admin. elections

•

Local Government

Outline of Topics: Based on 2012 Bar Syllabus
A. Public Corporations
1. Concept
(a) Distinguished from Government-Owned or
Controlled Corporations (GOCCs)
2. Classifications
(a) Quasi-Corporations
(b) Municipal Corporations
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation, Conversion, Division,
Merger or Dissolution
C. Principles of Local Autonomy
D. Powers of Local Government Units (LGUs)
1. Police Power (General Welfare Clause)
2. Eminent Domain
3. Taxing Power
4. Closure and Opening of Roads
5. Legislative Power
(a) Requisites for Valid Ordinance
(b) Local Initiative and Referendum
6. Corporate Powers
(a) To Sue and Be Sued
(b) To Acquire and Sell Property
(c) To Enter Into Contracts
(i) Requisites
(ii) Ultra Vires Contracts
7. Liability of LGUs
8. Settlement of Boundary Disputes
9. Succession of Elective Officials
10. Discipline of Local Officials
(a) Elective Officials
(1) Grounds
(2) Jurisdiction
(3) Preventive Suspension
(4) Removal
(5) Administrative Appeal
(6) Doctrine of Condonation
(b) Appointive Officials
11. Recall
12. Term Limits
TOPIC A:
•

Public Corporations
1. Concept
(a) Distinguished from Government-Owned or
Corporations (GOCCs)
2. Classifications
(a) Quasi-Corporations
(b) Municipal Corporations

Controlled

1. Concept:
Public Corporations are those created by the state as its own agency and instrumentality to
help the state in carrying out its governmental functions.
-”those formed or organized for the government of a portion of the state.” [Corporation Code]
As distinguished from a private corporation, the latter is created by private individuals
(incorporators) for the purpose of obtaining profits from its undertaking. (not all private
corporations are for profit-charitable corporations, corporation sole, religious corporations!!)
Art. XII, Sec. 16., 1987 Constitution:
“The Congress shall not, except by a general law, provide for the formation, organization or
regulation of private corporations.” (Corporation Code)
This has been consistent with the purpose and intention of the framers of the constitution to
prevent the congress from directly creating private corporations (prohibition from favoring the a
private corporation)
a) Government-Owned or Controlled Corporations (as distinguished from Local Government Units)“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 instrumentality either wholly, or, where applicable, as in the case
of stock corporations, to the extent of at least 51% of its capital stock.” [Administrative Code of
1987, Sec. 1 (13).
NOTE: when we speak of GOCC, it need not be formed by the direct act of congress… it may refer
to a stock corporation and the latter refers to a corporation created under the Corporation Code.
When the Government acquires at least 51% of such Stock Corporation created under the
Corporation Code, it becomes now a GOCC..
As to Corporations which are directly created/formed under the law, CONTROL of the Government
is manifested by the APPOINTMENT OF THE BOARD MEMBERS by the President.. Once majority of
the members of the board are appointed by the president, it can now be considered as GOCC.
Note that which are appointed by the president to the Board need not be the Alter-egos of the
president.. For instance, the board members appointed by the president in the Cultural Center of
the Philippines, only few are cabinet members…. Otherwise stated, what is controlling is that
the board members are appointed by the president… all appointment need not be the
alterego of the President.. Another instance is the members of the board of MAYNILAD WATERS,
most of them are not cabinet members of the president.... CONTROL is manifested by the FACT
that these Board members are appointed by the President of the Philippines..
Two Kinds (Public Corporations):
1. GOCCs with original charters (created directly by congress by means of a law)
2. Without original charters [subsidiaries] (created under the Corporation Code)
[subsidiaries}- 51% of stocks are owned by the Government…. Necessarily mean that at least 51%
of the corporation stocks is owned by other government corporations.. Like the case of PAL
before, majority of its stocks were owned by GSIS, and LandBank.. Hence, SUBSIDIARIES!! Please
note the DISTINCTION between GOCC with ORIGINAL CHARTER and SUBSIDIARIES… it is
important to note for instance, the prohibition under the constitution from appointment of
Congressman to any GOCC and Subsidiaries.. Also note the prohibition of appointment of
President’s relatives in any GOCC and SUBSIDIARIES… HOWEVER, DISTINCTION MAY NOW LIE
FOLLOWING:
Why important?
1. Art. IX-B (5) –standardization (SALARY) - do not apply to SUBSIDIARIES- the salary thereof is
governed by their own BOARD..
2. Art. IX-B, 2 (1) – scope of Civil Service-do not apply to SUBSIDIARIES.. Employees of
SUBSIDIARIES fall within the scope of LABOR CODE

3. Art. IX-D, 2(1) – power of COA/pre-audit-SUBSIDIARIES are not subject of PRE-AUDIT.. ONLY
POST AUDIT as distinguished from those with Original Charters
4. Art. XI, 13 (2) –power of OMB to stop/prevent acts of impropriety- does not extend to those
working in the SUBSIDIARIES.. Only those working in those with original charter may be
investigated by OMB
•

NOTE the prohibition in the Omnibus Election Code which provides the FORFEITURE OF
POSITION in the GOCC with Original Charter and SUBSIDIARIES ONCE AN APPOINTIVE
OFFICIAL OF THE GOCC with Original Charter and SUBSIDIARIES FILES A CERTIFICATE OF
CANDIDACY… Otherwise stated, if you worked in subsidiaries and you file a COC, you are
deemed resigned!!! HENCE COVERED BY THE OEC..!!! If you work in a private corporation
which is not a SUBSIDIARY, you are governed by the rules of the promulgated by the
BOARD!!!

Some questions:
1. Are employees of chartered state universities which have been granted autonomy under the
jurisdiction of the Civil Service Commission? [UP v. Regino, 221 SCRA 598]-Even if these STATE U
are granted with autonomy and independence pursuant to their Charter, they fall within the
Jurisdiction of the CSC
2. What about the National Housing Corporation which was organized in 1959 under EO No. 399
or the Uniform Charter of Government Corporations? [stocks owned by GSIS, DBP, SSS] [Juco v.
NLRC, 227 SCRA 531]- note that in the case of NHA, its stocks are owned by GSIS, SSS, and DBP,
Hence CONSIDERED SUBSIDIARIES!! While it is considered as a Government Subsidiary, it falls
within the Jurisdiction of NLRC and not CSC!! TAKE NOTE!!! Considered private corporations as
distinguished from UP!!
3. What about water districts formed by resolution of the Sangguniang Bayan as authorized by PD
198? [DCWD v. CSC, 201 SCRA 596]- Note that Water Districts in localities are created pursuant to
a Sangguinan Resolutions!!! THESE WATER DISTRICTS are CONSIDERED GOCCs!!!! Hence, under
the Jurisdiction of the CSC and not NLRC!!! Question was raised as to what are the charter of these
water districts? It was ruled that all of these WD have PD 198 as their own Charter and not
pursuant to their SB Resolutions.. Hence GOCC
4. Liban v. Gordon, Jan. 18, 2011
What about the PNRC which was created by RA No. 95 as a humanitarian organization in
compliance with the country’s obligation under the Geneva Conventions? [In its amended charter,
of the 30 members of the Board, only 6 are appointed by the President.] – it was held that PNRC is
a Private Corporation!!! Hence the law creating the same was ruled to be NULL AND VOID… to save
GORDON, it has to be considered a Private Corporation!!! Hehehe… HOWEVER, UPON MOTION FOR
RECONSIDERATION, THE SC modified its previous ruling..Now the question is HOW ABOUT RA 195
creating PNRC as HUMANITARIAN ORGANIZATION/CORPORATION in compliance with the GENEVA
CONVENTIONS taking into consideration that in its AMENDED CHARTER, only 6 board members of
the total 13 are appointed by the President? SC RULED IN THE FOLLOWING :::::::::::::::::::
PNRC has a sui generic status. Although it is neither a subdivision, agency, or instrumentality
of the government, nor a government-owned or -controlled corporation or a subsidiary thereof, so
as not to lose its character of neutrality and independence such a conclusion does not ipso
facto imply that the PNRC is a “private corporation” within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code.
5. Boy Scouts of the Philippines v. COA, 651 SCRA 146 (2011)
What about the BSP created as a public corporation under Commonwealth Act No. 111, as
amended by Presidential Decree No. 460? Only the Secretary of Education sits the National
Executive Board of the BSP. The State does not appropriate or invest in the BSP but RA 7278
provides is that the Government or any of its subdivisions, branches and instrumentalities can
donate and contribute funds to the BSP. ?
The BSP is a public corporation or a government agency or instrumentality with juridical
personality, which does not fall within the constitutional prohibition in Article XII, Section 16,
notwithstanding the amendments to its charter. Not all corporations, which are not government

owned or controlled, are ipso facto to be considered private corporations as there exists another
distinct class of corporations or chartered institutions which are otherwise known as “public
corporations.” Art. 2, par. 2, Civil Code. These corporations are treated by law as agencies or
instrumentalities of the government which are not subject to the tests of ownership or control and
economic viability but to different criteria relating to their public purposes/interests or
constitutional policies and objectives and their administrative relationship to the
government or any of its Departments or Offices.
To summarize: Classes of Corporations
1. Private
2. Public
(a) Municipal Corporations
(b) Government owned-or controlled
Corporations
i. with original charter
ii. w/o original charter [subsidiaries] 51% of its stocks are owned by the
Government
(c) Public Corporations which are created by law although not controlled by the
government but perform public functions [BSP/PNRC] it is because less than 50% of the BOARD
are no longer appointed by the PRESIDENT !!!
2. Classification: (QUASI-means like, similar)
a). Quasi-CorporationsPublic corporations created as agencies of the State for a narrow and limited
purpose. Their power relates to matters of state, as distinguished from municipal concern.
[US: Counties and School Districts/Water Districts (these are only US Jurisprudences)?
Barangays- no longer Quasi Corporation as it is now considered Municipal Corporations!!?] Puroks
have no Juridical Personality!!! They do not exist in law.. It may be a candidate of a quasi
corporations!!!
b). Municipal CorporationsTOPIC B: OUTLINE
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation,
Conversion, Division, Merger or
Dissolution
•
1. Elements:
a). Legal Creation: The power to create is legislative in nature. (ONLY CONGRESS CAN CREATE
MUNICIPAL CORPORATIONS!!!)
Can it be delegated by Congress to another entity?
i. [Sema v. COMELEC, 558 SCRA 700 (2008)]- It was held that in so far as the CREATION
OF MUNICIPALITIES IS CONCERNED, the delegation of such power to create is valid.. However,
insofar as the creation of a city or a province is concerned, the delegation is not valid as the
creation of the same necessarily entails creation of legislative districts the power of which is
EXCLUSIVELY vested to the CONGRESS!!! HENCE, CREATION OF MUNICIPALITIES ARE NOW

DELEGATED TO ARMM!!
ii. [Sec. 385, LGC of 1991]: “by law or by an ordinance of the Sangguniang
panlalawigan or sangguniang panlungsod , subject to the approval by a majority of votes cast in a
plebiscite to be conducted by the COMELEC in the unit or units affected.”- CREATION OF
BARANGAYS ARE NOW DELEGATED TO Sangguniang Panglalawigan or Sangguniang Panglungsod!!!
CAN THE POWER TO CREATE SUCH MUNICIPAL CORPORATIONS BE DELEGATED TO THE
PRESIDENT? NO!!!! THE ADMIN CODE OF 1917 PROVIDING SUCH POWER TO THE PRESIDENT WAS
DECLARED NULL AND VOID AS THERE WAS NO SUFFICIENT STANDARDS TO BE FOLLOWED AS
DISTINGUISHED TO THE DELEGATION MADE IN THE LOCAL GOVERNMEN CODE
b. Corporate Name: (2ND ELEMENT)
Sec. 13 of the LGC allows the Sangguniang Panlawigan in consultation with the PHC to
change the name of component cities and municipalities within its territorial jurisdiction.
The Sanggunian of highly urbanized cities and independent component cities,
component cities and municipalities can change the name of their barangays also in
consultation with PHC.
HOW ABOUT THE CHANGING OF NAME OF A PROVINCE? ONLY CONGRESS CAN CHANGE THE SAME
IN VIEW OF THE FACT THAT CHANGING ITS NAME NECESSARILY ENTAILS AMENDMENT OF
CHARTER!!! SO ONLY CONGRESS IS EMPOWERED TO DO THE SAME!!!
c. Inhabitants:
Sec. 9, LGC: A local government unit may be abolished when its income, population or land
area has been irreversibly reduced to less than the minimum standards prescribed for its creation.
WHAT HAPPEN IF IT IS ABOLISHED? IT DOES NOT AUTOMATICALLY DISAPPEAR FROM THE MAP.. IT
MAY SIMPLY BE MERGED WITH NEIGHBORING MUNICIPALITIES OR CITIES AS THE CASE MAY BE!!!
d. Territory: Must be defined by metes and bounds, but see Mariano v. COMELEC, 242 SCRA
211 [present territory of the Municipality of Makati].
Note that the most charters of lgus are defined by metes and bounds (30 degrees south west… etc)
However, in the case of Mariano v. COMELEC, 242 SCRA 211, the Charter of MAKATI CITY only
defined the territory as [present territory of the Municipality of Makati SHALL CONSTITUTE THE
CITY OF MAKATI!!]. At that time, Makati had a pending boundary dispute with PASIG…. The charter
was questioned.. Held- SC sustained the Charter as AN EXCEPTION TO THE GENERAL RULE!! It was
allowed BY THE SC saying that CONGRESS cannot provide the metes and bounds as it will result to
resolving the boundary dispute with PASIG… the resolution of which must be resolved by the
proper court!!!
Classification of Municipal Corporations:
1. Non-existent2. De Facto
3. De Jure
Bar Question 2010, No. 20:
Define/explain the following:
b. De facto municipal corporation (1%)
c. Municipal corporations by estoppel (1%)
Requisites of a De Facto Mun. Corporation: (note: once any of the requisites is missing, Municipal
Corporation becomes NON EXISTENT OR A USURPER!!)
1. Valid law authorizing incorporation
2. Attempt in good faith to organize

3. Colorable compliance with the law
4. Assumption of corporate powers
What is the status of municipal corporations created by Executive Order under Sec. 68 of the
Administrative Code of 1917? (to be later declared UNCONSTITUTIONAL!!) (THIS IS THE LAW by
virtue of which, the MUNICIPALITY OF STO. TOMAS, DDN WAS CREATED)
HELD:
An unconstitutional act is not a law; it confers no right; it imposes no duties; it affords no
protection; it creates no office.. (Meaning, the LGUs created under the same were considered as
NON-EXISTENT CORPORATION!!!)
TO BE A DEFACTO, YOU NEED A VALID LAW AUTHORIZING ITS INCORPORATION!!!!
Municipality of Malabang v. Benito, March 28, 1968
Municipality v. Baz, 265 SCRA 182:
The Municipality of Sinacaban in Misamis Occidental was created by the President pursuant to
EO No. 258. Said law was declared unconstitutional in 1965 in Pelaez v. Auditor. Forty (40) years
later, its existence was challenged. What is it’s status?
•
Answer: It is de facto in the sense that its legal existence has been recognized publicly and
officially. It was mentioned in BP 129 (A LAW DEFINING COURT JURISDICTIONS-ALWAYS
MENTIONED SINACABAN IN THAT LAW) and Supreme Court Circulars.
As of now (INCLUDING
THE MUNICIPALITY OF STO. TOMAS), it is de jure because of Sec. 442 of the LGC. IT PROVIDED
THAT [Existing municipalities organized pursuant to executive issuances shall be considered
regular municipalities.]-HENCE, CONSIDERED DE JURE MUNICIPAL CORPORATIONS!!!
Why is knowing de facto status important?- IT IS IMPORTANT BECAUSE ONCE IT ACQUIRES
THE STATUS OF DE FACTO, ITS EXISTENCE CANNOT BE ATTACKED COLLATERALLY….IT CAN BE
ATTACKED ONLY BY DIRECT ACTION THROUGH QUO WARRANTO PROCEEDINGS BY THE SOLGEN!!.
FOR INSTANCE IN THE CASE OF MANABANG WHICH WAS DECLARED TO BE NONEXISTENT, IF AM
BEING PROSECUTED FOR VIOLATION OF ITS ORDINANCE, I CAN USE THE DEFENSE THAT THE
ORDINANCE IS NULL AND VOID BECAUSE THE LGU PASSING THE ORDINANCE IS NON EXISTENT..
YOU ARE ATTACKING IT COLLATERALLY!!! HOWEVER, THIS CASE CANNOT BE USED AS A DEFENSE
IF IT IS A DE FACTO MUNICIPAL CORPORATION SINCE ORDINANCE PASSED BY THE SAME ENJOYS
THE PRESUMPTION OF VALIDITY UNTIL DECLARED NULL AND VOID IN QW PROCEEDINGS!!…. IT
CANNOT BE ATTACKED COLLATERALLY.. IT CAN BE ATTACKED ONLY BY QUO WARRANTO
PROCEEDINGS!!

Municipal Corporations by Estoppel/prescription: BARQ
One whose existence is presumed where it is shown that the community has claimed and
exercised corporate functions, with the knowledge and acquiescence of the legislature, and without
interruption or objection for a period long enough to afford title by prescription. [Martin] (NO CASE
LIKE THIS UNDER OUR JURISDICTION!!)
THIS IS COMMON IN THE U.S…..
2. Nature and Function (refers to the POLITICAL SUBDIVISION-cities, municipalities,)
a). Nature: It is a body politic and corporate constituted by the inhabitants of a city or town
for the purpose of local government thereof; it is established by law partly as an agency of the
state to assist in the civil government of the country, but chiefly to regulate the local and internal
affairs of the city or town. [political subdivision?]
b). Dual Nature:
i. Governmental – it is an agent of the state for the government of the territory and the inhabitants
or for carrying out the functions of government

ii. Private- it is like a business corporation performing functions not strictly governmental or
political; as such, it acts for its own interests and not as agent of the state
It is important to know these natures because these will determine the Suability, Liability, and
Execution against the Government
Ex. Holding of Fiesta, Kadayawan, having a slaughter house, operating its own schools are not
governmental in nature
Governmental Functions- Holding elections, Peace and order functions
What are municipal corporations in the Philippines?
Constitution, Art. X, Sec. 1: The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as herein provided.
MUNICIPAL CORPORATIONS!!- which carry out the functions of the government (GOVERNMENTAL)
PROVINCES
CITIES
MUNICIPALITIES
BARANGAYS
ARMM
Others:
1.

Legislative Districts – representative unit, not a corporate unit [Bagabuyo v. COMELEC,
573 SCRA 290 (2008)]-NOT considered LGU or not considered Political and Territorial
Subdivisions

2.

Administrative Regions – groupings for administrative purposes [Chiongbian v. Orbos,
245 SCRA 253 (1994)]- NOT considered LGU or not considered Political and Territorial
Subdivisions

3. Special Metropolitan Political Subdivisions [Art. X, Sec. 11- “subject to plebiscite” basic
services] MMDA v. Viron Transportation, 530 SCRA 341 (2007) – SBMA– the creation of such is
subject to plebiscite.. It is not a Political and Territorial Subdivisions. Its only purpose is to
FACILITATE DELIVERY OF BASIC SERVICES… THEY ARE NOT POLITICAL UNITS
4.

Sub-Provinces – Art. XVIII, Sec. 9 [convert or revert to mother province]- There’s no more
Sub-Provinces as of the moment!!

c. Requisites for Creation, Conversion, Division, Merger or Dissolution (of MUNICIPAL
CORPORATIONS)
Requisites (OF CREATION):
i. Law or Charter, and (NOTE that all Cities created are with their own charter)(the Revised
Rules of Criminal procedure should be revisited relative to its provisions relating cases to be filed
before mtc in Cities (“in manila and other chartered cities-should be construed to mean CEBU,
manila, and davao”)
ii. Plebiscite [Art. X, Sec. 10-”subject to the approval by a majority of the votes cast in a
plebiscite in the political units directly affected.” [Padilla v. COMELEC, 214 SCRA 159 (1992)]
(Prevailing Jurisprudence has it that in case of creation of a new province, like for example the
creation of ComVal, the Plebiscite should take place to political units directly affected.. It should
take place in Compostela Valley and Davao del Norte)
•
Notes:

Others (requirements)

1. Municipalities must comply with the population, area and income requirements
2. All cities must comply with the income requirement, and the population or area requirement
only
3. Provinces must comply with the income requirement, and the population or area requirement
only
4. While RA No. 9009 increased the income requirement for cities, it made no mention of the
income requirement for highly urbanized cities and provinces, which seemed to have created some
discrepancies

Questions:
1. Is a province made up of one or more islands exempted from the land area requirement?
[Navarro v. Ermita, 648 SCRA 400 (2011)]-YES! Notwithstanding the provisions of the LGC
providing no exemption to the creation of province as to land area requirement.. Prevailing
jurisprudence on the creation of province, city, or municipality composed of islands has it that it
need not comply the land area requirement if they are composed of more than 2 islands.
2. Can a law be passed exempting a city from the income requirement as provided in the Local
Government Code? [League v. COMELEC, 643 SCRA 149 (2011)]-yes the SC allowed it by virtue of
the PLENARY POWER of the Congress… this is allowed despite the provisions of the LGC that “no
Province, City, Municipality can be created unless it shall comply the income requirement…”.. So
Congress can create a LOCALITY not consistent with the LGC by reason of its PLENARY POWERS!!!!
3.

If a city is downgraded from independent component to component city, must a plebiscite
be conducted in the areas affected? [Miranda v. Aguirre, 314 SCRA 603 (1999)]

TYPES OF CITIES
1.

HIGHLY URBANIZED

2.

INDEPENDENT COMPONENT

3.

COMPONENT CITY (TAGUM, PANABO CITY)

MIRANDA CASE- This case involved the Cities of Santiago and Isabela.. After the plebiscite, it
became an independent component city.. However, Congress passed a law downgrading such city
from INDEPENDENT COMPONENT TO COMPONENT CITY without ANY REQUIREMENT OF
PLEBISCITE.. ISSUE: W/N A PLEBISCITE BE HAD BEFORE A CITY CAN BE DOWNGRADED TO
SUCH.. HELD: SC held NO!!!.. A Plebiscite must be had…because the DOWNGRADING will affects
the rights of the inhabitants of such city!!! For instance, inhabitants of an Component need to vote
for the Governor of the Province!! Also is the fact that Ordinances legislated by COMPONENT
CITIES HAVE TO BE REVIEWED BY THE SANGGUNIANG PANLALAWIGAN!!!! SHARING OF TAXES AS
TO RPTs between the Province and the Component Cities… the Governor has administrative
supervision over the mayors of Component Cities…. Hence, PLEBISCITE IS A MUST AS THESE
RIGHTS WILL BE AFFECTED:..
NOW, where will be the Plebiscite take place? In the entire city? Or Province? This has not been
settled for the moment… observation has it however that all inhabitants in the city and province will
be affected by these.. STRANGE!!!
Bar Question 2011:
•

31. The Metro Manila Development Authority (MMDA) passed a rule authorizing traffic
enforcers to impound illegally parked vehicles, for the first offense, and confiscate their
registration plates for the second. The MMDA issued this rule to implement a law that
authorized it to suspend the licenses of drivers who violate traffic rules. Is the MMDA rule
valid?

(NOTE: MMDA IS NOT A LOCAL GOVERNMENT UNIT.. CONSEQUENTLY IT HAS NO POLICE POWER)
HOWEVER IT CAN PASS A RULE PURSUANT TO A LAW AUTHORIZING THE SAME… HOWEVER, IN
THE INSTANT CASE, THERE IS NO SUCH LAW..

A. No, since the MMDA does not have rule-making power.
B. Yes, it is a valid exercise of the power of subordinate legislation.
C. Yes, it is an implicit consequence of the law upon which it acted.
D. No, the rule goes beyond the sphere of the law. (NOTE: MMDA IS NOT A LOCAL
GOVERNMENT UNIT.. CONSEQUENTLY IT HAS NO POLICE POWER) HOWEVER IT CAN PASS A RULE
PURSUANT TO A LAW DIRECTLY AUTHORIZING THE SAME… HOWEVER, IN THE INSTANT CASE,
THERE IS NO SUCH LAW..
NOTE ALSO THAT IT HAS BEEN HELD THAT MMDA HAS NO POWER TO PROHIBIT THE
ESTABLISHMENT OR OPERATION OF PRIVATE TERMINALS… IT HAS NO POLICE POWER..
IT HAS NO RULE-MAKING POWER..
TOPIC C:
C. Principles of Local Autonomy
1. Constitutional Provision:
Art. X, Sec. 2: The territorial and political subdivision shall enjoy local autonomy.
2. Autonomy and Decentralization
In Limbona v. Mangelen, 170 SCRA 786 (1989) the Court made this distinction:
Now, autonomy is either decentralization of administration or decentralization of
power (REAL AUTONOMY).
•

NOTE THE DISTINCTION

•

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of
government power and in the process to make local governments "more
responsive and accountable," "and ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate
on national concerns. The President exercises "general supervision" over them, but only
to "ensure that local affairs are administered according to law." xxx

Decentralization of power (real autonomy), on the other hand, involves an abdication of
political power in the favor of local governments units declared to be autonomous. In that
case, the autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. According to a constitutional author,
decentralization of power amounts to "self-immolation," since in that event, the autonomous
government becomes accountable not to the central authorities but to its constituency.
Classic Example is the Autonomous Regions like the ARMM.. Generally, all powers are conferred to
them by the National Government except: they don’t have
1.

National Defense Power.. They cannot have their own army!!

2.

Foreign Affairs Power… they don’t have their own ambassadors

3. What kind of autonomy was given to LGU’s?

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art.
X, sec. 2] refers to the administrative autonomy of local government units or, cast in more
technical language, the decentralization of government authority [Villegas v. Subido, 37 SCRA
1; Cordellera Board Coalition v. COA, 181 SCRA 495 (1990)]-refers to DECENTRALIZATION OF
ADMINISTRATION OR ADMINISTRATIVE DECENTRALIZATION!!!
THERE IS STILL A QUARREL NOW AS TO WHAT HAS BEEN REALLY DECENTRALIZED OR

HAS NOT BEEN!!!! JUST TAKE A LOOK TO THE PROVISIONS OF THE LOCAL GOVERNMENT
CODE TO DETERMINE THE SAME
4. Fiscal Autonomy
Art. X, Sec. 6: The local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.
NOTE: THIS PROVISION IS ALMOST THE SAME WITH THE FISCAL AUTONOMY ENJOYED BY THE 3
BRANCHES OF THE GOVERNMENT!!
Bar Question 1999, No. 5
Define devolution with respect to local government units. (DEVOLUTION-Part of the
decentralization of administration)

Sec. 17 (e) of the Local Government Code defines devolution as the act by which the National
Government confers power and authority upon the various local government units to perform
specific functions and responsibilities. (so it is really a decentralization!!)
Province of Batangas v. Romulo, may 27, 2004:
•

Section 6, Article X of the Constitution reads: “. Local government units shall have a just
share, as determined by law, in the national taxes which shall be automatically released to
them.” Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of
10 percent of the LGUs' IRA "pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal situation" in the
country?

2007 Bar Question, No 8:
The Provincial Governor of Bataan requested the Department of Budget and Management
(DBM) to release its Internal Revenue Allocation (IRA) of P100 million for the current budget year.
However, the General Appropriations Act provided that the IRA may be released onIy if the
province meets certain conditions as determined by an Oversight Council created by the President.
Is this requirement valid?
HELD: No! this violated the LOCAL (FISCAL) AUTONOMY OF LOCAL GOVERNMENT UNITS.. THIS
AMOUNTS TO IMPOSING CONDITIONS ON THE IRA.. SETTLED IS THE RULE THAT THE IRA HAS TO
BE RELEASED AUTOMATICALLY!!! YOU CANNOT IMPOSED CONDITIONS TO IT BEFORE ITS
RELEASE!!!
YOU CANNOT REQUIRE THE LGU TO SUBMIT REPORT AS TO THE EXPENDITURES OF IRA BEFORE
IT CAN BE RELEASED!!! IT CANNOT BE DONE!!!
TOPIC D:
D. Powers of Local Government Units (LGUs)
(PET CL)
a. Police Power (General Welfare Clause) (VALID SUBJECT AND VALID PURPOSE
REQUIREMENT)
b. Eminent Domain
c. Taxing Power
d. Closure and Opening of Roads
e. Legislative Power
(1) Requisites for Valid Ordinance
(2) Local Initiative and Referendum
All powers of a local government unit are delegated. In the absence of a provision in the Local
Government Code, its Charter or another statute, no power may be exercised. The Constitution
itself is silent, except as to sources of revenue. This means that no power directly emanates from
the fundamental law. However, where there is a clear grant of power, others may be implied for as

long as they are reasonably proper to give effect to the express power or the purpose of the
creation of the LGU (IMPLIED POWERS).
•

MEMO!

Basic Principles:
1. As between the Central Government and an LGU, in case of doubt it is construed in favor of
the latter. IN VIEW OF [principle of (LOCAL) autonomy] (AS TO W/N THE LGU IS CONFERRED WITH
POWER)
2. As between the LGU and the individual, it is construed in favor of the former. IN VIEW OF
[presumption of constitutionality] (BECAUSE THE EXERCISE OF POWER OF THE LGU ENJOYS THE
PRESUMPTION OF REGULARITY OR CONSITITUITONALITY)
TOPIC D(1):
(1) Police Power:
Bases of exercise:
a. General Welfare Clause: MEMO THIS!!!
Section 16. General Welfare. – “Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. xxx
Within their respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.”
The General Welfare Clause is very important!!! This is the primary basis of local ordinances!! Note
also the Social Justice Clause!!
b. Social Justice Clause:
The Municipality of Makati passed a resolution authorizing a Burial Assistance program of
P500.00 to those whose income do not exceed P2,000. The COA disallowed disbursement. Is the
resolution valid? Binay v. Domingo, 201 SCRA 511 (1991)
The same is valid!!! The SC validated the same on the basis of Social Justice Clause!!!
Cash Transfer Program of DSWD is based on Social Justice which has been ruled to be valid under
the Social Justice Clause
TOPIC (D) (2):
(2). Eminent Domain
Section 19. Eminent Domain. – “A local government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose
or welfare for the benefit of the poor and the landless, upon payment of just compensation,
pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the
power of eminent domain may not be exercised unless a valid and definite offer has been
previously made to the owner, and such offer was not accepted:
Note that the Sangguniang Panlalawigan cannot REVERSE the ordinance of the SB authorizing the
expropriation proceedings except when it is ULTRA VIRES!! MEANING WHEN IT IS BEYOND LGU
POWER!! But note that LGU is conferred with the POWER OF EMINENT DOMAIN… SO in the end,
ordinance of the SB authorizing the expropriation proceedings can never be REVERSED on the
ground of ULTRA VIRES!!! BUT LGU has to endorse said ordinance to SP as strictly required by the
Local Government Code

Provided, further, That the local government unit may immediately take possession of the
property upon the filing of the expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be
paid for the expropriated property shall be determined by the proper court, based on the fair
market value at the time of the taking of the property.”
i. Requisite for exercise:
1. Exercised by the local chief executive acting pursuant to a valid ordinance (not pursuant to a
Resolution); the barangay can institute expropriation proceedings the BARANGAY CHIEF
EXECUTIVE!!
2. For public use or welfare, for the benefit of the poor and the landless; Usually for socialized
housing!!
3. Only after a valid and definite offer had been made to and not accepted by the owner.
4.

Follow priority of acquisition in the Urban Development and Housing Act [Estate v.
City of Manila, 422 SCRA 551 (2004)] (if the purpose is socialized housing) Private property
the last priority under that law to be expropriated!!! Expropriate and exhaust first public
property!!

Some reminders:
1. Amount required for issuance of writ of possession.
Under the LGC, at least fifteen percent (15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated.. Under the Rules of Court, it is the Full
Value of the property based on the Assess Value for taxation purposes!
Now, if it is the LGU expropriating, apply the Local Government Code.. If otherwise, like NPC
others, you apply the RULES OF COURT!!
2. Time of reckoning for just compensation. [City of Cebu v. Sps. Dedamo, 381 SCRA 754
(2002)]
Under the LGC, the amount to be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the taking of the property.. Under
the Rules of Court, , the amount to be paid for the expropriated property shall be determined by
the proper court, based on the fair market value at the time of the taking or the time of filing
of expropriation, which ever comes first!!! Take Note!!! mOreover, in case of LGU, noteworthy
is the fact that Substantive law prevails over procedural law. Hence, LGC should apply!!!
TOPIC D (3):
3. Taxation
Part of Review in Taxation: Local Taxation
1999 Bar Question, No. 5:
Under the 1987 Constitution, what are the main sources of revenues of local government units?
[Taxes, Charges and Fees]
[Taxes, Charges and Fees]
1987 Bar Question , No. 5:
State whether or not the following city ordinances are valid and give reasons in support of your
answer.
a. An ordinance prescribing the use of local dialect as medium of instruction in the primary
grades.- INVALID!>>>the Rule is that FILIPINO IS THE MEDIUM OF INSTRUCTION UNLESS
OTHERWISE PROVIDED FOR BY LAW! Only Congress can abolish the same by means of a law… it
cannot be done through an Ordinance!! However, Auxiliary medium of instruction can be done
in LOCAL DIALECT AND NOT AS THE PRINCIPAL MEDIUM OF INSTRUCTION!!!

b. An ordinance imposing a special assessment on business establishment to raise funds for
construction and maintenance of roads in a private subdivision.- INVALID!! PUBLIC FUNDS CANNOT
BE USED FOR PRIVATE PURPOSE!!!
c. An ordinance prohibiting barbershop operators from rendering massage service to their
customers in a separate room. VALID>>> TO PROTECT MORALS.. NOT UNDULY OPRESSIVE!!!
TOPIC (D) (4) :
4. Closure and Opening of Roads
Section 21. Closure and Opening of Roads. •

(a) A local government unit may, pursuant to an ordinance, permanently or temporarily
close or open any local road, alley, park, or square falling within its jurisdiction: Provided,
however, That in case of permanent closure, such ordinance must be approved by at least
two-thirds (2/3) of all the members of the sanggunian, and when necessary, an adequate
substitute for the public facility that is subject to closure is provided.

•

(b) No such way or place or any part thereof shall be permanently closed without making
provisions for the maintenance of public safety therein. A property thus permanently
withdrawn from public use may be used or conveyed for any purpose for which other real
property belonging to the local government unit concerned may be lawfully used or
conveyed: Provided, however, That no freedom park shall be closed permanently without
provision for its transfer or relocation to a new site.

•

National road……

•

(c) Any national or local road, alley, park, or square may be temporarily closed
(note: NO POWER TO PERMANENTLY CLOSE THE SAME) during an actual emergency, or
fiesta celebrations, public rallies, agricultural or industrial fairs, or an undertaking of public
works and highways, telecommunications, and waterworks projects, the duration of which
shall be specified by the local chief executive concerned in a written order: Provided,
however, That no national or local road, alley, park, or square shall be temporarily closed for
athletic, cultural, or civic activities not officially sponsored, recognized, or approved by the
local government unit concerned.

•

(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close
and regulate the use of any local street, road, thoroughfare, or any other public place where
shopping malls, Sunday, flea or night markets, or shopping areas may be established and
where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold
and dispensed to the general public.

Bar Question 1990, No. 8:
XYZ, a corporation organized under the laws of Hongkong, with 100% foreign equity, obtained
from the SEC a license to operate a prawn hathcery projects on a piece of land leased from the City
of Dagupan. The land was formerly a park and plaza belonging to the city and was converted by
the city to derive much needed funds.
1. May the City of Dagupan lawfully convert the park to praawn ponds and lease the same?
Explain.
YES!! IT CAN BE CLOSED PERMANENTLY!! A local government unit may, pursuant to an
ordinance, permanently or temporarily close or open any local road, alley, park, or square falling
within its jurisdiction. Hence the CITY OF DAGUPAN MAY LAWFULLY CONVERT THE PARK TO PRAWN
PONDS AND LEASE THE SAME IN ITS PROPRIETARY FUNCTIONS!!
2. May the City of Dagupan and XYZ corporation validly enter into a lease contract for the
prawn ponds? Answer with reasons. YES! REMEMBER that a Municipal Corporations has dual
personality… it can act its proprietary functions… it is not covered by the constitutional prohibitions
as the subject said property ceases already to be a lands of Public Domain.. As such, Foreign
Corporations can lease the same from the City of Dagupan
Cebu Oxygen v. Berceles, 66 SCRA 481
Bar Question 1997, No. 9:

Due to over-crowding in the public market in Paco, Manila, the city council passed an ordinance
allowing the lease to vendors of parts of the streets where the public market is located, provided
that the lessees pay the city government a fee of P50,000 per square meter of the area occupied
by them. The residents of the area complained to the Mayor that the lease of public streets would
cause serious traffic problems to them. The Mayor cancelled the lease and ordered the removal of
the stall constructed on the streets, Was the act of the Mayor legal?
The principle is that the LGU cannot lease a portion of its PUBLIC street without permanently
closing it!!.. In the instant case, there was no approval of at least 2/3 of the SP declaring the
permanent closure thereof… consequently, the street did not cease to be a public property… hence
it is outside the commerce of man.. It cannot be subject to lease.. There should have been valid
conversion thereof!!!
TOPIC D (5):
5. Legislative Power
(a) Requisites for Valid Ordinance
(b) Local Initiative and Referendum
TOPIC D (5):
e. Legislative Power (IN GENERAL)
i. Who exercise it?
•

Section 48. Local Legislative Power. - Local legislative power shall be exercised by the
sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the
sangguniang bayan for the municipality; and the sangguniang barangay for the barangay.

1.

the sangguniang panlalawigan for the province;

2.

the sangguniang panlungsod for the city;

3.

the sangguniang bayan for the municipality; and

4.

the sangguniang barangay for the barangay.

•

Section 49. Presiding Officer. -

•

(a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the
sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding
officer shall vote only to break a tie.

1.

The vice-governor shall be the presiding officer of the sangguniang panlalawigan;

2.

the city vice-mayor, of the sangguniang panlungsod;

3.

the municipal vice-mayor, of the sangguniang bayan; and

4.

the punong barangay, of the sangguniang barangay.

The presiding officer shall vote only to break a tie
OBSERVE THE distinction of the presiding officer herewith with those of the Senate and the Lower
House!!!.. Under the constitution, the Senate President or the House Speaker is the presiding
officer of the respected houses.. Note also that in the National Structure, they have bicameral
structure, the lower and the senate… here, we follow the unicameral structure
ii.

Procedure for Approval

Section 54. Approval of Ordinances. •

(a) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan shall be presented to the provincial governor or city or municipal mayor,
as the case may be. If the local chief executive concerned approves the same, he shall affix
his signature on each and every page thereof; otherwise, he shall veto it and return the

same with his objections to the sanggunian, which may proceed to reconsider the same. The
sanggunian concerned may override the veto of the local chief executive by two-thirds (2/3)
vote of all its members, thereby making the ordinance or resolution effective for all legal
intents and purposes.
(b) The veto shall be communicated by the local chief executive concerned to the sanggunian
within fifteen (15) days in the case of a province, and ten (10) days in the case of a city or a
municipality; otherwise, the ordinance shall be deemed approved as if he had signed it.
iii. Grounds for Veto
•

Section 55. Veto Power of the Local Chief Executive. -

•

(a) The local chief executive may veto any ordinance of the sanggunian panlalawigan,
sangguniang panlungsod, or sanggunian bayan on the ground that it is ultra vires or
prejudicial to the public welfare, stating his reasons therefor in writing.

Note the grounds for VETO:
1.

ULTRA VIRES (beyond the power of the local legislative department)

2.

PREJUDICIAL TO THE PUBLIC WELFARE (very broad like that of the President!!)

Note that the grounds for Veto of the President is not provided for by the Constitution.. Hence, it
can be said that he has more grounds to veto… as compared to LCE which is limited to the
aforementioned 2 grounds..
•

(b) The local chief executive, except the punong barangay, shall have the power to veto
any particular item or items of an appropriations ordinance, an ordinance or resolution
adopting a local development plan and public investment program, or an ordinance directing
the payment of money or

•

Taking a look at the provisions above, the PUNONG BARANGAY has no VETO POWER for
obvious reason that HE IS THE PRESIDING OFFICER OF Sangguniang Barangay!! Otherwise,
absurdity results..

•

creating liability. In such a case, the veto shall not affect the item or items which are not
objected to. The vetoed item or items shall not take effect unless the sanggunian overrides
the veto in the manner herein provided; otherwise, the item or items in the
appropriations ordinance of the previous year corresponding to those vetoed, if
any, shall be deemed reenacted.

Note that the ITEM VETO POWER of the President applies only to appropriation, tariff or renenue
bills…. Here, the LCE has ITEM veto power of the LCE may be had on
1.

appropriation ordinances or

2.

an ordinance or resolution adopting a local development plan and public investment
program,

3.

or an ordinance directing the payment of money or creating liability!!

NO MENTION THAT LCE CAN VETO REVENUE ORDINANCES!! IT IS NOT SUBJECT TO ITEM VETO BY
THE LCE!!
•

(c) The local chief executive may veto an ordinance or resolution only once. The sanggunian
may override the veto of the local chief executive concerned by two-thirds (2/3) vote of all
its members, thereby making the ordinance effective even without the approval of the local
chief executive concerned.

IV. Review by Sangguniang Panlungsod
•

Section 56. Review of Component City and Municipal Ordinances or Resolutions by the
Sangguniang Panlalawigan.

•

(a) Within three (3) days after approval, the secretary to the sanggunian panlungsod or
sangguniang bayan shall forward to the sangguniang panlalawigan for review, copies of

approved ordinances and the resolutions approving the local development plans and public
investment programs formulated by the local development councils.
(b) Within thirty (30) days after the receipt of copies of such ordinances and resolutions, the
sangguniang panlalawigan shall examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial
attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the
documents, inform the sangguniang panlalawigan in writing of his comments or
recommendations, which may be considered by the sangguniang panlalawigan in making its
decision.
•

(c) If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the
power conferred upon the sangguniang panlungsod or sangguniang bayan concerned
(ULTRA VIRES), it shall declare such ordinance or resolution invalid in whole or in
part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise
the corresponding city or municipal authorities of the action it has taken.

•

(d) If no action has been taken by the sangguniang panlalawigan within thirty (30) days
after submission of such an ordinance or resolution, the same shall be presumed consistent
with law and therefore valid.

•

Note that these provisions apply only in so far as component cities and municipalities
are concerned!! This does not apply to HIGHLY URBANIZED CITIES AND INDEPENDENT
COMPONENT CITIES!!

•

This can be related to what happen to the tax ordinance passed by the City of Tagum.. It
forwaded the same to the Sangguniang Panlalawigan for review.. Surprisingly, the Provincial
SP had it forwarded back to the City Sangguniang with a comment/or suggestion for
rectification.. The problem now is that the City is committed to implement the same since
SP has not declare the same to be invalid and taking into consideration that it has not been
acted by the SP within 30 days from submission thereof.. It only commented for
rectification..!! The problem now arises as there was no clear statement of the SP as to
whether or not IT DECLARED SUCH ORDINACE INVALID IN WHOLE IN PART!! BUT NOTE
HOWEVER IT CANNOT BE SAID THAT THE SAID ORDINANCE ENJOYS THE PRESUMPTION OF
VALIDITY SINCE THERE WAS AN ACTION FROM THE SP DURING THAT PERIOD WHEN IT
FORWARDED THE SAME WITH A COMMENT FOR RECTIFICATION.. WHILE THERE WAS NO
DECLARATION OF DISAPPROVAL, THERE WAS AN ACTION MADE BY THE SP WHEN IT
FORWARDED BACK THE SAME WITH THE SAID COMMENT FOR RECTIFCATION!!! THIS IS A
BIG PROBLEM!!!

Bar Question 1996, No. 12:
1. How does the local legislative assembly override the veto of the local chief executive of an
ordinance? BY ¾ VOTE!! 2/3 VOTE !!!
2. On what grounds can a local chief executive veto an ordinance?
•

ULTRA VIRES (beyond the power of the local legislative department)

•

PREJUDICIAL TO THE PUBLIC WELFARE

3. How can an ordinance vetoed by a local chief executive become a law without it being
overridden by the local legislative assembly?
2 possible answers!!
1.

When the LCE vetoes an ordinance for the 2nd Time… because he is only allowed to veto
once!! His 2nd veto can be considered null and void!!!

2.

When the LCE failed to communicate his veto within fifteen (15) days in the case of a
province, and ten (10) days in the case of a city or a municipality to the concerned
Sanggunian.. Consequently, it is as if the ordinance is approved by him

Bar Question 1993, No. 6:
Mayor Lim closed the funhouses in Ermita district suspected of being fronts for prostitution. To

determine the feasibility of putting up a legalized red light district, the city council conducted an
inquiry and invited operators of the closed funhouses to get their views. No one honored the
invitation. The city council issued subpoenas to compel attendance of the operators but which
were completely disregarded. The council declared the operators guilty of contempt and issued
warrants for their arrest.

1.) Is the council empowered to issue subpoena to compel their attendance?
Note that under the constitutional law, the power to compel attendance and cite for contempt in
case of non compliance is inherent to legislature as it is necessary to effective legislation.. However
as to local government units, its power is only delegated… thus if non is delegated, it cannot
exercise the same.. Under the Local Government Code, they cannot issue subpeoana to compel
attendance!!! They can only issue invitations!!! If the same is not honored, they cannot cite
concerned people in CONTEMPT!! THIS HAS BEEN SETTLED IN THE BELOW JURISPRUDENCE!!!
2.) Does the council have the power to cite for contempt?
Negros Oriental v. Sanggunian, 155 SCRA 421
TOPIC D (5) (1) memo this!!!
(1) Requisites for Valid Ordinance
a. does not contravene a statute or the Constitution
b. not unfair or oppressive (to other rights)
c. not discriminatory (should not violate equal protection clause)
d. not prohibit but regulate trade (note the beltran decision prohibiting the operation of
private blood banks as an exception to the GR>) apparently, such exception applies only to laws
passed by congress…. Local ordinance cannot prohibit trade!!! For instance, an ordinance providing
that only 5 tricycle franchises shall be issued.. It will amount to prohibition actually since after the
issuance of 5 franchises, nothing will be had amounting to prohibition.. While it seems to be
regulating the franchise, in the end you are prohibiting already!! hence, it will not be valid
ordinance!! …. Valid regulation would be giving respective routes to franchise applicants!!!
e. consistent with public policy, and (equality of men and women)
f. reasonable [Magtajas v. Pryce, 234 SCRA 255 (1994)] memo this!!!
Magtajas v. Pryce, 234 SCRA 260 (1994) The the ordinance of Cagayan de Oro City prohibited
the operation of casinos by the Philippine Gaming and Amusement Corporation, which has been
specifically authorized by PD 1869 to regulate gambling. Is it valid?
NOT VALID ORDINANCE!!!. IT MUST NOT CONTRAVE THE STATUTE!! IF A LAW AUTHORIZES THE
SAME, AN ORDINANCE CANNOT PROHIBIT IT!!! IF THE LAW PROHIBITS IT, THE ORDINANCE
CANNOT ALLOW IT!!!
Tano v. Socrates, 218 SCRA 154 (1997)
The City of Puerto Princesa and the Province of Palawan, respectively, passed ordinances
banning the shipment of live fish and lobsters outside the city and prohibiting the
catching and selling of corral dwelling aquatic organisms in Palawan Waters. Is it valid?
IT IS VALID!! IT IS NOT CONTRARY TO ANY LAW PASSED BY CONGRESS!!! WHILE IT SEEMS TO
PROHIBIT, THE LOCAL GOVERNMENT UNIT IS MANDATED TO PROTECT THE ENVIRONMENT!!
Sec. 12 of E.O. No. 79, Series of 2012
LGU shall confine themselves only to the imposition of reasonable limitations on mining
activities conducted within their respective territorial jurisdiction that are consistent
with national laws and regulations.
This can be referred to the ordinance of Provincial Government of South Cotabato prohibiting OPEN
PIT mining… Had the said EO expressly provided the allowance of OPEN PIT MINING, such

ordinance could have been considered illegal as it would contravene the EO!! A cursory reading of
the entire provision of the EO, there seems to be no provisions on WHAT METHODS are allowed or
not allowed!!hence, it can be said that such ordinance violates no law or regulation as it only
regulates the manner of operating mining!!!.. It only prohibits open pit mining!!. It DOES NOT
PROHIBIT MINING AT ALL!!
•

Penalties

Bar Question, 1991
No. 10. The municipality of Alcoy, Cebu, passed Ordinance No. 10 requiring owners of
buildings to keep and maintain them in a sanitary condition, and should they fail to do
so, cause them to be cleared and kept in sanitary condition and the cost thereof to be
assessed against the owner, which cost shall constitute a lien against the property
(VALID EXERCISE OF POLICE POWER… NOT OPPRESSIVE, REASONABLE, WITH VALID
SUBJECT AND PURPOSE BUT THE PENALTY IMPOSED EXCEED TO THAT PROVIDED BY
LAW). It further penalizes violation thereof with a fine not exceeding P1,000.00 or
imprisonment of one (1) year.
Is the ordinance valid?
NO!! IT IS NOT A VALID ORDINANCE!!! A MUNICIPALITY CAN IMPOSE ONLY A PENALTY NOT
EXCEEDING 6 MONTHS!!! TRUST THE AUTHORITY!!!
TOPIC D (5) (b)
5 (b). Legislative Power
(2) Local Initiative and Referendum
Local initiative is the legal process whereby the registered voters of a local government
unit may directly propose, enact or amend any ordinance. [Sec. 120]
Referrendum is the legal process whereby registered voters of the local
government unit may approve, amend or reject and ordinance by the Sanggunian.
i. Procedure: Sec. 120, Local Gov. Code
1.

Petition proposing the enactment, repeal, amendment of ordinance (INITIATIVE): required
number of signatories (registered voters):
1,000 – provinces/cities
100 - municipalities
50 - barangays

to be filed with Sanggunian
This is totally different in Initiative of National Legislation wherein it is required at least 10% of the
registered voters of which at least 3% should come from or represents the legislative district!!
2. If no favorable action is made by the Sanggunian within 30 days, the voters can resort to
initiative. The proposition is prepared and the proponents are given 90, 60, or 30 days, as the
case may be, to collect the necessary signatures. [signed before election registrar]
(e) A referendum of initiative on an ordinance passed in a municipality shall be deemed
validly initiated if the petition therefor is signed by at least ten per centum (10%) of the
registered voters in the municipality, of which every barangay is represented by at least
three per centum (3%) of the registered voters therein. [RA 6735, Sec. 5]
3. If the required number is obtained, the question is submitted for referendum.
4. If majority approves it, the measure takes effect within 15 days after COMELEC certification.
Take note that there is really a difference between the provision of the local government code and
the law providing the Inititiative and Referrendum!!.. So follow the hereunder:
1.

For initiation before the Sanggunian, you need the required signatures prescribed by the

Local Government Code (1000 votes.. Etc)
2.

If not acted upon by the Sanggunian, Gather the signatures of at least 10% of the
registered voters of which at least 3% represents from every barangay in order to submit
the questions to the people!!

3.

It the no. 2 is complied with, we will now have the referendum By which the proposed
legislation shall be approved by majority of the registered voters!! The ordinance shall take
effect WITHIN 15 days after COMELEC CERTIFICATION!!!

Take note! In the constitution, the law passed through initiative or referendum takes effect on the
day of its ratification!!! When it comes to laws pass through congress, it shall take effect 15 days
from publication in the newspaper of general circulation or in the official gazzete
In local legislation through initiative, it shall take effect within 15 days after COMELEC
CERTIFICAITON!!!
ii. Limitations: (local initiative and referendum)
1. It can extend only to matters within the power of the Sanggunian;
2. The power shall not be exercised more than once a year [but 2 or more propositions are
allowed in one initiative]… so a law can be repealed only initiative once a year!!!
Remember the limitations of initiative and referendum in national legislation.
1.

It can extend to any matter except that when there is a law giving emergency powers to the
president which cannot be repealed by initiative within 6 months from the time it takes
effect!!

2.

Laws can be passed through initiative as often as it can be but you cannot amend the
constitution more than once in every 5 years!!!

iii. Repeal:
Sec. 125. Any proposition or ordinance approved through the system of initiative and
referendum as herein provided shall not be repealed, modified or amended by the Sanggunian
concerned within 6 months from the date of the approval thereof, and may be amended, modified
or repealed by the Sanggunian within 3 years thereafter by a vote of ¾ of its members, Provided,
that in the case of the barangays, the period shall be 18 months from the approval thereof.
Freedom Period:
Province, City, Municipality:
-------------/---------------------------------------------/------------6 months

6 months/1 day to 3 years

after 3 years

Barangay:
--------------------/------------------------/-----------18 months

18 months/1 day to 3 years

after 3 years

Garcia v. COMELEC, 237 SCRA 279 (1994)

Can resolutions be the subject matter of initiative and referendum?
The SB of mOrong Bataan passed a resolution joining to the territorial coverage of the SBMA..
There was an initiative to oppose the resolution! HELD: YES!! IT CAN EVEN IF NOT STATED BY
LAW..
TOPIC 6:
6. Corporate Powers
(a) To Sue and Be Sued

(b) To Acquire and Sell Property
(c) To Enter Into Contracts
(i) Requisites
(ii) Ultra Vires Contracts
g. Liability of LGUs
h. Settlement of Boundary Disputes
i. Succession of Elective Officials
6. Corporate Powers
Section 22. Corporate Powers. •

(a) Every local government unit, as a corporation, shall have the following powers:

•

(1) To have continuous succession in its corporate name;

•

(2) To sue and be sued;

•

(3) To have and use a corporate seal;

•

(4) To acquire and convey real or personal property;

•

(5) To enter into contracts; and

•

(6) To exercise such other powers as are granted to corporations, subject to the limitations
provided in this Code and other laws.

a) To sue and be sued:
1. Does the doctrine of state immunity from suit extend to municipal Corporations?
It can sue and be sued! In passing the Local Government Code, the Congress waived
the Immunity from suit supposedly enjoyed by the Local Government Unit. This has been settled by
virtue of the charter of the LGU’s which provide that it can sue and be sued!! It is represented by
the LCE or the Mayor.. You sue the Municipality duly represented by the Mayor!! Remember the
Rules of Civil Procedure when you sue the official in his own official capacity and a new official
assumed the office or takes over the office, the suit may be dismissed unless the old official
continues the Office… the point simply is that the LCE represents the LGU in any suit levelled by or
against it…
2. Who represents the LGU in suits?
City Council v. Cuizon, 47 SCRA 327 (1992): The members of the City Council of Cebu for
themselves and for the City sued the mayor, treasurer and others no nullify a contract for the
purchase of road equipment entered by the mayor. The contract was entered without authorization
by the council. Defendants questioned the capacity of plaintiff to sue? [derivative or representative
suit]
Applying the provisions of the Corporation Code, the plaintiffs can sue by virtue of DERIVATIVE OR
REPRESENTATIVE SUIT!! The members of the corporation can question the acts of the members of
the board.. The members of the City Council of Cebu can file suit questioning the acts of the LCE or
the Executive Department… This is an EXCEPTION to the GENERAL RULE that only the LCE can
represent the LGU in filing a suit…
3. Can an LGU hire a private lawyer to represent it?
Municipality v. CA, 233 SCRA 484 (1994) – not allowed
Province v. IAC, 147 SCRA 447 (1986) - allowed
The Municipality of Tanay filed a suit against Philippine petroleum and it was represented by a
private lawyer. It won the case, got an award and later the lawyer claimed P12 million as his
attorney’s fees which it tried to enforce against the judgment debtor. Can the Municipality validly
hire a private lawyer?
No! the municipality is not allowed to hire private lawyer.. in the end actually, it will be disallowed
by the COA.. THE RULES ARE IN THE FOLLOWING SLIDE!!

Rules:
1. Provinces and cities must have legal officers (MANDATORY); hiring of lawyers by
municipalities is optional; [City Fiscal]
2. Municipalities will be represented by the Provincial Legal Officer; THE MUNICIPALITY CANNOT
HIRE PRIVATE LAWYER.. OTHERWISE, PRIVATE LAWYER CANNOT BE PAID FOR THE SERVICES
THAT MAY BEEN RENDERED!!
3. If disqualified, the Provincial Prosecutor represents the municipality
This happens when the Provincial Legal Officer is in a situation where he is not allowed or cannot
represent the Municipality as when he is a relative to any of the party, or as when the suit is
between the Provincial Government and Municipality… THE PROVINICIAL PROSECUTOR represents
the municipality…
Note that when the City of Panabo was newly created, the City Fiscal represents the City as
provided in its charter…. As experienced by DEAN..
4. If provincial prosecutor is disqualified [suit between province and municipality, or between
executive and legislative of the province] request the Department of Justice to assign an
acting provincial prosecutor or hire a private lawyer .
THIS IS ONLY THE INSTANCE WHERE THE MUNICIPALITY CAN HIRE A PRIVATE LAWYER WITHOUT
BEING DISALLOWED BY COA!!! THIS IS THE ONLY EXTREME MEASURE WHERE PRIVATE LAWYERS
ARE ALLOWED TO BE HIRED..!!
Mancenido v. CA, 330 SCRA 419 (2000)
School teacher filed a case for mandamus to compel payment of their salaries and damages
against the provincial governor and the Sangguniang Panglungsod. The teachers won the case and
the provincial officials filed a notice of appeal through a private counsel. The teachers moved
dismiss the appeal claiming that the province can only be represented by the Provincial Legal
officer, or in his absence the provincial prosecutor. Can they hire private counsel. [Who is sought to
be held liable?]
WHAT REALLY HAPPENED IN THIS CASE WAS THAT THE PLAINTIFFS SUED FOR MANDAMUS AND
DAMAGES AGAINST THE GOVERNOR AND SP MEMBERS IN THEIR PERSONAL CAPACITY… HENCE,
IT WAS RULED BY THE SC THAT THE DEFENDANT PROVINCIAL GOVERNOR AND THE SP MEMBERS
CAN HIRE PRIVATE LAWYERS AS THE OUTCOME OF THE CASE COULD RESULT TO PERSONAL
LIABILITY!!
HELD: CONSIDERING THAT THE PLAINTIFFS ARE SUING FOR DAMAGES, THE DEFENDANTS CAN
HIRE PRIVATE LAWYERS AS THE OUTCOME OF THE CASE COULD RESULT TO THIER PERSONAL
LIABILITY.. OTHERWISE, THE DEFENDANTS COULD BE DEPRIVED OF THEIR PROPERTY
WITHOUTDUE PROCESS OF LAW IF NOT ALLOWED TO HIRE THEIR OWN COUNSEL..
THE RULE IS THAT SUITS FOR MANDAMUS OR INJUCTION, YOU CANNOT HIRE PRIVATE LAWYERS!!
b/c). To Acquire and Sell Property and Enter into Contracts:
Sec. 22 (c) Unless otherwise provided in this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit without prior authorization by the
sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in
the provincial capitol or the city, municipal or barangay hall.
•

Section 23. Authority to Negotiate and Secure Grants. - Local chief executives may, upon
authority of the sanggunian, negotiate and secure financial grants or donations in kind, in
support of the basic services or facilities enumerated under Section 17 hereof, from local
and foreign assistance agencies without necessity of securing clearance or approval therefor
from any department, agency, or office of the national government of from any higher local
government unit: Provided, That projects financed by such grants or assistance with
national security implications shall be approved by the national agency concerned: Provided,
further, That when such national agency fails to act on the request for approval within thirty
(30) days from receipt thereof, the same shall be deemed approved.

