Administrative Law NOTES Political Law-That branch of public law which deals with the organizations and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory

Scope and Divisions of Political Law1. Constitutional Law2. Adminitrative Law3. Law on Municipal Competition4. Law of Public Officers5. Election Laws

Definition of administrative law -The branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to individual remedies for the violations of his rights. Difference between Admin Law and Constitutional Law

CONSTITUTIONAL LAWADMINISTRATIVE LAW

Prescribes the general plan or framework of governmental organizationGives and carries out the general plan or framework of governmental organization in its minutest details

Treats of the rights of the individual Treats the rights of the individual from the standpoint of the powers of the government

Stresses upon the rightsEmphasizes the powers of government and duties of the citizens

Prescribes limitations on the powers of the government to protect the rights of individuals against abuse in their exerciseIndicates to individuals remedies for the violation of rights

Supplements constitutional law

Complements constitutional law insofar as it determines the rules relative to the activity of the administrative authorities

Law on Public Administration-it has to do with the practical management and direction of the various organs of the State and the execution of state policies by the executive and administrative officers entrusted with such functions. Purpose Administrative agencies defined-Term used generally to describe an agency exercising some significant combination of executive, legislative, and judicial powers-It is a government body charged with administering and implementing particular legislation

Difference between Admin Body and CourtADMINISTRATIVE BODIES/AGENCIESCOURT

Generally a large organization staffed by men who are deemed to become something of experts in their particular fieldsIs a tribunal which is presided by one or more jurist learned in law

Performs a variety of functionsHas only one function- judicial

Uses a varying degree of discretion in arriving at decisions More or less governed by fixed rules in arriving at its decisions

often proceeds without being bound by technical rulesBound by rules that no final adjudication is to be made until after due notice to the parties with opportunity for a full and fair hearing

Basic constitutional concepts

Doctrine of Separation of Powers-The Philippines is a republic with a presidential form of government wherein power is equally divided among its three branches: executive, legislative, and judicial.One basic corollary in a presidential system of government is the principle of separation of powers wherein legislation belongs to Congress, execution to the Executive, and settlement of legal controversies to the Judiciary.Case: Eastern Shipping Lines vs POEA 166 SCRA 533

Facts: Davao pilot association filed a petition against the Eastern shipping lines for sum of money and attorneys fee claiming that herein respondent rendered pilotage service to petitioner, the lower court ruled in favor of the respondent; herein petition for certiorari assailing the decision of the CA.

The factual antecedents of the controversy are simple. Petitioner insists on paying pilotage fees prescribed under PPA circulars. Because EO 1088 sets a higher rate, petitioner now assails its constitutionality.

Issue: won EO 1088 is unconstitutional

Ruling: it is axiomatic that administrative agency like Philippine port authority has no discretion whether or not to implement the law. Its duty is to enforce the law, thus, there is a conflict between PPA circular and a law like EO 1088, the latter prevails. Petition is dismissed.

Doctrine of Non- Delegation- Art VI sec. 1-The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

Permissive delegation of Legislative Power:

P- people (Initiative and referendum)E- Emergency power of the PresidentT- Tariff (Art. VI sec 28)A- Administrative PowerL- Local Government

1. Delegation to the peopleArt VI Sec. 32-The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. Art VI sec. 1-The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. 2. Emergency Powers to the PresidentArt VI Sec 23(2)- In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.3. Tariff Powers to the PresidentArt VI Sec 28 (2)- The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.4. Delegation to Administrative Bodies-The power of subordinate legislation5. Delegation to Local Government UnitsPeople v Vera- Such legislation (by local governments) is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in case of necessity. - this recognizes the fact that the local legislatures are more knowledgeable than the national law making body on matters of purely local concern, and are in a better position to enact appropriate legislative measures thereon.

Test to determine Validity of Delegation (applies to the power to promulgate administrative regulations )1. COMPLETENESS test. This means that the law must be complete in all its terms and conditions when it leaves the legislature so that when it reaches the delegate, it will have nothing to do but to enforce it.2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of the delegates authority, announce the legislative policy and specify the conditions under which it is to be implemented.

Powers of Administrative Agencies1. Quasi-legislative power / Power of subordinate legislation2. Quasi-judicial power/Power of adjudication3. Determinative powers (Note: Senator Neptali Gonzales calls themincidental powers) Definition of Quasi-legislative power-It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy. Distinctions between Quasi-legislative power and legislative power1. LEGISLATIVE power involves the discretion to determinewhatthe law shall be. QUASI-legislative power only involves the discretion to determinehowthe law shall be enforced.2. LEGISLATIVE power CANNOT be delegated. QUASI-legislative power CAN be delegated.

Definition of Quasi-Judicial PowerIt is the power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. The exercise of this power is only incidental to the main function of administrative authorities, which is the enforcement of the law.

Determinative Powers

1. ENABLING powers Those that PERMIT the doing of an act which the law undertakes to regulate and would be unlawful without government approval.Ex. Issuance of licenses to engage in a particular business.

2.DIRECTING powersThose that involve the corrective powers of public utility commissions, powers of assessment under the revenue laws, reparations under public utility laws, and awards under workmens compensation laws, and powers of abstract determination such as definition-valuation, classification and fact finding

3. DISPENSING powersExemplified by the authority to exempt from or relax a general prohibition, or authority to relieve from an affirmative duty. Its difference from licensing power is that dispensing power sanctions a deviation from a standard.

4. SUMMARY powersThose that apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant to authorize such action. Usually without notice and hearing.Ex. Abatement of nuisance, summary destraint, levy of property of delinquent tax payers

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

Ex. Power to appoint a receiver, power to issue injunctionsLimitations of the Rule Making Power of Admin Bodies

Cases:1. Holy Spirit Homeowners Association vs. Secretary Defensor, G.R. No. 163980, 3 August 2006Quasi- legislative power is the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of non delegability and separation of powers.

2. Philippine Association of Service Exporters, Inc. vs. Torres, 212 SCRA 298Rules and regulations issued by administrative authorities pursuant to the powers delegated to them have the force and effect of law; they are binding on all persons subject to them, and the courts will take judicial notice of them.Both letters of instruction and executive orders are presidential issuances; one may repeal or otherwise alter, modify or amend the other, depending on which comes later.

3. Land Bank v CA, 249 SCRA 149The Court nullified DAR Adm. Circular No 9, which allowed the opening of a trust account in behalf of the landowner as compensation for the property taken, because Sec 16 (e), RA 6657, is specific that the deposit must be made in cash or in land bank bonds. The implementing regulation cannot outweigh the clear provision of the law.

4. Commissioners of Internal Revenue v. CA, 240 SCRA 368Administrative issuances must not override, but must remain consistent with the law they seek to apply and implement. They are intended to carry out, not to supplant nor modify, the law.

