Elections Reviewer for Finals

8/12/2019 Elections Reviewer for Finals

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Election Laws: 2011 Finals ReviewerThis reviewer has two parts:

1. Outline based laws and cases2. Discussion based Transcriptions

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Outline Based Laws and Cases

III. COMMISSION ON !CTIONS

a. Co"position and #uali$ications%rt. I&' C' Sec. 1 (1) There shall be a Commission on Electionscomposed of a Chairman and six Commissioners who shall be natural-

born citizens of the Philippines and, at the time of their appointment, atleast thirty-five years of age, holders of a college degree, and must nothave been candidates for any elective positions in the immediatelypreceding elections. owever, a ma!ority thereof, including theChairman, shall be members of the Philippine "ar who have beenengaged in the practice of law for at least ten years.# chairman$ commissioners

%ualifications&

'atural-born citizen

- (ho are natural-born citizens)#. citizens of the Philippines from birth who do not need toperform any act to ac*uire or perfect their Philippinecitizenship.

+. Those who elect Philippine citizenship under rt. , /ec#012.

3 least 14 years old

College degree

5ust '6T have been candidates for any elective position in

the immediately preceeding elections.

Chairman& member of Phil. "ar 7 practiced law for 3 least #8

years

3 least ma!ority of commissioners member of Phil. "ar 7

practiced law for 3 least #8 yearsTerm& 9 years without reappointment, inorder to assure theindependence of comelec.

-5ust not be engage in any other profession.-/alary is fixed by law and cannot be increased during tenure.

as fiscal autonomy and there is assurance that approval ofannual appropriations shall be automatic and regular.

-:emovable only by impeachment.

%rt. *II' Sec. 1+' par. 2 The spouse and relatives by consanguinity oraffinity within the fourth civil degree of the President shall not, during histenure, be appointed as 5embers of the Constitutional Commissions, orthe 6ffice of the 6mbudsman, or as /ecretaries, ;ndersecretaries,chairmen or heads of bureaus or offices, including government-ownedor controlled corporations and their subsidiaries.

Ca,etano vs. MonsodPractice of law means any activity, in or out of court, which re*uires theapplication of law, legal procedure, enerally, to practice law is to givenotice or render any overnment, including the rmed Horces of the Philippines,for the exclusive purpose of ensuring free, orderly, honest,peaceful, and credible elections.

1


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Election Laws: 2011 Finals Reviewer042 :egister, after sufficient publication, political parties,organizations, or coalitions which, in addition to otherre*uirements, must present their platform or program ofgovernment? and accredit citizensI arms of the Commissionon Elections. :eligious denominations and sects shall not beregistered. Those which see< to achieve their goals throughviolence or unlawful means, or refuse to uphold and adhereto this Constitution, or which are supported by any foreigngovernment shall liovernment or any subdivision, agency, orinstrumentality thereof, including any government-owned or controlled

corporation or its subsidiary. /uch supervision or regulation shall aim toensure e*ual opportunity, and e*ual rates therefor, for publicinformation campaigns and forums among candidates in connection

with the ob!ective of holding free, orderly, honest, peaceful, and credibleelections.

and ad!ucatory powers 0*uasi-!udicial2

/ec. +. The Commission on Elections shall exercise thefollowing powers and functions&

0+2 Exercise exclusive original !urisdiction over all contestsrelating to the elections, returns, and *ualifications of allelective regional, provincial, and city officials, and appellate

!urisdiction over all contests involving elective municipal

officials decided by trial courts of general !urisdiction, orinvolving elective barangay officials decided by trial courts oflimited !urisdiction.

Gecisions, final orders, or rulings of the Commission onelection contests involving elective municipal and barangayoffices shall be final, executory, and not appealable.

/ection 1. The Commission on Elections may sit en bancorin two divisions, and shall promulgate its rules of procedure inorder to expedite disposition of election cases, including pre-proclamation controversies. ll such election cases shall beheard and decided in division, provided that motions forreconsideration of decisions shall be decided by theCommission en banc.

mportance of classifying the powers& because procedureJ

remedies are different depending on whether it exercisesad!ucatory or administrative powers

o "ayan vs. Comelec& re*uirement that decisions,

ruling and final orders of comelec involving electiveofficials are re*uired first to go through variousstages, plus the re*uirement that must go throughcomelec in division before proceeding en banc 0see/ec. 1, rt. B-C of the #B9 Constitution2 pertainsonly to powers exercised by comelec in its *uasi-

!udicial powers

Taule v Santos

The !urisdiction of the C65EDEC does not cover protests over theorganizational set-up of the


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Election Laws: 2011 Finals Reviewer

De >esus vs 4eople

C65EDEC and not /" has !urisdiction to try election offices

committed by public officer in relation to his office

The grant to the C65EDEC of the power, among others, to

enforce and administer all laws relative to the conduct ofelection and the concomitant authority to investigate andprosecute election offenses is not without compelling reason.The evident constitutional intendment in bestowing this powerto the C65EDEC is to insure the free, orderly and honestconduct of elections, failure of which would result in thefrustration of the true will of the people and ma


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Election Laws: 2011 Finals ReviewerCo"elec vs Ta5le

t must be stressed that the C65EDEC has the exclusive

power to conduct preliminary investigation of all electionoffenses punishable under the election laws and to prosecutethe same, except as may otherwise be provided by law. ##The Chief /tate Prosecutor, all Provincial and CityProsecutors, or their respective assistants are, however, givencontinuing authority, as deputies of the C65EDEC, to conductpreliminary investigation of complaints involving electionoffenses and to prosecute the same. This authority may berevoovernmentwould be warranted only before the elections and only toensure free, honest, orderly, peaceful and credible elections,that is, to perform the peace-overnment where the prosecution and other officersdeputized are ordinarily located.

4eople vs Intin5

Goes a preliminary investigation conducted by a Provincial

Election /upervisor involving election offenses have to becoursed through the Provincial Hiscal now ProvincialProsecutor, before the :egional Trial Court may ta


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Election Laws: 2011 Finals Reviewer present their platform or program of government

religious denominations and sects shall not be registered

refuse registration to those

o which see< to achieve goals through violence and

unlawful means oro refuse to uphold and adhere to the constitution or

o which are supported by any foreign government

cancel registration when accept financial contribution from

foreign governments and their agencies

free and open party system according to the free choice of the

people

for votes to be valid, the political party, organization orcoalition shall be registered

political parties, organizations or coalitions shall be entitled to

appoint poll watchers in accordance with law but they shall notbe represented in the voters registration "E, "6C or othersimilar bodies

party list representatives shall constitute +8 of the total

number of representatives including those under the party list

for 1 consecutive terms, Q of the seats allocated to party list

representatives shall be filled from the labor, peasant, youth,urban poor, indigenous cultural communities, women, youthand such other sectors as may be provided by law except thereligious sector

3a5on5 3a,ani vs Co"elec

>ive them the opportunity to be elected and to represent thespecific concerns of their constituencies? and simply to givethem a direct voice in Congress and in the larger affairs of the/tate.

c.< e5ulation o$ public utilities and "edia o$ in$or"ation 7%rt 8' C'Sec /; Sec 89

superviseJ regulate franchises or permits for the operation of

transportation and other public utilities, media ofcommunication or information, all grants, special privileges orconcessions granted by the government or any subdivision,agency, or instrumentality thereof

