Admin Law - Midterm Transcript 2013 v2

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Administrative LawMidterm Transcript

AY 2013-2014

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Compiled by MFLHExclusive for EH40

Administrative LawMidterm Transcription

(AY 2013-2014)

Atty. Renato M. Galeon

Definition of Administrative Law:

In a general sense, administrative lawembraces all

the law that controls, or is intended to control, the

administrative operations of government.

The focus of the first definition is administration of the

affairs of the government.

What is Administration?Administration can be viewed as a

function or an organization.

If viewed as a function, it refers to the execution in non-

judicial matters of the laws or the will of the state. Simply

put, it refers to the enforcement of the laws in a non-

judicial character.

If viewed as an organization, it refers to a group of persons

manning the affairs of the government for the time being.

Classifications of Administrative Law:

Internalrefers to the internal functioning of the

administrative agencies; refers to the legal sense of the

administration.

Ex. personnel administration, fiscal activities, planning

activities for each administrative agencies

Externaldeals with problems regarding or anent

government regulation. Its more on the external function

of the government/admin agencies; Performance of their

functions in relation to private individuals.

That branch of public law which fixes the organization

of government, determines the competence of the

administrative authorities who execute the law, andindicates to the individual remedies for the violation of

his rights (Goodnow, Comparative Administrative Law).

That system of legal principles which settles the

conflicting claims of the executive and administrative

authorities on the one hand and of the individual or

private right on the other (Freund, Cases on

Administrative Law).

Purpose of administrative Law:

The chief concern of administrative law, as all otherbranches of civil law, is the protection of private

rights.

CASE: PRC vs De Guzman, GR 144681 June 21, 2004

In the medical board examinations, the examinees from Fatima

College passed the exam. Surprisingly, in the 2 difficult subject,

Biochem and ObiGyn, 10 got perfect scores in BioChem and 11

got perfect scores in ObiGyn. Then 11 got a score of 99 in

BioChem and 21 got 99 in ObiGyn and not one examinee

coming from Fatima College failed in the examination.

Thus an investigation was conducted by the PRC and the NBI. It

was later found out by the NBI that there was a leakage, so the

PRC prohibited the passers of Fatima College to take their oath

as doctors/physicians.

Aggrieved, they filed a case seeking to compel the PRC to allow

them to take their oaths as doctors, invoking Sec. 20 of RA

2380, saying that as long as they passed the board

examinations, it becomes ministerial on the part of the PRC to

administer the oath.

PRC citing the same article contended that it has the power to

regulate the medical profession. The SC upheld the authority o

the PRC to regulate the medical board examination and the

medical profession. Any such regulation as thus imposed by the

PRC should not be construed as a containment of the rights of

the individuals to pursue their career. Rather, any such

regulation should be considered as a measure of protection of

the rights of private individuals, the SC said, we cannot just

entrust the lives of the Filipino people to doctors who are not

competent to practice medicine.

Function of Administrative Law:

The main function of administrative law is to make the

government machinery work well and in orderly

manner.


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Sources of Administrative Law:

a. Constitution;

COAcreated by Article 19; Human Rights Commission

Sec 17, Art 13; National Language Commission Art14, sec 9.

b. Special Legislations creating specialized agencies;

c. Revised Administrative Code of 1970;

d. 1987 Administrative Code (Executive Order No. 292);

Q: Would you still consider the Revised Administrative Code of

1970 as a good source of admin law or is it repealed by EO 292?

CASE: Mecano vs COA, GR 173982 Dec 11, 1992

Antonio Mecano was an officer of the NBI, he got hospitalized

and he claimed reimbursement of the medical expenses and he

anchored his claim on the basis of Sec 699 of the Revised

Administrative Code of 1970.

COA denied the claim, citing that the provision stated by

Mecano was already repealed by EO 292 or the 1987 Admin

Code because the latter code does not contain a similar

provision as stated in Art 699 of the 1970 Admin Code.

The SC ruled, only those provisions in the 1970 Admin which are

inconsistent with the provisions of the 1987 Admin Code are

considered repealed. In other words, not all provision of the

1970 Admin Code have been repealed, only those provisions

which are inconsistent with the 1987 Admin Code are

considered repealed.

SC said that while it is true that Sec 699 of the 1970 Admin Code

may not have been re-enacted by the 1987 Admin Code, that

does not mean that that provision has been repealed.

So that is why the Revised Admin Code of 1970 is still a good

source of Admin Law.

Kinds of Administrative Law:

a. Statutes setting up administrative authorities;

b. The body of doctrines and decisions dealing with

creation, operation, and effect of determinations and

regulations of such administrative authorities;

These are doctrine rendered by the SC interpreting the

rules and regulations of administrative bodies or agencies

concerned

c.

Rules, regulations, or orders of such administrative

authorities in pursuance of the purposes for which

administrative authorities were created or endowed;

and

Ex. Rules and regulations issued by the NLRC, SEC, etc.

d. Determinations, decisions, and orders of such

administrative authorities in the settlement of

controversies arising in their particular fields.

The decisions referred here is the decisions of the

administrative agencies themselves.

