized as a stock or non-stock corporation, vested with functions
relating to public needs whether governmental or proprietary in nature,
and owned by the Government directly or through its instrumentalities
either wholly, or, where applicable as in the case of stock corporations,
to the extent of at least fifty-one (51) percent of its capital stock:
Provided, That government-owned or controlled corporations may be
further categorized by the Department of the Budget, the Civil Service
Commission, and the Commission on Audit for purposes of the exercise
and discharge of their respective powers, functions and responsibilities
with respect to such corporations.

Government-owned or -controlled corporations may perform

governmental or proprietary functions or both, depending on the
purpose for which they have been created.

Determination: whether it is created by its own charter for the

exercise of public functions or by incorporation under the General
Corporation Law.

*** those with special charter are government corporations - subject

to its provisions; under the jurisdiction of CSC

● Proprietary - purpose is to obtain special corporate benefits or

earn pecuniary profit; private advantage and benefit
● Governmental - in the interest of health, safety and for the
advancement of public good and welfare, affecting the public
in general;

c) Powers of Administrative Agencies: Quasi-legislative or rule-making

power (main function) ; Quasi-judicial or adjudicatory power (incidental
function) ; Determinative powers

● Power/Power of Subordinate Legislation

● Administrative Function

● Rule-Making Power/ Quasi-legislative Power -

Quasi-legislative power.
1. Nature. This is the exercise of delegated (lawmaking body to administrative body - intended
to carry out the provisions of the law and implement legislative policy) 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. In Holy Spirit Homeowners
Association v. Secretary Defensor, G.R. No. 163980, August 3, 2006, the Supreme Court said
 48

that quasi-legislative power is the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the doctrine of non-
delegability and separation of powers.

*** Statutory grant of rule-making power to administrative agencies is a valid exception to the
rule on non-delegation of legislative power.

There are two accepted tests to determine whether or not there is a valid delegation of
legislative power, viz, the completeness test and the sufficient standard test. Under the first
test, the law must be complete in all its terms 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. Under the
sufficient standard test, there must be adequate guidelines or stations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from running riot. Both tests
are intended to prevent a total transference of legislative authority to the delegate, who is not
allowed to step into the shoes of the legislature and exercise a power essentially legislative.

a) Rules and regulations issued by administrative authorities pursuant to the powers delegated
to them have the force and effect of law; they are binding on all persons subject to them, and the
courts will take judicial notice of them.

b) Both Letters of Instruction and Executive Orders are presidential issuances; one may repeal
or otherwise alter, modify or amend the other, depending on which comes later [Philippine
Association of Service Exporters v. Torres, 225 SCRA 417].

Main function:
c) It may be stressed that the function of promulgating rules and regulations may be legitimately
exercised only for the purpose of carrying out the provisions of the law into effect. Thus,
administrative regulations cannot extend the law or amend a legislative enactment, for settled is
the rule that administrative regulations must be in harmony with the provisions of the law [Land
Bank v. Court of Appeals, 249 SCRA 149]. Indeed, administrative issuances must not override,
but must remain consistent with the law they seek to apply and implement. They are intended to
carry out, not to supplant nor to modify, the law [Commissioner of Internal Revenue v. Court of
Appeals, 240 SCRA 368].

d) It is axiomatic that an administrative agency like the Philippine Ports Authority has no
discretion whether or not to implement a law. Its duty is to enforce the law. Thus, if there is a
conflict between PPA circulars and a law like EO 1088, the latter prevails [Eastern Shipping
Lines v. Court of Appeals G. R. No. 116356, June 29, 1998].

e) An administrative order is an ordinance issued by the President which relates to specific

aspects in the administrative operation of Government. It cannot be argued that Administrative
 49

Order No. 308 (prescribing a National Computerized Identification Reference System) merely
implements the Administrative Code of 1987. Such a national computerized identification
reference system requires a delicate adjustment of various contending State policies, the
primacy of national security, the extent of privacy against dossier-gathering by the Government,
and the choice of policies. It deals with a subject which should be covered by a law, not just an
administrative order [Ople v. Torres, 293 SCR A 141].

Quasi-Judicial Power

It is the power of administrative authorities to make determinations of facts in the performance

of their official duties and to apply the law as they construe it to the facts so found. The exercise
of this power is only incidental to the main function of administrative authorities, which is the
enforcement of the law.

Determinative Power

1. Enabling: to permit or allow something which the law undertakes to regulate, e.g., grant or
denial of licenses to engage in a particular business.

2. Directing: illustrated by the power of assessment of the BIR or the Bureau of Customs.

3. Dispensing: to exempt from a general prohibition, or relieve an individual or corporation

from an affirmative duty, e.g., authority of zoning boards to vary provisions of zoning
ordinances, or the authority of the Acceptance Board of the Philippine Army to relieve certain
persons from military training.

4. Examining: also called the investigatory power; consists in requiring production of books,
papers, etc., the attendance of witnesses and compelling their testimony.
a) Power to compel attendance of witnesses not inherent in administrative body; but an
administrative officer authorized to take testimony or evidence is deemed authorized to
administer oath, summon witnesses, require production of documents, etc..
b) Power to punish contempt must be expressly granted to the administrative body; and
when so granted, may be exercised only when administrative body is actually
performing quasi-judicial functions. See Guevara v. Commission on Elections, 104 Phil
268; Masangcay v. Commission on Elections, 6 SCRA 21; Carino v. Commission on
Human Rights, 204 SCRA 483. 5

EQUITABLE powers

Those that pertain to the power to determine the law upon a particular state of facts. It
refers to the right to, and must, consider and make proper application of the rules of
 50

equity.

Ex. Power to appoint a receiver, power to issue injunctions

5. Summary: power to apply compulsion or force against persons or

property to effectuate a legal purpose without a judicial warrant to authorize
such action, e.g., in the fields of health inspections, abatement of
nuisances, etc.

* Pharma & Healthcare Asso. Of the Phil. Vs. Duque III, GR. No.
173034, 10/09/2007
* MMDA vs. Garin, GR No. 130230, 04/15/2005
* Lokin vs. COMELEC, GR Nos. 179431-32, 06/22/2010
● Determinative Powers (Note: Senator Neptali Gonzales calls them
incidental powers) / Classification
o Republic v. Express Telecommunication Co., 373 SCRA 316
● Distinction between Quasi-legislative Power and Legislative Power

● Test of Delegation

● Quasi-judicial/adjudicatory Power
o Carino vs. Commission on Human Rights
o Export Processing Zone Authority vs. CHR
o Simon, Jr. v. Commission on Human Rights, 229 SCRA 117
o Evangelista vs. JArencio, GR No. L-29274, 11/27/1975
o Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000

● Administrative Rules and Regulations; Kinds - determines as to what

capacity the administrative agency is acting, doing and force and
effect
- has a force and effect of law

a) Supplementary or detailed legislation. They are rules and regulations “to fix the details” in
the execution and enforcement of a policy set out in the law, e.g., Rules and Regulations
Implementing the Labor Code.

b) Interpretative legislation. They are rules and regulations construing or interpreting the
provisions of a statute to be enforced and they are binding on all concerned until they are
 51

changed, e.g., BIR Circulars, CB circulars, etc.. They have the effect of law and are entitled to
great respect; they have in their favor the presumption of legality [Gonzalez v. Land Bank, 183
SCRA 520]. The erroneous application of the law by public officers does not bar a subsequent
correct application of the law [Manila Jockey Club v. Court of Appeals, G.R. No. 103533,
December 15, 1998].

c) Contingent legislation. They are rules and regulations made by an administrative authority on
the existence of certain facts or things upon which the enforcement of the law depends. See:
Cruz v. Youngberg, 56 Phil 234.

● Requisites of a Valid Administrative Regulation

a) Issued under authority of law. See: Olsen v. Aldanese, 43 Phil 64..

b) Within the scope and purview of the law.
i) The power of administrative officials to promulgate rules in the implementation of
a statute is necessarily limited to what is provided for in the legislative enactment.
The implementing rules and regulations of a law
cannot extend the law or expand its coverage, as the power to amend or repeal a
statute is vested in the legislature. However, administrative bodies are allowed,
under their power of subordinate legislation, to implement the broad policies laid
down in the statute by “filling in” the details. All that is required is that the
regulation be germane to the objectives and purposes of the law; that the regulation
does not contradict but conforms with the standards prescribed by law [Public
Schools District Supervisors Association v. Hon. Edilberto de Jesus, G.R. No.
157299, June 19, 2006].

ii) In Land Bank v. Court of Appeals, 249 SCRA 149, the Court nullified DAR
Adm. Circular No. 9, which allowed the opening of a trust account in behalf
of the landowner as compensation for the property taken, because Sec. 16 (e), R.A.
6657, is specific that the deposit must be made in “cash” or in “Land Bank bonds”.
The implementing regulation cannot outweigh the clear provision of the law. See
also Cebu Oxygen & Acetylene Co. v. Drilon, 176 SCRA 24.

iii) In Romulo, Mabanta Law Office v. Home Development Mutual Fund, G.R. No.
131082, June 19, 2000, the Supreme Court ruled that the HDMF cannot, in the
exercise of its rule-making power, issue a regulation not consistent with the law it
seeks to enforce and administer. Administrative issuances must not override,
supplant or modify the law.

iv) Where the regulatory system has been set up by law, it is beyond the power of an
administrative agency to dismantle it. Any change in policy must be made by the
legislative department [Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority, G.R. No. 110526, February 10, 1998].
 52

v) R.A. 8171 empowers the Secretary of Justice, in conjunction with the Secretary of
Health and the Director of the Bureau of Corrections, to issue the necessary
implementing rules and regulations. The rules, however, authorized the Director of
the Bureau of Corrections to prepare a manual setting forth the details of the
proceedings prior to, during and after the administration of the lethal injection on the
convict. Because the rule did not provide for the approval of the said manual by the
Secretary of Justice, considering that the Bureau of Corrections is merely a
constituent unit of the Department of Justice and it is the Secretary of Justice who is
granted rule-making authority under the law, the rule authorizing the Director of the
Bureau of Corrections to promulgate said manual is invalid being an abdication of
responsibility by the Secretary of Justice [Echegaray v. Secretary of Justice, G.R.
No. 132601, October 12, 1998].

vi) In the same case, Sec. 17 of the rules and regulations implementing R.A. 8171
which provided that the death penalty shall not be inflicted upon a woman within
three years next following the date of the sentence or while she is pregnant was
declared invalid, the same being an impermissible contravention of Sec. 83 of the
Revised Penal Code which provides that the death penalty shall not be inflicted upon
a woman while she is pregnant or within one year after delivery.

c) Reasonable. See Lupangco v. Court of Appeals, 160 SCRA

d) Publication in the Official Gazette or in a newspaper of general circulation, as provided in