•

The local chief executive shall, within thirty (30) days upon signing of such grant agreement
or deed of donation, report the nature, amount, and terms of such assistance to both
Houses of Congress and the President.

1995 Bar Question:
No. 4. What are the conditions under which a local chief executive may enter into a contract in
behalf of his government unit?
i. Conditions for a Valid Contract:
1. The LGU must have the power to enter into the particular contract; THE CONTRACT TO BE
ENTERED INTO MUST BE WITHIN THE POWER OF THE LGU!! EX. LGU CANNOT SELL A NATIONAL
HIGHWAY!!
2. Pursuant to Sec. 22 © the Local Government Code, there must be a prior authorization by
the Sanggunian concerned, and a legible copy of the contract must be posted at a
conspicuous place in the provincial capitol or city, municipal or barangay hall;
c. In accordance with Sec. 46 and 47 of Ch. 8 of the Administrative Code, if the contract
involves the expenditure of public funds, there must be an appropriation therefor and a
certificate of availability of funds by the treasurer of the local government unit.
e. The contract must conform with the formal requisites of written contracts prescribed by law.
(e) Pursuant to Sec. 2068 of the Revised Administrative Code, if a province is a party to a
contract conveying title to real property, the contract must be approved by the
President. Under Sec. 2196 of the Revised Administrative Code, if a municipality is a party to
a contract conveying real property or any interest therein or creating a lien upon it, the
contract must be approved by the provincial governor.
ii. Ultra Vires Contracts:
1. Outside of its corporate powers (EX. SELLING OF A NATIONAL ROAD BY LGU)
2. Outside the scope of the agent’s [executive’s] authority (EX. WHEN THE MAYOR ACTS
OUTSIDE OF THE AUTHORITY GRANTED TO HIM..)
Validity:
Can it be ratified? NO. 1 CANNOT BE RATIFIED BY THE SANGGUNIAN OR COUNCIL BECAUSE IN
THE FIRST PLACE THE LGU HAS NO POWER TO DO SUCH.. BUT AS TO NO.2, IT CAN BE RATIFIED
BY THE COUNCIL BY MEANS OF A RESOLUTION RATIFYING THE CONTRACT ENTERED INTO BY THE
LCE!!
As to the second type, how is it ratified?
1.

EXPRESS RATIFICATION by means of a Sanggunian Resolution..

2.

IMPLIED RATIFICATION.. Provincial Board of Cebu case-- THIS HAPPENS WHEN THE
COUNCIL OR SANNGUNIAN ACCEPTS BENEFITS UNDER THE CONTRACT

TOPIC (D) (7):
Liability of LGUs:
Section 24. Liability for Damages. - Local government units and their officials are not
exempt from liability for death or injury to persons or damage to property.
i. For Torts
-Old Cases:
1. Municipality v. Firme, 195 SCRA 694 (1991)-A man died due to a collision between a jeepney
and a dump truck owned by the municipality of San Fernando. At the time, the dump truck driver
was on his way to the river to haul sands for the repair of a road. Is it liable? (THIS HAPPENED

PRIOR TO EFFECTIVITY OF LGC)
[Is it proprietary or governmental?]
IF THE dump truck driver was on his way to the river to haul sands for the repair of a road, IT IS
PERFORMING A GOVERNMENTAL FUNCTION-HENCE NOT LIABLE
•

2. Torio v. Fontanilla, 85 SCRA 602 (1978)

The municipal council passed a resolution to manage the town Fiesta. It appropriated
amounts for the construction of a stage for the zarzuela. During the night of the fiesta, due to
overweight, the stage collapse killing one person. Is the municipality liable? Are the councilors
liable?
SPONSORING OR MANAGING TOWN FIESTA IS A PROPRIETARY FUNCTION- HENCE, THE LGU CAN
BE HELD LIABLE!!
ARE THE COUNCILORS PERSONALLY LIABLE? NO! THIS PREMISED ON THE SETTLED RULE THAT
THE LGU IS A CORPORATE ENTITY WITH DISTINCT AND SEPARATE PERSONALITY FROM ITS
OFFICIALS OR MEMBERS OF THE SANGGUNIAN.. HENCE NOT PERSONALLY LIABLE!!
As to councilors, Art. 27 of the Civil Code applies only to non-feasance, not to malfeasance or
negligence. They are simply like members of the Board of a private corporation which has a
separate personality.
[Art. 27 provides for the liability of the local government unit for refusal or neglect of officials to
perform duty without just cause.
To summarize, old cases made a distinction between torts [intentional or negligent acts
causing damagee to third persons], between governmental and proprietary acts.
Exceptions: 1. Art. 2189 of the Civil Code, (MUNICIPAL GOVERNMENTS OR LGU) they are liable
for defective conditions of roads under their control and supervision [ ISSUE HERE IS not
ownership] Guilatco v. City, 171 SCRA 382 (1989) (HERE, THE DISTINCTION AS TO W/N THE LGU
EXERCISES PROPRIETARY OR GOVERNMENT FUNCTION IS NOT APPLICABLE) HERE, IF YOU FALL
TO A MANHOLE UNDER THE THE CONTROL AND SUPERVISION OF LGU, THE LATTER CAN BE HELD
LIABLE!! OR WHEN YOU MET ACCIDENT BY REASON OF DEFECTIVE ROAD CONDITIONS..
2. Art. 2180 provides that the state is liable when it acts through a special agent. Paras
says it applies both to the central and local government. It acts through a special agent
when the officer or employee does an act “foreign to his usual duties.” A driver of LGU met
an accident, the former does not act FOREIGN TO HIS USUAL DUTIES!- SO HERE THE DRIVER IS
NOT A SPECIAL AGENT, HE WILL BE HELD PERSONALLY LIABLE!! AND NOT THE LGU!!.. HOWEVER ,
WHEN A CLERK IS MADE TO DRIVE AND MET AN ACCIDENT, THE LGU WILL BE HELD LIABLE!!
•

TAKE NOTE THIS CASE!!

New Case•

Jaime v. Apostol, 572 SCRA 41 (2008)

•

Mayor Miguel of Koronadal, South Cotabato, was on board the Isuzu pick-up truck
driven by Fidel Lozano, an employee of the Municipality of Koronadal assigned to the Mayor,
when it hit and killed a pedestrian. The pick-up truck was registered under the name of
Rodrigo Apostol. The driver borrowed the pick-up truck from Simbulan to bring Miguel to
Buayan Airport at General Santos City to catch his Manila flight. There was no doubt that
Lozano was driving at a very high speed. Is Mayor Miguel or the the Municipality of
Koronadal, as the employer of Lozano, liable for the death of the victim?

•

Held: Mayor Miguel cannot be held liable because it was the Municipality of
Koronadal which was the lawful employer of Lozano at the time of the accident. It
is uncontested that Lozano was employed as a driver by the municipality. That he was
subsequently assigned to Mayor Miguel during the time of the accident is of no moment.
Unfortunately, the municipality may not be sued because it is an agency of the
State engaged in governmental functions and, hence, immune from suit
(SOMETHINGS WRONG HERE, TAKE NOTE THAT THE LGU CAN SUE AND BE SUED).

This immunity is illustrated in Municipality of San Fernando, La Union v. Firme, where this
Court held: It has already been remarked that municipal corporations are suable because
their charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental functions
and can only be held answerable only if it can be shown that they were acting in
proprietary capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant was not acting in governmental
capacity when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot recover. (THERE SEEMS
TO BE CONFUSION BETWEEN SUABILITY AND LIABILITY)
APPARENTLY, SC APPLIED THE DISTINCTION AS TO W/N THE LGU was acting in governmental
capacity when the injury was committed OR IN ITS PROPRIETARY FUNCTION.. IT
DISREGARDED THE EXPRESSED PROVISION ON Liability of LGUs: Section 24. Liability for
Damages. - Local government units and their officials are not exempt from liability for
death or injury to persons or damage to property (WITHOUT ANY DISTINCTIONGOVERNMENTAL OR PROPRIETARY).
2. Liability for Contracts:
-Martin seems to assume that they are liable whether the contract is governmental or
proprietary.
-In the Torio case(FOLLOW THIS ONE.. PREVAILING JURISPRUDENCE) [above] the statement
appears that municipal corporations are liable in their proprietary functions, ex contract and ex
delicto.
NOTE: IF THE CONTRACT ENTERED INTO BY THE LGU IS PROPRIETARY, IT WAIVES ITS IMMUNITY
FROM SUIT.. HENCE LIABLE.. DISTINCTIONS MUST BE HAD
City v. IAC, 179 SCRA 428 (1989):
The City of Manila owns a burial ground and it leased a portion of the same for 50 years to
Irene Sto. Domingo. Believing that the lease was only for 5 years, the city mayor ordered the
bodies exhumed after the period and proceeded to lease the property to another who also turned it
into a burial ground. Is the city liable for damages. [patrimonial property – liable to third persons
ex contracto]
TAKE NOTE THAT OPERATING A CEMETERY IS NOT GOVERNMENTAL FUNCTION.. IT IS ACTUALLY
PATRIMONIAL IN NATURE.. HENCE LIABLE TO THIRD PERSON EX CONTRACTO!!
Province v. IAC, 147 SCRA 451 (1987)
An LGU is liable for accepting benefits under a contract for legal services which was improperly
entered into by the governor, without objection from the Sanggunian.
-also liable for implied contracts… THIS IS A CLEAR CASE OF IMPLIED RATIFICATION WHEN THE
SANGGUNIAN ACCEPTS BENEFITS UNDER THE CONTRACT..
-Enforcement of Decisions:
1.

As to property – not subject to execution, except property held in its proprietary capacity
[Toco v. Municipal Council of Iloilo, 49 Phil. 52] NOTE THE EXCEPTION THAT PROPERTIES
HELD BY IN ITS LGU’S PROPRIETARY CAPACITY CAN BE SUBJECT TO EXECUTION!!

2.

As to funds – not subject to execution, except if there was a prior appropriation ordinance.
[Pasay City v. CFI,132 SCRA 156]

Nessia v. Fermin, 220 SCRA 615 (1993)
A case was filed against the mayor to compel him to approve travel expenses of an employee
incurred in his official capacity. The mayor anchored his defense on the ground that there was no
appropriation for the amount.
“IF THE municipal mayor fails or refuses to make the necessary appropriations, petitioner may
bring an action against the municipality for the recovery of what is due them and after

securing a judgment therefor, seek a writ mandamus against the municipal council and
the municipal mayor to compel the enactment and approval of the appropriation
ordinance necessary therefor.”
FILE MANDAMUS!! TAKE NOTE THIS CASE!!
•

Municipality v. Dumdum, 616 SCRA 315 (2010)

•

Plaintiff, a businesswoman, entered into a contract with the Municipality of Hagonoy,
Bulacan for the sale of 21 surplus motor vehicles worth P5,820,000.00.
However, despite
having made several deliveries, the municipality failed to pay. Subsequently, the trial
court issued a writ of preliminary attachment directing the sheriff "to attach the
estate, real and personal properties" of the municipality. Is the municipality immune
from suit? Can a writ of preliminary attachment be issued against it?

•

Held: The general rule spelled out in Section 3, Article XVI of the Constitution is that the
state and its political subdivisions may not be sued without their consent. In the case of
LGUs, consent is given in Book I, Title I, Chapter 2, Section 22 of the Local Government
Code of 1991, which vests local government units with certain corporate powers --one of
them is the power to sue and be sued. But suability is distinct from liability. Where
the State gives its consent to be sued by private parties either by general or
special law, it may limit claimant's action "only up to the completion of
proceedings anterior to the stage of execution". The functions and public services
rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects. With this in
mind, the Court holds that the writ of preliminary attachment must be dissolved. It
is useless and unnecessary under the premises, since the property of the municipality
may not, in the event that plaintiff's claim is validated, be subjected to writs of
execution and garnishment -- unless, of course, there has been a corresponding
appropriation provided by law.

•

THE PROPERTIES OF THE LGU HERETO CANNOT BE SUBJECT TO EXECUTION NOR
TO A PRELIMINARY ATTACHMENT!!

•

Bar Questions:

Bar Question, 2011
•

72. A collision occurred involving a passenger jeepney driven by Leonardo, a cargo truck
driven by Joseph, and a dump truck driven by Lauro but owned by the City of Cebu.
Lauro was on his way to get a load of sand for the repair of the road along Fuente
Street, Cebu City. As a result of the collision, 3 passengers of the jeepney died. Their
families filed a complaint for damages against Joseph who in turn filed a third party
complaint against the City of Cebu and Lauro. Is the City of Cebu liable for the tort
committed by its employee?

•

A. The City of Cebu is not liable because its employee was engaged in the
discharge of a governmental function. (NOTE THAT WE STILL HAVE TO MAKE
DISTINCTION NOTWITHSTANDING THE PROVISIONS OF THE LGC)

•

B. The City of Cebu is liable for the tort committed by its employee while in the discharge of
a non-governmental function.

•

C. The City of Cebu is liable in accord with the precept of respondeat superior.

•

D. The City of Cebu is not liable as a consequence of its non-suitability.

•

Bar Question, 2009: IV

•

The Municipality of Pinatukdao is sued for damages arising from injuries sustained by
a pedestrian who was hit by a glass pane that fell from a dilapidated window
frame of the municipal hall. The municipality files a motion to dismiss the complaint,
invoking state immunity from suit. Resolve the motion with reasons. (3%)

•

MOTION MUST BE DENIED.. LGU CAN BE SUED PURSUANT TO THE LGC PROVISIONS..
SUABILITY IS NOT ANYMORE AN ISSUE!! HOWEVER, AS TO ITS LIABILITY, WE MAY APPLY

THE PROVISIONS ON DEFECTIVE CONDITIONS OF ROAD UNDER ITS CONTROL AND
SUPERVISION TO HOLD THE LGU LIABLE!!
1994, No. 6:
Johnny was employed as a driver by the Municipality of Calumpit, Bulacan. While driving
recklessly a municipal dump truck with its load of sand for the repair of municipal
streets, Johnny hit a jeepney. Two passengers of the jeepney were killed.
1. Is the municipality liable for the negligence of Johnny? WE MUST FOLLOW THE PREVAILING
JURISPRUDENCE!! MAKE A DISTINCTION!! IF ENGAGED IN GOVERNMENTAL FUNCTION, THE LGU
IS NOT LIABLE!!
2. Is the municipal ordinance (APPROPRIATING THE PAYMENT OF DAMAGES) valid? NO! YOU
CANNOT APPROPRIATE FUNDS FOR PRIVATE PURPOSE OR FOR PAYMENT TO THE VICTIMS..
•

1994, No. 14:

•

The Municipality of Antipolo expropriated the property of Juan Reyes. The municipal
council appropriated P1,000,000 for the purchase of the lot but the RTC fixed the value of
P2,000,000.

•

1. Can Juan Reyes ask the RTC to garnish the municipality’s account with the Land Bank?
YES BUT ONLY TO THE EXTENT OF 1,000,000.00 THAT HAS BEEN APPROPRIATED!!

•

2. What legal action can Juan Reyes take to collect the balance? FILE A MANDAMUS TO
COMPEL THE LGU THROUGH THE SB FOR THE APPROPRIATION AND SUBSEQUENT RELEASE
OF THE REMAINING BALANCE!!

TOPIC (D) (8):
Settlement of Boundary Disputes
•

Section 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. - Boundary
disputes between and among local government units shall, as much as possible, be
settled amicably. To this end:

•

(a) Boundary disputes involving two (2) or more barangays in the same city or
municipality shall be referred for settlement to the sangguniang panlungsod or
sangguniang bayan concerned.

•

(b) Boundary disputes involving two (2) or more municipalities within the same
province shall be referred for settlement to the sangguniang panlalawigan
concerned.

•

(c) Boundary disputes involving municipalities or component cities of different
provinces shall be jointly referred for settlement to the sanggunians of the
province concerned.

•

(d) Boundary disputes involving a component city or municipality on the one hand
and a highly urbanized city on the other, or two (2) or more highly urbanized
cities, shall be jointly referred for settlement to the respective sanggunians of the
parties.

•

(

•

e) In the event the sanggunian fails to effect an amicable settlement within sixty (60)
days from the date the dispute was referred thereto, it shall issue a certification to
that effect. Thereafter, the dispute shall be formally tried by the sanggunian
concerned which shall decide the issue within sixty (60) days from the date of the
certification referred to above.

•

HOW ABOUT BOUNDARY DISPUTES BETWEEN 2 PROVINCES- MAYBE YOU GO TO A
REGULAR COURTS FOR RESOLUTION!!! BECAUSE THE LAW IS SILENT FOR THAT!!

•

Section 119. Appeal. - Within the time and manner prescribed by the Rules of Court, any
party may elevate the decision of the sanggunian concerned to the proper Regional Trial

Court having jurisdiction over the area in dispute. The Regional Trial Court shall
decide the appeal within one (1) year from the filing thereof. Pending final resolution
of the disputed area prior to the dispute shall be maintained and continued for all legal
purposes.(REMAIN STATUS QUO!!)
•

The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof- SOMETHING IS WRONG HERE… THE CONSITUTION MANDATES RTC TO
DISPOSE A CASE WITHIN 90 DAYS… MOREOVER, THE CONGRESS CANNOT BY
MEANS OF A LAW INTRUDE THE RULE MAKING POWER OF THE JUDICIARY!! MUCH
LESS AMENDING THE CONSTITUTION!!!

Bar Question, 1999, No. 5
What body or bodies are vested by law with the authority to settle disputes involving?
a. two or more towns within the same province… CODAL ANSWER
b. two or more highly urbanized cities
CODAL ANSWER
Bar Question, 2005, No. 10 •

(1.) There was a boundary dispute between Dueñas, a municipality, and Passi, an
independent component city, both of the same province. State how the two local
government units should settle their boundary dispute. (5%)

•

CODAL ANSWER!! IT SHALL BE SETTLED BEFORE THE SANGGUNIANG PANLALAWIGAN OF
THE PROVINCE!!!

•

LOCAL GOVERNMENT

PART II
Outline of Topics: Based on 2012 Bar Syllabus
A. Public Corporations
1. Concept
(a) Distinguished from Government-Owned or
Controlled Corporations (GOCCs)
2. Classifications
(a) Quasi-Corporations
(b) Municipal Corporations
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation, Conversion, Division,
Merger or Dissolution
C. Principles of Local Autonomy
D. Powers of Local Government Units (LGUs)
1. Police Power (General Welfare Clause)
2. Eminent Domain

3. Taxing Power
4. Closure and Opening of Roads
5. Legislative Power
(a) Requisites for Valid Ordinance
(b) Local Initiative and Referendum
6. Corporate Powers
(a) To Sue and Be Sued
(b) To Acquire and Sell Property
(c) To Enter Into Contracts
(i) Requisites
(ii) Ultra Vires Contracts
7. Liability of LGUs
8. Settlement of Boundary Disputes
9. Succession of Elective Officials
10. Discipline of Local Officials
(a) Elective Officials
(1) Grounds
(2) Jurisdiction
(3) Preventive Suspension
(4) Removal
(5) Administrative Appeal
(6) Doctrine of Condonation
(b) Appointive Officials
11. Recall
12. Term Limits
TOPIC (D) (9):
9. Succession of Elective Officials
a. In the Executive- Governor, Mayor, and Punong Barangay!!
i.

Permanent Vacancies –
i.

fills a higher office,

ii.

refuses to assume,

iii. fails to qualify,
iv. dies,
v.

is removed,

vi.

resigns or

vii. is permanently incapacitated
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and ViceMayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor
or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in
the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest ranking
sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the
case may be. Subsequent vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.
•

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay member or, in case of his permanent inability, the
second highest ranking sanggunian member, shall become the punong barangay.

•

(c) A tie between or among the highest ranking sanggunian members shall be resolved by
the drawing of lots.

•

(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.

•

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills
a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of
his office.

•

For purposes of succession as provided in the Chapter, ranking in the sanggunian shall
be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each district in the immediately
preceding local election. MEMO!

Summary: Vacancies in the Executive
1. Governor or Mayor – Vice succeeds
2. Vice Governor, Vice Mayor or Barangay Captain – Highest ranking sanggunian member (THIS
CAN BE DISTINGUISHED FROM THE PERMANENT VACANCY IN THE OFFICE OF THE VP WHERE THE
PRESIDENT APPOINTS FROM ANYONE FROM THE CONGRESS!! HERE, WE HAVE AUTOMATIC
SUCCESSION OF HIGHEST RANKING SANGGUNIANG MEMBER)
3. Simultaneous vacancies in Offices of Governor and Vice Governor, or Mayor and Vice Mayor –
same as in No. 2
Highest ranking sanggunian member WILL FILL IN… as distinguished from vacancies in the offfice
of Pres and VP where there shall be a special election unless vacancy occurs within 18 months
immediately preceding the election!
•

Temporary vacancies

ii.

Temporary Vacancies – temporary absence for physical or legal reasons (suspension)

1. the same procedure, but the temporary successor can only appoint, suspend, or
dismiss if the absence exceeds 60 days [What can acting executive do?] as distinguished in
CONSTI LAW where the temporary president can do anything pending the qualification and election
of the president. His acts of appointment is temporary and may be revoked by the REAL
PRESIDENT which must be done within 90 days!! So the Governor can veto ordinances as the
limitation is confined only to appointment, suspension or dismissal of employee..
2. if absence is due to travel within the country not exceeding 3 days, he can designate
somebody. [except power to appoint, suspend or dismiss] this cannot be done and exercise by
one designated
Here there is no automatic succession by the next lower ranking officials!! He can designate any
member of the sangguniang or his administrator!! The law does not tell us who can be designated
3. If he did not designate, No. 2 will come in on the 4th day of his absence
If the mayor did not designate, the vice mayor will fill in on the 4th day of his absence!!
………..Highest ranking sanggunian member WILL FILL IN ..
Victoria v. COMELEC, 229 SCRA 269 (1994)
After the Governor of Albay was suspended and the Vice Governor took over, the latter office
became vacant. SP member Calisin got 28,835 votes in the first district [21.78%, while SP
member Victoria got 32,918 in the second district [21.19%]. Who is the highest ranking entitled to
succession? Must it be based on the number who actually voted or the registered voters?
SP member Calisin who got 28,835 votes in the first district [21.78%,- look at the
percentage votes garnered in his legislative district!!! This is based on the number who actually
voted!!
b. In the Legislative
•

Section 45. Permanent Vacancies in the Sanggunian. -

•

(a) Permanent vacancies in the sanggunian where automatic succession provided above
do not apply shall be filled by appointment in the following manner:

•

(1) The President, through the Executive Secretary, in the case of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and
independent component cities;

•

(2) The governor, in the case of the sangguniang panlungsod of component cities
and the sangguniang bayan;

•

(3) The city or municipal mayor, in the case of sangguniang barangay, upon
recommendation of the sangguniang barangay concerned.

•

(b) Except for the sangguniang barangay, only the nominee of the political party under
which the sanggunian member concerned had been elected and whose elevation
to the position next higher in rank created the last vacancy in the sanggunian
shall be appointed in the manner hereinabove provided. The appointee shall come
from the same political party as that of the sanggunian member who caused the vacancy
and shall serve the unexpired term of the vacant office. In the appointment herein
mentioned, a nomination and a certificate of membership of the appointee from the
highest official of the political party concerned are conditions sine qua non, and any
appointment without such nomination and certification shall be null and void ab initio and
shall be a ground for administrative action against the official responsible therefore.

•

(c) In case or permanent vacancy is caused by a sanggunian member who does not
belong to any political party, the local chief executive shall, upon recommendation of the
sanggunian concerned, appoint a qualified person to fill the vacancy.

•

(d) In case of vacancy in the representation of the youth and the barangay in the
sanggunian, said vacancy shall be filled automatically by the official next in rank of
the organization concerned.

Summary: Vacancies in the Sanggunian
i.

Caused by one with a political party:

1. President, through the Executive Secretary
=Sangguniang panlalawigan
=Sangguniang panlungsod of a highly urbanized city
=Sangguniang panlungsod of an independent component city
2. Governor
=Sangguniang panglungsod of component city
=Sangguniang bayan
3. City/Municipal Mayor
=Sangguniang barangay
IN ALL CASES, HE MUST BE A NOMINEE OF THE POLITICAL PARTY OF THE MEMBER
WHO CAUSED THE VACANCY
Navarro v. Court of Appeals, March 28, 2001
The elected Mayor Calimlim died thus creating a vacancy in his position. By virtue of Section 44
of the Local Government Code, Vice Mayor Aquino succeeded him. Since a vacancy occurred in the
Sangguniang Bayan by the elevation of Tamayo, the highest ranking member of Sanggunian, to the
Vice Mayor's position, the Governor appointed Navarro who belonged to the same party as
that of Tamayo. Private respondents filed an action to nullify the appointment of Navarro arguing
that it was the Vice Mayor who created the permanent vacancy by his death, thus, the appointees
should come from the former Vice Mayor's political party. In the decision of the CA, it concluded
that according to the hierarchy, it was the appointment of the 8th Counselor to the 7th position

which created the vacancy, therefore, the appointee should come from his party. Who caused the
last “vacancy?”
It was held that the first councilor who was elevated to the position of vice mayor, caused the LAST
VACANCY… HENCE, the Governor WAS CORRECT IN appointing Navarro who belonged to
the same party as that of Tamayo…. The vacancy was created by the FIRST COUNCILOR
when he was elevated to Vice mayor position.. Therefore, the one that should be
nominated should come from the party of the first councilor who caused the vacancy!!!
THE RATIONALE OF THIS MEASURE IS TO MAINTAIN THE BALANCE OF PARTY
REPRESENTATION!! OR PARTY REPRESENTATION OR THE WILL OF THE PEOPLE!!
ii. Caused by one with no political party
Farinas v. Barba, 256 SCRA 398 (1996)
When a seat in the SB (INDEPENDENT COMPONENT CITY) became vacant arising from the
death of a member with no political party, the Governor appointed Barba, while the Mayor
appointed Palafox to fill it. Who is the “local chief executive” referred to by the Code?
Held: The appointing authority is the same as in cases where there is a political party.
But in this case, there must be a recommendation from the sanggunian concerned, or
where the vacancy exists.
(THIS CASE REALLY INVOLVED A INDEPENDENT COMPONENT CITY.. HENCE, SC HELD
THAT IT SHOULD BE THE PRESIDENT WHO MUST APPOINT TO FILL IN THE VACANCY
PROVIDED THAT A RECOMMENDATION FROM THE SANGGUNIANG CONCERNED IS HAD
Question: Is the appointing authority limited to those recommended? DISCRETIONARY
•
Held: The appointing authority is not bound to appoint anyone recommended to him by the
Sanggunian. The power to appoint is a discretionary power. On the other hand, neither is the
appointing power vested with so large a discretion that he can disregard the recommendation.
Gamboa v. Aguirre, July 20, 1999
Gamboa was elected Vice-Governor of Negros Occidental. When the Governor was abroad for
an official trip abroad, Gamboa was designated as acting Governor. Can he continue presiding in
the regular sessions of the Sangguniang Panlalawigan despite his designation as Acting Governor?
[LGC does not provide for succession in the office of the Vice Governor in case of temporary
vacancy.] [But Sec. 49 (b) discusses possibility of inability of Presiding Officer.]
NO! HE CANNOT.. SC HELD THAT WHEN YOU ARE ACTING GOVERNOR, YOU ARE REALLY A QUASI
GOVERNOR!! SO YOU CAN NO LONGER EXERCISE THE POWER OF THE VICE GOVERNOR FOR THAT
MOMENT… HE CANNOT PRESIDE THE LEGISLATION AND AT THE SAME TIME VETO THE SAME…
AS TO WHO SHALL PRESIDE THE SP IN VIEW OF THE TEMPORARY DESIGNATION OF THE VG AS
GOVERNOR, THE SANGGUNIANG MEMBERS AMONG THEMSELVES SHALL ELECT THE ACTING
PRESIDING OFFICER
•

Bar Question, 2008 - XI -

•

On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesar succeeded him by
operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang
Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the
office of Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created.

•

How should the vacancy be filed? (3%)

IT MUST BE DISTINGUISHED!! IF THE PERSON WHO CAUSED THE VACANCY IS A MEMBER OF THE
POLITICAL PARTY, THE PRESIDENT SHALL APPOINT UPON RECOMMENDATION OF SUCH POLITICAL
PARTY ANY MEMBER THEREOF..
IF OTHERWISE, A RECOMMENDATION OF THE SANGGUNIANG CONCERNED WHERE THE VACANCY
OCCURRED!!

Bar Question, 2001
No. 14. Suppose A, a Municipal Mayor, went on a sick leave to undergo treatment for a period of 4
months. During that time—
a.

Will B the Municipal Vice Mayor, be performing executive functions? Why? YES!! AS
temporary successor, he can only appoint, suspend, or dismiss if the absence
exceeds 60 days.. Hence he will be allowed in the case at bar…

b. Will B at the same time be also performing legislative functions as presiding officer of the
Sangguniang Bayan? NOT FOR THAT TIME BEING!! HE CANNOT EXERCISE EXECUTIVE
FUNCTIONS AND LEGISLATIVE ONE SIMULTANEOUSLY!!
Bar Question, 2001
No. 15. A vacancy occurred in the Sangguniang Bayan of a municipality when X, a
member died. X did not belong to any political party.
To fill up the vacancy, the provincial governor appointed A upon recommendation of the
Sangguniang Panlalawigan. On the other hand, for the same vacancy, the municipal mayor
appointed B upon the recommendation of the sangguniang bayan.
Which of these appointments is valid?
THE GOVERNOR SHALL APPOINT UPON THE RECOMMENDATION OF THE SANGGUNIANG BAYAN
CONCERNED!!
TOPIC 5 (J):
j. Discipline of Local Officials
(1) Elective Officials
(a) Grounds
(b) Jurisdiction
(c) Preventive Suspension
(d) Removal
(e) Administrative Appeal
(f) Doctrine of Condonation
a.

Grounds

•

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

•

(a) Disloyalty to the Republic of 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 (6YEARS AND 1 DAY OR ABOVE); (THE REASON BEHIND THIS CUT OFF
IS PUNISHMENT BELOW PRISION MAYOR WILL ENTITLE THE OFFICIAL TO PROBATION!!

•

(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; (THESE DOES NOT APPLY TO SANGGUNIANG MEMBERS
BECAUSE THEY ARE ONLY REQUIRED TO REPORT DURING SESSION DAYS!! THIS APPLY TO
MAYOR OR GOVERNOR!!

•

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and (THIS IS IMPORTANT BECAUSE CITIZENSHIP AND
RESIDENCY IS A CONTINUING REQUIREMENTS TO LOCAL ELECTIVE POSITION..
NON COMPLIANCE THEREOF AMOUNTS TO LOSS OF POSITION!!

•

(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.

•

b. Jurisdiction

•

“An elective local official may be removed from office on the grounds enumerated
above by order of the proper court. “- it must be noted that courts have no
adminstrative power and supervision over public officials.. The only administrative
supervision the SC has pertains to its own employees!! The EFFECT is that removal
from office of these public officials may only be had as BOTH PRINCIPAL AND
ACCESSORY PENALTY as a consequence of criminal convictions!! THE PROCEDURE
IS YOU FILE A CRIMINAL ACTION AGAINST THESE PUBLIC OFFICIALS AS THE
OUTCOME THEREOF MAY RESULT TO REMOVAL FROM OFFICE!! NOTE YOU CANNOT
FILE AN ADMIN CASE BEFORE THE SANDIGANBAYAN WHICH IS A SPECIAL
CRIMINAL COURT WITH NO ADMINSITRATIVE JURISDICTION OVER ANYBODY!!

1.

Courts/Sandiganbayan: Sec. 60 says “by order of the proper court”

Apparently as a consequence of conviction for criminal offenses, both as principal or accessory
penalty
•

2. Office of the President

Art. 67 (b): over elective officials of provinces, highly urbanized and independent component
cities.
According to Sec. 67, Decisions of the office of the President are final and executory. But certiorari
is always available…
NOTE THAT “FINAL AND EXECUTORY” CANNOT BE SUBJECT TO ORDINARY APPEAL BUT ALWAYS
SUBJECT TO REVIEW BY MEANS OF CERTIORARI IF THERE IS A GRAVE ABUSE OF DISCRETION!!
3. Sangguniang Panlalawigan
-for municipal officials and component cities (mayor, vice mayor and councilor)
Where do you appeal? YOU APPEAL TO THE OFFICE OF THE PRESIDENT!

Can courts interfere with this power?
Esperito v. Melgar, 206 SCRA 258
The RTC enjoined or restrained the SP from enforcing the latter’s suspension order.
Held: The court cannot interfere in the absence of grave abuse of discretion. The
remedy is an appeal to the Office of the President. [Exhaustion of Administrative Remedies]
YOU HAVE TO Exhaust ALL Administrative Remedies BEFORE YOU CAN GO TO COURT!!
NOTE THAT DECISION OF THE OFFICE OF THE PRESIDENT IS APPEALABLE TO CA AND NOT TO RTC
POWER TO REMOVE OVER BARANGAY OFFICIALS
4. Sangguniang Panglunsod and Sangguniang Bayan
-over barangay officials –
Sec. 61 ©: A complaint against any elective barangay official shall be filed before the
sangguniang panlungsod or bayan concerned whose decision shall be final and executory.
“final and executory”-AGAIN NO MEANING HERE!! IT CAN STIL BE SUBJECT TO REVIEW!!
5. Ombudsman
Hagad v. Gozo, 251 SCRA 242
Respondents were the mayor, vice mayor and councillors of Mandaue City.

They were

charged before the Ombudsman and investigated for violating RA No. 3019 and Art. 170 and 171
of the RPC. They argued that the Office of the President under Sec. 61 and Sec. 63 of the LGC, the
Office of the President has sole jurisdiction over administrative complaints against elective officials
of provinces and highly urbanized cities and independent component cities.
Held:
The power of the Ombudsman under the Constitution and RA No, 6770 to investigate all public
officials has not been modified or repealed by the Local Government Code. The two statutes are
not inconsistent.
SO THE OMB STILL HAS JURISDICTION TO INVESTIGATE LOCAL ELECTIVE OFFICIALS!
What can these bodies impose as penalty?
1.

Dismissal – “only courts”, but see Reyes case

ONLY COURTS CAN IMPOSE THE PENALTY OF DISMISSAL!!!
2. Suspension – as a penalty may be imposed by all administrative bodies (SUSPENSION AS A
PENALTY CANNOT EXCEED 6 MONTHS AND IN ALL SITUATIONS CANNOT EXCEED
BEYOND HIS TERM)
Under Sec. 60, for each administrative offense, the penalty cannot exceed 6 months suspension
and in all situations cannot exceed beyond his term.
Salalima – What if there are several offenses?
IT CAN EXCEED 6 MONTHS!! FOR EXAMPLE HE WAS FOUND CULPABLE FOR 20 OFFENSES
EACH IMPOSING 1 MONTH SUSPENSION EACH.. IT IS ALLOWED SO LONG AS ANY OF
THEM DOES NOT EXCEED 6 MONTHS!!

C. Preventive Suspension
•

Section 63. Preventive Suspension. – (THIS IS THE SUSPENSION WHILE THE CASE IS
STILL GOING ON!!)

•

(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.

NOTE THE PECULIARITY OF THE POWER OF THE GOVERNOR AND MAYOR TO IMPOSE
PREVENTIVE SUSPENSION!! BECAUSE THEY ARE NOT THE DISCIPLINARY AUTHORITY TO
INVESTIGATE. IT IS ACTUALLY THE PROVINCIAL BOARD (FOR OFFICIALS OF
COMPONENT CITY OR MUNICIPALITY OR THE SANGGUNIAN CONCERNED (FOR
BARANGAY OFFICIALS) AS THE CASE MAY BE!! WE HAVE NO PROBLEM IN SO FAR AS THE
PRESIDENT IS CONCERNED BECAUSE HE IS THE ONE INVESTIGATING AND IMPOSES
PREVENTIVE SUSPENSTION!! DO NOT GET CONFUSED!!
•

(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.

•

“any time after the issues are joined”-MEANS THAT AFTER THE RESPONDENT HAS
MADE HIS ANSWER TO THE OFFENSE LEVELLED AGAINST HIM, THE ISSUES ARE
JOINED THERE! THIS IS ONLY APPLIED IN LOCAL ELECTIVE OFFICIALS UNDER
THE LOCAL GOVERNMENT CODE!! THIS IS NOT APPLIED TO APPOINTIVE LOCAL
OFFICIALS

•

PREVENTIVE SUSPENSION IS AIMED AT PREVENTING THE
RESPONDENT/DEFENDANT OFFICIALS BEING INVESTIGATED FROM TAMPERING
THE EVIDENCES, OR INFLUENCE THE COURSE OF INVESTIGATION AND DEFEAT
THE ENDS OF JUSTICE!!

•

TAKE NOTE THAT THE PREVENTIVE SUSPENSION CANNOT EXCEED 60 DAYS

•

(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(REQUEST FOR
POSTPONEMENT AT HIS INSTANCE), other than the appeal duly filed, the duration of such
delay shall not be counted in computing the time of termination of the case.

•

(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as
abuse of authority.

•

Section 64. Salary of Respondent Pending Suspension. - The respondent official
preventively suspended from office shall receive no salary or compensation during
such suspension; but upon subsequent exoneration and reinstatement, he shall be
paid full salary or compensation including such emoluments accruing during such
suspension.

•

Preventive Suspension:

Preventive suspension is not a penalty, but only procedure to enable to state to
investigate without any hindrance from the public official.
-Due process?NO REQUIREMENT OF DUE PROCESS IN THE IMPOSITION OF
PREVENTIVE SUSPENSTION BECAUSE IT IS NOT A PENALTY!!
-Ex Post Facto? EX POST FACTO WILL NOT APPLY BECAUSE PREVENTIVE SUSPENSION
IS NOT A PENALTY!!
-On the minimum, it can be imposed once issues are joined. ONLY AFTER THE ANSWER HAS
BEEN FILED.. TAKE NOTE!
-Once the person is acquitted, he is entitled to back wages during the period of suspension
Who can preventively suspend?
1. Courts
2. President, Governor or Mayor
3. Ombudsman
Common Ground:
1. Charge is grave or serious
2. Evidence is strong
3. His continued stay might prejudice case
Duration of suspension:
1. By courts, 90 days. RA No. 3019 (ANTI GRAFT AND CORRUPT PRACTICES LAW): Sec. 13.
Suspension and loss of benefits. -- Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or under Title 7, Book II (CRIMES

COMMITTED BY A PUBLIC OFFICER) of the Revised Penal Code or for any offense involving fraud
upon government or public funds or property, whether as a simple or as a complex offense and in
whatever stage of execution and mode of participation, is pending in court, shall be suspended
from office.
•

REMEMBER THE PREVENTIVE SUSPENSION UNDER THE LGC IS ONLY 60 DAYS!!

•

Title 7, Book II (CRIMES COMMITTED BY A PUBLIC OFFICER) of the Revised Penal
Code

•

NOTE THAT THIS 90 DAY PREVENTIVE SUSPENTION APLIES ONLY WHEN A PUBLIC OFFICIAL
IS FACING CRIMINAL CASE IN COURT FOR VIOLATION OF ANTI GRAFT LAW AND FOR
CRIMES COMMITTED BY PUBLIC OFFICERS!!

•

THERE WAS THIS CASE WHERE A PERSON WAS USING GOVT PROPERTY DURING ELECTION
PERIOD AND CHARGED FOR VIOLATION OF OMNIBUS ELECTION CODE!! SO HE WAS
SUSPENDED.. HE IMPUGNED THE SAME PREMISING THE SAME THAT HE WAS NOT
CHARGED UNDER TITLE 7 OF RPC.. HELD: WHEN YOU ARE USING A GOVERNMENT
PROPERTY FOR ELECTION PURPOSES, THAT IS RELATED TO OFFENSES COMMITTED BY
PUBLIC OFFICIALS.. SO THE SUSPENSION WAS UPHELD

•

[This is mandatory. ONLY A PRE-SUSPENSION HEARING IS REQUIRED WHERE THE COURT
DETERMINE VALIDITY OF INTFORMATION.]

•

[This is mandatory. ONLY A PRE-SUSPENSION HEARING IS REQUIRED WHERE
THE COURT DETERMINE VALIDITY OF INTFORMATION.]

•

THIS MEANS THAT IMPOSITION OF PREVENTIVE SUSPENSION IS NOT
DISCRETIONARY… IT IS AUTOMATIC AND MANDATORY ONCE THE COURT
DETERMINE THE VALIDITY OF THE INFORMATION!

•

ONCE THERE HAS BEEN AN ARRAIGNMENT, THE FISCAL WILL MOVE FOR THE
PREVENTIVE SUSPENSION!! AND THE ACCUSED CAN NO LONGER MOVE TO
DETERMINE THE VALIDITY OF THE INFORMATION IN VIEW OF HIS
ARRAIGNMENT!!

May a local elective official facing a criminal case for violation of the Anti-Graft law be suspended
for 90 days under Sec. 13 of RA No. 3019?
Rios v. Sandiganbayan, 279 SCRA 583[What should apply is Sec. 63 of the LGC -60 days only.]
But Layus v. Sandiganbayan, Dec. 8, 1999 – “should not exceed 90 days”
•

YES! SC APPLIED THE 90 DAY PERIOD.. SO THE FOLLOWING MUST BE NOTED:
•

IF THE PREVENTIVE SUSPENSION WHICH IS LIMITED TO 60 DAYS, IT
APPLIES ONLY WHEN THE DISCIPLINING OR SUSPENDING AUTHORITY IS
THE PRESIDENT, GOVERNOR AND MAYOR!!

•

BUT IF YOU ARE FACING CRIMINAL CHARGES FOR VIOLATION OF ANTI
GRAFT LAW, WE APPLY ANTI GRAFT LAW AND PERIOD OF PREVENTIVE
SUSPENSION SHALL BE NOT EXCEEDING 90 DAYS!!!

Libanan v. Sandiganbayan, 233 SCRA 163
When a local government official faces a criminal case for an act committed under the previous
term, or in another office, can he be suspended preventively under RA No. 3019?
•

This case involved miriam santiago who was charged for violations committed
during her former stint as immigration commissioner.. Later she was elected
senator, can she be suspended preventively? Held yes! THE TERM “BE SUSPENDED
FROM OFFICE” DOES NOT DISTINGUISH WHAT OFFICE!!

The term ‘be suspended from office” does not distinguish what office.

See also Conducto v. Manzon, 291 SCRA 619 [gross ignorance]
PREVENTIVE SUSPENSION IS MANDATORY ONCE THE VALIDITY OF THE INFORMATION
HAS BEEN DETERMINED.. OTHERWISE, THE JUDGE SHALL BE HELD LIABLE FOR GROSS
IGNORANCE OF THE LAW!!! THE JUDGE HAS NO DISCRETION W/N TO SUSPEND YOU
PREVENTIIVLY BY REASON THAT IT WAS COMMITTED DURING THE RESPONDENTS
PREVIOUS OFFICE OR STINT!!
2. By President, Governor, Mayor – maximum of 60 days for an offense. If several, not to
exceed 90 days in one year, except if the ground is not existing or known at the time of the first
suspension
3. By the Ombudsman [in an administrative investigation] -6 months
Sec. 24 of RA No. 6770: Requisites
1) the charge involves dishonesty, oppression, grave misconduct or neglect of duty
2) the charge should warrant removal from office
3. respondent’s continued stay in office would prejudice the case filed against him
[4. the evidence of guilt is strong]
NOTE: NO REQUIREMENT THAT THE ISSUES MUST BE JOINED BEFORE PREVENTIVE
SUSPENSION MAY BE IMPOSED!!!
Garcia v. Mojica, 314 SCRA 207 (1999)
Can the Ombudsman suspend respondent even before he files his answer? YES! THERE IS NO
REQUIREMENT THAT THE ISSUES MUST BE JOINED BEFORE PREVENTIVE SUSPENSION
MAY BE IMPOSED!!! AS DISTINGUISHED TO THOSE CASES FILED BEFORE THE
PRESIDENT OR SANGGUNIAN CONCERNED (WHERE ISSUES SHALL BE JOINED !!!!!
Garcia v. Mojica, 314 SCRA 207 (1999)
Can the Ombudsman suspend an elective official for more than 60 days?
Yes. The 60 days maximum provided in the LGC does not apply to the Ombudsman.
That applies only to the President, Governor or Mayor issuing the preventive suspension
order. Under RA No. 6770, the period is 6 months without pay, unless the investigation
lasts longer due to the fault of respondent. MEMO THIS!!!
Under Sec. 62 ©, no suspension is allowed prior to election, or if one has been imposed, it is lifted.
(BECAUSE THIS CAN BE USED BY THE OPPOSING PARTY FOR ELECTION PURPOSES)
(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.
NOTE: THAT THESE APPLIES ONLY TO PREVENTIVE SUSPENSION IMPOSED OR TO BE
IMPOSED UNDER THE LOCAL GOVERNMENT CODE.. IT APPLIES THOSE IMPOSED BY THE
PRESIDENT, GOVERNOR AND MAYOR!!!
Bar Exam, 2011
•

85. When an elective official's preventive suspension will result in depriving his constituents
of his services or representation, the court may

•

A. require the investigating body to expedite the investigation.

•

B. hold in abeyance the period of such suspension.

•

C. direct the holding of an election to fill up the temporary vacancy.

•

D. shorten the period of such suspension.

d. Removal [Penalies]
•

Section 66. Form and Notice of Decision. -

•

(a) The investigation of the case shall be terminated within ninety (90) days from
the start thereof. Within thirty (30) days after the end of the investigation, the
Office of the President or the sanggunian concerned shall render a decision in
writing stating clearly and distinctly the facts and the reasons for such decision.
Copies of said decision shall immediately be furnished the respondent and all
interested parties.

•

NOTE THE PREVENTIVE SUSPENSION TO BE IMPOSED BY THE COURT WHERE
THERE MUST BE A MOTION FOR THE PS…. IN VIEW OF THE MANDATORY
PREHEARING REQUIREMENT TO DETERMINE THE VALIDITY OF THE
INFORMATION!!! REVIEW THIS !! ONCE, THE FISCAL FILES A MOTION, IT IS
INCUMBENT FROM THE JUDGE TO PREVENTLY SUSPEND THE ACCUSED!!

•

(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense, nor shall
said penalty be a bar to the candidacy of the respondent so suspended as long as he meets
the qualifications required for the office.

Salalima v. Guingona, 257 SCRA 59
For various counts of oppression and grave abuse of authority, respondents were meted the
penalty of suspension by the President. As there were several counts, the total ranged to a
maximum of 20 months. Is it valid?
NO PROBLEM HERE SO LONG AS ANY OF THE PENALTY OF SUSPENSION DOES NOT
EXCEED 6 MONTHS!!!
ii. Removal (REFERS TO REMOVAL UNDER THE LOCAL GOVERNMENT CODE!!)
(c) The penalty of removal from office as a result of an administrative investigation shall be
considered a bar to the candidacy of the respondent for any elective position.
Sec. 40, LGC. Disqualifications- The following persons are disqualified from running for any
elective local position :
(b) Those removed from office as a result of an administrative case. (ARE disqualified
from running for any elective local position ONLY.. TAKE NOTE OF THIS!!)
Grego v. COMELEC, 274 SCRA 486 (1997)
THIS CASE INVOLVED A SHERIFF WHICH WAS CONVICTED IN AN ADMIN CASE BY SC…WILL HE BE
COVERD BY SEC 40 OF LGC? YES!!! NOTE THE PHRASE Those removed from office as a
result of an administrative case ARE DISQUALIFIED FROM RUNNING FOR any ELECTIVE
LOCAL POSITION!! SEC. 40 OF LGC MAKES NO DISTINCTION AS TO W/N YOU ARE
REMOVED BY THE SUPREME COURT OR CSC/ EXECUTIVE DEPARMENT… CONTROLLING
WORD IS YOU ARE REMOVED FROM OFFICE AS A RESULT OF AN ADMINSTRATIVE CASE!!
•

SO TAKE NOTE WITH THIS, IF YOU ARE REMOVED UNDER THE LOCAL
GOVERNMENT CODE, YOU CANNOT RUN FOR ANY ELECTIVE OFFICE .. AND

•

IF YOU ARE REMOVED FROM AN ADMIN CASE OTHER THAN UNDER THE LGC, YOU
CANNOT RUN FOR ANY ELECTIVE LOCAL POSITION ONLY!!! TAKE NOTE THE
DISTINCTION!!!

Reyes v. COMELEC, 254 SCRA 514 (1996) OLD DECISION!!!
Reyes was elected mayor of Bongabong, Mindoro, on May 11, 1992. On Feb. 6, 1995, the
Sangguniang Panlalawigan ordered his removal from office due to an administrative
case. He refused to receive a copy of the decision, filed a certificate of candidacy and won again
on May 9, 1995. Did his election wipe out his administrative liability? [He is barred from running]
HELD: HE IS BARRED FROM RUNNING!! HIS REFUSAL TO RECEIVE DECISION COPY RENDERED
THE SAME FINAL AND EXECUTORY.. Those removed from office as a result of an

administrative case ARE disqualified from running for any elective local position
NOTE: HAD THIS CASE BEEN DISPOSED AFTER THE CASE OF Pablico v. Villapando, July
31, 2002, the DECISION OF THE SANGGUNIANG PANLALAWIGAN ORDERING HIS
REMOVAL FROM OFFICE WOULD NOT BE VALID!!!
But See-Salalima v. Guingona, supra [Footnote]
The Office of the President is without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in the last paragraph of the
aforequoted Section 60. Parenthetically, it may be observed that Article 125, Rule XIX of the Rules
and Regulations Implementing the Local Government Code of 1991 grants to the disciplining
authority the power to remove an elective local official. Paragraph (b) of the said Article
provides as follows:
•

(b) An elective local official may he removed from office on the grounds enumerated in
paragraph (a) of this Article [The grounds enumerated in Section 60, The Local Government
Code of 1991] by order of the proper court or the disciplining authority whichever first
acquires jurisdiction to the exclusion of the other. (Italics supplied)

•

This grant to the “disciplining authority” of the power to remove elective local
officials is clearly beyond the authority of the Oversight Committee that prepared
the Rules and Regulations.

•

TAKE NOTE THAT THE PRESIDENT HAS NO POWER TO REMOVE ERRING OFFICIALS SINCE
SUCH POWER IS VESTED ONLY TO PROPER COURTS!!

Pablico v. Villapando, July 31, 2002 LATEST RULING
May local legislative bodies and/or the Office of the President, on appeal, validly impose the
penalty of dismissal from service on erring elective local officials?
Held: It is clear from the last paragraph of the aforecited provision that the penalty of
dismissal from service upon an erring elective local official may be decreed only by a
court of law.
Can the Ombudsman dismiss a local elective official?
Office of the Ombudsman v. Rodriguez, July 23, 2010
As a final note, under Section 60 of the Local Government Code, the sangguniang bayan has no
power to remove an elective barangay official. Apart from the Ombudsman, only a proper
court may do so. Unlike the sangguniang bayan, the powers of the Ombudsman are not merely
recommendatory. The Ombudsman is clothed with authority to directly remove an erring
public official other than members of Congress and the Judiciary who may be removed
only by impeachment.
In summary, the only the following can remove local elective officials
1.

PROPER COURTS

2.

OMBUDSMAN!!!

•

But see: LGC, SEC. 66. Form and Notice of Decision. - (a) The investigation of the case shall
be terminated within ninety (90) days from the start thereof. Within thirty (30) days after
the end of the investigation, the Office of the President or the sanggunian concerned shall
render a decision in writing stating clearly and distinctly the facts and the reasons for such
decision. Copies of said decision shall immediately be furnished the respondent and all
interested parties.

•

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense, nor shall said penalty be a bar to
the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.

•

(c) The penalty of removal from office as a result of an administrative investigation
shall be considered a bar to the candidacy of the respondent for any elective

TRUST THE AUTHORITY!!!

position.
•

AGAIN, THE OFFICE OF THE PRESIDENT AND THE SANGGUNIAN CONCERNED HAS
NO POWER TO REMOVE ERRING LOCAL ELECTIVE OFFICIALS!!!!

e. Administrative Appeals
•

Section 67. Administrative Appeals. - Decisions in administrative cases may, within thirty
(30) days from receipt thereof, be appealed to the following:

•

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod
of component cities and the sangguniang bayan; and

•

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan
and the sangguniang panlungsod of highly urbanized cities and independent component
cities.

•

Decisions of the Office of the President shall be final and executory. (IT IS APPEALABLE TO
THE COURT OF APPEALS)

•

TAKE NOTE WORD RECENLY USED THAT THE DECISIONS OF THE PRESIDENT OR
SANNGUNIANG CONCERNED ARE FINAL AND EXECUTORY IS USELESS IN VIEW OF
HERETO PROVISIONS PROVIDING THE ADMINISTRATIVE APPEALS… NOTE THAT
WHILE THE CASE IS PENDING APPEAL, YOU CONTINUE TO BE SUSPENDED OR
REMOVED WITHOUT PREJUDICE TO SUCH APPEAL!!

What is the effect of an appeal? Will it stay execution?
Sec. 68. Execution Pending Appeal. An appeal shall not prevent a decision from becoming
final and executory. The respondent shall be considered as having been placed under
preventive suspension during the pendency of the appeal in the event he wins the
appeal. In the event that the appeal results in exoneration, he shall be paid his salary
and other emoluments during the pendency of the appeal (EFFECT OF REVERSAL).
Berces v. Gunigona, 241 SCRA 539
Respondent Mayor of Tiwi, Albay, was suspended for 2 months and 3 months in 2 administrative
cases by the Sangguniang Panlalawigan. She appealed to the Office of the President who, upon her
motion, ordered the suspension of her suspension while the appeal was pending.
Sec. 6 of AO No. 18, dated Feb. 12, 1990 provides that “the Office of the President may direct
or stay the execution.”
Discretionary on the part of the President (AS TO WHETHER OR NOT TO STAY THE
EXECUTION!!)
f.Doctrine of Condonation:
Effect of Election on Administrative Liability:
1. if the decision is final before election – no effect.. (IF THE DECISION IS REMOVALBARRED ALREADY TO RUN.. IF THE SAME IS SUSPENSION, LOCAL ELECTIVE OFFICIAL
CAN STILL RUN)
2. if no case filed, no decision, or decision was not yet final, it wipes out
administrative liability. [see Salalima v. Guingona, 257 SCRA 59)( THIS MEANS THAT IF
CONCERNED ELECTIVE OFFICIAL IS REELECTED, THE CASE HAS TO BE DISMISSED!!)
Some Questions:
1. Suppose as an appointive official, I was administratively charged, but I ran and won in an
elective position? CONDONATION REFERS TO THE SAME POSITION OF WHICH HE IS
REELECTED!!! HENCE HERE THE DOCTRINE OF CONDONATION CANNOT APPLY!!! THIS IS
ON THE VIEW THAT THE ELECTORATE REELECTED YOU TO THE SAME POSITION WITH
KNOWLEDGE OF YOUR PERSONAL LIFE AND CHARACTER!!

2. Suppose as mayor I was charged (ADMINISTRATIVELY) and I ran and won as councilor? One
district? CONDONATION REFERS TO THE SAME POSITION OF WHICH HE IS REELECTED!!!
HENCE HERE THE DOCTRINE OF CONDONATION CANNOT APPLY!!! THIS IS ON THE VIEW
THAT THE ELECTORATE REELECTED YOU TO THE SAME POSITION WITH KNOWLEDGE OF
YOUR PERSONAL LIFE AND CHARACTER!!
3. Suppose as mayor I was charged and I won as Congressman? But lost in my town? Or won
overwhelmingly in my townCONDONATION REFERS TO THE SAME POSITION OF WHICH HE
IS REELECTED!!! HENCE HERE THE DOCTRINE OF CONDONATION CANNOT APPLY!!! THIS
IS ON THE VIEW THAT THE ELECTORATE REELECTED YOU TO THE SAME POSITION WITH
KNOWLEDGE OF YOUR PERSONAL LIFE AND CHARACTER!!
•

READ THIS AS THIS WILL GIVE CLEAR VIEW OF THE DOCTRINE OF
CONDONATION!!

•

Pascual v. Hon. Provincial Board of Nueva Ecija: "[t]he underlying theory is that each
term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the
right to remove him therefor.“

•

When the people elect[e]d a man to office, it must be assumed that they did this
with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason
of such faults or misconduct[,] to practically overrule the will of the people.

•

SO THE KEY WORD HERE IS “REELECTION!!! IT MEANS THAT HE WAS PREVIOUSLY
ELECTED FOR THE POSITION OF MAYOR AND COMMITTED MISCONDUCT DURING
SUCH TENURE, HIS REELECTION TO THE SAME POSITION CONDONES SUCH
OFFENSE!!!

Garcia v. Mojica, 314 SCRA 207 (1999)
The City Mayor of Cebu entered into a contract four days before the local election
during which he was reelected to the same position. The contract commenced to run after
the election. Because the contract was alleged to be anomalous, the mayor was charged
administratively and criminally [for preliminary investigation] before the Ombudsman.
As investigator of the Ombudsman, you will:
a.

Dismiss both charges because of the Mayor’s reelection

b. Investigate both charges since the anomalous contract commenced after the election
c.