5. Ople v Torres 293 SCRA 141What is Administrative Power?

Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What is an Administrative Order?

Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

An administrative order is an ordinance issued by the president which relates to specific aspects in the administrative operation of the Govt. it cannot be argued that AO 308 (prescribing a National Computerized Identification Reference System) merely implements Administrative Code of 1987. Such national computerized ID reference system requires a delicate adjustment of various contending State policies, the primacy of national security, the extent of privacy against dossier- gathering by the government, and the choice of policies. It deals with a subject which should be covered by the law, not just and administrative order Different powers of Administrative agencies

a. Supplementary or detailed legislation- rules and regulations to fix the details in the execution and enforcement of a policy set out in law. E.g. Rules and regulations implementing the Labor Code.b. Interpretative legislation- -they are rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed. They have in their favour the presumption of legality.c. Contingent legislation--they are the rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends.

Internal Rules versus External Rules Internal Rules- treats of the legal relations between the government and its administrative officers and of legal relations that one administrative officer or organ bears to another.-it comprehends such topics as the nature of public office-it considers the legal aspects of public administration on its institutional side External Rules- concerned with the legal relations between administrative authorities and private interests

Requisites for validity of Administrtive Rules and Regulation:

1. Issued under aauthority of law2. Within the scope and purview of the law3. Reasonable4. Publication in the Official Gazette or in a newspaper of general circulation.5. Promulgated under prescribed procedure

Requisites for Validity of Administrative Rules With Penal Sanctions:1.law itself must declare as punishable the violation of administrative rule or regulation;2.law should define or fix penalty therefor; and3.rule/regulation must be published.

Limitations on the Rule- Making Power1. It may not make rules and regulations which are inconsistent with the Constitution or a statute, particularly the statute it is administering ot which created it, or which are in derogation of, or defeat, the purpose of a statute.2. It may not, by its rules and regulations, amend, alter, modify, supplant, enlarge, or limit the terms of the statute3. The power of administrative officials to promulgate rules in the implementation of the statute is necessarily limited to what is provided I the legislative enactment4. A rule or regulation must should be uniform in operation, reasonable, and not unfair or discriminatory.

Doctrine of Subordinate Legislation-power of administrative agency to promulgate rules and regulations on matters of their own specialization.

Concept of contemporaneous constructionADMINISTRATIVE CONSTRUCTION; EFFECT:Administrative construction is not necessarily binding upon the courts. Action of an administrative agency may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment.1. Public Schools District Supervisors Association vs. Hon. Edilberto de Jesus, G. R. No. 157299, 19 June 2006The power of administrative officials to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. The implementing rules and regulations of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the legislature. However, administrative bodies are allowed under their power of subordinate legislation, to implement the broad policies laid down in the statute by filling in the details. All that is required is that the regulation be germane to the objectives and purposes of the law; that the regulation does not contradict but conforms with the standards prescribed by law.

2. Commissioner of internal revenue v CA 261 SCRA 236 -the administrative rule is in the nature of subordinate legislation designed to implement a law by providing its details (CIR v. Court of Appeals, 261 SCRA 236). -An administrative rule in the nature of subordinate legislation is designed to implement a law by providing its details, and before it is adopted there must be hearing under the Administrative Code of 1987. When an administrative rule substantially adds to or increases the burden of those concerned, and administrative agency must accord those directly affected a chance to be heard before its issuance.

LEGISLATIVE v. INTERPRETATIVE RULE:

A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing.

3. Philippine Consumers Foundation, Inc. vs. Secretary of Education, 153 SCRA 622

-The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates.

4. Ang Tibay v CIR (Cardinal Primary Requirement of Administrative Due Process)

1. The right to a hearing which includes the right to present ones case and submit evidence2. The tribunal must consider the evidence presented3. The decision must have something to support itself4. The evidence must be substantial5. The decision must be based on the evidence presented at the hearing6. The tribunal or body of any judges must act on its own independent consideration of the law and facts of the controversy7. The board or body should in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involves and reason for the decision rendered

Doctrine of Primary JurisdictionThis doctrine states that courts cannot or will not determine a controversy which requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters of intricate questions of fact are involved.Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court even though the matter is within the proper jurisdiction of a court.

Doctrine of Prior ResortWhen a claim originally cognizable in the courts involves issues which, under a regulatory scheme are within the special competence of an administrative agency, judicial proceedings will be suspended pending the referral of these issues to the administrative body for its view.Note: The doctrines of primary jurisdiction and prior resort have been considered to be interchangeable.

Doctrine of Exhaustion of Administrative RemediesUnder this doctrine, an administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. Reasons :1. to enable the administrative superiors to correct the errors committed by their subordinates.2. courts should refrain from disturbing the findings of administrative. bodies in deference to the doctrine of separation of powers.3. courts should not be saddled with the review of administrative cases4. judicial review of administrative cases is usually effected through special civil actions which are available only if there is no other plain, speedy and adequate remedy.

Exceptions when the question raised is purely legal, involves constitutional questions when the administrative body is in estopped when act complained of is patently illegal when there is urgent need for judicial intervention when claim involved is small when irreparable damage is involved when there is no other plain, speedy , adequate remedy when strong public interest is involved when the subject of controversy is private land -in quo warranto proceedings -When the administrative remedy is permissive, concurrent -utter disregard of due process -long-continued and unreasonable delay -amount involved is relatively small -when no administrative review is provided -respondent is a department secretary (DOCTRINE OF QUALIFIED POLITICAL AGENCY ALTER EGO DOCTRINE)

Doctrine of Finality

Courts are reluctant to interfere with action of an administrative agency prior to its completion or finality, the reason being that absent a final order or decision, power has not been fully and finally exercised, and there can usually be no irreparable harm.

EXCEPTIONS: Interlocutory order affecting the merits of a controversy; Preserve status quo pending further action by the administrative agency; Essential to the protection of the rights asserted from the injury threatened; Officer assumes to act in violation of the Constitution and other laws; Order not reviewable in any other way; Order made in excess of power

