Q — What is the essence of due process in administrative proceedings? Explain.

ANS: In administrative proceedings, due process simply means an opportunity to seek a

reconsideration of the order complained of; it cannot be fully equated to due process in its strict

jurisprudential sense. A respondent in an administrative case is not entitled to be informed of the

preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard,

and to the administrative decision based on substantial evidence. (Vealasquez v. CA, G.R. No. 150732,

August 31, 2004, 437 SCRA 357). Note that it is the administrative order, not the preliminary report,

which is the basis of any further remedies the losing party in an administrative case may pursue. (Viva

Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27, 2005).

Exhaustion of administrative remedies.

The general rule is that before a party may seek the intervention of the court, he should first avail of all

the means afforded him by administrative processes. The issues which administrative agencies are

authorized to decide should not be summarily taken from them and submitted to a court without first

giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;

that is, courts cannot or will not determine a controversy involving a question which is within the

jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative

tribunal, where the question demands the exercise of sound administrative discretion requiring the

special knowledge, experience and services of the administrative tribunal to determine technical and

intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of

primary jurisdiction, which are based on sound public policy and practical considerations, are not

inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of

the party invoking the doctrine; (b) where the challenged administrative act is patently illegal,

amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will

irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make

the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately

have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its

application may cause great and irreparable damage; (h) where the controverted acts violate due

process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j)

when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved;

and, (l) in quo warranto proceedings. Exceptions (c) and (e) are applicable to the present case. (Rep., et

al. v. Lacap, et al., G.R. No. 158253, March 2, 2007).

Exhaustion of administrative remedies.

The underlying principles of the rule on exhaustion of administrative remedies rests on the presumption

that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the

same correctly. There are both legal and practical reasons for the principle. The administrative process is

intended to provide less expensive and speedier solutions to disputes. Where the enabling statute

indicates a procedure for administrative review and provides a system of administrative appeal or

reconsideration, the courts – for reasons of law, comity, and convenience – will not entertain a case

unless the available administrative remedies have been resorted to and the appropriate authorities have

been given an opportunity to act and correct the errors committed in the administrative forum. (Berdin,

et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6, 2007, Tinga, J).

BAR QUESTIONS IN ADMINISTRATIVE LAW FROM 1989-2003

2001 BAR EXAMINATION

I

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Philippine Ports Authority (PPA) General Manager issued an

administrative order to the fact that all existing regular

appointments to harbor pilot positions shall remain valid only up to

December 31 of the current year and that henceforth all appointments

to harbor pilot positions shall be only for a term of one year from

date of effectivity, subject to yearly renewal or cancellation by the

PPA after conduct of a rigid evaluation of performance. Pilotage as

a profession may be practiced only by duly licensed individuals, who

have to pass five government professional examinations.

The Harbor Pilot Association challenged the validity of said

administrative order arguing that it violated the harbor pilots'

right to exercise their profession and their right to due process of

law and that the said administrative order was issued without prior

notice and hearing. The PPA countered that the administrative order

was valid as it was issued in the exercise of its administrative

control and supervision over harbor pilots under PPA's legislative

charter; and that in issuing the order as a rule or regulation, it

was performing its executive or legislative, and not a quasi-judicial

function.

Due process of law is classified into two kinds, namely, procedural

due process and substantive due process of law. Was there, or, was

there no violation of the harbor pilots' right to exercise their

profession and their right to due process of law?

Suggested Answer:

The right of the pilots to due process was violated. As held, in

Corona vs. United Harbor Pilots Association of the Philippines, 283

SCRA 31 (1997), pilotage as a profession is a property right

protected by the guarantee of due process. The pre-evaluation

cancellation of the licenses of the harbor pilots every year is

unreasonable and violated their right to substantive due process.

The renewal is dependent on the evaluation after the licenses have

been cancelled. The issuance of the administrative order also

violated procedural due process, since no prior public hearing was

conducted. As held in Commissioner r of Internal Revenue vs. Court

of Appeals, 261 SCRA 237 (199 , when a regulation is being issued

under the quasi-legislative authority of an administrative agency,

the requirements of notice, hearing and publication must be observed.

II

TOPIC: JUDICIAL REVIEW

Give the two (2) requisites for the judicial review of administrative

decision/actions, that is, when is an administrative action ripe for

judicial review?

Suggested Answer:

1. The administrative action has already been fully completed

and, therefore, is a final agency action; and

2. All administrative remedies have been exhausted. (Gonzales,

Administrative Law, Rex Bookstore: Manila, p. 136 (1979).

2000 BAR EXAMINATION

I

TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)

The Maritime Industry Authority (MARINA) issued new rules and

regulations governing pilotage services and fees and the conduct of

pilots in Philippine ports. This it did without notice, hearing nor

consultation with harbor pilots or their associations whose rights

and activities are to be substantially affected. The harbor pilots

then filed suit to have the new MARINA rules and regulations declared

unconstitutional for having been issued without due process.

Suggested Answer:

The issuance of the new rules and regulations violated due process.