Dismiss only the administrative aspect because of condonation (CONDONATION
DOES NOT APPLY IN CRIMINAL CASES) if no case filed, no decision, or decision
was not yet final, it wipes out administrative liability EVEN IF THE ACT WAS
COMMITTED PRIOR TO THE TERM!! AND EVEN IF ONLY DISCOVERED AFTER
GETTING REELECTED!!

d. Dismiss only the criminal aspect because of the reelection
Can you ask for Presidential Pardon?
Llamas v. Orbos- the term conviction can apply to administrative conviction. Also under the
doctrine of qualified political agency. (NOTE THAT ONCE YOU ARE PARDONED BY THE
PRESIDENT FOR ADMIN OFFENSES, YOU CAN ACTUALLY RUN FOR ELECTIVE POSITION!!)
But what will be the effect on the prohibition imposed by Sec. 40? (NOTE THAT ONCE YOU ARE
PARDONED BY THE PRESIDENT FOR ADMIN OFFENSES, YOU CAN ACTUALLY RUN FOR
ELECTIVE POSITION!!)
Bar Question, 2011,
21. Governor Paloma was administratively charged with abuse of authority before the
Office of the President. Pending hearing, he ran for reelection and won a second term. He
then moved to dismiss the charge against him based on this supervening event. Should the motion
be granted?

,
•

A. Yes, Governor Paloma's reelection is an expression of the electorate's obedience to his
will.

•

B. No, Governor Paloma's reelection cannot extinguish his liability for malfeasance in office.

•

C. No, Governor Paloma's reelection does not render moot the administrative case already
pending when he filed his certificate of candidacy for his reelection bid.

•

D. Yes, Governor Paloma's reelection is an expression of the electorate's restored
trust. if no case filed, no decision, or decision was not yet final, it wipes out
administrative liability AS A CONSEQUENCE OF REELECTION TO THE SAME
POSITION!! WHAT IS IMPORTANT IS THAT THE WRONGFUL ACT WAS COMMITTED
DURING HIS PREVIOUS TERM!!

Also asked in Bar Exam, 2000, No. 6, based on Malinao v. Reyes, 255 SCRA 616 (1996)
2. Appointive Officials:
Appointive officials
•

Section 84. Administrative Discipline. - Investigation and adjudication of
administrative complaints against appointive local officials and employees as well
as their suspension and removal shall be in accordance with the civil service law
and rules and other pertinent laws. The results of such administrative
investigations shall be reported to the Civil Service Commission.

•

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 and 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.

•

NOTE: where the official being investigated is (note the distinction!!
•

If Local Elective Official-the one conducting investigation is the the
Sanggunian Concerned or the LOCAL LEGISLATIVE..

•

If Appointive Official- it is the LOCAL EXECUTIVE OFFICER

NOTE ALSO that with respect to PREVENTIVE SUSPENSION
IF Local Elective Official- there is a requirement that issues must be joined!! (more
strict)
–

IF Appointive Official- there is no requirement that the issues must be
joined!!

With that, once there is admin complaint, the LCE may automatically preventively
suspend you without having the issues joined or waiting the answer of the respondent
appointive official
IN BOTH CASES, YOU CANNOT INVOKE DUE PROCESS AS THIS ONLY A PREVENTIVE
SUSPENSION
•

•

(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 86. Administrative Investigation. - In any local government unit,

administrative investigation may be conducted by a person or a committee duly
authorized by the local chief executive. Said person or committee shall conduct
hearings on the cases brought against appointive local officials and employees and submit
their findings and recommendations to the local chief executive concerned within fifteen
(15) days from the conclusion of the hearings. The administrative cases herein
mentioned shall be decided within ninety (90) days from the time the respondent
is formally notified of the charges.
•

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 (this can be appealed via certiorai on GAD). 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.

•

Section 88. Execution Pending Appeal. - An appeal shall not prevent the execution of a
decision of removal or suspension of a respondent-appellant. In case the respondentappellant is exonerated, he shall be reinstated to his position with all the rights and
privileges appurtenant thereto from the time he had been deprived thereof.

NOTE THE DISTINCTION THE DISCIPLINARY JURISDICTION BETWEEN LOCAL ELECTIVE
OFFICIAL AND APPOINTIVE OFFICIAL
1.

In the former, there is no DEMOTION IN RANK, while in the latter it may be
imposed;

2.

In the former, the penalty of suspension cannot exceed 6 months while in the
latter, the same may be for a period not exceeding 1 year

3.

There is also no penalty of fine or reprimand in the former while there is in the
latter.

k. Recall
l. Term Limits
TOPIC 5 (K):
K. Recall
•

Section 70. Initiation of the Recall Process. -

•

(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of
the local government unit to which the local elective official subject to such recall belongs.
[Republic Act No. 9244, February 19 2004: AN ACT ELIMINATING THE
PREPARATORY RECALL ASSEMBLY AS A MODE OF INSTITUTING RECALL OF
ELECTIVE LOCAL GOVERNMENT OFFICIALS]

•

OTHERWISE STATED, RECALL CAN BE INITIATED ONLY BY REGISTERED VOTERS OF
THE LOCAL GOVERNMENT UNIT

•

Note also thAT RECALL applies only to Local Elective Officials!!!

Recall by Registered Voters:
•

(d) Recall of any elective provincial, city, municipal, or barangay official may also
be validly initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned during the
election in which the local official sought to be recalled was elected.

(1) A written petition for recall duly signed before the election registrar or his representative,
and in the presence of a representative of the petitioner and a representative of the official sought
to be recalled and, and in a public place in the province, city, municipality, or barangay, as the case
may be, shall be filed with the COMELEC through its office in the local government unit concerned.

The COMELEC or its duly authorized representative shall cause the publication of the petition in a
public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20)
days, for the purpose of verifying the authenticity and genuineness of the petition and the
required percentage of voters.
•

(2) Upon the lapse of the aforesaid period, the COMELEC or its duly authorized
representative shall announce the acceptance of candidates to the position and thereafter
prepare the list of candidates which shall include the name of the official sought to be
recalled.

Section 71. Election on Recall. - Upon the filing of a valid resolution or petition for recall with the
appropriate local office of the COMELEC, the Commission or its duly authorized representative shall
set the date of the election on recall, which shall not be later than thirty (30) days after the
filing of the resolution or petition for recall in the case of the barangay, city, or municipal
officials. and forty-five (45) days in the case of provincial officials. The official or officials
sought to be recalled shall automatically be considered as duly registered candidate or candidates
to the pertinent positions and, like other candidates, shall be entitled to be voted upon.
•

Section 72. Effectivity of Recall. - The recall of an elective local official shall be effective
only upon the election and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall. Should the official
sought to be recalled receive the highest number of votes, confidence in him is thereby
affirmed, and he shall continue in office.

•

Section 73. Prohibition from Resignation. - The elective local official sought to be
recalled shall not be allowed to resign while the recall process is in progress.

•

Section 74. Limitations on Recall. -

•

(a) Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.

•

(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.

•

Note the distinction of RECALL AND IMPEACHMENT

•

RECALL CAN BE HAD ONLY ONCE IN EVERY 3 YEARS OR 1 TERM

Freedom Period:
-------------------------/----------------/------------6/30/10-----6/30/11

4/13/12 /5/13/13

Assumption

Election

9 months and 13 days only
Angubong v. COMELEC, 269 SCRA 245 (1997)
Petitioner won as mayor of Tamauini, Isabela, in 1995. On Sept. 1996, de Alban, alone, filed a
petition to recall him. Acting on the petition, the COMELEC scheduled the signing of the petition in
order to garner at least 25% of the total number of registered voters. Is the recall petition
sufficient in form? In view of Sec. 74 of the LGC which prohibits recall immediately preceding a
regular election, may a recall election be scheduled within one year from the May 12, 1997
barangay elections?
Held: The recall is not barred by the barangay elections. The time-bar rule refers to an
approaching election where the position of the official to be recalled is contested.
However a recall cannot be initiated by one person. It must be upon petition of at least
25% of the total number of registered voters. While there is no requirement that the
initiatory petition must be signed by them, it must contain at least the names of 25% of
the registered voters supporting it, even if only one man signs.
•

NOTE THE PROCEDURE.. FIRST THERE MUST BE A PETITION FILED BEFORE THE

COMELEC, THEN THE LATTER SHALL CAUSE THE PUBLICATION AND POSTING OF
THE SAME.. AFTER THAT, THE COMELEC HAS TO GARNER AT LEAST 25% OF THE
REGISTERED VOTERS.. WITH THIS, IT WILL BE REDUNDANT IF 25% HAS TO SIGN
THE INITIATORY PETITIOIN AND WILL SIGN AGAIN AFTER THE POSTING OF THE
SAME..
•

IN OTHER WORDS, INITIATORY PETITION CAN BE SIGNED ONLY BY ONE PERSON
PROVIDED THAT THE NAMES OF AT LEAST 25% OF THE REGISTERS ARE
CONTAINED THEREIN… SUCH 25% SHALL SIGN OR AFFIX ONLY THEIR
SIGNATURE DURING THE SIGNING PROCESS!!!

Bar Question, 2001
No. 16. Suppose the people of a province want to recall the provincial governor before the end of
his 3 year term of office.
A. On what ground or grounds can the provincial governor can be recalled? LOSS OF TRUST
AND CONFIDENCE!!
B. How will the recall be initiated? RECALL CAN BE INITIATED ONLY BY REGISTERED
VOTERS OF THE LOCAL GOVERNMENT UNIT
c. When will the recall of an elective local official be considered effective? UPON THE
ANNOUNCEMENT OF THE RESULTS OF THE ELECTION!!
•

Bar Question, 2010

XXII. Governor Diy was serving his third term when he lost his governorship in a recall election.
(a) Who shall succeed Governor Diy in his office as Governor? (1%) THE ONE WHO WINS THE
RECALL ELECTION!!!
(b) Can Governor Diy run again as governor in the next election? (2%) TO BE ANSWERED IN THE
TOPIC OF PUBLIC OFFICERS!!!
(c) Can Governor Diy refuse to run in the recall election and instead resign from his position as
governor? (2%) NO! The elective local official sought to be recalled shall not be allowed to
resign while the recall process is in progress.
2011 Bar Exam:
•

81. Anton was the duly elected Mayor of Tunawi in the local elections of 2004. He got 51%
of all the votes cast. Fourteen months later, Victoria, who also ran for mayor, filed with the
Local Election Registrar, a petition for recall against Anton. The COMELEC approved the
petition and set a date for its signing by other qualified voters in order to garner
at least 25% of the total number of registered voters or total number of those
who actually voted during the local election in 2005, whichever is lower. Anton
attacked the COMELEC resolution for being invalid. Do you agree with Anton?

•

A. No, the petition, though initiated by just one person, may be ratified by at least
25% of the total number of registered voters.

•

B. No, the petition, though initiated by just one person may be ratified by at least 25% of
those who actually voted during the 2004 local elections.

•

C. Yes, the petition should be initiated by at least 25% of the total number of registered
voters who actually voted during the 2004 local elections.

•

D. Yes, the petition should be initiated by at least 25% of the total number of registered
voters of Tunawi.

TOPIC 5 (L):
L. Term Limits
Constitution, Art. X: Sec. 8: “The term of office of local elective officials, except barangay officials,
which shall determined by law, shall be three years and no such official shall serve more than three

consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.”
Michael Abas Kida v. Senate, October 18, 2011
Can Congress pass a law postponing elections which will effectively lengthen the term of
incumbent, and/or shorten the term of the next set of local officials?
NO! BY EXPRESS PROVISION OF THE CONSTITUTION!! THE CONGRESS HAS NO
BUSINESS OF LENGTHENING OR MUCH LESS SHORTENING THE TERM OF LOCAL
OFFICIALS
“The term of office of local elective officials, except barangay officials, which shall
determined by law, shall be three years and no such official shall serve more than three
consecutive terms
REMEMBER THAT THE SCHEDULE OF ELECTION SHALL BE ON THE 2ND MONDAY OF MAY
UNLESS THE CONGRESS PROVIDES OTHERWISE… HOWEVER, IT CANNOT SET ON THE
OTHER DAY IN SUCH A WAY THAT WE CANNOT HAVE ELECTED OFFICIALS BY JUNE 3O AS
IT WILL VIOLATE THE ABOVE PROVISIONS OR LENGHTENING OR SHORTENING THE
TERM THEREBY AMENDING THE CONSTITUTION!!!!!
Local Government Code:
•

Section 43. Term of Office. -

•

(a) The term of office of all local elective officials elected after the effectivity of this Code
shall be three (3) years, starting from noon of June 30, 1992 or such date as may be
provided for by law, except that of elective barangay officials: Provided, That all local
officials first elected during the local elections immediately following the ratification of the
1987 Constitution shall serve until noon of June 30, 1992.

•

(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.

Latasa v. COMELEC, Dec. 10, 2003
Latasa, was mayor of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During
petitioner’s third term, the Municipality of Digos was declared a component city under Republic Act
No. 8798. He ran and won as city mayor in 2001. Is he qualified?
Held: True, the new city acquired a new corporate existence separate and distinct from that of
the municipality. This does not mean, however, that for the purpose of applying the
subject Constitutional provision, the office of the municipal mayor would now be
construed as a different local government post as that of the office of the city mayor.
The territorial jurisdiction of the City of Digos is the same as that of the municipality.
Consequently, the inhabitants of the municipality are the same as those in the city. These
inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor
for three consecutive terms. These are also the same inhabitants over whom he held power and
authority as their chief executive for nine years.
THIS CAN BE RELATED TO A SITUATION AS WHEN THE MUNICIPALITIES OF DUJALI AND
STO. TOMAS WILL MERGE.. AND THE MAYOR OF THE WHO IS ON HIS LAST TERM RAN
FOR THE NEWLY MERGED LOCALITIES, DIFFERENT DECISION MIGHT COME OUT AS IT
CANNOT BE SAID THAT THE TERRITORIAL JURISDICITON IS STILL THE SAME OR THE
INHABITANTS ARE THE SAME GROUP OF VOTERS WHO ELECTED HIM…
Adormeo v. COMELEC, 376 SCRA 90 (2002)
Tabago won as mayor of Lucena City in 1992. he ran and won again in the 1995 election. In
1998, he lost in his bid for a 3rd term. But when a recall was held for the same position, he ran
and won. When he filed his certificate of candidacy for the same position during the 2001 election,
his opponent challenged his qualification. In the computation of the term limit, is the recall election

counted?
Held: No. The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms.
Taboga was not elected for 3 consecutive terms having lost in the 1998 election. Nor did
he fully serve the 1998 term because he only completed the unfinished term when he
won the recall election.
Socrates v. COMELEC, Nov. 11, 2002
Hagedorn was Mayor of Puerto Pricesa for 3 consecutive terms. He was succeed by Socrates
who was subjected to recall during his first term. Can Hagedor be a candidate in the recall
election?

Held: What the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after
the end of the third consecutive term. A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate reelection after the third
term.
Lonzanida v. COMELEC, July 28, 2009
Lonzanida won as Mayor of San Antonio, Zambales, in 1988 and 1992 elections. He ran, won
and assumed office again in 1995 but his opponent filed a protest so that he was unseated on Feb.
27, 1998, or just 4 months before the end of the term (BECAUSE HE REALLY DID NOT
WIN). Can he ran again for the same position in the May 11, 1998 elections?
YES!! HE CAN RUN.. The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms.
IN THE CASE AT BAR, LONZANIDA HAS NOT BEEN ELECTED FOR 3 CONSECUTIVE TERMS
AS MAYOR AS HE LOST IN 1998 ELECTION… MOREOVER HE HAS NOT FULLY SERVED THE
3 CONSECUTIVE TERMS AS HE WAS UNSEATED 4 MONTHS BEFORE THE END OF HIS 3RD
TERM!
Ong v. Alegre, Jan. 23, 2006
Ong was proclaimed and served as Mayor of San Vicente, Camarines Norte in the 1995,
1998 and 2001 elections. However, his election in 1998 was protested, but the decision
came out only declaring that he lost the election came out only on July 4, 2001 or after
the term ended, which he fully served. Can he run in 2004 for the same position? [counted as a
full term]
NO MORE!!! The prohibition on serving more than 3 consecutive terms applies only if:
a) the official has been elected for 3 consecutive terms in the same local government
post, and
b) b) that he has fully served 3 consecutive terms
True, Ong he has not been elected for 3 consecutive terms but It is evident that he has
already served 3 consecutive terms notwithstanding the declaration that he lost on the
3rd term… the SC COUNTED THE SAME AS FULL TERM AS THE DECISION CAME OUT ONLY
AFTER SERVING THE FULL 3RD TERM… OTHERWISE, THE PURPOSE OF THE PROHIBITION
WOULD NOT BE SERVED AND ATTAINED IF HE WILL BE ALLOWED TO RUN AGAIN!!

CONSIDER THIS AS THE EXCEPTION TO THE GENERAL RULE!!!
Also Rivera v. Morales, May 3, 2007
Aldovino v. COMELEC, Dec. 23, 2009
Asilo was elected councilor of Lucena City for three consecutive terms: for the
1998-2001, 2001-2004, and 2004-2007. In September 2005 or during his 2004-2007 term of
office, the Sandiganbayan preventively suspended him for 90 days This Court, however,
subsequently lifted the Sandiganbayan’s suspension order; hence, he resumed performing the
functions of his office and finished his term. in relation with a criminal case he then faced. Can he
run for another term?
NO MORE!!
Held: Temporary inability or disqualification to exercise the functions of an elective
post, even if involuntary, should not be considered an effective interruption of a term
because it does not involve the loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is simply barred from exercising the
functions of his office for a reason provided by law.
IN PREVENTIVE SUSPENSION, THE LOCAL ELECTIVE OFFICIAL CONTINUES TO BE AN
OFFICIAL BUT HE IS ONLY BARRED FOR THE MOMENT TO DISCHARGE HIS FUNCTION
DURING THE DURATION OF SUCH PREVENTIVE SUSPENSION!! OTHERWISE STATED, HE
CAN NO LONGER RAN AS HE HAS BEEN DULY ELECTED FOR 3 CONSECUTIVER TERMS AND
FULLY SERVED THE TERM THEREOF … IT IS AS IF HE FULLY SERVED IT!!!
SUPPOSED A MAYOR HAS BEEN ELECTED FOR THE 3 CONSECUTIVE TERMS.. ON HIS LAST
TERM, HE WAS REMOVED FROM OFFICE IN AN ADMIN CASE… CAN HE RUN? NO MORE!!!
SETTLED IS THE RULE THAT A PERSON REMOVED FROM OFFICE AS A RESULT OF
CONVICTION IN ADMIN CASE IS DISQUALIFIED TO RAN FOR ANY (LOCAL) ELECTIVE
POSITION!!
Bolos v. COMELEC, March 17, 2009
•

For three consecutive terms, Bolos was elected as Punong Barangay of
Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and
2002. In May 2004, while sitting as the incumbent Punong Barangay of Barangay
Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed
office as Municipal Councilor on July 1, 2004, leaving his post as Punong Barangay. He
served the full term of the Sangguniang Bayan position, which was until June 30, 2007.
Thereafter, he filed his Certificate of Candidacy for Punong Barangay of Barangay Biking,
Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections (FOR
THE 4TH TERM).

•

HELD: NO! HE CANNOT RUN ANYMORE!! Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.

•

SUPPOSED ON THE HIS LAST TERM, HE WAS APPOINTED AS MUNICIPAL
COUNCILOR AND HE ACCEPTED THE SAME.. IT WILL STILL BE VOLUNTARY
RENOUNCIATION AS HE COULD HAVE REFUSED THE APPOINTMENT!!!

Bar Exam, 2006:
IV •

State whether or not the following laws are constitutional. Explain briefly.
•

A law fixing the terms of local elective officials, other than barangay officials, to 6
years. 2%

•

NOT MUCH HERE… DEFINITELY UNCONSTITUTIONAL..

Bar Question, 2011
•

35. Alfredo was elected municipal mayor for 3 consecutive terms. During his third term, the

municipality became a city. Alfredo ran for city mayor during the next immediately
succeeding election. Voltaire sought his disqualification citing the 3 term limit for elective
officials. Will Voltaire's action prosper?
•

A. No, the 3 term limit should not apply to a person who is running for a new position title.

•

B. Yes, the 3 term limit applies regardless of any voluntary or involuntary interruption in the
service of the local elective official.

•

C. Yes, the 3 term limit uniformly applies to the office of mayor, whether for city
or municipality. LATASA CASE!!

•

D. No, the 3 term limit should not apply to a local government unit that has assumed a
different corporate existence.

•

61. Adela served as Mayor of Kasim for 2 consecutive terms. On her third term,
COMELEC ousted her in an election protest that Gudi, her opponent, filed against her.
Two years later, Gudi faced recall proceedings and Adela ran in the recall election against
him. Adela won and served as Mayor for Gudi's remaining term. Can Adela run again for
Mayor in the next succeeding election without violating the 3 term limit?

•

A. No, she won the regular mayoralty election for two consecutive terms and the recall
election constitutes her third term.

•

B. A. No, she already won the mayoralty election for 3 consecutive terms.

•

C. Yes, her ouster from office in her third term interrupted the continuity of her
service as mayor.

•

D. Yes, the fresh mandate given her during the recall election erased her disqualification for
a third term. NOT GOOD REASON!!!!

Bar Exam, 2008:
- IX - Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of
Tawi-Tawi. After being proclaimed Vice-Governor in the 2004 elections, his opponent, Khalil, filed
an election protest before the Commission on Election. Ruling with finalty on the protest, the
COMELEC declared Khalil as the duly elected Vice-Governor though the decision was promulgated
only in 2007, when Abdul had fully served his 2004-2007 term and was in fact already on his 20072010 term as Vice Governor.
Abdul now consults you if the can still run for Vice-Governor of Tawi-Tawi in the
forthcoming May 2010 election on the premise that he could not be considered as having served as
Vice-Governor from 2004-2007 because he was not duly elected to the post, as he assumed office
merely as a presumptive winner and that presumption was later overturned when COMELEC
decided with finality that had lost in the May 2004 elections. What will be your advice? (3%)
HE SHOULD BE ADVISED NOT TO SEEK FOR ANOTHER TERM… ONG CASE!!
Bar Question, 2001:
19. In the May 1992 elections, Manuel Manalo and Segundo Parate were elected as Mayor and
Vice Mayor, respectively. Upon the death of Manaloas incumbent Municipal Mayor, Vice Mayor
Segundo Parate succeeded as Mayor and served for the remaining portion of the term of office. In
the May 1995 election, Segundo Parate ranfor and won as mayor and then served the full
term. In the May 1998 elections, Segundo Parate filed his certificate of candidacy for the same
position of mayor, but his rival mayoralty candidate sought his disqualification alleging violation of
the 3-Term Limit for local elective officials provided for in the Local Government Code.
Decide whether the disqualification will prosper ornot.
HE CAN STILL RAN… NOTE THAT HE ONLY SUCCEEDED HIS FIRST TERM AS CONSEQUENCE OF THE
DEATH OF THE MANUEL MANALO…. NO PROBLEM HERE!!!
Bar Question, 2005: No. 9 (2.) Manuel was elected Mayor of the Municipality of Tuba in the
elections of 1992, 1995 and 1998. He fully served his first two terms, and during his third
term, the municipality was converted into the component City of Tuba. The said charter

provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the
City of Tuba. In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor
(FOR THE 4TH TIME!!). He disclosed, though, that he had already served for three consecutive
terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of
candidacy that he is running for the position of Mayor for the first time now that Tuba is a city.
Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had
•

already served for three consecutive terms as Mayor. The petition was not timely acted
upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after Manuel took his oath
and assumed office that the COMELEC ruled that he was disqualified for having ran
and served for three consecutive terms.

•

(a) As lawyer of Manuel, present the possible arguments to prevent his disqualification and
removal. YOU WILL BE FORCED TO ARGUE THAT THE POSITION HE IS RUNNING IS
NOT THE SAME POSITION IN VIEW OF THE CONVERSION OF THE MUNICIPALITY
INTO A CITY DURING HIS LAST TERM…

•

(b) How would you rule on whether or not Manuel is eligible to run as Mayor of the newlycreated City of Tuba immediately after having already served for three (3) consecutive
terms as Mayor of the Municipality of Tuba?

•

LATASA DOCTRINE READ IT AGAIN!!!

•

Law on Public Officers

Outline of Topics: Based on 2012 Bar Syllabus
I. Law on Public Officers
1. General Principles
2. Modes of Acquiring Title to Public Office
3. Modes and Kinds of Appointment
4. Eligibility and Qualification Requirements
5. Disabilities and Inhibitions of Public Officers
6. Powers and Duties of Public Officers
7. Rights of Public Officers
8. Liabilities of Public Officers
a. Preventive Suspension and Back Salaries
b. Illegal Dismissal, Reinstatement and Back Salaries
9. Immunity of Public Officers
10. De Facto Officers
11. Termination of Official Relation
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
14. Term Limits [????]
1.

General Principles

a. Public Office – the right, authority and duty (it has no physical existence), created and
conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portions of the sovereign functions of the
government, to be exercised by that individual for the benefit of the public. [Sto. Tomas case]
•

Public office is a public trust

•

ART. XI-ACCOUNTABILITY OF PUBLIC OFFICERS

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
Used in 2 Senses:
1. To any major fundamental unit of a department (OFFICE OF THE OMBUDSMAN, OFFICE
OF THE COURT ADMINSTRATOR)
2. To a position held or occupied by an individual (OFFICE OF THE MAYOR)
b. Public Officer – one who holds a public office
A public officer is a person whose duties involve the exercise of discretion in the
performance of the functions of government.
Employees – (ARE THOSE WHO ONLY PERFORM MINISTERIAL DUTIES)
RPC, Art. 203 – Crimes Committed by Public Officers [IT INCLUDES OR COVERS
employees]
RA No. 3019 [also includes employees, including government owned or controlled
corporations with original charters as well as subsidiaries
Is salary an element of public office? NO!! IT IS NOT AN ELEMENT OF PUBLIC OFFICE … AS
LAWYERS AND NOTARIES ARE PUBLIC OFFICERS AND YET THEY DO NOT RECEIVE
SALARY FROM THE GOVERNMENT!!
-lawyers
-notaries
Laurel v. Desierto, April 12, 2002
President Aquino issued AO No. 233 constituting a committee for the National Centennial
Celebration of 1998. Subsequently, President Ramos named Salvador Laurel as chair. Later he
was charged with violating rules on public bidding in the award of centennial contracts.
Laurel claims that he is not a public officer and the NCC was not a public office. Does the OMB
have jurisdiction over him?
Held: Yes. As Chair of the NCC, Laurel is a public officer. The characteristics of a public office
include delegation of sovereign functions, its creation by law and not by contract, an
oath salary and continuance of the position. While it may be true that Laurel received no
compensation, salary is a mere incident and forms no part of the office. The position of an
NCC chair may be characterized as an honorary, as opposed to a lucrative office.
SO SALARY IS NOT AN ELEMENT OF PUBLIC OFFICE!!
Is continuity a requirement?
Art. VI. Section 13. No Senator or Member of the House of Representatives may 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, during his
term without forfeiting his seat.
•

NOTE THAT WHEN WE SPEAK OF PUBLIC OFFICE, CONTINUITY IS A
REQUIREMENT!!! THERE WAS THIS CONGRESSMAN WHO USED TO MAKE LECTURES
TO PHILJA.. DOJ MADE AN OPINION STATING THAT WHILE TEACHING IN PHILJA

IS NOT AN OFFICE, IT IS AN EMPLOYMENT.. YOU VIOLATED THE CONSTITUTION..
•

THE POINT SIMPLY IS THAT WHILE EMPLOYMENT NEED NOT REQUIRE
CONTINUIITY, OFFICE REQUIRES CONTINUITY AS ITS ELEMENT..!!

Other Characteristics:
1. Not a property right protected by the Bill of Rights, but protected by due process [Bince
case](EMPHASIS IS THAT IT IS NOT PROTECTED BY THE BILL OF RIGHTS IN THAT IT CAN
BE ABOLISHED WHERE YOU CANNOT CLAIM THAT YOU WERE NOT GIVEN PRIOR
NOTICE.. HOWEVER, ONCE THERE IS A DISPUTE BETWEEN TWO PERSONS CLAIMING AN
OFFICE, EACH PARTY IS ENTITILED WITH DUE PROCESS BEFORE COMELEC IN THE CASE
OF A LOCAL ELECTIVE OFFICIAL..
2. Not transmissible upon death [De Castro case] FPJ CASE WHERE SUSAN ROCES WAS MADE
A SUBSTITUTE TO REPLACE FPJ IN AN ELECTION PROTEST.. IT CANNOT BE DONE AS IT
IS NOT TRANSMISSIBLE!!
Bar Question, 2011
•

59. A private person constituted by the court as custodian of property attached to secure a
debt sought to be recovered in a civil proceeding is

•

A. a private sheriff.

•

B. a public officer.(MAY BE HIS A PUBLIC OFFICER FOR THAT PURPOSE ONLY)

•

C. a private warehouseman.

•

D. an agent of the party to whom the property will ultimately be awarded.

2. Modes of Acquiring Pubic Office
a. appointment
b. election
c. succession [limited] [only when specifically allowed by law and only in elective
positions]
-SUCCESSION APPLIES ONLY TO SOMEONE WHO IS ALREADY IN PUBLIC OFFICE (LGU)
3. Modes and Kinds of Appointment
A. Appointment – the designation of a person by the person or persons having authority therefor
to discharge the duties of some office or trust.
Can the law itself appoint? The law creates the office and provides for the qualifications but it
cannot designate the person who is to occupy it.
CONSIDER APPOINTMENT AS EXECUTIVE IN NATURE.. IT CANNOT BE EXERCISED BY THE
CONGRESS!!
Can one be appointed to a non-vacant position?
[Filling of a position where the previous occupant has been illegally dismissed. (General Manager
v. Monserate, Apr. 17, 2002] (YOU ARE NOT ALLOWED TO APPOINT ONE TO A NON VACANT
POSITION AS WHEN YOU FILL A POSITION WHERE THE PREVIOUS OCCUPANT HAS BEEN
ILLEGALLY DISMISSED…. IN THE EVENT THE LATTER IS RESTORED TO THE POSITION,
THE APPOINTMENT MADE TO THAT NEW ONE WILL BE VOIDED!!! RESTORED EMPLOYEE
IS CONSIDERED AS NOT TO HAVE LEFT THE OFFICE FOR ANY MOMENT!!
Exception: Anticipated vacancy, where no law prohibits the appointment. [resignation to
take effect in the future]
•

THIS HAPPENS USUALLY WHEN A PERSON TENDERS RESIGNATION EFFECTIVE ON
SOME DATE.. PRIOR TO THE EFFECTIVITY THEREOF, THE APPOINTING AUTHORITY
MAY APPOINT SOMEONE TO THAT ANTICIPATED VACANCY PROVIDED THAT NO

LAW PROHIBITS SUCH APPOINTMENT
De Rama v. CA, 353 SCRA 94 (2001)Can local executives appoint during the “midnight” period provided in the Constitution?
IF WE TAKE A LOOK AT THE LGC, THERE IS NO PROHIBITION ON MIDNIGHT
APPOINTMENT.. SUCH PROHIBITION IS APPLIED ONLY TO THE PRESIDENT!!
Appointments during election banOEC, Sec. 261 (g): 45 days before a regular election and 30 days before a special election.
NOTE THE DISTINCTION OF PROHIBITION ON MIDNIGHT APPOINTMENT AND ELECTION
BAN..
•

FIRST, THE NUMBER OF DAYS

•

SECOND, IN CASE OF LOCAL OFFICIALS, THE PROHIBITION OF APPOINTMENT IS
NOT ABSOLUTE AS HE CAN STILL APPOINT DURING SUCH ELECTION BAN
PROVIDED HE IS ABLE TO PROCURE AUTHORITY FROM THE COMELEC

Who can appoint?
The power to appoint is executive in nature.
President

i.

a. by himself alone (PLENARY)
b. with the consent of the COA
c. with the recommendation of the JBC
ii.

Supreme Court/Congress/Commissions/OMB (THEY ARE AUTHORIZED TO MAKE
APPOINTMENTS)

iii. Heads of Departments/Offices/RD’s (FOR INSTANCE THE APPOINTMENT OF ASSISTANT
PROSECUTION ATTORNEY (APA) IS APPIOINTED BY THE SECRETARY OF JUSTICE..
ALSO PAO LAWYERS ARE APPOINTED BY HEAD OF PAO ATTY ACOSTA.. RDS ARE
ALLOWED TO APPOINT FIRST LEVEL EMPLOYEES
iv. Local Executives
- locally paid employees
Barangay Chairmen:
-barangay secretary
-treasurer – not subject to CSC attestation
See Alquizola v. Ocol, 313 SCRA 273 (1999)
APPOINTMENT MADE BY PUNONG BARANGAY REQUIRES THE CONCURRENCE OF THE
BARANGAY COUNCIL… OTHERWISE IT IS NULL AND VOID
Some Modifications:
1. City, municipal and provincial Treasurer and their Assistants, Local Executive
nominates 3 and the Secretary of Finance appoints from the list
2. Provincial, City or Municipal Budget Officer. [Local Chief Executive nominates 3, and the
DBM Secretary appoints from the list---E.O. No. 112] Bar Question 1999, No. 5]
2. Chief of Police [Chosen by the Mayor from a list of 5 recommended by the Regional Police
Director. The Regional Director then appoints]
Andaya v. RTC, 319 SCRA 696 (1999)

The Regional Director, Police Command No. 7, submitted a list of 5 for the Mayor to choose
from. The Mayor did not choose because he wanted someone not in the list. The RTC ordered the
Regional Director to include the name in the list.
Held: Under Sec. 51 of RA 6975, the Mayor must choose from the list of 5 given to him,
then the Regional Police Director appoints that person. Mayor has no power to appoint,
much less can he require the Regional Police Director to include the name of any officer.
c. Prohibitions on appointments [Constitution]
1. Art. IX – no designation in a temporary or acting capacity to the 3 Commissions
2. Art. VIII – no designation of justices of the Supreme Court and judges of lower
courts to an agency performing judicial and quasi-judicial function
3. Art. XV – no member of the AFP in active service shall be appointed or designated to
a civilian position

B. Designation [Acting]- (SIMPLY MEANS A PERSON IS HOLDING A POSITION IN ACTING
CAPACITY)
Dimaandal v. COA, 291 SCRA 324 (1998)
Dimaandal, then Supply Officer III, was designated as Acting Assistant Provincial Treasurer by
the Governor. Is he entitled to the difference in salary and allowances?
Held: The designation by the Governor is void. Under Sec. 471 of the LGC, an Assistant
Treasurer can only be appointed by the Secretary of Finance. Under Art. 2077 of the
Administrative Code, the appointing authority can order payment to the employee
designated or temporarily appointed.
NOTE THAT DESIGNATION CONNOTES ADDITIONAL DUTIES

Moreover, designation only connotes additional duties to a person already in public
service. It does not entail the right to receive the salary for the position.
Lessons: 1. Only the appointing authority can designate [except if QPA applies] AS
WHEN A CITY PROSECUTOR MAY BE APPOINTED BY THE SECRETARY OF JUSTICE IN
VIEW OF THE DOCTRINE OF QUALIFIED AGENCY!!! THE ACTS OF THE SECRETARY ARE
DEEMED TO THE ACTS OF THE PRESIDENT!
2. One can only be entitled to the salary If the appointing authority ALLOWS IT
IN the designation.
[3. It is temporary and one does not enjoy security of tenure.]
President’s Power to DesignateAdministrative Code 0f 1987:
•

Section 17. Power to Issue Temporary Designation. -

•

(1) The President may temporarily designate an officer already in the government
service or any other competent person to perform the functions of an office in the
executive branch, appointment to which is vested in him by law, when: (a) the
officer regularly appointed to the office is unable to perform his duties by reason
of illness, absence or any other cause; or (b) there exists a vacancy;

•

ONLY THE PRESIDENT CAN DESIGNATE SOMEBODY WHO IS NOT IN GOVERNMENT
SERVICE!!”ANY OTHER COMPETENT PERSON!!”

•

FOR OFFICIALS LOWER THAN THE PRESIDENT, THEY CANNOT DESIGNATE AN
OUTSIDER..

•

THE PRESIDENT CAN MAKE DESIGNATION WHETHER OR NOT THE CONGRESS IS
IN SESSION!! DESIGNATION REQUIRES NO CONFIRMATION!!

•

(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.

•

(3) In no case shall a temporary designation exceed one (1) year.

4. Eligibility and Qualification Requirements
The Constitution or the Congress, by law, can provide for qualifications and
disqualifications.
CONGRESS IS ALLOWED TO PROVIDE FOR QUALIFICATIONS AS IT IS THE ONE WHO
CREATES OFFICE!!
NOTE ALSO THE PROVISIONS IN THE CONSTITUTION WHERE IT PROVIDES THE
QUALIFICATIONS BUT AUTHORIZES CONGRESS TO ADD SOME MORE AS IN THE CASE OF
THE COMMISSION OF HUMAN RIGHTS AND JUDGES IN LOWER COURTS!!
Juliano v. Subdio, 62 SCA 481
Alino was appointed by the Mayor as City Legal Officer. The CSC, however, disapproved it
on the ground that he lacked 4 years of trial work. This qualification, however, is not found in any
statute.
Held: The CSC has no authority, not even in the exercise of its constitutional power “to
adopt measures to promote efficiency in government service” to add qualifications to an
office.
Only the Constitution or the Congress, by law, can provide for qualifications and
disqualifications.
Limits on Congress:
1. The Congress cannot also provide for narrow qualifications in such a way that the
appointing authority is forced to appoint one person. [Flores v. Drilon: Qualifications of the
Chairman of the SBMA – He must be the Mayor of Olongapo City.
The principle here is that THE POWER TO APPOINT IS DISCRETIONARY… AND IT CEASES
TO BE DISCRETIONARY IF THE APPOINTING AUTHORITY IS LEFT WITH NO CHOICE BUT
TO APPOINT THE RECOMENDEE!
2. Unless clearly provided otherwise, the Congress cannot add to the qualifications insofar as
constitutional positions (FOR THE PURPOSE OF PRESERVING AND MAINTAINING
INDEPENDENCE OF SUCH BODIES). Pimentel v. COMELEC
IN THIS CASE, THE LAW PASSED BY CONGRESS PROVIDED FOR THE MANDATORY DRUG
TESTING ON ALL CANDIDATES!! HELD: UNCONSTITUTIONAL!! YOU CANNOT ADD
QUALIFICATION SET FORTH IN THE CONSTITUTION!!
What about disqualifications(NEGATIVE TRAITS THAT RENDERS YOU UNFIT TO HOLD AN
OFFICE)? Examples:
1. Sec. 66 of the LGC: “The penalty of removal from office as a result of an
investigation shall be considered a bar to the candidacy of respondent for any elective
position.”
NOTE THAT CONGRESS CAN ADD DISQUALIFICATIONS even to positions OF SENATOR,
PRESIDENT ETC as manifested in the above provisions!!

2. BP Blg. 881:Section 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, unless he has been given plenary pardon or granted
amnesty.
SO YOU CANNOT RUN FOR PRESIDENT IF FALL UNDER THIS CATEGORY.. NOTE THE WORD
DISQUALIFIED TO BE A CANDIDATE AND TO HOLD ANY OFFICE!!
3. Revised Penal Code penalties providing for disqualification from office in case of conviction.
Pimentel v. COMELEC – RA No. 9165
•

Section 36. Authorized Drug Testing. –….. The following shall be subjected to undergo drug
testing: xxx

•

(g) all candidates for national or local government shall undergo a mandatory drug test.
ILLEGAL!

•

OBSERVATION: CRITICSM

1.

IT SEEMS LIKE IT IS NOT A QUALIFICATION OR DISQUALIFICATION BECAUSE IT
IS ONLY SAYS THAT YOU MUST UNDERGOE DRUG TESTING!! IT DOES NOT SAY
WHAT WILL HAPPEN IF YOU TURNED OUT TO BE POSITIVE, HOW CAN YOU
DECLARE IT CONSITITUTIONAL?

2.

ASSUMING THAT IT IS A DISQUALIFIATION AS IT SEEMS TO SAY THAT IF YOU
TURNED OUT TO BE POSITIVE, YOU CANNOT RUN FOR ANY POSITION, CONGRESS
IS NOT PROHIBITED FROM ADDING DISQUALIFICATIONS EVEN TO
CONSITITUTIONAL POSITIONS~

•

IT SHOULD HAVE BEEN DECLARED ONLY UNCONSTITUTIONAL IN SO FAR AS IT
ADDS TO THE QUALIFICATION FOR SENATOR PROVIDED BY THE CONSTITUTION..
HOWEVER, EMPHASIS SHOULD BE PLACED THAT IT COULD NOT BE ILLEGAL AS TO
CANDIDATES FOR LOCAL GOVERNMENT SINCE CONGRESS CAN ADD
QUALIFICATIONS TO POSITIONS FOR LOCAL ELECTIVE OFFICIALS IN LGC

HENCE, WE ARE CRITITZCIZING WHY THE WHOLE PROVISIONS DECLARED TO BE
UNCONSTITUTIONAL!
BUT THE PRINCIPLE IS THAT CONGRESS CANNOT ADD QUALIFICATIONS TO A
CONSTITUTIONAL POSITION!!!!! THE AUTHORITY HAS ALREADY SETTLED THAT!!
IN PUBLIC OFFICERS THE WORD Qualifications: Used in two senses1. as attributes or qualities of the individual(NATURAL BORN, AT LEAST 25 YRS OLD…)
2. “fails to qualify” – (FAILURE)
a. taking of oath [Mandiza v. Laxina, 406 SCRA 156]
b. posting of bond
Art. 236 of the RPC: Anticipation of Duties (PUNISHABLE UNDER THIS PROVISIONS IF YOU
ASSUME OFFICE WITHOUT TAKING AN OATH!!
Usual Qualifications:
1.

citizenship, whether natural-born or naturalized, or dual

2.

Age

3.

Residency (LOCAL ELECTIVE OFFICIALS)

4.

Register voter

5.

Literacy ABLE TO READ AND RIGHT

6.

Profession

7.

Civil Service Eligibility

Disqualifications: Negative Attributes – USUALLY FOUND IN THE CONSTITUIONS OR LAW
(Constitutional or Statutory)
1.

Candidate in the immediately preceding election [Commissions]

2.

Loser in a previous election within one year [Art. IX-B] LAME DUCK PROVISION WHERE
YOU ARE BARRD FROM BEING APPOINTED WITHIN ONE YEAR FROM THE DATE OF
PREVIOUS ELECTION WHERE YOU LOSE!!

3.

Office or emolument created/increased during your term APPLIES TO SENATORS AND
CONGRESSMEN

4.

Arising from relationship –Presidential relatives within 4th civil degree

5.

Military personnel in active service to civilian positions [Art. XVI]

•

2010 Bar Exam, No. XVII

•

During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP
checkpoint for carrying highpowered firearms in his car. He was charged and convicted for
violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for
executive clemency. Acting on the favorable recommendation of the Board of Pardons and
Parole, the President granted him pardon. Is he eligible to run again for an elective position?
Explain briefly. (5%)

•

NO! HE INELIGIBLE BECAUSE THERE WAS NO RECOMMENDATION FROM THE
COMELEC!!!! NOTE THE OFFENSE UNDER WHICH HE WAS CONVICTED IS AN
ELECTION OFFENSE… AND THE PRESIDENT CANNOT GRANT PARDON WITHOUT
COMELEC RECOMMENDATION.. WE ARE SETTLED WITH THIS ALREADY!!!

5. Disabilities and Inhibitions of Public Officers
a. Prohibition on Conflict of Interest
b. Prohibition on Nepotism
c. Prohibition on Partisan Political Activity
d. Prohibition on Additional Position
e. Prohibition on Double Compensation
f. Prohibition on Practice of Profession
g. Prohibition on Purchase of Property
a. Prohibition on Conflict of Interest
•

RA No. 6713 - SEC. 9. Divestment.-A public official or employee shall avoid conflicts of
interest it all times. When a conflict of interest arises, he shall resign from his
position, in any private business enterprise within thirty (30) days from his
assumption of office and/or divest himself of his shareholdings or interest within
sixty (60) days from such assumption.

•

The same rule shall apply where the public official or employee is a partner in a
partnership.

•

Republic Act No. 6713

•

(i) “Conflict of interest” arises when a public official or employee is a member of a
board, an officer, or a substantial stockholder of a private corporation or owner or
has a substantial interest in a business, and the interest of such corporation or
business, or his rights or duties therein, may be opposed to or affected by the
faithful performance of official duty.

•

Dean shared about his client, a DECS official, who used to borrow loan from a rural
bank pursuant to an agreement for automatic deduction of amortization in her
salary…. NO CONFLICT INTEREST THERE… the client has no substantial interest in
such bank nor he has a share there!!!

•

Another clear case of a CONFLICT OF INTEREST is when a Mayor is the owner of
the gasoline station with which the LGU he is administering is procuring
gasoline…. HERE CONFLICT OF INTEREST IS VERY CLEAR!!!

Rabe v. Flores, 272 SCRA 419:
Court Interpreter who owned stalls in the Panabo Public Market which she rented out.
She is not required to divest, but she must divulged.
NO CONFLICT OF INTEREST THERE!!! OWNING MARKET STALL HAS NO RELATION WITH
HER BEING A COURT INTERPRETER, NOR CONFLICT WILL ARISE IN THE PERFORMANCE
OF HIS DUTIES BUT SHE WAS CONVICTED FOR FAILURE TO DIVULGE THE SAME IN THE
SALN!!!
IN THAT INSTANCE, SHE IS NOT REQUIRED TO DIVEST, BUT SHE MUST DIVULGE!!
OTHERWISE SALN LAW WILL BE VIOLATED!!
2. Prohibition on Nepotism VIP
•

PD 807, Section 49. Nepotism. (a) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including governmentowned or controlled corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.

•

As used in this Section, the word "relative" and members of the family referred to are
those related within the third degree either of consanguinity or of affinity.

•

TAKE NOTE THAT THIS INCLUDE GOCC WITHOUT ANY DISTINCTION AS TO W/N IT
IS WITH ORIGINAL CHARTER OR NOT

IT APPLIES TO SUBSIDIARIES!!!!
Elements:
1.

In favor of a relative of:

a) the appointing authority
b) the recommending authority
c) the chief of the bureau or office
d) persons exercising supervision over him
2.

the appointee is a relative within the 3rd civil degree

note: that the degree of relation in Nepotism is very loose as it only covers relatives
within 3rd civil degree as distinguished to that prohibitition on the appointment of
Presidents relatives under the constitution and that of the LCE under LGC which are
limited up to 4th civil degree which is MORE RESTRICTIVE!!! Take note!!!
WHEN THE MAYOR APPOINTS, THE PROVISIONS OF THE LOCAL GOVERNMENT CODE
SHALL APPLY!! IF THE PRESIDENT APPOINTS, THE PROVISION OF THE CONSTITUTION
SHALL APPLY!
Exceptions:
(1) persons employed in a confidential capacity, BROTHER OF THE MAYOR MAY BE
APPOINTED AS HIS ADMINSTRATOR!
(2) teachers,

(3) physicians, and
(4) members of the Armed Forces of the Philippines
TAKE NOTE PNP IS NOT INCLUDED!!!
Debulgado v. CSC, 237 SCRA 187
Petitioner, a Mayor, appointed his wife as General Services Officer of the City of San Carlos. It
was more of a promotional appointment as she had been in the service for 32 years.
Held: IT IS COVERED BY THE PROHIBITION!! It applies to all appointments, without
any distinction.
Applies
1. to original appointments and designations and all subsequent personnel actions
such as promotion, transfer and reinstatement (INCLUDES ACTING CAPACITY)!
2. even if marriage occurred long after one was already in government SERVICE..
(NOTE THE PREVIOUS SLIDE, THE WIFE WAS ALREADY IN THE GOVERNMENT SERVICE
BEFORE HE MARRIED HER)
3. without regard to actual merits of the appointee (MEANS THAT EVEN IF YOUR WIFE IS
THE MOST QUALIFIED FOR THE POSITION OR PROMOTION, IT IS STILL COVERED BY THE
PROHIBITION!!)
•
CSC v. Dacoycoy, 306 SCRA 425 (1999)
Respondent was the Vocational School Administrator of Balicuatro College of Arts and Trade.
The appointing authority, who is under respondent, appointed his 2 sons as driver and utility
worker assigned with respondent. Considering that respondent himself did not appoint or
recommend his sons, is he liable for nepotism?
YES! AS HE FALLS UNDER THE CATEGORY d) persons exercising supervision over him.. NOTE
THAT THOUGH THE RESPONDENT IS NOT THE APPOINTING AUTHORITY, THE PERSONS
TO BE APPOINTED OR HIS 2 SONS WILL BE UNDER THE RESPONDENTS SUPERVISION!!!
PRESIDENTIAL DECREE No. 198 May 25, 1973 [Water Districts]
Section 9. Appointment. - Board members shall be appointed by the appointing authority. Said
appointments shall be made from a list of nominees, if any, submitted pursuant to Section 10. If no
nominations are submitted, the appointing authority shall appoint any qualified person of the
category to the vacant position.
Sec. 3 (b) Appointing authority. The person empowered to appoint (INCLUDING THE CHAIRMAN OF
THE BOARD) the members of the board of Directors of a local water district, depending upon the
geographic coverage and population make-up of the particular district. In the event that more
than seventy-five percent of the total active water service connections of a local water
district are within the boundary of any city or municipality, the appointing authority shall
be the mayor of that city or municipality, as the case may be;
TAKE NOTE THAT THE PRESENT CHAIRMAN OF THE BOARD OF A CITY WATER DISTRICT
IS THE WIFE OF THE LCE… APPLYING THE ABOVE PROVISION, IT IS THE CITY MAYOR
WHO IS THE APPOINTING AUTHORITY… HENCE, THERE IS REALLY VIOLATION OF
NEPOTISM THERE!!!
Bar Question, 2011:
•

44. The School Principal of Ramon Magsaysay High School designated Maria, her
daughter, as public school teacher in her school. The designation was assailed on
ground of nepotism. Is such designation valid?

•

A. No, because the law prohibits relatives from working within the same government unit.

•

B. Yes, because Maria’s position does not fall within the prohibition. TEACHERS
ARE ONE OF THE EXCEPTIONS… THIS MUST BE DISTINGUISHED IN DACOYCOY
CASE AS THE PERSONS APPOINTED THERE ARE NOT FOR TEACHER POSITION BUT
THAT OF A UTILITY AND DRIVER… HAHAHAHAHA

•

C. No, because her mother is not the designating authority.

•

D. No, because Maria is related to the supervising authority within the prohibited degree of
consanguinity.

Bar Question, 2010, XV - True or False.
c. The rule on nepotism does not apply to designations made in favor of a relative of the authority
making a designation. FALSE IT APPLIES TO DESIGNATIONS!!!! TAKE NOTE!!! IT APPLIES
EVEN TO APPOINTMENTS IN TEMPORARY CAPACITY!!
Bar Question, 2008, XII •

The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer from
among tree (3) employees of the city considered for the said position. Prior to said
promotion, Amelia had been an Assistant City Treasurer for ten (10) years, that is,
even before she married the City Mayor. Should the Civil Service Commission
approve the promotional appointment of Amelia? Why or why not?

•

IT SHOULD BE DENIED.. IT SHOULD BE NOTED THAT THE APPOINTING
AUTHORITY FOR THE POSITION OF CITY TREASURER BELONGS TO THE
SECRETARY OF FINANCE… THE MAYOR OR THE LCE IS ONLY A RECOMENDATORY
OFFICER (THE ONE WHO NOMINATES) TO SUCH APPOINTMENT..

•

GRANTING ARGUENDO THAT THE MAYOR IS AUTHORIZED TO APPOINT FOR SUCH
POSITION, IT IS PROHIBITED BY LAW UNDER THE DOCTRINE OF NEPOTISM!!

c. Prohibition on Partisan Political Activity
PD 807:
Section 45. Political Activity. 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 he use his official authority or influence
to coerce the political activity of any other person or body.
Partisan Political Activities include those intended:
1. To obtain support for a candidate
2. To undermine support for a candidate
(IT IS REALLY CAMPAIGNING POSITIVELY OR NEGATIVELY LIKE, TELLING PEOPLE TO
VOTE THIS GUY FOR HIS HONESTY OR DO NOT VOTE FOR THAT GUY BECAUSE HE IS
IDIOT!! )
It does not include:
1. Voting for a particular candidate
2. Expressing his views on current political problems or issues,
3. Mentioning the names of candidates for public office whom he supports (NO
PROBLEM WHEN WHEN WE SAY THAT WE WILL VOTE ERAP THIS COMING ELECTION!!)
Exempted from the Prohibition:
1. All elective officials [Sec. 92, LGC] BECAUSE THEY ARE REALLY PARTISAN POLITICAL
ANIMALS!
2. Public officers and employees holding political offices may take part in political and
electoral activities [holding non-career positions: Cabinet members, co-terminus positions]
THESE CABINET MEMBERS ARE EXPECTED TO PARTICIPATE IN POLITICAL AND

ELECTORAL ACTIVITIES TO HELP THE APPOINTING AUTHORITY WIN THE ELECTIONS!!!
d. Prohibition on Additional Position
Art. IX, B- 1987 Constitution:
•

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.
FOR ELECTIVE OFFICIAL, THEY ARE ABSOLUTELY PROHIBITED FROM HOLDING
ADDITIONAL POSITION IN THE GOVERNMENT!!!
Summary:
1. Elective official – absolutely prohibited TO HOLD OTHER POSITIONS!!
2. Appointive –only if allowed by law and the primary functions of his office.
Bar Question, 1995
No. 10. A City Mayor in Metro Manila was designated as Member of the Local Amnesty Board as
allowed under the Implementing Rules of Amnesty Proclamation 34. The LAB is entrusted
with the function of receiving and processing applications for amnesty and recommending to the
National Amnesty Commission approval or denial of the applications. The term of the Commission
and the Local Amnesty Boards under it expires upon the completion of its assigned tasks as may be
determined by the President.
May the City Mayor accept his designation without forfeiting his elective position in the light
of the provision of Sec. 7, Art. IX-B of the 1987 Constitution?
THE CITY MAYOR IS ABSOLUTELY PROHIBITED FROM HOLDING SUCH ADDITIONAL
FUNCTIONS.. IN FACT, IT IS ONLY AN IRR THAT AUTHORIZES THE DESIGNATION OF THE
CITY MAYOR TO THE LAB!! IT IS NOT EVEN ALLOWED BY THE LAW ITSELF!! EVEN
GRANTING ARGUENDO THAT ITS IS ALLOWED BY LAW, IT DOES NOT APPLY ELECTIVE
OFFICIAL!!! IT APPLIES ONLY TO APPOINTIVE OFFICIALS!!
e. Prohibition on Double Compensation
Art. IX, B
•

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.

“unless specifically authorized by law,”- IS OBSERVED TO BE CONFUSING IN SO FAR AS
ELECTIVE PUBLIC OFFICER IS CONCERNED BECAUSE IN THE FIRST PLACE, THEY ARE
TOTALLY PROHIBITED FROM HOLDING ANY OTHER OFFICE!!! NOTE THAT DOUBLE
COMPENSATION CAN BE HAD ONLY IF YOU ARE HOLDING TWO DIFFERENT POSITION
ALLOWED BY LAW!!!!!
The prohibition on double compensation applies to public office, not private.
What about compensation from private sources?
•

RA No. 6713- Section 7. Prohibited Acts and Transactions. - In addition to acts and
omissions of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:

•

( (b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:

•

(1) Own, control, manage or accept employment as officer, employee, consultant,
counsel, broker, agent, trustee or nominee in any private enterprise regulated,
supervised or licensed by their office unless expressly allowed by law;

•

OTHERWISE STATED, THERE IS NO PROHIBITION FROM GETTING COMPENSATION
FROM PRIVATE SOURCES OR EMPLOYMENT UNLESS THE SUCH OFFICE OR PRIVATE
ENTERPRISE IS REGULATED OR SUPERVISED OR LICENSED BY YOUR OFFICE!!!

•

FOR EXAMPLE, I CANNOT HAVE AN INTEREST IN A COCKPIT ISSUED WITH
LICENSE BY LGU CARMEN…!!!

•
Some considerations:
1. Teaching- you just secure the consent of the head of office.. There is no problem in
private employment!
2. Notarization- omb prosecutors, clerk of court are not allowed… but there are some
lawyers working in the government are authorized to notarize like lawyers of Philhealth
and Comelec by securing permit from appropriate agency!!

f. Prohibition on Practice of Profession (with respect to double compensation in
reference to private employment): [RA No. 6713]
•

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public official and employee and are
hereby declared to be unlawful:

•

( (b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:

•

(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided, that such practice will not conflict or tend to conflict
with their official functions;

•

Congressmen and Senators are authorized by the constitution to practice law
provided they do not appear before a court

•

“provided, that such practice will not conflict or tend to conflict with their official
functions”– does not refer to conflict of interest… it is more broader.. For
instance, you practice law at day time!! It will conflict you time which should have
been devoted to public office..

•

A clerk of court cannot make pleadings or legal advises without without a law
authorizing the same.. Best way to practice law for a COC is to seek permission
from COURT ADMINSTRATOR

•

LGC, Section 90. Practice of Profession (IN THE LOCAL GOVERNMENT UNIT). -

•

(a) All governors, city and municipal mayors are prohibited from practicing their
profession or engaging in any occupation other than the exercise of their functions
as local chief executives.

•

(b) Sanggunian members (including Vice Mayor since he is a member of the SB SP)
may practice their professions, engage in any occupation, or teach in schools
except during session hours: Provided, That sanggunian members who are also
members of the Bar shall not:

•

(1) Appear as counsel before any court in any civil case wherein a local government
unit or any office, agency, or instrumentality of the government is the adverse

party;
•

(2) Appear as counsel in any criminal case wherein an officer or employee of the national
or local government is accused of an offense committed in relation to his office.

•

(3) Collect any fee for their appearance in administrative proceedings involving the local
government unit of which he is an official; and xxx

•

(c) Doctors of medicine may practice their profession even during official hours of work
only on occasions of emergency: Provided, That the officials concerned do not derive
monetary compensation therefrom.

g. Prohibition on Purchase of Property
•

1. Art. 1492, Civil Code - Art. 1491. The following persons cannot acquire by purchase,
even at a public or judicial auction, either in person or through the mediation of another:

(4) Public officers and employees, the property of the State or of any subdivision thereof, or
of any government-owned or controlled corporation, or institution, the administration of
which has been intrusted to them; this provision shall apply to judges and government experts
who, in any manner whatsoever, take part in the sale;

•

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior
courts,and other officers and employees connected with the administration of
justice, the property and rights in litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in which they may take part by
virtue of their profession.