Executive Order No. 200. However, interpretative rules and regulations, or those merely
internal in nature, or the so-called letters of instruction Issued by administrative superiors
concerning the rules and guidelines to be followed by their subordinates in the performance of
their duties, may be simply posted in conspicuous places in the agency itself. Such posting
already complies with the publication requirement. Publication must be in full, or it is no
publication at all [Tanada v. Tuvera, 146 SCRA 446],

i) Thus, in De Jesus v. Commission on Audit, G.R. No. 109023, August 12, 1998, At
was held that administrative rules and regulations the purpose of which is to enforce
or implement an existing law pursuant to a valid delegation, must be published in the
Official Gazette or in a newspaper of general circulation, except interpretative
regulations and those merely internal in nature, i.e., regulating only the personnel of
the administrative agency, not the general public. The same rule was upheld in
Caltex (Philippines) Inc. v. Court of Appeals, 292 SCRA 273. Likewise, in
Philippine International Trading Corporation v. Commission on Audit, G.R. No.
132593, June 25, 1999, it was held that the DBM Corporate Compensation Circular
(DBM-CCC) No. 10, which completely disallows payment of allowances and other
additional compensation to government officials and employees starting November
1, 1989, is not a mere interpretative or internal regulation, and must go through the
requisite publication in the Official Gazette or in a newspaper of general circulation.
The reissuance of the CCC and its submission for publication per letter to the
National Printing Office on March 9, 1999, will not cure the defect precisely
because publication is a condition precedent to its effectivity.
 53

ii) In Philippine Association of Service Exporters v. Torres, 212 SCRA 298, DOLE
Department Order No. 16-91 and POEA Memorandum Circulars Nos. 30 and 37,
while recognized as valid exercise of police power as delegated to the executive
department, were declared legally invalid, defective and unenforceable for lack of
proper publication and filing in the Office of the National Administrative Register (as
required by Art. 5, Labor Code of the Philippines). This ruling was reiterated in
Philsa International Placement and
Services Corporation v. Secretary of Labor and Employment, G. R. No. 103144,
April 4, 2001, where POEA Memorandum Circular No. 2, Series of 1983, which
provided the schedule of placement and documentation fees for
private employment agencies, was declared ineffective because it was not published
and filed with the National Administrative Register.

iii) In Transaction Overseas Corporation v. Secretary of Labor, G.R. No. 109583,

September 5, 1997, on the question of the validity of the cancellation of the
petitioner’s license to recruit workers for overseas work because the Revised Rules of
Penalties had not been filed with the University of the Philippines Law Center as
required by the Administrative Code of 1987, the Supreme Court said that the
Revised Rules of Penalties did not prescribe additional rules governing overseas
employment but merely detailed the administrative sanctions for prohibited acts.
Besides, the cancellation of the license was made under authority of Art. 35 of the
Labor Code, not pursuant to the Revised Rules of Penalties.

o Prescribing of Rates - subject to same procedural

requirements

o Requirement of Publication; summary

Publication, required:
a) Administrative regulations that must be publish those which are of general circulation
b) Those which carries penal process or administrative regulations which are penal in
nature

Publication, not required:

a) those were issued in the exercise of interpretative powers; interpretative regulations
wherein - simply internal rules and regulation governing the personnel of the
administrative agency
b) Administrative regulations addressed to specific group and not to general public

o Interpretative Regulations
 54

o Special Requisites of a Valid Administrative Regulation with a

PENAL sanction
a) The law must itself declare as punishable the violation of the administrative rule or
regulation. See People v. Maceren, 79 SCRA 450.

b) The law should define or fix the penalty for the violation of the administrative rule or
regulation.

c) Administrative regulation must be published

Additional requirement, may vary depending on kind of rules and regulations:

*** Necessity for notice and hearing.

a) There is no constitutional requirement for a hearing in the promulgation of a general
regulation by an administrative body. Where the rule is procedural, or where the rules are, in
effect, merely legal opinions, there is no notice required. Neither is notice required in the
preparation of substantive rules where the class to be affected is large and the questions to be
resolved involve the use of discretion committed to the rule-making body. In Corona v. United
Harbor Pilots Association of the Philippines, G.R. No. 111953, December 12, 1997, the
Supreme Court reiterated the rule that a prior hearing is not necessary for the issuance of an
administrative rule or regulation.

XPN:

- When the legislature itself request and mandates that a regulation shall be based on
certain facts as determined of an appropriate investigation
i) However, see Commissioner of Internal Revenue v. Court of Appeals, 261
SCRA 236, where the Supreme Court distinguished between administrative rules in
the nature of subordinate legislation and those which are merely interpretative rules.
An administrative rule in the nature of subordinate legislation is designed to
implement a law by providing its details, and before it is adopted there must be a
hearing under the Administrative Code of 1987. When an administrative rule
substantially adds to or increases the burden of those concerned, an administrative
agency must accord those directly affected a chance to be heard before its issuance.
In this case, prior to the issuance of Revenue Memorandum Circular No. 37-93, the
cigarettes manufactured by the respondent were in the category of locally-
manufactured cigarettes not bearing a foreign brand. Had it not been for Revenue
Memo Circular No. 37-93, the enactment of R.A. 7654 would not have resulted in a
new tax rate upon the cigarettes manufactured by the respondent. The BIR did not
simply interpret the law; it exercised quasi-legislative authority, and the requirements
 55

of notice, hearing and publication should not have been ignored.

- If the regulation is in effect as a settlement of a controversy between specific

parties - administrative adjudication

Rules and Regulations Prescribing Rates:

b) In Philippine Consumers Foundation v. Secretary, DECS, 153 SCRA 622, it was held that
the function of prescribing rates by an administrative agency may be either a legislative or an
adjudicative function . If it were a legislative function, the grant of prior notice and hearing to
the affected parties is not a requirement of due process. As regards rates prescribed by an
administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are
essential to the validity of such rates. Where the rules and the rates are meant to apply to all
enterprises of a given kind throughout the country, they may partake of a legislative character.
But if they apply exclusively to a particular party, based upon a finding of fact, then its function
is quasi-judicial in character.

c) In Lina v. Carino, 221 SCRA 515, the Supreme Court upheld the authority of the Secretary of
Education to issue DECS Order No. 30, prescribing guidelines concerning increases in tuition
and other school fees.

d) In Maceda v. Energy Regulatory Board, 192 SCRA 363, the Supreme Court declared that
while under Executive Order No. 172, a hearing is indispensable, it does not preclude the Board
from ordering, ex parte, a provisional increase subject to its final disposition of whether or not
to make it permanent, to reduce or increase it further, or to deny the application. Sec. 3 (e) is
akin to a temporary restraining order or a writ of preliminary attachment issued by the court,
which are given ex parte, and which are subject to the resolution of the main case.

o PHILSA International Placement & Services Corp. vs.

Secretary of Labor, 356 SCRA 174
o NPC vs. Pinatubo Commercial, GR No. 176006, 03/26/2010
o Commission on Elections vs. Judge Ma. Luisa Quijano-
Padilla, G.R. No. 151992, Sept. 18, 2002
o CIR vs. MJ Lhuillier Pawnshop, Inc., GR No. 150947,
07/15/03

● Requisites for Proper Exercise of Quasi-Judicial Power

o Administrative Due Process: Requirements

a) There must be right to notice - actual/constructive
b) There must be reasonable opportunity to appear and to introduce witnesses
 56

c) Tribunal must be impartial with competent jurisdiction

d) Decision must be supported by substantial evidence

i) Right to a hearing;
ii) Tribunal must consider evidence presented;
iii) Decision must have something to support itself;
iv) Evidence must be substantial;
v) Decision must be based on the evidence adduced at the hearing, or at least contained in the
record and disclosed to the parties;
vi) 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.
vii) Decision must be rendered in such a manner that the parties to the controversy can know
the various issues involved and the reasons for the decision rendered.

* Ang Tibay Case

* Casa Filipina Realty Corp. vs. Office of the President,
GR No. 99346, 02/07/1995
* Vivo vs. PAGCOR, GR No. 187854, 11/12/2013
* South Cotobato Communications Corp., vs. Sec. of
Labor
& Employment, GR No.217575, 06/15/2016
* Legaspi vs. City of Cebu, GR No. 159110, 12/10/2013

o Exceptions to the Notice and Hearing Requirement

Administrative determinations where notice and hearing are not necessary for due process:

- Urgency of immediate action

- Tentativeness of administrative action
- Right was previously offered but not allowed
- Cancellation of a person sought for criminal prosecution
- Replacement of temporary or acting appointee
- Theaters showing obscene movies

a) Grant of provisional authority for increased rates, or to engage in a particular line of business
[RCPI v. National Telecommunications Commission, 184 SCRA 517; PLDT v. National
Telecommunications Commission, 190 SCRA 717].

b) Summary proceedings of distraint and levy upon the property of a delinquent taxpayer.

c) Cancellation of a passport where no abuse of discretion is committed by Secretary of Foreign

Affairs [Suntay v. People, 101 Phil 770].

d) Summary abatement of a nuisance perse which affects the immediate safety of persons or
property [Art. 704, Civil Code of the Philippines].
 57

e) Preventive suspension of a public officer or employee pending investigation of administrative

charges filed against him [Sec. 51, Book V, Title I, Subtitle A, Administrative Code of 1987],

o Questions Reviewable on Judicial Review

- NHA vs. Almeida, GR No. 162784, 06/22/2007
- Smart Communications vs. NTC, GR No. 151908,
08/12/03

o Doctrine of Finality/Administrative Res Judicata : Exceptions

Doctrine of Finality/Administrative Res Judicata - Courts are usually reluctant to interfere with
actions of an administrative agency prior to its conviction or finality.

Absent of final order or ruling of administrative agency - such power is not fully exercised by
the administrative agency - causes irreparable harm.

XPN:
- Involves interlocutory order affecting the merits of the controversy
- there is a need to preserve the status compelling for their action by the said
administrative agency
- when it is essential to the protection of rights asserted from the injury threatened
- when the officers assume to act in violation of the constitution and other laws
- when the order involved is not reviewable in any other way
- when order is issued and made in excess of power

Evidence, needed: substantial evidence (such kind of relevant evidence which a reasonable
mind might accept as adequate to support a conclusion) is enough.

- Brillantes vs. CAstro, GR No.L-9223, 07/30/1956

- Montemayor vs, Bundalian, GR No. 149335,
07/01/2003
- Nasipit Lumber Co. vs. NLRC, GR No.54424,
08/31/1989

o Doctrine of Primary Jurisdiction - Where there is competence

or jurisdiction vested upon an administrative body to act upon
a matter, no resort to the courts may be made.
- The doctrine of primary jurisdiction prevents the court
from arrogating unto itself the authority to resolve a
controversy which falls under the jurisdiction of a tribunal
possessed with special competence
- cases demand special competence of administrative
agencies
 58

Question of Law - independent action

Question of Fact - Courts are precluded from reviewing questions of fact; will not disturb the
decision or orders of the administrative body. xpn: grave abuse of discretion amounting to lack
or excess jurisdiction, fraud, collusion or error of law.

o before such administrative body shall have acted upon the

matter

- Industrial Enterprise, Inc. vs. CA, GR No. 88550,

4/18/1990
- Sherwill Dev’t Corp. vs. Sitio Sto. Nino Residents
Asso.,
GR No. 158455, 06/28/2005

o Doctrine of Prior Resort

▪ Villaflor vs. CA, 280 SCRA 297

o Doctrine of Exhaustion of Administrative Remedies:

Exceptions
GR:
Doctrine of Exhaustion - 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.