Under Section 9, Chapter II, Book VII of the Administrative Code of

1987, as far as practicable, before adopting proposed rules, an

administrative agency should publish or circulate notices of the

proposed rules and afford interested parties the opportunity to

submit their views; and in the fixing of rates, no rule shall be

valid unless the proposed rates shall have been published in a

newspaper of general circulation at least two weeks before the first

hearing on them. In accordance with this provision, in Commissioner

of Internal Revenue vs. Court of Appeals, 261 SCRA 236 (1996), it was

held that when an administrative rule substantially increases the

burden of those directly affected, they should be accorded the chance

to be heard before its issuance.

Alternative Answer:

Submission of the rule to the University of the Philippines Law

Center for publication is mandatory. Unless this requirement is

complied with, the rule cannot be enforced.

II

TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of Administrative

Remedies)

A) Explain the doctrine of exhaustion of administrative remedies.

B) Give at least three exceptions to its application.

Suggested Answer:

A) The doctrine of exhaustion of administrative remedies means

that when an adequate remedy is available within the Executive

Department, a litigant must first exhaust this remedy before he can

resort to the courts. The purpose of the doctrine is to enable the

administrative agencies to correct themselves if they have committed

an error. (Rosales vs. Court of Appeals, 165 SCRA 344 (198 .

B) The following are the exceptions to the application of the

doctrine of exhaustion of administrative remedies.

1. The question involved is purely legal;

2. The administrative body is in estoppel;

3. The act complained of is patently illegal;

4. There is an urgent need for judicial intervention;

5. The claim involved is small;

6. Grave and irreparable injury will be suffered;

7. There is no other plain, speedy and adequate remedy;

8. Strong public interest is involved;

9. The subject of the controversy is private law;

10. The case involves a quo warranto proceeding (Sunville Timber

Products, Inc. vs. Abad, 206 SCRA 482 (1992);

11. The party was denied due process (Samahang Magbubukid ng

Kapdula, Inc. vs. Court Appeals, 305 SCRA 147 (1999);

12. The decision is that of a Department Secretary (Nazareno vs.

Court of Appeals, G. R. No. 131641, February 23, 2000);

13. Resort to administrative remedies would be futile (university

of the Philippines Board of Regents vs. Rasul, 200 SCRA 685 (1991)

14. There is unreasonable delay (Republic vs. Sandiganbayan, 301

SCRA 237 (1999)

15. The action involves recovery of physical possession of public

land (Gabrito vs. Court of Appeals, 167 SCRA 771 (198 ;

16. The party is poor (Sabello vs. Department of Education,

Culture and Sports, 180 SCRA 623 (1989); and

17. The law provides for immediate resort to the court (Rullan

vs. Valdez, 12 SCRA 501 (1964).

1999 BAR EXAMINATION

I

TOPIC: RIGHT TO HEARING AND NOTICE

A. Give examples of acts of the state which infringe the due

process clause:

1. In its substantive aspect; and

2. In its procedural aspect

B. On April 6, 1963. Police Officer Mario Gatdula was charged

by the Mayor with Grave Misconduct and Violation of Law before the

Municipal Board. The Board investigated Gatdula but before the case

could be decided, the City charter was approved. The City Fiscal,

citing Section 30 of the city charter, asserted that he was

authorized thereunder to investigate city officers and employees. The

case against Gatdula was then forwarded to him, and are-investigation

was conducted. The office of the Fiscal subsequently recommended

dismissal. On January 11, 1966, the City Mayor returned the records

of the case to the City Fiscal for the submission of an appropriate

resolution but no resolution was submitted. On March 3, 1968, the

City Fiscal transmitted the records to the City Mayor recommending

that final action thereon be made by the City Board of Investigators

(CBI). Although the CBI did not conduct an investigation, the records

show that both the Municipal Board and the Fiscal's Office

exhaustively heard the case with both parties afforded ample

opportunity to adduce their evidence and argue their cause. The

Police Commission found Gatdula guilty on the basis of the records

forwarded by the CBl. Gatdula challenged the adverse decision of the

Police Commission theorizing that he was deprived of due process.

Questions: Is the Police Commission bound by the findings of the City

Fiscal? Is Gatdula's protestation of lack or nonobservance of due

process well-grounded? Explain your answers.

C. On November 7, 1990, nine lawyers of the Legal Department of Y

Bank who were all under Fred Torre, sent a complaint to management

accusing Torre of abusive conduct and mismanagement. Furnished with a

copy of the complaint, Torre denied the charges. Two days later, the

lawyers and Torre were called to a conference in the office of the

Board Chairman to give their respective sides of the controversy.

However, no agreement was reached thereat. Bank Director Romulo Moret

was tasked to look further into the matter. He met with the lawyers

together with Torre several times but to no avail. Moret then

submitted a report sustaining the charges or the lawyers. The Board

Chairman wrote Torre to inform him that the bank had chosen the

compassionate option of "waiting" for Torre's resignation. Torre was

asked, without being dismissed, to turn over the documents of all

cases handled by him to another official of the bank but Torre

refused to resign and requested for a "full hearing", Days later, he

reiterated his request for a "full hearing", claiming that he had

been "constructively dismissed", Moret assured Torre that he is "free

to remain in the employ of the bank" even if he has no particular

work assignment. After another request for a "full hearing" was

ignored, Torre filed a complaint with the arbitration branch of NLRC

for illegal dismissal. Reacting thereto, the bank terminated the

services of Torre.