6. Powers and Duties of Public Officers
In a democratic and republican government, soverignty or power resides in the people. But
we delegated its exercise to our elected representatives and some appointed officials.
Sources of power:
1. Constitution
2. Statutes
Classification of Power:
1. Ministerial –.
One which a person performs on a given statement of facts, and in a prescribed
manner, in obedience to the mandate of law, without regard to, or the exercise of, his
own judgment, upon the propriety or impropriety of the act done.
2. Discretionary –
One that requires the exercise of reason in the adoption of the means to an end, and
discretion in determining how and when the act may be done or the course pursued.
Discretion in the manner of the performance of an act arises when the act may be
performed in one or two or more ways, either of which would be lawful, and where it is
left to the will or judgment of the performer to determine in which way it will be
performed. [policy making or judgment]
Important in:
1. distinction between officer and an employee ::: OFFICER exercises discretion while
EMPLOYEE only exercises ministerial duties
2. applying presumption of regularity in the performance of official functions::: the
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICAL FUNCTIONS APPLIES

ONLY TO MINISTERIAL DUTIES AND NOT TO DISCRETIONARY ONE
3. susceptibility to delegation- MINISTERIAL DUTIES CAN BE DELEGATED BUT NOT
DISCRETIONARY DUTIES!!
Examples:
1. Clerk of Court/Judge (CLERK OF COURT HAS NO DISCRETION W/N TO ACCEPT
PLEADINGS!!! HIS POWER IS ONLY MINISTERIAL!! IF THERE IS DEFECT TO THE
PLEADINGS, IT IS ADDRESSED TO THE SOUND DISCRETION OF THE JUDGE!!.. COC
CANNOT REFUSE TO RECEIVE PLEADING ON THE GROUND OF DEFECT)
2. Power of the President to appoint a Chief Justice.. IT MUST BE DISTINGUISHED .. IT IS
MINISTERIAL IN THE SENSE THAT HE HAS TO APPOINT UPON SUBMISSION OF THE JBC
RECOMMENDATION.. IT IS DISCRETIONARY IN THE SENSE THAT HE EXERCISE
DISCRETION AS TO WHO SHOULD BE APPOINTED!!
3. 1989 Bar Question, [summarized] No. 17. Can the City Mayor of Manila delegate his power to
issue subpoena (HERE THE CITY OF MANILA IS AUTHORIZED BY ITS CHARTER TO ISSUE
SUBPEONA!!)in the course of investigation to a Committee? See Carmelo v. Ramos, 6 SCRA 836THE SAME CANNOT BE DELEGATED AS SUCH POWER IS DISCRETIONARY IN NATURE!!
HOWEVER IN COURT, THE POWER TO ISSUE SUBPEONA BY THE CLERK OF COURT IS
MINISTERIAL… ONCE IT IS ASKED, HE MUST ISSUE THE SAME!!!
Bar Question, 2011
54. When the Civil Service Commission (CSC) approves the appointment of the
Executive Director of the Land Transportation Franchising and Regulatory Board who
possesses all the prescribed qualifications, the CSC performs
•

A. a discretionary duty.

•

B. a mix discretionary and ministerial duty.

•

C. a ministerial duty. NOTE THAT ONCE AN APPOINTED EMPLOYEE MEETS THE
MINIMUM QUALIFICATION FOR THE POSITION APPLIED , THE CSC HAS TO
APPROVE THE SAME. IT IS MINISTERIAL AS WE WILL LEARN LATER ON CSC
PROVISIONS

•

D. a rule-making duty.

•

Bar Question, 2010, No. 15

•

True or False.

•

C. A discretionary duty of a public officer is never delegable. (0.5%) TRUE! FOR
INSTANCE THE JUDGE CANNOT DELEGATE HIS POWER TO ISSUE WARRANTS OR
TO RENDER DECISIONS

Duties of Public Officers: RA No. 6713
1. Disclosure of assets/liabilities and net worth
2. Act promptly on letters and requests [15 days] OTHERWISE HE WILL BE LIABLE
ADMINISTRATIVELY AND CRIMINALLY!!
3. Make documents accessible to the public THIS HAS REFERENCE TO THE RIGHT TO
INFORMATION ON MATTERS OF PUBLIC CONCERN
7. Rights of Public Officers
a. To form organization
b. To compensation
c. To vacation, sick and maternity leave
d. To retirement benefits

a.

Right to organize

-guaranteed by Sec. 8 of the Bill of Rights, “including those in the public and private sectors.
-but no labor-management committees for AFP, PNP, Jail Guards and FiremenBar Question, 2000
No. 12: Are employees in the public sector allowed to form unions? To strike? Why? THE
RIGHT TO FORM UNION IS GUARANTEED BY THE CONSTITIUTION!!! BUT NOT YET TO
STRIKE AS PROVIDED FOR BY LAW
b. To compensation
-the right to compensation springs from law, not from contract, unlike in private
employment. [no strike to improve terms and conditions of employment] THERE IS NO RIGHT
TO STRIKE BECAUSE THE TERMS AND CONDTIONS OF EMPLOYMENT OF PUBLIC
OFFICERS ARE FIXED BY LAW!!!
-Requisites for right:
1. legal title
2. law fixing compensation
Protections ON SALARY!!:
1. cannot be garnished or attached or executed to satisfy a judgment BECAUSE
- in the hands of the disbursing officer, it is still government funds
-forbidden by public policy because it is fatal to public service.. OFFICIALS AND
EMPLOYEES MAY NO LONGER BE WILLING TO WORK!!
-garnishment or attachment is tantamount to a suit against the state
2. Assignment of anticipatory salary is void.
c.

To vacation, sick and maternity leave,disability and funeral benefits

1. LGC, Sec. 81- Elective officials are entitled to the same leave privileges as appointive local
officials
2. Administrative Code, Bk. IV, Ch. 5, Sec. 27- leave without pay not beyond one year
LEAVE WITH OR WITHOUT PAY CANNOT GO BEYOND 1 YEAR.. OTHERWISE, YOU CAN BE
DROPPED WITHOUT NOTICE AND HEARING!!! THAT IS CONSIDERED ABANDONMENT!!
d. To retirement benefits
To be entitled to pension:
1. at least 60 years, and
2. at least 15 years in government service
•

.

Rabor v. CSC, 244 SCRA 625 (1995)
-Rabor was a utility worker in the Office of the City Mayor of Davao. He entered government
service when he was 55 years old. Upon reaching 68 years old and 7 months, he was advised to
retire. He showed a GSIS Certificate of Membership with a notation “service extended to
comply with 15 years service requirements.” After reaching 65, how long can one extend?
CSC-MC- No. 27, Series of 1990 /MC No. 37, S, 1992]
See also Toledo v. COMELEC, 319 SCRA 100 (1999) – [Cena Docrtine]
CSC CIRCULAR PROVIDES THAT IN NO CASE SERVICE EXTENSION EXTEND IN ONE

YEAR!!! HENCE, ONLY 1 YEAR IS ALLOWED TO BE EXTENDED TO COMPLETE 15 YEAR
SERVICE
8. Liabilities of Public Officers
a. Preventive Suspension and Back Salaries
b. Illegal Dismissal, Reinstatement and Back Salaries
Liabilities:
3-Fold Liability Rule – It is possible for a public official to be liable criminally, civilly and
administratively for his acts or inaction. DOUBLE JEOPARDY DOES NOT APPLY HENCE, IN A
SINGLE ACT, YOU CAN BE HELD LIABLE FOR THE ANTI GRAFT LAW, CIVIL SERVICE LAW
AND CIVIL DAMAGES
General principle : Public Officials are not liable for official acts done in good faith. [Ynot
v. IAC –enforcement of an unconstitutional law]]
YNOT- A DECREE OF MARCOS PROHIBITING THE TRANSFER OF CARABAOS WHICH WAS
LATER DECLARED UNCONSTITUTIONAL!!.. YNOT WAS ENFORCING THE LAW
CONFISCATING MEATS.. CAN HE BE HELD LIABLE FOR ENFORCING A LAW DECLARED
UNCONSTITUTIONAL? NO!! BECAUSE PRIOR TO ITS DECLARATION OF
UNCONSTITUTIONALITY, THE PRESUMPTION IS THAT IT IS VALID!! HENCE, HE CANNOT
BE HELD LIABLE!!
Conversely, they are liable for acts done in bad faith, or in excess of their function, if it
results to injury to third persons

a. Preventive Suspension and Back Salaries
Who can impose?
1. Civil Service Commission 90 DAYS
2. Ombudsman NOT EXCEEDING 6 MONTHS
3. Any Disciplining Authority 90 DAYS!!
NOTE THAT THE DISCIPLINING AUTHORITY WITH RESPECT TO ERRING LOCAL ELECTIVE
OFFICIALS IS ONLY 60 DAYS!!
1.

Civil Service Law [PD NO. 807]

•

Section 41. Preventive Suspension. The proper disciplining authority may preventively
suspend any subordinate officer or employee under his authority pending an investigation,
in the charge against such officer or employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty, or if there are reasons to believe that the
respondent is guilty of charges which would warrant his removal from the service.

•

EVEN BEFORE FILING OF ANSER

•

NOTE THAT THERE IS NO REQUIREMENT THAT THE ISSUES BE JOINED BEFORE
THE LOCAL APPOINTIVE OFFICIAL CAN BE PREVENTIVELY SUSPENDED AS
DISTINGUISHED FROM LOCAL ELECTIVE OFFICIAL!!

•

PREVENTIVE SUSPENSION MAY BE IMPOSED EVEN BEFORE THE FILING OF THE
ANSWER BY THE RESPONDENT!!

•

Section 42. Lifting of Preventive Suspension Pending Administrative Investigation. When
the administrative case against the officer of employee under preventive
suspension is not finally decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.

•

90 DAYS UNLESS DELAY IS DUE TO FAULT OF RESPONDENT

2. Ombudsman Act [RA No. 6770]
•

Section 24. Preventives Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.

•

The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay, except when the
delay in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.

•

[MAXUMUM OF 6 MONTHS]

•

TAKE NOTE THAT EVEN LOCAL ELECTIVE OFFICIALS CAN BE PREVENTIVELY
SUPENDED BY THE OMB FOR A PERIOD NOT EXCEEDING 6 MONTHS

•

NOTE ALSO HERE THAT THE OMB CAN IMPOSE PREVENTIVE SUSPENSION
WITHOUT HAVING THE ISSUES JOINED.. OTHERWISE STATED, IT CAN BE
IMPOSED WITHOUT WAITING THE ANSWER OF THE RESPONDENT!!

•

NOTE THAT THE REQUIREMENT THAT THE ISSUES MUST BE JOINED BEFORE
PREVENTIVE SUSPENSION MAY BE IMPOSED APPLIES ONLY TO LOCAL ELECTIVE
OFFICIALS WHICH MUST NOT BE MORE THAN 60 DAYS WHERE THE DISCIPLINING
AUTORITY IS THE SANGGUNIAN OR THE LCE

Garcia v. Mojica, 314 SCRA 207 (1999)- OMB can preventively suspend even before the
filing of an answer. It is merely a preliminary step in an administrative investigation and
not the final determination of the guilt of the official
Note: The requirement that respondent has filed his answer seems to apply only to
elective officials, where the disciplining authority is either the Sanggunian or the Office
of the President.
As to them, preventive suspension is only 60 days
Back Salaries: Entitled
1. RA No. 3019 [which applies to preventive suspension in criminal cases] has a provision
that the employees or officer is entitled to his salaries in the event of acquittal.
REMEMBER THAT COURT IS ARE MANDATED TO IMPOSE PREVENTIVE SUSPENSION FOR
OFFICIALS FACING CRIMINAL CASES FOR VIOLATION OF ANTI-GRAFT LAW….
2. Local Government Code (PREVENTIVE SUSPENSION UNDER LGC)Section 64. Salary of Respondent Pending Suspension. - The respondent official preventively
suspended from office shall receive no salary or compensation during such suspension; but
upon subsequent exoneration and reinstatement, he shall be paid full salary or
compensation including such emoluments accruing during such suspension.
•

HENCE, ENTITLED TO BACK WAGES UNDER LGC!!

Not Entitled: OMB PREVENTIVE SUSPENSION
1. For preventive suspension by OMB [6 months], the law is clear that it is “without
pay”.
Obiter: Gloria v. CA, 306 SCRA 287 (1999)
•

NO BACKWAGES EVEN IF YOU ARE ACQUITTED!! PLEASE TAKE NOTE OF THIS!!!

THE PRINCIPLE SEEMS TO BE “NO WORK NO PAY!!!”

•

2. For preventive suspension under the Civil Service Law, the rule is that a public
officer or employee is not entitled to compensation, regardless of the outcome of the
case. This is based on the principle that one is entitled to compensation only for services
actually rendered. [Civil Service Law is silent]
•

AS A SUMMARY.. YOU ARE NOT ENTITLED TO BACKWAGES DURING PREVENTIVE
SUSPENSION IN THE FOLLOWING:

1.

OMB

2.

CSC

•

THIS IS BECAUSE THE CSC LAW IS SILENT AS TO W/N YOU ARE ENTITLED TO
BACK WAGES IN THE EVENT OF ACQUITTAL!!!

Exception TO CSC RULE ON BACKWAGES:
Bangalisan v. CA, 276 SCRA 631“if he is found innocent of the charges which caused his suspension and if his
suspension is unjustified.”
EXAMPLE FOR THIS SITUATION IS WHEN YOU ARE PREVENTIVELY SUSPENDED FOR A
MINOR OFFENSE OR FOR A GROUND NOT AMONG THOSE STATED BY CSC LAW!!
TAKE NOTE OF THIS!!!
IN SUMMARY WITH RESPECT TO PREVENTIVE SUSPENSION UNDER CSC.., YOU ARE NOT
GENERALLY NOT ENTITLED TO BACKWAGES.. EXCEPTION!! WHEN YOU ARE ACQUITTED
AND THERE IS A PRONOUNCEMENT THAT YOUR SUSPENSION IS UNJUSTIFIED OR THE
SAME WAS WITHOUT BASIS!!
b. Illegal Dismissal, Reinstatement and Back Salaries
What happens if you were found guilty, the decision is executory, but you appealed and the
decision was reversed?
SUSPENSION PENDING APPEAL
NOTE THAT THERE ARE TWO KINDS OF PREVENTIVE SUSPENSION…
1.

ONE BEFORE CONVICTION OR PENDING INVESTIGATION! 90 DAYS OR 6 MONTHS

2.

ONE THAT WHICH IS AFTER THE CONVICTION OR SUSPENSION PENDING APPEAL
(THIS CAN LAST FOR YEARS)

THIS HAS NOT RELATION TO PREVENTIVE SUSPENSION.. THIS IS MORE ON THE
SITUATION WHERE I AM FOUND GUILTY AND NECESSARILY SUCH DECISION IS
IMMEDIATELY EXECUTORY.. PENDING OF MY APPEAL TO SUCH DECISION AND AFTER SO
MANY YEARS LATTER IS REVERSED.. AM I ENTITLED BACKWAGES DURING THE
SUSPENSION PENDING APPEAL?
Gloria v. CA, 306 SCRA 287 (1999)
There are two kinds of preventive suspension of civil service employees:
1. Preventive suspension pending investigation (Sec. 51)
2. Preventive suspension pending appeal
An employee is entitled to payment of salaries for the period of suspension pending appeal if he
is found innocent. The reason for the difference is that preventive suspension (pending
INVESTIGATION) is not a penalty but only a means to enable the disciplining authority to
conduct an investigation. However, preventive suspension pending appeal is actually punitive
although it is in effect considered illegal if respondent is exonerated and the decision finding him
guilty is reversed. On the other hand, of his conviction is affirmed, the period of his suspension

becomes part of the penalty.
•

OTHERWISE STATED, IF YOU ARE SUSPENDED PENDING APPEAL AND IN THE END
YOU ARE ACQUITTED , YOU ARE ENTITLED TO SALARIES DURING SUCH
SUSPENSION PENDING APPEAL BECAUSE YOU ARE REALLY INNOCENT!!

Marombhombsar v. CA, 326 SCRA 62 (2000)
“Such back wages, however, had been limited by earlier decisions to a maximum period
of five (5) years.”- REFERS TO SUSPENSION PENDING APPEAL!!
Bar Question, 2011
5. Mario, a Bureau of Customs’ examiner, was administratively charged with grave misconduct and
preventively suspended pending investigation (FIRST TYPE OF PREVENTIVE SUSPENSION!!). The
head
of office found him guilty as charged and ordered his dismissal. The decision against him
was executed pending appeal. The Civil Service Commission (CSC)
subsequently found him guilty and after considering a number of mitigating
circumstances, reduced his penalty to only one month suspension. Is Mario entitled to back
salaries?
•

A. Yes, the reduction of the penalty means restoration of his right to back salaries.

•

B. No, the penalty of one month suspension carries with it the forfeiture of back salaries.

•

C. No, he is still guilty of grave misconduct, only the penalty was reduced. NOTE
THAT HE WAS NOT ACQUITTED.. HE WAS STILL FOUND GUILTY ONLY THAT THE
PENALTY WAS REDUCED.. SAME PRINCIPLE ALSO APPLIES WHEN CONVICTED BUT
UPON APPEAL, HE IS ONLY REPRIMANDED…..

•

D. Yes, corresponding to the period of his suspension pending appeal less one

•

month.

Bar Question, 2011/Also asked in 2001, No. 15
•

33. X, an administrative officer in the Department of Justice, was charged with grave
misconduct and preventively suspended for 90 days pending investigation. Based on the
evidence, the Secretary of Justice found X guilty as charged and dismissed him
from the service. Pending appeal, X's dismissal was executed. Subsequently, the Civil
Service Commission (CSC) reversed the Secretary’s decision and the reversal
became final and executory. What is the effect of X's exoneration?

•

A. X is entitled to reinstatement and back salaries both during his 90 day preventive
suspension and his suspension pending appeal.

•

B. X is entitled to reinstatement and back salaries corresponding only to the period of delay
caused by those prosecuting the case against him.

•

C. X is entitled to reinstatement but not to back salaries on ground of “damnum absque
injuria.”

•

D. X is entitled to reinstatement and back salaries during his suspension pending
appeal.

Bar Question, 2009
•

X. Maximino, an employee of the Department of Education, is administratively charged with
dishonesty and gross misconduct. During the formal investigation of the charges, the
Secretary of Education preventively suspended him for a period of sixty (60) days. On the
60th day of the preventive suspension, the Secretary rendered a verdict, finding Maximino
guilty, and ordered his immediate dismissal from the service.

•

Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretary's

decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA
reversed the CSC decision, exonerating Maximino. The Secretary of Education then
petitions the Supreme Court (SC) for the review of the CA decision.
•

[a] Is the Secretary of Education a proper party to seek the review of the CA decision
exonerating Maximino? Reasons. (2%) PREVAILING JURISPRUDENCE HAS IT THAT
ANY PARTY TO THE PROCEEDINGS CAN APPEAL INCLUDING THE GOVERNMENT!!
HENCE SECRETARY OF EDUCATION IS A PROPER PARTY!!

•

[b] If the SC affirms the CA decision, is Maximino entitled to recover back salaries
corresponding to the entire period he was out of the service? Explain your answer.

(3%)

HE IS ENTITLED ONLY THAT PORTION CORRESPONDING THE DURATION OF THE
SUSPENSION PENDING APPEAL BUT IT MUST NOT EXCEED TO THE PERIOD OF 5 YEARS!!

PUBLIC OFFICERS
Part II
9. Immunity of Public Officers
10. De Facto Officers
11. Termination of Official Relation
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal
Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
9. Immunity of Public Officers
Public officers enjoy limited or qualified immunity, that is to protect them in the performance
of their official duties.
Public officers derived this immunity from the Doctrine of State Immunity.. If the state is
immune, the officers who act in the name of the STATE also enjoy LIMITED IMMUNITY!!
In general, they are entitled to immunity if:
1.

When their actions have authority under law; and

2.

They perform it in a legal manner

THIS IS IMPORTANT TO ENSURE THESE PEOPLE WILL WORK FOR THE GOVERNMENT!!
OTHERWISE STATE, IF THEY WILL NOT BE CLOTHED WITH THIS IMMUNITY, THEY MAY
NO LONGER BE INTERESTED TO WORK IN THE GOVERNMENT!! ONCE THESE 2
REQUISITES ARE PRESENT, YOU ENJOY PROTECTION OF THE IMMUNITY!!
Notes: PRINCIPLES
1. The principle is that public officials are not liable for acts done in good faith.
2. Immunity does not apply in suits to restrain or enjoin them to perform certain

acts, since it involves no personal liability on the part.- this involves suits for injuction or
mandamus!! Because that cases involve no personal liability on the part of the public
officer…. With that, you are not immune from suit
Are officials liable for enforcement of a law which turned out to be unconstitutional?
Ynot v. IACPresumption of constitutionality—
No! the law is presumed to be constitutional until declared otherwise.. Hence, any acts
for the enforcement the same prior to its declaration of unconstitutionality, shall be
considered legal and constitutional.. Hence, no liability can be imputed for the
enforcement of the same!!
The reverse side of Immunity is suability coupled with liability. So when are they liable?
-They are liable for acts done in bad faith, or in excess of their functions if it results
to injury to third parties.
2011 Bar Exam:
•

80. Executive Secretary Chua issued an order prohibiting the holding of rallies along
Mendiola because it hampers the traffic flow to Malacanang. A group of militants
questioned the order for being unconstitutional and filed a case against Secretary
Chua to restrain him from enforcing the order. Secretary Chua raised state immunity
from suit claiming that the state cannot be sued without its consent. Is the claim correct?

•

A. No, public officers may be sued to restrain him from enforcing an act claimed to
be unconstitutional. Hence, he can be sued for the suit involves no personal
liability

•

B. Yes, the order was not a proprietary act of the government.

•

C. No, only the president may raise the defense of immunity from suit.

•

D. Yes, Secretary Chua cannot be sued for acts done in pursuance to his public office.

2011 Bar Exam:
•

70. Amor sued for annulment of a deed of sale of Lot 1. While the case was ongoing,
Baltazar, an interested buyer, got a Certification from Atty. Crispin, the Clerk of
Court, that Lot 1 was not involved in any pending case before the court. Acting on
the certification, the Register of Deeds canceled the notice of lis pendens annotated
on Lot 1’s title. Amor filed a damage suit against Atty. Crispin but the latter invoked good
faith and immunity from suit for acts relating to his official duty, claiming he was not yet the
Clerk of Court when Amor filed his

•

action. Decide.

•

A. Atty. Crispin is immune from suit since he enjoys the presumption of regularity of
performance of public duty.

•

B. Atty. Crispin's defense is invalid since he issued his certification recklessly
without checking the facts. Note that you are liable for acts done in BAD FAITH
and NEGLIGENTLY!!

•

C. Atty. Crispin's defense is valid since he was unaware of the pendency of the case.

•

D. As Clerk of Court, Atty. Crispin enjoys absolute immunity from suit for acts relating to his
work.

•

Bar Question, 1990, No. 10

•

The Secretary of Public Works, after an investigation, ordered the demolition of the fish
pond of X as a nuisance per se on the ground that it encroached on navigable rivers. The
Supreme Court later found that the rivers were manmade and were constructed on private

property owned by X. May X recover damages from the Secretary?
[Mabutol v. Pascual, 124 SCRA 876
NO! X CANNOT RECOVER DAMAGES FROM THE SECRETARY!! The principle is that public
officials are not liable for acts done in good faith.
IN THE CASE AT BAR, THE SECRETARY ORDERED ONLY THE DEMOLITION AFTER MAKING
AN INVESTIGATION… GOOD FAITH!
10. De Facto Officers
Three kinds of Officers:
1. De Jure Officer- IS THE ONE WHO IS LEGALLY ENTITLED TO THE OFFICE
2. De Facto Officer
3. Usurper- THIS PERSON HAS NO RIGHT AT ALL TO THE OFFICE!!
•

Requisites for De Facto Officer:

1. A de jure office-REFERS TO THE OFFICE LEGALLY CREATED
2. Color of right or general acquiescence by the public3. Actual physical possession 1. A de jure office-CREATED BY LAW OR CONSTITUITON!!
There must be an office at least to occupy. If there is none, then there is no de facto
officer. [The office is either a creation of law or the Constitution.]
•

NOTE THAT THERE CAN BE NO DE FACTO OFFICE!! THIS IS PREMISED ON THE
SETTLED RULE THAT IF A LAW CREATING AN OFFICE IS DECLARED
UNCONSTITUTIONAL, THERE CAN BE NO DE FACTO OFFICE OR DE FACTO OFFICER
BECAUSE AN UNCONSTITUTIONAL ACT IS NOT A LAW AND IT CREATES NO
OFFICE

Insular v. Springer, 50 Phil. 295
Is there a de facto office?
No. If the law creating the office is unconstitutional, there can be no de facto office or
officer. An unconstitutional act is not a law; it creates no office…
2. Color of right – examples (MORE OR LESS THE TITLE OF THE OFFICE IS DEFECTIVE OR
SUFFERING FROM A DEFECT BECAUSE IF YOU HAVETOTALLY NO RIGHT TO SUCH
OFFICE, YOU ARE CONSIDERED USURPER!!)
a. appointment – not approved (THIS IS WHEN YOUR APPOINTMENT HAS NOT BEEN
APPROVED AND ATTESTED BY THE CSC) YOU ARE CONSIDERED DE FACTO HERE BECAUSE
OF THE FACT THAT YOU HAVE AN APPOINTMENT, MAKES YOU HAVE A COLOR OF RIGHT
b. election – proclaimed but later on unseated. THE FACT THAT YOU HAVE BEEN
PROCLAIMED GIVES YOU THE COLOR OF RIGHT TO THE OFFICE.. MEANWHILE YOU ARE
HOLDING OFFICE PRIOR TO THE DECISION DECLARING YOU TO HAVE REALLY LOSE THE
ELECTION, YOU ARE A DE FACTO OFFICER
c. holding over after expiration of term [Gaminde v. Commission] TAKE NOTE THAT A LCE
HAS NO RIGHT TO HOLD OVER AFTER EXPIRATION OF TERM OTHERWISE YOU WILL BE USURPER…
d. acquiescence by the public for a length of time – THIS HAS NEVER BEEN APPLIED
IN THE PHILIPPINES… LONG BEFORE IN THE U.S., SOME PEOPLE ARE EXERCISING
AUTHORITY OVER THE PEOPLE AND NO BODY QUESTIONS THE SAME.. AND THE PEOPLE
WERE FOLLOWING THE ORDERS AND RULES OF SUCH PERSON.. IN THE IN THE END IT

ACQUIRED COLOR OR RIGHT BY ACQUIESCENCE BY TE PUBLIC FOR A LENGTH OF TIME…
ALSO GADDAFI RISE TO POWER AND STAY THEREOF HAS ACQUIRED ACQUIESENCE
AFTER 40 LONG YEARS OF POWER SINCE HIS ASSUMPTION FROM COUP DE TAT.. HE GOT
REPRESENTAITON IN THE UN AND OTHER STATES.. THE RIGHT TO OFFICE STARTED IN
ILLEGAL MANNER BUT EVENTUALLY ACQUIRED ACQUIESCENCE FOR SO MANY LONG
YEARS
It No. 2 is lacking [no color of right], what is the officer’s classification- YOU ARE
CONSIDERED NOT A DE FACT… YOU ARE JUST CONSIDERED LESS THAN A DE FACTO
Examples:
1. No authority to appoint: Dimaandal v. CAO, 291 SCRA 324 (1998) – Governor designated him
as Acting Provincial Treasurer. Is he de facto:
Requisites:
a. he derives his authority from one with colorable authority to appoint
b. appointment is valid on its facE
•

Governor designated him as Acting Provincial Treasurer. He serve such position.. Remember
that LCE has no authority to designate acting provincial treasurer is the appointing authority
himself. IS HE A DE FACTO OFFICER? HELD: NO! YOU ARE A LESS THAN A DE FACTO!!! YOU
HAVE NO COLOR OF RIGHT… HENCE, YOU ARE NOT ENTITLED TO THE SALARY OF SUCH
POSITION!!

WHO IS THE APPOINTING AUTORITY? ASK THIS TO DEAN!!
2. Appointment lacks approval: Corpuz v. CA, 285 SCRA 25- Appointed by Chairman Morato as
MTRCB Legal Officer. Voided by MTRCB because PD 1986 requires that it should have been
submitted to the Board for approval before forwarding to CSC. What is his status?
HE IS DE FACTO OFFICER!! THERE WAS REALLY A COLOR OF RIGHT!!.. HE WAS
APPOINTED BY THE MTRCB CHAIRMAN WHO IS VESTED WITH SUCH POWER ONLY THAT
HIS APPOINTMENT WAS NOT SUBMITTED AND APPROVED BY THE BOARD.. HENCE, HE IS
ENTITLED TO SALARY AS HIS ACTS ARE CONSIDERED VALID BY VIRTUE OF SUCH
APPOINTMENT THOUGH DEFECTIVE… AS DISTINGUISHED FROM A USURPER!
Tomali v. CSC, 238 SCRA 572. - Appointed as Development Management Officer of OMA.
She assumed without submission of her appointment to the CSC. One year later, it was
revoked by the Director who then appointed another.
Held: Appointment is ineffective. But what is her status?
SHE IS DE FACTO OFFICER.. THE APPOINTMENT WAS VALID ONLY THAT IT WAS NOT
SUBMITTED FOR APPROVAL TO THE CSC…
Tuanda v. SDGN, 249 SCRA 344 (1995)- The Secretary of the DILG designated respondents
as labor sector representatives in the SB. Under the LGC, appointment to the position
requires prior determination by the Sanggunian that said sector is sufficient in number to
warrant representation, after consultation with the sectors. As no consultation was done, the
mayor did not recognize them nor paid their salary. Are they entitled to salary? NO!
THAT PERSON DESIGNATED BY THE DILG IS CONSIDERED A LESS THAN A DE FACTO!!!
SO NOT ENTITLED TO SALARY!! NO COLORABLE TITLE!! STRANGE! (THERE SHOULD HAVE
BEEN A PRIOR DETERMINATION OF THE SANGGUNIAN BEFORE THE DESIGNATION!!)
MAYBE THE OFFICE SHOULD NOT HAVE EXISTED AT ALL PER DEAN!!
Held: Requisites for de facto are: 1) there must be a de jure office (2) there must be color of right
or general acquiescence no the public (3) there must be actual physical possession. [What’s
missing? There is a mention that: ”There can be no de facto officer where there is no de
jure office…”] [
3. Unseated after election protest: Malaluan v. COMELEC, 254 SCRA 401 (1996)- Evangelista
was proclaimed mayor. However, after a protest, Malaluan was declared winner by RTC and

ordered execution pending appeal. COMELEC reversed the RTC, after term expired. What is
the status of Malaluan?
MALALUAN IS A DE FACTO OFFICER BY REASON OF THE RTC DECISION WHICH WAS ORDERED
EXECUTED PENDING APPEAL!!
4. Appointed under illegal statute [Flores v. Drilon [Gordon’s appointment declared void] What
is his status? [modern view] (this has reference to that law creating SBMA and providing
that the Chairman should be the Mayor of Olongapo which was later declared
unconstitutional!! NOTE THAT WHAT WAS DECLARED ILEGAL WAS NOT THE OFFICE OF
SBMA CHAIRMAN BUT THE MANNER OF FILLING IN THE SAME..) GORDON WAS DE FACTO
OFFICER!!
also CLU v. Executive, 194 SCRA 317
THIS REFERS TO THE EO ISSUED BY CORY PROVIDING THAT THE CABINET MEMBERS
MAY HOLD OTHER OFFICE IN ADDITION TO HIS OFFICE.. IT WAS DECLARED
UNCONSTITUIONAL.. ARE THEY DE FACTO OFFICERS? YES THEY ARE DE FACTO
OFFICERS.. THE DEFECT THERE IS THE MANNER OF APPOINTING THEM INTO OFFICE!!
THE OFFICE ITSELF IS VALIDLY CREATED PURSUANT TO A LAW EO WHICH ENJOYED THE
PRESUMPTION OF VALIDITY UNTIL DECLARED OTHERWISE!! DE FACTO OFFICER@!!
-Serving without any appointment?
DEAN CONVEYED THAT SITUATION WHERE FORMER SOJ BELLO APPOINTED FISCALS WHICH
TURNED OUT TO BE WITHOUT AUTHORITY! AND THESE FISCALS STARTED TO PERFORM THEIR
FUNCTIONS AS FISCAL LIKE ISSUING RESOLUTION FINDING PROBABLE CAUSE… DEAN OBSERVED
THAT THEM TO BE USURPER BECAUSE THEIR APOINTMENT WAS REALLY NOT VALID….!!! THE
IMPLICATION ON THE RESOLUTIONS ISSUED BY THEM WOULD BE IN QUESTION OR EVEN
WITHOUT EFFECT..
•

4. Service beyond the term allowed by law-Gaminde v. Commission on Audit, 347 SCRA
665 (2000)

Gaminde was appointed by the President as Civil Service Commissioner on June 11, 1993
and she assumed office on June 22, 1993. While the Commission on Appointment informed her
that her term of office was until Feb. 2, 1999, she continued serving in office until Feb. 2,
2000 due to an opinion of the Chief Presidential Legal Counsel. When did Gaminde’s 7-year
term expire? What kind of officer was she?
She is de facto!! This has been the exception to the general rule hold over capacities are
prohibited pursuant to the expressed provisions of the constitutions
3. Physical possession
-exercise the duties of the office
Compensation of de Facto Officers:
They are entitled to salaries already received for services actually rendered, if there
is no de facto officer.
Malaluan-he is entitled to the salary received for the services rendered as mayor of
kidapawan until the decision declaring him winner was reversed!! You cannot recover
salary from malalauan even if you are the de jure
Flores-Gordon as SBMA Chair is due to him for the services already rendered as such..
How to question title of de facto officers? Who can initiate? [Tarrosa v. Singson, 232 SCRA 553]
IF YOU ARE A DE FACTO OFICER, YOUR TITLE CAN ONLY BE QUESTIONED ONLY IN A
DIRECTED PROCEEDINGS. IN QUO WARRANTO PROCEEDINGS!! IT CANNOT BE
COLLATERALLY ATTACKED..
IT CAN BE INITIATED BY THE SOLGEN OR THE PERSON CLAIMING BETTER TITLE FOR
SUCH OFFICE!! ANY ONE WHO DOESN’T HAVE ANY CLAIM FOR BETTER TITLE CANNOT
INITIATE!!

FOR INSTANCE, I AM A FISCAL.. MY APPOINTMENT HAS NOT BEEN ATTESTED BY CSC..
SO IAM A DE FACTO OFFICER… WITH THAT, THE RESOLUTION FINDING PROBABLE
SIGNED BY ME CANNOT BE IMPUGHNED ON THE GROUND THAT MY APPOINTMENT IS
WITHOUT ATTESTATION OF THE CSC.. THAT IS A COLLATERAL ATTACK ON MY TITLE!!...
IT CANNOT BE HAD!!
HOWEVER, SUPPOSE I HAVE NO APPOINTMENT AT ALL, THE RESOLUTION FINDING
PROBABLE CAUSE CAN BE IMPUGNED AS NULL AND VOID.. MY TITLE CAN BE ATTACKED
INDIRECTLY OR COLLATERALLY
Exceptions: De facto is not entitled, and de jure can recover from him1.

Monroy v. CA, 20 SCRA 622 (1967): Monroy was Mayor of Navotas. He filed his certificate
of candidacy for Congress but withdrew it 3 days later (IN THE OLD DAYS, WHEN FILE
COC FOR ANOTHER ELECTIVE POSITION, YOU ARE DEEMED RESIGNED!!).
Meanwhile, Vice Mayor del Rosario took his oath of office, but Monroy reassumed his
position. It was del Rosario [de jure] who received the salary. As de facto officer,
can Monroy recover from the de jure? [De facto doctrine is for the protection of the public,
not the officer.]

•

HELD: MONROY CANNOT RECOVER AS THERE WAS A DE JURE OFFICER! UPON
TAKING AN OATH OF OFFICE, DEL ROSARIO WAS DEEMED A DE JURE OFFICER!!

General Manager v. Monserate, April 17, 2003
In 1988, Monserate was appointed Manager II (Resource Management Division) of the PPA.
Meanwhile, Anino filed a protest to the appointment which was sustained by the PPA Board. As a
consequence, Anino was appointed Manager II effective Feb. 1, 1988, while Monserate was
appointed Administrative Officer, which he accepted under protest. The PPA decision was
affirmed by the Civil Service Commission, but this was reversed by the Court of Appeals on
appeal by Monserate. Is Monserate entitled to the compensation for the position of Manager II
during thE time the functions were discharged by Anino? CAN THE DE JURE OFFICER RECOVER
SALARY FROM A DE FACTO OFFICER!!?
NO! HE CANNOT! NOTE THAT MONSERATE ACCEPTED THE APPOINTMENT AS ADMIN
OFFER EVEN UNDER PROTEST.. ALLOWING HIM TO RECOVER WOULD AMOUNT TO
DOUBLE COMPENSATION.. MOREOVER, DURING THE PENDENCY OF THE APPEAL, THE
DEFACTO OFFICER IS ENTITLED TO THE COMPENSATION FOR THE SERVICES RENDERED
BY HIM!!
2. OBITER:: WHEN CAN YOU RECOVER SALARY FROM THE DE FACTO!!!
When he committed directly or indirectly illegal acts resulting to his proclamation
[usurpation/damage] [Malaluan] FOR INSTANCE, I WAS ABLE TO WIN BY MASSIVE VOTE
BUYING AS DISTINGUISHED FROM THE ERROR OF COUNTING.. HERE THE DE JURE CAN
RECOVER FROM THE DE FACTO THE SALARY!!
-Where a de facto is entitled to salary, may the de jure officer also recover from the
government? NO!! THERE IS ONLY 1 APPROPRIATION FOR SALARY FOR SUCH
POSITION!!
-In contrast, one who is less than de facto [usurper] is not entitled to salary
Legality of Acts: OF DE FACTO OFFICERS
For reasons of public policy, the acts of a de facto officer affecting the public are
valid. The people cannot be expected to verify. [Protection of the Public]. The probable
exception is when he acts outside the scope of the de jure office. (FOR INSTANCE,
SOLEMNIZING MARRIAGE BY A DEFACTO MAYOR-VALID… BUT INVALID AS TO A
PUNONG BARANGAY AS HE IS NOT AUTHORIZED TO SOLEMNIZE)
Challenge to Title of DE FACTO OFFICER:

1. Direct, not collateral attack.
2. Usurper, open to direct attack
-Fiscal [no appointment/4 years lawyer] information filed
-Judge, rendering decisions AFTER HIS DISMISSAL WOULD BE VOID…. HE WILL BE
CONSIDERED USURPER…. IT CAN BE COLLATERALLY ATTACKED!!!
-Defense in bribery?
Bar Question, 2011
64. Van sought to disqualify Manresa as congresswoman of the third district of Manila on the
ground that the latter is a greencard holder. By the time the case was decided against
Manresa, she had already served her full term as congresswoman. What was Manresa's
status during her incumbency as congresswoman?
•

A. She was a de jure officer, having been duly elected.

•

B. She was not a public officer because she had no valid existing public office.

•

C. She was a de jure officer since she completed her term before she was disqualified.

•

D. She was a de facto officer since she was elected, served, and her
disqualification only came later.

Bar Question, 1011
•

99. Mayor Lucia of Casidsid filed her certificate of candidacy for congresswoman of the
district covering Casidsid. Still, she continued to act as mayor of Casidsid without collecting
her salaries as such (REFER TO MONROY CASE) THERE WAS N0 DE JURE OFFICER HERE
(CONFUSING BECAUSE MONROY CASE IS NOT APPLICABLE HERE AS FILING OF CANDIDACY
FOR ANOTHER ELECTIVE POSITION HERE DOES NOT RESULT TO FORFEITURE OF OFFICE…
SO LUCIA SHOULD BE ENTITLED TO RECEIVE). When she lost the election and a new mayor
assumed office, she (LUCIA) filed an action to collect the salaries she did not get while
serving as mayor even when she ran for congresswoman. Is her action correct?

•

A. No, salaries can be waived and she waived them.

•

B. No, because her acts as de facto officer are void insofar as she is concerned.

•

C. Yes, public policy demands that a de facto officer enjoy the same rights of a de jure
officer.

•

D. A. Yes, it is but just that she be paid for the service she rendered. THIS SHOULD
BE THE ANSWER!!! SHE IS DE JURE!!!

•

Bar Question, 2010, No. XV

•

True or False.

(a) A person who occupies an office that is defectively created is a de facto officer. (0.5%)
FALSE BECAUSE THERE IS NO SUCH THING AS DE FACTO OFFICE.. HENCE, HE IS NOT A
DE FACTO OFFICER!!
•

Bar Exam 2009, No. XI

•

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)

•

[b] A de facto public officer is, by right, entitled to receive the salaries and emoluments
attached to the public office he holds.

TRUE!! They are entitled to salaries already received for services actually rendered, if
there is no de facto officer.
NOTE: WE ARE ALREADY SETTLED THAT THE ACTS OF THE DE FACTO OFFICERS ARE

VALID AND THEY ARE ENTITLED TO SALARIES FOR THE SERVICES RENDERED
TO ANSWER QUESTIONS, JUST REMEMBER THE REQUISITES
11. Termination of official relations
Modes of Termination:
a. Natural Causes
b. Voluntary Causes
c. Involuntary Causes
a.

Natural Causes

i. Death
ii. Reaching age limit (THIS IS NOT APPLICABLE IN THE CASE OF ELECTIVE OFFICIALS)
NO LIMIT AS IN THE CASE OF ENRILE!!!
-not uniform
-does not apply to elective
-Can a person who has retired or reached the retirement age be appointed to a coterminus/trust and confidence position?- [MC No. 37, S, 1992] Ambassadors? Secretaries?
DAVIDE CASE-THE LAW GOVERNING FOREIGN SERVICES PROHIBITS THE APPOINTMENT
OF THOSE WHO HAVE ALREADY REACHED RETIREMENT AGE OR 65 , YOU ARE NO
LONGER ALLOWED TO BE APPOINTED AS AMBASSADOR OR ANY ANY FOREIGN SERVICE
POSITION..
SECRETARY- REFERENCE WITH SEC. GONZALES AS DOJ SECRETARY.. THE CASE AGAINST
HIM HOWEVER WAS DISMISSED FOR LACK OF STANDING ON THE PART OF THE
PLAINTIFF..
HOWEVER, CSC MC. NO. 37- ALLOWS THOSE WHO HAVE ALREADY REACHED THE
RETIREMENT AGE TO BE APPOINTED SO LONG AS IT IS A COTERMINUS OR TRUST AND
CONFIDENCE POSITION!!
b. Voluntary causes
i. Resignation: Requisites
1. intention to relinquish
2. acts of relinquishment
3. acceptance/RPC- THIS IS IMPORTANT BECAUSE IF YOU START LEAVING YOUR
JOB BEFORE THE ACCEPTANCE, YOU MAY BE HELD LIABLE UNDER THE RPC FOR
ABANDONMENT)
Who shall accept the resignation?
1. The Officer authorized by law
2. The appointing officer
Senator, Congressmen, President?
[Estrada v. Desierto– No form required, express or implied]
REMEMBER WHEN THEN CONGRESSMAN DUTERTE TENDERED HIS RESIGNATION AS
SUCH AND NOTE THAT THERE IS NO PROVISION IN THE CONSTITUTION AS TO SHALL
RECEIVE SUCH RESIGNATION… BUT IS SEEMS TO BE THE SPEAKER WHO MUST ACCEPT
IT
AS TO ESTRADA, HE DID NOT REALLY SUBMITTED HIS RESIGNATION BUT HE WAS

RULED TO HAVE RESIGNED EMPHASIZING THAT THERE IS NO FORM REQUIRED, IT MAY
BE EXPRESS OR IMPLIED.. BY THE ACTS OF ESTRADA, HE WAS DEEMED TO HAVE
RESIGNED HIS POST!!!…THE QUESTION NOW IS WHERE DID THE PRESIDENT SUBMIT
HIS RESIGNATION!! HE SHOULD SUBMIT THE SAME THE SENATE PRESIDENT AND THE
SPEAKER OF THE HOUSE AS PROVIDED IN THE CONSTITUTION!!
Example of Law: LGC -Section 82. Resignation of Elective Local Officials. •

(a) Resignations by elective local officials shall be deemed effective only upon
acceptance by the following authorities:

•

(1) The President, in the case of governors, vice-governors, and mayors and vicemayors of highly urbanized cities and independent component cities;

•

(2) The governor, in the case of municipal mayors, municipal vice-mayors, city
mayors and city vice-mayors of component cities;

•

(3) The sanggunian concerned, in the case of sanggunian members;

•

(4) The city or municipal mayor, in the case of barangay officials.

Bar Question, 2011
17. The new Commissioner of Immigration, Mr. Suarez, issued an Office Order directing the top
immigration officials to tender courtesy resignation to give him a
free hand in reorganizing the agency. In compliance, Director Sison of the Administrative
Department tendered his resignation in writing which Mr. Suarez
immediately accepted. Director Sison went to court, assailing the validity of his courtesy
resignation and Mr. Suarez’s acceptance of the same. Will the action
prosper?
1. intention to relinquish
2. acts of relinquishment
3. acceptance
•

A. No, Director Sison tendered his resignation and it was accepted.

•

B. No, estoppel precludes Director Sison from disclaiming the resignation he freely tendered.

•

C. Yes,for so long as no one has yet been appointed to replace him, Director Sison may still
withdraw his resignation.

•

D. Yes, Director Sison merely complied with the order of the head of office; the
element of clear intention to relinguish office is lacking.

b. Acceptance of an incompatible office (ANOTHER WAY OF FORFEITING POSITION)
-members of the Congress who accept an appointment with the government, any agency,
branch or instrumentality thereof
-lower officials considered as voluntary renunciation or abandonment … IF LOWER
OFFICIALS ACCEPTS OTHER POSITION, HE IS DEEMED TO HAVE VOLUNTARILY
RENOUNCED OR ABANDONED HIS PREVIOUS POSITION!! APPLIES TO APPOINTIVE AND
ELECTIVE OFFICALS
c. Filing of Certificate of Candidacy, but applies only to appointive officials, under the
Election Code as amended.
PNOC v. NLRC – applies to those occupying positions in government-owned or controlled
corporation, with or without original charter- MEANING EVEN TO SUBSIDIARIES!! LBP, DBP,
MANILA HOTEL.. AND OTHER
d. Abandonment – what distinguishes this from resignation is that it requires no acceptance –

Requisites:
1. intention to abandon
2. external acts by which the intention is carried into effect
Forms of abandonment:
1. accepting an appointment to another office, but not designation (BECAUSE IT IS
ONLY CONSIDERED AN additional functions)
2. taking a leave for more than one year, with or without pay [Borromeo Case]
3. AWOL

What about acceptance (BY AN APPOINTIVE OFFICIAL) of temporary appointment? TEMPORARY
APPOINTMENT DOES NOT RESULT TO ABANDONMENT!! ONLY PERMANENT
APPOINTMENT RESULTS TO ABANDONMENT!!
Romualdez v. CSC,197 SCRA 168
Sanggunian v. CA, 284 SCRA 279 (1998)
Antonio was elected as Barangay Captain, and later as ABC President. In the latter capacity,
he was appointed by the President as Sangguniang Bayan member (SP). Subsequently, he
was designated as temporary member and had to resign as SB member, which was given
to the ABC Vice President. His resignation, however, was not acted by the President. But it
turned out that he lacked the qualification as a sectoral representative of the SP so that his
appointment was voided. Is he entitled to resume his membership with the SB?
HELD: HE CANNOT RESUME HIS MEMBERSHIP WITH THE SB… THIS CASE WAS
CONSIDERED TO BE ABANDONMENT.. WHEN ACCEPTED THE APPOINTMENT BY THE
PRESIDENT, HE IS DEEMED TO HAVE RENOUNCED OR ABANDONED HIS PREVIOUS
POSITION AS SB MEMBER… NOTE THAT ABANDONMEN REQUIRES NO ACCEPTANCE!!!
iii. Involuntary Causes
a. recall – for local elective officials
b. expiration of term
Applies to:
1) those with fixed terms –all elective and some appointive
2) contractuals
3) trust and confidence positions
4. co-terminus/accomplishment of purpose

c. Impeachment [27 people]
d. Removal or expulsion –
disciplinary measure or quo warranto
Removal: Disciplinary Authority:
1. Office of the President – all Presidential appointees, except judges and those removable
by impeachment (this is in consonance with THE POWER OF THE PRESIDENT TO APPOINT
CARRIES WITH IT THE POWER TO REMOVE). But career ones can only be removed for cause
after notice and hearing in accordance with Civil Service rules.
2. Civil Service Commission – Under Sec. 37, all cases may be filed directly with the CSC,

but it usually delegates investigation to various Regional Offices
3. Heads of Departments, Agencies, Instrumentalities and Local Chief Executives
(LGUs) [Appeals are brought to the CSC]
4. OmbudsmanQuo warranto: Who can institute?
1. Solicitor General
2. Anyone who claims a better right to the position
e. Abolition of office
Valid of done in good faith- Canonizado v. Aguirre, 323 SCRA 312 (2000) – Test: IS the
basic structure and function (of the OLD OFFICE) has been retained (BY THE NEW
ONE(?)- IF IT IS RETAINED, THEN IT IS REALLY IN BAD FAITH THE PUROSE OF WHICH
ONLY IS TO VIOLATE YOU SECURITY OF TENURE)
Buklod v. Zamora, 360 SCRA 718 (2001) – President has a continuing authority to abolish
offices within the executive under the Administrative Code
•

Bar Question, 2010, XX

Define/explain the following:
c. Principle of holdover (1%)
Holdover pertains to the right of a public officer to hold office until his successor has
been duly elected and qualified or appointed.

•

WHEN DO WE KNOW WHETHER YO CAN HOLD OVER A POSITION

Lecaroz v. Sandiganbayan, 305 SCRA 396 (1999) – Absent an express or implied constitutional
or statutory prohibition to the contrary, an officer is entitled to stay in office until his successor
is appointed or chosen and has qualified. The legislative intent on not allowing holdover
must be clearly expressed or at least implied in the legislative enactment, otherwise it is
reasonable to assume that the law-making body favors the same. The law abhors a vacuum in
public offices by reason of public policy. [Chairman of KB]
IMPLIED OR EXPRESS CONSTITUITONAL PROHIBITION- “THE TERM OF THE PRESIDENT SHALL
NOT EXCEED SIX YEARS”- MEANING HE HAS TO GO AFTER THAT..
“JUSTICES AFTER REACHING THE AGE OF 70”- THEY HAVE TO GO… THERE IS NO HOLD
OVER POSITION!!
Michael Abas Kida v. Senate, G.R. No. 196271, October 18, 2011
Issue: Can Congress pass a law postponing the elections and permitting local government officials
or ARMM officials to occupy their position until their successors shall have been elected and
qualified?
NO! BECAUSE THE CONSTITUTION provides that “THE TERM OF THE LOCAL GOVERNMENT
OFFICIALS SHALL BE 3 YEARS”- IMPLIED PROHIBITION OF HOLD OVER
_ THERE IS NO HOLDOVER CAPACITY EVEN IN LOCAL ELECTIONS!!
TERM OF LOCAL ELECTIVE OFFICIALS IS LIMITED TO 3 YEARS!!! THIS IS AN IMPLIED
PROHIHITION ON HOLDOVER!!
[not to Barangay officials]
THE TERM OF BARANGAY OFFICIALS IS NOT PROVIDED BY THE CONSTITUTION.
CONGRESS CAN PASS A LAW EXTENDING IT AND ALLOWING HOLDOVER
•

ARMM RULING!

Held: It is not competent for the legislature to extend the term of officers by providing that they
shall hold over until their successors are elected and qualified where the constitution has in
effect or by clear implication prescribed the term and when the Constitution fixes the
day on which the official term shall begin, there is no legislative authority to continue
the office beyond that period, even though the successors fail to qualify within the time.
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
Civil Service Commission
- Three members, like the COA
- serve 7 year terms on a staggered basis [“rotational scheme
-no temporary or acting capacity

Qualifications:
1. natural-born
2. 35 years old
3. proven capacity for public administration [no degree or profession requirement]
4. did not run in the immediately preceding election (LAME DUCK PROVISION)
Function: Sec. 3:” shall establish a career service and adopt measures to promote morale,
efficiency, integrity, responsiveness in the civil service”
1. it acts (attests/approves) appointments (to ensure that minimum qualifications are
met] (ministerial)
2. it administers examination and confers the corresponding grade of eligibility
3. it conducts administrative investigations and discipline officials under it
Not within its disciplinary jurisdiction:
1. judges and court personnel (UNDER THE SUPREME COURT)
2. elective officials (UNDER THE PRESIDENT, THE SANGGUNIANG CONCERNED)
3. Presidential appointees (BY THE PRESIDENT)
4. soldiers, jail guard, police and firemen
Nature of Attestation, etc:
1. it is ministerial and cannot be withheld once the appointee meets the minimum
qualification.
2. the Commission cannot direct that someone else more qualified will be appointed
[Aquino v. CSC, 208 SCRA 293] (BECAUSE THE POWER TO APPOINT IS DISCRETIONARY)
3. it can revoke appointments, only if it is null and void [Gayatao v. CSC, 210 SCRA 185]
4. it can order the reinstatement of an employee/officer illegally removed [Mathay Jr. v.
CA, 320 SCRA 703 (1999)
Tomali v. CSC, 238 SCRA 576 – What is the status of an appointment which has not been
approved.
Incomplete – may be revoked or recalled by the appointing authority.
Tomali_- he was appointed by the mayor… his appointment was not submitted to the

CSC for attestation… a new mayor now comes in, and revoked his appointment.. HELD:
CONSIDERING THAT THE APPOINTMENT OF TOMALI IS WITHOUT ATTESTATION, HE CAN
BE REVOKED OR RECALLED BY THE APPOINTING AUTHORITY
NOTE: TOMALI WAS CONSIDERED DE FACTO .. HIS ACTS IS VALID.. AND HE IS ENTITLED
WITH HIS SALARY
Exempted from attestation:
1. Presidential appointees
2. Armed Forces personnel
3. police, firemen and jail guards
-court employees? THEY ARE NOT UNDER THE DISCIPLINARY AUTHORITY OF THE CIVIL
SERVICE COMMISSION!!
a.

Scope:

•

Art. IX, B. Section 2.

•

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

•

GOCC without original charter- these are SUBSIDIARIES NOT COVERED BY THE
CSC …. YOU FILE YOUR CASE BEFORE THE LABOR ARBITER UNDER THE LABOR
CODE

Economic Intelligence v. CA, 299 SCRA 373 (1998)
The Civil Service Commission required the Economic Intelligence and investigation Bureau (EIIB)
to submit to the CSC all appointments. The EIIB refused contending that under PD No. 1458 and
LOI No. 71, it is exempted from CSC rules and regulations with respect to appointment and other
personnel actions. Is it correct? NO!
YOU CANNOT PASS A LAW EXEMPTING ANY BRANCH OR OFFICE OF THE GOVERNMENT
FROM THE COVERAGE OR SCOPE OF THE CIVIL SERVICE COMMISSION
Macalino v. Sandignabayan, 376 SCRA 452What about GOCC’s [Philippine National Construction Corporation] created under the general law
on corporations, majority of whose shares are owned and controlled by the government? [manner
of creation, not nature of functions]
THESE ARE SUBSIDIARIES… THEY ARE OUTSIDE THE COVERAGE AND SCOPE OF THE
CSC… TAKE NOTE OF THE MANNER OF CREATION AND NOT THE NATURE OF FUNCTIONS
IF THE GOCC IS DIRECTLY CREATED BY AN ACT OF CONGRESS, IT IS WITHIN THE SCOPE
OF CSC.. IF CREATED UNDER CORPORATION CODE, NOT WITHIN THE SCOPE ANYMORE
Classification of Positions:
I. For purposes of the meaning of Security of Tenure:
II. For Purposes of Determining Merit and Fitness:

I. For purposes of the meaning of Security of Tenure
1. Career Service
2. Non-Career Service
PD No. 807, Sec. 5.
A. The Career Service shall be characterized by:

(1) entrance based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications;
(2) opportunity for advancement to higher career positions;
(3) security of tenure.
•

MEMO

•

The Career Service shall include:

•

1. Open Career positions for appointment to which prior qualification in an appropriate
examination is required;

•

2. Closed Career positions which are scientific or highly technical in nature; these include
the faculty and academic staff of state colleges and universities, and scientific and technical
positions in scientific or research institutions which shall establish and maintain their own
merit systems;

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President;
TAKE NOTE THAT THE POSITION SECRETARY IS NO LONGER CONSIDERED CAREER
EXECUTIVE SERVICE!! THE SECRETARY IS A POLITICAL APPOINTEE.. PROBABLY THE
NON CAREER
•

4. Career officers, other than those in the Career Executive Service, who are appointed
by the President, such as the Foreign Service Officers in the Department of Foreign
Affairs;

•

5. Commissioned officers and enlisted men of the Armed Forces which shall maintain
a separate merit system;

•

6. Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under the noncareer service; and

•

7. Permanent laborers, whether skilled, semi-skilled, or unskilled.

PD 807, Sec. 6.
B. The Non-Career Service shall be characterized by:
(1) entrance on bases other than those of the usual tests of merit and fitness utilized for the
career service;
(2) tenure which is limited to a period specified by law, or which is coterminous 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 employment was made.
•

The Non-Career Service shall include:

•

1. Elective officials and their personal or confidential staff;

•

2. Department Heads and other officials of Cabinet rank who hold positions at the
pleasure of the President and their personal or confidential staff(s);

•

3. Chairman and members of commissions and boards with fixed terms of office
and their personal or confidential staff;

•

Board member of LBP has limited and fixed term

•

4. Contractual personnel or those whose employment in the 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, which in no case shall exceed one year, and performs or

accomplishes the specific work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency; and
•

5. Emergency and seasonal personnel.

II. Classification for Purposes of Determining Merit and Fitness:
1.

Competitive – as determined by competitive examination (CIVIL SERVICE ELIGIBILITY
EXAMINATIONS)

2.