XPN:
Instances when the rule on exhaustion may be disregarded, as follows:
[1] When there is violation of due process;
[2] when the issue involved is purely a legal question;
[3] When the administrative action is patently illegal amounting to lack or excess of
jurisdiction;
[4] When there is estoppel on the part of the administrative agency concerned;
[5] When there is irreparable injury;
[6] When the respondent is a Department Secretary whose acts, as an alter ego of the
President, bears the implied and presumed approval of the latter;
[7] When to require exhaustion of administrative remedies would be unreasonable;
[8] When it would amount to a nullification of the claim;
[9] When the subject matter is a private land in land case proceedings;
[10] When the rule does not provide a plain, speedy or adequate remedy; and
[11] When there are circumstances indicating the urgency of judicial intervention.

▪ Paat vs. CA, 266 SCRA 167 [1997]

▪ Valencia vs. CA, GR No. 122363, 04/29/2003

 59

▪ Rep., et al. vs. Lacap, et al., G.R. No. 158253,

03/02/2007
▪ Chavez vs. PEA, GR No.133250, 07/09/2002

▪ Berdin, et al. vs. Hon. Eufracio Mascarinas, et al.,

G.R. No. 135928, July 6, 2007
▪ Antolin vs. Domondon, GR No.165036, 07/05/2010

▪ Teotico vs. Agda, Sr., GR No. 87437, 05/29/1991

▪ Carale v. Abarintos, 269 SCRA 132, March 3, 1997

▪ Calub vs. CA, GR No. 115634, 04/27/2000

o Doctrine of Qualified Political Agency

▪ Constantino and the Freedom From Debt Coalition vs.
Cuisia, et al., 472 SCRA 505
▪ Shipside Inc. v. CA, 352 SCRA 334

▪ Villena vs. Secretary of Interior, 67 Phil. 451

NEPOTISM:

Nepotism is defined as an appointment issued in favor of a relative within the third civil degree
of consanguinity or affinity of any of the following: (1) appointing authority; (2) recommending
authority; (3) chief of the bureau or office; and (4) person exercising immediate supervision
over the appointee.

It is immaterial who the appointing or recommending authority is

XPN:
The following are exempted from the operation or the rules on nepotism: (1) person employed
in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of
the Philippines: Provided, however, That in each particular instance full report of such
appointment shall be made to the Commissioner of Civil Service.

shall not be applicable to the case of a member of any family who, after his or her appointment
to any position in an office or bureau, contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein of both husband and wife may be
allowed.

DOCTRINE OF FORGIVENESS OF CONDONATION

 60

GR: A public official cannot be removed for administrative misconduct committed during a
prior term, since his re-election to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor.

XPN:
Criminal case

ABANDONMENT OF OFFICE
voluntary relinquishment of office by the holder
with the intention of terminating his possession and control thereof
in order to constitute abandonment of office; it must be total and under such circumstances is
clearly to indicate absolute relinquishment

Elements
intention to abandon
overt and external act by which intention is carried to effect

Kinds:

Non user - neglect to use a right or privilege or to exercise an office

Acquiescence - for wrongful removal or discharge

Not abandonment
Non performance of duties of an office - temporary disability; involuntary failure to perform

Abandonment. The voluntary relinquishment of an office by the holder, with the intention of
terminating his possession and control thereof.

1. Abandonment of office is a species of resignation; while resignation in general is a formal

relinquishment, abandonment is a voluntary relinquishment through non-user. Non-user refers
to a neglect to use a privilege or a right or to exercise an easement or an office [Municipality of
San Andres, Catanduanes v. Court of Appeals, G.R. No. 118883, January 16, 1998].

2. A person holding a public office may abandon such office by nonuser or by acquiescence.
However, non-performance of the duties of an office does not constitute abandonment where
such non-performance results from temporary disability or from involuntary failure to perform.
Abandonment may also result from acquiescence by the officer in his wrongful removal or
discharge. Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the requirements of a statute
which is afterwards declared unconstitutional, such a surrender will not be deemed
abandonment [Canonizado v. Aguirre, G.R. No. 133132, February 15, 2001].
 61

a) Mere delay in qualifying for the office is not abandonment. But under Sec. 11, BP 881,
failure to assume elective office within six months from proclamation, without just or valid
cause, shall have the effect of vacating the office

HOLD OVER DOCTRINE

In the absence of an express or implied constitutional or statutory provision to the contrary, an
officer is entitled to hold his office until his successor is appointed or elected and has qualified.

In the absence of an express constitutional or statutory provision to the contrary, public officers
have the right, as well as the duty, to continue in office (on a fixed term) under the principle of
hold over until their successors are duly or appointed and qualified, unless there is a manifest
implied intention in Constitution or the laws to prohibit such hold over - specifically to prevent
public inconvenience from suffering because of the vacancy and to avoid a hiatus in the
performance of the government functions.

The office does not become vacant upon expiration of the term if there is no successor elected
and qualified to assume it, but the present incumbent will carry over until his successor is
elected and qualified even though it may be beyond the term fixed by law

RESIGNATION
The act of giving up or the act of a public officer by which he declines his office and renounces
the further right to use it. It is an expression of the incumbent in some form, express or implied,
of the intention to surrender, renounce and relinquish the office and the acceptance thereof by
competent and lawful authority

1. Voluntariness as an element of resignation. Resignation must be voluntary on the part of the

public officer. When procured by fraud or by duress, the resignation may be repudiated. A
“courtesy resignation” lacks the element of voluntariness and is, therefore, not a valid
resignation. See Ortiz v. Comelec, 162 SCRA 212.

a) In Joseph Ejercito Estrada v. Gloria Macapagal Arroyo, G.R. No. 146738, March 2,2001, the
Supreme Court said that the resignation of President Estrada could not be doubted as confirmed
by his leaving Malacanang. In the press release containing his final statement, [i] he
acknowledged the oathtaking of the respondent as President; [ii] he emphasized he was leaving
the palace for the sake of peace and in order to begin the healing process (he did not say that he
was leaving due to any kind of disability and he was going to reassume the Presidency as soon
as the disability disappears); [iii] he expressed his gratitude to the people for the opportunity to
serve them as President (without doubt referring to the past opportunity; [iv] he assured that he
will not shirk from any future challenge that may come in the same service of the country; and
[v] he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity

b) In Collantes v. Court of Appeals, G.R. No. 169604, March 6, 2007, the Supreme Court said
that a courtesy resignation is just as effectual as any other resignation. There can be no implied
promise of another position just because the resignation was made out of courtesy. Any express
promise of another position, on the other hand, would be void, because there can be no
 62

derogation of the discretion of the appointing power and because its object is outside the
commerce of man. Even assuming that such promise was true, petitioner, as a ranking member
of the bureaucracy, ought to have known that such promise offers no assurance in law that the
same would be complied with. The time-honored rule is that public office is a public trust and
cannot be made subject of personal promises or negotiations by private persons.

2. Need for acceptance. Resignation must be accepted by competent authority, either expressly
or impliedly (as in the appointment of a successor).

a) Mere tender of resignation, without acceptance by competent authority does not create a
vacancy in public office; resignation is not complete until accepted by proper authority [Joson
v. Nario, 187 SCRA 453]. See also Sangguniang Bayan of San Andres, Catanduanes v. Court of
Appeals, G.R. No. 118883, January 16, 1998.

b) In the Philippines, acceptance of resignation is necessary, because Art. 238 of the Revised
Penal Code penalizes any public officer who, before the acceptance of his resignation, abandons
his office to the detriment of the public service.

c) If the public officer is mandated by law to hold over, the resignation, even if accepted, will
not be effective until after the appointment or election of his successor.

3. The Accepting Authority. Acceptance of the resignation shall be made by competent

authority, as provided by law.

a) Under Se.c. 82, R.A. 7160, the following are the officers authorized to accept resignations of
local elective officials: President, in case of governors, vice-governors, and mayors and vice-
mayors of highly urbanized cities and independent component cities; Governor, in the case of
municipal mayors and vice-mayors, city mayors and vice-mayors of component cities;
sanggunian concerned, in case of sanggunian members; city or municipal mayor, in the case of
barangay officials. [Note: The resignation shall be deemed accepted if not acted upon by the
authority concerned within 15 working days from receipt thereof. Irrevocable resignations by
sanggunian members shall be deemed accepted upon presentation before an open session of the
sanggunian concerned and duly entered in its records, except where the sanggunian members
are subject to recall elections or to cases where existing laws prescribe the manner of acting
upon such resignations.]

b) If the law is silent on who shall accept the resignation, the following rules shall apply:
i) If the public officer resigning is an appointive officer, then the tender shall be made with, and
accepted by, the appointing authority;
ii) If an elective officer, then tender shall be made with, and accepted by, the officer/s
authorized by law to call an election in order to fill the vacancy.

c) The President and Vice President tender their resignations with Congress; members of
Congress, with their respective Houses.

4. Effective date of resignation: The date specified in the tender; and if no such date is
 63

specified, then resignation shall be effective when the public officer receives notice of the
acceptance of his resignation, not the date of the letter or notice of acceptance [Gamboa v.
Court of Appeals (1981)].

ABOLITION OF OFFICE - legislative function; congress may abolish offices it created

1. Power of Legislature to abolish an office. Except when restrained by the Constitution,

Congress has the right to abolish an office, even during the term for which an existing
incumbent may have been elected.

a) Constitutional offices cannot be abolished by Congress.

b) No law shall be passed reorganizing the Judiciary when it undermines the security of tenure
of its members [Sec. 2, Art. VIII, Constitution].
c) Valid abolition of office does not constitute removal of the incumbent.
d) It is within the legal competence of the city council to create, consolidate and reorganize city
offices and positions wholly supported by local funds [Mama, Jr. v. Court of Appeals, 196
SCRA 489]. In Javier v. Court of Appeals, G.R. No. L-49065 (1994), the Supreme Court
upheld the authority of the Provincial Board of Antique in abolishing the Office of the
Provincial Engineer; under R.A. 5185 (Local Autonomy Law), provincial governments are
empowered to create, among other positions, the office of the provincial engineer, and while the
law did not expressly vest the power to abolish, it can be deemed embraced by implication from
the power to create it.

2. Abolition of office; requisites: The abolition must be made in good faith, with the clear intent
to do away with the office, not for personal or political reasons, and cannot be implemented in a
manner contrary to law. See Mendoza v. Quisumbing, 186 SCRA 108; De la Liana v. Alba, 112
SCRA 294; Cruz v. Primicias, 23 SCRA 998.

a) In Ginson v. Municipality of Murcia, 158 SCRA 1, the abolition of the position of Municipal
Dentist on grounds of fiscal restraint and economy was held invalid, because after the abolition,
new offices were created and salary increases granted to municipal officers and employees. In
Rama v. Court of Appeals, 148 SCRA 496, the abolition of the various items of employees in
the Provincial Engineer’s Office of the Cebu was held to be politically-motivated, and, thus,
invalid.