Questions: (a) Was Torre "constructively dismissed" before he filed

his complaint? (b) Given the multiple meetings held among the bank

officials, the lawyers and Torre, is it correct for him to say that

he was not given an opportunity to be heard? Explain your answers.

SUGGESTED ANSWER:

A.

1.) A law violates substantive due process when it is unreasonable

or unduly oppressive. For example, Presidential Decree No. 1717,

which cancelled all the mortgages and liens of a debtor, was

considered unconstitutional for being oppressive. Likewise, as stated

in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City

Mayor of Manila, 20 SCRA 849, a law which is vague so that men of

common intelligence must guess at its meaning and differ as to its

application violates substantive due process. As held in Tañada v.

Tuvera, 146 SCRA 446, due process requires that the law be published.

2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the

dismissal of a case without the benefit of a hearing and without any

notice to the prosecution violated due process. Likewise, as held in

People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of

the judge who will decide a case violates procedural due process.

B.

The Police Commission is not bound by the findings of the City

Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was held that the

Police Commission is not prohibited from making its own findings on

the basis of its own evaluation of the records. Likewise, the

protestation of lack of due process is not well-grounded, since the

hearings before the Municipal Board and the City Fiscal offered

Gatdula the chance to be heard. There is no denial of due process if

the decision was rendered on the basis of evidence contained in the

record and disclosed to the parties affected.

C.

a) Torre was constructively dismissed, as held in Equitable Banking

Corporation v. National Labor Relations Commission, 273 SCRA 352.

Allowing an employee to report for work without being assigned any

work constitutes constructive dismissal.

b) Torre is correct in saying that he was not given the chance to be

heard. The meetings in the nature of consultations and conferences

cannot be considered as valid substitutes for the proper observance

of notice and hearing.

1998 BAR EXAMINATION

I

TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Department of National Defense entered into contract with

Raintree Corporation for the supply of ponchos to the Armed Forces of

the Philippines (AFP), stipulating that, in the event of breach,

action may be filed in the proper court in Manila.

Suppose the AFP fails to pay for delivered ponchos where must

Raintree Corporation file its claim? Why?

SUGGESTED ANSWER:

Raintree Corporation must file its claim with the Commission on

Audit. Under Section 2(1) IX-D of the Constitution, the Commission on

Audit has the authority to settle all accounts pertaining to

expenditure of public funds. Raintree Corporation cannot file a case

in court. The Republic of the Philippines did not waive its immunity

from suit when it entered into the contract with Raintree Corporation

for the supply of ponchos for the use of the Armed Forces of the

Philippines. The contract involves the defense of the Philippines and

therefore relates to a sovereign function.

In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held:

"The restrictive application of State immunity is proper only when

the proceedings arise out of commercial transactions of the foreign

sovereign, its commercial activities or economic affairs. Stated

differently, a State may be said to have descended to the level of an

individual and can thus be deemed to have tacitly given its consent

to be sued only when it enters into business contracts. It does not

apply where the contract relates to the exercise of its sovereign

functions. In this case the project are an integral part of the naval

base which is devoted to the defense of both the United States and

the Philippines, indisputably a function of the government of the

highest order: they are not utilized for nor dedicated to commerce or

business purposes"

The provision for venue in the contract does not constitute a waiver

of the State immunity from suit, because the express waiver of this

immunity can only be made by a statute.

In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled:

"Apparently respondent Judge was misled by the terms of the contract

between the private respondent, plaintiff in his sala, and defendant

Rice and Com Administration which, according to him, anticipated the

case of a breach of contract between the parties and the suits that

may thereafter arise. The consent, to be effective though, must come

from the State acting through a duly enacted statute as pointed out

by Justice Bengzon in Mobil."

ALTERNATIVE ANSWER:

In accordance with the doctrine of exhaustion of administrative

remedies, Raintree Corporation should first file a claim with the

Commission on Audit. If the claim is denied, it should file a

petition for certiorari with the Supreme Court.

II

Topic: Administrative rulings subject to final determination of the

courts

Andres Ang was born of a Chinese father and a Filipino mother in

Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was

naturalized as a Filipino citizen On May 11, 1998. Andres Ang was

elected Representative of the First District of Sorsogon. Juan Bonto

who received the second highest number of votes, filed a petition for

Quo Warranto against Ang. The petition was filed with the House of

Representative Electoral Tribunal (HRET). Bonto contends that Ang is

not a natural born citizen of the Philippines and therefore is

disqual1fied to be a member of the House.

The HRET ruled in favor of Ang. Bonto filed a petition for certiorari

in the Supreme Court. The following issues are raised:

1. Whether the case is justiciable considering that Article VI.

Section 17 of the Constitution declares the HRET to be the sole Judge-

of all contests relating to the election returns and

disqualifications of members of the House of Representatives.

2. Whether Ang is a natural born citizen of the Philippines.

How should this case be decided?