Non-competitive – not by any competitive examination, but by other means [Delos Santos
v. Mallare, 87 Phil. 289] (THIS HAS REFERENCE TO CABINET MEMBERS WHO ARE
NOT GIVEN EXAMINATIONS FOR THE SUCH POSITION)

HOWEVER POSITIONS BELONGING TO THIS CATEGORY ARE AS FOLLOWS:
a. policy determining
b. primarily confidential
c. highly technical
Terms Defined:
a) a policy-determining – one charged with the duty to formulate a method of action for the
government or any of its subdivision. [Department Heads-THE RANK OF SECRETARY… HE IS
RESPONSIBLE FOR HIS OWN AND POLICY DETERMINATION OF HIS DEPARTMENT]
b) primarily confidential – one where much more than ordinary confidence is reposed on the
official
Who determines if a position is primarily confidential?
1. President , Hernandez v. Villegas, 1965 “the only authority to classify a position as
primarily confidential is the President of the Philippines.”
BUT OVER THE YEARS, IT HAS BEEN DEVELOPED BY THE SC IN THE FOLLOWING SLIDES
2. Congress, by law [CSC v. Salas, 274 SCRA 414 (1997)] (CONGRESS BY LAW CAN
DETERMINE WHETHER THE POSITION IS CONFIDENTIAL IN NATURE)
3. Civil Service Commission, under Sec. 12, Ch. 3, Book V, of the Administrative Code of 1987
[Montecillo v. CSC. 360 SCRA 99 (2001)
CSC v. Salas, 274 SCRA 414 (1997) –
Is a legislative (OR BY THE PRESIDENT OR BY THE CSC) determination that the position it
created is primarily confidential conclusive?
-member of the Internal Security Staff of PAGCOR: Preventing misbehavior among customers
(SOME KIND OF A BOUNCER).
-the nature of the position is what finally determines itNOTE WHILE THE LAW CREATING PAGCOR CONSIDERED THE POSITION OF INTERNAL
SECURITY STAFF AS PRIMARILY CONFIDENTIAL, THE SUPREME COURT HELD THAT THE
NATURE OF THE POSITIONS THAT FINALLY DETERMINES IT…
OTHERWISE STATED: THE INITIAL DETERMINATION MAY BE DONE BY THE PRESIDENT,
CONGRESS, OR CSC, BUT THE FINAL DETERMINATION AS TO WHETHER THE POSITION IS
CONFIDENTIAL OR NOT IS SHALL BE HAD BY THE SUPREME COURT!!!
c) Highly Technical – one where the occupant is required to possess a technical skill or training
in the supreme or superior degree

-meteorologist

-nuclear scientist
-molecular biologist
HENCE, THE CSC CANNOT REQUIRE EXAMINATION FOR THE QUALIFICATION FOR THESE
POSITIONS…. VERY HIGHLY TECHNICAL
Astraquillo v. Manglapus, 190 SCRA 280
A was appointed by the President as Ambassador Extraordinary and Plenipotentiary to the UEA.
After someone accused him in a letter of improper interference in the function of a Labor Attache,
his services were terminated by the President and another was appointed in his place. HE
QUESTIONED IT
HELD: SC HELD THAT HE WAS A POLITICAL APPOINTEE… HE WAS A NON CAREER
APPOINTEE… HENCE, GENERALLY HE CAN BE REMOVED BY THE PRESIDENT WITHOUT
NOTICE AND HEARING BECAUSE BELONG TO THE NON CAREER SERVICE. (MAYBE ON THE
GROUND OF LOSS OF TRUST AND CONFIDENCE)
Two types of officers in the Foreign Service:
1. Non-career – appointment not based on usual test of merit and fitness utilized for career
service. Tenure is co-terminus with appointing authority, or subject to his pleasure. [Foreign
Service Examination]
EX. APPOINTMENT OF AMBASSADORS- THEY ARE POLITICAL APPOINTEES.. SUBJECT TO
THE DISCRETION OF THE PRESIDENT… MAY BE REMOVED ANYTIME…
2. Career- THESE PEOPLE HAVE TO GO THROUGH THE USUAL TEST OF MERIT AND
FITNESS LIKE EXAMINATION QUALIFICATIONS
LIKE CONSULS…. THEY CANNOT BE REMOVED BASED ON TRUST AND CONFIDENCE AS
THEY ENJOY SECURITY OF TENURE
Do non-career officers enjoy security of tenure?
(THE SC CAME UP WITH THIS DECISION BECAUSE OF THE CONFUSION AS TO WHETHER
OR NOT NON CAREER APPOINTEES ENJOY THE SECURITY OF TENURE IN LIGHT OF THE
CONSTITUTIONAL PROVISIONS THAT ALL MEMBERS OF THE CIVIL SERVICE ENJOY
SECURITY OF TENURE
Corpus v. Cuaderno, 13 SCRA 591 (1965) – They are exempted only from the requirement of
a competitive exam, but not from the operation of the principle of security of tenure. All
of them can be removed only for cause as provided by law. However, those who hold
primarily confidential position are a special case. Their term is co-terminus with the
confidence reposed on them. Their cessation from office involves no removal but
EXPIRATION of the term of office. In a sense, their term is unknown or indefinite, but
becomes definite when the appointing power decides to put an end to their services. –
OTHERWISE STATED, CONFIDENTIAL APPOINTEES OR NON CAREER ONES STILL ENJOY
SECURITY OF TENURE BUT ONCE THE TRUST AND CONFIDENCE REPOSED IN THEM IS
REMOVED, THEIRTERM ENDS..
What kind of security of tenure are enjoyed by those in Career Executive Service?
Cuevas v. Bacal, 347 SCRA 339- Their security of tenure is with respect to rank, not to
position. The concept of security of tenure as to position applies only to first and second
level employees.
Ex. Undersecretary or Assistant Secretary… while the holder thereof may be removed from such
office, he must be provided with substantially equivalent position. Meaning his rank remain the
same.. Emphasis is that the Security of tenure is on the RANK.. Take note also that there
are some ambassadors or undersecretaries who belong to the career and some in the
non career
Examples of confidential employee/trust and confidence:
1. City or Municipal Attorney (including provincial) –co terminus with the Mayor – Hilario v.

CSC, 243 SCRA 206 (also City or Municipal Administrators)
2.–Security Guard and Chief Security Guard in the office of the Mayor of Cebu City Borres v. CA,, 243 SCRA 206
Notes:
1. exempted from prohibition on non-partisan political activity;
2. removal needs no notice and hearing (because it is coterminus with the trust and
confidence reposed in him)
3. not easy to challenge ground for removal which is loss of trust and confidence
Bar Question, 2003 No. 7
A corporation, a holder of a certificate of registration issued by the SEC, is owned and controlled
by the Republic of the Philippines. The CSC directs the corporatiom to comply with the Civil Service
Rules in the appointment of its officers and employees. The order of the CSC is assailed by the
corporation before the court. How should the case be resolved?
[Also asked in 1999, No. 9 on who has jurisdiction over employees of the Food Terminal, Inc.. CSC
or DOLE?]
Take note: Determine the manner of creation!! If it is created directly by the congress, it
is within the scope of the CSC. If under the Corporation Code, it is under the labor code.
2.

Appointments

Art. IX, B. Sec. 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 policydetermining, primarily confidential, or highly technical, by competitive examination.

Kinds of Appointments:
•

Section 25. Employment Status. Appointment in the career service shall be permanent or
temporary.

•

(a) Permanent status. A permanent appointment shall be issued to a person who meets
all the requirements for the positions to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof.

(b) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary appointment shall be issued to a person who
meets all the requirements for the positions to which he is being appointed except the appropriate
civil service eligibility: Provided, That such temporary appointment shall not exceed twelve
months, but the appointee may be replaced sooner if a qualified civil service eligible becomes
available.
JOB ORDER APPOINTMENT FALLS HERE
Provisional v. Temporary Appointments:
Provisional appointment is extended to:
(1) one who has not qualified in an appropriate examination
(2) otherwise meets the requirement to a regular position
(3) the filling of the vacancy is necessary in the interest of public service
(4) there is no appropriate roster of eligibles [Regis v. Osmena, 187 SCRA 311
Take note that in both PROVISIONAL AND TEMPORARY APPOINTMENTS, THE APPOINTEE IS NOT
ELIGIBLE

Temporary:
1. there are no appropriate eligibles
2. necessity in the public interest to fill a vacancy,
3. appointee meets all the requirements for the positions to which he is being appointed except
the appropriate civil service eligibility
4. Appointment shall not exceed twelve months, but the appointee may be replaced sooner if a
qualified civil service eligible becomes available.
THE ONLY DIFFERENCE BETWEEN THE TWO IS THE PERIOD “That such temporary appointment
shall not exceed twelve months”.. NO SUCH PROVISION IS PROVIDED IN PROVISIONAL
APPOINTMENT
Note:
Whether permanent or temporary, becoming an eligible does not render automatically
permanent the appointment.
BECAUSE APPLY FOR THE SAME AND NEW APPOINTMENT MUST BE ISSUED… NO
AUTOMATIC RIPENING FROM TEMPORARY OR PROVSIONAL INTO PERMANENT
3. Personnel Action [Sec. 24, PD 807]
a. appointment through certification
b. promotion,
c. transfer,
d. reinstatement,
e. re-employment,
f. detail,
g. reassignment,
h. demotion
i. and separation.
•

PERSONNEL ACTION

-any action denoting the movement or progress of personnel in the civil service shall
be known as personnel action.
IT CAN BE DOWNWARD OR UPWARD OR SIDEWARD IN THE CASE OF TRANSFER
(a) Appointment through certification. An appointment through certification to a position in the
civil service, except as herein otherwise provided, shall be issued to a person who has been
selected from a list of qualified persons certified by the Commission from an appropriate register of
eligibles, and who meets all the other requirements of the position.
•

All such persons must serve a probationary period of six months following their
original appointment and shall undergo a thorough character investigation in order
to acquire permanent civil service status. A probationer may be dropped from the
service for unsatisfactory conduct or want of capacity any time before the expiration of the
probationary period: Provided, That such action is appealable to the Commission.

NOTE: WHAT MAKES APPOINTMENT THROUGH CERTIFICATION FROM OTHERS IS THAT
THERE IS A PRESUMPTION THAT THE APPOINTEE HAS UNDERGONE SIX MONTHS
PROBATIONARY PERIOD BEFORE IT IS ISSUED..
•

(b) Promotion. A promotion is a movement from one position to another with an increase
in duties and responsibilities as authorized by law and usually accompanied by an increase
in pay. The movement may be from one department or agency to another, or from one

organizational unit to another in the same department or agency.
•

TAKE NOTE THAT NOBODY CAN BE FORCED TO ACCEPT PROMOTION… SO NO ONE
CAN BE HELD LIABLE FOR INSUBORDINATION FOR REFUSAL OF PROMOTION!!!

•

(c) Transfer. A transfer is a movement from one position to another which is of
equivalent rank, level, or salary without break in service involving the issuance of an
appointment.

•

It shall be considered disciplinary when made in the interest of public service, in which case,
the employee concerned shall be informed of the reasons therefore. If the employee
believes that there is no justification for the transfer, he may appeal his case to the
Commission. (MEANS THAT IT CAN BE PART OF PERSONNEL ACTION OR
DISCPLINARY IN THE SENSE THAT IT IS MADE A PENALTY FOR SOME
VIOLATIONS..BUT THERE CAN BE TRANSFER WITHOUT BEING DISCIPLINARY
ONE)

•

The transfer may be from one department or agency to another or from one organizational
unit to another in the same department or agency: Provided, however, That any
movement from the non-career service to the career service shall not be
considered a transfer.

•

(d) Reinstatement. Any person who has been permanently appointed to a position in the
career service and who has, through no delinquency or misconduct, been separated
therefrom, may be reinstated to a position in the same level for which he is qualified.
(PRESUPPOSES ILLEGAL DISMISSAL OR ILLEGAL REMOVAL)

•

(e) Re-employment. Names of persons who have been appointed permanently to positions
in the career service and who have been separated as a result of reduction in force and/or
reorganization, shall be entered in a list from which selection for reemployment shall be
made.

•

(f) Detail. A detail is the movement on an employee from one agency to another without
the issuance of an appointment and shall be allowed, only for a limited period in the case of
employees occupying professional, technical and scientific positions. If the employee
believes that there is no justification for the detail, he may appeal his case to the
Commission. Pending appeal, the decision to detail the employee shall be executory unless
otherwise ordered by the Commission.

•

DETAIL CAN BE VOLUNTARY OR INVOLUNTARY!!

HERE, THERE IS NO DIMINUTION OF RANK, PAY BUT WORK IS PERFORMED ONLY
SOMEWHERE ELSE!!
•

(g) Reassignment. An employee may be reassigned from one organizational unit to
another in the same agency: Provided, That such reassignment shall not involve a
reduction in rank, status or salary.

•

HOW DO WE DISTINGUISH REASSIGNMENT FROM TRANSFER? CONSIDERING
THAT BOTH OF THEM INVOLVE NO REDUCTION OF RANK, STATUS OR SALARY

Some Considerations:
1. Reassignment is recognized as a management prerogative vested in the Civil Service
Commission and any department or agency. It does not constitute removal without cause, even if
the reassignment is without consent
Reassignment can be done with or without cause… While you can refuse promotion or
transfer, you cannot refuse reassignment because it is an exercise of management
prerogative..
When can we consider it REASSIGNMENT OR TRANSFER?
Fernando v. Sto. Tomas, 234 SCRA 548
Petitioners were appointed as Med Arbiters in the National Capital Region.

They were

assigned later with the Secretary Labor. With their new assignment, they could no longer decide
labor cases. They did not report and were charged with insubordination. Held: Reassignment in
good faith and in the interest of the service is valid. Presumption of regularity applies.
The limitation is when the reassignment is intended to harass or coerce the employee or
officer.
SO, UNLESS IT IS INTENDED TO HARASS OR COERCE, YOU CANNOT REFUSE
REASSIGNMENT!!
2. Transfer- A movement from one position to another which is equivalent in rank, level or salary,
without break in service.
Distinctions:
1. Transfer requires a new appointment, but (REASSIGNMENT) does not.
2. Transfer requires you (TO BE) outside the agency or geographical unit stated in
your appointment, but reassignment does not.
3. Transfer requires the consent of the employee, but reassignment does not
So when is it transfer or reassignment?
So when is it a transfer and when is it a reassignment?
1. judges/prosecutors
A judge of RTC Tagum has to undergo new application and appointment proceedings
before he can be appointed or transfer to RTC Davao… otherwise stated, REASSIGNMENT
is not allowed to judges! It has to be TRANSFER because you have to undergoes to the
process again!!even if there is no promotion… the rank is still the same.. As to
PROSECUTORS, if is appointment is specific provided for tagum only, I cannot be
assigned or move to Panabo or Samal without being transferred or going through the
process of applying again or nomination and appointment. So it has to be transfer!!!
2. teachers/Provincial Engineer I
Teacher and Police Officers can be moved anywhere in the province..
For instance, your appointment is “PROVINCIAL ENGINEER 1 OF DAVAO DEL NORTE”
assignment at PGO… later on, an new governor comes in intending to move you from
PGO since you are known to be the former’s governor man… He now transfer you to
TALAINGOD.. Can you complain about that or refuse? NO!! Taking into consideration of
the appointment, that is only a REASSIGNMENT and not TRANSFER.. Note that the
movement is within Davao del norte only… it did not go out from the terms of the
appointment
3. Policemen/soldiers/State Prosecutors
This is known as abusive PNP personnel are REASSIGNED TO MAGUINDANAO!note that
their appoinment is “PO3”.. HENCE CAN BE TRANSFERRED ANYWHERE!! IT IS ONLY A
REASSIGNMENT.. IN OTHERWORDS, IF THE MOVEMENT DOES NOT CHANGE THE TERMS
AND TENOR OF YOUR APPOINTMENT, IT IS ONLY A REASSIGNMENT… you cannot
complaint there!!.. If otherwise, then it is TRANSFER…. You can refuse the same..
4. Ambassadors and Consuls
Their appointment is “AMBASSADOR 1” OR “CONSUL 2”. SO THE Y CAN BE MOVED OR
TRANSFERRED FROM ONE PLACE TO ANOTHER WITHOUT CHANGING THE TERMS OF
THEIR APPOINTMENT!!

Notes:
1. A transfer that results in promotion or demotion, advancement or reduction, or a
transfer that aims to lure the employee away from his permanent position, cannot be

done without the employees consent, for that would constitute removal without cause.
2. However, a transfer without his consent is valid if it is a consequence of disciplinary
measure. Take note it is one of the impossible penalties in an administrative proceedings.
What is the “next-in-rank” rule? (DEAN ACTUALLY SAID THAT THERE IS NO “NEXT IN
RANK RULE” BUT THERE ARE RIGHTS UNDER THE SAME”!!!
PD 807, Sec. 19 (2): When a vacancy occurs in a position in the first level of the Career Service as
defined in Sec. 8, the employees in the department who occupy the next lower positions
is classified, and in other functionally related occupational groups and who are
competent, qualified and with appropriated civil service eligibility shall be considered for
the position.”
6. “A qualified next-in-rank employee shall have the right to appeal initially to the
department head and finally to the Office of the President an appointment made (1) in
favor of another next-in-rank employee who is not qualified (IN CASE THIS PERSON
ENTERED INTO THE GOVERNMENT TOGETHER WITH YOU BUT DOES NOT HAVE MASTERS
WHICH IS QUALIFICATION), or (2) in favor of one who is not next-in-rank, or (3) in
favor of one who is appointed by transfer and not next-in-rank, or by reinstatement, or
by original appointment if the employee making the appeal is not satisfied with the
written special reason or reasons given by the appointing authority for such
appointment:
Provided, That final appeal shall be to the department head concerned if the appointment
is issued to a qualified next-in-rank employee. Before deciding a contested appointment, the
Office of the President shall consult the Civil Service Commission. For purposes of this Section,
"qualified next-in-rank" refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy proposed to be filled
and who meets the requisites for appointment thereto as previously determined by the
appointing authority and approved by the Commission.”
Rights of the “Next-In-Rank:
1. Right to be considered to the vacant position
2. Right to appeal the appointment of another (NOTE THE GROUNDS) BUT THIS DOES
NOT MEAN THAT IF YOUR GROUND IS FOUND TO BE WITH MERITS, YOU WILL BE THE
ONE TO BE APPOINTED TO THE POSITION!! THIS IS WITHOUT GUARANTEE THAT YOU
WILL BE APOINTED TO THE POSITION!!
[YOU CANNOT APPEAL TO THAT WHO IS BUT A QUALIFIED NEXT IN RANK)(but not
against another who is a qualified next in rank]
Garces v. CA, 259 SCRA 101
Garces was Election Registrar of Liloy, Zamboanga, Davao del Norte, who was transferred by
the COMELEC to Gutalac without her consent. She did not leave her station so that the new
appointee in her stead could not assume.
Held: Her transfer amounts to a removal without cause which is illegal.
THIS IS REALLY A TRANSFER THOUGH IT IS FOR AN EQUAL RANK!!!!! HIS APPOINTMENT
IS “ELECTION REGISTRAR OF LILOY”.. HE CANNOT BE MOVED OUTSIDE LILOY WITHOUT
VIOLATING THE TERMS OF HIS APPOINTMENT.. COMELEC HAS NO BUSINESS OF
TRANSFERRING HER WITHOUT HER CONSENT!!
This Ruling might have a problem now!! Prevailing law governing elections officers now
has it that they can be moved from one municipality or city after serving more than 3
years there!!
Carino v. executive, April 2, 2002
Carino was appointed as Accountant III in the Office of the Northern Cultural
Communities, Region II. In 2006, he was reassigined by the Executive Director to the Position
of Technical Assistant of the Economic Division of the Agency. In 1997, she was directed to report

of the ONCC Region II office, refused and was dropped from the list of employees. Was her
dismissal valid?
YES!!! HER DISMISSAL WAS VALID… SHE CAN BE MOVED WITHIN THE REGION
PROVIDED THAT HER RANK IS NOT CHANGE OR SUBJECT TO DIMINUTION!!
Some other Principles:
1.

Revocation – A completed appointment cannot be revoked. Once it is accepted,
security of tenure attaches and one cannot be removed unless for cause. [Aquino v. CSC,
208 SCRA 243

NOTE: APPOINTMENT WITHOUT CORRESPONDING ATTESTATION BY THE CSC ATTACHES
NO SECURITY OF TENURE… IT CAN BE REVOKED OR RECALLED BY THE APPOINTING
AUTHORITY!!
2. Temporary Appointees –
As a rule, they do not enjoy security of tenure. They are extended to those who lack
the eligibility requirement for the position. Once somebody comes with the appropriate
eligibility, he can be removed with or without cause.
Civil Aeronoutics v. IAC, 213 SCRA 277 – Temporary employees cannot be dismissed
arbitrarily a-nd in bad faith.-THIS INVOLVED A PERSON APPOINTED TEMPORARILY OR
WITHOUT ELIGIBILITY… HE WAS REMOVED AND REPLACE BY ANOTHER WHO IS ALSO
WITHOUT ELIGIBILITY… THAT WAS REALLY DONE IT BAD FAITH… THIS IS AN
EXCEPTION TO THE GENERAL RUL THAT TEMPORARY APPOINTEES DO NOT ENJOY
SECURITY OF TENURE!!.. SOME KIND OF SECURITY OF TENURE!!
Bar Question, 2003, No. 5:
What is the nature of an acting appointment to a government office?-IT IS TEMPORARY
IN NATURE!!
Does such an appointment give the appointee the right to claim that the appointment will, in
time, mature into a permanent one?NO!
Temporary v. Acting?
THE WORD TEMPORARY IS BROADER THAN ACTING!! BECAUSE IF YOUR APPOINTMENT
IS ACTING, IT HAS TO BE NECESSARILY A TEMPORARY(DESIGNATION-YOU CAN BE
REMOVED ANY TIME)!.. IF TEMPORARY, IT DOES NOT HAVE TO BE ACTING!!!! TRUST
THIS AUTHORITY!!- MEANS, IF YOU ARE APPOINTED AS UTILITY FOR 6 MONTHS, YOUR
APPOINTMENT IS TEMPORARY BUT IT CANNOT BE SAID THAT YOU ARE ACTING
UTILITY!!
Some Principles:
1. Sec. 2(3), Art. IX, B- “No officer of employee in the civil service shall be removed or
suspended except for cause provided by law.”
For Cause- “means for reasons which the law and sound public policy recognizes as
sufficient warrant for removal, that is legal cause and not merely causes which the
appointing power which in the exercise of discretion may deem sufficient.”
Adiong v. CA, 371 SCRA 375 (2001)
Nuska was appointed permanently by Mayor Butua as Municipal Civil Registrar. Six
months later, due to her failure to make a courtesy call and submit a copy of her appointment, the
mayor terminated her services and appointed another in her place. Was her dismissal proper?
FAILURE TO MAKE A COURTESY CALL IS NOT A GROUND FOR DISMISAL SANCTION BY LAW!!
EMPHASIS IS THAT THE CAUSE HAS TO BE SOMETHING LISTED AND PROVIDED FOR BY LAW!!
Sta. Maria v. Lopez, 31 SCRA 637 (1970)
Petitioner, was elected Dean of the College of Education on May 5, 1967 by the Board of

Regents, on nomination of the UP President. His appointment as such Dean was for a five
year term, "effective May 16, 1967 until May 17, 1972, unless sooner terminated.” Effective
July 23, 1969, due to students protests, the Dean removed him and placed someone in his stead.
Sta. Maria was made special assistant with the rank of dean without reduction in salary. Was his
security of tenure validated? [appointed to a specific position, unless sooner removed has to be for
cause]
IT WAS HELD THAT SINCE HIS APPOINTMENT WAS FOR A SPECIFIC POSITION OF “Dean
of the College of Education”. YOU CANNOT MOVED HIM TO ANOTHER POSITION EVEN TO
THAT WITH EQUIVALENT RANK!!OTHERWISE, IT WILL BE A TRANSFER WHICH CANNOT
BE DONE WITHOUT HIS CONSENT AND WILL CONSEQUENTLY AMOUNT TO REMOVAL
FROM SERVICE!! YOU WILL BE ALTERING THE TERMS OF HIS APPOINTMENT…
“UNLESS SOONER TERMINATED”- IT HAS TO BE FOR A CAUSE!!
Who can appeal an adverse decision in and administrative case?
PNB v. Garcia, Sept. 9. 2001:
A decision of the Civil Service reversed by the Court of Appeals may be challenged by
the former. The term aggrieved party can apply to it. [Mendez v. CASC, 204 SCRA 965,
abandoned by Dacoycoy v. CSC, 306 SCRA 425] Decisions are reviewed by CA on certiorari.
THE TERM “AGGRIEVED PARTY” APPLIES TO ANYONE! EVEN CSC IS A PROPER PARTY TO APPEAL A
DECISION ADVERSE TO IT!!
Bar Question,1994,

No. 4.

1) When is an appointment in the civil service permanent? IF YOU POSSESS ALL THE
QUALIFICATIONS AND YOU ARE HOLDER OF A REQUIRED ELIGIBILITY!!
2) Distinguish between an “appointment in an acting capacity” from an ad interim appointment.
APPOINTMENT IN AN ACTING CAPACITY IS DEFINITELY TEMPORARY IN NATURE!! AD
INTERIM APPOINTMENT REQUIRING CONFIRMATION IS ONE MADE BY THE PRESIDENT
WHEN THE CONGRESS IS NOT IN SESSION OR DURING RECESS-PERMANENT NATURE!!
3) Distinguish between a provisional and a temporary appointment.
NOTE THAT PROVISIONARY APPOINTMENT HAS BEEN ABOLISHED BY RA 6040!!! ONLY
UNDER MAGNA CARTA FOR TEACHERS WHERE PROVISIONAL APPOINTMENT IS ALLOWED
FOR PUBLIC SCHOOL TEACHERS!! HOWEVER, NO AUTOMATIC REGULAR APPOINTMENT
ONCE ONE QUALIFIES AND ACQUIRES ELIGIBILITY!!
Note: Provisional appointments have been abolished by RA No. 6040. Now it applies only to
teachers under the Magna Carta of Public School Teachers.]
Bar Question, 1993, No. 10.
How may the following be removed from office;
© officers and employees in the Civil Service- YOU CAN ONLY BE REMOVED FOR CAUSE AS
PROVIDED FOR BY LAW!!!
Bar Question, 1999, No. 9:
A. What is the meaning and guarantee of security of tenure? YOU CAN ONLY BE REMOVED
FOR CAUSE AS PROVIDED FOR BY LAW!!!
B. What characterizes the career service and what are included in the career service?
READ THE ENUMERATION IN THE PRECEDINGS SLIDES!!!
Bar Question, 1994, No,15.
Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant position, the City Mayor
appointed Jose Reyes, a civil engineer who formerly worked under Cruz but had been assigned to
the Office of the Mayor for the past 5 years.

Vicente Estrada, the Assistant City Engineer filed a protest with the Civil Service Commission
claiming that being the officer next in rank he should have been appointed as City Engineer.
NOTE THAT NO ONE HAS A BETTER RIGHT TO THE POSITION IN THE CASE AT BAR!!
ESTRADA HAS ONLY THE RIGHT TO BE CONSIDERED TO THE POSITION AND THE RIGHT
TO APPEAL TO CSC ON THE GROUND PROVIDED FOR BY LAW… THE NEXT IN RANK RULE
DOES NOT PROVIDE HIM BETTER TITLE TO THAT POSITION!!
1) Who has a better right to be appointed to the position? NO ONE HAS A BETTER RIGHT!!
ONCE APPLICANTS POSSESS ALL THE QUALIFICATIONS AND REQUIREMENTS, THEY ARE
ALL QUALIFIED!!
2) Can the Civil Service Commission revoke an appointment by the appointing authority and
direct the appointment of an individual of its choice? NO!! IT CAN ONLY APPROVED OR
DISAPPROVE APPOINTMENT SUBMITTED BEFORE IT… MINISTERIAL IN NATURE
Bar Question, 2011
•

3. Where A is set for promotion to Administrative Assistant III and B to the post of
Administrative Assistant II vacated by A, the appointing authority must

•

A. submit to the CSC the two promotional appointments together for approval.

•

B. not appoint B until the CSC has approved A’s appointment.

•

C. submit to the Civil Service Commission (CSC) the second appointment after its approval
of the first.

•

D. simultaneously issue the appointments of A and B.

Bar Question, 2011
•

9. An appointment held at the pleasure of the appointing power (AT THE PLEASURE
CONNOTES TRUST AND CONFIDENCE!!)

•

A. essentially temporary in nature.

•

B. requires special qualifications of the appointee.

•

C. requires justifiable reason for its termination.

•

D. is co-extensive with the term of the public officer who appointed him. NOT THIS ONE
BECAUSE HE CAN BE REMOVED BY THE APPOINTING AUTHORITY ANYTIME EVEN
BEFORE THE LATTER’S TERM ENDS OR THE TRUST AND CONFIDENCE CEASES.. IT
IS CO-TERMINUS WITH THE TRUST AND CONFIDENCE REPOSED ON YOU!!

Bar Question, 2011
•

27. A temporary appointee to a public office who becomes a civil service eligible during his
tenure

•

A. loses his temporary appointment without prejudice to his re-appointment as permanent.

•

B. has the right to demand conversion of his appointment to permanent.

•

C. automatically becomes a permanent appointee.

•

D. retains his temporary appointment.

•

Bar Question, 2010, No, XV

•

True or False.

D. Acquisition of civil service eligibility during tenure of a temporary appointee does not
automatically translate to a permanent appointment. (0.5%)
TRUE!!
Bar Question, 2005, No.5

•

(2.) Ricardo was elected Dean of the College of Education in a State University for a
term of five (5) years unless sooner terminated. Many were not pleased with his
performance. To appease those critical of him, the President created a new position, that of
Special Assistant to the President with the rank of Dean, without reduction in salary, and
appointed Ricardo to said position in the interest of the service. Contemporaneously, the
University President appointed Santos as Acting Dean in place of Ricardo.

•

(a) Does the phrase “unless sooner terminated” mean that the position of Ricardo is
terminable at will? NO!! IT HAS TO BE FOR A CAUSE!!

•

(b) Was Ricardo removed from his position as Dean of the College of Education or merely
transferred to the position of Special Assistant to the President? Explain. HE WAS REALLY
REMOVED AND AT THE SAME TIME HE WAS ALSO TRANSFERRED because the
appointment is specific!!

PUBLIC OFFICERS
Part III
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
13. Accountability of Public Officers
[a. Impeachment]
Art. XI, Sec. 1, 1987 Constitution:
“Public officers and employees must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead
modest lives.”
13. a. Ombudsman
An independent constitutional body. He has 5 deputies but only the Ombudsman himself is
impeachable.
-appointed by the President from a list of 3 prepared by the JBC (a list of 3- meaning it
cannot be more than 3). (note that the nomination to be made by the JBC as to JUDGES
OR JUSTICES IS AT LEAST 3)
-reappointment is prohibited
Qualifications:
1. 40 years old
2. natural-born citizens
3. members of the Philippine Bar [ (only) Ombudsman himself -10 years in practice (must at
least 10 years in practice)]
4. recognized probity and independence
Functions: [Guardian of Good Government]
1. Investigate all complaints of wrong-doing by government officials… (fact-finding side) THIS
IS ONLY TO FIND OUT W/N THERE IS WRONG DOING GOING ON
2. Hear administrative complaints against all public officials [disciplinary cases disciplinary side]-

THIS IS INTENDED TO PUNISH YOU!!
3. Conduct preliminary investigation in criminal cases [determine probable cause ]
1.

Power to Investigate (FACTFINDING) – extends to all government entities, including
GOCCs but not subsidiaries (THOSE CREATED UNDER THE CORPORATION CODE).

Almonte v. Vasquez- “any form or manner” [like NBI or CHR]- HERE ALMONTE COMPLAINED
WHY WAS HE BEING INVESTIGATED BY OMB AT THE INSTANCE OF AN ANONYMOUS
LETTER… IT WAS RULED THAT PURSUANT TO THE CONSTITUTION, OMB IS EMPOWERED
TO CONDUCT INVESTIGATION “IN ANY FORM OR MANNER”… NOTE THAT THIS
PROVISION “IN ANY FORM OR MANNER” IS LIMITED ONLY TO NO. 1 THE POWER TO
INVESTIGATE AND NOT TO ADMIN CASES OR NO. 2 BECAUSE THERE HOW CAN YOU BE
CHARGED FOR ADMIN CASE WHEN YOU DO NOT KNOW WHO IS CHARGING YOU… HERE
IT NEED NOT BE IN A FORMAL OR SPECIFIC FORM OF COMPLAINT OR UPON A VERIFIED
PETITION OR IN ANY MANNER.. INVESTIGATION HERE MAY BE BY MEANS OF
INVESTIGATIONS THROUGH EXAMINATION OF BOOKS OF ACCOUNTS OR OTHER
DOCUMENTS….
-everyone including gathering of evidence against impeachable officer
NOTE THAT THIS POWER TO INVESTIGATE EVEN COVERS TO THOSE IMPEACHABLE
OFFICIALS.. LIKE WHAT HAPPENED TO CORONA WHERE HE WAS BEING INVESTIGATED
BY GUTIERREZ BY VIRTUE OF THIS POWER… BUT NOTE THAT OMB CANNOT DO THAT IN
EXERCISE OF ITS POWER UNDER NO. 2 FOR PURPOSES OF ADMINISTRATIVE
INVESTIGATION!! OMB WAS ONLY INVESTIGATING CORONA NOT FOR THE PURPOSES OF
REMOVING HIM OR ADMIN INVESTIGATION BUT UNDER NO. 1 FOR PURPOSES OF
GATHERING INFORMATION OR EVIDENCE!!
2. Administrative/Disciplinary Jurisdiction (HERE YOU ARE ALREADY CHARGING THE
CONCERNED GOVT EE OR OFFICIAL)
Both appointive and elective, except:
a. impeachable officers [Gonzales case]
b. members/employees of the judiciary [Dolalas case] [CSC v. Andal, 608 SCRA 370 (2009)
(ONLY SC CAN CONDUCT ADMINISTRATIVE INVESTIGATIONS OF ALL EMPLOYEES AND
OFFICIALS OF THE JUDICIARY… EVEN THEIR JANITORS CANNOT BE INVESTIGATED
ADMINISTRATIVELY BY OMB AND CSC!!)
c. members of the Congress [Who disciplines them?] (IT IS THE HOUSE ITSELF WHO CAN
DISCIPLINE OR EXPEL YOU)
1. Can the Ombudsman order payment of back wages?
Orcullo v. Gervacio, 314 SCRA 452 (1999)
Councilor Orcullo was the Chair of the Committee of Women and the SP. Morales was named as
team leader of a study group to conduct a study of the DSWD. Due to financial constraints, Orcullo
suspended the project. Morales sought the assistance of the OMB who ordered Orcully to pay
Morales back wages amounting to P70,800.00. Is it proper?
HELD: NO! OMB HAS NO JURISDICTION OVER MONEY CLAIMS!! MAY BE YOU FILE IT
BEFORE THE THE PROPER COURT!! OMB CANNOT ORDER THE PAYMENT OF BACKWAGES!!
Held: No. The OMB has no jurisdiction over money claims. If it was a personal liability of Orcullo,
the claim should be filed in court. If that of the city government, jurisdiction is with the SP. RA
No. 6770 only authorizes the OMB to request another government agency for assistance
and information. It has no power to order payment of claims, wages and salaries to the
aggrieved party.
NOTE THAT CSC HAS THE POWER TO AWARD BACKWAGES IN CASE OF ILLEGAL
DISMISSAL OR REMOVAL!!
Preventive Suspension: RA 6779, Sec. 23- (OMBUDSMAN LAW)!

“The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay, except when the delay in
the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.”
Yasay v. Desierto, 300 SCRA 495 (1998)
Yasay was preventively suspended for 90 days pending investigation. He opted for a formal
hearing. When it became apparent that it could not be completed within the period, the OMB
suspended him for another 90 days. Is it valid?
Held: No. The non-completion of the investigation within 90 days cannot be construed
as “fault” or “negligence” of respondent. When the OMB made the initial determination
of the period of suspension, he should have taken into account the nature of the charge,
the evidence of the parties and the issues involved.
YOU CANNOT DO IT BY INSTALLMENT!!!
•

Penalties in Disciplinary Case: RA No. 6770,Sec. 25.

Penalties. —
•

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules
provided therein shall be applied.

•

(2) In other administrative proceedings, the penalty ranging from suspension without pay
for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand
pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that mitigate or
aggravate the liability of the officer or employee found guilty of the complaint or charges

•

NOTE THAT THE IMPOSABLE PENALTY OVER LOCAL OFFICIALS IS ONLY
SUSPENSION.. THE PRESIDENT OR THE CONCERNED SANGGUNIANG CAN NO
LONGER IMPOSED DISMISSAL!! OMB CAN ORDER THE DISMISSAL!!

•

NOTE ALSO THAT FINE CANNOT BE IMPOSED UNDER THE LOCAL GOVERNMENT
CODE… OMB CAN IN VIEW OF THE ABOVE!!

2. Pending appeal in administrative cases, are decisions of the OMB executory?
Lapid v. CA, 329 SCRA 771 (2000)
Held: Nothing in the law states that it is executory where the penalty is suspension for one year.
OTHERWISE STATED, WHEN THE CASE IS PENDING APPEAL, YOU NEED NOT SERVE THE
SUSPENSION!!
3. Preliminary Investigation –to determine probable causeTHIS DOES NOT APPLY TO THE FOLLOWING!!
a. impeachable officers
b. justices, judges and court personnel if the charge relates to the administrative function… IF
NOT RELATED, OMB CAN PROCEED THE PRELIM INVESTIGATION!! EX. RECKLESS
IMPRUDENCE OF A JUDGE, THE OMB CAN INVESTIGATE HIM FOR PURPOSES OF PRELIM
SINCE IT HAS NOTHING TO DO WITH THE JUDGE’S ADMIN FUNCTION!!
A. Extent of the Power to Investigate and file case:
1. applies to all government officials and employees (EXCEPT THOSE PROVIDED IN
THE PRECEDING SLIDE) WE ARE TALKING ABOUT PRELIM HERE!! ,
a. -regardless of salary grade, but if lower than SG 27 or not within the jurisdiction of
the Sandiganbayan, it is concurrent with DOJ Prosecutors [Office v. Enoc, 374 SCRA 691
(2002) [see Uy v. Sandiganbayan, 354 SCRA 651 (2001) decision was in effect from Aug. 9, 1999
to March 20, 2001]

REMEMBER THE JURISDICTION OF SANDIGANBAYAN EXTENDS ONLY TO PEOPLE OR
GOVERNMENT OFFICIALS WITH SALARY GRADE 27 OR ABOVE!! PUT IT DIFFERETLY, IF
YOU BELONG TO THESE CATEGORY, THE ONLY BODY WHO CAN INVESTIGATE YOU FOR
PURPOSES OF PRELIMINARY INVESTIGATION IS OMB.. THAT IS EXCLUSIVE !! NOT DOJ
PROSECUTORS.. BUT IF YOUR SG IS BELOW SG 27 OR THE CRIME ALLEGED TO HAVE
BEEN COMMITTED IS NOT IN RELATION TO YOUR OFFICE, YOU CAN BE INVESTIGATED
BY REGULAR DOJ PROSECUTORS OR PROVINCIAL FISCAL OR AT THE SAME TIME BY THE
OMB!!!! THIS IS WHAT WE CALLED CONCURRENT JURISDICTION..
b. -regardless of whether it is related or unrelated – Deloso v. Domingo, 191 SCRA 547 [Governor
was suspect in ambush-killing. The crime was unrelated to his functions]
-RELATED OR UNRELATED TO HIS OFFICE, THE OMBUDSMAN CAN CONDUCT
PRELIMINARY INVESTIGATION!!
THE OMBUDSMAN HAS EXCLUSIVE JURISDICTION TO INVESTIGATE IF YOUR SG IS 27 OR
ABOVE AND THE CRIME IS RELATED TO YOUR FUNCTION!! IT HAS CONCURRENT
JURISDICTION IF YOUR SG IS BELOW 27 OR THE CRIME ALLEGED TO HAVE BEEN
COMMITTED IS UNRELATED!!
1. Related/SG – 27 -Exclusive
2. Unrelated – Concurrent with DOJ
2. Can the Deputy Ombudsman for the Military conduct an investigation involving policemen
considering that the police force under the Constitution is civilian in character?
Held: The OMB has control of his deputies. He can refer cases involving non-military
men. Besides, the principle of civilian supremacy is not violated. The Deputy for the
Military is not a member of the armed forces.
Questions:
1. Can the Ombudsman dismiss employees of other departments or only recommend their
dismissal?
Some decisions stated it is only recommendatory. ButOMB v. Delijero, Oct. 20, 2010:
“The Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or
employee is not merely advisory or recommendatory but is actually mandatory.
Implementation of the order imposing the penalty is, however, to be coursed through the proper
officer. “
REGARDLESS APPOINTIVE OR ELECTIVE!
Bar Question, 2005, No. 5:
(3.) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with
violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust
judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer
the complaint to the Supreme Court to determine whether an administrative aspect was involved in
the said case. The Ombudsman denied the motion on the ground that no administrative case
against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in
his office. State with reasons whether the Ombudsman’s ruling is correct. (4%)
OMB’S RULING IS WRONG! NOTE THAT THE COMPLAINT FILED AGAINS THE JUDGE IS
Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment.. IT
HAS RELATION IN THE DISCHARGE OF HIS FUNCTION… WITH THAT, IT SHOULD BE
REFERRED FIRST THE MATER TO THE SUPREME COURT!!
Bar Question, 2004, No. 6:
Director WOW failed the lifestyle check conducted by the OMB’s Office because WOW’s
assets were grossly disproportionate to his salary and allowances. Moreover, some assets
were not included in his SALN. He was charged of graft and corrupt practices and pending

completion of investigation, he was suspended from office for 6 months.
A. Aggrieved, WOW petitioned the CA to annul the preventive suspension order on the ground
that the OMB could only recommend but not impose the suspension. Moreover, according to WOW,
the suspension was
imposed without any notice or hearing, in violation of due process.
Is the petitioner’s contention meritorious? Discuss briefly. [Also asked in 1996, No. 10b]
OMB HAS THE POWER PLACE THE GOVERNMENT OFFICIAL OR EMPLOYEE UNDER
PREVENTIVE SUSPENSION. IT CAN EVEN SUSPEND OR DISMISS.. IT CANNOT ONLY
RECOMMEND!! AS TO THE REQUIREMENT OF DUE PROCESS, THERE IS NO NEED THAT THE
ISSUES BE JOINED BEFORE A PERSON CAN BE PLACED UNDER PREVENTIVE SUSPENSION
AS DISTINGUISHED TO THAT DISCIPLINE OF LOCAL OFFICIALS.. REFER THIS TO
PREVIOUS DISCUSSIONS!

B. For his part, the OMB moved to dismiss WOW’s petition. According to the OMB the evidence
of guilt of WOW is strong, and petitioner has failed to exhaust administrative remedies. WOW
admitted that he filed no motion form reconsideration, but only because the order suspending him
was immediately executory.
Should the motion to dismiss be granted or not? Discuss briefly.
YOU NEED TO EXHAUST ADMINSTRATIVE REMEDIES AND BEFORE A CERTIORARI CAN BE
ENTERTAINED, A MOTION FOR RECONSIDERATION MUST BE HAD FIRST!!

B. Sandiganbayan
I.

Jurisdiction: Sec. 2, RA 8249

The determination of the jurisdiction of the Sandiganbayan over crimes committed by
public officers is dependent on two things: (BOTH OF WHICH MUST BE PRESENT)
1. nature of the offense, and
2. the position or rank of the offender
AS A GENERAL RULE, LOWER RANKING OFFICIALS ARE NOT COVERED BY THE
SANDIGANBAYAN EVEN IF THEY COMMITTED A CRIME OR OFFENSE WHICH BY ITS
NATURE SHOULD BELONG TO CRIMS COMMITTED BY PUBLIC OFFICERS!! SO THE 2
THINGS MUST CONCUR!! SANDIGANBAYAN IS EQUATED WITH RANK OF THE COURT OF
APPEALS BUT NOW IT IS NOT TOTALLY TRUE AS THE FORMER IS GIVEN JURISDICTION
OVER CERTAIN CIVIL CASES IN A VERY LIMITED WAY!
a. Nature of Offenses : (PROVIDED THAT THE RANK REQUIREMENT IS PRESENT, SG 27 AND
ABOVE!!
1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-graft and
Corrupt Practices Act
2. Republic Act No. 1379 [Sec. 12 – those who transfer, or convey and receive them
(ILLGOTTEN WEATLH)]
THIS IS THE LAW ON FOREFEITURE OF ILL GOTTEN WEALTH.. WHAT ARE PUNISHABLE
HERE IS ONLY THOSE UNDER SECTION 12-THOSE WHO TRANSFER, OR CONVEY AND
RECEIVE ILL GOTTEN WEALTH… MERE POSSESSION IS NOT PUNISHABLE BECAUSE YOU
ARE ONLY PUNISHED UNDER SUCH SECTION ON HOW YOU ACQUIRED THEM…. WHAT IS
PUNISHABLE IS THE MANNER OF ACQUISITION OF ILLGOTTEN WEALTH.. AGAIN,
POSSESSION OF ILLGOTTEN WEALTH IS NOT PUNISHABLE BUT THE MOMENT YOU
CONVEY OR TRANSFER, IT IS NOW PUNISHABLE!! HENCE, SANDIGAN BAYAN
JURISDICTION!!
3. Chapter II, Section 2, Title VII, Book II of the Revised Penal Code

Crimes committed by public officers:
1. Direct Bribery
2. Indirect Bribery
3. Corruption of Public Officials
Malversation? SINCE IT IS NOT UNDER THIS CATEGORY, IT IS NOT UNDER THE
SANDIGANBAYAN JURISDICTION!
4.

Law on Plunder [RA No. 7080/7659]

ALL CASES INVOLVING PLUNDER ARE ALL NOW UNDER SANDIGANBAYAN!!
5.

Other offenses committed by the public officials and employees mentioned in subsection a
of this section in relation to their office. THIS IS THE CATCH ALL PHRASE!!

IF YOU ARE HIGH RANKING OFFICIAL WITH SG 27 OR HIGHER AND ALLEGED TO HAVE
COMMITTED OTHER OFFENSES IN RELATION TO YOUR OFFICE.. APPARENTLY, WHILE
MALVERSATION IS NOT LISTED IN SEC. 2 CHAPTER 2, IT WILL FALL UNDER THIS
CATEGORY SINCE MALVERSATION IS COMMITTED IN CONECTION WITH THE OFFICE!!
6. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
+
b. Position or Rank of the Offender:
(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:
•

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan
and provincial treasurers, assessors, engineers and other provincial department heads;

•

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors engineers and other city department heads;

•

(c) Officials of the diplomatic service occupying the position of consul and higher;

•

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

•

(e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;

•

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;

•

(g) Presidents, directors or trustees, or managers of government-owned or -controlled
corporations, state universities or educational institutions or foundations;

•

"(2) Members of Congress and officials thereof classified as Grade'27'and up under the
Compensation and Position Classification Act of 1989;

•

"(3) Members of the judiciary without prejudice to the provisions of the Constitution;

•

"(4) Chairmen and members of Constitutional Commissions, without prejudice to the
provisions of the Constitution; and

•

"(5) All other national and local officials classified as Grade'27'and higher under the
Compensation and Position Classification Act of 1989.

Geduspan v. People, 451 SCRA 187Is the General Manager of Philhealth, who is only Grade 26, under the jurisdiction of the SDGN?
[by express provision of law (g)]

Alzaga v. SDGN, 505 SCRA 849 – What about Vice Presidents or Assistants Vice Presidents of
GOCCs? [higher than managers]
If less than SG 27, which court has jurisdiction? Same:
a. Not more than 6 years- MTC
b. 6 years and 1 day up- RTC
Appeals:
MTC>>>>>RTC>>>>SDGN>>>SC
[Apparently applicable only where the crimes is included in the above list.]
C. Office of the Special Prosecutor:
RA 6770, Sec. 11:
•

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his
prosecution staff. The Office of the Special Prosecutor shall be an organic component of the
Office of the Ombudsman and shall be under the supervision and control of the
Ombudsman.

•

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
the authority of the Ombudsman, have the following powers:

•

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan;

[Special Prosecutor:]
-government officials with salary grade of 27 and above
DOJ Prosecutors
-ordinary citizens in regular courts
-government officials before regular courts
[OMB has also a pool of prosecutors appearing in regular courts]

Lastimosa v. Vasquez, 243 SCRA 500 (1995):
Instead of filing attempted rape against a mayor as ordered by the Ombudsman, the City
Prosecutor of Cebu filed acts of lascviousness. For contempt and inusbordination, the OMB
suspended him for 6 months. [Deputized prosecutor under the control and supervision of the OMB
under RA No. 6770.]
People v. Magallanes, 249 SCRA 215 (1995)
“in relation to office”:
1. if it cannot exist without the office, or
2. if the office is a constituent element of the crime
Bar Question, 2011:
•

95. The Office of the Special Prosecutor may file an information against a public officer for
graft

•

A. on its own initiative subject to withdrawal of the information by theOmbudsman.

•

B. independently of the Ombudsman, except in plunder cases.

•

C. only when authorized by the Ombudsman.

D. independently of the Ombudsman.

•

Bar Question, 1996 10 (b):
An administrative complaint for violation of the Anti-Graft and Corrupt Practices Act against X
was filed with the Ombudsman. Immediately after taking cognizance of the case and the affidavits
submitted to him, the OMB ordered the preventive suspension of X pending preliminary
investigation. X questioned the suspension order, contending that the OMB can only suspend
preventively subordinate employees in his own office.
Is X correct?
Bar Question, 2009, No. 11True or False
[d] Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely
recommendatory.
OMB v. Delijero, Oct. 20, 2010
Question: Do administrative Offenses Prescribe?
Floria v. Sunga, 368 SCRA 555 (2001). No such provision exists in the Civil Service Law
Sec. 20, RA No. 6770: The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission or omission if it believes that: xxx

•

(5) The complaint was filed after one year from the occurrence of the act or omission
complained of.
[Jumawan case: it is permissive.]
Can there be pardon from conviction in an administrative case?
PD No. 807:
Section 43. Removal of Administrative Penalties or Disabilities. In meritorious cases and upon
recommendation in the Commission, the President may commute or remove administrative
penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such
terms and conditions as he may impose in the interest of the service.
Since the President cannot pardon a court employee administratively penalized by the Supreme
Court because of separation of powers, who can pardon him?
(1) Judicial Review in Administrative Proceedings
(2) Judicial Review in Penal Proceedings

•

Where does one appeal decisions of the Civil Service Commission?
To the CA under Rule 43 of the Rules of Court. Must be filed within 15 days through a verified
Petition for Review.
From the CA to the Supreme Court, it is through Appeal by Certiorari under Rule 45.
PNB v. Garcia, Sept. 9, 2002:
Can the government agency/official/Commission appeal to the Court of Appeals a decision in
favor of an employee administratively charged? -abandoned Mendez – “only party adversely
affected” . BOTH can appeal.
Where does one appeal the decision of the Ombudsman? Tirol v. Del Rosario, 317 SCRA 779
(1999)

a.

Administrative/Disciplinary Cases – RA 6770, Sec. 27 voided in Fabian –CA

b. Criminal/Preliminary Investigation – law is silent- Certiorari [grave abuse] Rule 65

d. Recovery of Ill-gotten Wealth:
1. by Marcos and his cronies
2. by others/not be reason of closeness with him
Outline:
1. procedure for recovery
2. prescription
Ill-gotten Wealth –RA No. 1379, Sec. 2:
An amount of property which is manifestly out of proportion to his salary as such public
officer and to his other lawful income.
A. Procedure
Marcos Wealth

1.

a. EO No. 1 created the PCGG and authorized it to sequester and provisionally take over all
properties and business belonging to Marcos, his family, relatives, close associates and
subordinates here and abroad.
•

EO No. 2. President Aquino freeze all their assets to prevent transfer and conveyance.

•

EO No. 14/14A. Authorized the PCGG to file civil and criminal cases and the Sandiganbayan
to assume jurisdiction

PCGG
-not a constitutional body but allowed by the Constitution to exist
-under the transitory provision, it was allowed to sequester for an additional 18 months, unless
Congress, upon recommendation of the President, authorizes it
-allowed to continue old cases and pursue ill-gotten wealth
[Cojuangco v. Roxas, 195 SCRA 799 (1991)]
-it can sequester, take-over and issue freeze orders
-it can only exercise acts of administration, not ownership
-it cannot vote sequestered shares in order to change company policy or replace management
officials
-the powers are mere provisional remedies intended to “prevent the disposal and dissipation of
assets
-it must institute judicial proceedings within 6 months
-it can compromise civil cases
-it can grant immunity from prosecution to witnesses, not principal accused
2. Ill-Gotten Wealth of others
RA No. 1379 –Law on Forfeiture of Ill-gotten Wealth=
-does not punish possession or acquisition of ill-gotten wealth only forfeiture
-RA 3019 provides for the administrative aspect of removal or suspension, not confiscation
-proceedings is before the RTC where respondent resides.
-reversed presumption applies/prima facie
Some Decisions:

1. Cabal v. Kapunan – right against self-incrimination is a prohibition of inquiry
2. Katigbak v. Solicitor General – prohibition on ex post facto applies
•

2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth

1.

Does the right of the state to recover ill-gotten wealth prescribe?

2.

Does the right of the state to prosecute crimes involving ill-gotten wealth prescribe?

3.

How is prescription computed?

First Question:
1987 Constitution, Art. XI, Sec. 15: “The right of the state to recover properties unlawfully
acquired by public officials or employees shall not be barred by prescription.”
RA 1379, June 24, 1955
Section 11. Laws on prescription. The laws concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property
unlawfully acquired by him.
Question 2:
PAHFFC v. Desierto , 317 SCRA 272 (1999) – The above provision does not apply to crimes.
RA No. 3019: Section 11. Prescription of offenses. All offenses punishable under this Act shall
prescribe in fifteen (15) years.
How is prescription computed? in Act No. 3326, Section 2:
•

"SECTION 2. Prescription shall begin to run from the day of the commission of the violation
of the law, and if the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment.

Republic v. Desierto, 363 SCRA 585 (2001)
The contract was entered in Nov. 20, 1974. For being manifestly disadvantageous to the
government, the criminal case was filed on Feb. 12, 1990. From when should prescription be
counted?
Held: it is well-nigh impossible for the government, the aggrieved party, to have known the
violations committed at the time of the questioned transaction were made because both parties to
the transaction were allegedly in conspiracy to commit fraud against the government. The alleged
anomalous transactions could only have been discovered after the February 1986 Revolution when
one of the original respondents, President Marcos, was ousted from office. Prior to said date, no
person would have dared to question the legality or propriety of those transactions. Hence, the
counting of the prescriptive period would commence from the date of discovery of the offense,
which would have been between February 1986 after the EDSA Revolution and 26 May 1987 when
the initiatory complaint was filed.
Other laws on ill-gotten wealth:
1. RA No. 7080/7659 – Law on PlunderCommitted by any public officer who amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section in the pesos
(P75,000,000.00), aggregate amount or total value of at least Seventy-five million
2. RA No. 9160/10167 –
Money laundering is a crime whereby the proceeds of an unlawful activity are transacted,
thereby making them appear to have originated from legitimate sources.

PUBLIC OFFICERS
Part III
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
13. Accountability of Public Officers
[a. Impeachment]

Art. XI, Sec. 1, 1987 Constitution:
“Public officers and employees must, at all times, be accountable to the people, serve them with
utmost (RILE) responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.”
13. a.

Ombudsman
An independent constitutional body.
He has 5 deputies but only the Ombudsman himself is impeachable.
-appointed by the President from a list of 3 prepared by the JBC
(a list of 3- meaning it cannot be more than 3).

(note that the nomination to be made by the JBC as to JUDGES OR JUSTICES
IS AT LEAST 3)
-reappointment is prohibited

4 Qualifications:
1. 40 years old
2. natural-born citizens
3. members of the Philippine Bar [ (only) Ombudsman himself -10 years in practice (must at
least 10 years in practice)]
4. recognized probity and independence

3 Functions: [Guardian of Good Government]
1.

Investigate all complaints of wrong-doing by government officials… (fact-finding side)

THIS IS ONLY TO FIND OUT W/N THERE IS WRONG DOING GOING ON
2.

Hear administrative complaints against all public officials [disciplinary cases

disciplinary side]- THIS IS INTENDED TO PUNISH YOU!!
3.

Conduct preliminary investigation in criminal cases
[determine probable cause ]

**FUNCTIONS EXPLAINED**
1.

Power to Investigate

(FACTFINDING) –

extends to all government entities,

including GOCCs but not

subsidiaries (THOSE CREATED UNDER THE CORPORATION CODE).
**case**

Almonte v. Vasquez- “any form or manner”

[like NBI or CHR]- HERE

ALMONTE COMPLAINED WHY WAS HE BEING INVESTIGATED BY OMB AT THE INSTANCE
OF AN ANONYMOUS LETTER… IT WAS RULED THAT PURSUANT TO THE CONSTITUTION,
OMB IS EMPOWERED TO CONDUCT INVESTIGATION “IN ANY FORM OR MANNER”…
NOTE THAT THIS PROVISION “IN ANY FORM OR MANNER” IS LIMITED ONLY TO
NO. 1 THE POWER TO INVESTIGATE AND NOT TO ADMIN CASES OR
NO. 2 BECAUSE THERE HOW CAN YOU BE CHARGED FOR ADMIN CASE WHEN YOU DO
NOT KNOW WHO IS CHARGING YOU…
HERE IT NEED NOT BE IN A FORMAL OR SPECIFIC FORM OF COMPLAINT OR UPON A
VERIFIED PETITION OR IN ANY MANNER..
=INVESTIGATION HERE MAY BE BY MEANS OF INVESTIGATIONS THROUGH
EXAMINATION OF BOOKS OF ACCOUNTS OR
OTHER DOCUMENTS….
-everyone including gathering of evidence against impeachable officer

NOTE:
THAT THIS POWER TO INVESTIGATE EVEN COVERS TO THOSE IMPEACHABLE
OFFICIALS.. LIKE WHAT HAPPENED TO CORONA WHERE HE WAS BEING INVESTIGATED
BY GUTIERREZ BY VIRTUE OF THIS POWER…
BUT NOTE THAT OMB CANNOT DO THAT IN EXERCISE OF ITS POWER UNDER NO. 2 FOR
PURPOSES OF ADMINISTRATIVE INVESTIGATION!! OMB WAS ONLY INVESTIGATING
CORONA NOT FOR THE PURPOSES OF REMOVING HIM OR ADMIN INVESTIGATION BUT
UNDER NO. 1 FOR PURPOSES OF GATHERING INFORMATION OR EVIDENCE!!
2.