Definition of Terms:

Administrative Bodies or Agencies refer to the organ

of government, other than a court and other than a

legislature, which affects the rights of private parties

either through adjudication or rule-making.

Thus, an administrative body/agency does not belong

to a judiciary nor the legislature, but belongs to the

Executive department although it is performing quasi-

judicial functions thru adjudication and their rule

making power or their quasi-legislative function.

Agencyincludes any department, bureau, office,

commission, authority or officer of the National

Government authorized by law or executive order to

make rules, issue licenses, grant of rights or privileges

and adjudicate cases; research institutions with

respect to licensing functions; government

corporations with respect to functions regulating

private right, privilege, occupation or business; and

official in the exercise of disciplinary power as

provided by law (Section 2 [1], Chapter I, Book VII,

Executive Order No. 292).

Departmentrefers to an executive department

created by law (Section 2, par. 7, Introductory

Provisions, Executive Order No. 292).


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Ex. DFA, DOJ, DOF, DENR, DOLE

Bureaurefers to any principal subdivision or unit of

any department (Section 2, par. 8, Introductory

Provisions, Executive Order No. 292).

Ex. BIR under the Dept of Finance, NBI under the DOJ,

Bureau of Lands under DENR

Officerefers, 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 (Section 2, par. 9, Introductory Provisions,

Executive Order No. 292).

It is a component of a Bureau

Instrumentalityrefers to any agency of the National

Government, not integrated within the department

framework, vested with special functions or

jurisdiction by law, endowed with some if not all

corporate powers, administering special funds, and

enjoying operational autonomy, usually through a

charter. This term includes regulatory agencies,

chartered institutions and government-owned or

controlled corporation (Section 2, par. 10, IntroductoryProvisions, Executive Order No. 292).

Ex. MCIAA, PNOC (Phil National Oil Company), NPC

(National Power Corp), Phil National Railways, PPO

GOCCs fall under this category

Government of the Republic of the Philippines refers

to the corporate governmental entity through which

the functions of government are exercised throughout

the Philippines, including, save as the contrary appears

from the context, the various arms through which

political authority is made effective in the Philippines,

whether pertaining to the autonomous regions, the

provincial, city, municipal or barangay subdivisions or

other forms of local government (Section 2, par. 1,

Introductory Provisions,Executive Order No. 292).

So the various administrative agencies are integral

components or parts of the entire framework of the

Republic of the Philippines; the umbrella organization.

Reasons for creation of administrative agencies:

1. To meet the growing complexities of the modern

society;

2. To unclog court dockets;

3. To help in the regulation of ramified activities of

developing country;

4. To entrust to specialized agencies in specified fields

with their special knowledge, experience, and

capability the task of dealing with problems thereof as

they have the experience, expertise and power of

dispatch to provide solutions thereto.

Common Types of Administrative Agencies:

a) Agencies created to function in situations wherein the

government is offering some gratuity, grant, or specia

privileges.e.g. Philippine Veterans Board, Board on

Pensionsfor Veterans, Philippine Veterans

Administration, Government Service Insurance System

and the Social Security System.

b) Agencies set up to function in situations wherein the

government is seeking to carry on certain

governmental functions. e.g.Bureau of Immigration,

Bureau of Internal Revenue, Board of Special Inquiry

and Board of Commissioners, the Civil Service

Commission, the Central Bank.

c)

Agencies set up to function in situations wherein the

government is performing some business service for

the public. e.g.the Bureau of Posts, the Postal Savings

Bank, Metropolitan Waterworks and Sewerage

Authority, Philippine National Railways, the Civil

Aeronautics Administration (now MCIAA, MIAA).

d) Agencies set up to function in situations wherein the

government is seeking to regulate business affected

with public interest. e.g.Fiber Inspection Board, the

Philippine Patent Office, Office of the Insurance

Commissioner.


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e)

Agencies set up to function in situations where the

government is seeking under the police power to

regulate private business and individuals. e.g.

Securities and Exchange Commission, Board of Food

Inspectors, the Board of Review of Motion Pictures,

and the Professional Regulations Commission.

f) Agencies set up to function in situations wherein the

government is seeking to adjust individual

controversies because of strong social policy. e.g.

National Labor Relations Commission, the Court of

Agrarian Relations, the Regional Offices of the Ministry

of Labor, Bureau of Labor Standards.

Take note: the agencies falling under this category

performs quasi- judicial functions. So the problem is

how to determine if it is an admin agency or a court of

law. See criterion below

g) Agencies set up to function in situations where the

government is seeking to conduct investigations and

gather evidence for information, recommendations of

prosecution of crimes. e.g.Commission on Human

Rights, the National Bureau of Investigation and the

Prosecutors Office

Criterion: (in determining whether it is a government

agency/body or a court of law)

We must determine first their primary function.

A body or agency is administrative where its function is

primarily regulatory even if it conducts hearings and determines

to carry out its regulatory duty. On its rule-making authority, it

is administrative when it does not have discretion to determine

what the law shall be but merely prescribes details for the

enforcement of the law.

January 11, 2014From Atty Galeons summary discussion

The terms as used in the Administrative Code of 1997:

Departmentrefers to any executive department created by

law.