N4C vs Co"elec

The Comelec has thus been expressly authorized by the

Constitution to supervise or regulate the en!oyment orutilization of the franchises or permits for the operation ofmedia of communication and information. The fundamentalpurpose of such =supervision or regulation= has been spelledout in the Constitution as the ensuring of =e*ual opportunity,time, and space, and the right to reply,= as well as uniform andreasonable rates of charges for the use of such mediafacilities, in connection with =public information campaigns andforums among candidates.=

o Dimited in the duration of its applicability and

enforceabilityo Dimited in the scope of application

o Exempt from prohibition the purchase or donation to

the Comelec

The li"itation bears a clear and reasonable connection

with constitutional ob?ective

SES vs Co"elec

ccording to the Court, /ection 4.F was invalid because of

three reasons&o 0#2 it imposed a prior restraint on the freedom of

expression,o 0+2 it was a direct and total suppression of a

category of expression even though suchsuppression was only for a limited period, and

o 012 the governmental interest sought to be promoted

could be achieved by means other than thesuppression of freedom of expression.

c.8. ule-"aAin5 7%rt 8' %' Sec 9

commission en banc may promulgate own rules concernin5

pleadin5s and practicebefore it or before any of its offices

such rules shall not diminish, increase or modify substantive

rights

%ruelo vs C%Constitutionally spea


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Election Laws: 2011 Finals Reviewerprovincial and city offices and its appellate !urisdiction to those involvingmunicipal and barangay offices Nrt. A-C, /ec. +0+2O.

The power of the :ET, as the sole !udge of all contests relating to theelection, returns and *ualifications of the 5embers of the ouse of:epresentatives, to promulgate rules and regulations relative to matters

within its !urisdiction, including the period for filing election protestsbefore it, is beyond dispute. ts rule-ma


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Election Laws: 2011 Finals ReviewerC65EDEC can cite in defending its action. Hor ultimately, theappreciation of the "ulacan ballots that the C65EDECundertoo< side by side with the /ETIs own revision of ballots,constitutes an exercise of discretion made under the authorityof the above-cited C65EDEC rule of procedure.

c.11. eview o$ decisions 7%rt 8' C' Sec 2(2)9; %rt 8' %' Sec 09

appellate !urisdiction over all contests involving elective

municipal officials decided by :TC or involving electivebarangay officials decided by 5TCs

decisions, final orders or rulings of the commission on election

contests involving elective municipal and barangay offices

shall be final, executory and not appealable shall decide by a ma!ority vote of all its members any case or

matter brought before it within $8 days from the date of itssubmission for decision or resolution

deemed submitted for decision or resolution upon fling of the

last pleading, brief or memorandum

any decision or ruling may be brought to the /C on certiorari

wJin 18 days from receipt of a copy thereof

lores vs Co"elec

the decision rendered by the 5unicipal Circuit Trial Court of

Tayum, bra, should have been appealed directly to theCommission on Elections and not to the :egional Trial Courtof bra.

the provision of rticle A-C, /ection +0+2 of the Constitution

that =decisions, final orders, or rulings of the Commission onelection contests involving elective municipal and barangayoffices shall be final, executory, and not appealable= appliesonly to *uestions of fact and not of law.

That provision was not intended to divest the /upreme Court

of its authority to resolve *uestions of law as inherent in the!udicial power conferred upon it by the Constitution.

unless otherwise provided by this Constitution or by law, any

decision, order or ruling of each Commission may be broughtto the /upreme Court on certiorari by the aggrieved party

within thirty days from receipt of a copy thereof.

Harces vs C%

This provision is inapplicable as there was no case or matter

filed before the C65EDEC.

6n the contrary, it was the C65EDECIs resolution thattriggered this controversy. The =case= or =matter= referred toby the constitution must be something within the !urisdiction ofthe C65EDEC, i.e., "ust pertain to an election dispute.

the settled rule is that =decision, rulings, order= of the

C65EDEC that may be brought to the /upreme Court oncertiorari under /ec. 9, rt. A- are those relate to theC65EDECIse6ercise o$ its ad?udicator, or uasi-?udicialpowers involving =elective regional, provincial and cityofficials=.

n this case, what is being assailed is the C65EDECIs choice

of an appointee to occupy the >utalac Post which is anadministrative duty done for the operational set-up of anagency.

The controversy involves an appointive, not an elective,

official. ardly can this matter call for the certiorari !urisdictionof the /upreme Court. To rule otherwise surely burden theCourt with trivial administrative *uestions that are bestventilated before the :TC, a court which the law vests with thepower to exercise original !urisdiction over =all cases not withinthe exclusive !urisdiction of any court, tribunal, person or bodyexercising !udicial or *uasi-!udicial functions.

D. iscal %utono", 0rt B, , /ec 42

en!oy fiscal autonomy

approved annual appropriations shall be automatically and

regularly released

I*. unda"ental 4rinciple%. 4eoples choice as $unda"ental consideration; 2ndplacer rule

Heroni"o vs a"os

it would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate whohas not ac*uired the ma!ority or plurality of votes isproclaimed a winner and imposed as the representative of aconstituency, the ma!ority of which have positively declaredthrough their ballots that they do not choose him.

!abo vs Co"elec

he obtained only the second highest number of votes in the

election, he was obviously not the choice of the people

The fact that the candidate who obtained the highest number

of votes is later declared to be dis*ualified or not eligible for

the office to which he was elected does not necessarily entitlethe candidate who obtained the second highest number ofvotes to be declared the winner of the elective office. Thevotes cast for a dead, dis*ualified, or non-eligible person maynot be valid to vote the winner into office or maintain himthere. owever, in the absence of a statute which clearlyasserts a contrary political and legislative policy on the matter,if the votes were cast in the sincere belief that the candidate

was alive, *ualified, or eligible, they should not be treated asstray, void or meaningless.

Topacio v. 4aredes (2+ 4hil. 2+


8/31

Election Laws: 2011 Finals Reviewer there must be final !udgment be$orethe election for the votes

of a dis*ualified candidate to be considered KstrayL

hence, when a candidate has not yet been dis*ualified by final

!udgment during the election day and was voted for, the votescast in his favor cannot be declared stray

to do so would amount to disenfranchising the electorate in

whom sovereignty residesrationale&

the people voted for him bona fide without any intention to

misapply their franchise and in the honest belief that thecandidate was then *ualified to be the person to whom they

would entrust the exercise of the powers of the government Subseuent disuali$ication o$ a candidate who obtained

the hi5hest nu"ber o$ votes does not entitle thecandidate who 5arnered the second hi5hest nu"ber o$votes to be declared the winner

n >eronimo vs. :amos, # if the winning candidate is not

*ualified and cannot *ualify for the office to which he waselected, a permanent vacancy is thus created.

The second placer is !ust that, a second placer R he lost in

the elections, he was repudiated by either the ma!ority orplurality of voters.

e could not be proclaimed winner as he could not be

considered the first among the *ualified candidates.

To rule otherwise is to misconstrue the nature of the

democratic electoral process and the sociological and

psychological underpinnings behind votersI preferences.