Administrative/Disciplinary Jurisdiction
(HERE YOU ARE ALREADY CHARGING THE CONCERNED GOVT EE OR OFFICIAL)

Both appointive and elective,
except:
a.

impeachable officers

b.

members/employees of the judiciary [Dolalas case] [CSC v.

[Gonzales case]

Andal, 608 SCRA 370 (2009) (ONLY SC CAN CONDUCT ADMINISTRATIVE INVESTIGATIONS
OF ALL EMPLOYEES AND OFFICIALS OF THE JUDICIARY… EVEN THEIR JANITORS
CANNOT BE INVESTIGATED ADMINISTRATIVELY BY OMB AND CSC!!)
c.

members of the Congress

[Who disciplines them?] (IT IS THE HOUSE

ITSELF WHO CAN DISCIPLINE OR EXPEL YOU)

Q: Can the Ombudsman order payment of back wages?

1.

Orcullo v. Gervacio, 314 SCRA 452 (1999)
Councilor Orcullo was the Chair of the Committee of Women and the SP. Morales was named as
team leader of a study group to conduct a study of the DSWD. Due to financial constraints, Orcullo
suspended the project. Morales sought the assistance of the OMB who ordered Orcully to pay
Morales back wages amounting to P70,800.00. Is it proper?HELD: NO! OMB HAS NO
JURISDICTION OVER MONEY CLAIMS!! MAY BE YOU FILE IT BEFORE THE THE PROPER
COURT!! OMB CANNOT ORDER THE PAYMENT OF BACKWAGES!!

A: No. The OMB has no jurisdiction over money claims. If
it was a personal liability of Orcullo, the claim should be filed
in court. If that of the city government, jurisdiction is with
the SP. RA No. 6770 only authorizes the OMB to request another government agency
Held:

for assistance and information. It has no power to order payment of claims, wages and salaries
to the aggrieved party.
NOTE:

CSC HAS THE POWER TO AWARD BACKWAGES IN
CASE OF ILLEGAL DISMISSAL OR REMOVAL!!
THAT

Preventive Suspension:

RA 6779, Sec. 23- (OMBUDSMAN LAW)!

“The preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six (6) months, without pay,

except when the delay in the disposition of the case by the Office of the Ombudsman is due
to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted
in computing the period of suspension herein provided.”

Yasay v. Desierto,

300 SCRA 495 (1998)

Yasay was preventively suspended for 90 days pending investigation. He opted for a formal
hearing. When it became apparent that it could not be completed within the period, the OMB
suspended him for another 90 days. Is it valid?
Held: No. The non-completion of the investigation within 90 days cannot be construed
as “fault” or “negligence” of respondent. When the OMB made the initial determination
of the period of suspension, he should have taken into account the nature of the charge,
the evidence of the parties and the issues involved.
YOU CANNOT DO IT BY INSTALLMENT!!!

•

Penalties in Disciplinary Case: RA No. 6770,Sec. 25.

Penalties. —
•

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules
provided therein shall be applied.

•

(2) In other administrative proceedings, the penalty ranging from suspension without pay
for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand
pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that mitigate or
aggravate the liability of the officer or employee found guilty of the complaint or charges

•

NOTE:

THAT THE IMPOSABLE PENALTY OVER LOCAL OFFICIALS IS ONLY
SUSPENSION..
THE PRESIDENT OR THE CONCERNED SANGGUNIANG CAN NO LONGER

IMPOSED DISMISSAL!! OMB CAN ORDER THE DISMISSAL!!

•

NOTE:

ALSO THAT FINE CANNOT BE IMPOSED UNDER THE LOCAL GOVERNMENT
CODE… OMB CAN IN VIEW OF THE ABOVE!!

2.

Q:Pending appeal in administrative cases, are decisions of

the OMB executory?
Lapid v. CA, 329 SCRA 771 (2000)Held: Nothing in the law states that it is executory where the

***A: WHEN THE
CASE IS PENDING APPEAL, YOU NEED NOT SERVE THE
SUSPENSION!!
penalty is suspension for one year. OTHERWISE STATED,

3.

Preliminary Investigation
–to determine probable cause-

THIS DOES NOT APPLY TO THE FOLLOWING!!
a.

impeachable officers

b.

justices, judges and court personnel

if the charge relates to the

administrative function… IF NOT RELATED, OMB CAN PROCEED THE PRELIM
INVESTIGATION!! EX. RECKLESS IMPRUDENCE OF A JUDGE, THE OMB CAN INVESTIGATE
HIM FOR PURPOSES OF PRELIM SINCE IT HAS NOTHING TO DO WITH THE JUDGE’S
ADMIN FUNCTION!!

A.

Extent of the Power to Investigate and file case:
1. applies to all government officials and employees
(EXCEPT THOSE PROVIDED IN THE PRECEDING SLIDE) WE ARE TALKI

NG ABOUT PRELIM HERE!! ,
a. -regardless of salary grade,

but if lower than SG 27 or not within the jurisdiction

of the Sandiganbayan, it is concurrent with DOJ Prosecutors [Office v. Enoc, 374 SCRA 691
(2002) [see Uy v. Sandiganbayan, 354 SCRA 651 (2001) decision was in effect from Aug. 9, 1999
to March 20, 2001]
REMEMBER THE JURISDICTION OF SANDIGANBAYAN EXTENDS ONLY TO PEOPLE OR
GOVERNMENT OFFICIALS WITH SALARY GRADE 27 OR ABOVE!! PUT IT DIFFERETLY, IF
YOU BELONG TO THESE CATEGORY, THE ONLY BODY WHO CAN INVESTIGATE YOU FOR
PURPOSES OF PRELIMINARY INVESTIGATION IS OMB.. THAT IS EXCLUSIVE !! NOT DOJ
PROSECUTORS.. BUT IF YOUR SG IS BELOW SG 27 OR THE CRIME ALLEGED TO HAVE
BEEN COMMITTED IS NOT IN RELATION TO YOUR OFFICE, YOU CAN BE INVESTIGATED
BY REGULAR DOJ PROSECUTORS OR PROVINCIAL FISCAL OR AT THE SAME TIME BY THE
OMB!!!! THIS IS WHAT WE CALLED CONCURRENT JURISDICTION..
b. -regardless of whether it is related or unrelated – Deloso v. Domingo, 191 SCRA 547 [Governor
was suspect in ambush-killing. The crime was unrelated to his functions]
-RELATED OR UNRELATED TO HIS OFFICE, THE OMBUDSMAN CAN CONDUCT
PRELIMINARY INVESTIGATION!!
THE OMBUDSMAN HAS EXCLUSIVE JURISDICTION TO INVESTIGATE IF YOUR SG IS 27 OR
ABOVE AND THE CRIME IS RELATED TO YOUR FUNCTION!! IT HAS CONCURRENT
JURISDICTION IF YOUR SG IS BELOW 27 OR THE CRIME ALLEGED TO HAVE BEEN
COMMITTED IS UNRELATED!!
1. Related/SG – 27 -Exclusive
2. Unrelated – Concurrent with DOJ

2. Can the Deputy Ombudsman for the Military conduct an investigation involving policemen
considering that the police force under the Constitution is civilian in character?
Held: The OMB has control of his deputies. He can refer cases involving non-military
men. Besides, the principle of civilian supremacy is not violated. The Deputy for the
Military is not a member of the armed forces.
Questions:
1. Can the Ombudsman dismiss employees of other departments or only recommend their
dismissal?
Some decisions stated it is only recommendatory. ButOMB v. Delijero, Oct. 20, 2010:
“The Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or
employee is not merely advisory or recommendatory but is actually mandatory.
Implementation of the order imposing the penalty is, however, to be coursed through the proper
officer. “
REGARDLESS APPOINTIVE OR ELECTIVE!
Bar Question, 2005, No. 5:
(3.) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with
violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust
judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer
the complaint to the Supreme Court to determine whether an administrative aspect was involved in
the said case. The Ombudsman denied the motion on the ground that no administrative case
against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in
his office. State with reasons whether the Ombudsman’s ruling is correct. (4%)
OMB’S RULING IS WRONG! NOTE THAT THE COMPLAINT FILED AGAINS THE JUDGE IS
Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment.. IT
HAS RELATION IN THE DISCHARGE OF HIS FUNCTION… WITH THAT, IT SHOULD BE
REFERRED FIRST THE MATER TO THE SUPREME COURT!!
Bar Question, 2004, No. 6:
Director WOW failed the lifestyle check conducted by the OMB’s Office because WOW’s
assets were grossly disproportionate to his salary and allowances. Moreover, some assets
were not included in his SALN. He was charged of graft and corrupt practices and pending
completion of investigation, he was suspended from office for 6 months.
A. Aggrieved, WOW petitioned the CA to annul the preventive suspension order on the ground
that the OMB could only recommend but not impose the suspension. Moreover, according to WOW,
the suspension was
imposed without any notice or hearing, in violation of due process.
Is the petitioner’s contention meritorious? Discuss briefly. [Also asked in 1996, No. 10b]
OMB HAS THE POWER PLACE THE GOVERNMENT OFFICIAL OR EMPLOYEE UNDER
PREVENTIVE SUSPENSION. IT CAN EVEN SUSPEND OR DISMISS.. IT CANNOT ONLY
RECOMMEND!! AS TO THE REQUIREMENT OF DUE PROCESS, THERE IS NO NEED THAT THE
ISSUES BE JOINED BEFORE A PERSON CAN BE PLACED UNDER PREVENTIVE SUSPENSION
AS DISTINGUISHED TO THAT DISCIPLINE OF LOCAL OFFICIALS.. REFER THIS TO
PREVIOUS DISCUSSIONS!

B. For his part, the OMB moved to dismiss WOW’s petition. According to the OMB the evidence
of guilt of WOW is strong, and petitioner has failed to exhaust administrative remedies. WOW
admitted that he filed no motion form reconsideration, but only because the order suspending him
was immediately executory.
Should the motion to dismiss be granted or not? Discuss briefly.

YOU NEED TO EXHAUST ADMINSTRATIVE REMEDIES AND BEFORE A CERTIORARI CAN BE
ENTERTAINED, A MOTION FOR RECONSIDERATION MUST BE HAD FIRST!!

B. Sandiganbayan
I.

Jurisdiction: Sec. 2, RA 8249

The determination of the jurisdiction of the Sandiganbayan over crimes committed by
public officers is dependent on two things: (BOTH OF WHICH MUST BE PRESENT)
1. nature of the offense, and
2. the position or rank of the offender
AS A GENERAL RULE, LOWER RANKING OFFICIALS ARE NOT COVERED BY THE
SANDIGANBAYAN EVEN IF THEY COMMITTED A CRIME OR OFFENSE WHICH BY ITS
NATURE SHOULD BELONG TO CRIMS COMMITTED BY PUBLIC OFFICERS!! SO THE 2
THINGS MUST CONCUR!! SANDIGANBAYAN IS EQUATED WITH RANK OF THE COURT OF
APPEALS BUT NOW IT IS NOT TOTALLY TRUE AS THE FORMER IS GIVEN JURISDICTION
OVER CERTAIN CIVIL CASES IN A VERY LIMITED WAY!
a. Nature of Offenses : (PROVIDED THAT THE RANK REQUIREMENT IS PRESENT, SG 27 AND
ABOVE!!
1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-graft and
Corrupt Practices Act
2. Republic Act No. 1379 [Sec. 12 – those who transfer, or convey and receive them
(ILLGOTTEN WEATLH)]
THIS IS THE LAW ON FOREFEITURE OF ILL GOTTEN WEALTH.. WHAT ARE PUNISHABLE
HERE IS ONLY THOSE UNDER SECTION 12-THOSE WHO TRANSFER, OR CONVEY AND
RECEIVE ILL GOTTEN WEALTH… MERE POSSESSION IS NOT PUNISHABLE BECAUSE YOU
ARE ONLY PUNISHED UNDER SUCH SECTION ON HOW YOU ACQUIRED THEM…. WHAT IS
PUNISHABLE IS THE MANNER OF ACQUISITION OF ILLGOTTEN WEALTH.. AGAIN,
POSSESSION OF ILLGOTTEN WEALTH IS NOT PUNISHABLE BUT THE MOMENT YOU
CONVEY OR TRANSFER, IT IS NOW PUNISHABLE!! HENCE, SANDIGAN BAYAN
JURISDICTION!!
3. Chapter II, Section 2, Title VII, Book II of the Revised Penal Code
Crimes committed by public officers:
1. Direct Bribery
2. Indirect Bribery
3. Corruption of Public Officials
Malversation? SINCE IT IS NOT UNDER THIS CATEGORY, IT IS NOT UNDER THE
SANDIGANBAYAN JURISDICTION!
1. Law on Plunder [RA No. 7080/7659]
ALL CASES INVOLVING PLUNDER ARE ALL NOW UNDER SANDIGANBAYAN!!
1. Other offenses committed by the public officials and employees mentioned in subsection a
of this section in relation to their office. THIS IS THE CATCH ALL PHRASE!!
IF YOU ARE HIGH RANKING OFFICIAL WITH SG 27 OR HIGHER AND ALLEGED TO HAVE
COMMITTED OTHER OFFENSES IN RELATION TO YOUR OFFICE.. APPARENTLY, WHILE
MALVERSATION IS NOT LISTED IN SEC. 2 CHAPTER 2, IT WILL FALL UNDER THIS
CATEGORY SINCE MALVERSATION IS COMMITTED IN CONECTION WITH THE OFFICE!!
1. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986.THESE ARE EXECUTIVE ORDERS ISSUED BY PRES.

ACQUINO- THIS HAS REFERENCE WITH THE ILL GOTTEN WEALTH OF THE MARCOS
FAMILY!! This is the ONLY CIVIL CASE THAT CAN BE HANDLED BY THE
SANDIGANBAYAN.. HENCE, IT IS STILL CORRECT TO SAY THAT THE SANDIGAN
BAYAN IS STILL A SPECIAL CRIMINAL COURT WITH THE SINGLE EXCEPTION OF
EO 1,2,14 AND 14-A (CIVIL CASE)
+
b. Position or Rank of the Offender:
THESE MUST CONCUR!
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
TAKE NOTE HERE THAT THE ENUMERATION ARE NOT EXCLUSIVE! NOTE THAT THERE ARE
2 CATEGORIES THERE, EITHER YOU BELONG TO THOSE WITH SALARY GRADE 27 OR
ABOVE OR YOU BELONG TO THE ENUMERATION!!
THE ENUMERATION THERE DOES NOT PERTAIN ONLY TO SG 27 OR ABOVE AS SOME OF
THEM PERTAIN TO THOSE BELOW SG 27.. WE ARE ALREADY SETTLED HERE HA… SO THE
FOLLOWING ARE THE ENUMERATIONS!!!
•

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan
and provincial treasurers, assessors, engineers and other provincial department heads;

•

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors engineers and other city department heads; TAKE NOTE WHILE
MUNICIPAL MAYORS, VICE MAYOR AND MUNICIPAL DEPARTMENT HEADS ARE
NOT INCLUDED HERETO ENUMERATION, THEIR SG IS 27.. HENCE, THEY NOW FALL
UNDER THE JURISDICTION OF THE SANDIGANBAYAN!! THOUGH NOT
SPECIFICALLY ENUMERATED!

•

(c) Officials of the diplomatic service occupying the position of consul and higher;
(NOTE THAT THE APPOINTMENTS OF THESE OFFICIALS REQUIRE THE
CONFIRMATION OF THE COMMISSION ON APPOINTMENTS) CONSUL AND VICE
CONSUL

•

(d) Philippine army and air force colonels, naval captains, and all officers of
higher rank; (NOTE THAT THE APPOINTMENTS OF THESE OFFICIALS REQUIRE THE
CONFIRMATION OF THE COMMISSION ON APPOINTMENTS)

•

(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher;

•

(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; SO INCLUDED
ARE ALL PROSECUTORS WHETHER CHIEF OR ASSISTANT PROSECUTORS BUT NOT
APA OR OTHERWISE KNOWN AS ASSISTANT PROSECUTION ATTORNEY! THEY ARE
NOT COVERED BECAUSE THEY HAVE LESS THAN 5 YEARS IN THE PRACTICE OF
LAW! THESE APA ARE APPOINTED ONLY BY THE SECRETARY!! AS DISTINGUISHED
TO THE ABOVE ENUMERATED WHO ARE APPOINTED BY THE PRESIDENT!

•

(g) Presidents, directors or trustees, or managers of government-owned or
-controlled corporations, state universities or educational institutions or
foundations;

•

"(2) Members of Congress and officials thereof classified as Grade'27'and up
under the Compensation and Position Classification Act of 1989; ALL
CONGRESSMAN AND SENATORS!!

•

"(3) Members of the judiciary without prejudice to the provisions of the
Constitution; - WITHOUT PREJUDICE-MEANS IF YOU ARE AN IMPEACHABLE
OFFICER, YOU HAVE TO BE IMPEACHED FIRST BEFORE YOU CAN BE TRIED BEFORE
THE SANDIGANBAYAN!!

•

"(4) Chairmen and members of Constitutional Commissions, without prejudice to
the provisions of the Constitution; and COA, COMELEC, CSC COMMISSIONERS.. ALL
ARE IMPEACHABLE!!

•

"(5) All other national and local officials classified as Grade'27'and higher under
the Compensation and Position Classification Act of 1989. THAT IS WHY
MUNICIPAL MAYORS AND OFFICIALS ARE NOW FALLING UNDER SANDIGANBAYAN
JURISDICTION!!

Geduspan v. People, 451 SCRA 187Is the General Manager of Philhealth, who is only Grade 26, under the jurisdiction of the SDGN?
[by express provision of law (g)]
•

YES! BY EXPRESS PROVISION OF THE LAW. Presidents, directors or trustees, or
managers of government-owned or -controlled corporations, state universities or
educational institutions or foundations; SO EVEN IF YOU SG IS ONLY 26 OR
BELOW 27, YOU ARE COVERED SINCE YOU FALL TO THE LIST OF ENUMERATION!!

Alzaga v. SDGN, 505 SCRA 849 – What about Vice Presidents or Assistants Vice Presidents of
GOCCs? [higher than managers]
YES! THEY ARE HIGHER THAN MANAGERS.. HENCE WITH MORE REASON THEY SHOULD
BE UNDER SANDIGANBAYAN’S JURISDICTION!!
NOTEWORTHY ALSO IS THAT EVEN IF YOU ONLY A LOWLY GOVERNMENT EMPLOYEE OR
EVEN A CIVILIAN, IF YOU CONSPIRE WITH THESE ENUMERATED OFFICIALS IN THE
COMMISSION OF AN OFFENSE OR CRIME, YOU ALSO FALL UNDER THE JURISDICTION OF
THE SANDIGANBAYAN!!
If less than SG 27, which court has jurisdiction? Same:
a. Not more than 6 years- MTC
b. 6 years and 1 day up- RTC
SO HERE WE NOW FOLLOW THE LAW ON JURISDICTION!!
Appeals:
MTC>>>>>RTC>>>>SDGN>>>SC
NOTE THAT IT DOES NOT PASS THROUGH THE COURT OF APPEALS!!
[Apparently, THESE PROCEDURE IS applicable only where the crimes is included in the
above list.]
MEANING, IF YOU ARE SG IS BELOW 27 OR IS NOT INLCLUDED IN THE ENUMERATED
LIST IN THE PRECEDING SLIDES, YOU END UP WITH REGULAR PROCEDURE.. MTC-RTCCA-SC… WE ARE SETTLED WITH THIS NA HA!!!
C. Office of the Special Prosecutor:
RA 6770, Sec. 11:
•

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his
prosecution staff. The Office of the Special Prosecutor shall be an organic component
of the Office of the Ombudsman and shall be under the supervision and control of
the Ombudsman.

•

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
the authority of the Ombudsman, have the following powers:

•

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan;

SO THEY DO NO APPEAR IN THE RTCS HERE.. THEY ONLY APPEAR BEFORE THE
SANDIGAN BAYAN.. SO THE CASES FILED BY OMBUDSMAN BEFORE THE RTC ARE

PROSECUTED BY OMBUDSMAN PROSECUTORS OR THE DEPUTIZED DOJ PROSECUTORS
BUT NOT BY OFFICE OF THE SPECIAL PROSECUTORS IN VIEW OF THE ABOVE
PROVISIONS!!
IF WE PUT IT DIFFERENTLY, THE OFFICE OF THE SPECIAL PROSECUTORS DO NOT
APPEAR BEFORE THE LOWER COURTS BUT ONLY BEFORE THE SANDIGANBAYAN!!
[Special Prosecutor:] SHALL CONDUCT PRELIMINARY INVESTIGATION AND PROSECUTE:
-government officials with salary grade of 27 and above (BECAUSE THEY ONLY APPEAR
BEFORE THE SANDIGANBAYAN!!)
DOJ Prosecutors SHALL CONDUCT PRELIMINARY INVESTIGATION AND PROSECUTE
-ordinary citizens in regular courts
-government officials before regular courts (LESS THAN SG 27)
[OMB has also a pool of prosecutors appearing in regular courts]

Lastimosa v. Vasquez, 243 SCRA 500 (1995):
Instead of filing attempted rape against a mayor as ordered by the Ombudsman, the City
Prosecutor of Cebu filed acts of lascviousness. For contempt and inusbordination, the OMB
suspended him for 6 months. [Deputized prosecutor under the control and supervision of the OMB
under RA No. 6770.]
IF YOU ARE DEPUTIZED PROSECUTOR OF THE OMB, YOU ARE UNDER THE CONTROL AND
SUPERVISION OF THE OMB UNDER RA 6770! HENCE, YOU CAN BE DISCIPLINED BY THE
OMB..! NOTE ALSO THAT DOJ PROSECUTORS ARE UNDER THE JURISDICTION OF OMB IN
REFERENCE TO DISCIPLINARY PROCEEDINGS! GENERALLY, IF YOU ARE AN APPOINTEE
OF THE PRESIDENT AS IN THE CASE OF THE DOJ PROSECUTORS, YOU CAN ONLY BE
REMOVED BY THE PRESIDENT BECAUSE THE POWER TO APPOINT CARRIES THE POWER
TO REMOVED! BUT IN THIS PECULIAR AND BY PROVISION OF LAW, A DEPUTIZED
PROSECUTOR OF THE OMB CAN BE REMOVED BY THE LATTER!!
People v. Magallanes, 249 SCRA 215 (1995)
“in relation to office”:
1. if it cannot exist without the office, or
(THIS IS MORE DIFFICULT… BECAUSE SOMETIMES HOMICIDE CAN BE COMMITTED IN
RELATION TO YOUR OFFICE)
2. if the office is a constituent element of the crime (BRIBERY, MALVERSATION)
TAKE NOTE THAT THE CRIME COVERED MUST NOT BE ONLY THOSE ENUMERATED BUT
ALSO THOSE ALLEGED TO HAVE BEEN COMMITTED “IN RELATION TO OFFICE”
NO. 1 EXAMPLE.. THERE WAS THIS CASE INVOLVING POLICE OFFICERS WHO ARRESTED
AND INTERROGATED A SUSPECT WITHOUT COUNSEL… THE PERSON WAS SALVAGED.. IT
WAS RULED THAT THE HOMICIDE WAS COMMITTED BY POLICE IN RELATION TO THEIR
OFFICE! IT WAS HELD THAT THE HOMICIDE COULD NOT HAVE HAPPENED WITHOUT
THEIR BEING A POLICE OFFICERS!!
IT IS DIFFICULT TO SAY THAT RAPE CAN BE COMMITTED IN RELATION TO YOUR OFFICE!
Bar Question, 2011:
•

95. The Office of the Special Prosecutor may file an information against a public officer for
graft

•

A. on its own initiative subject to withdrawal of the information by the Ombudsman.

•

B. independently of the Ombudsman, except in plunder cases.

•

C. only when authorized by the Ombudsman. THE OFFICE OF THE SPECIAL
PROSECUTOR IS UNDER THE SUPERVISION AND CONTROL OF THE OMB!! SETTLED
NATA ANI!!

•

D. independently of the Ombudsman.

Bar Question, 1996 10 (b):
An administrative complaint for violation of the Anti-Graft and Corrupt Practices Act
against X was filed with the Ombudsman. Immediately after taking cognizance of the case and the
affidavits submitted to him, the OMB ordered the preventive suspension of X pending
preliminary investigation. X questioned the suspension order, contending that the OMB can only
suspend preventively subordinate employees in his own office.
Is X correct?
X’S CONTENTION IS MISPLACED.. JURISDICTION OF THE OMB RELATIVE TO
IMPOSITION OF PREVENTIVE SUSPENSION COVERS EVERYONE!!
NOTE: IN THE FACT FINDING POWER OF OMB, IT CANNOT PREVENTLY SUSPEND AN
OFFICIAL SUBJECT TO THE INVESTIGATION.
DEAN OBSERVED THAT IN MOST CASES, THE POWER TO IMPOSE PREVENTIVE
SUSPENSION OF THE OMB APPLIES ONLY TO ADMINISTRATIVE INVESTIGATIONS AND
NOT TO PRELIMINARY INVESTIGATION!! THE PURPOSE OF THE LATTER IS TO
DETERMINE PROBABLE CAUSE W/N TO CHARGE YOU IN COURT.. PREVENTIVE
SUSPENSION THERE IS NOT ALLOWED!! HENCE, SOMETHING WRONG WITH THE FACTS
OF THE INSTANT CASE!! THE IMPLICATION IS THAT ONCE YOU ARE FORMALLY CHARGED
BEFORE THE COURT, IT IS MANDATORY FOR THE COURT TO PREVENTLY SUSPEND YOU
FOR 90 DAYS… IN THE CASE AT BAR, IT WILL RESULT TO DOUBLE SUSPENSION
(PREVENTIVE SUSPENSION DURING PRELIMINARY INVESTIGATION.. I HOPE YOU CAN
CATCH UP WITH THINKING OF THE AUTHORITY!! HEHEHE… TAKE NOTE!! REVISIT THE
PREVENTIVE SUSPENSION POWER OF THE OMB
Bar Question, 2009, No. 11True or False
[d] Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely
recommendatory.
NO! IT IS REALLY MANDATORY!! THE HEAD OF OFFICE MUST FOLLOW THE
RECOMMENDATION/ORDER OF THE OMB!
OMB v. Delijero, Oct. 20, 2010
Question: Do administrative Offenses Prescribe? NO! ADMINISTRATIVE CASES DO NOT
PRESCRIBE..!!
Floria v. Sunga, 368 SCRA 555 (2001). No such provision exists in the Civil Service Law
•

Sec. 20, RA No. 6770: The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission or omission if it believes that: xxx

(5) The complaint was filed after one year from the occurrence of the act or omission
complained of.
[Jumawan case: it is ONLY permissive.]
NOTE THE WORD “MAY”… SO IT MAY CONDUCT!! IN THE END, IT IS WITHIN THE
DISCRETION OF THE OMB W/N TO CONDUCT NECESSARY INVESTIGATION EVEN IF THE
ACT OR OMISSION COMPLAINED OF OCCURRED MORE THAN 1 YEAR! MOREOVER, NO
PRESCRIPTION IN ADMIN CASES!!
Can there be pardon from conviction in an administrative case?
PD No. 807: (CIVIL SERVICE LAW)
Section 43. Removal of Administrative Penalties or Disabilities. In meritorious cases and upon

recommendation in the Commission, the President may commute or remove administrative
penalties or disabilities imposed upon officers or employees in disciplinary cases, subject
to such terms and conditions as he may impose in the interest of the service.
NOTE THE CASE WHERE THE PRESIDENT COMMUTED THE SUSPENSION OF THE
GOVERNOR FROM 90 DAYS TO 30 DAYS!! HENCE, THERE CAN BE PARDON IN ADMIN
CASES!! THIS IS IN CONSONANCE WITH THE DOCTRINE OF QUALIFIED AGENCY
BECAUSE THE SUSPENSION WAS IMPOSED BY DILG SECRETARY, AN ALTER EGO OF THE
PRESIDENT, THE FORMER’S DECISION CAN BE ALTERED OR REVERSED BY THE
PRESIDENT!!
HOW ABOUT THOSE SUSPENDED OR REMOVED BY THE CSC? CAN IT BE SUBJECT TO
PARDON? SEE NEXT SLIDE
Since the President cannot pardon a court employee administratively penalized by the Supreme
Court because of separation of powers, who can pardon him?
ONLY THE SC CAN PARDON HIM!! WHAT WILL HAPPEN HERE IS THAT IF I AM A MTC JUDGE
AND ADMINISTRATIVELY FOUND GUILTY OF SOMETHING IMPOSING THE PENALTY OF
FINE AGAINST.. PREVAILING RULING RIGHT NOW IS THAT I CANNOT BE PROMOTED TO
RTC IF I WILL NOT BE PARDONED BY THE SC!!
FROM THE PRECEDING SLIDE; subject to such terms and conditions as he may impose in
the interest of the service. –
NOTE REMEMBER THE PRINCIPLE IN CONSTI 1… THE PRESIDENT’S POWER TO GRANT
EXECUTIVE CLEMENCY IS PLENARY!! SUBJECT TO EXCEPTION:
1. NO PARDON IN IMPEACHMENT
2. NO PARDON UNLESS THERE IS FINAL JUDGMENT
3. NO PARDON TO THOSE CONVICTED FOR ELECTION OFFENSES WITHOUT
COMELEC’S FAVORABLE RECOMMENDATIONS!!
PRESCINDING FROM THE ABOVE PREMISES, THE CONGRESS IS NOW LIMITING THE
PLENARY POWER TO GRANT EXECUTIVE CLEMENCY OF THE PRESIDENT BY PROVIDING
THAT THE PRESIDENT CAN ONLY GRANT THE SAME UNLESS THERE IS FAVORABLE
RECOMMENDATION OF THE CSC (ADMIN CASES) WHICH IS CONTRADICTING TO THE
PRINCIPLE LAID DOWN IN THE CASE OF ORBOS WHERE IT WAS HELD THAT PARDONING
POWER OF THE PRESIDENT APPLIES TO ADMINISTRATIVE CASES… STRANGE.. I HOPE
YOU CAN CATCH UP AGAIN WITH THE THINKING OF THE AUTHORITY!! HEHEHE..
•

(1) Judicial Review in Administrative Proceedings
(2) Judicial Review in Penal Proceedings

Where does one appeal decisions of the Civil Service Commission?
To the CA under Rule 43 of the Rules of Court. Must be filed within 15 days through
a verified Petition for Review.
From the CA to the Supreme Court, it is through Appeal by Certiorari under Rule 45.
PNB v. Garcia, Sept. 9, 2002:
Can the government agency/official/Commission appeal to the Court of Appeals a decision in
favor of an employee administratively charged? -abandoned Mendez – “only party adversely
affected” . BOTH can appeal.
DOUBLE JEOPARDY DOES NOT APPLY HERE…. BOTH SIDES CAN APPEAL HERE!!
Where does one appeal the decision of the Ombudsman? Tirol v. Del Rosario, 317 SCRA 779
(1999) IT MUST BE DISTINGUISHED!

a. Administrative/Disciplinary Cases – RA 6770, Sec. 27 voided in Fabian –CA

TO THE

COURT OF APPEALS
IN THE CASE OF FABIAN, SEC. 27 OF 6770 PROVIDING THE APPEAL OF THE DECISION OF
THE OMB DIRECTLY TO THE SC WAS VOIDED AS IT ADDED THE APPELLATE
JURISDICTION OF THE SC WITHOUT ITS CONSENT.. PREVALING RULING RIGHT NOW IS
THAT ALL DECISION OF THE OMB IN ADMIN/DISCIPLINARY CASES SHALL BE APPEALED
TO THE COURT OF THE APPEALS!!
a. Criminal/Preliminary Investigation – law is silent- Certiorari [grave abuse] Rule 65
YOU CAN RAISE IT BEFORE THE SC UNDER RULES 65 ON THE GROUND OF GRAVE ABUSE
OF DISCRETION!! HENCE, VERY DIFFICULT TO OBTAIN REVERSAL!!
d.

Recovery of Ill-gotten Wealth:
1. by Marcos and his cronies

2. by others/not be reason of closeness with him (EX. CORONA… YOU ARE NOT RELATED TO
MARCOS.. YOU FALL HERE)
Outline:
1. procedure for recovery
2. prescription

Ill-gotten Wealth –RA No. 1379, Sec. 2:
An amount of property which is manifestly out of proportion to his salary as such
public officer and to his other lawful income.
A. Procedure
1. Marcos Wealth (UNDER EO NO. 1 by Marcos and his cronies)
a. EO No. 1 created the PCGG and authorized it to sequester and provisionally take over all
properties and business belonging to Marcos, his family, relatives, close associates and
subordinates here and abroad.
YOU FILE A CASE WITH THE SANDIGANBAYAN!!
•

EO No. 2. President Aquino (AUTHORIZES TO) freeze all their assets to prevent transfer
and conveyance.

•

EO No. 14/14A. Authorized the PCGG to file civil and criminal cases and the Sandiganbayan
to assume jurisdiction

***SANDIGANBAYAN NOW HAS JURISDICITON OVER
CIVIL CASES INVOLVING ILLGOTTEN WEALTH OF
MARCOS!!

= PCGG
-not a constitutional body but allowed by the Constitution to exist
-under the transitory provision, it was allowed to sequester for an additional 18 months, unless
Congress, upon recommendation of the President, authorizes it (SO IT CONTINUES TO EXIST
BUT NOT MORE SEQUESTRATION POWERS)
-allowed to continue old cases and pursue ill-gotten wealth
[Cojuangco v. Roxas, 195 SCRA 799 (1991)]

-it can sequester, take-over and issue freeze orders
-it can only exercise acts of administration, not ownership
-it cannot vote sequestered shares in order to change company policy or replace management
officials- BECAUSE IT CONSTITUTES ACTS OF OWNERSHIP!!
-the powers are mere provisional remedies intended to “prevent the disposal and dissipation of
assets
-it must institute judicial proceedings within 6 months (FROM THE TIME OF SEQUESTRATION)
-it can compromise civil cases
-it can grant immunity from prosecution to witnesses, not principal accused
2.

Ill-Gotten Wealth of others
RA 1379

(WE FOLLOW)

–Law on Forfeiture of Ill-gotten Wealth=

-does not punish possession or acquisition of ill-gotten wealth BUT only (AUTHORIZES)
forfeiture

-RA 3019 provides for the administrative aspect of removal or suspension, not
confiscation
IF YOU HAVE ILL GOTTEN WEALTH, YOU CAN BE PUNISHED UNDER THE ANTI GRAFT
LAW DEPENDING ON HOW YOU ACQUIRE IT!! BUT THERE IS NO PROCEDURE UNDER RA
3019 AS TO THE MANNER OF RECOVERY.. HENCE, YOU HAVE TO GO BACK TO RA 1379
-proceedings is before the RTC where respondent resides. (NOT SANDIGANBAYAN AS
DISTINGUISHED TO THAT ILLGOTTEN WEALTH OF MARCOS)
-reversed presumption applies/prima facie
Some Decisions:
1. Cabal v. Kapunan – right against self-incrimination (IN PROCEEDINGS FOR
ILLGOTTEN WEALTH) is a prohibition of inquiry-SAME IN CRIMINAL CASES
2. Katigbak v. Solicitor General – prohibition on ex post facto applies- GIVING RETROACTIVE
EFFECT TO FORFEITURE OF ILL GOTTEN WEALTHE WILL BE EX POST FACTO LAW !!
•

2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth

1. Does the right of the state to recover ill-gotten wealth prescribe? NO!
2. Does the right of the state to prosecute crimes involving ill-gotten wealth prescribe?
3. How is prescription computed?
First Question:

1987 Constitution, Art. XI, Sec. 15: “The right of the state to recover properties
unlawfully acquired by public officials or employees shall not be barred by prescription.”
RA 1379, June 24, 1955
Section 11. Laws on prescription. The laws concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit the respondent, in respect of any property
unlawfully acquired by him.
IN OTHER WORDS, THERE IS ALREADY A LAW PROVIDING THE IMPRESCRIBTIBILITY ON
THE RECOVERY OF ILLGOTTEN WEATLH.. BUT THE FRAMERS OF THE CONSTITUION HAD

IT INCLUDED IN THE CONSTITUTION BECAUSE THEY HAD THE APPREHENSION THAT
MARCOS OR RELATIVES OR FRIENDS OF MARCOS MIGHT COME BACK TO POWER AND
EASILY REPEAL THIS LAW… HENCE, IT BECAME A PROVISION OF THE CONSTITUTION!!
Question 2:
PAHFFC v. Desierto , 317 SCRA 272 (1999) – The above provision does not apply to crimes. THE
PROVISION OF THE CONSTITUTION DOES NOT APPLY TO CRIMES.. MEANING CRIMES
RELATING TO ILL GOTTEN WEALTH WILL PRESCRIBE… IN SUMMARY,

***RECOVERY OF ILL GOTTEN WEALTH DOES NOT
PRESCRIBE AS PROVIDED IN THE CONSTITUTION
WHILE CRIMES COMMITTED IN RELATION THERETO
WILL PRESCRIBE!!
SO IT WILL PRESCRIBED IN 15 YEARS PURSUANT TO
RA 3019
RA No. 3019: Section 11. Prescription of offenses. All offenses punishable under this Act
shall prescribe in fifteen (15) years.
NOTE:
THAT THE 15 YEAR PRESCRIPTIVE PERIOD CANNOT BE APPLIED RETROACTIVELY
BECAUSE IT WILL VIOLATE THE PRINCIPLE OF EX POST FACTO LAW..
BECAUSE IT WILL MAKE THE PRESCRIIPTIOIN LONGER!!
SO WHEN YOU COMMITTED A CRIME WHERE THE APPLICABLE PRESCTIPTIVE PERIOD IS
ONLY 10 YEARS, IT CANNOT BE FILED AFTER THE PERIOD OF 10 YEARS!! YOU CANNOT
APPLY THE 15 YEAR PRESCRIPTIVE PERIOD

How is prescription computed?
•

"SECTION 2.

in Act No. 3326, Section 2:

Prescription shall begin to run

1. from the day of the commission of the violation of the law ,
2.

and if the same be not known at the time,

from the discovery thereof

and the institution of judicial proceedings for its investigation and punishment.

•

NOTE:

THAT THERE HAS BEEN MODIFICATION ON THIS..

CRIME IS BASED ON PUBLIC DOCUMENTS (FALSIFICATION OF PUBLIC
DOCUMENTS) WHERE THERE IS A CONSTRUCTIVE NOTICE,
IF THE

WE

=DO NOT COMPUTE FROM THE TIME OF DISCOVERY!!

COMPUTE IT FROM THE TIME IT WAS COMMITTED!! CONSTRUCTIVE
KNOWLEDGE APPLIES!!
WE

•

HOWEVER, IN BIGAMY CASES WE COMPUTE THE PRESCRIPTION FROM THE TIME
OF DISCOVERY AND NOT THE FROM THE TIME THE SECOND MARRIAGE WAS
ACTUALLY REGISTERED AS THE GENERAL RULE!!

Republic v. Desierto, 363 SCRA 585 (2001)
The contract was entered in Nov. 20, 1974. For being manifestly disadvantageous to the
government, the criminal case was filed on Feb. 12, 1990.

From when should

prescription be counted?
Held: it is well-nigh impossible for the government, the aggrieved party, to have known the
violations committed at the time of the questioned transaction were made because both parties
to the transaction were allegedly in conspiracy to commit fraud against the government .
The alleged anomalous transactions could only have been discovered after the February 1986
Revolution when one of the original respondents, President Marcos, was ousted from office. Prior
to said date, no person would have dared to question the legality or propriety of those transactions.

the counting of the prescriptive period would
commence from the date of discovery of the offense,
Hence,

which would have been between February 1986 after the EDSA Revolution and 26 May 1987 when
the initiatory complaint was filed.
NOTE THAT HERE IT WAS NOT THE ACTUAL DISCOVERY THAT WAS BEING APPLIED BUT THE

PRESUMPTIVE DISCOVERY!!.. HENCE, THE CASE WAS FILED MORE THAN 15 YEARS FROM
THE COMMISSION OF THE CRIME!!

Other laws on ill-gotten wealth:
1. RA No. 7080/7659 –

Law on Plunder-

Committed by any public officer who amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section in the pesos
(P75,000,000.00), aggregate amount or total value of at least Seventy-five million
–

***IF MORE THAN 75 MILLION IT IS PLUNDER ALREADY,

UNDER THE SANDIGANBAYAN!! NO DISTINCTION WHETHER OR NOT YOU
ARE AN ORDINARY EMPLOYEE OR OFFICIAL YOU FALL TO THE
JURISDICTION OF SANDIGANBAYAN.. REGARDLESS OF THE POSITION OR
RANK!!
2. RA No. 9160/10167 –

Money laundering is a crime whereby the proceeds of an unlawful activity are
transacted, thereby making them appear to have originated from legitimate sources.

ELECTION LAWS
K. Election Laws [2012 Bar Exam Syullabus]

2.
3.
4.
5.

1. Suffrage
Qualification and Disqualification of Voters
Registration of Voters
Inclusion and Exclusion Proceedings
Political Parties
•

6. Candidacy
a. Qualifications of Candidates
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates

(4) Petition to Deny or Cancel Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates
7. Campaign
a. Premature Campaigning
b. Prohibited Contributions
8. Board of Canvassers
9. Remedies and Jurisdiction in Election Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto
10. Prosecution of Election Offenses
Note:
1. None on the COMELEC
2. None on Appreciation of Ballots- THIS MAY NO LONGER BE APPLICABLE IN VIEW OF
ELECTION AUTOMATION… IT IS IS THE PICOS MACHINE THAT DETERMINES WHETHER
TO APPRECIATE IT OR NOT!!:
1994: No. 3: What is idem sonans? What is a stray ballot? “IDEM SONANS”- MEANS”SOUNDS
LIKE”… it has reference to APPRECIATION OF VOTES.. As when I ran as “dela banda”…
the vote”banda” be appreciated for me?
There is no such thing as STRAY BALLOT- it should be construed to mean as STRAY
VOTE.. PREVAILING RULING IS THAT 80% OF THE BALLOT BE SHADED OTHERWISE IT
CANNOT BE APPRECIATED…
Basic Concepts:
Election is the means by which the people choose their officials for a definite and
fixed periods and to whom they entrust as their representatives the exercise of the
powers of government [Garchitorina v. Crescini, 39 Phil. 528]
•

Campaign, casting, counting and canvassing of votes.

•

Essential to a democratic and republican system

Kinds of Election:
1. Regular/General – provided by the Constitution or by law for the election of public officials
throughout the country, after expiration of the full term of public officials [2nd Monday of May]
2. Special – one provided by law under special circumstances, such as:
a) when there was postponement of election
b) when there was failure of election
c) in case of permanent vacancy upon expiration of term. (THIS APPLIES ONLY TO
NATIONAL ELECTIONS NEVER TO LOCAL ELECTIONS … WHERE THERE IS PERMANENT
VACANCY IN THE OFFICE OF THE PRESIDENT AND VICE PRESIDENT IN CASE OF DEATH,
INCAPACITY OR DISQUALIFICATION SIMULTANEOUSLY..
d) when some question or proposition is submitted to a vote (this has more reference
with REFERENDUM!)
Election Period: - (REGULAR ELECTION) 90 days before and 30 days after, except in special

cases which may be fixed by the Commission. [Sec. 9, C, Art. IX
Campaign period? [RA No. 7166]
a. national positions – 90 days
b. local – 45 days before
b. barangay – 15 days
[Exclude- election day, day before, Holy Thursday and Good Friday]-EXCLUDED FROM THE 90 DAY
CAMPAIGN PERIOD!! BUT DEFINITELY THAT STILL PART OF THE ELECTION PERIOD!!
THE SAME PRINCIPLE APPLIES AS GUN BAN DOES NOT APPLY TO CAMPAIGN PERIOD AND MOST
OF ELECTION OFFENSES ALSO… THEY APPLY DURING ELECTION PERIOD.. SEEMS STRANGE AND
ABSURD BECAUSE YOU CANNOT SAY THAT I CAN CARRY GUN DURING GOOD FRIDAY BECAUSE IT
IS NOT COVERED BY THE CAMPAIGN PERIOD… NOTE THIS OBSERVATION!!
DO NOT BE CONFUSED WITH ELECTION PERIOD WITH CAMPAIGN PERIOD.. NOTE THE
DISTINCTIONS!!
•

ELECTION PERIOD WILL LAST 30 DAYS AFTER THE ELECTION! BUT NOT TO
CAMPAIGN PERIOD SINCE THERE IS NO CAMPAIGN THERE ALREADY AS
DETERMINATION OF W/N YOU WON THE ELECTION IS ALREADY DETERMINED ON
THE ELECTION DAY!!

Campaign period? [RA No. 7166]
a. national positions – 90 days
b. local – 45 days before
b. barangay – 15 days
•

NOTE:

Other forms of popular participation (SOMETIMES WE CALL THIS ELECTION FOR THE REASON
THAT WE ALSO CAST OUR VOTE IN THIS EVENT!!):
1. Plebiscite
2. Referendum-IT HAS BEEN HELD THAT GENERALLY IT IS CONSULTATIVE IN
CHARACTER.. NOT BINDING
3. Initiative
4. Recall
THESE ARE DIRECTS ACTS OF PARTICIPATION!! THESE ARE EXERCISE OF POLITICAL
RIGHTS-PEOPLES DIRECT PARTICIPATION IN THE AFFAIRS OF THE GOVERNMENT!!
Sanidad v. COMELEC, 73 SCRA 333 (1976)
[Consultative in character] REFERENDUM
Election laws are liberally construed to the end that the will of the people in the choice of public
officers may not be defeated by mere technical objections. (THIS IS THE PRINCIPLE TO BE
APPLIED IN THE INTERPRETATION OF ALL ELECTION LAWS…THIS IS THE CONSTRUCTION OR
BIAS)
IT IS APPLIED IN THE FOLLOWING:
-ballot appreciation- TO ENSURE THAT THE BALLOT IS COUNTED!!
-time to file brief- EVEN IF IT IS DELAYED, THE COURT WILL ACCOMMODATE YOU
-docket fee-LATE PAYMENT OR INSUFFICIENT DOCKET FEE- THE COURT RELAX ITS

RULES IN VIEW OF THE ABOVE DOCTRINE
Commission on Elections:
A. Composition/Qualification
1. natural-born
2. 35 years old
3. college degree but majority and the Chairman must be lawyers with 10-year
practice.. (DISTINGUISH THIS WITH THE REQUIREMENT IN THE CSC WHERE PROVEN
PROBITY IS ONLY REQUIRED) (NEED NOT ALL BE LAWYERS BUT MAJORITY MUST BE
LAWYERS!!)
4. not a candidate during the last preceding election
[guarantee independence] THE COMELEC IS GUARANTEED WITH INDEPENDENCE AS
THAT OF THE JUDICIARY.. IT GUARANTEED WITH
1. FISCAL AUTONOMY,
2. SECURITY OF TENURE
3. POWER TO PROMULGATE ITS OWN RULES AND
4. PROHIBITION ON TEMPORARY APPOINTMENT OR DESIGNATION!!
B. Powers and Functions
1. Executive/Administrative
2. Quasi-judicial
3. Quasi-legislative
4. Recommendatory
1. Executive/Administrative
a. administer election laws - including annulment of election, a annulment of
proclamation, scheduling of special election,
b. prosecute violation of election laws
c. deputize law enforcement agencies
d. register of political parties
e. investigate officials performing election duties and recommend their removal to the
President
f. file case for inclusion and exclusion of voters (ORDINARY CANDIDATES CAN ALSO
FILE THIS)
g. regulate all franchise or permits of transportation, public utilities and media of
communication
h. supervise and control Board of Canvassers (THE ONE WHO ACTUALLY CONDUCTS
THE CANVASSING OF VOTES!!)
1. Quasi-judicial:
a. Decide all election contests:
i. Original jurisdiction- contests involving provincial, regional, city officials BUT[not
national]- BECAUSE IT BELONGS TO HRET, SET, OR PET AS THE CASE MAY BE!!!
ii. Appellate jurisdiction – contests involving barangay (MTC) and municipal officials
(RTC)

(THIS IS THE ONE THAT ORIGINATES IN COURTS!! THIS IS THE ONLY INSTANCE WHERE
THE CASE IS ORIGINALLY FILED IN COURTS BUT APPEALED IN QUASI-JUDICIAL BODY
OR COMELEC!!) AS DISTINGUISHED TO THE NORMAL PROCESS WHERE YOU START IN
COURT AND YOU END UP IN COURT!!!
b. Pre-proclamation qualifications of all candidates [Poe v. COMELEC] (APPLIES FROM
BARANGAY TO THE PRESIDENT) QUALIFICTIONS OF FPJ UPON FILING!! YOU HAVE TO
CHALLENGE IT BEFORE THE COMELEC.. IT HAS THE POWER TO REVIEW THE
QUALIFICATIONS OF ALL CANDIDATES.. SC OR PET CANNOT EVEN DO THAT EXCEPT
AFTER PROCLAMATION!!
c. Decide all questions, except the right to vote, affecting elections [Composition of BOC]
WE WILL LEARN LATER THAT ISSUES ON THE RIGHT TO VOTE SHALL BE DETERMINED
AND DECIDED BEFORE THE MTC!! IT IS WELL PROVIDED IN THE CONSTITUITON TO
ENSURE THAT COMELEC WILL NOT ASSUME JURISDICTION OVER THE SAME ISSUE!!!
d. Issue extraordinary writs [certiorari, prohibition, mandamus] but only in aid of its appellate
jurisdiction
e. punish for contempt
Exercise of Quasi-Judicial Power:

Art. IX, C. Sec. 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.
NOTE THAT THERE ARE ONLY 2 COMELEC DIVISION COMPRISING 3 MEMBERS EACH!!

DISTINGUISH THE SAME WITH THE SUPREME COURT ALSO IN THE FOLLOWING!!
•

SC HAS 3 DIVISION AND THE DECISION OF SUCH DIVISION CANNOT BE
REVIEWED BY SC EN BANC AS COMPARED TO THAT COMELEC…

•

COMELEC EN BANC HAS APPELLATE JURISDICITON OVER DECISIONS OF THE
COMELEC DIVISION.. SC EN BANC MAY ONLY TAKE COGNIZANCE OVER DECISIONS
OF THE SC DIVISION ONLY WHEN THE REQUIRED MAJORITY OF THE LATTER IS
NOT OBTAINED!!

•

Cayetano v. COMELEC, 648 SCRA 561 (2011)

•

A motion to reconsider a decision, resolution order or ruling of a division shall be
resolved by the Commission en banc, except interlocutory orders of a division, which
shall be resolved by the same division which rendered it.

•

IF THE DIVISION RENDERS DECISION BASED ON MERITS WHERE THE SAME IS
LEFT WITH NOTHING MORE TO DO- NOT INTERLUCTORY- HENCE FINAL!!

•

IF THE DECISION IS ONLY INCIDENTAL LIKE RULING ON THE ADMISSIBILITY OR
COUNTING OF BALLOTS, THAT IS INTERLUCTORY!!- THIS ONE CANNOT BE
SUBJECT TO MOTION FOR RECONSIDERATION BEFORE THE EN BANC COMELEC!!

•

Eriguel v. COMELEC, Feb. 26, 2010

•

Since one member of the division inhibited himself, the Division issued an order
elevating the case to the Commission en banc. Is it valid?

•

The COMELEC is mandated by the Constitution to decide the case first in division, and
en banc only upon motion for reconsideration. [COMELEC division exercises original
jurisdiction, not the COMELEC en banc.

•

OBSERVATION: SINCE THERE ARE ONLY 2 REMAINING MEMBERS OF THE
DIVISION IN VIEW OF THE INHIBITION OF 1 MEMBER, APPARENTLY THERE IS
STILL A QUORUM.. NOTE THAT ONLY SIMPLE MAJORITY IS REQUIRED FOR A
DIVISION TO COME UP WITH A DECISION… THIS SHOULD HAVE BEEN DONE!! THE
POINT SIMPLY IS YOU CANNOT REFER IT TO COMELEC IN BANK!! COMELEC
DIVISION EXERCISES ORIGINAL JURISDICTION AND NOT COMELEC EN BANC!!
HENCE, THE DIVISION CANNOT REFER THE CASE TO THE EN BANC IN THE
ABSENCE OF THE DECISION OF THE COMELEC DIVISION!!

1. Quasi-legislative – rule making authority
i. to implement laws passed by Congress [gun-ban, prohibited election propaganda]
ii. rules on pleading, practice and procedure before it
4. Recommendatory
a. recommend to the President who will be granted parol, pardon, amnesty or suspension of
sentence (THIS IS ONLY RECOMENDATORY BECAUSE THE PRESIDENT MAY NOT CONSIDER
OR ADOPT THE SAME.. THE PRESIDENT IS NOT BOUND TO EXTEND PARDON BY ITS
RECOMMENDATION!!)…HOWEVER SUCH RECOMMENDATION OF THE COMELEC IS
ESSENTIAL IN THE SENSE THAT THE PRESIDENT CANNOT GRANT EXECUTIVE CLEMENCY
FOR THOSE CONVICTED OF ELECTION OFFENSES WITHOUT THE RECOMMENDATION OF
THE COMELEC!!
b. removal or suspension to the President of employee it has deputized
Brillantes v. Yorac, 192 SCRA 358:
Can the President designate who shall act as Acting-Chairman from among the incumbent
commissioners? THIS HAPPEN DURING THE TIME OF FVR… THE COMELEC CHAIRMAN THEN
RETIRED BEFORE THE FORTHCOMING ELECTION… A NEW CHAIRMAN WAS MUST… FVR
APPOINTED FVR AS ACTING CHAIRMAN… HELD: NO! THE PRESIDENT CANNOT DO
THAT… THAT MUST BE DECIDED BY THE COMELEC INTERNALLY… THEY MUST ELECT THE
CHAIRMAN AMONG THEMSELVES!!! HE HAS NO BUSINESS DESIGNATING ACTING
CHAIRMAN… OTHERWISE THE PRINCIPLE OF INDEPENDENCE WILL BE VIOLATED!!
Zaldivar v. Estenzo,
Can the RTC issue an injunction against mayors from appointing as special policemen certain
persons believed to be used to terrorize voters? [enforcement of election laws]
HELD: NO!! IT CANNOT BE DONE!! IT IS PART OF THE COMELEC’S POWER TO
ADMINISTER LAWS: ENFORCMENT OF ELECTION LAWS!! COURT HAS NO BUSINESS OF
INTERFERING SUCH POWER THROUGH WRITS!!! IF YOU WANT INJUCTION, YOU GO
BEFORE THE COMELEC!!!
Gallardo v. Tabamo, 218 SCRA 255
Can the RTC issue an injunction to restrain some public officials from pursuing public works 45
days before election?
THIS HAPPENED IN CAMIGUIEN.. USUALLY LGUS ARE PROHIBITED FROM PURSUING
PUBLIC WORKS WITHIN 45 DAYS BEFORE ELECTION UNLESS IT WAS STARTED BEFORE
THE EFFECTIVITY OF THE PROHIBITION… HELD:*** NO!! RTC HAS NO BUSINESS OF
INTERFERING THE POWER OF THE COMELEC TO ADMINISTER AND EFORCE ELECTION
LAWS!!!
Tan v. COMELEC, 237 SCRA 353 (1994)

Can the COMELEC investigate a city prosecutor [a presidential appointee] who served as ViceChair of the BOC for alleged misconduct while serving as such?
USUALLY CITY FISCALS ARE ENJOINED TO SERVE AS VICE CHAIR OF BOC AS DELEGATED
BY THE COMELEC! TAN HERE WAS ACCUSED OF COMMITTING SOME ANOMALIES AND THE
COMELEC CONSEQUENTLY CONDUCTED INVESTIGAITON IN RELATION TO THAT!! HELD:

***YES THE COMELEC CAN INVESTIGATE!! COMELEC HAS THE POWER TO
RECOMMEND THE removal or suspension to the President of employee it
has deputized.. YOU CANNOT RECOMMEND SUCH WITHOUT CONDUCTING
INVESTIGATION!! THIS IS THE SAME TO THE POWER OF THE OMB TO
CONDUCT INVESTIGATION OVER PROSECUTORS DELEGATED AND
DEPUTIZED BY IT EVEN IF SUCH PROSECUTORS ARE PRESIDENTIAL
APPOINTEES
Bar Question, 1989 No. 16:
A COMELEC resolution provides that political parties supporting a common set of candidates
shall be allowed to purchase jointly air time and the aggregate amount of advertising space
purchased for campaign purposes shall not exceed that allotted to other political parties or groups
that nominated only one set of candidates, the resolution is challenged as a violation of the
freedom of speech and the press, is the resolution constitutionally defensible? Explain.
Bar Question, 2011:
•

41. The Commission on Elections is an independent body tasked to enforce all laws relative
to the conduct of elections. Hence, it may

A. conduct two kinds of electoral count: a slow but official count; and a quick but unofficial
count.
B. make an advance and unofficial canvass of election returns through electronic transmission.
C. undertake a separate and unofficial tabulation of the results of the election manually.
D. authorize the citizens arm to use election returns for unofficial count.
REMEMBER THE CASE OF BRILLANTES WHERE THE COMELEC INTENDED TO CONDUCT
UNOFFICIAL COUNT FOR PRESIDENTIAL VOTES!! SC PROHIBITED THE SAME ON THE
GROUND
1. IT CANNOT DISBURSE MONEY WITHOUT APPROPRIATE APPROPRIATION!!
2. 2. CANVASSING OF VOTES FOR PRESIDENT AND VP IS WITHIN THE EXCLUSIVE
DOMAIN OF THE CONGRESS IN JOINT SESSION!!
•

Bar Question, 2011:

•

14.

The Comelec en banc cannot hear and decide a case at first instance
EXCEPT when

A. a Division refers the case to it for direct action.

the case involves a purely administrative matter. THIS CAN BE DONE
BY COMELEC EN BANC… PROHIBITION APPLIES ONLY IN THE COMELEC’S
EXERCISE OF ITS QUASI-JUDICIAL FUNCTIONS!!
B.

C. the inhibition of all the members of a Division is sought.
TAKE NOTE THAT INHIBITION IS ADDRESSED TO THE PERSON WHO IS SOUGHT TO BE
INHIBITED!! THE COMELEC EN BANC CANNOT DECIDE A CASE FOR THEM!!! IN CASE ALL
MEMBERS OF A DIVISION INHIBIT, ASSIGN THE CASE TO ANOTHER DIVISION!!
D. a related case is pending before the Supreme Court en banc.
•

Bar Question, 2011:

•

60.