Bureaurefers to any principal subdivision or unit of a

department

Officerefers to any major functional unit or subdivision of an

department or bureau including regional offices.

Proceeding from the definitions, we can therefore say that the

Department is the larger unit;

A department may have different or several bureau under the

same, in like manner that a bureau may be composed of severa

offices.

Q: What kind of relationship does these administrative bodies

have in relation to each other?

A: Case: Beja, Sr vs DOTC

It was stated that the relationship between a department and

bureau and a bureau vis a vis an office may be classified as an

(1) attachmentor it may be categorized as that of (2) control;

or also may be categorized as (3) supervision.

(1) ATTACHMENT

Attachment- it is a lateral relationship between a department

or any of its equivalent or attached agency or corporation for

purposes of policy and program coordination.

And policy and program coordination may be accomplished, byallowing the department to have a representative in the

governing board or body in the attached agency, to ensure tha

there is coordination as regards to their policies and programs

The representative of the department of that particular

governing body or board of that attached agency may or may

not have a voting right depending on the provisions of the law.

So in attachment there is policy and program coordination, but

as regards to the day to day operations or internal functioning

of the attached agency, bureau or office, the same is left to thesound judgement of the officer in charge of that particular

body.

Meaning, the mother unit or department cannot decide the da

to day operations of the attached agency, because what they

only have if policy and program coordination.


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So in attachment, there is a larger measure of independence on

the part of the attached agency.

That is why in the case of BEJA vs DOTC, the SC said that the

admin case involving Mr. Beja, should have been decided by the

PPA Manager and not by the DOTC Secretary, because the PPA

is an attached agency of the DOTC. In other words, according to

the SC, PPA has a larger measure of independence such as the

case involving Mr. Beja should not have been decided by the

DOTC Sec but by the PPA Manager himself.

(2) CONTROL

But if the relationship between admin bodies is one of Control,

then the superior body or mother unit or superior officer, has

the authority to alter, modify, nullify and set aside what the

subordinate officer or agency had done. The superiorbody/officer has the authority to substitute his/her own

judgement from that of the subordinate which is not in

attachment.

In fact the superior officer may command the performance of

an act by the subordinate; in like manner the superior officer

may command the undoing of what has been done by the

subordinate officer. The superior officer may also perform what

the subordinate can lawfully do.

Unlike in attachment, there is no larger measure of

independence on the part of the subordinate agency where the

relationship is one of control.

This is the kind of relationship obtaining by and between the

President and the members of his cabinet.

Under Sec 17, Art 7 of the 1987 Constitution:

Section 17.The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure

that the laws be faithfully executed.

Alter Ego Doctrine/Principleall administrative offices are

considered adjuncts of the office of the President such that the

decisions or acts performed by the cabinet ministers in the

course of their business are considered acts and decisions of

the President himself, and these acts and decisions are

considered valid unless disapproved by the President.

So the President can alter, modify, nullify or set-aside the

decisions of his cabinet members.

Control therefore is pervasive as compared to attachment.

(3)

SUPERVISION

Supervisionthe mother unit or agency may only oversee the

performance by the subordinate of his duties and functions.

The mother unit cannot substitute his judgement from that of

the subordinate agency.

This is the relationship between the President and the various

Local Government Units.

Under Sec 4, Art 10 of the 1987 Constitution:

Section 4. The President of the Philippines shall exercisegeneral supervision over local governments.Provinces with

respect to component cities and municipalities, and cities and

municipalities with respect to component barangays, shall

ensure that the acts of their component units are within the

scope of their prescribed powers and functions.

So the President therefore cannot overturn the decisions of th

Local Government Officers or Units because his power over

them is nothing more than supervision.

Illustrative case:

CASE: Dadole vs COA, GR 125350, December 3, 2000

This involves the granting of allowances to the Judges of the

Mandaue City Courts. The city government of Mandaue grante

allowances to the Judges of the city courts of Mandaue in the

amount of Php 1,500. But the Department of Budget and

Management (DBM) under the office of the President, issued a

memorandum circular decreasing the amount from P1500 to

P1000 so there is a variance of P500 (Sir: Dako nana ang 500,

makapalit namu ana og isda, or vegetables if you are a

vegetatrian)

Aggrieved, the Judges of Mandaue City questioned the circular

by the DBM and the SC sustained the challenge mounted

against the validity of the memorandum circular issued by the

DBM. According to SC, the DBM and not even the President ha

the power to overturn the decisions of the LGUs because wha


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the President has over the LGUs is only the power of

supervision and not control.

So among the (3) relationships, the one that is most pervasive is

Control followed by Attachment and then Supervision.

Q: How would we know the kind of relationship by and

between two or more administrative bodies?

A: you look at the law or the charter creating those bodies

Examining the 1987 Constitution, we can observe that the

Constitution itself has created various admin bodies/agencies

like the Office of the President (under Art 7), then we have the

various independent commissions, like the COA, CSC, COMELEC,

NAPOLCOM, CHR, NLC, Ombudsman and NEDA, so these are

administrative bodies created by the 1987 Constitution.

All other admin bodies/agencies are created by law as thus

enacted by Congress or created by persons or tribunals

authorized by Congress to do so.