4art II

!%ES ON 43!IC OICS

I. INTODCTOJ CONC4TS

%. 43!IC OIC %ND 43!IC OICS

public officer S one who holds a public office

%rt 11' 18


9/31

Election Laws: 2011 Finals Revieweror5aniBation o$ the Co""ission until it might pleaseCongress to change such internal organization regardless ofthe ever changing needs of the Civil /ervice as a whole.

To the contrary, the legislative authority had expressly

authorized the Commission to carry out =changes in theorganization,= =as the need Nfor such changesO arises.=ssuming, for purposes of argument merely, that legislativeauthority was necessary to carry out the


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!MNTS:

#. createdby lawor by authorit, o$ law

+. possess a dele5ation o$ a portion o$ the soverei5n powers o$5overn"ent,

to be exercised for the bene$it o$ the public

1. powersconferred and dutiesimposed must be de$ined' directl, ori"pliedl,,

by the le5islature or b, le5islative authorit,

F. duties "ust be per$or"ed independentl, and without the controlo$ a superior powerother than the law

;nless they be those of an inferior or subordinate officecreated or authorized by the legislature

nd by it placed under the general control of a superior officeor body

4. must have per"anence or continuit,

Creation

#. constitution0office of the president2

+. valid statutor,enact"ents0 office of the insurance commissioner2

1. b, authorit, o$ law0david commission2

!aurel vs Desierto

salar, is not a necessar, ele"ent o$ public o$$ice

the ele"ent o$ continuit, cannot be considered as

indispensable $or public o$$ice

5echem describes the delegation to the individual o$ so"e

o$ the soverei5n $unctions o$ 5overn"ent as =Nt9he "osti"portant characteristic= in deter"inin5 whether aposition is a public o$$ice or not

the "ost i"portant characteristicwhich distin5uishes an

o$$ice $ro" an e"plo,"ent

is that the creation and con$errin5 o$ an o$$ice

involves dele5ation to the individual o$ so"e o$ the

soverei5n $unctions o$ 5overn"ent

to be e6ercised b, hi" $or the bene$it o$ the public

and that the so"e portion o$ the soverei5nt, o$ the

countr,

either le5islative' e6ecutive or ?udicial,

attaches $or the ti"e bein5 ' to be e6ercised $or the public

bene$it

thus, unless the powers so conferred are of this nature, theindividual is not a public officer

The characteristics of a public office, according to 5echem '

include the dele5ation o$ soverei5n $unctions' its creationb, law and not b, contract' an oath' salar,' continuanceo$ the position' scope o$ duties' and the desi5nation o$the position as an o$$ice.

'CC performs executive functions? created by an Executive

order; Clearl,' the NCC per$or"s soverei5n $unctions. Itis' there$ore' a public o$$ice' and petitioner' as its Chair' isa public o$$icer.

That petitioner alle5edl, did not receive an,

co"pensation durin5 his tenure is o$ little conseuence .

salar, is a usual but not a necessar, criterion for

determining the nature of the position. t is not conclusive. Thesalary is a "ere incident and $or"s no part o$ the o$$ice .(here a salary or fees is annexed, the office is provided for itis a na


11/31

Election Laws: 2011 Finals Reviewerthe people, one where no man or set of men has a proprietaryor contractual right to an office, but where every officeraccepts office pursuant to the provisions of the law and holdsthe office as a trust for the people whom he represents.

=The suspension of an officer pending his trial for misconduct,

so as to tie his hands for the time being, seems to beuniversally accepted as fair, and often necessary. . . . Noticeand hearin5 are not prereuisites to suspension unlessreuired b, statute and therefore suspension without suchnotice does not deprive the officer of property without dueprocess of law. 'or is a suspension wanting in due process of

law or a denial of the e*ual protection of the laws because theevidence against the officer is not produced and he is notgiven an opportunity to confront his accusers and cross-examine the witnesses.=

=The safety of the state, which is the highest law, imperatively

re*uires the suspension, pending his trial, of a public officer,R especially a custodian of public funds, R charged withmalfeasance or nonfeasance in office. /uspension does notremove the officer, but merely prevents him, for the timebeing, from performing the functions of his office? and from thevery necessities of the case must precede a trial or hearing./uch temporary suspension without previous hearing is fully inaccordance with the analogies of the law. t is a constitutionalprinciple that no person shall be deprived of his liberty orproperty except by due process of law, which includes notice

and a hearing, yet it was never claimed that in criminalprocedure a person could not be arrested and deprived of hisliberty until a trial could reasonably be had, or that in civilactions ex parte and temporary in!unctions might not beissued and retained in proper cases, until a trial could be had,and the rights of the parties determined. (e have no doubt,therefore, of the authority of the legislature to vest thegovernor with power to temporarily suspend a countytreasurer pending the investigation of the charges against him,of official misconduct.=

IThe duty of suspension was imposed upon the >overnor from

the highest motives of public policy to prevent the danger tothe public interests which might arise from leaving such greatpowers and responsibilities in the hands of men legallydis*ualified. To leave them in full charge of their office until the

next biennial session of the legislature, or pending litigationwhich might be continued for years, would destroy the veryob!ect of the law.

%be?a vs Tanada

(e also find as erroneous the substitution of the deceased

:osauro :adovanIs widow, Ediltrudes :adovan, on theground that private respondent had a counter-claim fordamages.

=4ublic o$$ice is personal to the incu"bent and is not a

propert, which passes to his heirs= 0/antos vs. /ecretaryof Dabor, ++ /C: F N#B$O? Ge la ictoria vs. Comelec,#BB /C: 4$# N#BB#O2.

The heirs "a, no lon5er prosecute the deceased

protestee@s counter-clai" $or da"a5es a5ainst theprotestant $or that was e6tin5uished when deathter"inated his ri5ht to occup, the contested o$$ice0Gelaictoria, supra2.

3. LINDS O 43!IC OICS

D >

3, ri5ht; b, ri5ht in law

validly appointed

an officer who exercises the duties of an office for which the

holder has fulfilled all the *ualifications

D %CTO

"DCMs

n officer who e6ercises the duties o$ an o$$ice

under the color o$ an appoint"ent or election

but who has $ailed to uali$, $oroffice for any one of various

reasons

as by being under the re*uired age,

having $ailed to taAe oath

having not $urnished a reuired bond

or having taAen o$$ice under a statute later declared

unconstitutional

NdO

wJo appointment or election but under such circumstances of

reputation or ac*uiescence as were calculated to inducepeoplewJo in!ury to submit or invo


12/31

Election Laws: 2011 Finals Reviewer In $ine' the rule is that where there is a de ?ure o$$icer' a de

$acto o$$icer' durin5 his wron5$ul incu"benc,' is notentitled to the e"olu"ents attached to the o$$ice' even i$he occupied the o$$ice in 5ood $aith.

ITC& This rule, however, cannot be applied s*uarely on the

present case in view of its peculiar circumstances.:espondent had assumed under protest the position ofdministrative 6fficer sometime in the latter part of #B,

which position she currently holds.