SUGGESTED ANSWER:

1. The case is justiciable. As stated in Lazatin vs.House Electoral

Tribunal. 168 SCRA 391, 404, since judicial power includes the duty

to determine whether or not there has been a grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of

any branch or instrumentality of the Government, the Supreme Court

has the power to review the decisions of the House of Representatives

Electoral Tribunal in case of grave abuse of discretion on its part.

2. Andres Ang should be considered a natural born citizen of the

Philippines. He was born of a Filipino mother on January 20, 1973.

This was after the effectivity of the 1973 Constitution on January

17, 1973. Under Section (I), Article III of the 1973 Constitution,

those whose fathers or-mothers are citizens of the Philippines are

citizens of the Philippines. Andres Ang remained a citizen of the

Philippines after the effectivity of the 1987 Constitution. Section

1. Article IV of the 1987 Constitution provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the

adoption of this Constitution:"

III

TOPIC: SELF INCRIMINATION

Suppose Congress passed a law to implement the Constitutional

principle that a public office is a public trust, by providing as

follows:

"No employee of the Civil Service shall be excused from attending and

testifying or from producing books, records, correspondence,

documents or other evidence in any administrative investigation

concerning the office in which he is employed on the ground that his

testimony or the evidence required of him may tend to incriminate him

or subject him to a penalty or forfeiture: but his testimony or any

evidence produced by him shall not be used against him in criminal

prosecution based on the transaction, matter or thing concerning

which is compelled, after invoking his privilege against self-

incrimination to testify or produce evidence. Provided, however, that

such individual so testifying shall not be exempt from prosecution

and punishment for perjury committed in so testifying nor shall he be

exempt from demotion or removal from office. Any employee who refuses

to testify or produce any documents under this Act shall be dismissed

from the service."

Suppose further, that Ong, a member of the Professional Regulatory

Board, is required to answer questions in an investigation regarding

a LEAKAGE in a medical examination.

1. Can Ong refuse to answer questions on the ground that he would

incriminate himself?

2. Suppose he refuses to answer, and for that reason, is dismissed

from the service; can he pausibly argue that the Civil Commission has

inferred his guilt from his refusal to answer in violation of the

Constitution?

3. Suppose on the other hand, he answers the question and on the

basis of his answers, he is found guilty and is dismissed. Can he

pausibly assert that his dismissa1 is based on coerced confession?

SUGGESTED ANSWER:

1. No. Ong cannot refuse to answer the question on the ground that he

would incriminate himself, since the Jaw grants him immunity and

prohibits the use against him in a criminal prosecution of the

testimony or evidence produced by him. As stated by the United States

Supreme Court in Brown vs. Walker, 161 U.S.591, 597, what the

constitutional prohibition against self-incrimination seeks to

prevent is the conviction of the witness on the basis of testimony

elicited from him. The rule is satisfied when he is granted immunity.

ALTERNATIVE ANSWER:

1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108,

if Ong is being cited merely as a witness, he may not refuse to

answer. However, if the question tends to violate his right against

self-incrimination, he may object to it. On the other hand, under the

ruling in Chavez vs. Court of Appeals. 24 SCRA 663, 680, if be is a

respondent, Ong may refuse to answer any question because of his

right against self-incrimination.

SUGGESTED ANSWER:

2. No Ong cannot argue that the Civil Service Commission inferred

his guilt from his refusal to answer. Be was not dismissed because of

his involvement in the leakage in the medical examination but for his

refusal to answer. This is a violation of the law. He could be

compelled to answer the question on pain of being dismissed in case

of his refusal, because he was granted immunity.

In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States Supreme

Court said:

"Furthermore, the accommodation between the interest of the State and

the Fifth Amendment requires that the State have means at its

disposal to secure testimony if immunity is supplied and testimony is

still refused. This is recognized by the power of courts to compel

testimony, after a grant of immunity, by use of civil contempt and

coerced imprisonment. Shilitani vs. United States, 384 US 364, 16 L

Ed 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity the

State may plainly insist that employees either answer questions under

oath about the performance of their job or suffer the loss of

employment."

3. Yes, Ong can argue that his dismissal was based on coerced

confession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the United

States Supreme Court held:

"We now hold the protection of the individual under the Fourteenth

Amendment against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under threat of removal

from office, and that it extends to all, whether they are policemen

or other members of the body politic."

IV

TOPIC: LIMITATIONS OF POWER

The police had suspicions that. Juan Samson, member of the subversive

New-Proletarian Army, was using the mail for propaganda purposes in

gaining new adherents to its cause. The Chief of Police of

Bantolan., Lanao del Sur ordered the Postmaster of the town to

intercept and open all mail addressed to and coming from Juan Samson

in the interest of the national security. Was the order of the Chief

of Police valid?

SUGGESTED ANSWER:

No, the order of the Chief of Police is not valid, because there is

no law which authorizes him to order the Postmaster to open the

letters addressed to and coming from Juan Samson. An official in the

Executive Department cannot interfere with the privacy of

correspondence and communication in the absence of a law authorizing

him to do so or a lawful order of the court.

Section 3(1), Article III of the Constitution provides:

"The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order

requires otherwise as prescribed by law."

IV

TOPIC: JURISDICITON

Suppose a Commissioner of the COMELEC is charged before the

Sandiganbayan for allegedly tolerating violation of the election laws

against proliferation of prohibited billboards and election

propaganda with the end in view of removing him from office. Will the

action prosper?