EXHAUSTION OF ADMINSTRATIVE REMEDIES Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted.WHEN APPLICABLE? Only those decisions of administrative agencies made in the exercise of quasi-judicial powers are subject to the rule on Exhaustion of Administrative RemediesEFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Jurisdiction of the court is not affected; but the complainant is deprived of a cause of action which is a ground for a Motion to DismissEFFECT IF NO MOTION TO DISMISS IS FILED There is deemed to be a waiver. The court cannot motu propio dismiss a case for failure to exhaust administrative remedies.EXCEPTIONS TO THE DOCTRINE1. Doctrine of qualified agency (alter ego doctrine)2. Where the administrative remedy is fruitless3. Where there is estoppel on the part of the administrative agency4. Where the issue involved is purely a legal question5. Where the administrative action is patently illegal, amounting to lack of jurisdiction6. Where there is unreasonable delay or official inaction7. Where there is irreparable injury or threat thereof unless judicial recourse is immediately made8. In land cases, where the subject matter is private land9. Where the law does not make exhaustion a condition precedent to judicial recourse10. Where observance of the doctrine will result in the nullification of the claim11. Where there are special reasons or circumstances demanding immediate court action12. When due process of law is clearly violated13. When the rule does not provide a plain, speedy, and adequate remedyDOCTRINE OF PRIOR RESORT Also known as the doctrine of primary administrative jurisdiction Where there is competence or jurisdiction vest upon a matter, no resort to the courts may be made before such administrative body shall have acted upon themEXCEPTION1. Where the issue involved is a question of law2. When the court and administrative bodies has concurrent jurisdiction under the lawDOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION No resort to the courts will be allowed unless the administrative action has been completed and there is nothing left to be done in the administrative structure.JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONSBASIS FOR JUDICIAL REVIEWArt. VIII Sec. 1 Par. 2 of the Constitution Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.REQUISITES OF JUDICIAL REVIEW1. Exhaustion of Administrative Remedies2. Finality of Administrative ActionWHAT COURT HAS JURISDICTION? RULE 43 of the 1997 Rules of Civil Procedure Provides that the Court of Appeals shall have the appellate jurisdiction over judgments or final orders of Court of Tax Appeals and from awards, and judgments or final orders or resolutions of or authorized by any quasi- judicial agency in the exercise of its quasi- judicial functions.QUESTION WHICH MAY BE SUBJECT OF JUDICIAL REVIEW1. Questions of Law2. Questions of factException:a. When expressly allowed by statuteb. Fraud, imposition or mistake other than error of judgment in evaluating the evidencec. Error in appreciation of the pleadings and in the interpretation of the documentary evidence presented by the parties3. Mixed questions of law and factGUIDELINES FOR THE EXERCISE OF THE POWER1. Finding of fact are respected as long as they are supported by substantial evidence, even if not overwhelming or preponderant.2. It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witness, or otherwise substitute its judgment for that of the administrative agency on the sufficiency of evidence.3. The administrative decisions in matters within the executive jurisdiction can only be set aside on proof of grave abuse of discretion, fraud, collusion, or error of law.LAW ON PUBLIC OFFICERCONSTITUTIONAL PROVISIONS INVOLVING PUBLIC OFFICER ART XI SEC 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. ART II SEC 26- 27Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. ART XI SEC 18Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.WHO ARE PUBLIC OFFICERS?1. 1987 ADMINISTRATVE CODE

"Officer" as distinguished from "clerk" or "employee", refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function.2. ART 203 REVISED PENAL CODE

Who are public officers. For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

3. RA 3019 ANTI GRAFT AND CURROPT PRACTICES

"Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

4. RA 6713 CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS

"Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount.

5. RA 780 PLUNDER LAW

Public Officer means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract.What is an office?Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. (1987 Administrative Code of the Philippines)ELEMENTS OF PUBLIC OFFICE1. Created by or by authority of law2. Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public3. Powers conferred and duties imposed must be defined, directly or impliedly, by the legislature or by legislative authority4. Duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office created of authorized by the legislature, and by it placed under the general control of a superior office or body5. Must have permanence or continuity PUBLIC OFFICES ARE CREATED BY:1. Constitution2. Valid statutory enactment3. Authority of lawCHARACTERISTIC OF A PUBLIC OFFICE1. A public trust2. Not a vested right3. Not a propertyException: A controversy between two person wherein the question of who is entitled to the office is the issue4. Cannot be inherited It is personal to the person who holds office therefore it is not transmissible.MAY A PERSON BE COMPELLED TO HOLD OFFICE?GENERAL RULE: a person cannot be compelled to hold office

EXCEPTION:

1. ART 2 SEC 4 CONSTI-The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

2. POSSE COMITATUS-use of the military in civilian law enforcementCOMMENCEMENT OF OFFICIAL RELATIONSHOW ARE OFFICIAL RELATIONS COMMENCED?1. Appointment2. Election3. Contract, in some caseAppointment- the selection, by authority vested with the power, of an individual who is to perform the functions of a given officeDesignation- the imposition of additional duties, usually by law, on a person already in public serviceCLASSICICATION1. PERMANENT AND TEMPORARYPermanent- extended to a person possessing the requisite qualifications, including the eligibility required, for the position, and thus protected by the constitutional guaranty of security of tenure.Temporary- an acting position, it is extended to one who may not possess the requisite qualifications or eligibility required by law for the position, and is revocable at will, without the necessity of just or a valid investigation. Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one, a new appointment is necessary. Where the temporary appointment is for a fixed period, the appointment may be revoked only at the expiration of the period, or, if revocation is made before such expiration, the same has to be for a valid and just cause.

2. REGULAR AND AD- INTERIMRegular- one made by the president while Congress id in session after the nomination is confirmed by the Commission on Appointments, and continues until the end of the termAdi interim- one made while Congress is not in session, before confirmation by the Commission on Appointments, is immediately effective, and ceases to be valid if disapproved by the Commission on Appointments upon the next adjournment of Congress A permanent appointmentFour categories of appointment made by the President of the Philippines:Art 7 Sec 16 of the ConstitutionThe President shall nominate and, with the consent of the Commission on Appointments, appoint the 1. heads of the executive departments, 2. ambassadors, 3. other public ministers and consuls, or 4. officers of the armed forces from the rank of colonel or naval captain, and 5. other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. Acceptance is indispensable to the appointment Acceptance of the appointment is the last act that completes the appointing process Where the appointment is to the career service of the Civil Service, attestation of the Civil Service Commission (CSC) is required. Appointment not submitted to the CSC within 30 days from issuance shall be ineffective Appointment becomes complete when the last act required of the appointing authority is performed; until the process is completed the appointee can claim no vested right in the office nor claim security of tenure. Appointment is essentially a discretionary power. When the appointing authority has already exercised his power of appointment, the commission cannot revoke the same on the ground that another employee is better qualified, for that will constitute an encroachment on the discretion vested in the appointing authority.GROUNDS TO OPPOSE THE APPOINTMENT OF PERSON TO A PUBLIC OFFICE1. The one appointed is not qualified2. The appointee is not next in rank3. Appointment is by transfer, and the protestant is not satisfied with the reason of the appointing authority for the transferAPPOINTMENTS UNDER THE CONSTITUTION1. Art 6 SEC 18There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members.

2. ART 6 SEC 19The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it.

3. ART 7 SEC 16The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.NEPOTISM The appointing authority is within the 4th civil degree of consanguinity of the appointed officer Purpose of Prohibition:To ensure that the appointment is based on merit and qualificationWHEN CAN APPOINTMENT BE REVOKED OR RECALLED BY THE APPINTING AUTHORITY? Anytime before the approval of the CSC or before attestation of eligibility is issuedTERM V TENURETerm of Office and Tenure of Office DistinguishedTerm of OfficeTenure of OfficeDe jure De facto Fixed and definite period of time Period during which the incumbentduring which the officer may actually holds the office. It may be claim to hold the office as of right shorter than the term.