/ince then, she has been receiving the emoluments, salary

and other compensation attached to such office. (hile herassumption to said lower position and her acceptance of thecorresponding emoluments cannot be considered as anabandonment of her claim to her rightful office 0Givision5anager2, she cannot recover full bac'/ T6 >6E:' 6'D ;P6' /

P:6CD5T6' 'G 6' TE G TT / TE:5"E>'/

D>C speaovernment Code, =0a2n elective

local official must be&a citizen of the Philippines?a registered voter in the barangay, municipality, city, orprovince . . . where he intends to be elected?a resident therein for at least one 0#2 year immediatelypreceding the day of the election?

able to read and write Hilipino or any other local language ordialect.=

n addition, =candidates for the position of governor . . . must

be at least twenty-three 0+12 years of age on election day.=

Hrom the above, it will be noted that the law does not speci$,

an, particular date or ti"e when the candidate "ustpossess citiBenship, unliiap and Di /eng >iap 7 /ons, 11 if the purpose of the citizenship re*uirement is to ensure that our

people and country do not end up being governed by aliens,i.e., persons owing allegiance to another nation, that aim orpurpose would not be thwarted but instead achieved byconstruing the citizenship *ualification as applying to the timeof proclamation of the elected official and at the start of histerm.

"ut perhaps the more difficult ob!ection was the one raised

during the oral argument 1F to the effect that the citizenship*ualification should be possessed at the time the candidate0or for that matter the elected official2 registered as a voter.fter all, /ection 1B, apart from re*uiring the official to be acitizen, also specifies as another item of *ualification, that hebe a =registered voter=. nd, under the law 14 a =voter= must

be a citizen of the Philippines. /o therefore, Hrivaldo could nothave been a voter R much less a validly registered one R ifhe was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the

purpose of the re*uirement. I$ the law intended thecitiBenship uali$ication to be possessed prior to electionconsistent with the reuire"ent o$ bein5 a re5isteredvoter' then it would not have "ade citiBenship aS4%%T uali$ication.The law abhors a redundancy.

It there$ore stands to reason that the law intended

CITINSGI4 to be a uali$ication distinct $ro" bein5 a*OT' even i$ bein5 a voter presu"es bein5 a citiBen$irst.

t also stands to reason that the voter re*uirement was

included as another *ualification 0aside from =citizenship=2, notto reiterate the need for nationality but to re*uire that theofficial be registered as a voter ' TE :E 6:TE::T6: he seeovernment Code re*uires an elective official tobe a registered voter. t does not re*uire him to vote actually.Gence' re5istration not the actual votin5 is the coreo$ this Kuali$icationK. In other words' the law@s purposein this second reuire"ent is to ensure that theprospective o$$icial is actuall, re5istered in the area heseeAs to 5overn and not an,where else.

"efore this Court, Hrivaldo has repeatedly emphasized R and

Dee has not disputed R that he =was and is a registered voter

12


13/31

Election Laws: 2011 Finals Reviewerof /orsogon, and his registration as a voter has beensustained as valid by !udicial declaration . . . n fact, he casthis vote in his precinct on 5ay , #BB4.=

another reason why the prime issue of citizenship should be

rec"DT 0or the disloyalty2 of a candidate.This is the only provision of the Code that authorizes aremedy on how to contest before the Comelec an incumbentIsineligibility arising from failure to meet the *ualifications

enumerated under /ec. 1B of the Docal >overnment Code./uch remedy of %uo (arranto can be availed of =within tendays after proclamation= of the winning candidate. ence, it isonly at such time that the issue of ineligibility may be ta. Hrivaldo was already and indubitably a citizen, havingta


14/31

Election Laws: 2011 Finals Reviewer Property *ualifications may not be imposed for the exercise of

the right to run for public office

The law is declared unconstitutional for re*uiring each

candidate to post a bond of P+8,888 upon the filing of C6C,sub!ect to forfeiture if he did not obtain at least #8 of thetotal votes cast in the constituency where he ran

:epublic ct '6. FF+# re*uires a candidate to post a surety

bond e*uivalent to one-year salary of the position to which heis a candidate, which bond shall be forfeited in favor of the

government, if the candidate, except when declared winner,fails to obtain at least #8 of the votes cast for the office,there being not more than four candidates for the same office.The effect of said :epublic ct 'o. FF+# is to impose property*ualifications in order that a person could run for a publicoffice, which property *ualifications are inconsistent with thenature and essence of the :epublican system ordained in theConstitution and the principle of social !ustice underlying thesame. Conse*uently, :epublic ct 'o. FF+# isunconstitutional and hence null and void.

That the effect of said :epublic ct 'o. FF+#&

o to prevent or disuali$,from running for President,

ice-President, /enator or 5ember of the ouse of

:epresentatives those persons who, althoughhaving the *ualifications prescribed by theConstitution therefor, cannot $ile the suret, bonda$ore"entioned' owin5 to $ailure to pa, thepre"iu" char5ed b, the bondin5 co"pan,andor lacA o$ the propert, necessar, $or saidcounterbond;

o dis*ualifying for provincial, city or municipal elective

offices, persons who, although possessing the*ualifications prescribed by law therefor, cannot paysaid premium andJor do not have the propertyessential for the aforementioned counter-bond?

o imposing property *ualifications in order that a

person could run for a public office and that thepeople could validly vote for him?

property *ualifications are inconsistent with the nature and

essence of the :epublican system ordained in ourConstitution and the principle of social !ustice underlying thesame, for said political system is premised upon the tenet thatsovereignty resides in the people and all government authorityemanates from them, and this, in turn, implies necessarily thatthe right to vote and to be voted for shall not be dependentupon the wealth of the individual concerned

S>S vs Dan5erous Dru5s

n the same vein, the C65EDEC cannot, in the guise of

enforcing and administering election laws or promulgatingrules and regulations to implement /ec. 1$ 0g2, validl,i"pose uali$ications on candidates $or senator inaddition to what the Constitution prescribes.

f Congress cannot re*uire a candidate for senator to meet

such additional *ualification, the C65EDEC, to be sure, isalso without such power. The right of a citizen in thedemocratic process of election should not be defeated byunwarranted impositions of re*uirement not otherwisespecified in the Constitution.

/ec. 1$ 0g2 of : B#$4, as sought to be implemented by the

assailed C65EDEC resolution, effectively enlarges the*ualification re*uirements enumerated in the /ec. 1, rt. ofthe Constitution. s couched, said /ec. 1$ 0g2 unmista6CCs or theirsubsidiaries, during his term without forfeiting his seat. 'eithershall he be appointed to any office which may have beencreated or the emoluments thereof increased during the ternfor which he was elected.

'o member of the constitutional commission shall during his

tenure hold any other office or employment 0 sec +, art Ba2

The same dis*ualification applies to ombudsman and his

deputies 0 sec , art ##2

The ombudsman and his deputies shall not be *ualified to run

for any office in the election immediately succeeding theircessation from office 0sec ##, art ##2

5embers of the constitutional commissions, the ombudsman

and his deputies must not have been candidates for anyelective position in the elections immediately preceding theirappointment 0sec #, art Bb, sec # art Bc, sec # art pd, sec art##2

14


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Election Laws: 2011 Finals Reviewer 5ember s of the constitutional commission, the ombudsman

and his deputies are appointed for a term of 9 years withoutreappointment

The spouse and relatives by consanguinity or affinity within

the Fthcivil degree of the president shall not during his tenurebe appointed as members of the constitutional commissionsor the office of the ombudsman, or as secretaries,undersecretaries, chairmen or heads of bureaus or offices,including >6CCs. 0sec #1, art 92

c./.2 under local 5overn"ent code

c./.+ other laws

Provided that the prescribed dis*ualifications do not violate

the constitution

o Daw declared unconstitutional for being contrary to

the constitutional presumption of innocence& whenlaws said the filing of a criminal information fordisloyalty was a prima facie proof of guilt 0dumlao vscomelec2

c.=. $$ect o$ pardon

Pardon is forgiveness and not forgetfulness hence it will not

bring restoration to the civil and political rights of the personbeing pardon.