SUGGESTED ANSWER:

No, the action will not prosper. Under Section 8 Article Xl of the

Constitution. the Commissioners of the Commission on Elections are

removable by impeachment. As held in the case of In re Gonzales, 160

SCRA 771,774-775, a public officer who is removable by impeachment

cannot be charged before the Sandiganbayan with an offense which

carries with it the penalty of removal from office unless he is first

impeached. Otherwise, he will be removed from office by a method

other than impeachment.

1997 BAR EXAMINATION

I

TOPIC: ADMINISTRATIVE CODE

Are the government-owned or controlled corporations within the scope

and meaning of the "Government of the Philippines"?

Suggested Answer:

Section 2 of the Introductory Provisions of the Administrative Code

of 1987 defines the government of the Philippines as 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.

Government-owned or controlled corporations are within the scope and

meaning of the Government of the Philippines if they are performing

governmental or political functions.

II

TOPIC: ADMINISTRATIVE CODE FLAG CEREMON� Y

Section 28, Title VI, Chapter 9, of the Administrative Code of 1987

requires all educational institutions to observe a simple and

dignified flag ceremony, including the playing or singing of the

Philippine National Anthem, pursuant to rules to be promulgated by

the Secretary of Education, Culture and Sports. The refusal of a

teacher, student or pupil to attend or participate in the flag

ceremony is a ground for dismissal after due investigation. The

Secretary of Education, Culture and Sports issued a memorandum

implementing said provision of law. As ordered, the flag ceremony

would be held on Mondays at 7:30 a.m. during class days. A group of

teachers, students and pupils requested the Secretary that they be

exempted from attending the flag ceremony on the ground that

attendance thereto was against their religious belief. The Secretary

denied the request. The teachers, students and pupils concerned went

to the Court to have the memorandum circular declared null and void.

Decide the case.

Suggested Answer:

The teachers and the students should be exempted from the flag

ceremony. As held in Ebralinag vs. Division Superintendent of Schools

of Cebu, 251 SCRA 569 , to compel them to participate in the flag

ceremony will violate their freedom of religion. Freedom of religion

cannot be impaired except upon the showing of a clear and present

danger of a substantive evil which the State has a right to prevent.

The refusal of the teachers and the students to participate in the

flag ceremony does not pose a clear and present danger.

1996 BAR EXAMINATION

I

TOPIC: ADMINISTRATIVE REMEDIES

1. Distinguish the doctrine of primary jurisdiction from the

doctrine of exhaustion of administrative remedies.

2. Does the failure to exhaust administrative remedies before

filing a case in court oust said court of jurisdiction to hear the

case? Explain.

Suggested Answer:

1. The doctrine of primary jurisdiction and the doctrine of

exhaustion of administrative remedies both deal with the proper

relationships between the courts and administrative agencies. The

doctrine of exhaustion of administrative remedies applies where a

claim is cognizable in the first instance by an administrative agency

alone. Judicial interference is withheld until the administrative

process has been completed. As stated in Industrial Enterprises, Inc.

vs. Court of Appeals, 184 SCRA 426, the doctrine of primary

jurisdiction applies where a case is within the concurrent

jurisdiction of the court and an administrative agency but the

determination of the case requires the technical expertise of the

administrative agency. In such a case, although the matter is within

the jurisdiction of the court, it must yield to the jurisdiction of

the administrative case.

2. No, the failure to exhaust administrative remedies before

filing a case in court does not oust the court of jurisdiction to

hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384,

the failure to exhaust administrative remedies does not affect the

jurisdiction of the court but results in the lack of a cause of

action, because a condition precedent that must be satisfied before

action can be filed was not fulfilled.

1995 BAR EXAMINATION

I

TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY

The Municipality of Binangonan, Rizal passed a resolution authorizing

the operation of an open garbage dumpsite in a 9-hectare land in the

Reyes Estate within the Municipality's territorial limits. Some

concerned residents of Binangonan filed a complaint with the Laguna

Lake Development Authority (LLDA) to stop the operation of the

dumpsite due to its harmful effects on the health of the residents.

The LLDA conducted an on-site investigation, monitoring, testing and

water sampling and found that the dumpsite would contaminate Laguna

de Bay and the surrounding areas of the Municipality. The LLDA also

discovered that no environmental clearance was secured by the

Municipality from the Department of Environment and Natural Resources

(DENR) and the LLDA as required by law. The LLDA therefore issued to

the Binangonan Municipal Government a cease and desist order to stop

the operation of the dumpsite. The Municipality of Binangonan filed a

case to annul the order issued by the LLDA.

1. Can the Municipality of Binangonan invoke police power to

prevent its residents and the LLDA from interfering with the

operation of the dumpsite by the Municipality? Explain.

2. Can the LLDA justify its order by asserting that the health

of the residents will be adversely affected? Explain.

Suggested Answer:

1. No, the Municipality of Binangonan cannot invoke its police

power. According to Laguna Lake Development Authority vs. Court of

Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA is

mandated to promote the development of the Laguna Lake area,

including the surrounding Province of Rizal, with due regard to the

prevention of pollution. The LLDA is mandated to pass upon and

approve or disapprove all projects proposed by local government

offices within the region.