3. Reorganization of Government Offices. - alteration of existing structure of government

offices or units therein including the lines of control authority and responsibility between them.
(through removal or abolition)

Includes reduction of personnel; consolidation of office; abolition by reason of economy or

redundancy of functions

***must be done in good faith

***for the purpose of economy and to make democracy more efficient
*** the purpose is not to defeat security of tenure - effect: reinstatement; reappointment
 64

a) Constitutional recognition of authority to reorganize: See: Sec. 16, Art. XVIII, Philippine
Constitution. There is no dispute that pursuant to the Provisional (Freedom) Constitution and
the various executive orders issued by the President when she was the sole law-making
authority, the different departments of government were authorized to carry on reorganization
programs [Dario v. Mison, 176 SCRA 84]. But the nature and extent of the power to reorganize
were circumscribed by the source of the power itself. It was never intended that department and
agency heads would be vested with untrammelled and automatic authority to dismiss the
millions of government workers on the stroke of a pen and with the same sweeping power
determine under their sole discretion who would be appointed or reappointed to the vacant
positions. The promotion of simplicity, economy and efficiency is the usual standard which
enables a delegation of powers in reorganization statutes to pass the test of validity. Because the
heads of departments and agencies concerned have chosen to rely on their own concepts of
unlimited discretion and progressive ideas on reorganization instead of showing that they have
faithfully complied with the clear letter and spirit of the two Constitutions and the statutes
governing reorganization, the reorganizations (in these consolidated petitions) are hereby set
aside [Mendoza v. Quisumbing, supra.].

b) There is no violation of due process even if no hearing was conducted in the matter of
reorganization of the DBP, as long as the employee was given a chance to present evidence
[Domingo v. Development Bank of the Philippines, 207 SCRA 766]. The Court of Appeals and
the Intermediate Appellate Court existing prior to EO 33 were phased out as part of the legal
system abolished by the revolution. The Court of Appeals established under EO 33 is an
entirely new court; hence reference to preference in rank contained
B. ELECTION LAW

Election - the means by which the people choose their officials for a definite and fixed period
and to whom they entrust for the time being the exercise of the powers of government

Kinds:

a) Regular: one provided by law for the election of officers either nationwide or in certain
subdivisions thereof, after the expiration of the full term of the former officers.

b) Special: one held to fill a vacancy in office before the expiration of the full term for which
the incumbent was elected.

SECTION 1. (1) There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a college degree, and must not have
been candidates for any elective position in the immediately preceding elections. However, a
majority thereof, including the Chairman, shall be Members of the Philippine Bar who have
been engaged in the practice of law for at least ten years.

(2) The Chairman and the Commissioners shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment. Appointment to any
 65

vacancy shall be only for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity.

SECTION 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials
and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and
accredit citizens’ arms of the Commission on Elections. Religious denominations and sects
shall not be registered. Those which seek to achieve their goals through violence or unlawful
means, or refuse to uphold and adhere to this Constitution, or which are supported by any
foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.
 66

(9) Submit to the President and the Congress a comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall.

SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and decided
in division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.

SECTION 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful,
and credible elections.

SECTION 5. No pardon, amnesty, parole, or suspension of sentence for violation of election

laws, rules, and regulations shall be granted by the President without the favorable
recommendation of the Commission.

SECTION 6. A free and open party system shall be allowed to evolve according to the free
choice of the people, subject to the provisions of this Article.

SECTION 7. No votes cast in favor of a political party, organization, or coalition shall be valid,
except for those registered under the party-list system as provided in this Constitution.

SECTION 8. Political parties, or organizations or coalitions registered under the party-list

system, shall not be represented in the voters’ registration boards, boards of election inspectors,
boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll
watchers in accordance with law.

SECTION 9. Unless otherwise fixed by the Commission in special cases, the election period
shall commence ninety days before the day of the election and shall end thirty days after.

SECTION 10. Bona fide candidates for any public office shall be free from any form of
harassment and discrimination.

SECTION 11. Funds certified by the Commission as necessary to defray the expenses for
holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be
provided in the regular or special appropriations and, once approved, shall be released
automatically upon certification by the Chairman of the Commission.

a) The Commission on Elections

 67

● Composition

SECTION 1. (1) There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a college degree, and must not have
been candidates for any elective position in the immediately preceding elections. However, a
majority thereof, including the Chairman, shall be Members of the Philippine Bar who have
been engaged in the practice of law for at least ten years. * (due to quasi-judicial powers being
performed by the COMELEC + quasi-administrative functions)

(2) The Chairman and the Commissioners shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity.

*** Staggered basis. Reason: To the make Commission a continuing body

*** By prescribing that the term of each Commissioner shall be seven years but that of the
Commissioners first appointed, three shall hold office for seven years, three for five years, and
the last three for three years, the result achieved is that at any one time only three
Commissioners retire together. Continuity in the body is thus achieved. Moreover, it makes it
unlikely that all the Commissioners at any one time are appointees of the same President. -
starting time: February 2.

*** The Constitution imposes no condition on the effectivity of an ad interim appointment, and
thus an ad interim appointment takes effect immediately.

Disabilities, Limitations, Prohibitions and Disqualifications imposed by law – to ensure the

independence of the COMELEC considering a constitutionally created body, therefore, cannot
be abolish by congress. (COMELEC is expressly described as independent, conferred with
certain powers and functions which cannot be reduced by statute, Chairman and member cannot
be removed except by impeachment)

● They shall not during their tenure hold any other office or employment. They shall not
accept incompatible offices or forbidden office.
● They shall not engage in the practice of profession.

● They shall not engage in active management and control of any business which in any
way may be affected by the functions of his office.
● They shall not be financially interested directly or indirectly in any contract with or in
any franchise privilege granted by the government or any of its subdivisions, agency
gocc’s or its subsidiaries
 68

Other notes:

They cannot be removed except by impeachment

They may not be reappointed/appointed in an acting capacity

Salaries may not be decrease during his tenure or continuance of office

Commission enjoys fiscal autonomy and may promulagate its own procedural rules
provided they do not diminish, increase or modify substantive right - subject for the
approval of the Supreme Court

SECTION 7. Each Commission shall decide by a majority vote of all its Members any
case or matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or resolution
upon the filing of the last pleading, brief, or memorandum required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof. (Sec. 7, Art. IX - A, 1987 Constitution)

● Powers/Functions

(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials
and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and
accredit citizens’ arms of the Commission on Elections. Religious denominations and sects
 69

shall not be registered. Those which seek to achieve their goals through violence or unlawful
means, or refuse to uphold and adhere to this Constitution, or which are supported by any
foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its
directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall.

● En Banc and Division Cases

SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be decided by the Commission en
banc.

The last sentence of Section 3 prescribes two important rules. First, motions for reconsideration
are decided en banc; but, a decision en banc is required only when the subject for
reconsideration is a "decision," that is, a resolution of substantive issues. Thus reconsideration
of a dismissal based on lack of interest may be heard in division. Moreover, the requirement
that motions for reconsideration must be heard en banc coupled with the requirement of Rule 65
that reconsideration must precede certiorari in effect limits certiorari to decisions of the
COMELEC en banc.

Division case – the case being heard shall be decided by the unanimous concurrence of all 3
commissioners
2 divisions; 3 members each

The following cases shall be decided in the Division before they may be referred En Bank for
Motion for Reconsideration:
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1. Petition to cancel Certificate of Candidacy

2. Cases appealed from the RTC/First level courts
3. A petition for certiorari involving incidental issues of election notice
xpn: Pre-proclamation controversies involving correction of manifest errors in the
tabulations of results in the state votes by Board of canvassers may be filed directly with
the COMELEC En Banc

En Banc case:

1. Rule 27, Section 5 of the 1993 COMELEC Rules of Procedure expressly states that:

Pre-proclamation Controversies Which May Be Filed Directly with the Commission –

(a) The following pre-proclamation controversies may be filed directly with the Commission:

xxxx

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the
results during the canvassing as where (1) a copy of the election returns or certificate of canvass
was tabulated more than once, (2) two or more copies of the election returns of one precinct, or
two or more copies of certificate of canvass were tabulated separately, (3) there has been a
mistake in the copying of the figures into the statement of votes or into the certificate of
canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and
such errors could not have been discovered during the canvassing despite the exercise of due
diligence and proclamation of the winning candidates had already been made.

xxxx

If the petition is for correction, it must be filed not later than five (5) days following the date of
proclamation and must implead all candidates who may be adversely affected thereby.

While the petition was indeed filed beyond the 5-day reglementary period, the COMELEC
however has the discretion to suspend its rules of procedure or any portion thereof. Sections 3
and 4 of Rule 1 of the COMELEC Rules of Procedure state, to wit:

Sec. 3. Construction. – These rules shall be liberally construed in order to promote the effective
and efficient implementation of the objectives of ensuring the holding of free, orderly, honest,
peaceful and credible elections and to achieve just, expeditious and inexpensive determination
and disposition of every action and proceeding brought before the Commission.

Sec. 4. Suspension of the Rules. – In the interest of justice and in order to obtain speedy
disposition of all matters pending before the Commission, these rules or any portion thereof
may be suspended by the Commission.

Certainly, such rule of suspension is in accordance with the spirit of Section 6, Article IX-A of
the Constitution which bestows upon the COMELEC the power to "promulgate its own rules
 71

concerning pleadings and practice before it or before any of its offices" to attain justice and the
noble purpose of determining the true will of the electorate.

2. Petition for Review of Final orders or resolutions of the COMELEC may be brought En
Banc by aggrieved party on certiorari by Rule 65
3. Determination of probable cause in case of election violation

Votes; Quorum:
- 3 votes; decision of the Commission
- 2 members constitute a quorum (majority) – for transaction of the official business of
the Divisions.
- There is a dissenting opinion, somebody abstain, voted against the case – may be
appealed to the Commission En Banc in which the vote of the majority shall be the
decision of the Commision

En Banc - 4/7 (Commissioners of COMELEC, not only for those who participated and took part
in the deliberation) shall constitute quorum in the concurrence of the majority of the members
of the Commission shall deemed necessary for the pronouncement of decisions or any
resolution or ruling.

*** The Commissioner who inhibited in the deliberation in voting in the Division participated
now in the deliberation of the case before the COMELEC En Banc, can he participate?
Commissioner who inhibited himself in Division deliberations during may not participate in En
Banc deliberations because voluntary inhibition is not allowed.

● "The Party-List System Act (RA 7941)

Section 2. Declaration of party. The State shall promote proportional representation in the
election of representatives to the House of Representatives through a party-list system of
registered national, regional and sectoral parties or organizations or coalitions thereof, which
will enable Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives. Towards this end, the
State shall develop and guarantee a full, free and open party system in order to attain the
broadcast possible representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in the legislature, and
shall provide the simplest scheme possible.

Section 3. Definition of Terms. (a) 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). Component parties or organizations of a coalition may
participate independently provided the coalition of which they form part does not participate in
the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.
 72

(c) A political party refers to an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and which, as the most immediate
means of securing their adoption, regularly nominates and supports certain of its leaders and
members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a
majority of the regions. It is a regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and
concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who
share similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes.

Section 4. Manifestation to Participate in the Party-List System. Any party, organization, or

coalition already registered with the Commission need not register anew. However, such party,
organization, or coalition shall file with the Commission, not later than ninety (90) days before
the election, a manifestation of its desire to participate in the party-list system.