The COMELEC en banc shall decide a motion for reconsideration of

A. the House or Representatives and the Senate electoral tribunals.
B. the decision of the election registrar.
C.

the decision of the COMELEC division involving an election protest.

D. its own decision involving an election protest.
Bar Question, 1998, No. 9:

Q: Suppose a Commissioner of the COMELEC is charged before the
Sandiganbayan for allegedly tolerating violation of the election laws against the
proliferation of prohibited billboards and election propaganda with the end in view
of removing him from office. Will the action prosper?
NO! COMELEC COMMISSIONER IS AN IMPEACHABLE OFFICIAL… HE
CANNOT BE REMOVED BY ANY OTHER MEANS EXCEPT BY IMPEACHMENT!!

1. Suffrage: right to vote
It is one of the political rights of a citizen in a democratic society. It allows participation in the
affairs of government.
-under the 1973 Constitution, it was a right as well as a duty- THE IMPLICATION IS THAT
CONGRESS CAN PASS A LAW PUNISHING PEOPLE FOR FAILURE OR REFUSING TO VOTE
DURING ELECTIONS BACK THEN UNDER 1973!! BUT NOW UNDER THE NEW
CONSTITUTION, THE CONGRESS CANNOT DO THAT AGAIN AS***

SUFFRAGE HERE

IS ONLY A RIGHT!!!

EMPHASIS SHOULD BE PLACED THAT SUFFRAGE ***DOES NOT INCLUDE THE RIGHT TO
BE VOTED FOR…. THERE IS NO RIGHT TO BE VOTED FOR AS IT IS ONLY A PRIVILEGE!!
AS DISTINGUISHED FROM THE RIGHT TO VOTE!!
2. Qualification and Disqualification of Voters
I.

Qualifications of a Local Voter
Art. IV, Sec. 1:
Suffrage may be exercised by:
all citizens of the Philippines
not otherwise disqualified by law,
who are at least 18 years of age and
who shall have resided in the Philippines for at least one year and

in the place wherein they propose to vote for at least 6 months immediately preceding the
election.
No literacy, property or other substantive requirement shall be imposed on the exercise of
suffrage.
1. Citizens of the Philippines
•

2. At least 18 years (on election day)

•

3. Not otherwise disqualified by law

•

•

4. Resident of the Philippines for at least one year
TRANSCRIPTIONS!!!!!!!!

READ CONSTI ONE

5. Resident of the place where they propose to vote for at least 6 months

READ CONSTI ONE TRANSCRIPTIONS!!!!!!!!
B.

Qualifications of an Absentee Voter

RA No. 9189:
An immigrant or a permanent resident
who is recognized as such in the host country,
unless he executes …an affidavit…

declaring that he shall ***resume actual physical residence in the Philippines not later
than 3 years from approval of his registration….

•

1. Filipino citizen

•

2. 18 years old

•

3. Not otherwise disqualified by law

•

[4. Executes an affidavit to return within 3 years from the approval
of his registration]

In all cases,

REGISTRATION is an essential procedural requirement.

NOTE THAT THE CONSTITUTION DOES NOT PROVIDE THAT YOU MUST BE A REGISTERED
VOTER BEFORE ONE CAN EXERCISE THE RIGHT TO VOTE!! BUT THAT CAN BE SUSTAINED
THAT IT IS A PROCEDURAL REQUIRMENT NOT A SUBSTANTIVE ONE!!! THE
CONSTITUTION DOES NOT ALLOW THE ADDING OF SUBSTANTIAL REQUIREMENT!!
B.

Who are Disqualified?
1. Any person sentenced by final judgment to a penalty of not less than one year, but
he automatically regains the right 5 years after service of sentence
2. Any person adjudged by final judgment for any crime involving disloyalty such as
rebellion, sedition, firearm laws and crimes against national security, but
automatically regains the right 5 years after service of sentence (NOTE THERE IS NO
PROVISION THAT HE BE CONVICTED TO A CRIME INVOLVING MORAL TORPITUDE WHICH
IS A REQUIREMENT FOR ONE TO RUN PUBLIC OFFICE!! HERE THERE IS NO SUCH
DISQUALIFICATION IN TERMS TO THE RIGHT TO VOTE)
3. Insane and incompetent person as declared by competent authority

Being a REGISTERED VOTER is a requirement in all
elective positions that one is a registered voter. Thus,
***lack of qualification to vote also makes one
unqualified for an elective position.

-Q: is actual voting necessary

(BEFORE YOU CAN BE

NO! THERE IS
NO SUCH REQUIREMENT… THE LAW ONLY PROVIDES
ELIGIBLE TO RUN FOR A LOCAL OR NATIONAL POSITION)?***

THAT YOU MUST BE A REGISTERED VOTER!!

-Q: what about appointive position?*** NO!
THERE IS NO LAW REQUIRING THAT ONE MUST BE A REGISTERED VOTER BEFORE HE
CAN BE APPOINTED TO ANY PUBLIC OFFICE!!!

IT APPLIES ONLY

ELECTIVE POSITION!!
***ONLY REGISTRATION IS REQUIRED AND NOT
ACTUAL VOTING!

3.

Registration of Voter
The act of listing the names of qualified voters.

Purpose – to determine who are qualified to vote. [avoids fraud]
THE PURPOSE OF WHICH IS TO AVOID FRAUD DEFINITELY!!

ELECTION REGISTRATION BOARD
(COMPOSED OF)
With what body?

a. Election Officer
b. Most senior public school official
c. Local Civil Registrar
NOTE ALSO THAT THE COMPOSITION OF ELECTION REGISTRATION BOARD IS TOTALLY
DIFFERENT TO THE COMPOSITION OF BOARD OF CANVASSERS!!

3 Prohibitions on Registration:
1. within

120 days before the next regular election and

90 days before a special election
2. registering anew without filing an application for cancellation of his previous
registration
3. Inclusion and Exclusion Proceedings

Jurisdiction:

MTC, of the city or municipality.

Appeals are filed within 5 days with the RTC whose decisions are final and
executory. ****“No motion for reconsideration shall be entertained by the courts.”

***Procedure is summary, res judicata does not
apply.

Additional Remedy: (OF ANNULING THE LIST OF
VOTERS ASIDE FROM THE INCLUSION OR EXCLUSION PROCEEDINGS!!)
Under RA 7166, a book of voters, which preparation has been affected by fraud,
bribery,forgery, impersonation, force and other similar irregularity, or which is
statistically improbable may be annulled by the COMELEC, after notice and hearing.
[Ututalum v. COMELEC, 181 SCRA 355]
Ozamis v. Zosa, 34 SCRA 424

Q: Can the MTC inquire into the citizenship of a voter in an exclusion case?
A: DEFINITELY YES! ONE QUALIFICATION IS YOU MUST BE A FILIPINO
CITIZEN!!!
Q:Is the decision conclusive as to his status?
=NO! IT IS NOT CONCLUSIVE AS TO HIS STATUS BECAUSE SUCH

PROCEEDING

IS SUMMARY IN NATURE!!
*** MEANING IF LATER I FOUND OUT THAT YOU ARE NOT REALLY A FILIPINO CITIZEN,
I AM NOT BARRED FROM FILING A CASE CHALLENGING YOUR CITIZENSHIP!!

Q:Is the decision conclusive as to his status in a future election?
NO! IT IS NOT CONCLUSIVE ..
IT IS CONCLUSIVE ONLY IN SOFAR AS THAT ELECTION IS CONCERNED ONLY!!
THIS IS BECAUSE YOU MAY FIND OTHER EVIDENCE IN THE FUTURE THAT HE IS REALLY
NOT A FILIPINO CITIZEN!!
IT IS CONCLUSIVE ONLY IN SOR FAR AS HE IS INCLUDED TO THE LIST OF QUALIFIED
VOTERS IN THAT PARTICULAR ELECTION… IT MAY BE IMPUGNED IN THE FUTURE!!

•
•

Domino v. COMELEC, 310 SCRA 546 (1999)
Domino ran and won as Representative of the Lone Legislative District of the Province

*** He was not proclaimed because
earlier his opponent filed a Petition to Cancel Certificate of Candidacy before
the COMELEC on the ground that Domino was not a resident of the District .
of Saranggani in the May 11, 1998 elections.

On Jan. 18, 1998, however, the Metropolitan Trial Court in Quezon City decided in an
exclusion proceedings that Domino was a resident of Sarangani and ordered the
transfer of his registration to Alabel, Saranggani.

Q: Is the decision of the court on the residency of
petitioner conclusive on the COMELEC?
A: NO! THE DECISION OF THE COMELEC AS TO HIS
RESIDENCY IS NOT CONCLUSIVE!!
I CAN STILL FILE AGAINST HIM BEFORE THE
COMELEC TO DETERMINE IF HE IS REALLY A BONA

FIDE RESIDENT OF THE PLACE OR NOT
CONSIDERING THE PROCEEDINGS BEFORE THE
COURT IS ONLY A SUMMARY IN NATURE!!
•

•

•

MOREOVER, SOMETHING IS WRONG WITH THE
DECISION OF THE COURT WHEN IT ORDERED THE
TRANSFER OF HIS REGISTRATION TO ALABEL
SARANGANI.. SETTLED IS THE RULE THAT
*** IN INCLUSION AND EXCLUSION
PROCEEDINGS, THE MTC’S AUTHORITY IS
CONFINED ONLY IN THE DETERMINATION AS TO
W/N A VOTER SHOULD BE INCLUDED OR
EXCLUDED FROM THE LIST OF QUALIFIED
VOTERS…
IT IS BEREFT OF AUTHORITY TO ORDER THE
TRANSFER HIS REGISTRATION TO ANOTHER
PLACE!! AUTHORITY IS CONFINED ONLY AS TO
WHETHER OR NOT YOU ARE PART OF THE LIST!!!

Bar Question, 2011:

Q: The decision of the Regional Trial Court on appeals
pertaining to inclusions or exclusions from the list of voters
22.

A. is inappealable. IT IS FINAL ALREADY…
WHILE THE LAW PROVIDES THAT IT IS FINAL AND
CANNOT BE APPEALED UPON,
IT MAY BE SUBJECT TO CERTIORARI BASED ON
GRAVE ABUSE OF DISCRETION!!
BUT IT IS NO LONGER AN APPEAL ,
AS CERTIORARI IS NOT A MODE OF APPEAL BUT
AN ORIGINAL ACTION!!!
B. is subject to an action for annulment.
C. may be brought straight to the Supreme Court.
D. is appealable to the Commission on Elections.
•

5.

Political Parties [Except Party-List]

An organized group of persons pursuing the same ideology, political ideas or
platforms of government, and includes its branches and divisions.
-How

to acquire legal personality? Sec. 60, OEC-

REGISTER IT WITH THE COMELEC!!! IN ORDER TO PARTICIPATE IN THE ELECTION
AS A PARTY!!

Philippine Party System:
A free and open party system shall be allowed to evolve according to the free choice
of the people. [Sec. 6. Art. IX, C] MULTI PARTY SYSTEM IN THE PHILIPPINES
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.
[Sec. 7]

Groups that cannot be registered (APPLIES TO ALL POLITICAL PARTIES):
1. Religious denominations or sects;
2. Those who seek to achieve their goals through violence or unlawful means
3. Those who refuse to uphold and adhere to the Constitution;
4. Those supported by foreign governments (REMEMBER THE BAR QUESTIONS WHERE
A PARTY LIST WAS DISQUALIFIED FOR HAVING ACCEPTED A SUBSIDY FROM THE DUTCH
GOVERNMENT!!)

Grounds for cancellation:
1. Accepting financial contributions from foreign government and agencies;
2. Where a party does not represent the interest of the marginalized and underrepresented sector [Party-list Only]
3. Failure to comply with election laws.
•

Philippine Guardians v. COMELEC, 619 SCRA 585 (2010)

•

Sec. 6 of RA No. 7941 allows the COMELEC to cancel the registration of national,
regional or sectoral party on the following grounds:

It fails to participate in the last two (2)
preceding elections or
(8)

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.
•

Among the party-list organizations affected for the 2010 election was Philippine
Guardians Brotherhood, Inc. (PGBI). It was de-listed by the COMELEC because it
failed to get 2% of the votes cast in 2004 and it did not participate in the 2007
elections. Is the COMELEC correct?

•

SC HELD THAT THEY ARE DISQUALIFIED!!! THE PGBI MUST HAVE KNOWN THE
PROVISIONS OF THE LAW THAT:

IT DID NOT FIELD CANDIDATES OR DID NOT PARTICIPATED IN THE 2007
ELECTIONS!! FROM THE CONTEXT OF THE LAW, PGBI CANNOT BE DISQUALIFIED AS
IT DID NOT FAIL TO OBTAIN AT LEAST 2% OF VOTES CAST IN 2 PRECEDING
ELECTIONS NOR IT FAILED TO PARTICIPATE IN THE LAST 2 PRECEDING ELECTIONS!!!

Some Questions:
1. Is

block-voting

the same as the party-list system?

THIS HAPPENED WHERE ALL CANDIDATES OF THE PARTY VOTED AND WON WILL

IS NOT
ALLOWED ANYMORE UNDER THE PRESENT
CONSTITUTION!!
BE DECLARED WINNER IN ONE INSTANCE!!.. ***THIS

2.

Is turn-coatism a crime?
NO!

“An elective official may change his party affiliation for
purposes of election next following his change of party within one year
prior to such election.” –
Sec. 71, OEC:

IT SEEMS THE PROVISION IS WITHOUT VALUE AS IT PROVIDED NO PENALTY. THIS IS
NOT REALLY A PROHIBITION BECAUSE ANYONE COULD CHANGE HIS PARTY
AFFILIATION WITHIN 2 YEARS OR NOT WITHIN THE PROHIBITED PERIOD.
RA 7941. 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 (THIS IS THE REAL
PROHIBITION AGAINST TURNCOATISM):
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.
Amores v. HRET, 622 SCRA 590 (2010)

Q: WHAT HAPPENED HERE IS THAT A YOUTH PARTY
LIST REPRESENTATIVE WAS ABOUT TO TURN 30 YEARS
OLD WHICH IS A BAR FOR HIM TO REPRESENT… SO HE
CHANGE HIS PARTY AFFILIATION…
***HELD… CONSIDERING THAT THE CHANGE OF POLITICAL PARTY IS
MADE WITHIN 6 MONTHS BEFORE ELECTION, HE IS NO LONGER ELIGIBLE
TO BE NOMINATED AS PARTY LIST REPRESENTATIVE UNDER A NEW
PARTY OR ORGANIZATION!!!

Q: 3. How did the 1935 Constitution promote the two-party
system?
IT DID NOT PROHIBIT MULTI PARTY SYSTEM… BUT DISADVANTAGES WERE HAD WHO
DID NOT BELONG TO THE 2 PROMINENT PARTIES THEN ESPECIALLY TO THE
ALLOCATION OF SEAT IN THE COMMISSION ON APPOINTMENTS!! AS DISTINGUISHED
TO THE PRESENT WHERE THE SEATS IN THE CA IS PROPORTIONATELY ALLOCATED TO
PARTIES

4. Bar Question, 1999, No. 9:

Discuss the merits and demerits of the multi-Party system.
•

MERITS:

•

IF IT IS A GENUINE PARTY,

•

MANY IDEAS WILL REALLY COME UP BECAUSE DIFFERENT PARTIES WILL
INTRODUCE DIFFERENT PLATFORMS..

•

SO CHANCES ARE MORE IDEAS WILL COME IN WITH THE END VIEW OF
ENRICHING THE POLITICAL SYSTEM OF THE COUNTRY:

•

DEMERITS: LEGISLATIONS WOULD BE VERY DIFFICULT IN VIEW OF THE
PRESENCE OF VARIOUS PARTIES WHICH MIGHT NOT BE ADHERING TO A
PARTICULAR LEGISLATIONS..

6.

•

OBTAINING THE MAJORITY NECESSARY TO PASS A LEGISLATION IS LIKELY
HARD!!

•

PRIORITY DIRECTION OF THE EXECUTIVE DEPARTMENT WOULD BE HAMPERED!!

Candidacy

a. Qualifications of Candidates
[Disqualifications]
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
(4) Petition to Deny or Cancel Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates
Who is a candidate?
A

candidate is one who seeks or aspires to serve office or privilege or who offers himself

for the same. [Nationalista Party v. COMELEC, 1940]
IT MAKES NO DISTINCTION WHETHER OR NOT HE FILED A COC

•
Sec. 79, OEC, “Candidate" refers to any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment, or coalition of parties;
a.

Qualifications:

5 Qualifications of Local Elective Official: [Sec. 39]
1.

Citizens of the Philippines (DOES NOT MENTION NATURAL BORN)

2. Registered voter of the place where he intends to run (SO THE QUALIFICATION
APPLYING TO A VOTER APPLIES ALSO TO THOSE WHO ARE RUNNING FOR ELECTIVE
POSITION) (OTHERWISE STATED, YOU HAVE TO BE ACTUALLY A REGISTERED VOTER!!
3. Resident for at least one year immediately preceding
HERE MEANS DOMICILE, NOT THAT TEMPORARY ONE)

the election (RESIDENT

4. Able to read and write Filipino or any principal dialect (NOTE THAT IN
NATIONAL ELECTIVE POSITION, THERE IS NO REQUIREMENT OF LANGUAGE OR
DIALECT) IF YOU SPEAK ONLY ENGLISH, YOU CANNOT RUN FOR ANY LOCAL ELECTIVE
POSITION.. BUT YOU CAN RUN FOR PRESIDENT!!
5.

Age, as follows:

NOTE:

PRESIDENT- AT LEAST 40
SENATOR-AT LEAST 35
CONGRESSMAN AT LEAST 25

a.

23 for all elected officials of provinces and highly urbanized cities

b.

21 for mayor and vice mayor of all component cities and
municipalities

c.

18 for all barangay captains and councilors of component cities,
municipalities and barangays

d. 15 but not over 21 on election day for sangguniang kabataan

Citizenship:
Frivaldo v. COMELEC, 257 SCRA 727 (1996)
At 2PM of June 30, 1995, Frivaldo took his oath of allegiance as a repatriated Filipino
citizen under PD 725. At 8:30 in the evening of the same date, his opponent who garnered the
second highest number of votes was proclaimed as Governor of Sorsogon. At one point must a
local elective official possess Philippine citizenship?

Q:WAS FRIVALDO QUALIFIED TO BE

GOVERNOR?
SC HELD THAT ****IT IS ENOUGH THAT YOU POSSESS OR YOU ARE FILIPINO CITIZEN
ON JUNE 30! NOT ON THE DAY OF ELECTION AND CERTAINLY NOT ON THE DAY OF
FILING OF COC!!!
REASONS:
1. THIS IS PREMISED ON THE FACT THAT THE REQUIREMENT PROVIDED BY THE
LOCAL GOVERNMENT CODE IS “***QUALIFICATIONS OF LOCAL ELECTIVE
OFFICIAL: CITIZEN OF THE PHILIPPINES” … IT DOES NOT PROVIDE THAT
“QUALIFICATION FOR CANDIDATES”…. HAD THE LATTER BEEN PROVIDED,
FRIVALDO COULD NOT HAVE QUALIFIED SINCE HE MUST BE A FILIPINO CITIZEN
ON UPON FILING OF COC.. YOU CAN ONLY BE CONSIDERED CANDIDATE ONLY
UPON FILING OF CANDIDACY!
2. THE PURPOSE OF THE LAW IS TO*** PROHIBIT ALIEN FROM GOVERNING

WHEN DO YOU BEGIN TO GOVERN
AFTER HAVING BEEN PROCLAIMED AS WINNER?
FILIPINOS… BUT THE QUESTION IS

= A: YOU ONLY GOVERN ON JUNE 30-THAT IS THE START OF YOU TERM.. SO YOU ARE
NO FILIPINO BY THAT TIME ..WE ARE NOW SETTLED WITH THIS HA!

ONCE APPLICATION FOR REPATRIATION IS APPROVED, IT
SHALL RETROACT ON THE DAY YOU FILE YOUR PETITION OR
APPLICATION AS DISTINGUISHED TO NATURALIZAITON WHERE YOU BECOME

3. MOREOVER,

FILIPINO CITIZEN ONLY ON THE DAY YOU TAKE YOUR OATH OF ALLEGIANCE!!
NOW, LET US DISECT!

WHAT WOULD HAPPEN HAD FRIVALDO RAN FOR

SENATOR PURSUANT TO BELOW PROVISIONS?
CONSIDERING ONLY NATURAL BORN CITIZENS CAN AVAIL REPATRIATION AND THE
FACT THAT PURSUANT TO THE YOU ARE RESTORED TO YOUR FORMER STATUS,

A: IT IS BELIEVED THAT FRIVALDO WOULD BE QUALIFIED..
SINCE HE CAN BE A SENATOR ONLY ON JUNE 30 UPON THE START OF HIS
TERM…
HOWEVER, HAD

HE RAN FOR PRESIDENT,

=HE

WOULD NOT QUALIFY FOR HE HAD TO BE A NATURAL BORN ON
THE DAY OF FILING OF COC!!
AS DISTINGUISHED TO THAT REQUIRED OF A SENATOR!!! “ELECTED”-PRESUPPOSES
FILING OF CANDIDACY!!

***FRIVALDO CAN RUN FOR SENATOR BUT
DISQUALIFIED TO RUN FOR PRESIDENT BECAUSE THE NBC REQUIREMENT
MUST BE POSSESSED UPON FILING OF CANDIDACY!!
OTHERWISE STATED:

Sec. 3, Art. VI. “No person shall be a Senator unless he is a natural-born citizen…”
Sec. 2, Art. VII. “No person shall be elected President unless he is a natural-born citizen of the
Philippines…
Domicile:
Marcos v. COMELEC, Sept. 18, 1995:

For purposes of complying with the residency requirement, must the wife and
the husband who are not separated legally or actually have the same domicile?
THIS CASE INVOLVED IMELDA MARCOS WHO WAS MARRIED TO MARCOS, A RESIDENT
OF ILOCOS… IS SHE QUALIFIED TO RUN FOR CONGRESSWOMAN IN LEYTE OR IS IT NOT
A FACT THAT THE WIFE FOLLOW THE HUSBAND’S DOMICILE PURSUANT TO THE FAMILY
CODE PROVSION?

HELD: ****THERE IS NO RULING THAT THE WIFE FOLLOW THE
HUSBANDS DOMICILE… WHAT THE WIFE ONLY ACQUIRED IS ONLY THE ORDINARY
RESIDENCE!! OTHERWISE STATED,
***RESIDENCE SET UP BY THE HUSBAND AND WIFE AS REQUIRED BY THE FAMILY CODE
SHOULD CONSTRUED TO BE

TEMPORARY,

UNLESS WIFE INTENDED THE SAME TO BE THEIR PERMANENT RESIDENCE!!!
MOREOVER, CONSIDERING THAT FACT IMELDA KEPT ON GOING BACK TO LEYTE TO
CELEBRATE HER BIRTHDAY, SHE CANNOT BE DEEMED TO HAVE ABANDONED LEYTE AS
HER DOMICILE NOTWITHSTANDING THE FACT THAT THE COUPLE HAD ESTABLISHED
THEIR HOME OR HOUSE IN ILOCOS WHICH WAS ONLY AN ORDINARY RESIDENCE!!!
NOT DOMICILE!! HENCE, SHE WAS QUALIFIED TO RUN

Abella v. COMELEC, 201 SCRA 255 (1991)
In 1975, Larrazdabal left Kananga, Leyte, to live in Ormoc. On Nov. 25. 1987, she had her
registration as voter in Ormoc cancelled. On Nov. 27, 1987, she registered in Kananga. On Jan. 21,
1988, she filed her COC for Governor in replacement of her husband who was disqualified for lack
of residency. Had she remained a domiciliary of Kananga? Assuming that she had abandoned

Kananga, had she reacquired residency for the purpose of satisfying the LGC?

HAD SHE

RETAINED KANANGA AS HER DOMICILE?
NO! WHEN LEFT KANANGA IN 1975, SHE LEFT THERE FOR GOOD… SO SHE WAS RULED TO HAVE
ABANDONED KANANGA..
SECOND, WHEN SHE RETURNED ON NOVEMBER 27,*** SHE FAILED TO COMPLY THE 1 YEAR
RESIDENCY REQUIREMENT “
Resident for at least one year immediately preceding the election”
TAKING INTO CONSIDERATION MAY 1988 AS THE IMMEDIATELY PRECEDING ELECTION!!

3 Requisites for acquisition of new domicile:
1. actual change
DAVAO CITY!

of domicile (bodily presence] YOU ARE PHYSICALLY PRESENT IN

bona fide intention to abandon the old residence and establish
another.... MEANS YOU DO NOT REALLY INTEND TO GO BACK THERE!!!!!
2.

3.

acts which correspond with the purpose

***ABANDONMENT OF DOMICILE CAN BE MANIFESTED BY SELLING PROPERTIES IN THE OLD
DOMICILE!!! AND BY ACQUIRING PROPERTIES IN THE NEW ONE!!
***NOTE THAT NO PERSON CAN HAVE 2 PERMANENT RESIDENCE BECAUSE THE MOMENT YOU
ACQUIRED NEW ONE, YOU ARE DEEMED TO HAVE ABANDONED THE OLD ONE!!

•

Mitra v. COMELEC, 622 SCRA 744 (2010)

From 2001 to 2010, Mitra was the Representative for the 2nd District of Palawan.
He was a resident of Puerto Princesa (WHICH IS A LATER CONVERTED INTO HIGHLY
URBANIZED CITY, HENCE VOTERS THEREIN DO NOT VOTE FOR PROVINCIAL
OFFICIALS) which was part of the 2nd District. In March 2007, before the end of his
second term, Puerto Princesa City was reclassified as a “highly urbanized city,”
and thus ceased to be a component city of the Province of Palawan . The direct legal
consequence of this new status was the ineligibility of Puerto Princesa City residents from
voting for candidates for elective provincial officials. On March 20, 2009, with the intention
of running for the position of Governor, Mitra applied for the transfer of his Voter's
Registration Record from Precinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City, to
Sitio Maligaya, Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He subsequently
filed his COC for the position of Governor of Palawan as a resident of Aborlan. Is he
qualified?
•

HE IS QUALIFIED… THERE IS NO LAW PROHIBITING YOU TO ABANDON FROM
CHANGING YOUR DOMICILE PROVIDED THAT YOU HAVE THE INTENTION TO
ABANDON THE OLD ONE!!

•

TAKE NOTE HOWEVER THAT IF YOU ARE A CONGRESSMAN AND YOU WANT TO
TRANFER TO ANOTHER DISTRICT, IT MAY RESULT TO FORFEITURE OF YOUR SEAT
IN THE DISTRICT YOU ARE REPRESENTING ON THE PREMISE THAT RESIDENCY IS
A CONTINUING REQUIREMENT THE MOMENT YOU ABANDON YOUR RESIDENCE!!

•

BUT IT IS DIFFERENT IN THE CASE AT BAR SINCE MITRA’S INTENDED NEW
DOMICILE BELONGS TO THE SAME DISTRICT HE REPRESENTS!!

•

Fernandez v. HRET, 608 SCRA 733 (2009)

•

When Fernandez filed for candidacy as Representative of the First Legislative District of
the Province of Laguna, he indicated his address as Sta. Rosa City, Laguna. However, during
previous elections, when he ran for other positions, he declared Pagsanjan, Laguna, as his
address, which is within the 4th Legislative District. While he won with a margin of
35,000 votes over his closest opponent, the HRET annulled his proclamation for
lack of residency for at least one year before the day of the elections. The HRET
decision, among others, states that a contract of lease with "a fixed period of one
year ... negates the concept of permanency that would suffice to prove
abandonment of respondent's previous residence or domicile at Pagsanjan." To
prove change of domicile, must one purchase property in the new locality? NO

•

SC HELD THAT PURCHASE OF PROPERTY IS NOT A REQUIREMENT.. NOR IT IS A
MUST (BUYING PROPERTY) TO PROVE CHANGE OF DOMICILE.. REQUIRING THE
SAME WOULD BE ADDING QUALIFICATION SET FORTH IN THE CONSTITUTION IN
RUNNING SUCH ELECTIVE OFFICE OR THE RIGHT TO VOTE!! PROPERTY IS NOT AN
INDICATOR!! WHAT IS IMPORTANT IS THAT YOU WILL BE ABLE TO PROVE THAT
YOU HAVE THE INTENTION TO ABANDON YOUR PREVIOUS DOMICILE OR
RESIDENCE!!

Age:
Garvida v. Sales, 271 SCRA 773 (1997)
Petitioner was born June 11, 1974. On May 6, 1996 she ran and won as chair of the SK. Under
the LGC, members of the Katipunan ng Kabataan have to be 15 but not more than 21, while
officers should not be more than 21 on election day. Is he qualified?
“One born on the first day of the year is consequently deemed to be one year old on the 365th
day after his birth -- the last day of the year. In computing years, the first year is reached after
completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle
begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on
and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This
means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this
birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day
of the next 365-day cycle and he turns 22 years old on the 365th day.”
IN THE CASE AT BAR…. HE IS NO LONGER QUALIFIED HAVING BEEN 21 YEARS AND 6 MONTHS
OLD.. HENCE DISQUALIFIED TO RUN FOR THE SK POSITION!!! NO STANDARD HAS BEEN LAID
DOWN.. CONFUSING!!
[Art. VIII, Sec. 11: Judges and justices “shall hold office until they reach the age of 70
years…”] Grageda Case- HE IS NOT ABLE TO GET HIS RETIREMENT BECAUSE OF AN ADMIN
CASE FILED AGAINST HIM FOR RENDERTING DECISION ON HIS 70TH BIRTHDAY!! OR THE
DAY OF HIS RETIREMENT!!
-1996, No. 9: A, an associate justice of the Supeme Court reached the age of seventy on July 1,
1996 (ACTUAL BIRTHDAY!). There was a case for deliberation on that day where the vote of A was
crucial. Can A hold over the position and participate in the deliberation?
YOU CAN NO LONGER PARTICIPATE IN THE DELIBERATION ON THE DAY HE REACH 70…
NO HOLD OVER STATUS THE CONSTITUTION.. ALL POSITIONS ARE DEEMED
TERMINATED EITHER ON YOUR BIRTHDAY OR ON THE EXPIRATION DAY OF YOUR TERM!!
SO APPARENTLY, IT IS THE PRACTICE IN THE JUDICIARY THAT ON THE DAY OF YOUR
BIRTHDAY, YOU ARE ALEADY 70 YEARS OLD! HENCE, NO LONGER ALLOWED TO
PARTICIPATE!! THE IDEA SIMPLY IS THAT NO HOLDOVER IN CONSTITUTIONAL
POSITIONS!!
Disqualifications: (NEGATIVE TRAITS THAT RENDER ONE UNFIT FROM RUNNING PUBLIC
OFFICE)
•

Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:

•

(a) Those sentenced by final judgment for an offense involving moral turpitude (even if the

penalty is 30 days) or for an offense punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence; NOTE : VOTING IS WITHIN 5 YEARS…
STRANGE.. I CAN RAN AFTER 4 YEARS BUT I CANNOT STILL VOTE AT THAT TIME…
ABSURD TO THE PRINCIPLE THAT YOU CAN ONLY RUN FOR PUBLIC OFFICER IF
YOU ARE ALLOWED BY LAW TO VOTE
•

(b) Those removed from office as a result of an administrative case;

•

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(treason, rebellion)

•

(d) Those with dual citizenship;

•

(e) Fugitives from justice in criminal or non-political cases here or abroad;

•

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

•

(g) The insane or feeble-minded.

How is disqualification arising from conviction removed?
1. Plenary pardon (LIKE ESTRADA)…….. CONDITIONAL PARDON DOES NOT REMOVE
DISQUALIFICATION!!
2. Amnesty
3. Lapse of 2 years after service of sentence (5 years refers to voting)
4. Probation?
Or insanity? BY
Declaration by competent authority (THAT HE IS NO LONGER INSANE)
•

MORENO vs. COMELEC, G.R. No. 168550 August 10, 2006

Moreno was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and
Four (4) Months. He applied for probation which was granted by the RTC. He was discharged on
Dec. 18, 2000. On July 15, 2002, or less that 2 years after his discharge, he ran for Barangay
Captain on Dec. 20, 2000. The COMELEC disqualified him. Is he qualified?
[Can he run during the period of probation?]
HELD: ONCE YOU APPLIED AND ADMITTED TO PROBATION, YOU ARE QUALIFIED TO
RUN!! THE LAW SAYS THAT YOU CANNOT RUN within two (2) years after serving
sentence… NOTE THAT ONCE YOU ARE ADMITTED TO PROBATION, YOU ARE NO LONGER
SERVING SENTENCE!! HENCE, YOU CAN RUN.. YOU CAN EVEN RUN DURING THE PERIOD
OF PROBATION!!
Other Grounds: Sec. 681. Having given money or other material consideration for votes
2. Committed acts of terrorism to enhance candidacy
3. Excessive spending
4. Solicitation, receipt of prohibited contribution
5. Violation of rules on prohibited election propaganda
Removal from Office:
Osorio v. COMELEC, May 6, 2004
Osorio was elected barangay captain in 2002. However, he was previously was found guilty of
dishonesty by the Civil Service Commission (CSC) while holding an appointive office. Does the

disqualification in the Local Government public office. Said CSC decision was final. Does the
disqualification from running in any elective position of those removed from office as a result of an
administrative case” apply only those removed from an elective office?
HELD: THE LAW DOES NOT DISTINGUISH!! YOU ARE DISQUALIFIED FROM RUNNING
LOCAL ELECTIVE POSITION ON THE GROUND “Those removed from office as a result of
an administrative case”;

Grego v. COMELEC, 274 SCRA 486On Oct. 31, 1991, Grego was dismissed from the service by the SC as sheriff “with prejudice to
reinstatement to any local or national position.” On Jan. 1, 1992, the LGC was enacted
disqualifying persons who had been removed as a result of an administrative case from running for
an elective post. In May 1992, he ran and won as Councilor of Manila. Is he qualified?
YES!! HE IS QUALIFIED.. TAKE NOTE THAT THE LGC TOOK EFFECT ON JANUARY 1, 1992..
HE WAS CONVICTED ON OCTOBER 1991… IT CANNOT BE GIVEN RETROACTIVE EFFECT!!
HENCE, ALLOWED TO RUN AND SERVE… THIS DISQUALIFICATION AS A RESULT OF
REMOVAL DUE TO ADMIN CASE APPLIES ONLY UPON THE EFFECTIVITY OF LGC!! NO
RETROACTIVE APPLICATION!!
IF YOU ARE CONVICTED FOR A CRIME, YOU CAN STILL RUN AFTER THE LAPESE OF 2
YEARS FROM SERVICE OF SENTENCE, BUT YOU CAN NO LONGER RUN IF YOU ARE
REMOVED FROM OFFICE IN AN ADMIN CASE!!!
Fugitive from Justice:
Rodriguez v, COMELEC, 259 SCRA 298 (1996):
On June 25, 1985 Rodriguez left the US to return to the Philippinmes. On Nov. 12, 1985, he
was charged before a Los Angeles Municipal Court for grand theft and warrants were issued
against him on the same day. In 1992 and 1995, he run and won as Governor of Quezon Province.
Is he a fugitive from justice?
HELD: NO!! A fugitive from justice includes not only those who flee after conviction to avoid
punishment, but likewise those who, after being charged, flee to avoid prosecution.
IN THE CASE AT BAR, HE WAS ONLY CHARGED AFTER HE FLED!! HE WAS NOT CHARGED WHEN HE
FLED! HE IS QUALIFIED…

Green Card-Holder:
Caasi v. COMELEC, 191 SCRA 230 [1996]
Miguel was a green card holder issued by the Immigration of the US. But he was elected as
Mayor of Bolinao, Pangasinan. He claims that he got the green card so that he can freely enter the
country for medical check up and to visit his children. Is he disqualified?
YES! DISQUALIFIED…. GREEN CARD IS AN INDICATION THAT YOU ARE A PERMANENT
RESIDENT OF ANOTHER COUNTRY OR US… THE PRINCIPLE IS THAT ONCE YOU
ACQUIRED A NEW DOMICILE, YOU ARE DEEMED TO HAVE LOST OR ABANDONED THE OLD
ONE!! A CLEAR VIOLATION OF THE RESIDENCY REQUIREMENT RENDERING HIM
DISQUALIFIED TO RUN AND HOLD ANY ELECTIVE OFFICE!!!
Dual Citizens:
Valles v. COMELEC, Manzano v. COMELEC
THIS REFERS TO DUAL CITIZENSHIP BY BIRTH OR BY SOME OTHER REASON- MERE
FILING OF CERTIFICATE OF CANDIDACY RESULTS TO WAIVER OR RENUNCIATION OF
YOUR OTHER CITIZENSHIP!!
Latest: GR No. 198742, Sobejana-Condon v. COMELEC, August 10, 2012

THIS REFERS TO DUAL CITIZENSHIP UNDER RA 9225- MEANING YOU ARE A FILIPINO
BUT GO NATURALIZED IN ANOTHER COUNTRY AND YOU TOOK OATH OF ALLEGIANCE
UNDER RA 9225 YOU ARE A DUAL- IF YOU RUN FOR PUBLIC OFFICE, YOU ARE ACTUALLY
REQUIRED TO MAKE SWORN RENUNCTION OF YOUR OTHER CITIZENSHIP
Distinction between dual citizens by birth and those who became such under RA No. 9225.
Villaber v. COMELEC, Nov. 15, 2001:
Does conviction for violation of BP Blg. 22 involve Moral Turpitude? YES!.. THAT IS AN
ACT OF DISHONESTY.. YOU CAN EVEN BE DISBARRED FOR VIOLATING BP 22
“An act of baseness, vileness, or depravity in the private duties which a man owes his fellow
men, or to society in general, contrary to the accepted and customary rule of right and duty
between man and woman, or conduct contrary to justice, honesty, modesty, or good morals.” In In
re Vinzon,the term “moral turpitude” is considered as encompassing “everything which is done
contrary to justice, honesty, or good morals.”
Malum prohibitum vs. Mala en se? Illegal cutting of coconuts? Fishing with the use of
dynamite? Concubinage? llegal possession of firearms? Drugs? THE POINT SIMPLY IS THAT
AN OFFENSE OR CRIME CHARACTERIZED AS MALA PROHIBITUM OR MALA INSE IS NOT A
FACTOR TO DETERMINE AS BEING INVOLVING MORAL TURPITUDE!! EX. WHILE
RECKLESS IMPRUDENCE IS PUNISHED UNDER RPC OR CONSIDERED MALA INSE, IT DOES
NOT INVOLVE MORAL TURPITUDE!! IT INVOLVES NO DISHONESTY OR IMMORALITY!!
YOU CAN RUN AFTER HAVING BEEN CONVICTED OF THE SAME!!
ILLEGAL COCONUT-DOES NOT INVOLVE MORAL TURPITUDE
CONCUBINAGE- INVOLVES
ILLEGAL POSSESSION- DOES NOT INVOLVE!
DRUGS- INVOLVES CRIMES AGAINST MORALS!!
•

Bar Question, 2005, No. - IX -

•

(1.) In the May 8, 1995 elections for local officials whose terms were to commence on June
30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of
Governor of Laguna. He won, but his qualifications as an elected official was questioned. It
is admitted that he is a repatriated Filipino citizen and a resident of the Province
of Laguna. To be qualified for the office to which a local official has been elected, when at
the latest should he be:

•

(a) A Filipino Citizen? Explain. ON THE DAY YOU ASSUME OFFICE…

•

(b) A resident of the locality? Explain. (5%) AT LEAST 1 YEAR IMMEDIATELY PRECEEDING
THE ELECTION!!

Bar Question, 1994, No. 8:
In 1989, Zeny Reyes married Ben Tulog, a national of the state of Kongo. Under the laws of
Congo, an alien woman marrying a Kongo national automatically acquires Kongo citizenship. After
her marriage, Zeny resided in Kongo and acquired a Kongo passport. In 1991, Zeny Reyes returned
to the Philippines to run for Governor of Sorsogon.
Was Zeny Reyes qualified to run for Governor?
YES! IT MUST BE NOTED THAT A FILIPINO WHO MARRIED AN ALIEN DOES NOT IPSO
FACTO LOSE HER FILIPINO CITIZENSHIP UNLESS BY HER ACTS OR OMISSION SHE IS
DEEMED TO HAVE RENOUNCED THE SAME!! THE MERE ACT OF FILING OF COC RESULTS
TO RENUNCIATION OF HER ALIEN CITIZENSHIP!!
Bar Question, 1993, No. 7:
Ferdie immigrated to the US in the 1980’s. Thereafter, he visited his hometown, Makahoy,
every other year during town fiestas. In January 1993, Ferdie came home and filed a certificate of
candidacy for Mayor of Makahoy. He won in the elections. Jose, the defeated candidate learned

that Ferdie is a green card holder, which in its face identifies Ferdie as a “resident alien and on
the back there if is clearly printed: “Person identified by this card is entitled to reside
permanently and work in the United States. Jose filed a case to disqualify Ferdie from
assuming the mayorship of Makahoy.
Questions:
(a) Whether or not a greencard is proof that the holder is a permanent resident of the United
States. YES! ONCE YOU ACQUIRED GREEN CARD YOU ARE DEEMED TO HAVE LOST YOU
DOMICILE IN THE PHILIPPINES!!
(b) Whether or not Ferdie’s act of filing his certificate of candidacy constitutes waiver of his
status as a permanent resident of the United States.
NO! MERE ACT OF FILING COC DOES NOT CONSTITUTE WAIVER OF HER ALIEN
RESIDENCY!! AS DISTINGUISHED TO DUAL CITIZENS (BY BIRTH OR FOR SOME OTHER
REASON) WHO, BY MERE ACT OF FILING COC, SHE IS DEEMED TO HAVE RENOUNCED HER
ALIEN RESIDENCY!!

ELECTION LAWS
Part II
•

6. Candidacy
a. Qualifications of Candidates
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
(4) Petition to Deny or Cancel Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates

7. Campaign
a. Premature Campaigning
b. Prohibited Contributions
8. Board of Canvassers
9. Remedies and Jurisdiction in Election Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto
10. Prosecution of Election Offenses
b. Filing of Certificates of Candidacy
1. Effect of Filing
Note THAT THE PERIOD OF WHEN TO FILE COC IS NOT GOVERNED BY LAW.. THE
PROMULGATION OR SETTING OF WHICH IS LODGED TO THE COMELEC
Date of Filing: RA 7941, Sec. 7: “not later than the day before the date fixed for the
beginning of his campaign period.”
OTHERWISE STATED THE PERIOD OF FILING COC MUST BE BEFORE THE CAMPAIGN
PERIOD! IN FACT, EVERY ELECTION, THE COMELEC ISSUES A RESOLUTION PROVIDING
THE DATE OF PERIOD OF FILING COC!!

•

Resolution No. 8692- for 2010 Elections:

"Sec. 5. Period for filing Certificate of Candidacy. - The certificate of candidacy shall be filed
from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon, beginning November 20,
2009 up to November 30, 2009, and up to midnight on December 1, 2009, inclusive of Saturdays,
Sundays and Holidays.
BP Blg. 881: EFFECTS OF FILING!
•

Sec. 66. Candidates holding appointive office or positions. - Any person holding a
public appointive office or position, including active members of the Armed Forces
of the Philippines, and officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.

•

Sec. 67. Candidates holding elective office. - Any elective official, whether national
or local, running for any office other than the one which he is holding in a
permanent capacity, except for President and Vice-President, shall be considered
ipso facto resigned from his office upon the filing of his certificate of candidacy.
ALREADY MODIFIED!!

•

REPUBLIC ACT 9006 February 12, 2001

•

AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE
ELECTIONS THROUGH FAIR ELECTION PRACTICES

Section 14. Repealing Clause. – Section 67 and 85 of the Omnibus Election Code (Batas
Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed.
Is there violation of the equal protection clause? Quinto v. COMELEC, 613 SCRA 385 (2010)
•

Held: Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in
a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority. Another substantial distinction between the two sets
of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil service, are strictly prohibited
from engaging in any partisan political activity or take part in any election except
to vote. Under the same provision, elective officials, or officers or employees holding
political offices, are obviously expressly allowed to take part in political and electoral
activities.

•

MEANING, THE PROVISION ON SEC. 66 IS VALID… ALL APPOINTIVE OFFICIALS
SHALL IPSO FACTO CONSIDERED RESIGNED UPON FILIING OF COC.. ALL
ELECTIVE OFFICIALS ARE NOT DEEMED CONSIDERED RESIGNED UPON FILING OF
COC.. THIS IS NOW THE PREVAILING JURISPRUDENCE AND RULING!! IN SO FAR
AS FILING OF COC, THERE IS SUBSTANTIAL DISTINCTION BETWEEN ELECTIVE
AND APPOINTIVE OFFICIALS..

PNOC v. NLRC, 222 SCRA 832:
Pineda was employed with the PNOC-Energy Development Corporation, a subsidiary of PNOC
organized under the Corporation Code. In January 1998, he filed a certificate of candidacy and won
as councilor of Kananga, Leyte. PNOC terminated him. Is the termination valid? Yes!
Any person holding a public appointive office or position, including active members of
the Armed Forces of the Philippines, and officers and employees in government-owned
or controlled corporations, shall be considered ipso facto resigned from his office upon
the filing of his certificate of candidacy.
The prohibition applies not only to those with original charter bu also to Subsidiaries and

private corporations acquired by the government through purchase.. At least 51 percent
of the stocks of which is owned by government
Questions:
1. Can (COC) it be withdrawn? Yes! Art. 73: anytime prior to the day of the election. ON THE
ELECTION DAY, IT CAN NO LONGER BE WITHDRAWN!! YOUR NAME STANDS IN THE
BALLOT
2. Can a withdrawal be withdrawn? Monsale v. Nico, 83 Phil. 758 (1949)- (REINSTATEMENT
OF CANDIDACY) YES THE WITHDRAWAL CAN BE WITHDRAWN ANYTIME BEFORE THE
DEADLINE OF THE COC FILING!
2. Can you file two COCs? Art. 73: If you win both, or either? Exception: withdraws it before
the deadline for filing…..
IF YOU FILE 2 OR MORE COCS AND YOU WIN ALL, YOU CANNOT SERVE ANY… YOU ARE
DISQUALIFIED!! UNLESS YOU WITHDRAW IT BEFORE THE DEADLINE OF FILING!!
Bar Question, 2003, No. 10
a. Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He intends to run in the regular
elections for the position of City Mayor of Quezon whose incumbent mayor would have fully served
three consecutive terms by 2004. Would Pedro Reyes have to give up his position as Vice Mayor?
i. once he files his certificate of candidacy
ii. when the campaign period starts
iii. once and if he proclaimed winner in the election
iv. upon his assumption to office NOTE: THERE SHOULD NOTHING BE GIVEN UP SINCE
HIS TERM AS VICE MAYOR END ALSO ON JUNE 30
v. none of the above
b. If Pedro Reyes were instead, an incumbent Congressman of Quezon City, who intends to seek
the mayoralty post in Quezon City, would your choice of answer above be the same? If not, which
would be your choice?
APPLYING THE NEW RULING, AN ELECTIVE OFFICIAL WHO FILES A COC FOR ELECTIVE
POSITION OTHER THAN HE IS CURRENTLY HOLDING IS NOT CONSIDERED RESIGNED AS
DISTINGUISHED TO THAT OLD LAW WHERE HE IS DEEMED CONSIDERED RESIGNED!!
Bar Question, 2002: No. 13
A, a City Legal Officer, and B, a City Vice Mayor, filed certificates of cabdidacy for the position of
City Mayor in the May 14, 2001 elections.
A. Was A ipso facto considered resigned and, if so, effective on what date? YES! HE IS
CONSIDERED IPSO FACTO RESIGNED UPON FILING OF COC!!
B. Was B ipso facto considered resigned and, if so, effective on what date? NO! AN ELECTIVE
OFFICIAL WHO FILES A COC FOR ELECTIVE POSITION OTHER THAN HE IS CURRENTLY
HOLDING IS NOT CONSIDERED RESIGNED… HE IS ONLY CONSIDERED RESIGNED UPON
THE END OF HIS TERM ON JUNE 30..
In both cases, state the reason or reasons for your answer.
6 (b) (2): Substitution of Candidates
OEC, Sec. 77. 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 midday 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.
Rules on Substitution:
A. With a Party
-Substitute must belong to the same party and must be nominated by the same party
-Must file at anytime before midday of the day of election with BEI, or COMELEC for national
positions
B. With No party?
THE LAW DOES NOT SAY ANYTHING… IF CANDIDATE HAS NO PARTY, HE CANNOT BE
SUBSTITUTED OR REPLACED BY ANYBODY..
REMEMBER THE DISTINCTION WITH SUBSTITUTION OF SANGGUNIANG BAYAN MEMBERS
WHERE THE PARTY CAN RECOMMEND IF HE IS A MEMBER THEREOF.. IF HE HAS NO
PARTY, THE CONCERNED SANGGUINANG MAY RECOMMEND.. BUT HERE, IF YOU HAVE NO
PARTY, YOU CAN NO LONGER BE SUBSTITUTED!!
Bar Question, 1995, No. 7:
The Vice Mayor of Municipality filed his certificate of candidacy for the same office in the last
elections. The Municipal Mayor was also running for reelection. Both were official candidates of the
same political party. After the last day for the filing of certificates of candidacy, the Mayor died.
(3) Is there any legal impediment to the Vice Mayor running instead as Mayor to replace the
reelectionist Mayor who died?
NO PROBLEM HERE… THEY BELONG TO THE SAME PARTY… WHAT IS ONLY REQUIRED IS
NOMINATION AND RECOMMENDATION BY THE PARTY FOR THE SUBSTITUTION!! HE MAY
STILL FILE BUT NOT LATER ON THE MIDDAY OF ELECTION DAY!!!
NOTE HOWEVER, IF THE MAYOR DIED ON THE ELECTION DAY AND HE WINS, HE HAS TO
BE PROCLAIMED AND THE VICE MAYOR SHALL ASSUME OFFICE BY SUCCESSION!!
6. (b) 3. Nuisance Candidates
•

Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified
petition of an interested party, refuse to give due course to or cancel a certificate
of candidacy if it is shown that said certificate has been filed to put the election
process in mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other circumstances or
acts which clearly demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate.

Grounds to declare one a nuisance: MEMO THIS!!
1. COC was filed to put the election process in mockery or disrepute
2. COC was filed to cause confusion among the voters by the similarity of the names of
the registered candidates
3. Other circumstances or acts which clearly demonstrate that the candidate has no
bona fide intention to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of the electorate.
•

Pamatong v. COMELEC, 427 SCRA 96 (2005)

•

The Commission on Elections refused to give due course to the Certificate of Candidacy
for President of Rev. Elly Velez Pamatong for the 2004 national elections. Along with 35
other candidates, the COMELEC found that he was a nuisance candidate. Did the act of the
COMELEC violate petitioner’s right to “equal access to opportunities for public service” under

Sec. 26, Art. II of the 1987 Constitution?
•

Held: No. There is no constitutional right to run for or hold a public office. Sec.
26, Art. II of the Constitution neither bestows such a right nor elevates the
privilege to the level of an enforceable right. The provisions under Art. II are
generally considered not self-executing, and there is no plausible reason for
according a different treatment to the “equal access” provision.

•

OTHERWISE STATED, THERE IS NOT RIGHT TO RUN FOR PUBLIC OFFICE.. IT IS
ONLY A PRIVILEGE!! NOTE THAT THE RIGHT TO SUFFRAGE HAS REFERENCE ONLY
TO THE RIGHT TO VOTE AND DOES NOT INCLUDE THE RIGHT TO BE VOTED FOR!!!

Basis: (YOU CAN BE DECLARED NUISANCE UNDER THE FOLLOWING CIRCUMSTANCES)
1. could not wage a nationwide campaign and/or
2. not nominated by a political party or
3. not supported by a registered political party with a national constituency.
Orderly election- THIS THE REASON WHY SC WOULD SUSTAIN THE DECLARATION OF
THE COMELEC AGAINST A CANDIDATE AS NUISANCE.. THIS IS FOR THE INTEREST OF
ORDERLY ELECTION!! It would be very difficult of conduct elections with so many
candidates most of which have no chance of winning… hence, hampering the orderly
election!!
6. (b) (4) Petition to Deny or Cancel Certificates of Candidacy
[Procedural Remedies Against other Candidates]
Remedies:[Procedural Remedies Against other Candidates] before election day!! Because QUO
WARRANTO is only had after there has been an election and proclamation!! So the following can be
done before the election in seeking to disqualify any candidate
1. Petition to deny or cancel COC under Sec. 76 of the OEC
2. Petition to disqualify candidate under Rule 25 of the COMELEC Rules
3. Petition to declare a candidate as nuisance under Rule 24, Sec. 3
1. Petition to deny or cancel COC
Ground: Material Misrepresentation in the COC, such as:
a. date of birth
b. residency
c. citizenship
d. party
e. address
f. insanity
f. conviction
NOTE: THESE ARE MATERIAL ENTRIES BECAUSE IT PERTAINS TO THE QUALIFICAITON
OR DISQUALIFACTION OF A CANDIDATE
IT MUST BE FILED NOT LATER THAN 25 DAYS AFTER FILING of COC2. Petition to disqualify candidate under Rule 25
Ground: Commission of Acts which are Ground for Disqualification under Sec. 68, but this
requires final judgment by a court- (THIS MAY BE RELEVANT FOR FUTURE ELECTIONS
AND NOT THE IMMEDIATE ELECTIONS AS FINAL JUDGMENT CAN TAKE A LONG TIME)

(a) given money to corrupt voters or public officials;
(b) committed acts of terrorism to enhance his candidacy;
(c) incurred excessive spending;
(d) received prohibited contributions
(e) engaged in illegal campaign

Period-last day of filing COC but not later than proclamation
3. Petition to declare a candidate as nuisance under Rule 24, Sec. 3-

Period- within 5 days from last day of filing…. BUT WE FIND NO PROBLEM HERE
BECAUSE THE COMELEC CAN DECLARE A CANDIDATE NUISANCE MUTO PROPIO
Amora Jr. vs. COMELEC, 640 SCRA 273 (2011) May a candidate be disqualified on the ground that
his COC was defectively filed, e.g., only CTC, not a competent evidence of identity as required by
the Notarial Rules of 2004, was presented to the notary?
NO! THAT IS NOT A GROUND TO DISQUALIFY HIM!!
Bar Question, 2011
•

50. Where a candidate for the Senate stated in his certificate of candidacy that he is single,
when he is very much married, though separated, his certificate of candidacy

•

A. may be canceled.

•

B. will subject him to a quo warranto action.

•

C. remains valid. BECAUSE BEING SINGLE OR MARRIED HAS NOTHING TO DO
WITH YOUR QUALIFICATIONS!!

•

D. may be denied due course.

NOTE: IT WOULD BE MATERIAL IF I MISREPRESENT THE NUMBER OF TERMS SERVED
WHEN PUTTING THE TRUE TERMS SERVED WOULD DISQUALIFY ME… !! THE TEST: IS THE
MISREPRESENTATION MATERIAL TO MY CANDIDACY OR QUALIFICATION TO RUN FOR
SUCH OFFICE?
7. Campaign
a. Premature Campaigning
Election campaign refers to an act designed to promote the election or
defeat of a particular candidate.
Campaign period (90 NATIONAL, 45 LOCAL and 15 days BARANGAY) cannot be
increased by law
Why is campaign period regulated? TO AVOID DEMORALIZATION IN GOVERNMENT
SERVICE!! PUBLIC SERVICES WOULD BE HAMPERED AS EVERY ELECTIVE OFFICIALSCANDIDATES WILL BE BUSY CAMPAIGNING TO THE PREJUDICE OF THE BASIC SERVICES
TO ITS CONSTITUENTS!!
. Osmena v, COMELEC, 191 SCRA 752
RA 7056 provides for a different campaign period, as follows:
a) For President arid Vice-Presidential elections one hundred thirty (130) days before the day of
election.
•

b) For Senatorial elections, ninety (90) days before the day of the election, and)

•

c) For the election of Members of the House of Representatives and local elective
provincial, city and municipal officials forty-five (45) days before the day of the elections.
UNCONSTITUTIONAL- THE CONGRESS CANNOT LENGTHEN THE CAMPAIGN
PERIOD!!! NOTE THAT [Sec. 9, C, Art. IX OF THE CONSTITUTION PROVIDES
ELECTION PERIOD OF 90 days before and 30 days after, except in special cases
which may be fixed by the Commission. IN THE END ACTUALLY, RA 7065
INCREASES THE CAMPAIGN PERIOD LONGER THAN THE ELECTION PERIOD..
WHICH CANNOT BE DONE!!.

Election 2010, May 10-Campaign Period
Resolution No. 8758:
•

February 9 to May 8, 2010 - the election of President, Vice President, Senators and PartyList Representatives; and

•

March 26 to May 8, 2010 - the election of members of the House of Representatives and
elective provincial, city and municipal officials.