Term is the period of time during which public officer has the right to hold office; tenure is the period of time during which the public officer actually held office.

CAREER V NON- NON CAREER SERVICE

A. CAREER SERVICE- characterized by entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications, opportunity for advancement to higher career positions, and security of tenure.B. NON- CAREER SERVICE- characterized by entrance on bases other than those of the usual tests utilized for the career service, tenure limited to a period specified by law, or which is co- terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which the employment was made.

PRINCIPLE OF HOLD OVER

In the absence of any express or implied constitutional or statutory provision to the contrary, the public officer is entitled to hold his office until his successor shall have been duly chosen and shall have qualified.

PROMOTION

Movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.

AUTOMATIC REVERSION RULE

For this rule to apply the following must concur:1. There must be a series of promotions2. All promotional appointments are simultaneously submitted to the Commission (CSC) for approval3. The Commission disapproves the appointment of a person to a higher positionNEXT IN RANK RULEThe person next in rank shall be given preference in promotion. But the appointing authority still exercises discretion and is not bound by the rule.TRANSFERMovement from one position to another which is of equivalent rank, level or salary without break in serviceQUO WARRANTOA proceeding instituted to question title of a person to an officeWho files?- person claiming to be the one is entitled to the officeWhich court has jurisdiction? RTC

MANDAMUSWill lie if petitioner has a clear right to the office and respondent is unlawfully preventing him from assuming office.Kinds of Public Officer:1. De Jure- an officer who had the lawful right to the office in all respects, but who has either2. De Facto

De Jure OfficerDe Facto Officer

1. rests on the right

1. on reputation

2. has lawful or title to the office2. has possession and performs the duties under color of right without being technically qualified in all points of law to act

3. cannot be removed in a direct proceeding3. may be ousted in a direct proceeding against him.

DE FACTO OFFICERS -one who has reputation of being an officer that he assumes to be, and yet is not an officer in point of law.-a person is a de facto officer where the duties of the office are exercised under any of the following circumstances:1.Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or2.Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond);3.Under color of a known election or appointment, void because:a.the officer was not eligible;b.there was a want of power in the electing or appointing body; c.there was a defect or irregularity in its exercise;such ineligibility, want of power, or defect being unknown to the public.4.Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.Note: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby)Requisites:1.valid existing office;2.actual physical possession of said office; 3.color of title to office;There is a color of title to the office in any of the following cases: by reputation or acquiescence; under a known or valid appointment or election but officer failed to conform with legal requirements; under a known appointment or election but void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to public; and under a known appointment or election pursuant to unconstitutional law before declaration of unconstitutionality.4. General acceptance of the publicLegal Effects of Acts-valid insofar as they affect the publicEntitlement to SalariesGeneral Rule: rightful incumbent may recover from de facto officer salary received by latter during time of wrongful tenure even though latter is in good faith and under color of title.(Monroy v. CA, 20 SCRA 620)Exception: when there is no de jure public officer, de facto officer entitled to salaries for period when he actually discharged functions.(Civil Liberties Union v. Exec. Sec., 194 SCRA 317)Challenge to a De Facto Officer: must be in a direct proceeding where the title will be the principal issue.RIGHTS OF PUBLIC OFFICERSRight to compensation1. Salary2. Wages3. Per diemSalary, Wages, and Per Diems Distinguished Salary: time-boundWages: service-boundPer Diem: allowance for days actually spent for special duties

4. Honorarium- compensation given in appreciation for service s renderedSalary of Public Officer Not Subject to Attachment The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid by him, and appropriated for the payment of his debts. Money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment because the sovereign State cannot be sued in its own courts except by express authorization by statute. Until paid over by the agent of the government to the person entitled to receive it, public funds cannot in any legal sense be part of his effects subject to attachment by legal process. (Director of Commerce and Industry v. Concepcion)CONSTITUTIONAL PROVISIONS AFFECTING SALARIESa. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase. (Sec. 10. Art. VI)b. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source. (Sec. 6, Art VII)c. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During the continuance in office, their salary shall not be decreased. (Sec 10, Art. VIII)Nitafan v Tan- the imposition of income taxes on salaries of judges does not constitute unconstitutional diminution of salaries.d. 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. (Sec 8, Art. IX-B)e. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions. (Sec. 5, Art. IX- B)f. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. (Sec. 16, Art. XVIII)RIGHT TO RETIREMENT PAYConditions for entitlement to retirement benefits (R.A. No. 8291)a) he has rendered at least fifteen (15) years of service;b) he is at least sixty (60) years of age at the time of retirement; andc) he is not receiving a monthly pension benefit from permanent total disability. Compulsory Retirement Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least sixty-five (65) years of age with at least fifteen (15) years of service; Provided that if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. Retirement benefits (1) the lump sum payment defined in RA No. 8291 payable at the time of retirement plus anold-age pension benefit equal to the basis monthly pension payable monthly for life, starting upon expiration of the give-year (5) guaranteed period covered by the lump sum; or (2) cash payment equivalent to eighteen (18) months of his basic monthly pension plus monthly pension for life payable immediately with no five-year (5) guarantee. Beronilla v GSIS The compulsory retirement of government officials and employees upon reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose on them. UP Board of Regents v. Auditor General A BOR resolution extended the services of a UP professor for another year. In the same year, he reached the age of 65. The Auditor General questioned the legality of the resolution arguing that the services rendered after the compulsory retirement age were illegal and that he was not entitled to compensation. SC upheld Auditor General ruling that as government employees, UP professors are compulsorily covered by the Retirement Law which creates a uniform retirement system for all members of the GSIS. Rabor v. CSC At the age of 55, Rabor was hired as a government employee at the Davao City Mayors Office in 1978. In 1991, he was advised to apply for retirement. He was already 68 years old with 13 years of service. He requested that his services be extended in order that he may complete the 15-year service requirement. This was denied and Rabor claimed that the doctrine enunciated in Cena v. CSC should be applied in his case. SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No. 27, s. of 1990 cited in the decision in Cena v. CSC, provides that any request for the extension of service of compulsory retirees to complete the 15-year service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular GSIS members, and shall be granted for a period not exceeding one (1) year. Cena further stated that the authority to grant the extension was a discretionary one vested in the head of the agency concerned. To reiterate, the head of the government agency concerned is vested with discretionary authority to allow or disallow extension of service of an employee who has reached 65 years old without completing 15 years of government service; this discretion to be exercised conformably with CSC Memo Circular No. 27, s. of 1990.PROFETA V DRILON- retirement laws are liberally construed in favour of the retireeLIABILITY OF PUBLIC OFFICERLIABILITY OF MINISTERIAL OFFICERS1. Nonfeasance- neglect or refusal to perform an act which is the offiers legal obligation to perform2. Misfeasance- failure to use the degree of care, skill and diligence required in the performance of official duty3. Malfeasance- the doing, through ignorance, intention or malice, of an act which he had no legal right to performDISRETIONARY AND MINISTERIAL POWER

DISCRETIONARYMINISTERIAL

DefinitionActs which require the exercise of reason in determining when, where, and how to exercise the powerActs which are performed in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. Phipps)

Can be delegated?Generally, NO.Exception: When the power to substitute / delegate has been givenGenerally, YES.Exception: When the law expressly requires the act to be performed by the officer in person and / or prohibits such delegation

When is mandamus proper?Only if the duty to do something has been delayed for an unreasonable period of time.In all cases.