Section 5. Registration. Any organized group of persons may register as a party, organization
or coalition for purposes of the party-list system by filing with the COMELEC not later than
ninety (90) days before the election a petition verified by its president or secretary stating its
desire to participate in the party-list system as a national, regional or sectoral party or
organization or a coalition of such parties or organizations, attaching thereto its constitution, by-
laws, platform or program of government, list of officers, coalition agreement and other
relevant information as the COMELEC may require: Provided, That the sectors shall include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general
circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days
from the date it was submitted for decision but in no case not later than sixty (60) days before
election.

Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu propio or
upon verified complaint of any interested party, refuse or cancel, after due notice and hearing,
the registration of any national, regional or sectoral party, organization or coalition on any of
the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious

purposes;
 73

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for
the constituency in which it has registered.

Section 7. Certified List of Registered Parties. The COMELEC shall, not later than sixty (60)
days before election, prepare a certified list of national, regional, or sectoral parties,
organizations or coalitions which have applied or who have manifested their desire to
participate under the party-list system and distribute copies thereof to all precincts for posting in
the polling places on election day. The names of the part y-list nominees shall not be shown on
the certified list.

Section 8. Nomination of Party-List Representatives. Each registered party, organization or

coalition shall submit to the COMELEC not later than forty-five (45) days before the election a
list of names, not less than five (5), from which party-list representatives shall be chosen in case
it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their consent in
writing may be named in the list. The list shall not include any candidate for any elective office
or a person who has lost his bid for an elective office in the immediately preceding election. No
change of names or alteration of the order of nominees shall be allowed after the same shall
have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in
writing his nomination, becomes incapacitated in which case the name of the substitute nominee
shall be placed last in the list. Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list system shall not be considered resigned.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident
of the Philippines for a period of not less than one (1)year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or organization which he seeks
to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-
five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election. Any youth sectoral representative who attains
 74

the age of thirty (30) during his term shall be allowed to continue in office until the expiration
of his term.

Section 10. Manner of Voting. Every voter shall be entitled to two (2) votes: the first is a vote
for candidate for member of the House of Representatives in his legislative district, and the
second, a vote for the party, organizations, or coalition he wants represented in the house of
Representatives: Provided, That a vote cast for a party, sectoral organization, or coalition not
entitled to be voted for shall not be counted: Provided, finally, That the first election under the
party-list system shall be held in May 1998.

The COMELEC shall undertake the necessary information campaign for purposes of educating
the electorate on the matter of the party-list system.

Section 11. Number of Party-List Representatives. The party-list representatives shall constitute
twenty per centum (20%) of the total number of the members of the House of Representatives
including those under the party-list.

For purposes of the May 1998 elections, the first five (5) major political parties on the basis of
party representation in the House of Representatives at the start of the Tenth Congress of the
Philippines shall not be entitled to participate in the party-list system.

In determining the allocation of seats for the second vote, the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest
based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each: Provided, That those
garnering more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes : Provided, finally, That each party, organization, or
coalition shall be entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall
tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them
according to the number of votes received and allocate party-list representatives proportionately
according to the percentage of votes obtained by each party, organization, or coalition as against
the total nationwide votes cast for the party-list system.

Section 13. How Party-List Representatives are Chosen. Party-list representatives shall be
proclaimed by the COMELEC based on the list of names submitted by the respective parties,
organizations, or coalitions to the COMELEC according to their ranking in said list.

Section 14. Term of Office. Party-list representatives shall be elected for a term of three (3)
years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June
next following their election. No party-list representatives shall serve for more than three (3)
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
 75

considered as an interruption in the continuity his service for the full term for which he was
elected.

Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his
political party or sectoral affiliation during his term of office shall forfeit his seat: Provided,
That if he changes his political party or sectoral affiliation within six (6) months before an
election, he shall not be eligible for nomination as party-list representative under his new party
or organization.

Section 16. Vacancy. In case of vacancy in the seats reserved for party-list representatives, the
vacancy shall be automatically filled by the next representative from the list of nominees in the
order submitted to the COMELEC by the same party, organization, or coalition, who shall serve
for the unexpired term. If the list is exhausted, the party, organization coalition concerned shall
submit additional nominees.

Section 17. Rights of Party-List Representatives. Party-List Representatives shall be entitled to

the same salaries and emoluments as regular members of the House of Representatives.

Section 18. Rules and Regulations. The COMELEC shall promulgate the necessary rules and
regulations as may be necessary to carry out the purposes of this Act.

Section 19. Appropriations. The amount necessary for the implementation of this Act shall be
provided in the regular appropriations for the Commission on Elections starting fiscal year 1996
under the General Appropriations Act.

Starting 1995, the COMELEC is hereby authorized to utilize savings and other available funds
for purposes of its information campaign on the party-list system.

o Dayao & Capco vs. COMELEC, GR No. 193643, 01/29/2013

- LPGMA does not represent / under represent marginalized
sector

There was no valid justification for the dismissal of the complaint for cancellation. However, in
light of COMELEC Resolution dated December 13, 2012, the present petitions ought to be
dismissed. (automatic review conducted by the COMELEC on the qualifications of party-list
groups.)

An opposition to a petition for registration is not a condition precedent to the filing of a

complaint for cancellation.

Section 6, R.A. No. 7941 lays down the grounds and procedure for the cancellation of party-list
accreditation, viz:

Sec. 6. Refusal and/or Cancellation of Registration.

 76

The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or
cancel, after due notice and hearing, the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious

purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for
the constituency in which it has registered.

For the COMELEC to validly exercise its statutory power to cancel the registration of a party-
list group, the law imposes only two (2) conditions: (1) due notice and hearing is afforded to the
party-list group concerned; and (2) any of the enumerated grounds for disqualification in
Section 6 exists.

Section 6 clearly does not require that an opposition to the petition for registration be previously
interposed so that a complaint for cancellation can be entertained. Since the law does not
impose such a condition, the COMELEC, notwithstanding its delegated administrative authority
to promulgate rules for the implementation of election laws, cannot read into the law that which
it does not provide. The poll body is mandated to enforce and administer election-related laws.
It has no power to contravene or amend them.

Moreover, an opposition can be reasonably expected only during the petition for registration
proceedings which involve the COMELEC’s power to register a party-list group, as
distinguished from the entirely separate power invoked by the complaint, which is the power to
cancel.

The distinctiveness of the two powers is immediately apparent from their basic definitions. To
refuse is to decline or to turn down, while to cancel is to annul or remove. Adopting such
meanings within the context of Section 6, refusal of registration happens during the inceptive
stage when an organization seeks admission into the roster of COMELEC-registered party-list
organizations through a petition for registration. Cancellation on the other hand, takes place
after the fact of registration when an inquiry is done by the COMELEC, motu propio or upon a
 77

verified complaint, on whether a registered party-list organization still holds the qualifications
imposed by law. Refusal is handed down to a petition for registration while cancellation is
decreed on the registration itself after the petition has been approved.

The said Resolution, as in any other resolution granting the registration of any other
organization desirous of party-list accreditation, did nothing more but to vest with LPGMA the
right to participate in the party- list elections, i.e. file a manifestation of its intent to participate
and have the same given due course by the COMELEC, the right to field its nominees, the right
to exercise all that is bestowed by our election laws to election candidates (hold campaigns,
question the canvass of election returns, etc.), and the right to assume office should it obtain the
required number of votes. With respect to such matters, the COMELEC resolution was already
final. LPGMA’s right to run, as it did so run, during the 2010 party-list elections is already
beyond challenge.

Further, it must be noted that refusal and cancellation share similar grounds. The registration of
a putative party-list group can only be granted if none of the disqualifications in Section 6
exists. Conversely, a complaint for cancellation will prosper if any of the same grounds in
Section 6 is present. Inevitably then, a negative finding of disqualification in a petition for
registration is the very same fact that will be questioned in a complaint for cancellation. Hence,
to say that the findings leading to the grant of registration are final and conclusive with respect
to the qualification of the party-list group will effectively put in vain any complaint for
cancellation that may be filed. It leads to the perilous conclusion that the registration of a party-
list group, once granted, is unassailable and perpetual which, in turn, will render nugatory the
equally existing power of the COMELEC to cancel the same. R.A. No. 7941 could not have
contemplated such an absurdity.

o Atong Paglaum, Inc., et al. vs, COMELEC, GR No. 203766,

04/02/2013 - COMELEC disqualified 52 party-list groups and
organizations from participating in the 13 May 2013 party-list
elections, particularly those that did not satisfy these two
criteria: (1) all national, regional, and sectoral groups or
organizations must represent the “marginalized and
underrepresented” sectors; AND (2) all nominees must belong
to the “marginalized and underrepresented” sector they
represent.

Party List System - to democratize political power by giving political parties that cannot win in
legislative district elections a chance to win seats in the House of Representatives. (20% of HR
is Party List Representatives)

Votes: 1 - Legislative District Representative; 1 - Party List Representative

When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will
be for the party list system. So, we have a limit of 30 percent of 50. That means that the
maximum that any party can get out of these 50 seats is 15. When the parties register they then
 78

submit a list of 15 names. They have to submit these names because these nominees have to
meet the minimum qualifications of a Member of the National Assembly. At the end of the day,
when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15
percent of the votes; KMU gets 5 percent; a women’s party gets 2 1/2 percent and anybody who
has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of
these parties who get at least 2 1/2 percent of the vote.

It also means that, let us say, there are three or four labor groups, they all register as a party or
as a group. If each of them gets only one percent or five of them get one percent, they are not
entitled to any representative. So, they will begin to think that if they really have a common
interest, they should band together, form a coalition and get five percent of the vote and,
therefore, have two seats in the Assembly. Those are the dynamics of a party list system.

There is no requirement in R.A. No. 7941 that a national or regional political party must
represent a "marginalized and underrepresented" sector. It is sufficient that the political party
consists of citizens who advocate the same ideology or platform, or the same governance
principles and policies, regardless of their economic status as citizens.

In determining who may participate in the coming 13 May 2013 and subsequent party-list
elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to

organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under the party-
list system and do not field candidates in legislative district elections. A political party, whether
major or not, that fields candidates in legislative district elections can participate in party-list
elections only through its sectoral wing that can separately register under the party-list system.
The sectoral wing is by itself an independent sectoral party, and is linked to a political party
through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented" or

lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are "marginalized
and underrepresented" include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas workers. The sectors that lack "well-defined
political constituencies" include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the

"marginalized and underrepresented" must belong to the "marginalized and underrepresented"
sector they represent. Similarly, a majority of the members of sectoral parties or organizations
that lack "well-defined political constituencies" must belong to the sector they represent. The
 79

nominees of sectoral parties or organizations that represent the "marginalized and

underrepresented," or that represent those who lack "well-defined political constituencies,"
either must belong to their respective sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional parties or organizations must be bona-
fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified.
o BANAT vs. COMELEC, GR No. 179271 (586 SCRA 210)
The three-seat cap provided prevents the mandatory allocation
of all available seats. The filling up of all available party list
seats thus is not mandatory and is subject to the number of
participants in the party list election. The fixed 2% vote
requirement is no long viable due to the increases in both
party list allotment and the creation of additional legislative
districts. The 2% vote requirement cannot be given effect as
the 20% of party list seats in the membership of the House of
Representatives as provided in the constitution would be
mathematically impossible to fill up.