In other words, excepting admin bodies created by the

Constitution, all other admin agencies/offices are created

pursuant to a law enacted by Congress.

Simply put, creation of public offices other than those created

by the Constitution is primarily a Legislative function.

This is the function of Congress, and the power of Congress to

create admin bodies is supreme in that congress can decide for

itself what offices/agencies are considered essential or are

considered convenient or necessary to be created.

Similarly, congress can decide on the manner on how the

positions may be filled up as well as the duties and functions to

be performed by the holders of the offices where the congress

may create. The power of Congress to create a public office is

supreme.

No doubt Congress can create an office aside from those

created by the Constitution.

Q: How about the President, can he create a public office?

In our jurisdiction, the President can create a public office if

such creation is done in pursuance or in the course of

implementing a valid reorganization program. In carrying out a

valid reorganization program, the President is vested with the

authority to create or even abolish public offices.

Q: Can the President create a public office if such creation is

not done in pursuance to a valid reorganization program?

Assuming congress has not enacted any law.

CASE: Lagman vs Executive Sec. Ochoa, GR 193036 December

7, 2010

Remember Pres. Aquino issued EO 1, creating the Philippine

Truth Commission of 2010, supposedly to investigate the

anomalies of the past administration. Cong. Lagman, being an

ally of GMA, questioned the creation of such commission, it wa

contended by Lagman and others that the creation of a public

office is basically and primarily a legislative function, in otherwords, the petitioners contended that it is only Congress which

is vested with the power to create a public office.

According to the petitioners, there is no provision in the Admin

Code allowing the President to create a public office.

The SC, citing the second sentence of Sec 17, Art 7 of the 1987

Constitution providing:

Section 17.The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure


He can therefore create a public office like the truth

commission. In other words the President can create a public

office.

But in this case, the SC nullified the creation of The Truth

Commission, not because it was done without authority, but

because it was in violation of the equal protection clause

enshrined under Section 1, Art 3 of the 1987 Constitution.

According to the SC, the past administration of GMA was zeroe

in and was primarily the object of the supposed investigation.

SC said, there was a violation of the equal protection clause

because the other past administrations would not be

investigated by the Truth Commission. Such that if the truth

commission were created not only to run after GMA but also to

cover the past admin, then there was a good chance that the S


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would have decided to uphold the validity of the Truth

Commission.

Sir: so it was only a matter of putting an s in the words past

administration. Pnoy could have simply amended it but he did

not because in the first place he did not recognize the

appointment of CJ Corona as the Chief Justice. (Corona man siya

ni Gloria, he was the crown of glory)

So the President can create a public office pursuant to Sec 17,

Article 7 of the 1987 Constitution.

It is settled that Congress can create a public office or public

agency.

Q: Does Congress the power to abolish a public office/agency

that it created?

The power to create a public office necessary carries with it the

authority to abolish the same.

Such that pursuant to a valid reorganization program or law,

Congress may order the abolition of a public office or agency.

CASE: De La Llana vs Alba (NO LONGER CONTROLLING!)

It was ruled by the SC that Congress may even abolish lower

courts anchored on the provision of Sec 2, Art 8 of the 1987

Constitution.

Section 2. The Congress shall have the power to define,

prescribe, and apportion the jurisdiction of the various

courts but may not deprive the Supreme Court of its

jurisdictionover cases enumerated in Section 5 hereof.

No law shall be passed reorganizing the Judiciary when it

undermines the security of tenure of its Members.

With the express provision of the 2nd

par of Art 2, Sec 8 of the

1987 Constitution, the ruling in De La Llana vs Alba is no longer

controlling.

But insofar as the other admin bodies/agencies are concerned,

there is no doubt that Congress has the power to abolish the

same.

Take note: where congress has the power to abolish

administrative agencies, it has no power to abolish the admin

agencies/bodies created under or by virtue of the 1987

Constitution.

Verily, Congress cannot pass a law abolishing the COMELEC,

COA, etc. since these are Constitutional bodies and these

bodies are created by the Constitution itself, the constitution is

the supreme law of the land and cannot be amended by mere

legislation.

Such that Congress has the power to abolish public offices, it

does not have the power to abolish public offices created by th

Constitution, less the supremacy of the Constitution would be

violated.

Q: How about the President, does he have the authority to

abolish public offices created by Congress?

No, he cannot abolish the offices created by Congress and like

manner he cannot abolish the offices created by the Judiciary.

would be violative of the Separation of Powers.

Q: How about the offices under the executive department, ca

the President abolish those offices?

Yes, pursuant to a valid reorganization program can abolish

admin offices under the executive department.

Q: Do we have any legal provisions conferring upon the

President the power to abolish public offices under theexecutive department?

Sec 20, Book 3, of the 1987 Administrative Code

Sec. 20. Residual Powers.Unless Congress provides

otherwise, the President shall exercise such other powers and

functions vested in the President which are provided for unde

the laws and which are not specifically enumerated above, o

which are not delegated by the President in accordance with

law.

Even according to our jurisdiction, the President pursuant to hiResidual powers can perform even those functions or power

which may not have been expressly delegated to him by any

law.

Luckily for the President, in our jurisdiction, we have laws

granting him the authority to reorganize the various offices

belonging to the executive department.