2. Yes, the LLDA can justify its order. Since it has been

authorized by Executive Order No. 927 to make orders requiring the

discontinuance of pollution, its power to issue the order can be

inferred from this. Otherwise, it will be a toothless agency.

Moreover, the LLDA is specifically authorized under its Charter to

issue cease and desist orders.

1991 BAR EXAMINATION

I

TOPIC: ADMINISTRATIVE BODIES OR AGENCY

On July 1991, the Energy Regulatory Board (ERB), in response to

public clamor, issued a resolution approving and adopting a schedule

for bringing down the prices of petroleum products over a period of

one (1) year starting 15 August 1991, over the objection of the oil

companies which claim that the period covered is too long to prejudge

and foresee.

Is the resolution valid?

Suggested Answer:

No, the resolution is not valid, since the Energy Regulatory Board

issued the resolution without a hearing. The resolution here is not a

provisional order and therefore it can only be issued after

appropriate notice and hearing to affected parties. The ruling in

Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA

218, to the effect that an order provisionally reducing the rates

which a public utility could charge, could be issued without previous

notice and hearing, cannot apply.

1990 BAR EXAMINATION

I

TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS

Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquino

created the Presidential Commission on Good Government (PCGG) and

empowered it to sequester any property shown prima facie to be ill-

gotten wealth of the late President Marcos, his relatives and

cronies. Executive Order No. 14 vests on the Sandiganbayan

jurisdiction to try hidden wealth cases. On April 14, 1986, after an

investigation, the PCGG sequestered the assets of X Corporation, Inc.

(1) X Corporation, Inc, claimed that President Aquino as President,

could not lawfully issue Executive Orders Nos. 1, 2, 14, which have

the force of law, on the ground that legislation is a function of

Congress. Decide.

(2) Said corporation also questioned the validity of the three

executive orders on the ground that they are bills of attainder and,

therefore, unconstitutional. Decide

Suggested Answer:

(1) The contention of X Corporation should be rejected. Executive

orders Nos. 1, 2 and 14 were issued in 1986. At that time President

Corazon Aquino exercised legislative power Section 1, Article II of

the Provisional Constitution established by Proclamation No. 3,

provided:

"Until a legislature is elected and convened under a new

constitution, the President shall continue to exercise legislative

power."

In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas,

Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that the

Provisional Constitution and the 1987 Constitution, both recognized

the power of the President to exercise legislative powers until the

first Congress created under the 1987 Constitution was convened on

June 27, 1987.

(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. A

bill of attainder is a legislative act which inflicts punishment

without trial. On the contrary, the expressly provide that any

judgment that the property sequestered is ill-gotten wealth is to be

made by a court (the Sandiganbayan) only after trial.

II

TOPIC: LAW ON PUBLIC OFFICERS

A. After 2 February 1987, the Philippine National bank (PNB) grants a

loan to congressman X. Is the loan violative of the Constitution?

Suppose the loan had instead been granted before 2 February 1987, but

was outstanding on that date with a remaining balance on the

principal in the amount of P50,000, can the PNB validly give

Congressman X an extension of time after said date to stele the

obligation?

B. For being notoriously undesirable and recidivist, Jose Tapulan, an

employee in the first level of the career service in the Office of

the Provincial Governor of Masbate, was dismissed by the Governor

without formal investigation pursuant to Section 40 of the Civil

Service Decree (P.D. No. 807) which authorizes summary proceedings in

such cases.

As a lawyer of Jose what steps, if any, would you take to protect his

rights?

Suggested Answer:

A. whether or not the loan is violative of the 1987 Constitution

depends upon its purpose, if it was obtained for a business purpose,

it is violative of the Constitution. If it was obtained for some

other purpose, e.g. for housing, it is not violative of the

Constitution because under Section 16, Article XI, Members of

Congress are prohibited from obtaining loans from government-owned

banks only if it is for a business purpose.

If the loan was granted before the effectivity of the Constitution on

February 2, 1987, the Philippine National Bank cannot extend its

maturity after February 2, 1987, if the loan was obtained for a

business purpose. In such case the extension is a financial

accommodation which is also prohibited by the Constitution.

B. Section 40 of the Civil Service Decree has been repealed by

republic Act No. 6654. As a lawyer of Jose Tapulan, I will file a

petition for mandamus to compel his reinstatement. In accordance with

the ruling in Mangubat vs. Osmeña, G.R. No. L-12837, April 30, 1959,

there is no need to exhaust all administrative remedies by appealing

to Civil Service Commission, since the act of the governor is

patently illegal.

1989 BAR EXAMINATION

I

TOPIC: LAW ON PUBLIC OFFICERS

An existing law grants government employees the option to retire upon

reaching the age of 57 years and completion of at least 30 years of

total, government service. As a fiscal retrenchment measure, the

Office of the President later issued a Memorandum Circular requiring

physical incapacity as an additional condition for optional

retirement age of 65 years. A government employee, whose application

for optional retirement was denied because he was below 65 years of

age and was not physically incapacitated, filed an action in court

questioning the disapproval of his application claiming that the

Memorandum Circular is void. Is the contention of the employee

correct? Explain.