Considering the allegations in the petitions and the comments of the parties in these cases, we
defined the following issues in our advisory for the oral arguments set on 22 April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of
the Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat
constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the party-
list elections? If not, can the major political parties be barred from participating in the party-list
elections?

Held:
WHEREFORE we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the
COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9
July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the
distribution of additional party-list seats.

Ratio: Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. However, we cannot allow the
continued existence of a provision in the law which will systematically prevent the
constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as
a limitation to the number of seats that a qualified party-list organization may occupy, remains a
valid statutory device that prevents any party from dominating the party-list elections.
 80

We rule that, in computing the allocation of additional seats, the continued operation of the
two percent threshold for the distribution of the additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent
threshold makes it mathematically impossible to achieve the maximum number of available
party list seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats frustrates the
attainment of the permissive ceiling.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats to the two-percenters. The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900,
the total number of votes cast for party-list candidates. There are two steps in the second round
of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which
is the difference between the 55 maximum seats reserved under the Party-List System and the
17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage
and of the remaining available seats corresponds to a party’s share in the remaining available
seats. Second, we assign one party-list seat to each of the parties next in rank until all available
seats are completely distributed. We distributed all of the remaining 38 seats in the second
round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats
each qualified party-list candidate is entitled.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution clearly
intended the major political parties to participate in party-list elections through their sectoral
wings. In fact, the members of the Constitutional Commission voted down, 19-22, any
permanent sectoral seats, and in the alternative the reservation of the party-list system to the
sectoral groups. In defining a "party" that participates in party-list elections as either "a political
party or a sectoral party," R.A. No. 7941 also clearly intended that major political parties will
participate in the party-list elections. Excluding the major political parties in party-list elections
is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A.
No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the
exclusion of major political parties from the party-list elections in patent violation of the
Constitution and the law.

In view of the inclusion of major political parties (according to Puno, J.)

The Court today effectively reversed the ruling in Ang Bagong Bayani v. COMELEC with
regard to the computation of seat allotments and the participation of major political parties in
the party-list system. I vote for the formula propounded by the majority as it benefits the party-
list system but I regret that my interpretation of Article VI, Section 5 of the Constitution with
respect to the participation of the major political parties in the election of party-list
representatives is not in direct congruence with theirs, hence

There is no gainsaying the fact that the party-list parties are no match to our traditional
political parties in the political arena. This is borne out in the party-list elections held in 2001
where major political parties were initially allowed to campaign and be voted for. The results
confirmed the fear expressed by some commissioners in the Constitutional Commission that
 81

major political parties would figure in the disproportionate distribution of votes: of the 162
parties which participated, the seven major political parties made it to the top 50. These seven
parties garnered an accumulated 9.54% of the total number of votes counted, yielding an
average of 1.36% each, while the remaining 155 parties (including those whose qualifications
were contested) only obtained 90.45% or an average of 0.58% each. Of these seven, three
parties or 42.8% of the total number of the major parties garnered more than 2% of the total
number of votes each, a feat that would have entitled them to seat their members as party-list
representatives. In contrast, only about 4% of the total number of the remaining parties, or only
8 out of the 155 parties garnered more than 2%.

In sum, the evils that faced our marginalized and underrepresented people at the time of the
framing of the 1987 Constitution still haunt them today. It is through the party-list system that
the Constitution sought to address this systemic dilemma. In ratifying the Constitution, our
people recognized how the interests of our poor and powerless sectoral groups can be frustrated
by the traditional political parties who have the machinery and chicanery to dominate our
political institutions. If we allow major political parties to participate in the party-list system
electoral process, we will surely suffocate the voice of the marginalized, frustrate their
sovereignty and betray the democratic spirit of the Constitution. That opinion will serve as the
graveyard of the party-list system.

IN VIEW WHEREOF, I dissent on the ruling allowing the entry of major political parties
into the party-list system.

In view of 2% being unconstitutional (according to Nachura, J.)

However, I wish to add a few words to support the proposition that the inflexible 2%
threshold vote required for entitlement by a party-list group to a seat in the House of
Representatives in Republic Act (R.A.) No. 7941 is unconstitutional. This minimum vote
requirement ─ fixed at 2% of the total number of votes cast for the party list system ─ presents
an unwarranted obstacle to the full implementation of Section 5 (2), Article VI, of the
Philippine Constitution. As such, it effectively defeats the declared constitutional policy, as well
as the legislative objective expressed in the enabling law, to allow the people’s broadest
representation in Congress,the raison d’etre for the adoption of the party-list system.

Today, a little over eight (8) years after this Court’s decision in Veterans Federation Party,
we see that in the 14th Congress, 55 seats are allocated to party-list representatives, using the
Veterans formula. But that figure (of 55) can never be realized, because the 2% threshold vote
requirement makes it mathematically impossible to have more than 50 seats. After all, the total
number of votes cast for the party-list system can never exceed 100%.

Lest I be misunderstood, I do not advocate doing away completely with a threshold vote
requirement. The need for such a minimum vote requirement was explained in careful and
elaborate detail by Chief Justice Puno in his separate concurring opinion in Veterans Federation
Party. I fully agree with him that a minimum vote requirement is needed --
1. to avoid a situation where the candidate will just use the party-list system as a fallback
position;
 82

2. to discourage nuisance candidates or parties, who are not ready and whose chances are very
low, from participating in the elections;
3. to avoid the reserve seat system by opening up the system;
4. to encourage the marginalized sectors to organize, work hard, and earn their seats within the
system;
5. to enable sectoral representatives to rise to the same majesty as that of the elected
representatives in the legislative body, rather than owing to some degree their seats in the
legislative body either to an outright constitutional gift or to an appointment by the President of
the Philippines;
6. if no threshold is imposed, this will actually proliferate political party groups and those who
have not really been given by the people sufficient basis for them to represent their constituents
and, in turn, they will be able to get to the Parliament through the backdoor under the name of
the party-list system; and
7. to ensure that only those with a more or less substantial following can be represented.
However, with the burgeoning of the population, the steady increase in the party-list seat
allotment as it keeps pace with the creation of additional legislative districts, and the
foreseeable growth of party-list groups, the fixed 2% vote requirement is no longer viable. It
does not adequately respond to the inevitable changes that come with time; and it is, in fact,
inconsistent with the Constitution, because it prevents the fundamental law from ever being
fully operative.

It is correct to say, and I completely agree with Veterans Federation Party, that Section 5 (2),
Article VI of the Constitution, is not mandatory, that it merely provides a ceiling for the number
of party-list seats in Congress. But when the enabling law, R.A. 7941, enacted by Congress for
the precise purpose of implementing the constitutional provision, contains a condition that
places the constitutional ceiling completely beyond reach, totally impossible of realization, then
we must strike down the offending condition as an affront to the fundamental law. This is not
simply an inquiry into the wisdom of the legislative measure; rather it involves the duty of this
Court to ensure that constitutional provisions remain effective at all times. No rule of statutory
construction can save a particular legislative enactment that renders a constitutional provision
inoperative and ineffectual.

b) Election Law Doctrines/Theories

c) Suffrage - the right to vote in the election of officers chosen by the

people and in the determination of questions submitted to the people.
Includes within its scope: election, plebiscite, initiative and
referendum.

1. Natural right theory: Suffrage is a natural and inherent right of every citizen who is not
disqualified by reason of his own reprehensible conduct or unfitness.
2. Social expediency: Suffrage is a public office or function conferred upon the citizen for
reasons of social expediency; conferred upon those who are fit and capable of discharging it.
3. Tribal theory: It is a necessary attribute of membership in the State.
 83

4. Feudal theory: It is an adjunct of a particular status, generally tenurial in character, i.e., a

vested privilege usually accompanying ownership of land.
5. Ethical theory: It is a necessary and essential means for the development of society.

Quinto vs. COMELEC, GR No. 189698, Dec. 1, 2009

Cayetano vs. COMELEC, GR Nos. 166388 & 166652,
Jan. 23, 2006
Asistipo vs. Aguirre, et al., GR No. 191124, April 27,
2010

d) Qualification/Disqualification of Voters

Qualifications for suffrage:

“Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive requirement shall be imposed
on the exercise of suffrage [Sec. 1, Art. V, Constitution].

- obligation/right to vote in the election of national and local officials of the government
as well as decisions of public questions submitted to the people.
- scope of suffrage: election, plebiscite, initiative, referendum and recall

(a) "Initiative" is the power of the people to propose amendments to the Constitution or to
propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;

a.2. Initiative on statutes which refers to a petition proposing to enact a national

legislation; and

a.3. Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to
Congress or the local legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a legislation through an
election called for the purpose. It may be of two classes, namely:

c.1. Referendum on statutes which refers to a petition to approve or reject an act or

law, or part thereof, passed by Congress; and
 84

c.2. Referendum on local law which refers to a petition to approve or reject a law,
resolution or ordinance enacted by regional assemblies and local legislative bodies.

(d) “Recall” is a method by which a public office may be removed from office during his tenure
or before expiration of term by vote of the people after registration of a petition signed by the
required percentage of qualified voters

d.1. Petition, recognized: Lost of confidence on the public official subject to recall

d. 2. Percentage: 25% of qualified voters. (Sec. 70, Local Government Code)

d. 3. Right of Petition to Recall: Subject to limitation that it shall not take place within
one year from assumption of office and within a year before a regular local election.

*** Age and residency requirement must be complied with on the day of election
*** Residency and age requirement on registration - may still register as a voter provided that
on the day of election possess such qualification
*** Residence is synonymous to domicile for election purposes
*** The Congress may not enact law which provides additional qualification to exercise
suffrage. No substantial requirement shall be imposed
*** Is the right of suffrage a natural right? No, it is a political right. It is within the power of the
State to prescribe the manner in such is exercised.

Sec. 2, Art. 5, Suffrage, 1987 Constitution.

SECTION 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure for the disabled and the illiterates to vote without
the assistance of other persons. Until then, they shall be allowed to vote under existing laws and
such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.

Disqualification:
1. Any person sentenced by final judgment to suffer imprisonment for not less than one year
(unless granted a plenary pardon or an amnesty); but right is reacquired upon the expiration of 5
years after service of sentence.

2. Any person adjudged by final judgment of having committed any crime involving disloyalty
to the government or any crime against national security (unless restored to full civil and
political rights in accordance with law); but right is reacquired upon the expiration of 5 years
after service of sentence.

3. Insane or incompetent persons as declared by competent authority

Sps. Romualdez vs. COMELEC, GR No. 167011, 4/30/08

 85

We take occasion to reiterate that the Constitution grants to the COMELEC the power to
prosecute cases or violations of election laws. Article IX (C), Section 2 (6) of the 1987
Constitution, provides:

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and where appropriate, prosecute cases or violations of election
laws, including acts or omissions constituting election frauds, offenses, and malpractices.