Is public officer liable?Generally not liableExceptions: if there is fraud or maliceLiable if duty exercised contrary to the manner prescribed by law

Q: What is discretion?A: Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. (Lamb v. Phipps)Q: What is a ministerial act?A: A purely ministerial act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. A ministerial act is one to which nothing is left to the discretion of the person who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. It is a precise act, accurately marked out, enjoined upon particular officers for a particular purpose. (Lamb v. Phipps)THREE-FOLD LIABILITY RULE The wrongful acts or omissions of a public officer may give rise to civil, criminal, and administrative liabilityPRESIDENTIAL IMMUNITY FROM SUIT This privilege is only enjoyed during the tenure of the president After his tenure, the Chief Exec cannot invoke immunity from suit for civil damages out of the acts done by him while he was President which were not performed in the exercise of official duties. (Estrada v Desierto) While the president is immune from suit, he may not be prevented from instituting suit. (Soliven v Makasiar)

TERMINATION OF OFFICIAL RELATIONS Modes of Termination 1) Expiration of Term or Tenure of Office a) End of a fixed termb) End of Pleasure where one holds office at pleasure of appointing authorityc) Loss of confidence in primarily confidential employment 2) Reaching the age limit; Retirement3) Bona fide abolition of office4) Abandonment of office5) Acceptance of an incompatible office6) Resignation7) Resignation8) Removal for cause9) Temporary appointments termination10) Recall11) Impeachment12) Prescription of right to office13) Death14) Conviction of crime where disqualification is an accessory penalty15) Filing of certificate of candidacy16) Performance of act or accomplishment of purpose for which the office was created

RESIGNATION: mere tender of resignation, without acceptance by competent authority does not create vacancy in public office; resignation is not complete until accepted by proper authority. (Joson v Nario)

ELECTION LAWS

BASIC PRINCIPLE ON ELECTIONThe Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Sec. 2, Art. 2)

2 TYPES OF ELECTION1. Election of Public Officers2. Election of Policies

Other kinds:1.Regular election one provided by law for election of officers either nationwide or in certain subdivisions thereof, after expiration of full term of former members; and2.Special election one held to fill vacancy in office before expiration of full term for which incumbent was elected.

Sanggunian Kabataan Election is not a regular election.

Plebiscite a vote of the people expressing their choice for against a proposed law or enactment submitted to them. An election at which any proposed amendment to or revision of the Constitution is submitted to the people for their ratification. A constitutional requirement to secure the approval of the people directly affected, before certain proposed changes affecting local governments units may be implemented.

Initiative it is the process by which the registered voters directly propose, amend laws, national or local, though an election called for the propose. Amendments to the Constitution may likewise be directly proposed by the people though initiative.

Referendum- it is at he submission of a law pass by the national or local legislative body to the registered voters of an election called for the purpose for their ratification or rejection.

Recall- it is a method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition signed by a required percentage of the qualified voters.THE COMMISSION ON ELECTIONSComposition, Qualifications, Appointment, Term of Office The COMELEC is composed of a chairman and six (6) Commission, The Chairman and the Members of the Commission shall be:a. natural -born citizens of the Philippinesb. at least thirty-five years of agec. holders of a college degreed. must not have been candidates for any elective position in the immediately preceding electione. majority thereof, including the Chairman shall be members of the Philippines Bar who have been engaged in the practice of law for at least 10 years (reason: COMELEC exercises quasi-judicial powers)The Chairman and Members are appointed by the president with the consent of the commission on Appointment for the term seven (7) years without reappointment on a staggered basis to make the COMELEC a continuing and self-perpetuating body. Consequently, its members would have the benefit of the experience and expertise of the order members of the performance of its functions, and makes for greater responsibility for its policies and decisions and serve as guarantee against arbitrary action which is likely to occur in a body handling partisans questions.Safeguards to insure the independence of the COMELEC1. It is constitutionally created; may not be abolished by statute2. It is expressly described as independent3. It is conferred with certain powers and functions which cannot be reduced by statute.4. The chairman and members cannot be removed except by impeachment.5. The chairman and members are given fairly long term of office of seven years.6. The chairman and members may not be reappointed or appointed in an acting capacity.7. The salaries of the chairman and members are relatively high and may not be decreased during continuance in office.8. The COMELEC enjoy fiscal autonomy.9. The COMELEC may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the Supreme Court)10. The Chairman and Members are subject to certain disqualifications calculated to strengthen their integrity.11. The COMELEC may appoint their own officials and employees in accordance with Civil Service Laws.Disabilities, inhibitions\disqualifications

1. Shall not, during tenure, hold any other office or employment2. Shall not engage in the practice of profession3. Shall not engage in active management or control of any business which in any ay may be affected by the functions of his office4. Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCC s or their subsidiaries.

COMELECS POWER TO RECOMMEND PARDON OR PAROLENo pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. (Sec 5, Art. IX- C)

NATIONALISTA PARTY V DE VERA The Supreme Court has no general power of supervision over the COMELEC except those power especially granted by the Constitution, that is the power to review its decisions and orders.

Qualification for Suffrage:1.Filipino citizen;2.At least 18 years of age;3.Resident of the Philippines for at least one year;4.Resident of place where he proposes to vote for at least 6 months; and5.Not otherwise disqualified by law.

Disqualifications

1. Any person sentenced by the final judgment to suffer imprisonment for not less than one year.2. Any person adjudged by the final judgment of having committed(a) any crime involving disloyalty to the government or (b) any crime against national security (c) firearms laws.3. Insane or incompetent persons as declared by competent authority.