•

PREMATURE CAMPAIGNING

OEC, Sec. 80. Election campaign or partisan political activity outside campaign period.
- It shall be unlawful for any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period: Provided, That political parties may hold
political conventions or meetings to nominate their official candidates within thirty days
before the commencement of the campaign period and forty-five days for Presidential
and Vice-Presidential election.
Premature Campaigning:
Penera v. COMELEC, G.R. No. 181613, November 25, 2009
Penera filed her COC as Mayor of Sta. Monica, Surigao del Norte. One day before the start of
the campaign period, she conducted motorcade. Is she liable for premature campaigning?
NOTE: YOU CAN ONLY CAMPAIGN DURING THE CAMPAIGN PERIOD LAID DOWN BY THE COMELEC
THROUGH ITS RESOLUTION!!
Held: No. Section 79(a) of the Omnibus Election Code defines a "candidate" as “any person
aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The
second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369,
provides that "[a]ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy." The immediately succeeding proviso in the same
third paragraph states that "unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period.“
Summary:
1. Premature campaign is the act of campaigning by a candidate before the campaign
period;
2. However, before the campaign period no one can be considered a candidate yet;
3. Therefore, campaigning before the campaign period is not premature campaigning.
[What happened to Osmena?]
TAKE NOTE OBSERVATION!!! THE SC SEEMS TO FORGET THE PRINCIPLE LAID DOWN IN THE
OSMENA CASE WHERE IT WAS RULED THAT YOU CANNOT PASS A LAW INCREASING THE
CAMPAIGN PERIOD BECAUSE YOU ARE ACTUALLY INCREASING THE ELECTION PERIOD!! BUT
WHEN PENERA CASE COME OUT, THE SC SEEMS TO SAY THAT THERE IS NO LONGER A CAMPAIGN
PERIOD!! BECAUSE YOU CAN CAMPAIGN ANYTIME WITHOUT VIOLATING THE PROHIBITION OF
PREMATURE CAMPAIGNING!! IN THE END, THE LAW PROHIBITING THE PREMATURE CAMPAIGNING
WOULD BE RENDERED INUTILE AS IT INDIRECTLY INCREASES THE CAMPAIGN PERIOD WITH NO
MORE PARAMETERS.. IN THE FIRST GLANCE, THERE IS A LAW PROHIBITING IT, BUT IN THE END

IT IS AS IF THERE IS NON.. IMPOSSIBLE TO VIOLATE PREMATURE CAMPAIGNING!!

b. Prohibited Contributions
BP Blg. 881, Sec. 95-97
•

Sec. 95. Prohibited contributions. - No contribution for purposes of partisan
political activity shall be made directly or indirectly by any of the following:

•

(a) Public or private financial institutions: Provided, however, That nothing herein
shall prevent the making of any loan to a candidate or political party by any such
public or private financial institutions legally in the business of lending money,
and that the loan is made in accordance with laws and regulations and in the
ordinary course of business;

•

BANK AND LENDING ENTITIES CANNOT MAKE SUCH CONTRIBUTION TO
CANDIDATES

•

(b) Natural and juridical persons operating a public utility or in possession of or
exploiting any natural resources of the nation; PAL, PLDT, MINING COMPANIES
ARE NOT ALLOWED

•

(c) Natural and juridical persons who hold contracts or sub-contracts to supply the
government or any of its divisions, subdivisions or instrumentalities, with goods or
services or to perform construction or other works;

•

(d) Natural and juridical persons who have been granted franchises, incentives,
exemptions, allocations or similar privileges or concessions by the government or
any of its divisions, subdivisions or instrumentalities, including governmentowned or controlled corporations;

•

OWNER OF COCKPIT IS PROHIBITED!!

Prohibited:
1. financial institutions [banks and lending entities]
2. public utilities and those exploiting natural resources [mining firms]
3. contractors of public works and services
4. those granted franchises, incentives, exemptions, allocations or similar privileges or
concessions
(e) Natural and juridical persons who, within one year prior to the date of the election, have
been granted loans or other accommodations in excess of P100,000 by the government or any of
its divisions, subdivisions or instrumentalities including government-owned or controlled
corporations;
(f) Educational institutions which have received grants of public funds amounting to no less than
P100,000.00;
(g) Officials or employees in the Civil Service, or members of the Armed Forces of the
Philippines; and
(h) Foreigners and foreign corporations.
In the Philippines, are corporations, as such, prohibited from making political donations? NO!
ONLY THOSE PUBLIC UTILITIES, OR ENGAGE IN THE EXPLOITATION OF NATURAL
RESOURCES, OR GRANTED LOANS OR FRANCHISES BY THE GOVERNMENT….. READ
PRECEDING LISTS!!
In the United States---Citizens United v. Federal Election Commission
(2010)- laws prohibiting corporate and union political expenditures were unconstitutional. The US

Supreme Court held that corporation and unions share the first amendment right to free speech
that individuals do under the US Constitution.
- PACs may not make contributions to candidate campaigns or parties, but may engage in
unlimited political spending independently of the campaigns. They can raise funds from
corporations, unions and other groups, and from individuals, without legal limits.
8. Board of Canvassers
Canvass – the opening and examination of the election returns and compilation of the
election returns and compilation of a summarized statement showing the result of the election in
a particular area.
PLEASE DO NOT BE CONFUSED CANVASS WITH COUNTING AS THE LATTER IS THE
ACTUAL COUNTING OF VOTES CONDUCTED IN THE PRECINCT..
SO THE PROCEDURE IS THAT YOU HAVE ELECTION RETURNS FROM THE PRECINCTS
WHICH SHALL BE SUBJECT TO CANVASS IN THE MUNICIPALITY… SUCH CANVASS SHALL
BE SUBJECT TO CANVASS IN THE PROVINCIAL LEVEL..
Nature of the Canvass: PRINCIPLE GOVERNING CANVASS!!
1. Ministerial - add up the returns and declare a result. As long as they are not forged or
spurious and signed, the Board cannot reject. [mathematical and mechanical]
-voters were bribed? NO! YOU CANNOT CLAIM THAT THE VOTERS WERE BRIBED!!
BECAUSE IT DOES NOT APPEAR ON THE CANVASS!!
-voters were flying voters? NO! IT CANNOT BE CLAIMED… IT DOES NOT APPEAR THERE!!
-only evidence is certificate of canvass, it cannot go beyond
BOC EXERCISES ALSO QUASI-JUDICIAL FUNCTION BECAUSE IT CAN DETERMINE W/N
THE ELECTION RETURNS ARE GENUINE! BUT SUCH DETERMINATION HAS TO BE LIMITED
ON THE FACE OF THE RETURN!!
HOWEVER, YOU CAN RAISE BEFORE THE COC THAT THE RETURNS HAS TOO MANY
ERASURES OR ENTRIES THEREIN ARE VERY POOR OR IT HAS NO SIGNATURES OF THE
AUTHORIZED PERSON OR ONE OF THE RETURNS IS FAKE
2. quasi-judicial – it can determine if the returns are genuine
-erasures
-no signatures
-2 returns are submitted
3. An ad hoc body, under the control and supervision of the COMELEC
-as such, it can be ordered by the latter to stop the canvassing, annul a proclamation made
by it, or change the members. Courts cannot interfere with its functions.
AD HOC BODY- MEANS IT DISAPPEAR AS SOON AS THE CANVASS IS OVER!! IT EXIST ONLY THE
MOMENT THE CANVASS STARTS AND CEASES WHEN THE SAME OR THE FUNCTIONS ARE
FINISHED!!
Republic Act No. 9369, January 23, 2007 (NEW RULES OF CANVASSING)!!
"SEC. 25. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - The City
or Municipal board of canvassers shall canvass the votes for the president, vice-president, senators,
and parties, organization or coalitions participating under the party-list system by consolidating
the electronically transmitted results contained in the data storage devices used in the
printing of the election returns. Upon completion of the canvass, it shall print the certificate of
canvass of votes for president, vice-president, senators and members of the House of
Representatives and elective provincial officials and thereafter, proclaim the elected city or
municipal officials, as the case may be.

WITH THE PASSAGE OF THE ELECTRONIC VOTING LAW, CANVASS MAY NOW BE DEFINED
AS THE ACT OF consolidating the electronically transmitted results contained in the data
storage devices used in the printing of the election returns..
What will happen is that after the voting ends, part of the machine will be pressed and a
certificate of canvass shall be printed!! Such canvass shall be forwarded to the
municipality.. With that, you can no longer object anymore as the mere pressing the
machine will result to printing of certificate of canvass!! So there can be no more
objections as to such canvass.. Now, CANVASS IS CONSOLIDATING….
Board of Canvassers:
1) Congress – for President and Vice-President
-sits in joint public session
-may it be delegated to a Joint Committee? YES
Proclamation? -Pimentel v. Joint Committee of Congress, GR No. 163783, June 22, 2004
HERE THE CONGRESS CREATED A JOINT COMMITTEE AS IT USED TO BE FOR THE
PREVIOUS ELECTIONS..HELD: SC SUSTAINED THE VALIDITY OF SUCH COMMITTEE… IT
HAS BEEN STANDARD PRACTICE OF THE CONGRESS!!
RA No. 9369- (CANVASS DONE IN CONGRESS)
"SEC. 28. Congress as the National Board of Canvassers for President and Vice-President. - The
Senate and the House of Representatives in joint public session shall compose the national board
of canvassers for president and vice-president. The certificate of canvass for president and
vice-president duly certified by the board of canvassers of each province or city, shall be
electronically transmitted to the Congress, directed to the president of the Senate. Upon receipt of
the certificates of canvass, the President of the Senate shall, not later than thirty (30) days after
the day of the election, open all the certificates in the presence of the Senate and the House of
representatives in joint public session and the Congress upon determination of the authenticity and
the due execution thereof in the manner provided by law, canvass all the results for president
and vice-president and thereafter, proclaim the winning candidates.“
NOTE: THE CANVASSING IN PROVINCE OR CITIES ARE DONE ELECTRONICALLY BY
SIMPLY PRESSING THE MACHINE AND THERE A CERTIFICATE OF CANVASS IS PRINTED!!
HERE IN THE CONGRESS, THEY HAVE TO OPEN THE CERTIFICATES IN THE PRESENCE…..
THEY HAVE TO DO IT MANUALLY.. THE REASON IS THE SAME IS CONSTITUTIONALLY
MANDATED..
2. Commission on Elections – National Board of Canvassers [including absentee-voting returns]
a. Senators
b. Party-list Representatives
c. ARMM Officials
3. Provincial Board for:
a. Members of the House of Representatives
b. Provincial Officials
Members of the Board:
-Provincial Election Supervisor
-Provincial Prosecutor
-DECS Provincial Superintendent
4. District Board of Canvassers- APPLIES ONLY IN METRO MANILA!!
5. City Board of Canvassers- for city officials

Members:
a. City Election Registrar
b. City Prosecutor
c. Division Superintendent

6. Municipal Board of Canvassers– for Municipal Officials
a. Municipal Election Officer
b. Municipal Treasurer
c. District School Supervisor
7. Board of Election Tellers – Barangay officials
-3 public school teachers
Note also canvass and proclamation and Certificate of Canvass and Election Returns
Note: LOWER BOARD CANVASS EVERYTHING UNDER IT BUT CANNOT PROCLAIM!!
9. Remedies and Jurisdiction in Election Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
[already discuss in Topic 6 (b) (4)]
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto

a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of Elections
Omnibus Election Code:
•

Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been
held on the date fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or election results in a
failure to elect, and in any of such cases the failure or suspension of election
would affect the result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which resulted
in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect.

Requisites for Failure of Election:
1. There must occur any of the following:
a. election in any polling place has not been held on the date fixed, or
b. election or had been suspended before the hour fixed by law for the closing of
the voting, or

c. after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, the election results in a failure to elect
2. The failure or suspension of election would affect the result of the election-THIS
USUALLY HAPPEN THE FAILURE OCCURRED ONLY IN ONE PRECINCT!!. DEFINITELY THAT
CANNOT AFFECT THE RESULTS OF THE NATIONAL ELECTION! BUT THERE CAN BE A
FAILURE OF ELECTION IN ONE PRECINCT IN BARANGAY ELECTION SINCE VOTES
RESULTS THERE COULD BE VERY NARROW 1 OR 2 VOTES!!
- 3. The failure was due to force majeure, violence, terrorism, fraud, or other
analogous causes the
Questions:
1. Supposed that after a peaceful voting where a big majority voted, but almost all the PCOS
machines malfunctioned? NO! THERE CAN BE NO FAILURE OF ELECTION! WHILE THERE IS
PCOS MACHINE MALFUNCTIONING, THE VOTES ARE STILL THERE.. IT CAN BE MANUALLY
COUNTED AND TALLIED.. OTHERWISE STATED, THE VOTES CAN STILL BE ASCERTAINED!!
IT IS STILL IN THE BALLOTS!! REQUISITES NO. 1-C DID NOT HAPPEN!!
2. Supposed after a peaceful voting, only 3 people showed up to vote in Tagum City and 2 voted
for you and one for me, is there a failure of election? NO! THERE IS NO FAILURE OF
ELECTION!! YOU WON!! THERE IS NO REQUIREMENT THAT AT LEAST MAJORITY SHOULD
HAVE VOTED OR CAST THEIR VOTES!!.. ELECTION IS DETERMINED BY MAJORITY OF THE
VOTES CAST REGARDLESS OF HOW MANY PEOPLE WHO ACTUALLY VOTED!!
Questions:
1. Who can file a petition?
“Any interested party” APPARENTLY YOU HAVE TO BE CANDIDATE!!
2. Can the COMELEC declare a failure of election on its own initiative? NO! IT MUST BE AT THE
INSTANCE OF THE INTERESTED PARTY!!
3. In what unit can a failure of election be declared? THERE CAN BE A PRECINCT LEVEL
DECLARATION OF FAILURE OF ELECTION PROVIDED IT CAN AFFECT THE RESULT OF THE
ELECTION!!
c. Pre-Proclamation Controversy
Any question pertaining to or affecting the proceedings of the Board of Canvassers
which may be raised by any candidate or registered political party in relation to the
preparation, transmission, receipt custody and appearance of election returns.
In effect, it is any dispute prior to proclamation but pertaining to decisions of the
Board of Canvassers whether or not to include a return in the canvass or even its
composition.
-appreciation of ballots? IT DOES NOT INCLUDE APPRECIATION OF BALLOTS BECAUSE
SUCH IS DETERMINED IN THE PRECINCT LEVEL!! WHAT YOU DO IN CANVASS HAS ONLY
RELATION TO THE preparation, transmission, receipt custody and appearance of election
returns. YOU SHOULD HAVE RAISED IT IN THE PRECINCT LEVEL WHERE THE COUNTING
AND APPRECIATION OF BALLOTS ARE MADE… BUT YOU CAN STILL RAISE THE QUESTION
OF APPRECIATION OF BALLOTS IN AN ELECTION PROTEST!!
(THAT THE ER IS FAKE, FORGERY, OR TAMPERED-THESE ARE PRE-PROC ISSUES IN THE
OLD DAYS.. AFTER THAT THE BOC SET ASIDE THE SUBJECT ER AND THE BOC SHALL RULE
ON THE QUESTION.. IF RULED AGAINST YOU, APPEAL CAN BE HAD WHICH THE COMELEC
SHALL DECIDE)
-nuisance candidate? NOT A PRE PROCLAMATION CONTROVERSY BECAUSE IT DOES
NOT APPEAR ON THE FACE OF THE ER!!!
-qualification? NOT A PRE PROCLAMATION CONTROVERSY BECAUSE IT DOES NOT
APPEAR ON THE FACE OF THE ER!!!

Grounds: Sec. 243, OEC (GROUNDS FOR PRE-PROCLAMATION CONTROVERSY)
1. Illegal composition or proceedings of the Board
2. Defects in the ER, like incomplete, tampering, falsification and discrepancies with
other copies
3. Preparation of ER under duress
4 Canvassing of fraudulent returns
Jurisdiction: Resolution No. 8804 (THIS IS NOW THE NEW LAW)WHEN DO YOU RAISE PREPROCLAMATION CONTROVERSY?
A. Board or COMELEC (ON THE FOLLOWING GROUNDS)
1. Questions affecting composition (A MEMBER OF THE BOARD CANNOT BE RELATED TO
ANY CANDIDATE OR TO A LAWYER WITHIN 4TH CIVIL DEGREE)
2. Questions affecting proceedings
Appeals:
Appeal to the COMELEC within 48 hours after filing an oral and written notice of
appeal with the BOC; decision of the Commission becomes final after 5 days [en banc]
•

RA No. 9369, SEC.38. Section 15 of Republic Act No.7166 is hereby amended to read as
follows: (MORE RECENT LAW)

•

"SEC.15. Pre - proclamation Cases in Elections for President, Vice-President, Senator, and
Member of the House of Representatives. - For purpose of the elections for president, vice president, senator, and member of the House of Representatives, no pre-proclamation
cases shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates of canvass,
as the case may be, expect as provided for in Section 30 hereof. However, this does
not preclude the authority of the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct manifest errors in the
certificate of canvass or election before it.

•

PRE-PROCLAMATION CONTROVERSIES MAY BE RAISED IN LOCAL LEVEL…
APPARENTLY, MATTERS RELATING TO PREPARATION……CANNOT BE RAISED IN
SO FAR AS THE ABOVELISTED POSITIONS ARE CONCERNED!! OTHERWISE STATED,
YOU CANNOT DELAY THE ELECTIONS FOR THAT POSITIONS BY OBJECTING THE
RETURNS!!

•

"Question affecting the composition or proceedings of the board of canvassers
may be initiated in the board or directly with the Commission in accordance with
Section 19 hereof.

•

"Any objection on the election return before the city or municipal board of canvassers, or
the municipal certificates of canvass before the provincial board of canvassers or district
board of canvassers in Metro Manila Area, shall specifically notice in the minutes of their
respective proceeding.“

2 Issues that may be raised:
1. Questions affecting the composition and proceedings of the Board
2. Any objection on the election return
(THIS MUST BE RECORDED ONLY IN THE MINUTES… IT CANNOT DELAY THE CANVASS)!!
•

RA No. 9369, SEC. 30. Section 31 of Republic Act No. 8436 is hereby amended to read as
follows:

•

"SEC. 37. Rules and Regulations. - The Commission shall promulgate rules and regulation
for the implementation and enforcement of this Act.

•

"Notwithstanding the foregoing canvassing procedure, the Commission is authorized to
prescribe other manner or procedure for the canvassing and consolidation of votes as
technology evolves, subject to the provisions of Section 7 hereof on the minimum
capabilities of the AES and other pertinent laws."

COMELEC RESOLUTION No.8809, March 10, 2010•

Sec. 24. Issues that may be raised during the consolidation/canvass. — Issues affecting the
composition or proceedings of the Boards may be initiated by filing a verified petition before
the Board or directly with the Commission.

•

If the petition is filed directly with the Board, its decision may be appealed to the
Commission within three (3) days from issuance thereof. However, if commenced directly
with the Commission, the verified petition shall be filed immediately when the board begins
to act illegally, or at the time of the appointment of the member of the board whose
capacity to sit as such is objected to.

•

There shall be no pre-proclamation cases on issues/controversies relating to the
generation/printing, transmission, receipt and custody and appreciation of ERs or the COCs.

•

TAKE NOTE THE HEREUNDER!!!

•

APPARENTLY, IF YOU LOOK AT THE RESOLUTION, NO MORE PRE-PROCLAMATION
IS ALLOWED!! NO MORE OBJECTION ON THE ELECTION RETURNS!!

•

THE ONLY THING THAT CAN BE SUBJECT TO PRE-PROCLAMATION CONTROVERSY
IS THE Issues affecting the composition or proceedings of the Boards WHICH
APPLIES TO ALL POSITIONS AND ILLEGAL PROCEEDINGS OF THE BOARD!!

•
•

SUMMARY

2 Issues that may be raised:
1. Questions affecting the composition and proceedings of the Board
THERE IS NO MORE objection on the election return ALLOWED!!
(THIS MUST BE RECORDED ONLY IN THE MINUTES… IT CANNOT DELAY THE CANVASS)!!
Baterina v. COMELEC, 205 SCRA 4
After the Board denied his protest against the inclusion of certain ER’s, protestant filed a notice
of appeal with the Board. With the COMELEC, he filed a “Petition Contesting Legality of Procedings
of the BOC with Motion to Restrain Canvassing and Proclamation.” The Board proceeding with the
Canvass and proclaimed his opponent as Governor. Correct? HELD: SOMETHING IS WRONG
WITH THE PROCEDURE!! IF YOU RAISE QUESTIONS RELATING TO ER WITH THE BOARD,
YOU WAIT THE LATTER TO RESOLVE THE SAME.
COMELEC Resolution No. 8804, March 22, 2010
•

Rule 3: Section 1. Pre-Proclamation Controversy. - A pre-proclamation controversy refers
to the proceedings of the board of canvassers which may be raised by any candidates or by
any registered political party or coalition of political parties, or by any accredited and
participating party list group, before the board or directly with the Commission. It covers
only two issues:

•

a. Illegal composition of the Board of Canvassers (BOC);

•

b. Illegal proceedings of the BOC.

The basis of the canvass shall be electronically transmitted results.
•

Section 2. Jurisdiction of the Commission in Pre-Proclamation Controversies. - COMELEC
has exclusive jurisdiction in pre-proclamation controversies arising from national, regional pr
local elections.

•

A pre-proclamation controversy may be raised by any candidate or by any registered
political party, organization, or coalition of political parties before the BOC, or directly with
the Commission.

•

Issues affecting the composition or proceedings of the Boards may be initiated by filing a
verified petition before the Board or directly with the Commission.

Rule 4:
•

Section 1. Illegal Composition of the Board of Canvassers. - There is illegal
composition of the BOC when, among other similar circumstances, any of the members do
not possess legal qualifications and appointments. The information technology capable
person required to assist the BOC by Republic Act No. 9369 shall be included as among
those whose lack of qualifications may be questioned.

•

TO DATE, ONLY THE COMELEC CAN APPOINT THE MEMBERS OF THE BOC!!- THIS
CAN BE SUBJECT TO THE ISSUE OF APPOINTMENTS!!

•

Section 2. Illegal Proceedings of the Board of Canvassers. - There is illegal
proceedings of the BOC when the canvassing is a sham or mere ceremony, the results of
which are pre-determined and manipulated as when any of the following circumstances are
present:

•

a) precipitate canvassing; (MEANING, THE TIME FOR VOTING HAS NOT YET LAPSE BUT YOU
STARTED TO CANVASS)

•

b) terrorism;

•

c) lack of sufficient notice to the members of the BOC's; LAWYERS SHOULD BE NOTIFIED

•

d) Improper venue (CANVASSING IN MILITARY CAMP)!!

•

Section 3. Where and How Commenced. - Questions affecting the composition or
proceedings of the BOC may be initiated in the BOC or directly with the
Commission, with a verified petition, clearly stating the specific ground/s for the
illegality of the composition and/or proceedings of the board.

B. Board of Canvassers
- Questions affecting the preparation, transmission, receipt and custody and appreciation of
election returns and certificates of canvass. THIS CANNOT BE ANYMORE SUBJECT TO PRE-PROC
CONTROVERSY… REVIEW WITH OTHER SLIDES!!
Allarde v. COMELEC, ____ SCRA 633
Petitioner filed with the COMELEC A petition for suspension of canvassing and annulment of
results of the canvass on the ground of massive fraud, falsified returns, vote buying, statistical
improbability. Is it proper for a pre-proclamation controversy?
IN THE OLD DAYS, SOME ARE PROPER AND SOME ARE NOT!! FALSIFIED RETURNS
STATISTICAL IMPROBABILITY CAN BE SUBJECT TO PRE-PROCLAMATION CONTROVERSY
AS THESE CAN BE DETERMINE IN THE FACE OF THE ER!! HOWEVER, MASSIVE FRAUD AND
VOTE BUYING CANNOT BE SUBJECT TO THAT AS IT CANNOT BE SEEN IN THE ER!!
2011 Bar Question: 55. Xian and Yani ran for Congressman in the same district. During the
canvassing, Yani objected to several returns which he said were tampered with. The board of
canvassers did not entertain Yani's objections for lack of authority to do so. Yani questions the law
prohibiting the filing of pre-proclamation cases involving the election of Congressmen since the
Constitution grants COMELEC jurisdiction over all pre-proclamation cases, without distinction. Is
Yani correct?
A. Yes, the Constitution grants jurisdiction to COMELEC on all pre-proclamation cases, without
exception.
B. No, COMELEC’s jurisdiction over pre-proclamation cases pertains only to elections
for regional, provincial, and city officials. EVEN FOR THE POSITIONS OF MAYORS AND
OTHER LOCAL OFFICIALS, THERE IS NO MORE PRE PROCLAMATION CONTROVERSIES

BASED ON TRANSMISSIONS, RECEIPTS, CUSTODY,.. OF ELECTION RESULTS EXCEPT 1.
ILLEGAL COMPOSITION OF BOC AND 2. ILLEGAL PROCEEDINGS!
C. No, COMELEC’s jurisdiction over pre-proclamation cases does not include those that must be
brought directly to the courts.
D. Yes, any conflict between the law and the Constitution
Pre-proclamation not allowed:
1. President
2. Vice-President
3. Senator
4. House of Representatives
Exception, when allowed: Sec. 15, RA 7166
“…However, this does not preclude the authority of the appropriate canvassing body motu proprio
or upon written complaint of an interested person to correct manifest errors in the certificate of
canvass or election returns before it.”
1. manifest errors
2. composition and proceedings of the Board
What is a manifest error? Examples:
1. Double entry [Duremdes v. COMELEC, 178 SCRA 748
2. Mistake in copying of figures in the Statement of Votes or Certificates of Canvass
(THIS HAS BEEN MADE AS A TOOL IN OPERATION DAGDAG-BAWAS)
What is the concept of statistical improbability in pre-proclamation controversy? Dimaporo
v. COMELEC, 186 SCRA 772 (1990)
If the returns show unique uniformity of all votes, being equal to the number of
registered voters and all voting uniformly for the same candidates, and others getting
zero, it is statistically improvable and obviously manufactured and must be excluded
from the canvas. [res ipsa loquitor] [Has the concept still any use?]
EX. THE 200 VOTES CAST WAS GIVEN ONLY TO A 1 CANDIDATE LEAVING NO VOTE TO
THE OTHER!! ALSO WHEN THERE ARE 3OO WHO ACTUALLY VOTED WHEN THERE IS ONLY
200 NO. OF REGISTERED VOTERS
•

Pimentel III v. COMELEC, 548 SCRA 169 (2008)

•

Senatorial candidate Pimentel sought to restrain the Commission on Elections, then
sitting as the National Board of Canvassers, from continuing with the canvass of the returns
from the province of Maguindanao to determine the winner of the 12th seat for the Senate.
Before the Supreme Court, he alleged the illegality of the proceedings and questioned the
inclusion of falsified election returns. May the legality of the proceedings before the NBC be
challenged before proclamation?

•

.

Held: No. Section 15 of Republic Act No. 7166, as amended by Republic Act No. 9369, prohibits
any pre-proclamation case relating to the preparation, transmission, receipt, custody
and appreciation of election returns or certificates of canvass, was prohibited in
elections for President, Vice-President, Senators and Members of the House of
Representatives. Proceedings which may delay the proclamation of the winning candidate beyond
the date set for the beginning of his term of office must be avoided, considering that the effect of
said delay is, in the case of national offices for which there is no hold over, to leave the office
without any incumbent. It may well be true that public policy may occasionally permit the
occurrence of "grab the proclamation and prolong the protest" situations. For those who disagree

with that public policy, the appropriate recourse is not to ask this Court to abandon case law, which
merely interprets faithfully existing statutory norms, to engage in judicial legislation. The remedy
is the ask Congress to amend the law
NO PRE-PROCLAMATION TO THOSE POSITIONS!! EVEN PIMENTEL PREDICATED THE
PREPROC CONTROVERSY ON ILLEGAL PROCEEDINGS, SC DID NOT CONSIDER THE SAME
A valid pre-proc delays proclamation. For how long?
Sec. 17, RA 7166: All pre-proclamation case pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings of the boards of
canvassers concerned shall be deemed affirmed without prejudice to the fling of a regular election
protest by the aggrieved party. However, proceedings may continue when on the basis of evidence
thus far presented the Commission determines that the petition appears meritorious and
accordingly issues an order for the proceedings to continue or when appropriate order ahs been
issued by the Supreme Court in a petition for certiorari. “
GENERALLY, ALL PRE-PROCLAMATION CONTROVERSIES ARE DEEMED TERMINATED ON JUNE 3O
WITH THE EXCEPTION OF THE ABOVE!
Exceptions: It may proceed1. when the Commission determines that the petition appears meritorious/issues an
order for the proceedings to continue
2. when an appropriate order has been issued by the Supreme Court in a petition for
certiorari.
Can the COMELEC annul a proclamation?
Duremdes v. COMELEC, 178 SCRA 748:
YES! SINCE THE BOC IS UNDER THE CONTROL OF THE COMELEC, IT CAN ANNUL THE
PROCLAMAITON MADE BY THE FORMER!!
The BOC under the control of the COMELEC. If the proclamation is void, it is as if there is no
proclamation.
[Despite pending protests over some ER’s, the Board proclaimed a winner without COMELEC
authority.]
Resolution No. 8804: Rule 4
Section 6. Illegal Proceedings Discovered after Proclamation. - If the illegality of the
proceedings of the BOC is discovered after the official proclamation of the supposed results, a
verified petition to annul the proclamation may be filed before COMELEC within ten (10)
days after the day of proclamation. Upon receipt of the verified petition, the Clerk of the
Commission shall have the same docketed and forthwith issue summons to the parties to be
affected by the petition, with a directive for the latter to file their answer within five (5) days from
receipt. Thereafter the case shall be deemed submitted for resolution, which shall not be later
seven (7) days from receipt of the answer.
Benito v. COMELEC, 235 SCRA 437
While the canvassing was going on, Murad, who was running for Mayor of Balabagan was killed
in an ambush. He won but since he was dead, the Board proclaimed Benito, his opponent. The
COMELEC annulled the proclamation and ordered the Board to make a new COC
indicating that Murad won, but is dead. Correct?
YES!!! REFER TO DANGS RECORDINGS!!
Librados v. Casar, 234 SCRA 13:
To avoid alleged “bloodshed and revival of Muslim-Christian conflict” and MTC judge in Lanao del
Norte issued an order restraining the canvassing of ER from a precinct until the COMELEC or the
RTC could act on a petition filed. Valid?

NO! THE MTC HAS JURISDICTION TO ISSUE INJUNCITON!! ONLY THE COMELEC CAN
STOP THE PROCEEDINGS OF THE BOC- REFER THIS TO DANG’S RECORDINGS!!
Bar Question, 1995, No. 6:
Due to violence and terrorism attending the casting of votes in a municipality in Lanao del Sur
during the last May 8, 1995 elections, it became impossible to hold therein free, orderly and honest
elections. Several candidates for municipal positions withdrew from the race. One candidate for
Mayor petitioned the COMELEC for the postponement of the elections and the holding of special
elections after the causes of such postponement or failure of elections shall have ceased.
1. How many votes of the COMELEC commissioners may be cast to grant the petition? Explain.
IF THE COMELEC DECIDES A CASE IN DIVISION, THE VOTE OF 2 WILL BE BINDING!! IF
THE COMELEC EN BANC DECIDES, THE LEAST NO. OF COMMISSIONERS WHO CAN SIT IS
4.. HENCE THE VOTE OF 3-1 WILL DO!!
2. A person who was not a candidate at the time of the postponement decided to run for an
elective position and filed a certificate of candidacy prior to the special elections. May his certificate
of candidacy be accepted? Explain. NO! THE REASON IS THAT NO PERSON SHALL BE
ALLOWED TO FILE A COC BEYOND THE DEADLINE.. ONLY THOSE WHO WERE ABLE TO
FILE COC ON TIME FOR THE REGULAR ELECTION CAN FILE COC IN CASE THERE IS
SPECIAL ELECTION!!
3. Suppose he ran as a substitute for a candidate who previously withdrew his candidacy, will
your answer be the same? Explain. IT WILL BE DIFFERENT NOW!! THIS IS ONLY THE
INSTANCE WHERE A PERSON SUBSTITUTING ONE WHO WITHDREW HIS CANDIDACY CAN
FILE COC NOT LATER THAN MIDDAY OF THE ELECTION DAY!!
OEC, Sec. 5. Postponement of election. - When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and
other analogous causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of the
election or failure to elect.
WHO CAN FILE?
1. THE COMELEC MOTU PROPIO
2. ANY INTERESTED PARTY UPON VERIFIED PETITION!!
THIS CAN BE DISTINGUISHED FROM FAILURE OF ELECTION WHERE ONLY THE
INTERESTED PARTY UPON VERIFIED COMPLAINT CAN FILE!! THE COMELEC CANNOT
MAKE IT MOTU PROPRIO…
See, Cua v. COMELEC, 156 SCRA 582
Votes Required:
1. Division – 2/1
2. En Banc -3/2
d. Election Protests:
An election protest (ELECTION CONTEST) proposes to oust the winning candidate from
office. It is strictly a contest between the defeated and the winning candidates, based on the
grounds of electoral frauds and irregularities, to determine who between them has
actually obtained the majority of the legal votes cast and is entitled to hold the office. It
can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for
in the preceding elections. [Lokin v. COMELEC, June 22, 2010]

-it can be pursued only after one candidate has been proclaimed by the appropriate Board of
Canvassers.
TAKE NOTE THE DISTINCTION OF ELECTION PROTEST AND QUO WARRANTO.. BOTH ARE
REMEDIES THAT MAY BE AVAILED ONLY AFTER PROCLAMATION!!
Nature: (OF ELECTION PROTEST)
1. It is neither criminal, nor civil, nor administrative but a special statutory proceedings.
2. It does not involve only the personal interests of rival candidates, but also public interests, as
it involves the determination of the will of the people [no abated by death, [except Poe v. GMA]
(HENCE DEATH DOES NOT RESULT TO ABANDONMENT OF PROTEST WITH THE SINGLE
EXCEPTION IN THE CASE OF POE VS. GMA FOR THE REASON THAT THERE WAS NO VALID
SUBSTITUTION OF THE PERSON OF FPJ BY SUSAN ROCES.)
3. Rules regulating it are liberally construed so that technical and formal objections may be
disregarded to ascertain the will of the people [Kahilan v. Tabalba, 230 SCRA 208]
•

A. Jurisdiction (OVER ELECTION PROTEST)

B. Appellate Jurisdiction
1. MTC and RTC –to COMELEC (FROM MTC IS APPEALED DIRECTLY TO COMELEC.. SAME
WITH RTC DIRECT TO THE COMELEC)
RA 6679 which authorizes appeals from MTC to RTC is unconstitutional [Flores v, COMELEC,
184 SCRA 848]
1. MTC to RTC
Cases heard by the MTC involving Kabataang Barangay officials should be to the RTC.
[Mercado v. Board, 243 SCRA 423]
In all cases, appeals to the COMELEC is 5 days. MR is prohibited.
3. COMELEC
Decisions of these agencies may be reviewed by the Supreme Court on certiorari within 30
days as provided in the Constitution.
SET/HRET-60 DAYS BASED ON GRAVE ABUSE OF DISCRETION!!
Grounds for Election Protest:
1. Fraud
2. terrorism, (NOTE THAT YOU CANNOT RAISE TERRORISM IN A PRE-PROC AS THE
BOC HAS POWER TO DETERMINE THE SAME BUT IF YOU LOST, YOU CAN FILE AN
ELECTION PROTEST DEMANDING RECOUNT OR HOLDING OF NEW ELECTIONS!!)
3. Illegal acts committed before, during or after the casting and
4. counting of votes
In an election protest:
1. Can you raise issue to authenticity of ballots? YES! YOU CAN RAISE IT .. YOU CAN EVEN
DEMAND FOR RECOUNT!! IF IT TURNS OUT THAT THE BALLOTS THERE ARE FAKE, YOU
CAN EVEN DEMAND TO EXCLUDE THEM FROM COUNTING
2. That unregistered voters were allowed to vote? YES IT CAN BE DETERMINED!! BECAUSE
ONLY REGISTERD VOTERS CAN VOTE!! FOR INSTANCE, THIS CAN BE DEMONSTRATED AS
WHEN THERE ARE ONLY 200 REGISTERED VOTERS WHEN THERE ARE ACTUALLY 499
VOTERS!!! HENCE, THERE ARE REALLY UNREGISTERED VOTERS THERE, YOU CAN ANNUL
THE RESULT THERE!!!
3. That disqualified people were allowed to register? THIS IS NOT ALLOWED THIS TIME..

NOTE THAT THE LIST OF VOTERS IS CONCLUSIVE!! YOU SHOULD HAVE FILED PETITION
FOR INCLUSION AND EXCLUSION PROCEEDINGS!! THIS CANNOT BE A GROUND FOR
ELECTION PROTEST!! OR ANNULMENT OF LIST OF VOTERS!!
Can there be execution pending appeal? YES!! UNDER Good reasons, under Rule 39 of the Rules
of Court, not COMELEC Rules. Good reasons:
1. Term is about to end;
2. Public interest and
3. Filing of bond [required]
SUPPOSE I LOST THE ELECTION, AND I FILED AN ELECTION PROTEST BEFORE THE
COMELEC WHERE IT WAS RULED THAT I WON.. OBVIOUSLY YOU WILL APPEAL… THIS
TIME I CAN FILE A PETITION FOR EXECUTION PENDING APPEAL SO THAT I CAN HOLD
THE POSITION BEING DECLARED THE WINNER IN THE PROTEST!!

When to file? During period to file an appeal only. Relampagos v. Cumba, 243 SCRA 690.. IF
THE COMELEC RENDERS THAT DECISION, YOU CAN ONLY FILE THE PETITION THERE!!
YOU FILE IT BEFORE THE TRIBUNAL WHICH RENDERED THE DECISION IN FAVOR OF
YOU!!! YOU CANNOT FILE IT AFTER THE LAPSE OF PERIOD TO APPEAL!!
PET Rules: Rule 14.
•

Election protest.

•

- The registered candidate for President or Vice-President of the Philippines who
received the second or third highest number of votes may contest the election of the
President or Vice-President, as the case may be, by filing a verified election protest with the
Clerk of the Presidential Electoral Tribunal within thirty days after the proclamation of the
winner. (R14a)

•

THIS IS WHY SUSAN ROCES WAS NOT ALLOWED TO SUBSTITUTE FPJ IN AN
ELECTION PROTEST!!! THE PROPER PARTY SHOULD BE THE REGISTERED
CANDIDATE WHO RECEIVED THE SECOND OR THIRD HIGHEST NUMBER OF VOTES!!

•

PET Rules: Rule 16.

•

Quo warranto.

•

- A verified petition for quo warranto contesting the election of the President or VicePresident on the ground of ineligibility or disloyalty to the Republic of the Philippines
may be filed by any registered voter who has voted in the election concerned within ten
days after the proclamation of the winner. (R15a)

•

NOTE THAT ELECTION PROTEST CAN BE FILED ONLY BY A CANDIDATE WHO
RECEIVED THE SECOND OR THIRD HIGHEST NUMBER OF VOTES WHILE QUO
WARRANTO CAN BE FILED BY ANY REGISTERED VOTER PROVIDED HE HAS VOTED
IN THE ELECTION CONCERNED!!

•

ANY VOTER IS ALLOWED TO FILE QW BECAUSE THIS INVOLVES THE
QUALIFICATION OR ELIGIBILITY OF THE ELECTED OFFICIAL.. SO ANY
REGISTERED VOTER HAS INTEREST!! AS DISTINGUISHED IN ELECTION PROTEST!!

SET Revised Rules
•

RULE 14.Election Protest. — A verified petition contesting the election of any
Member of the Senate shall be filed by any candidate who has duly filed a
certificate of candidacy and been voted for the office of Senator within fifteen (15)
days after the proclamation of the protestee. No joint election protest shall be
admitted, but the Tribunal, for good and sufficient reasons, may consolidate
individual protests and hear and decide them jointly. chanrobles virtual law library

•

RULE 15.Quo Warranto. — A verified petition for quo warranto contesting the

election of a Member of the Senate on the ground of ineligibility or disloyalty to
the Republic of the Philippines shall be filed by any voter within ten (10) days
after the proclamation of the respondent.

Quo Warrantoquestions of disloyalty to the
State, or of ineligibility of the winning candidate.
A special civil action for quo warranto refers to

The objective of the action is to unseat the ineligible person from the office, but not
to install the petitioner in his place.

***Any voter may initiate the action, which is, strictly speaking, not
a contest where the parties strive for supremacy. [Lokin v. COMELEC, June 22,
2010] [3 other situations were quo warranto is proper]
UNDER THE RULES ON SPECIAL PROCEEDINGS,

QUO WARRANTO MAY BE FILED IN THE FOLLOWING:
1. to unseat the ineligible person from the office
2. TO QUESTION THE EXISTENCE OF A DE FACTO LGU OR PUBLIC CORPORATION
3. TO QUESTION A DEFECTIVELY FORMED CORPORATION
4. TO CHALLENGE A PUBLIC OFFICAL WHO IS WITHOUT PROPER TITLE, ELECTIVE OR
APPOINTIVE!

NOTE:
ALSO THAT IN

PUBLIC APPOINTIVE OFFICE,

QUO WARRANTO MAY BE FILED

ONLY A PERSON CLAIMING BETTER

RIGHT TO THE POSITION
WHILE IN ELECTIVE OFFICE,
IT MAY BE FILED BY ANY REGISTERED VOTER

Quo Warranto vs. Election Protest DISTINCTION!!
1. As to ground, election protest pertains to disputes connected with the conduct of
election, counting of votes, and canvass of votes,
while QW pertains to the eligibility of the winning candidate sought to be disqualified; (IF
THERE IS NO PROCLAMATION, THE REMEDY IS DISQUALIFICATION)!
2. As to who can initiate, an election protest can be filed only by a losing candidate,
but a quo warranto may be filed by a candidate or a voter;
3. As to effect, an election protest can result to the proclamation of the protestant,
but a quo warrantO cannot result to proclamation of the person who filed the case.
THESE ARE GROUNDS FOR ELECTION PROTEST!!
-recount/canvass-

-vote-buying
-illegal

election propaganda

Questions:
1. Can you file both? Luison v. Garcia, May 20, 1957 YES! EP AND QW CAN BE FILED
SIMULTANEOUSLY BECAUSE ASIDE FROM THE FACT THAT YOU CHEATED DURING THE
ELECTIONS, YOU ARE ALSO DISQUALIFIED TO HOLD SUCH OFFICE!!
2. Can you join them? De la Rosa v. Yonson, 52 Phils. 446 NO! YOU HAVE TO FILE THEM
SEPARATELY!!
3. What happens if you join them? Pascal v. Ramos, 81 Phil 30. YOU WILL BE ORDERED TO
SPLIT THE TWO DIFFERENT CAUSES OF ACTION!!
Periods:
The period to file a petition (10 DAYS) for quo warranto or
election protest is suspended by:
1. a valid pre-proclamation controversy
2. petition to suspend or annul proclamation.
Period: Frivaldo v. COMELEC,
The period (OF 10 DAYS FROM PROCLAMATION) may not be observed where the ground is:
1. arose after proclamation; or (THIS HAPPENS WHEN A SENATOR IN THE MIDDLE OF
HIS TERM ACQUIRED FOREIGN CITIZENSHIP.. HERE THE PERIOD OBVIOUSLY DO NOT
APPLY AND NOTE THAT THE REQUIREMENT OF CITIZENSHIP IS A CONTINUING
REQUIREMENT)
2. evidence is discovered late.(THIS HAPPENS WHEN YOU HAVE BEEN ALIEN ALL ALONG
BUT IT WAS ONLY DISCOVERED AFTER PROCLAMATION OR IN THE MIDDLE OF YOUR
TERM)… THE REQUIREMENT OF CITIZENSHIP IS A CONTINUING REQUIREMENT
Limkaichong v. COMELEC, 583 SCRA 1 (2009) – (PERIOD OF 10 DAYS Does not apply to
citizenship (AS WELL AS RESIDENCY AS THESE ARE CONTINUING REQUIREMENTS).
Loong v. COMELEC, 216 SCRA 768 (1992) – DOES NOT APPLY TO OR not to disloyalty to the
Republic ..HOWEVER, [THE PERIOD APPLIES TO age]-AFTER THE LAPSE OF 10 DAYS, YOU
CANNOT FILE IT ANYMORE!!
Effect of proclamation on petition for disqualification:
1. All pending appeals with the Supreme Court/COMELEC are dismissed if they involve members
of Congress or the President and Vice-President; THE PRINCIPLE HERE IS THAT SET, HRET OR
THE PET IS THE SOLE JUDGE ON MATTERS RELATING TO THE QUALIFICATIONS OF
MEMBERS OF CONGRESS OR THE PRESIDENT OR VP AFTER HAVING BEEN PROCLAIMED
AS THE CASE MAY BE!! SUCH CASES SHALL HAVE TO BE DISMISSED AND A NEW
PETITION SHALL BE FILED WITH THE PROPER TRIBUNAL
2. Those before the COMELEC and the Supreme Court involving local officials?
IN THE ABSENCE OF THE LAW PROVIDING A SOLE JUDGE ON SUCH MATTERS RELATING
TO DISQUALIFICATION OF A LOCAL ELECTIVE OFFICIAL, IT IS BELIEVED THAT THE
PENDING DISQUALIFICATION CASE BEFORE THE COMELEC SHALL CONTINUE!!
Supreme Court Rules on Election Protests/Quo Warranto before MTC and RTC
SEC. 10. COMELEC judgment in disqualification case. - A decision of the Commission on
Elections, either in division or en banc, in a disqualification case shall not bar the filing of a
petition for quo warranto based on the same ground, except when the Supreme Court
has affirmed the COMELEC decision.

MEANING THE DECISION OF THE COMELEC DOES NOT CONSTITUTE RES JUDICATA!! NOTE THE
EXCEPTION!!
•

4. ______________________
Despite lingering questions about his Filipino citizenship
and his one-year residence in the district, Gabriel filed his certificate of candidacy for
congressman before the deadline set by law. His opponent, Vito, filed a case to disqualify
him before the Commission on Election. The COMELEC decided in Gabriel’s favor, which
decision became final. During the election, Gabriel won. Vito filed a case before the House
of Representatives Electoral Tribunal raising the same issues of citizenship and residency.
The HRET should: [2 points]
a. Dismiss the case for lack of jurisdiction
b. Dismiss the case for forum shopping
c. Refer the case to the Supreme Court
d. Assume jurisdiction because it is the sole judge of such
contests

Fernandez v. HRET, 608 SCRA 733 (2009)
Effect of Disqualification: After Election
•

Gonzales v. COMELEC, 644 SCRA 761 (2011) –Ineligibility of the candidate receiving
the highest number of votes does not entitle the one getting the second highest
number of votes. Exception is allowed if the two requisites are present:

1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the realm of
notoriety, but would nonetheless cast their votes in favor of the ineligible candidate.
NOTORIOUS OR WIDELY KNOWN TO BE DISUALIFIED AND YET ELECTORATES
STILL VOTED FOR HIM!!
FOR EXAMPLE, WE KNOW PACQUIAO IS ONLY 32 YEARS OLD BUT HE RAN FOR VICE
PRESIDENT AND WON… THIS TIME, IF HE IS DECLARED DISQUALIFIED, THE ONE
RECEIVING THE HIGHEST NUMBER OF VOTES IS ENTITLED TO SUCH POSITION!!
Can one obtain damages in an election protest or quo warranto?
1. Moral damages? [metal anguish, sleepless nights, besmirched reputation] NEVER!!!
2. Actual damages? –expenses, attorneys fees ”in accordance with law” YES HE IS ALLOWED
WITH THIS IN ACCORDANCE WITH THE CIVIL CODE!
Malaluan v. COMELEC, 254 SCRA 400 (1996)
Bar Question, 2006: No. 5
Differentiate an election protest from an action for quo warranto. 2.5% REFER TO THE
DISTINCTION LAID DOWN BY THE AUTHORITY!!
Bar Question, 2001: No. XVII
Under the Omnibus Election Code, briefly differentiate an election protest from a quo warranto
case, as to who can file the case, and the respective grounds therefor.
1. As to ground, election protest pertains to disputes connected with the conduct of
election, counting of votes, and canvass of votes, while QW pertains to the eligibility of the
winning candidate sought to be disqualified; (IF THERE IS NO PROCLAMATION, THE
REMEDY IS DISQUALIFICATION)!
2. As to who can initiate, an election protest can be filed only by a losing candidate, but a
quo warranto may be filed by a candidate or a voter;
3. As to effect, an election protest can result to the proclamation of the protestant, but a

quo warrantO cannot result to proclamation of the person who filed the case.
Bar Question, 1997, No. 17:
State how (a) pre-proclamation controversies, on the one hand, and (b) election protests, on
the other hand, are initiated, heard and finally resolved.
1. THE FORMER IS FILED BEFORE PROCLAMATION WHILE THE LATTER MUST BE
FILED AFTER PROCLAMATION!!
2. YOU FILE A PROCLAMATION BEFORE THE BOC OR THE COMELEC AS SOON AS THE
GROUND BECOMES APPARENT WHILE THE LATTER MUST BE FILED BEFORE THE
MTC, RTC COMELEC AS THE CASE MAY BE
•
•

Bar Question, 2005, IX -

•

(2.) Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and
1998. He fully served his first two terms, and during his third term, the municipality was
converted into the component City of Tuba. The said charter provided for a hold-over and so
without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In the 2001
elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed,
though, that he had already served for three consecutive terms as elected Mayor when Tuba
was still a municipality. He also stated in his certificate of candidacy that he is
running for the position of Mayor for the first time now that Tuba is a city. Reyes,
an adversary, ran against Manuel and petitioned that he be disqualified because he had
already served for three consecutive terms as Mayor. The petition was not timely acted
upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after Manuel took his oath and
assumed office that the COMELEC ruled that he was disqualified for having ran and served
for three consecutive terms. (NOTE THAT THE DISQUALIFICATION CONTINUES… THE
PROCLAMATION OF MANUEL DID NOT RENDER THE PETITION MOOT AND
ACADEMIC)

•

(c) Assuming that Manuel is not an eligible candidate, rebut Reyes’ claim that he should be
proclaimed as winner having received the next higher number of votes. (5%)HELD: IT
HAS BEEN SETTLED THAT Ineligibility of the candidate receiving the highest
number of votes does not entitle the one getting the second highest number of
votes. Exception is allowed if the two requisites are present:

1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the
realm of notoriety, but would nonetheless cast their votes in favor of the ineligible
candidate
IN THE CASE AT BAR, THE DISQUALIFICATION OF MANUEL IS NOT REALLY THAT
NOTORIOUS AS TO BE CONSIDERED AN EXCEPTION TO THE GENERAL RULE!
Bar Question, 1996, No. 13:
A and B were the only candidates for mayor of Bagaa, Bulacan, in the 1995 local elections. A
obtained 10,000 votes as against 3,000 votes of B. In the same elections, X got the highest
number of votes among the candidates for SB of the same town. A died on the day before his
proclamation.
(1) Who should the Board of Canvassers proclaim as elected mayor, A, B or X. THE BOC
SHOULD PROCLAIM A AS MAYOR… THE RULE IS THAT IF THE RESULTS HAS BEEN
ALREADY DETERMINED AND THE WINNER DIES BEFORE HE COULD BE PROCLAIMED…
THE BOC MUST PROCLAIM THE WINNER OR THAT DEAD PERSON AND INDICATE THAT HE
DIED
(2) Who is entitled to discharge the office of the mayor, B or X? IT WILL BE NOW THE
ELECTED VICE MAYOR WHO IS ENTITLED TO DISCHARGE THE OFFICE OF THE MAYOR BY
VIRTUE OF SUCCESSION!!

Bar Question, 2003, No. 8
In the municipal mayoralty elections in 1980, the candidate who obtained the highest number
of votes was subsequently declared to be disqualified as a candidate who obtained the second
highest number of votes to ask and to be proclaimed winner of the elective office? Reasons.
•

IT HAS BEEN SETTLED THAT Ineligibility of the candidate receiving the highest
number of votes does not entitle the one getting the second highest number of
votes. Exception is allowed if the two requisites are present:

1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the
realm of notoriety, but would nonetheless cast their votes in favor of the ineligible
candidate
•

Bar Question, 2008: - X - The 1st Legislative District of South Cotabato is composed of
General Santos and three municipalities including Polomolok. During the canvassing
proceedings before the District Board of Canvassers in connection with the 2007
congressional election, candidate MP objected to the certificate pf canvass for
Polomolok on the ground that it was obviously manufactured, submitting as
evidence the affidavit of a mayoralty candidate of Polomolok. The certificate of
canvass for General Santos was likewise objected to by MP on the basis of the confirmed
report of the local NAMFREL that 10 election returns from non-existent precincts were
included in the certificate. MP moved that the certificate of canvass for General Santos be
corrected to exclude the the result from the non-existent precincts. The District Board of
Canvassers denied both objections and ruled to include the certificate of canvass. May MP
appeal the rulings to the COMELEC? Explain. (6%)

•

NO! MP CANNOT APPEAL THE RULINGS: PRE-PROCLAMATION CONTROVERSIES
RELATING TO ELECTIONS RETURNS IS NOT ALLOWED IN THE POSITIONS OF
CONGRESSMAN, SENATOR, VP AND PRESIDENT..

Bar Question, 2011
•

37. Pre-proclamation controversies shall be heard

A. summarily without need of trial.
THE PROCEEDINGS IS SUMMARY IN NATURE
B. through trial by commissioner.
C. ex parte.
D. through speedy arbitration.
Bar Question, 2001, No. 16
In an election protest involving the position of Governor of the Province of Laguna, between A,
the protestee, and B the protestant, the First Division of the COMELEC rendered a decision
upholding B’s protest.
Can A file a petition for certiorari with the Supreme Court under Rule 65 of the Rules of Court
from a decision of the COMELEC First Division? If yes, why? If not, what procedural step must he
undertake first?
NO! ALL DECISIONS OF THE COMELEC DIVISION IN ITS QUASI-JUDICIAL FUNCTION
MUST BE APPEALED THROUGH MOTION FOR RECONSIDERATION BEFORE THE COMELEC
EN BANC!! COMELEC EN BANC HAS APPELLATE JURISDICTION TO THE DECISION OF
COMELEC DIVISION IN THE EXERCISE OF ITS QUASI-JUDICIAL FUNCTIONS! YOU
CANNOT GO TO SC WITHOUT FILING MR WITH COMELEC ENBANC
Bar Question, 1996, No. 14:

(a) As counsel for a protestant, where will you file an election protest involving a contested
elective position in:
1. the barangay? MTC
2. the municipality RTC
3. the province COMELEC
4. the city COMELEC (NOTE THERE IS NO MORE DISTINCTION W/N IT IS A
INDEPENDENT COMPONENT CITY OR HIGHLY URBANIZED CITY)
5. the House of Representatives HRET
(b) Give 3 issues that can properly be raised and brought in a pre-proclamation contest.
1. ILLEGAL COMPOSITIONS OF THE BOARD AND
2. ILLEGAL PROCEEDINGS OF THE BOARD!!
10. Prosecution of Election Offenses
NOTE AS TO WHEN CAN THEY BE COMMITTED HAS NOT BEEN UNIFORMED!
AS WHEN TRANSFER OF OFFICER, CARRYING OF FIREARMS APPLIES TO ELECTION PERIOD!!

When offenses may be committed?
1. election period
-transfer of officers
-carrying firearms without a permit
-suspension of officials
2. campaign period
-appointment/promotion of employees
-hiring of special policemen
-prohibition regarding release of funds
3. Election day
-carrying of deadly weapon inside polling place
-drinking liquor
Penalties
-one year to six years (THE PENALTY IS ALWAYS CORECTIONAL), except election sabotage RA 9369: Example of Election Sabotage
"(2) Regardless of the elective office involved, when the tampering, increase and/or decrease
of votes committed or the refusal to credit the correct votes or to deduct tampered votes
perpetrated , is a accomplished in a single election document or in the transposition of
the figure / results from one election document to another and involved in the said
tampering increase and/or decrease or refusal to credit correct votes or deduct
tampered votes exceed five thousand (5,000) votes, and that the same adversely affects
the true results of the election ;
THE PENALTY USED TO BE DEATH
RIGHT NOW, THE PENALTY IS ONLY RECLUSION PERPETUA… THAT IS WHY GMA WAS ABLE TO
POST BAIL IN HER ELECTION SABOTAGE CASE!!

Who can Prosecute? (THIS IS THE OLD LAW)
COMELEC exclusive authority to conduct preliminary investigation and prosecute, but there is a
continuing delegation of authority to DOJ Prosectutors. [under the control and supervision]
Office of Special Prosecutor? In relation to office? People b. De Jesus, 120 SCRA 762 (1983)
CAN THE OFFICE OF THE PROSECUTOR CHARGE YOU OF AN ELECTION OFFENSE IN RELATION TO
YOUR OFFICE AND YOU HAVE SALARY GRADE OF 27 OR ABOVE? HELD NO! FOR ELECTION
OFFENSES, IT HAS TO BE THE COMELEC WHO MUST PROSECUTE OR THE DOJ
PROSECUTORS DULY DELEGATED WITH AUTHORITY BY THE FORMER!!
•

But see, RA No. 9369, SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follow: (NEW LAW)!!

•

"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers,
have the power, concurrent with the other prosecuting arms of the government, to
conduct preliminary investigation of all election offenses punishable under this Code, and
prosecute the same"

THE CHANGE IS THAT THE POWER TO PROSECUTE IS NO LONGER EXCLUSIVE AUTHORITY
OF THE COMELEC BUT CONCURRENT WITH THE OTHER PROSECUTING ARMS OF THE
GOVERNMENT
1. TO CONDUCT PRELIMINARY INVESTIGATION OF ALL ELECTION OFFENSES UNDER
BP 881 AND
2. PROSECUTE THE SAME
Which court has jurisdiction? What if salary grade is 27 or above? People v. Delgado, 189 SCRA
716 (1990) GMA?
IT IS NOT SANDIGANBAYAN!! IN ALL CASES INVOLVING ELECTION OFFENSES FALL
WITHIN THE EXCLUSIVE JURISDICTION OF THE RTC BY VIRTUE OF THE DIRECT
PROVISIONS OF THE OMNIBUS ELECTION CODE!! THAT IS WHY GMA IN RELATION TO
HER ELECTION SABOTAGE CASE IS FILED AND PENDING BEFORE THE RTC!! EVEN IF THE
IMPOSABLE PENALTY OF ELECTION OFFENSES RANGES ONLY FROM 1 YEAR TO 6 YEARS,
IT IS WITHIN THE EXCLUSIVE JURISDICTION OF THE RTC!!
Can one apply for probation? ONCE CONVICTED, YOU ARE NOT ALLOWED PROBATION!!
Can one secure executive clemency? YOU MAY BE GRANTED WITH PARDON PROVIDED THE
COMELEC RECOMMENDS THE SAME TO THE PRESIDENT! NOTE COMELEC CANNOT
RECOMMEND PROBATION IN ALL ELECTION CASES!!
What is the period of prescription? OEC, Sec. 267- NOTE VIOLATION OF ORDINANCES WILL
PRESCRIBE IN 3 MONTHS… AS TO ELECTION OFFENSES, IT WILL PRESCRIBE WITHIN 5 YEARS!!
•

51. A candidate who commits vote buying on Election Day itself shall be prosecuted by the

A. COMELEC.
B. Secretary of Justice.
C. police and other law enforcement agencies.
D. City or Provincial Prosecutor.
NOTE THAT THE POWER TO PROSECUTE ELECTION OFFENSE OF THE COMELEC IS NOW
CONCURRENT WITH THE PROSECUTING ARMS OF THE GOVERNMENT!!
Thank you again JUDGE GIL DE LA BANDA!!!!!