This power to prosecute necessarily involves the power to determine who shall be prosecuted,
and the corollary right to decide whom not to prosecute. 57 Evidently, must this power to
prosecute also include the right to determine under which laws prosecution will be pursued. The
courts cannot dictate the prosecution nor usurp its discretionary powers. As a rule, courts cannot
interfere with the prosecutor’s discretion and control of the criminal prosecution. 58 Its rationale
cannot be doubted. For the business of a court of justice is to be an impartial tribunal, and not to
get involved with the success or failure of the prosecution to prosecute. 59 Every now and then,
the prosecution may err in the selection of its strategies, but such errors are not for neutral
courts to rectify, any more than courts should correct the blunders of the defense.60

Fourth. In People v. Delgado,61 this Court said that when the COMELEC, through its duly
authorized law officer, conducts the preliminary investigation of an election offense and upon a
prima facie finding of a probable cause, files the Information in the proper court, said court
thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said
case must be subject to the approval of the court. The records show that Informations charging
petitioners with violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act
No. 8189 had been filed with the RTC. The case must, thus, be allowed to take its due course.

It may be recalled that petitioners prayed for the issuance of a Temporary Restraining Order or
Writ of Preliminary Injunction before this Court to restrain the COMELEC from executing its
Resolutions of 11 June 2004 and 27 January 2005. In a Resolution dated 20 June 2006, this
Court En Banc denied for lack of merit petitioners’ Motion Reiterating Prayer for Issuance of
Writ of Preliminary Injunction and to Cite for Indirect Contempt. Logically, the normal course
of trial is expected to have continued in the proceedings a quo.

Cordora vs. COMELEC 580 SCRA 2009

Requirements for dual citizens from birth who desire to run for public office

We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled
that dual citizenship is not a ground for disqualification from running for any elective local
position.

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a
result of the concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. For instance, such a situation may arise
when a person whose parents are citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered a citizen of both states.
 86

Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following
classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their
fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any
act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary,
dual allegiance is the result of an individual’s volition.

xxx

[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission

was not with dual citizens per se but with naturalized citizens who maintain their allegiance to
their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in
R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual
allegiance." Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must, therefore, be subject to
strict process with respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us
because we have no control of the laws on citizenship of other countries. We recognize a child
of a Filipino mother. But whether or not she is considered a citizen of another country is
something completely beyond our control."

In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per
se, but with the status of naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized
citizens who reacquire Filipino citizenship and desire to run for elective public office in the
Philippines shall "meet the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of filing the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of
R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a
 87

Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal
and COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which involve
natural-born Filipinos who later became naturalized citizens of another country and thereafter
ran for elective office in the Philippines. In the present case, Tambunting, a natural-born
Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.

Tambunting’s residency

Cordora concluded that Tambunting failed to meet the residency requirement because of
Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting is
not a naturalized American. Moreover, residency, for the purpose of election laws, includes the
twin elements of the fact of residing in a fixed place and the intention to return there
permanently,16 and is not dependent upon citizenship.

In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully
made false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently
proved his innocence of the charge filed against him. Tambunting is eligible for the office
which he sought to be elected and fulfilled the citizenship and residency requirements
prescribed by law.

Jalosjos vs. COMELEC, GR No. 191970, 04/24/2012

e) Registration of Voters - act of accomplishing and filing a sworn

application further registration by qualified voter before the election
officer of the city/municipality where he resides and including the
same in the book of registered voters upon approval by the election
registration board.

How may an application for registration be challenged?

1. Who may challenge?

Voter, candidate, representative of registered political party

How?
It may be challenge in writing any application stating the grounds therefrom, challenge
may be under oath

Attachment.
Proof of Notice of hearing to the challenger and the applicant

2. Oppositions to contest a registrant’s application for inclusion in the voter’s list.

 88

Must be filed not later than second Monday of the month in which the same scheduled
to be heard or processed by the election registration board. If falls non-working, next
following working day.

3. Hearing. Third Monday of the month.

4. Decision. Shall be rendered before the end of the month.

May a person be removed from records of registration? Deactivation of Registration

Deactivation of Registration is a process of deactivating the registration of certain persons

removing the registration records from the corresponding precinct book of voters and placing
the same in the inactive file after entering the cause(s) of deactivation properly marked
deactivated and dated in indelible ink.

1. What instances may a person’s registration be deactivated?

● Any person sentenced by final judgment to suffer imprisonment for not less than one
year (unless granted a plenary pardon or an amnesty); but right is reacquired upon the
expiration of 5 years after service of sentence.
● Any person adjudged by final judgment of having committed any crime involving
disloyalty to the government or any crime against national security (unless restored to
full civil and political rights in accordance with law); but right is reacquired upon the
expiration of 5 years after service of sentence.
● Insane or incompetent persons as declared by competent authority
● Any person who did not vote in the two successive preceding regular election (SK
Election, not included)
● Any person whose registration has been ordered excluded by the court
● Any person who has lost his Filipino citizenship.

2. Is right to vote may regain automatically?

Yes
Reactivation of Registration.
It is filed with the election officer sworn application for reactivation of his registration in the
form of a affidavit stating the grounds for deactivation no longer exists at anytime but not later
than 120 days before regular election and 90 days before special election.

It shall be the duty of every citizen to register and cast his vote [Sec. 4, B.P. 881]. In order that a
qualified elector may vote in any election, plebiscite or referendum, he must be registered in the
Permanent List of Voters for the city or municipality in which he resides [Sec. 115, BP 881],

1. Registration does not confer the right to vote; it is but a condition precedent to the exercise of
the right. Registration is a regulation, not a qualification [Yra v. Abano, 52 Phil 380]
 89

2. General Registration of voters. Immediately after the barangay elections in 1997, the existing
certified list of voters shall cease to be effective and operative. For purposes of the May 1998
elections and all elections, plebiscites, referenda, initiatives and recalls subsequent thereto, the
Comelec shall undertake a general registration of voters [Sec. 7, R.A. 8189 (The Voters
Registration Act of 1996)].

3. System of Continuing Registration. The personal filing of application of registration of voters

shall be conducted daily in the office of the Election Officer during regular office hours. No
registration shall, however, be conducted during the period starting 120 days before a regular
election and 90 days before a special election [Sec. 8, R.A. 8189].

f) Mandatory Biometrics Voter Registration (RA 10367)

Does it constitute an unconstitutional substantial requirement in the exercise of the right of

suffrage?

No. The law does not impose qualification but a mere aspect of registration procedure of which
the State has the right to reasonably regulate.

SECTION 1. Declaration of Policy. – It is the policy of the State to establish a clean, complete,
permanent and updated list of voters through the adoption of biometric technology.

SEC. 2. Definition of Terms. – As used in this Act:

(a) Commission refers to the Commission on Elections (COMELEC).

(b) Biometrics refers to the quantitative analysis that provides a positive identification of an
individual such as voice, photograph, fingerprint, signature, iris and/or such other identifiable
features.

(c) Data Capture Machine (DCM) is the device which captures the biometrics of an individual.

(d) Validation is the process of taking the biometrics of registered voters whose biometrics have
not yet been captured.

(e) Deactivation refers to the removal of the registration record of the registered voter from the
corresponding precinct book of voters for failure to comply with the validation process as
required by this Act.

(f) Reactivation refers to the reinstatement of a deactivated voter.

SEC. 3. Who Shall Submit for Validation. – Registered voters whose biometrics have not been
captured shall submit themselves for validation.

SEC. 4. Who Shall Conduct the Validation. – The City or Municipal Election Officer shall
conduct the validation.
 90

SEC. 5. Commencement of Validation. – The Commission shall conduct validation beginning

July 1, 2013, consistent with the continuing registration under Republic Act No. 8189.

SEC. 6. Publication and Notice Requirement. – The Commission shall cause the publication of
the commencement of the validation in two (2) newspapers of general circulation. The City or
Municipal Election Officer shall serve individual written notices by registered mail with return
card to the voters concerned at their latest address in the voter’s registration record and post the
list of the voters concerned in the city or municipal bulletin board and in the local COMELEC
office.

SEC. 7. Deactivation. – Voters who fail to submit for validation on or before the last day of
filing of application for registration for purposes of the May 2016 elections shall be deactivated
pursuant to this Act.

SEC. 8. Reactivation. – Those deactivated under the preceding section may apply for
reactivation after the May 2016 elections following the procedure provided in Section 28 of
Republic Act No. 8189.

SEC. 9. Database Security. – The database generated by biometric registration shall be secured
by the Commission and shall not be used, under any circumstance, for any purpose other than
for electoral exercises.

SEC. 10. Mandatory Biometrics Registration. – The Commission shall implement a mandatory
biometrics registration system for new voters.

SEC. 11. Prohibited Acts. – The following shall be election offenses punishable under Sections
263 and 264 of Batas Pambansa Bilang 881, as amended, otherwise known as the “Omnibus
Election Code”:

(a) Any person who shall prohibit, impede, obstruct or prevent a registered voter or a new voter
from submitting his or her biometrics for capture through the use of force, intimidation or
monetary consideration; and

(b) Any public official or person who, under the guise of implementing this Act, shall
unjustifiably and without due process, cause the deactivation or reactivation of any registered
voter.

SEC. 12. Rules and Regulations. – The Commission shall, within sixty (60) days after the
effectivity of this Act, promulgate the implementing rules and regulations.

SEC 13. Separability Clause. – If any part of this Act is held invalid or unconstitutional, the
other parts or provisions hereof shall remain valid and effective.

SEC 14. Repealing Clause. – All laws, decrees, executive orders, rules and regulations
inconsistent with this Act are hereby repealed or modified accordingly.

SEC. 15. Effectivity Clause. – This Act shall take effect fifteen (15) days after its publication in
at least two (2) newspapers of general circulation.
 91

g) Inclusion and Exclusion Proceedings

1. Common rules governing judicial proceedings in the matter of inclusion, exclusion and
correction of names of voters.

a) Petition for inclusion, exclusion or correction of names of voters shall be filed during office
hours.
b) Notice of the place, date and time of the hearing of the petition shall be served upon the
members of the Board and the challenged voter upon filing of the petition.
c) A petition shall refer only to one precinct and shall implead the Board as respondents.
d) No costs shall be assessed against any party in these proceedings. However, if the court finds
that the application has been filed solely to harass the adverse party and cause him to incur
expenses, it shall order the culpable party to pay the costs and incidental expenses.
e) Any voter, candidate or political party affected by the proceedings may intervene and present
his evidence.
f) The decision shall be based on the evidence presented and in no case rendered upon a
stipulation of facts. If the question is whether or not the voter is real or fictitious, his non-
appearance on the day set for hearing shall be prima facie evidence that the challenged voter is
fictitious.
g) The petition shall be heard and decided within 10 days from the date of its filing. Cases
appealed to the RTC shall be decided within 10 days from receipt of the appbal. In all cases, the
court shall decide these petitions not later than 15 days before the election and the decision shall
become final and executory.

2. Jurisdiction in inclusion and exclusion cases [Sec. 33, R.A. 8189], The Municipal and
Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters in their respective cities and municipalities. Decisions of the
Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional
Trial Court within five days from receipt of notice thereof. Otherwise, said decision shall
become final and executory. The RfC shall decide the appeal within 10 days from the time it is
received and the decision shall immediately become final and executory. No motion for
reconsideration shall be entertained.

3. Petition for Inclusion [Sec. 34, R.A. 8189]. 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. It shall be
supported by a certificate of disapproval or his application and proof of service of notice of his
petition upon the Board. The petition shall be decided within 15 days after its filing.

4. Petition for Exclusion [Sec. 35, R.A. 8189], Any registered voter, representative of a political
party or the Election Officer, may file with the 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
 92

election. The petition shall be accompanied by proof of notice to the Board and to the
challenged voter, and shall be decided within 10 days from its filing.