Removal of disqualification for conviction

Plenary pardon Amnesty Lapse of 5yaers after service of sentence (Sec.111, RA 8189)

System of Continuing Registration

The personal filing o application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election. (Sec. 8, RA 8189)

The Supreme Court upheld the validity of the COMELEC resolution denying the petition of certain youth sectors to conduct a special registration: Petitioners were not denied the opportunity to avail of the continuing registration under RA 8189..the law aids the vigilant and not those who slumber on their rights

In a representative democracy the right of suffrage, although afforded a prime niche in the hierarchy of right embodied in the fundamental law., ought to be exercised within the proper bounds frames and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature

The right of suffrage ardently invoked by herein petitioners is not at all absolutethe exercise of suffrage, as the enjoyment of all other rights subject to existing substantive and procedural requirement embodied in our Constitution, statute books and other repositories of law. (AKBAYAN Youth et al. vs. COMELEC GR No. 147066, March 26, 2001)

Inclusion and Exclution Cases

1. Jurisdiction

i. Municipal or Metropolitan Trial Court original and exclusive Jurisdiction\ii. Regional Trial Court appellate jurisdiction (5 days) (Sec. 33, RA 8189)iii. Supreme Court appellate jurisdiction over RTC on question of law (15 days) [Sec. 5(2)(e), Art. VIII, PC; Sec. 2, Rule 45 of the Rules of Court.]

2. Petitioners

a. Inclusion

Private person whose application was disapprove by the Election Registration Board or whose name was stricken out from the list of waters (Sec. 34, RA 8189)COMELEC [Sec. 2(6), Art. IX-C, PC]

b. Exclusion

i. Any registered voter in city or municipalityii. Representative of political party iii. Election Officer (Sec. 39, RA 8189)iv. COMELEC [Sec. 2(6), Art. IX C, PC]

3. Period for Filing

a. Inclusion Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189)b. Exclusion Any time except 100 days before a regular election or 65 days before special election. (Sec. 35 RA 8189)

4. Procedure

a. Petition for exclusion shall be sworn (Sec. 35 , RA 8189)b. Each petition shall refer only to only one precinct. (Sec. 35, RA 8189)c. Notice i. Parties to be notified

5. Inclusion Election Registration Board i. ii Exclusion 6. Election Registration Board 7. Challenged voters [Sec. 32(b), RA 8189]8. Manner

Notice stating the place day and hour of hearing shall be served through any of the following means: Registered mail Personal delivery Leaving copy in possession of sufficient discretion in residence. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (Sec. 32(b), RA 8189)

Any voter, candidate or political party affected may intervene. (Sec. 32c, RA 8189)

Non-appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), RA 8189)

Decision cannot be rendered on stipulation of facts (Sec. 32 (f), RA 8189)

No motion for reconsideration is allowed, (Sec. 33, RA 8189)

Annulment of List of Voters

1. Upon verified complaint of any voter, election officer or registered political party or motu propio, the COMELEC may annul a list of votes which was not prepared in accordance with RA 8189 or whose preparation was affected with fraud, bribery, forgery, impersonation, intimidation, force or other similar irregularity or statistically improbable.

2. No list of voters shall be annulled within 60 days before an election (See. 33, RA 8189)

The annulment of the list of voters shall not constitute a ground for a pre-proclamation controversy. (Ututalum vs. COMELEC, 181 SCRA 335)

When an assailed order had been issued pursuant to COMELECs administrative powers in the absence of any finding of grave abuse of discretion in declaring a precinct as non existent, said order shall stand, judicial interference being unnecessary and uncalled for The sacred right of suffrage guaranteed by the Constitution is not tampered when a list of fictitious voters is excluded from an electoral exercise. (Sarangani vs. COMELEC, 334 SCRA 379)

Election precinct is the basic unit of territory established by the COMELEC for the purpose of voting.

A polling place refers to the building or place where the board of election inspectors conduct proceedings and where the voters cast their votes.

Voting center refers to the building or place where the polling place is located.

List of voters refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election.

Book of voters refers to the compilation of all registration records in a precinct.

Signature of Chairman at back of every ballot

In every case before delivering an official ballot to the voter, the Chairman of the BEI shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the BEI and shall constitute an election offense punishable under Sections 263 and 264 of the OEC.

An illiterate or physically disabled voter may be assisted by a relative by: 1. affinity or consanguinity within the fourth degree or 2. any person of his confidence who belongs to the same household or 3. any member of the Board of Election Inspectors. (Section 196, BP881)

Postponement of Elections

An election may be postponed by the COMELEC either motu proprio or upon a verified petition by any interested party when there is violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, or other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. (Sec. 5, B.P. 881)

The COMELEC shall call for the holding of the election 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 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. (Sec. 5, B.P. 881)Failure of Elections there are only 3 instances where a failure of elections may be declared, namely:a.The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;b.The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; and c.After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. (Joseph Peter Sison v. COMELEC, G.R. No. 134096, March 3, 1999)

MEMBERS OF THE BOARD OF CANVASSER1. COMELEC officer2. Prosecutor3. Highest Ranking DEPED personnel4. MEMBERS OF THE MUNICIPAL BOARD OF CANVASSER1. COMELEC officer2. Municipal treasurer3. Highest Ranking DEPED personnel

Certificates of Candidacy

No person shall be eligible for any elective public unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code.

Deadline

Certificate of candidacy must be filed not later than the day before the date for the beginning of the campaign period. (Sec. 7, RA 7166)A certificate filed beyond the deadline is not valid. (Gador vs. COMELEC, 95 SCRA 431)

Prohibition against multiple candidacies

A person who files a certificate of candidacy for more than one office should be eligible for any of them. (Sec 73, BP 881)

Before the deadline for filing certificates he may withdraw all expect one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for other office or offices. (Go vs. COMELEC, GR No. 147741, May 10, 2001)

Forms

Oath

The certificate must be sworn. (Sec. 73, BP 881)

The election of a candidate cannot be annulled because of formal defects in his certificate, such as held of oath (Guzman vs. Board of Canvassers, 48 Phil 211)

Name

A candidate shall use his baptismal name or full name, the name registered with the civil registrar or any other name allowed by law.

He may include one nickname or stage name by which he is generally known.

When two or more candidates for the same office have the same name or surname, each shall state his paternal and maternal surnames, except the incumbent (See. 71, BP 881)

Place and Period of Filling

For President, Vice President and Senators: main office of the COMELEC in Manila, 5 copies, not later than 90 days before date of election.

For Members of the House of Representatives:

Provincial legislative districts Provincial Election Supervisor of the Province concerned

NCR legislative districts Regional COMELEC Directors

Legislative districts in cities outside NCR City Election registrar concerned

For provincial offices Provincial Election Supervisor of the province concerned.

City and Municipal offices City or Municipal Election Registrar concerned.

The certificates of candidacy of Members of the House of Representatives, Provincial, city or municipal officials shall be filed in 5 copies not later than 45 days before the election.

The certificate of candidacy shall be filed by the candidate personally or his duly authorized representative. No certificate of candidacy shall be filed or accepted by mail, telegram or facsimile.