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One such law is (1) PD 1416 as amended by PD 1772

These PDs have vested upon the President the continuing

authority to reorganize the various offices under the executive

department.

Are these decrees still controlling?

CASE: Larin vs Executive Secretary

According to the SC, and in fact under Sec 3, Art 18 of the 1987

Constitution:

Section 3.All existing laws, decrees, executive orders,

proclamations, letters of instructions, and other executive

issuances not inconsistent with this Constitution shall

remain operative until amended, repealed, or revoked.

According to the SC in this case, there is yet no law repealing or

amending PD 1416 as amended by PD 1772. These PDs

therefore would fortify the authority of the President to carry

out a reorganization of the various admin agencies or offices

under the executive department.

Then we have (2) Sec 31, Book 3 of the 1987 Administrative

Code:

Sec. 31. Continuing Authority of the President to Reorganize

his Office. The President, subject to the policy in the

Executive Office and in order to achieve simplicity, economyand efficiency, shall have continuing authority to reorganize

the administrative structure of the Office of the President.

For this purpose, he may take any of the following actions:

XXX

Far more important we have (3) Sec 17 Article 7 of the 1987

Constitution:

Section 17. The President shall have control of all the

executive departments, bureaus, and offices.He shall ensure


In other words, there is no doubt now that the president has

the power to abolish admin agencies/office under the executive

department pursuant to a valid reorganization program.

So, except those created by the constitution, all other admin

bodies/agencies/offices may be abolished pursuant to a

reorganization plan/program.

Reorganization is the process by which there is restructuring

of the bureaucracies agency or setup, to make it more viable in

terms of economy, efficiency and effectiveness, and to make

these agencies responsive to the needs of the public.

Purpose of Reorganizationis to promote economy, efficiency

and effectiveness.

That explains why abolition of offices is allowed pursuant to a

valid reorganization. But reorganization may not be had by the

astringent act of changing the name of a particular office as in

the Case of Crisostomo vs CA.

In that case there was but a re-naming of the Philippine College

of Commerce to The Polytechnic College of the Philippines. SC

said, it is the same although with a different color.

So, Reorganization may not be had by the simple act of

changing the name of the office.

As mentioned before that an office may be abolished pursuant

to reorganization program, so reorganization therefore may

involve abolition of offices.

Q: Isnt it therefor inconsistent with security of tenureafforded to those belonging to the Civil Service? Isnt it

violated if an office is abolished pursuant to a reorganization

program?

No, according to the SC, when you speak about tenure of an

office, this presupposes the existence of an office. Conversely

when there is no office, there is no security of tenure to speak

of.

Again, Security of Tenure is not violated by abolishing an office

pursuant to a valid reorganization program, because Security o

Tenure presupposes the existence of an office.

And it is in this context that we can differentiate removal from

abolition/termination of employment by reason of abolition of

office.


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When we talk about removal, this presupposes that the office

still exists. But termination due to abolition of office

necessitates the abolition of an office.

Although the end result is the same, removal if different from

termination by reason of abolition of office.

But it does not mean that Congress can simply abolish an admin

agency/office without any condition. Because among other

things, reorganization should be implemented in good faith.

Otherwise tainted, if the reorganization resulting in the

abolition of an office is done in bad faith, then any such

abolition of office is there for invalid.

Q: How do we know that such reorganization is carried out in

bad faith or good faith?

We need to consider the provision in RA 6656 Sec 2, Badges of

Bad Faith:

Section 2.No officer or employee in the career service shall

be removed except for a valid cause and after due notice and

hearing. A valid cause for removal exists when, pursuant to a

bona fide reorganization, a position has been abolished or

rendered redundant or there is a need to merge, divide, or

consolidate positions in order to meet the exigencies of the

service, or other lawful causes allowed by the Civil Service

Law. The existence of any or some of the following

circumstances may be considered as evidence of bad faith in

the removals made as a result of reorganization, giving rise

to a claim for reinstatement or reappointment by an

aggrieved party:

(a) Where there is a significant increase in the number of

positions in the new staffing pattern of the department or

agency concerned;

Sir: Ex. If one agency has 10 offices but under the new staffing

pattern pursuant to a reorganization, those 10 offices became

20. If that is the case, then it is done in bad faith because one of

the primary purposes of reorganization is to promote economy.But where is economy there?

So bad faith because of a substantial increase of the number of

positions in the new staffing pattern.

(b) Where an office is abolished and other performing

substantially the same functions is created;

Sir: Its like saying 1 1 = 1. Imung gi-abolish pero naa lang

gihapon.

So it is not consistent with economy, where is economy nag i-

ilisan ra nimu og pareho ra.

(c) Where incumbents are replaced by those less qualified

in terms of status of appointment, performance and meri

Sir: One of the primary objectives of reorganization is to

promote efficiency, but how can you achieve efficiency when

the incumbents are replaced by less qualified personnel?

Ex. Lawyers ang incumbent nya pulihan og paralegal, dili pajud

graduate sa San Carlos.

(d) Where there is a reclassification of offices in the

department or agency concerned and the

reclassified

offices perform substantially the same function as the

original offices;

(e) Where the removal violates the order of separation

provided in Section 3hereof.