Civil and political rights can only be restored when it is

expressly stated in the pardon or when the pardon states thatthe person did not do the crime. ( sounds absurd, being

pardon even though you did not commit the crime)... talicssupplied..

%rt. +' 4C - pardon shall not wor< the restoration of the rightto hold public office, or the right of suffrage, unless such rights beexpressly restored by the terms of the pardon.

pardon shall in no case exempt the culprit from the payment

of the civil indemnity imposed upon him by the sentence.

MONS%NTO *. %CTO%N

//;E& wJn a public officer, who has been granted anabsolute pardon by the Chief Executive, is entitled toreinstatement to her former position without need of a newappointment.

Pardon does not ipso facto restore a convicted felon to public

office necessarily relin*uished or forfeited by reason of theconviction 2= although such pardon undoubtedly restores hiseligibility for appointment to that office. 2

The rationale is plainly evident Public offices are intended

primarily for the collective protection, safety and benefit of thecommon good. They cannot be compromised to favor privateinterests. To insist on automatic reinstatement because of amista


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!%4INID *. CSCThe determination of who among several candidates for a vacantposition has the best *ualifications is vested in the sound discretion ofthe Gepartment ead or appointing authority and not in the Civil /erviceCommission. Every particular !ob in an office calls for both formal andinformal *ualifications. Hormal *ualifications such as age, number ofacademic units in a certain course, seminars attended, etc., may bevaluable but so are such intangibles as resourcefulness, team spirit,courtesy, initiative, loyalty, ambition, prospects for the future, and bestinterests, of the service. >iven the demands of a certain !ob, who cando it best should be left to the ead of the 6ffice concerned provided

the legal re*uirements for the office are satisfied. The Civil /erviceCommission cannot substitute its !udgment for that of the ead of 6fficein this regard.

(hile the act of appointment may in proper cases be the sub!ect ofmandamus, the selection itself of the appointeeRtaovernor->eneral to force upon the !udge of one districtan appointment to another district against his will, thereby removing himfrom his district.

=(hen the officer is not removable at the will of the executive, theappointment is not revocable, and cannot be annulled& it has conferredlegal rights which cannot be resumed. The discretion of the executive isto be exercised, until the appointment has been made. "ut having oncemade the appointment, his power over the office is terminated, in all

cases where, by law, the officer is not removable by him. The right tothe office is then in the person appointed, and he has the absoluteunconditional power of accepting or re!ecting it.= The great !urist furtheror observed that =t is, emphatically, the province and duty of the !udicialdepartment, to say what the law is=

e.1. Doctrine o$ Gold over

old-over S a public officers term has expired or his servicesterminated but he should continue holding his office until his successoris appointed or chosen and had *ualified.

public officer

:ationale? public interest? prevent hiatus in public service.

:ules&(hen law provides for it, incumbent will hold-over even beyond theterm fixed by law until successor is chosen or appointed.

s officer de !ure or de facto during period of hold-over)

nswer& Ge !ure.-(hen you have been given a term of office, is it possible to stay longerthan the period stated or given to you) "ased on the doctrine of hold

over, it says that a public officer whos term has expired or his serviceshas already been terminated, may be allowed to continue holding theoffice or the post until his successor has been chosen or appointed.

o Purpose or why this principle& to prevent hiatus in public

service. @ust imagine having an office without having an occupantdischarging the functions of that office.

o ow do you


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Election Laws: 2011 Finals Reviewerll powers necessary for the effective exercise of the express

powers are deemed impliedly granted.c. Linds o$ %uthorit,: Ministerial vs Discretionar,

5inisterial& one the discharge of which by the officerconcerned is imperative and re*uired neither !udgment nor discretion.The exercise of which may be compelled. Ex. /heriffs role to execute

!udgment.Giscretionary& one imposed by law upon a public officer

wherein the officer has a right to decied how and when the duty shall beperformed.

5andamus will not lie to compel the performance of a

discretionary power.(hen function is discretionary, mandamus will not lie except in cases

when there is grave abuse of discretion in which case mandamus lie.(hy do you thineneral conferred upon the officer designated by the /ecretaryof @ustice? it is ingrained in the office or designation itself. The powers ofthe /olicitor >eneral bestowed on the appointee to assist the fiscalmust be held as cumulative or an addition to the authority to sign

informations, which is inherent in his appointment. n other words, theclause =with the same authority therein as might be exercised by thettorney >eneral or /olicitor >eneral= does not exclude the latterauthority. The former practice of the ttorney >eneral to which we havealluded portrays a distinction between and separation of the powers orsets of powers. The power of the ttorney >eneral to sign informations,as we have pointed out, owed its being, not to the powers legitimatelypertaining to his office as ttorney >eneral but to the special provisionauthorizing him to assist fiscals. nd it may be pertinent to eneralIs power to assist provincial fiscals ceased,he stopped signing informations. The phraseology of section #9 of ct'o. $9 before cited also affords an illustration of the idea that theauthority to assist is separate and apart from the general powers of thettorney >eneral. n the language of this section, the person appointed

was 0#2 to assist the fiscal in the discharge of his duties and 0+2 torepresent the ttorney >eneral in such matters. f the two phrases

meant the same thing, then one of them would be superfluous. There isno apparent reason for holding that one or the other was a surplusage.

Daws must receive sensible interpretation to promote the ends for whichthey were enacted. The duties of a public office include all those whichtruly lie within its scope, those which are essential to theaccomplishment of the main purpose for which the office was createdand those which, although incidental and collateral, are germane to,and serve to promote the accomplishment of the principal purposes. 0F1merican @urisprudence, $, 98.2 The authority to sign informations,ma


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Election Laws: 2011 Finals Reviewerb.# nonfeasance S neglect or refusal to perform an act whichis the officers legal obligation to performb.+ misfeasance S failure to use that degree of care, s


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Election Laws: 2011 Finals Reviewer'6TE& different in 'achura :eviewer& Compulsory :etirementge is 98 yrs for the members of the @udiciary and $4 yrs forother government officers and employees 0;nder 'ew >//Charter2

3eronilla v HSISThe compulsory retirement of government officials and employees uponreaching the age of $4 years is founded on public policy which aims byit to maintain efficiency in the government service and, at the sametime, give to the retiring public servants the opportunity to en!oy duringthe remainder of their lives the recompenses for their long service anddevotion to the government, in the form of a comparatively easier life,

freed from the rigors, discipline and the exacting demands that thenature of their wor< and their relations with their superiors as well as thepublic would impose on them.

d. bolition of 6fficeV s a general rule, absent some Constitutional prohibition,

Congress may abolish any office it creates without infringingupon the rights of the officer or employee affected.