Annulment of Book of Voters [Sec. 39, R.A. 8189]. The Commission shall, upon verified
petition of any voter or election qfficer or duly registered political party, and after notice and
hearing, annul any book of voters that is not prepared in accordance with the provisions of this
law, or was prepared through fraud, bribery, forgery, impersonation, intimidation, force or any
similar irregularity, dr which contains data that are statistically improbable. No order, ruling or
decision annulling a book of voters shall be executed within 90 days before an election.

1. However, the annulment of the list of voters shall not constitute a ground for a
pre-proclamation contest [Ututalum v. Comelec, 181 SCRA 335].

Panlaqui vs. COMELEC, GR No. 188671, Feb. 24, 2010

There is a distinction between a petition for inclusion of voters in
the list and a petition to deny due course or cancel a certificate of
candidacy as to issues, reliefs and remedies involved. Voter’s
inclusion/exclusion proceedings essentially involve the issue of
whether a person shall be included in or excluded from the list of
voters based on the
qualifications required by law and the facts presented to show
possession of these qualifications. On the other hand, denial or
cancellation of Certificate of Candidacy proceedings involves the
issue of whether there is a false representation of a material fact.
The false representation must necessarily pertain not to a mere
innocuous mistake but to a material fact or those that refers to a
candidate’s qualification for elective office

Akbayan, et al. vs. COMELEC, GR No. 147066, 3/26/01

Velasco vs. COMELEC, et al., GR No. 180051, 12/24/08

Sano Jr. vs. COMELEC, et al., GR No. 182221, Feb. 3,
2010

h) Political Parties

Atienza Jr. vs., et al. vs. COMELEC, et al., GR No.

188920, Feb. 16, 2010
Liberal Party vs. COMELEC, et al., GR No. 191771,
5/6/10
Abayon vs. HRET, GR No. 189466, Feb. 11, 2010

i) Candidacy

a) Qualifications of Candidates/Disqualifications
 93

Grounds for Disqualification for Elective Office

Omnibus Election Code:

1. Sec. 12. Disqualifications. – Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been sentenced to a penalty of
more than eighteen months or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, ***disqualification may be removed*** unless he has
been given plenary pardon or granted amnesty. This disqualifications to be a
candidate herein provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after the expiration
of a period of five years from his service of sentence, unless within the same period
he again becomes disqualified.

2. Any person resident of or an immigrant of a foreign country until he waives such status

MORENO v. COMELEC
- Political rights lost by reason of the conviction shall be restored.
- Probation is not a sentence but is rather, in effect, a suspension of the imposition of
sentence. We held that the grant of probation to petitioner suspended the imposition of
the principal penalty of imprisonment, as well as the accessory penalties of suspension
from public office and from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage. (not disqualified from
running for a public office)

Local Government Code: local elective office

1. those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by 1 year or more imprisonment within 2 years after serving sentence.

2. those removed from office as a result of an administrative case

An elective government official who was removed from office prior to the effectivity of
the LGC (Jan. 1, 1992) is not disqualified from running for local office, LGC cannot be given
retroactive effect.

3. those convicted by final judgment for violating oath of allegiance to the Philippines

4. those with dual citizenship – dual allegiance

It suffice that during the filing of COC, they elect Philippine citizenship to terminate
their status as person with dual citizenship considering that there would be an unavoidable of
conflicting laws of different states.
 94

Different rules applies for a person who lost his citizenship by acquiring foreign
citizenship by naturalization: requires by taking an oath renouncing all foreign citizenship at the
time of the filing of the COC, otherwise, disqualified

5. fugitives from justice in criminal or nonpolitical cases here and abroad

flee after conviction to avoid punishment but likewise to avoid prosecution

6. permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right

Green Card Holders – evidence to show that a person is an immigrant and a permanent
resident of US.

7. the insane or feeble-minded

Others:

Section 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party
is declared by final decision of a competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed
by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to
a foreign country shall not be qualified to run for any elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.

Candidate died, disqualifies, withdraws his candidacy: effect – can he be substituded?

Labo vs. COMELEC, 176 SCRA 1
Frivaldo vs. COMELEC, 174 SCRA 245
Bengson III VS. HRET, GR No. 142840, 05/07/2001
Fernandez vs. HRET, 608 SCRA 733
Fermin vs. COMELEC, GR Nos. 179695 & 182369,
12/18/08
Luna vs. COMELEC, GR No. 165983, April 24, 2007
Moreno vs. COMELEC, GR No. 168550, 08/10/2006
Maquiling vs. COMELEC, GR No. 195649, 04/16/2013

b) Certificates of Candidacy
- Filing of COC
- Effect of Filing
 95

Quinto, et al. vs. COMELEC, GR No. 189698,

2/22/10
Go vs. COMELEC, GR No.147741, 05/10/2001

- Substitution of Candidates/Withdrawal of Candidates

When there is a valid substitution?

Section 77. Candidates in case of death, disqualification or withdrawal of another. - If after the
last day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the
office affected in accordance with the preceding sections not later than mid-day of the day
of the election. If the death, withdrawal or disqualification should occur between the day before
the election and mid-day of election day, said certificate may be filed with any board of election
inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be
voted for by the entire electorate of the country, with the Commission.

LUNA V. COMELEC: The COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction in declaring that Hans Roger, being under age, could not be considered
to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna.
The COMELEC may not, by itself, without the proper proceedings, deny due course to or
cancel a certificate of candidacy filed in due form.

SANCHEZ V. DEL ROSARIO: n Sanchez v. Del Rosario,12 the Court ruled that the question
of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper
cognizance of the COMELEC.

FORMAL REQUIREMENT OF VALID WITHDRAWAL:

Is written declaration under oath sufficient to constitute withdrawal?

Yes – directory

COC was denied/cancelled, can substitution take effect? No.

Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election.

COMELEC Reso. No 9518

Tagolino vs. HRET, GR No. 202202, 03/19/2013

- Nuisance Candidates
 96

Martinez III vs. HRET, et al, GR No. 189034,

1/11/10
Bautista vs. COMELEC, GR No. 133840,
11/13/1998
Dela Cruz vs. COMELEC, GR No. 192221,
11/13/2012

- Petition to Deny/Cancel COC

Mitra vs. COMELEC, GR No. 191938, July 2,
2010
Ong vs. Alegre, GR No. 163295, Jan. 23, 2006
Velasco vs. COMELEC, 575 SCRA 590
Hayudini vs COMELEC, GR NO. 207900,
4/22/2014
Lluz & Aldeosa vs. COMELEC, GR No. 172840,
6/7/07
Poe-Lamanzares vs. COMELEC, GR NO. 221697,
221698-700, 03/08/2016
Maquiling Case

- Effect of Disqualification
Lanot, et al. vs. COMELEC, et al., GR No.
164858, Nov. 16, 2006
Lonzanida vs. COMELEC, et al., GR No. 135150,
July 28, 1999
Limkaichong vs. COMELEC et al., GR. Nos.
178831-32, April 1, 2009

c) Fair Elections Act of 2001 (RA 9006)

GMA Network vs. COMELEC, GR No. 205357,
09/2/14

d) Campaign
- Premature Campaigning
LAnot Doctrine
Penera vs. COMELEC, et al., GR NO. 181613,
Nov. 25, 2009

- Prohibited Contributions
Pilar vs. COMELEC, GR No. 115245, July 11,
1995

e) Board of Canvassers
Flauta vs. COMELEC, 593 SCRA 504

f) Remedies and Jurisdiction in Election Law

 97

- Petition not to give due course to COC

- Petition to Declare Failure of Elections
Albana vs. Belo, 602 SCRA 140
Dibaratun vs. COMELEC, et al., GR No. 170365,
2/2/10

- Pre-Proclamation Controversy
Lucman vs. COMELEC, 462 SCRA 299
Suhuri vs. COMELEC, 602 SCRA 633
Abayon vs. COMELEC, 583 SCRA 472
Valino vs. Vergara, 581 SCRA 44
Seneres vs. COMELEC, GR No. 179708, Apr. 16,
2009
Tamayo-Reyes vs. COMELEC, GR No. 175121,
6/8/07

- Election Protest
Limkaichong vs. COMELEC
Gomez-Castillo vs. COMELEC, GR No. 187231,
June 22, 2010
Panlilio vs. COMELEC, 593 SCRA 139
Dayo vs. COMELEC, 199 SCRA 449
Duenas, Jr. vs. HRET, 593 SCRA 316
Aggabao vs. COMELEC, 449 SCRA 400
Poe vs. Macapagal-Arroyo, 454 SCRA 142
Legarda vs. De Castro, 542 SCRA 125

- Quo Warranto
Fernandez vs. HRET, 608 SCRA 733

g) Prosecution of Election Offenses

Flauta vs. COMELEC
Pacificador vs. COMELEC, 571 SCRA 372
Office of the Ombudsman vs. Torres, 566 SCRA
65
Fernandez vs. COMELEC, 556 SCRA 765
Regalado vs. CA, GR No. 115962, 02/15/2000

Additional Readings:

Cayetano vs. Monsod, GR No. 100113, 09/03/1991

Typoco vs. COMELEC, GR No. 136191, November 29, 1999
Zarate vs. COMELEC, GR No. 129096, November 19, 1999
Faelnar vs. People, GR Nos. 140850-51, 05/04/2000
Gallardo vs. Judge Tabamo, 218 SCRA 253
Mastura vs. COMELEC, 285 SCRA 493
 98

Loong vs. COMELEC, GR No. 133676, April 14, 1999

Atienza, et al. vs. COMELEC, et al., GR No. 188920, 02/16/2010
Cipriano vs. COMELEC, GR No. 158830, August 10, 2004
LDP vs. COMELEC, GR No. 161265, February 24, 2004
Sandoval vs. COMELEC, GR No. 133842, January 26, 2000
SWS vs. COMELEC, GR No. 147571, May 5, 2001
ABS-CBN vs. COMELEC, GR No. 133486, 01/28/2000
Maruhom vs. COMELEC, GR No. 139357, 05/05/2000
Sanidad vs. COMELEC, 181 SCRA 529
Dayao & Capco vs. COMELEC, GR No. 193643, 01/29/2013
Atong Paglaum, Inc., et al. vs, COMELEC, GR No. 203766,
4/2/13
Makalintal vs. COMELEC, GR No. 157013, July 10, 2003
Mitmug vs. COMELEC, 230 SCRA 54
Akbayan Youth vs. COMELEC, GR No. 147066, March 26, 2001
Javier vs. COMELEC, 144 SCRA 194
CAgas vs. COMELEC, GR No. 194139, 01/24/2012
Edding vs. COMELEC, 246 SCRA 502
Acosta vs. COMELEC, 290 SCRA 578
Ambil vs. COMELEC, GR No. 143398, October 25, 2000
Cawasa vs. COMELEC, GR No. 150469, July 3, 2002
AKLAT vs. COMELEC, GR No. 162203, April 14, 2004
Roque vs. COMELEC, GR No. 188456, 09/10/2009
De Jesus vs. People, 120 SCRA 760
People vs. Judge Inting, 187 SCRA 788
Sambarani vs. COMELEC, GR No. 160427, September 15, 2004