Under Sec 3 of RA 6656:

Section 3.In the separation of personnel pursuant to

reorganization, the following order of removal shall be

followed:

(a) Casual employees with less than five (5) years of

government service;(1st TO GO)

(b) Casual employees with five (5) years or more of

government service;(2nd TO GO)

(c) Employees holding temporary appointments; (3rd

TO GO) and

(d) Employees holding permanent appointments:

provided, that those in the same category as

enumerated above, who are least qualified in terms

of performance and merit shall be laid first, length of

service notwithstanding. (Last TO GO)

Ex. The first batch removed were casual employees with

less than 5yrs experience and there are 10 of them, 5 ar

non-performing (tapulan) and the other 5 are

performing.


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Under Sec 3 of RA 6656, the first ones to go are those

casual employees least qualified especially those who are

non-performing although they belong to the same class

having less than 5 years experience.

The same goes with permanent employees, those whoare least qualified especially those who are non-

performing will be laid off first, notwithstanding their

length of service.

So Seniority does not matter.

So again, if the order of separation under Sec 3 of RA 6656is

not followed, it may be inferred that the reorganization is done

in bad faith as provided for in Sec 2(e) of RA 6656.

You have to take into consideration also Sec 4 of RA 6656:

Section 4.Officers and employees holding permanent

appointments shall be given preference for appointment to

the new positions in the approved staffing pattern

comparable to their former position or in case there are not

enough comparable positions, to positions next lower in

rank.

No new employees shall be taken in until all permanent

officers and employees have been appointed, including

temporary and casual employees who possess the necessary

qualification requirements, among which is the appropriate

civil service eligibility, for permanent appointment topositions in the approved staffing pattern, in case there are

still positions to be filled, unless such positions are policy-

determining, primarily confidential or highly technical in

nature.

What is given here is just a priority, their re-hiring is not

mandatory. They may be re-hired if they will qualify under the

new staffing pattern. Otherwise if they will not meet the

qualifications under the new staffing pattern, then those

affected by a valid reorganization cannot demand that they be

re-hired as a matter of right.

---------------------------------------------------------

PART 2 Administrative Law

January 17, 2014

The form of Government that we have right now is a

Presidential form of Government composed of the 3 branches,

the Executive, Legislative and Judiciary branch.

Legislativetask to enact and repeal laws;

Executiveenforce laws enacted by congress;

Judiciaryinterpreting the laws in conformity with the

Constitution;

The duty of the Judiciary includes the duty to settle actual

controversies involving rights which are legally demandable an

enforceable and to determine WON there is grave abuse of

discretion amounting to lack or excess of jurisdiction on any

part or instrumentality of the government. (Otherwise known

as Judicial Review)

Judicial Reviewto determine whether laws like executive act

are in conformity with the Constitution.

Looking at the functions, it can be concluded that each branch

is separate and distinct from each other.

Purpose of Presidential form:To prevent concentration of

powers to one branch or person in the government.

We will learn that some administrative agencies perform quasi

judicial and quasi-legislative powers.

Q: Is this consistent with the doctrine separation of powers?

A: Yes, while it may be said that the 3 major branches are

distinct and separate from each other their relationship can be

best described as interdependence instead of independence.

Interdependence in the sense that there are interactions by an

between the major branches of the government demonstrated

by their Checks and Balances of powers.


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Illustration of Checks and Balances:

(1) Creation of Laws (Legislative)Approved by

President (Executive)President may veto the bill

(Executive)Congress may disregard/override the

veto (Legislative);

(2) 1987 Constitution; Article VII, Section 16. The

President shall nominate and, with the consent of the

Commission on Appointments, appoint the heads of

the executive departments, ambassadors, other public

ministers and consuls, or officers of the armed forces

from the rank of colonel or naval captain, and other

officers whose appointments are vested in him in this

Constitution. XXX

Commission on Appointments (Legislative) approves

the appointment by the President (Executive)

(3) President appoints the Judges and Justices of the lower

courts and the high courts.

(4) President can also grant pardons, amnesty even if the

Judiciary already sentenced the accused.

(5) Judiciary can declare acts of the President as contrary

to the Constitution via Judicial Review.

(6) 1987 Constitution, Art VII, Section 2. The Congress

shall have the power to define, prescribe, and

apportion the jurisdiction of the various courts but

may not deprive the Supreme Court of its jurisdiction

over cases enumerated in Section 5 hereof.

(7) Judiciary can declare a law enacted by Congress as

unconstitutional via Judicial Review.

There are also situations where there is Blending of Powers

Ex:

(1) The approval of the Budget for the national government

the budget shall be prepared by the office of the

President and given to Congress to approve it. There is

interaction/blending of powers, by and between the

President and Congress.(2) As regards to Presidential appointmentsthere is

interaction between the President and the Commission

on Appointments

(3) As regards to a treatyit should be approved by the

Senate, there is coordination with the President and the

Senate when it comes to approval of treaties.

There are also situations where some branches performs

functions which are vested in other branches.

Ex:

(1)

1987 Constitution, Art VI, Section 21. The Senate or

the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislatio

in accordance with its duly published rules of

procedure. The rights of persons appearing in, or

affected by, such inquiries shall be respected.