V To consider an office abolished, there must have been anintention to do away with it wholly and permanently.

V Termination by virtue of the abolition of the office is to bedistinguished from removal. There can be no tenure to a non-existent office. fter the abolition, there is in law no occupant.n case of removal, there is an office with an occupant who

would thereby lose his position. t is in that sense that from thestandpoint of strict law, the *uestion of any impairment ofsecurity of tenure when there is an abolition of office does notarise. The right itself disappeared with the abolished office asan accessory following the principal.

3usaca, v. 3uenaventura"usacay was laid off as toll collector when the bridge was destroyed.owever, the bridge was later reconstructed and opened to the public

with a new collector being appointed. "usacay was ordered reinstatedby the /C. To consider an office abolished, there must have been anintention to do away with it wholly and permanently. n the case at bar,there was never any thought of not rebuilding the bridge. The collapseof the bridge did not wor< to destroy but only to suspend the position oftoll collector thereon, and upon its reconstruction and re-opening, thecollectors right to the position was similarly and automatically restored.

19


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Election Laws: 2011 Finals ReviewerManalan5 v. #uitorianoThe 'ational Employment /ervice was established by :.. 'o. 9$# inlieu of the Placement "ureau. %uitoriano was appointed as 'E/Commissioner in spite of the recommendation of the Dabor secretary toappoint 5analang who was the incumbent Girector of the Placement"ureau. /C held that appoint of %uitoriano was valid. removal impliesthat the office still exists. :.. 'o. 9$#, creating 'E/, expresslyabolished the Placement "ureau and, by implication, the office of theGirector of the Placement "ureau. ad Congress intended the 'E/ tobe a mere enlargement of the Placement "ureau, it would have directedthe retention, not the transfer, of *ualified personnel to the 'E/.5analang has never been 'E/ Commissioner and thus could not have

been removed therefrom.V bolition 5ust "e in >ood Haith The abolition of an office

does not amount to an illegal removal or separation of itsincumbent is the principle that, in order to be valid, theabolition must be made in good faith, not for personal orpolitical reasons, and not implemented in violation of law.

acundo v. 4abalanThere is no law which expressly authorizes a municipal council toabolish the positions it has created. owever, the rule is well-settledthat the power to create an office includes the power to abolish it,unless there are constitutional or statutory rules providing otherwise."ut the office must be abolished in good faith.The rule is well-settled that the power to create an office includes thepower to abolish it, unless there are constitutional or statutory rulesexpressly or impliedly providing otherwise . owever, the office mustbe abolished in good faith? and if immediately after the office isabolished, another office is created with substantially the same duties,and a different individual is appointed, or if it otherwise appears that theoffice was abolished for personal or political reasons, the courts willintervene.

CruB v. 4ri"iciass well settled as the rule that the abolition of an office does not amountto an illegal removal of its incumbent is the principle that, in order to bevalid, the abolition must be made in good faith. (here the abolition ismade in bad faith, for political or personal reasons, or in order tocircumvent the constitutional security of tenure of civil serviceemployees, it is null and void. n the case at bar, while ++ positions

were abolished, + new positions with higher salaries weresimultaneously created. 'o charge of inefficiency is lodged against

petitioners. n truth and in fact, what respondents sought to achieve wasto supplant civil service eligibles with men of their choice, whose tenure

would be totally dependent upon their pleasure and discretion.

e. :eorganization

This occurs where there is an alteration of the existingstructure of government offices or units therein, includingthe lines of control, authority and responsibility betweenthem to promote greater efficiency, to removeredundancy of functions, or to affect economy and ma


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Election Laws: 2011 Finals Reviewer(ithout acceptance, the resignation is nothing and theofficer remains in office. 0$1 m @ur +d., sec. #$12

V Two elements are necessary to constitute an effectiveacceptance&0#2 intention to relin*uish office coupled with actualrelin*uishment? and0+2 acceptance of resignation.

V Kcourtesy resignationL cannot properly be interpreted asresignation in a legal sense. t !ust manifests the submissionof a person to the will of the political authority.

V Courtesy resignation is not allowed in 0#2 career positions and0+2 non-career positions with security of tenure 0i.e. local

elective officials2.i. :emoval1. 4rotection $ro" e"oval without CauseV 'o officer or employee of the civil service shall be removed or

suspended except for cause provided by law 0/ec. +012, rt.A, #B9 Constitution2.

2. Hrounds $or e"oval $ro" O$$iceV Hor Presidential appointees, there is no specific law providing

for the grounds for their removal. Getermination of grounds is!ust a matter of practice and by analogy, the grounds used fornon-presidential appointees are made applicable.

V Hor civil service officials and employees, see /ec. F$, "oo< ,E.6. 'o. +B+ which provides for at least 18 grounds fordisciplinary action.

V Hor local elective officials, /ec. $8 of the Docal >overnmentCode provides for the grounds where an elective local officialmay be disciplined, suspended or removed from office.

V 5isconduct need not be Kin officeL in case ofappointive officers.

V 5isconduct must be Kin officeL in case of electiveofficers.

V 5isconduct committed during a prior term, not aground for dismissal

+. Trans$er $ro" One 4osition to %nother Ma, or Ma, NotConstitute *iolation o$ Securit, o$ Tenure

V transfer is a movement from one position to another whichis of e*uivalent ran


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Election Laws: 2011 Finals Reviewer092 Giscourtesy in the course of official duties?02 nefficiency and incompetence in the performance of officialduties?0B2 :eceiving for personal use of a fee, gift or other valuable thingin the course of official duties or in connection therewith when such fee,gift, or other valuable thing is given by any person in the hope orexpectation of receiving favor or better treatment than that accordedother persons, or committing acts punishable under the anti-graft laws?Conviction of a crime involving moral turpitude?0##2 mproper or unauthorized solicitation of contributions fromsubordinate employees and by teachers or school officials from schoolchildren?

0#+2 iolation of existing Civil /ervice Daw and rules or reasonableoffice regulations?0#12 Halsification of official document?0#F2 Hre*uent unauthorized absences or tardiness in reporting forduty, loafing or fre*uently unauthorized absence from duty duringregular office hours?0#42 abitual drunambling prohibited by law?0#92 :efusal to perform official duty or render overtime service?0#2 Gisgraceful, immoral or dishonest conduct prior to entering theservice?0#B2 Physical or mental incapacity or disability due to immoral orvicious habits?0+82 "orrowing money by superior officers from subordinates orlending by subordinates to superior officers?0+#2 Dending money at usurious rates or interest?0++2 (illful failure to pay !ust debts or willful failure to pay taxesdue to the government?0+12 Contracting loans of money or other property from persons

with whom the office of the employee concerned has business relations?0+F2 Pursuit of private business, vocation or profession without thepermission re*uired by Civil /ervice rules and regulations?0+42 nsubordination?0+$2 Engaging directly or indirectly in partisan political activities byone holding a non-political office?0+92 Conduct pre!udicial to the best interest of the service?0+2 Dobbying for personal interest or gain in legislative halls andoffices without authority?0+B2 Promoting the sale of tic


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Election Laws: 2011 Finals Reviewerplace the 6ffice of the /pecial Prosecutor under the 6ffice of the6mbudsman. n the same vein, Congress may remove some of thepowers granted to the Tanodbayan by P.G. 'o. #$18 and transfer themto the 6mbudsman? or grant the 6ffice of the /pecial Prosecutor suchother powers and functions and duties as Congress may deem fit and

wise. This Congress did through the passage of :.. 'o. $998.