The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefore are; (1) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (2) to avoid confusion and inconvenience in the tabulation of the votes to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons, as mark to identify the votes in favor of a candidate for another office in the same election. (Miranda vs. Abaya, 311 SCRA 617)

Duty of COMELEC

Subject to its authority over nuisance candidates and its power to deny due course or cancel a certificate of candidacy, the rule is that the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidacy. (Sec. 78, BP 881)

Effect Filing

An appointive public official is considered resigned upon filing of his certificate. (Sec. 66, BP 881;Sanciangco vs. Rono, 137, SCRA 671).This includes an employs of a GOCC organized under the Corporation Code (Without original charter), since the law makes no distinction. (PNOC EDC vs. NLRC, 222 SCRA 831)

Any elective official, whether national or local who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from office. (sec. 26, COMELEC Resolution No. 3636, Rules and Regulations Implementing RA 9006)

Withdrawal of Certificate of Candidacy

Form written declaration under oath. There was no withdrawal of candidacy for the position of mayor where the candidate, before the deadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for his certificate of candidacy and intercalated the word vice before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. (Vivero vs. COMELEC, L 81059, Jan 12, 1989)

Since his certificate of candidacy for the office of board member was filed by his party, and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, there was substantial compliance with Sec. 73. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was, in effect, a rejection of the party nomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)

Substitution of Candidacy Sec. 77 BP 881; Sec. 12, RA 9006

If after the last day for filing certificates, a candidate dies, withdraws or is disqualified, he may be substituted by a person belonging to his party not later than the mid day of election. Said certificate may be filled with any board of election inspectors in the political subdivision where he is an electorate of the country, with the COMELEC. (Domingo vs. City Board of Canvassers, GR No. 105365, June 2, 1992)

Even if the withdrawal was not under oath, the certificate of the substitute cannot be annulled after the election. Such technicality of the original candidates withdrawal of his certificate of candidacy cannot be used to override the peoples will in favor to the substitute candidate. The legal requirement that the withdrawal be under oath will be held to be merely directory and the candidates failure to observe the requirement is considered a harmless error. Hence the bona fide certificate of the substitute candidate cannot be assailed. The votes in his favor should be counted. (Villanueva vs. COMELEC, 140 SCRA 352)

In case of valid substitutions after the official ballot have been printed, the votes cast for the substituted candidates shall be considered as many votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of substitute candidates if they are voting for the latter. (See. 12, RA 9006)

There is nothing in the Constitution or statute which requires as condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. (Sinaca vs. Mula, 315 SCRA 266)

A valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Sec. 77 of the Election Code . . . The concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was...

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the Code . . . .

While Sec. 78 of the Election Code enumerated the occasion where a candidate may validly substitute there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy (Miranda vs. Abaya, 311 SCRA 617)

In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. Sec. 12, RA 9006. amending Sec. 12 of RA 8436) Only a candidate with a political party can be validly substituted.Rules on Substitution:1. Substitute must be of the same political party2. Candidate to be substituted should have filed a valid COC.DISQUALIFICATION OF CANDIDATES:

1.declared as incompetent or insane by competent authority;2.convicted by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of 18 months imprisonment;3.convicted by final judgment for crime involving moral turpitude;4.any person who is permanent resident of or immigrant to a foreign country; and5.one who has violated provisions on:a.campaign period;b.removal, destruction of lawful election propaganda;c.prohibited forms of propaganda;d.regulation of propaganda through mass media; ande.election offenses.- When a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. (Codilla vs. Hon. Jose De Venecia, G.R. No. 150605, December 10, 2002)Nuisance Candidate COMELEC may motu propio or upon petition of interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed:1.to put election process in mockery or disrepute;2.to cause confusion among voters by similarity of names of registered candidates;3.by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful determination of true will of electorate.CAMPAIGNElection campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates for public office. (Sec. 79, BP 881)a. If done for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, etc, it shall not be considered as election campaign or partisan political activity.b. It shall be unlawful for any person or any party to engage in election campaign or partisan political activity except during the campaign period.c. Members of the Civil Service to engage, directly or indirectly, in any electioneering or partisan political campaign.Campaign period1. President, Vice-President and Senators 90 days before Election Day2. Congressmen, provincial, city and municipal officials 45 days before Election Day.FAIR ELECTIONS ACT OF 2001 (RA 9006)

Lawful election Propaganda (sec. 3):1.Written/Printed Materials (does not exceed 8 in. width by 14 in. length)2.Handwritten/printed letters3.Posters (not exceeding 2 x 3 ft.)3 by 8 ft. allowed in announcing, at the site and on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.4.Print Ads page in broadsheets and page in tabloids thrice a week per newspaper, magazine or other publication during the campaign period4. Broadcast Media (i.e. TV and Radio)National PositionsLocal Positions

1. 120 minutes for TV1. 60 minutes for TV

2. 180 minutes for Radio2. 90 minutes for Radio

Limitation on Expenses: for candidates:President and Vice President = P10/voter;Other candidates, if with party = P3/voter;Other candidates, if without party = P5/voter. for political parties = P5/voterBOARD OF ELECTION INSPECTORS (BEI)The Board of Election Inspectors shall be composed of a chairman and two members, all of whom are public school teachers.If there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence may be appointed. (Section 13, RA 6646)WATCHERSNumber1. Official watchers

Every registered party or coalition of parties and every candidate is entitled to one watcher per precinct and canvassing counter.

Candidates for the local legislature belonging to the same party are entitled collectively to one watcher.

Six principal watchers from 6 accredited major political parties shall be recognized. (Section 26, 7166)

2. Other watchers

The accredited citizens arm is entitled to a watcher in every precinct. Other civic organizations may be authorized to appoint one watcher in every precinct. (Section 180, BP 881)Important rights of watchers1. All watchersa. To stay inside the precinctb. To inform themselves of the proceedingsc. To file a protest against any irregularityd. To obtain a certificate of the number of votes cast for each candidate (Section 179, BP881)2. Citizens ArmTo be given a copy of the election return to be used for the conduct of an unofficial count. (Section 1, RA 8045)CASTING OF VOTES1. The chairman of the Board of Election Inspectors should sign each ballot at the back. The omission of such signature does not affect the validity of the ballot.(Libanan vs HRET,283 SCRA 520) Under the rules prevailing during the 1997 Barangay Elections, the failure to authenticate the ballots shall no longer be cause for the invalidation thereof. (Malabaguio vs. COMELEC,346 SCRA 699)2. A voter who was challenged on the ground that he has been paid for the vote or made a bet on the result of the election will be allowed to vote if he takes an oath that he did not commit the act alleged in the challenge. (Section 200,BP881)3. An illiterate or physically disabled voter may be assisted by a relative by affinity or consanguinity within the fourth degree or any person of his confidence who belongs to the same household or any member of the Board of Election Inspectors. (Section 196, BP881)4. It is unlawful to use carbon paper, paraffin paper or other means for making a copy of the contents of the ballot or to use any means to identify the ballot.(Sec. 195,BP881). A ballot prepared under such circumstances should not be counted. (Gutierrez vs. Aquino, Feb,26,1959)COUNTING OF VOTESMANNER1. The Board of Election Inspectors shall read the ballots publicly and shall not postpone the count until it is completed. (Section 206, BP 881)2. The Board of Election Inspectors shall assume such positions as to provide the watchers and the public unimpeded view of the ballot being read. (Section 25, RA 7166)3. If on account of violence or similar causes it becomes necessary to transfer the counting of the votes to a safer place, the BEI may effect the transfer by unanimous approval of the board and concurrence of a majority of the watchers present. (Section 18, RA6646)4. Where a commotion resulted in suspension of the counting, the BEI may recount the ballots. (Dayag vs. Alonzo)RULES FOR APPRECIATION OF BALLOTS1. A ballot in which the first name or surname of a candidate is written should be counted for him, if there is no other candidate with the same name. (Lerias vs. HRET,202 SCRA 808)