Normally investigations are conducted by the Judiciary

(2) 1987 Constitution, Art VI, Section 23.

XXX

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.

When this happens, the President may issue

Presidential issuances or decrees which have the forceand effect of laws, so the President can perform

legislative functions. Usually Congress has the power

to enact laws, so here there is blending of powers.

SO the performance of an office of multiple is not new to us.

That is why administrative bodies can perform administrative

functions, quasi-judicial and quasi-judicial functions.

Take note:that what are conferred upon admin bodies andadmin officers are powers and not rights.

It is imperative that there should be a grant of authority to the

public officer/office either expressly or impliedly/indirectly so

as to justify their action, because without any grant of power,

their action therefor lack validity.


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What have you learned while watching Spiderman?

With great power comes great responsibility

Classification of the Powers of Admin bodies:

(1) Expressed, (2) Implied.

Expressed powerthis power is specifically conferred upon to

a public officer/office either by the Constitution or by law.

There is express conferment.

These are the powers clearly stated in black in white by the

Constitution or a statute.

Implied Powers- powers necessarily implied from powers

expressly granted.

These are powers that are necessary included in the powers

expressly granted upon a public officer/office.

This is pursuant to the Doctrine of Necessary Implication

Doctrine of Necessary Implicationa law or statute is

understood by implication to include any or all provisions as

necessary to carry out or effectuate its purpose and to make

effective the rights, privileges and powers that the law confers.

This doctrine is founded on the fact and truism that There can

be no law that can provide all the necessary details in itsapplication

Illustration:

1987 Constitution; Article VII, Section 16. The President

shall nominate and, with the consent of the Commission on

Appointments, appoint theheads 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.

This provision is an express power, but this also comes with the

implied power by the President to remove the officers who are

appointed by him.

The power of removal vested on the President is an implied

power derived from the expressed power to appoint granted by

the Constitution.

TAKE NOTE! (kapila niya gi-balik2x):Implied power is but a

power that is necessary included in expressed powers.

Naturally an implied power is lesser in degree compared to an

expressed power conferred to a public officer.

Pursuant to the Doctrine of Necessary Implication there is this

principle that The power to create a public office necessary

carries with it the power to abolish the same

Similarly, the power to grant licenses carries with it the power

to revoke the same.

Verily, where the law provides that the President may not

deport aliens without due process of law, then impliedly that

law vests upon the President also the power to deport.

Again! (balik2x): Implied Powers are powers necessarily implie

from powers expressly granted. An implied power is lesser in

degree compared to an expressed power because the grant of

power excludes greater power.

Illustration:

(1) The situation of the Commission on Human Rights (CHR)

under the Constitution, it is conferred with the power to

investigate human rights violations, it is empowered to

gather evidence and to create/proceed with fact finding

Q: Can the CHR decide cases on human right violations

under the pretext of implied power?

A: NO! because, the doctrine is that an implied power is

lesser in degree than an expressed power.

The power to decide a case is greater than the expresse

power to investigate. (so ang implied power dili dapat

mulabaw sa expressed power)

(2) The Civil Service Commission (CSC), under existing laws

they have appellate jurisdiction involving disciplinarycases where there is an imposition of penalties ranging

from demotion, suspension or fine.

Q: May the CSC exercise its appellate jurisdiction wher

the respondent is absolved of the charges or acquitted

A: NO! because if we allow that, it is as if we are

expanding the scope of their appellate jurisdiction.


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TAKE NOTE Again!Implied powers cannot exceed the powers

which are expressly granted.

An express grant of power/authority does not include by

implication powers, the exercise of which, may run contrary to

the Constitution or the law conferring express powers or to any

other law dealing with the same subject matter.

Ex #1

1987 Constitution; Article VII, Section 16. The President

shall nominate and, with the consent of the Commission on

Appointments, appoint theheads 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 can appoint member of his cabinet. Pursuant to his implied

power, he has the power to remove members of his cabinet.

But while the President has the power to appoint career

executive positions, the president cannot remove them because

under the Constitution career executive positions may only be

removed for cause.

Implied power can never be exercised to run contrary to the

Constitution.

Ex #2: The Appointment of judges and justices of the Supreme

Court

1987 Constitution; Article VIII, Section 9.The Members of

the Supreme Court and judges of lower courts shall be

appointed by the President from a list of at least three

nominees preferred by the Judicial and Bar Council for

every vacancy. Such appointments need no confirmation.

GR: The power to appoint necessarily carries with it the power

to remove.

Q: Can the President remove the Justices of the SC appointed

by him?

A: NO! even if there is an implied power to remove derived

from the power to appoint. The president cannot remove the

Justices of the SC.

1987 Constitution; Article XI, Section 2.The President, the

Vice-President, the Members of the Supreme Court,the

Members of the Constitutional Commissions, and the

Ombudsman may be removed from office on

impeachmentfor, and conviction of, culpable violation of

the Constitution, treason, bribery, graft and corruption,other high crimes, or betrayal of public trust. All other

public officers and employees may be removed from office

as provided by law, but not by impeachment.