Through the said law, the 6ffice of the /pecial Prosecutor was made anorganic component of the 6ffice of the 6mbudsman, while the6mbudsman was granted powers

0+2The deliberations on the Geputy for the military establishment do notyield conclusive evidence that such deputy is prohibited fromperforming other functions or duties affecting non-military personnel. 6nthe contrary, a review of the relevant Constitutional provisions revealsotherwise.

s previously established, the 6mbudsman =may exercise such otherpowers or perform such functions or duties=as Congress may prescribethrough legislation. Therefore, nothing can prevent Congress fromgiving the 6mbudsman supervision and control over the 6mbudsmanIsdeputies, one being the deputy for the military establishment.

ccordingly, the 6mbudsman may refer cases involving non-militarypersonnel for investigation by the Geputy for 5ilitary ffairs. n thesecases at bench, therefore, no irregularity attended the referral by the

cting 6mbudsman of the %uratong "aleleng case to respondentCasaclang who, in turn, created a panel of investigators.

C%M%3%H *. HOIssue: (6' /ections #4 and #9 of : $998 which empowers the6mbudsman to conduct preliminary investigations of matters andJorreferred to it is null and void for being contrary to and violative of theprovisions of the Constitution.

ulin5: The inevitable conclusion is that the 6mbudsman, under the#B9 Constitution, particularly under paragraph , /ection #1, rticle A,may be validly empowered with prosecutorial functions by thelegislature, and this the latter did when it passed :.. 'o. $$98, whichgave the 6mbudsman, among others, the power to investigate andprosecute individuals on matters andJor complaints referred or filed

before it.

The 6ffice of the 6mbudsman is a distinct constitutional body whoseduties and functions are provided for by the Constitution itself.Considering that the power of the 6mbudsman to investigate andprosecute criminal cases emanates as it does from the Constitutionitself, particularly, under paragraph , /ection #1, rticle A as above-*uoted, which empowers the 6mbudsman to =exercise such otherpowers or perform such other functions or duties= as Congress mayprescribe through legislation, it cannot be logically argued that suchpower or the exercise thereof is unconstitutional or violative of theprinciple of separation of powers enshrined in the Constitution.

E*ually devoid of merit is the contention of petitioner that :.. 'o.$998, insofar as it un*ualifiedly vests prosecutorial functions on the

6mbudsman, infringes on /ection 9, rticle A of the Constitution, inthat it invariably diminishes the authority and power lodged in the 6fficeof the /pecial Prosecutor. This ground relied upon by petitioner, li


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Election Laws: 2011 Finals Reviewer/andiganbayan, then respondent 6mbudsman may, in the exercise ofits primary !urisdiction ta> to conduct preliminary investigation ofcases of this nature does not extend only to cases brought to recover ill-gotten wealth accumulated by former President 5arcos or his closeassociates but includes as well cases of graft and corruption assignedby the President to the PC>> for investigation.Hor what has not been sufficiently noticed is that complaints for graftand corruption, although not committed because of close association

with former President 5arcos, can be investigated by the PC>> ifdirected by the President of the Philippines.n accordance with /ec. # of Executive 6rder 'o. #F, dated 5ay 9,#B$, the PC>>, with the assistance of the /olicitor >eneral, is theagency of the government empowered to bring these proceedings forforfeiture of property allegedly ac*uired unlawfully before Hebruary +4,#B$, the date of the EG/ :evolution. The power to investigate casesof ill-gotten or unexplained wealth ac*uired after that date is now vestedin the 6mbudsman.0Case at bar2 "ut although there is neither allegation nor showing in thecase at bar that former 5ayor rgana had unlawfully ac*uired his

wealth by reason of close association with former President 5arcos, thePC>> had !urisdiction to conduct the investigation because this is a

case of graft and corruption assigned to it by the President of thePhilippines pursuant to /ec. +0b2 of Executive 6rder 'o. #.

d.2./. O"buds"an $or the Militar,

%H3%J *. D4TJ OM3DSM%N O TG MI!IT%JThe deliberations on theGeputy for the military establishment do notyield conclusive evidence that such deputy is prohibited fromperforming other functions or duties affecting non-military personnel. 6nthe contrary, a review of the relevant Constitutional provisions revealotherwise.

The 6mbudsman =may exercise such other powers or perform suchfunctions or duties= as Congress may prescribe through legisiation.Therefore, nothing can prevent Congress from giving the 6mbudsmansupervision and control over the 6mbudsmanIs deputies, one being thedeputy for the military establishment. n this light, /ection 1# of :$998 provides& Gesignation of nvestigators and Prosecutors. The6mbudsman may utilize the personnel of his office andJor designate ordeputize any fiscal, state prosecutor to assist in the investigation andprosecution of certain cases. Those designated or deputized to assisthim herein shall be under his supervision and control.ccordingly, the6mbudsman may refer cases involving non-military personnel forinvestigation by the Geputy for 5ilitary ffairs.

The Geputy 6mbudsman for the 5ilitary, despite his designation assuch, is by no means a member of the military establishment. The said6ffice was established =to extend the 6ffice of the 6mbudsman to themilitary establishment !ust as it champions the common people againstbureaucratic indifference=. t must be borne in mind that the 6ffice of the6mbudsman was envisioned by the framers of the #B9 Constitution asthe =eyes and ears of the people,= =a champion of the citizenL and=protectors of the people.=

Thus, first and foremost, the 6mbudsman and his deputies, includingthe Geputy 6mbudsman for the 5ilitary owe their allegiance to thepeople and ordinary citizens, it is clearly not a part of the military. (efail to see how the assumption of !urisdiction by the said office over theinvestigation of cases involving the P'P would detract from or violatethe civilian character of the police force when precisely the 6ffice of the6mbudsman is a civilian office.

d.2. 4reventive Suspension

!%STIMOS% *. *%S#Issue:

(6' the 6ffice of the 6mbudsman has the power to call on

the Provincial Prosecutor to assist it in the prosecution of thecase for attempted rape against 5ayor lustrisimo.

(6' the 6ffice of the 6mbudsman can preventively suspend

Dastimosa for failure to comply with the orders of the6mbudsman.

(6' prior notice and hearing is re*uired when an official is

preventively suspended.

ulin5:

#. The office of the 6mbudsman has the power to =investigateand prosecute on its own or on complaint by any person, anyact or omission of any public officer or employee, office oragency, when such act or omission appears to be illegal,un!ust, improper or inefficient.= 1/This power has been held toinclude the investigation and prosecution of any crimecommitted by a public official regardless of whether the acts oromissions complained of are related to, or connected with, orarise from, the performance of his official duty. t is enoughthat the act or omission was committed by a public official.ence, the crime of rape, when committed by a public officialli


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Election Laws: 2011 Finals Reviewerof Court and under the same procedure and with the samepenalties provided therein.=

/ection ++. Preventive Suspension. R The 6mbudsman orhis Geputy may suspend any officer or employee under his authoritypending an investigation, if in his !udgment the evidence of guilt isstrong, and 0a2 the charge against such officer or employee involvesdishonesty, oppression or grave misconduct or neglect in theperformance of duty? 0b2 the charges would warrant removal from theservice? or 0c2 the respondentIs continued stay in office may pre!udicethe case filed against him.