Suggested Answer:

Yes, the contention of the employee is correct. In Marasigan vs.

Cruz, SCRA , it was held that such memorandum circular is void. By

introducing physical capacity as additional condition for optional

retirement, the memorandum circular tried to amend the law. Such

power is lodged with the legislative branch and not with the

executive branch.

II

TOPIC: LAW ON PUBLIC OFFICERS

In 1986, F, then the officer-in-charge of Botolan, Zambales, was

accused of having violated the ANTI-Graft and Corrupt Practices Act

before the Sandigan Bayan. Before he could be arraigned, he was

elected Governor of Zambales. After his arraignment, he put under

preventive suspension by the Sandiganbayan " for the duration of the

trial".

(1) Can F successfully challenge the legality of his preventive

suspension on the ground that the criminal case against him involved

acts committed during his term as officer-in-charge and not during

his term as Governor?

(2) Can F validly object to the aforestated duration of his

suspension?

Suggested Answer:

(1) No, F cannot successfully challenge the legality of his

preventive suspension on the ground that the criminal case against

him involve acts committed during his term as OIC and not during his

term as governor because suspension from office under Republic Act

3019 refers to any office that the respondent is presently holding

and not necessarily to the one which he hold when he committed the

crime with which he is charged. This was the ruling in Deloso vs.

Sandiganbayan, 173 SCRA 409

(2) Yes, F Can validly object to the duration of the suspension. In

Deloso vs. Sandiganbayan, 173 SCRA 409, it was held that the

imposition of preventive suspension for an indefinite period of time

is unreasonable and violates the right of the accused to due process.

The people who elected the governor to office would be deprived of

his services for an indefinite period, and his right to hold office

would be nullified. Moreover, since under Section 42 of the Civil

Service Decree the duration of preventive suspension should be

limited to ninety (90) days, equal protection demands that the

duration of preventive suspension under the Anti-Graft and Corrupt

Practices Act be also limited to ninety (90) days only.

ELECTION LAWS QUESTIONS AND ANSWERS

Q —    Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,

Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor filed

a petition to annul/nullify his certificate of candidacy and/or to disqualify on the ground

that Cayat has been convicted of a crime involving moral turpitude. Twenty three days

before the election, Cayat’s disqualification became final and executory. He, however

won and was proclaimed and assumed office. Palileng filed an electoral protest

contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and

contended that he should succeed Cayat in case he is disqualified because Palileng

was only a second placer, hence, he cannot be declared as the winner. Is the

contention of the Vice-Mayor correct? Why?

ANS:   No, because there was no second placer, hence, Palileng should be proclaimed

as the winner on the following grounds:

First, the COMELEC’s Resolution of 12 April 2004 cancelling Cayat’s certificate of

candidacy due to disqualification became final and executory on 17 April 2004 when

Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for

Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty-three days before the

election day, Cayat was already disqualified by final judgment to run for Mayor in the 10

May 2004 elections. As the only candidate, Palileng was not a second placer. On the

contrary, Palileng was the sole and only placer, second to none. The doctrine on the

rejection of the second placer, which triggers the rule on succession, does not apply in

the present case because Palileng is not a second-placer but the only placer.

Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond

question.

Second, there are specific requirements for the application of the doctrine on the

rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of

his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s

disqualification remained pending on election day, 10 May 2004, resulting in the

presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the

decision on Cayat’s disqualification became final only after the elections. (Cayat v.

COMELEC, April 27, 2007).

Q —    It was contended that the doctrine of rejection of the second placer laid down in

Labo v. COMELEC should apply. Is the contention correct? Why?

ANS:   No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the

second placer, does not apply because in Labo there was no final judgment of

disqualification before the elections. The doctrine on the rejection of the second placer

was applied in Labo and a host of other cases because the judgment declaring the

candidate’s disqualification in Labo and the other cases had not become final before the

elections. Labo and other cases applying the doctrine on the rejection of the second

placer have one common essential condition – the disqualification of the candidate had

not become final before the elections. This essential condition does not exist in the

present case. (Cayat v. COMELEC).

Reason in Labo.

In Labo, Labo’s disqualification became final only on 14 May 1992, three days after the

11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the

case of Cayat he was disqualified by final judgment 23 days before the 10 May 2004

lections. On election day, Cayat was no longer legally a candidate for mayor. In short,

Cayat’s candidacy for Mayor was legally non-existent in the 10 May 2004 elections.

Q —    What is the effect if a candidate is disqualified by final judgment? Explain.

ANS:   The law expressly declares that a candidate disqualified by final judgment before

an election cannot be voted for, and votes cast for him shall not be counted. This is a

mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms

Law of 1987, states:

Any candidate who has been declared by final judgment to be disqualified shall not be

voted for, and the votes cast for him shall not be counted. If for any reason a candidate

is not declared by final judgment before an election to be disqualified and he is voted for

and receives the winning number of votes in such election, the Court or Commission

shall continue with the trial and hearing of the action, inquiry, or protest and, upon

motion of the complainant or any intervenor, may during the pendency thereof order the

suspension of the proclamation of such candidate whenever the evidence of his guilt is

strong.