This is an example to the end that an implied power can never

be exercised if it runs contrary to the Constitution.

Q: As regards to judges of the lower courts who are appointed

by the president, can he validly remove them?

A: NO!

1987 Constitution; Article VII, Section 11. The Members o

the Supreme Court and judges of the lower court shall hol

office during good behavior until they reach the age of

seventy years or become incapacitated to discharge the

duties of their office. The Supreme Court en banc shall

have the power to discipline judges of lower courts, or

order their dismissalby a vote of majority of the Members

who actually took part in the deliberations on the issues in

the case and voted in thereon.

AGAIN GI-BALIK2x:So this verifies that an implied power can

never be exercised if it runs contrary to the Constitution. (basindaw kuno MCQ ni mugawas)

The powers of Admin bodies may also be categorized as:

(1) Ministerial; and (2) Discretionary Powers

Ministerial Power/Functionthis is the kind of power

specifically mentioned so as to leave no room for the exercise

of discretion in the enforcement or exercise thereof.

It is the kind of act which a public officer/office is duty bound t

perform under the given set of facts, in the manner prescribed

by law or pursuant to the mandate of the law, without regard t

the discretion of the officer involved. (KEEP YOUR DISCRETIONS

TO YOURSELF kay wala nay labot sa imung ministerial function


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Ex:

1. Land registration;

2. Art 18 of the Family Codein the issuance of marriage

licenses, even if the LCR knows the existence of a legal

impediment on the part of the applicant, he has no

choice but to issue the marriage license if all

requirement are complied with, along with the

necessary publication and an order by the court to

issue the marriage license.

Discretionary Powerspowers that a public officer may

perform on the basis of his discretion or sound judgement.

Discretionthe faculty conferred on a public officer to act or

decide on a particular situation or matter, and any such

decision is deemed correct.

Ex:

1. Power of the President to call out the armed forces.

1987 Constitution; Article VII, Section 18. The

President shall be the Commander-in-Chief of all

armed forces of the Philippines and whenever it

becomes necessary, he may call out such armed

forces to prevent or suppress lawless violence,

invasion or rebellion. XXX

Case: IBP vs Zamora

The calling of the armed forces by the President is

discretionary on his part.

If he calls the armed forces he is correct, if he does not

call the armed forces he is also correct. So either way

he decides it, he is always correct because such power

is discretionary on his part.

Q: What is the purpose of knowing whether a power is

discretionary or ministerial?

A: because if the function performed is Ministerial, non-

performance of which can be remedied thru Mandamus.

Petition for Mandamuslies in the event that there is non-

performance of a ministerial function or duty.

Where the power is discretionary, Mandamus will not lie. Your

remedy is a petition for Certiorari if there is grave abuse of

discretion amounting to lack or excess of jurisdiction.

We must know the kinds of powers to know the remedies.

**Controversial question**

Q: Is the issuance of Mayors Permits ministerial?

Sir: Yes, if all the requirement are met, otherwise if the Mayor

issues permits to person similarly situated but not to you, then

you can invoke the due processor equal protectionclause

Ex:

You have all the req. but the Mayor did not grant you a

permit but granted the others. You can question the act ofthe mayor.

Case: Lim vs CA

Lim refused to renew the business permits of Bistro

something etc. Refusal to issue licenses can be compelled

thru mandamus because SC said that they had no power to

withhold the license since they already complied with the re

and that there was no showing of any violation.

Q: How about an issuance of a rally?

Sir: the Mayor cannot just reject the application based on his

discretion, there has to be basis.

Sort of contradictory ang issue sa Mayors permit sa Election of

sa Admin. So lets just stick to unsay ganahan ni sir nga

issuance of a Mayors permit is a ministerial function if all

requirements are met and that there is no ground for denial. It

only becomes discretionary if there is a ground to deny like the

exercise of Police Power

Discretionary powers means either way you do it, your decisio

must always be legal.


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Powers can also be classified as:

(1) Mandatory; (2) Directory; and (3) Permissive

Mandatoryif the performance or non-performance thereof is

strictly mandated.

Mandatory Statutecommands the positively doing of an act

or commands negatively that an act be not done.

Ex.

Postive Mandatory Statute: Daghan like Cases riped for

decision (to decide a case when it is ready to be decided)

Negative Mandatory Statute: RPC, Art 264 Labor Codenopublic officer or a member of the AFP or PNP shall escort

any person who are to placed workers under strike; the

PNP should be kept out of the picketing lines.

Periods to perfect an appealMANDATORY

Periods for filing an actionMANDATORY

Period to render judgement by a judge - DIRECTORY

The test is not on the basis of the usage of the words shallor

may.

The real test is that if no injury will result from the fact that the

order is ignored or no substantial right is based thereon, then

any such law is Directory. If it will cause injury then it is

Mandatory.

TYPE OF EXAM: MOSTLY MCQ, TRUE or FALSE, ESSAY

DISCUSSION (gamay lang)

---END OF MIDTERM DISCUSSION---

God Bless natoh sa exam!

Inum daw tah lahos after sa Transpo na exam inig sabado..

Admin Law - Midterm Transcript 2013 v2

Documents

Transcript of Admin Law - Midterm Transcript 2013 v2