2. If only the first name of a candidate is written and it sounds like the surname of another candidate, the vote shall be counted in favor of the latter.

3. If there are two or more candidates with the same name and one of them is incumbent, the vote shall be counted in favor of the incumbent.

4. When two or more words are written on different lines which are the surnames of two or more candidates with the same surname of an office for which the law authorizes the election of more than one, the vote shall be counted in favor of all the candidates. With the same surname.

5. When the word written is the first name of one candidate and the surname of another candidate, the vote shall be counted for the latter.

6. If the ballot contains the first name of one candidate and the surname of another, the vote shall not be counted for either.

7. An incorrectly written name which sounds like the correctly written name of a candidate shall be counted in his favor(Bautista vs Castro,206 SCRA 606)

8. If the word written is the incidental name of two or more candidates for the same office none of whom is incumbent, the vote shall be counted in favor of the candidate who belongs to the same ticket as all other candidates voted for in the ballot for the same constituency.

9. The erroneous initial of the first name accompanied by the correct surname of a candidate or the erroneous initial of the same accompanied by the correct first name of a candidate shall not annul the vote in his favor.

10. A ballot in which the correct first name but wrong surname of a candidate is written or the correct surname but wrong first name of a candidate is written ,shall not be counted in his favor.

11. Where a candidate named Pedro Alfonso died on the eve of the election and his daughter Irma Alfonso substituted him, ballots in which the name Pedro alfonso was written cannot be counted in her favor. (Afonso vs. COMELEC,232 SCRA 777)

12. If two or more candidates were voted for in an office for which the law authorizes the election for only one, the vote shall not be counted in favor of any of them.

13. If the candidate voted for exceed the number of those to be elected, the votes for the candidates whose names were firstly written equal to the number of candidates to be elected shall be counted.

14. Even if the name of a candidate was written on the wrong space, it should be counted if the intention to vote for him can be determined, as when there is a complete list of names of other offices written below his name or the voter wrote the office for which he was electing the candidate. (Cordero vs.Moscardon,132 SCRA 414)

LAGUMBAY DOCTRINE- it is a statistical improbability for a group of candidate to get all the votes and for the other group of candidate to get a zero.

PRE-PROCLAMATION CONTROVERSY For manual election:Any question pertaining to or affecting proceedings of Board of Canvassers which may be raised by any candidate or by a registered political party or coalition of political parties before the board or directly with COMELEC or any matter raised under Sections 233, 234, 235, and 236, in relation to preparation, transmission, receipt, custody and appreciation of election returns.

Issues which may be raised in a Pre-Proclamation Controversy:

1.Illegal composition or proceedings of the board of Canvassers;2.Canvassed election returns are incomplete, contain material defects, appears to be tampered with or falsified; or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sec. 233,234,235 and 236 of BP 881;3.Election returns were prepared under duress, threat, coercion, or intimidation, or they are obviously manufactured or not authentic; and4.When substitute of fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.

Applicable to positions governors and those below.

For automated election:

Ground: illegal composition and proceeding of the board of canvassers.

ELECTION CONTESTS

Jurisdiction

1) Supreme Court (Presidential Electoral Tribunal)

President Vice-President ( Sec. 4, Art VII, Phil. Const)

2) Senate Electoral tribunal Senators (Sec 17, Art VI, PC)

3) House of Representatives Electoral Tribunal

Congressmen ( Sec 17, Art VI, PC; Sampayan vs. Daza, 213 SCRA 807)

4) Commission on Elections Regional Officials Provincial Officials City Officials ( Sec 2(2). Art IX-C, PC; Sec 249 BP 881)

5) Regional Trial Court Municipal Officials ( Sec 2(2), Art IX-C, PC; Sec 251, BP 881, Papandayan vs. COMELEC , 230 SCRA 469)

6) Metropolitan Trial Court, Municipal Circuit Trial Court, and Municipal Trial Court Barangay Officials [ Sec 2(2), Art IX-C, PC; Sec 252 BP 881; Regatcho vs. Cleto, 126 SCRA 342] Sangguniang Kabataan ( Sec 1, RA 7166)

Action which may be filed

i. Election Protest

Requisites:i. Must be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office.ii. On ground of fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votesiii. Within 10 days from the proclamation of the results of the election.

ii. Quo Warranto

Requisites:i. Filed by any registered voter in the constituencyii. On grounds of ineligibility or disloyalty to the Republic of the Philippinesiii. Within 10 days from the proclamation of the results of the election

Quo warranto in ElectiveOfficeQuo warrantoin Appointive Office

1. determination is eligibility of candidate-elect1. determination is legality of appointment

2. when person elected is declared ineligible, court cannot declare 2nd placer as elected, even if eligible

2. court may determine as to who among the parties has legal title to office

ELECTION OFFENSES(READ SEC. 261, BP 881, THIS ENUMERATION IS NOT COMREHESIVE I JUST COPIED THE HEADINGS)

(a) Vote-buying and vote-selling(b) Conspiracy to bribe voters(c) Wagering upon result of election(d) Coercion of subordinates(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion(f) Coercion of election officials and employees(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty-five days before a regular election and thirty days before a special election(h) Transfer of officers and employees in the civil service. - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.(i) Intervention of public officers and employees(j) Undue influence.(k) Unlawful electioneering(l) Prohibition against dismissal of employees, laborers, or tenants.(m) Appointment or use of special policemen, special agents, confidential agents or the like.(n) Illegal release of prisoners before and after election.(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign.(p) Deadly weapons. - Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns.(q) Carrying firearms outside residence or place of business.(s) Wearing of uniforms and bearing arms.(t) Policemen and provincial guards acting as bodyguards or security guards.(u) Organization or maintenance of reaction forces, strike forces, or other similar forces. - Any person who organizes or maintains a reaction force, strike force or similar force during the election period.(v) Prohibition against release, disbursement or expendit