The preventive suspension shall continue until the case isterminated by the 6ffice of the 6mbudsman but not more than sixmonths, without pay, except when the delay in the disposition of thecase by the 6ffice of the 6mbudsman is due to the fault, negligence orpetition of the respondent, in which case the period of such delay shallnot be counted in computing the period of suspension herein provided.

0Case at bar2 >iven the attitude displayed by petitioner andthe Provincial Prosecutor toward the criminal case against 5ayor:ogelio lustrisimo, their preventive suspension is !ustified to the endthat the proper prosecution of that case may not be hampered. naddition, because the charges against the two prosecutors involvegrave misconduct, insubordination and neglect of duty and thesecharges, if proven, can lead to a dismissal from public office, the

6mbudsman was !ustified in ordering their preventive suspension.

1. Prior notice and hearing is a not re*uired, such suspensionnot being a penalty but only a preliminary step in anadministrative investigation.

Transcriptions

1(hat is the nature of Comelec) s it something created by theConstitution) This one is mandated by the Constitution. (hat is thecomposition of Comelec) Chair and $ commissioners. Term of office) is

it possible for Comelec Darazabal to re-appointed by *uino) Cannot."ut how they are appointed)

President cannot appoint unless appointee is recommended byC65EDEC. There also has to be consent of Commission onppointment. C6 is within Congress. /o youve got Presidentappointing C65EDEC to be confirmed by C6 by serving 9 years

without reappointment.

%ualification& you must not have an elective position in the immediatelypreceeding elections.There is also re*uirement that you must be alawyer. Kmember of the barL. There is re*uirement that a chair as wellas the ma!ority must be a member of the bar who practiced law for #8years.

Practice of law S has a modern concept which is practice of law in andout of court. /ee cayetano vs monsod case. Common notion is that ifyou practice law it means you have practice litigation. 'ow, for as longas you apply legal


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n the loose sense S on the code of conduct S you would thin< you caninterchange the two concepts but in other laws and even in constitution,there is a need to ma


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Election Laws: 2011 Finals Reviewer(hy do you thin< thats the rule) ny other constitutional soundingreason)C/C cannot change the decision of the appointing authority becauseinherent in the power of appointing is discretion.(hat is this next in ran< rule) t is not mandatory because it is simply amatter of preferential consideration. Can there be a rule that ma;)Dets say city government purchase millions of condoms) Can you file)

Can you file a case against GE': for illegally giving out timberlicenses) '6.

ow about against city government in the performance of governmentalfunction)

Conversely, can you file a case against government official in thenational government) (ould it be the same if it is a local government)

f 'C6:P6:TEG S (hether or not governmental or proprietaryfunction S you can file a case and not considered suit against statebecause it has a charter of its own,

f ;''C6:P6:TEG S thats when you distinguish whetherperforming in proprietary or governmental. f proprietary S you can file, ifgovernmental you cannot.f to government official of national government S as a rule you cannotfile S in lansang case S suit against government officials is suit againststate. (hy)

27


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:emember it is a suit against the state if you ma


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Election Laws: 2011 Finals ReviewerTE:5'T6'

"eing terminated from office is one of the ways of discipline or ofterminating official relations.

6ther modes of termination other than termination from office& 6ne wayterminating public office is by the#. End of term S term here, remember two 'WT6' S find mostly in localgovernment unit. Ex. ou competed with incumbent and he again

won and at the end of the day, your position became vacant andsuddenly youve been we are reorganizing or abolishing the office

when you


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Election Laws: 2011 Finals Reviewerof positions in the new staffing pattern of the department oragency concerned? 0b2 (here an office is abolished andanother performing substantially the same functions iscreated? 0c2 (here incumbents are replaced by those less*ualified in terms of status of appointment, performance andmerit? 0d2 (here there is a reclassification of offices in thedepartment or agency concerned and the reclassified officesperform substantially the same functions as the originaloffices? 0e2 (here the removal violates the order of separationprovided in /ection 1 hereof.L

f reorganization is done in bad faith, /C said reinstatement orreappointment of aggrieved party.

bolition or reorganization S re*uired to be done in good faith and it isgood faith if it is for purposes of economy, efficiency and simplicity ofoperation of government.

The effect if reorganization in good faith S it is not removal from officebecause you are being removed only if office still exist.

f a valid reorganization and abolition S no more office to spea< of. ndso you are terminated but not removed. f not removed, no violation ofsecurity of tenure.

n C6nsti , consider !udiciary differently because they had it placed inthe Constitution - /ec.## rt. which says S no law shall be passedreorganizing the !udiciary when it undermines security of tenure. 0verytric


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Election Laws: 2011 Finals Reviewer$8 days max. owever S if you are facing several charges S it cannotexceed B8 days within a single year.

Dets loo< at 6mbudsman S it has !urisdiction over the conduct of allpublic officials. 6mbudsman has !urisdiction over all acts done bygovernment officials including >6CCs. (hat if the act of the officer hasgot nothing to do with his function)

Concubinage) as it anything to do with public office) There are actsnot related to performance of an office, would 65" still has !urisdiction)es. 65" has still !urisdiction in all acts whether or not done in relation

to the performance of functions. 6n all acts of government officialwhether or not related to official duty.

Can 65" investigate on anonymous complaints) es. f there is acomplainant then he will be the one to sign affidavit of complaint but ifanonymous complaint then it will have to be investigated upon the 65"and if it finds that there are grounds to hold the person liable then it willhave to be signed by investigating officer. fter 65" shall haveinvestigated, is the power Preliminary nvestigation something exclusiveonly to it) Exclusive) Concurrent but it is still the one having primarypower. There is a law that was passed that says if complaint involvingacts of public school teachers, Geped should investigate that but 65"still has primary !urisdiction.

n impeachable officers, can 65" conduct P on acts or omissions of

impeachable officer) ou can investigate for the purpose of preparingthe articles of impeachment. The articles of impeachment can beprepared by 65", with endorsements of members of the ouse of:epresentatives.

6nce you fixed the forum for administrative complaint with 65", youare stuc< there. 6r once you fixed administrative aspect with office ofpresident then you cannot anymore file with 65". ou cant do forumshopping.

:emember 1 fold liability S criminal aspect stays with 65". dmin maylie with C/C, office of Pres and 65" and civil aspect may lie with court.

(hat about for election offenses) Can ombudsman investigate election

offenses) es along with office of prosecutor if they are deputized byComelec. 65" can only come if they have been deputized.

Can 65" investigate a !udge for falsifying certification) the rule is thatyou cannot get salary for the month unless you certify under oath thatyou dont have cases pending in you sala that are submitted fordecision beyond day period within which you must decide.

@udge has got to decide within B8 days and you can only raw yoursalary if ma

Elections Reviewer for Finals

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