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when

the disqualification becomes final before the elections, which is the situation covered in

the first sentence of Section 6. The second is when the disqualification becomes final

after the elections, which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law

governing the first situation is categorical: a candidate disqualified by final judgment

before an election cannot be voted for, and votes cast for him shall not be counted. The

Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May

2004 elections. Therefore, all the 8, 164 votes cast in Cayat’s favor are stray. Cayat was

never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper

because he was the sole and only candidate, second to none. (Cayat v. COMELEC).

Q —    Why is the proclamation of Cayat void? Explain.

ANS:   Cayat’s proclamation is void because the decision disqualifying him had already

become final on 17 April 2004. There is no longer any need to ascertain whether there

was actual knowledge by the voters of his disqualification when they casted their votes

on election day because the law mandates that Cayat’s votes “shall not be counted”.

There is no disenfranchisement of the voters. Rather, the voters are deemed by law to

have deliberately voted for a non-candidate, and thus their votes are stray and “shall not

be counted”. (Cayat. v. COMELEC).

Q —    Is the intervention of the Vice-Mayor proper? Why?

ANS:   No. The petition-in-intervention should be rejected because the doctrine on the

rejection of the second placer does not apply to this case. The doctrine applies only if

the winning candidate’s disqualification has not yet become final and executory before

the election. In this case, the disqualification was final and executory before the

election, hence, there was no second placer. (Cayat v. COMELEC).

Three-term limit; even if “as caretaker”.

Q —    Mayor Marino Morales ran for a fourth term despite having served for three (3)

consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel

his certificate of candidacy, he alleged that while he served his second term, he did it as

a “caretaker of the office” or as a “de facto officer” because he was suspended by the

Ombudsman from January 16, 1999 to July 15, 1999 and that his proclamation was

declared void and which became final and executory on August 6, 2001. The

COMELEC declared him disqualified. Before the Supreme Court, he contended that his

second term from July 1, 1999 to June 30, 2001 may not be counted since his

proclamation was void. Is the contention correct? Why?

ANS:   No, because his service from July 1, 1999 to June 30, 2001 was for a full term,

hence, the three-term limit rule applies to him. This is especially so that he assumed

office. He served as mayor up to June 30, 2001. He was mayor for the entire period

notwithstanding the decision in the electoral protest case ousting him as mayor. As held

in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473,

such circumstance does not constitute an interruption in serving the full term. In Ong, he

served the full term even as there was a declaration of failure of election.

Section 8, Article X of the Constitution provides that the terms of the office of elected

local officials x x x, shall be three years and no such official shall serve for more than

three consecutive terms. x x x

Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no

local official shall serve for more than three consecutive terms in the same position.

Morales has been mayor of Mabalacat continuously without any break since July 1,

1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and

Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).

Q —    Explain the reason for the maximum term limit.

ANS:   The framers of the Constitution wanted to establish some safeguards against the

excessive accumulation of power as a result of consecutive terms.

As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601,

the three-term limit is an exception to the people’s freedom to choose those who will

govern them in order to avoid the evil of a single person accumulating excessive power

over a particular territorial jurisdiction as a result of a prolonged stay in the same office.

(Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and companion case, May 9,

2007).

Q —    Is not the case of Morales similar to the case of Lonzanida v COMELEC?

Explain.

ANS:   No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily vacated

when there was a declaration of failure of election. He did not fully serve the term,

hence, he was qualified to run for a third term.

The difference between the case at bench and Lonzanida is at once apparent. For one,

in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated

reason of “failure of election”, and, as a consequence thereof, the proclamation of

Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office

of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term,

there being an involuntary severance from office as a result of legal processes. In fine,

there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But

more importantly, here, there was actually no interruption or break in the continuity of

Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never

unseated during the term in question; he never ceased discharging his duties and

responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering

the 1998-2001 term.

Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the

duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But

his proclamation as mayor in the May 1998 election was declared void. As ruled, his

service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule

applies to him. There is no reason why this ruling should not also apply to Morales who

is similarly situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007).

Q —    Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?

ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by

virtue of the principle of succession, he being the vice-mayor. He was not therefore,

elected even if he served the rest of the term of the mayor, hence, his assumption of the

office of the mayor upon the death of the incumbent mayor may not be regarded as a

term.

Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90,

it was held that assumption of the office of mayor in a recall election for the remaining

term is not the “term” contemplated under Section 8, Article X of the Constitution and

Section 43(b) of R.A. 7160 (the Local Government Code). There was a “break” in the

service of the mayor. He was a “private citizen” for a time before running for mayor in

the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9,

2007).

Q — What is the effect if the certificate of candidacy of a candidate is cancelled?

Explain.

ANS:   Any candidate who has been declared by final judgment to be disqualified shall

not be voted for, and the votes cast for him shall not be counted. (Secs. 6 and 7, RA

6646).

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a

candidate for an office for which he did not present himself shall be considered as a

stray vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus Election

Code).

Morales can not be considered a candidate in the May 2004 elections. Not being a

candidate, the votes cast for him should not be counted and must be considered stray

votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007).

Q —    It was contended that since Morales was disqualified, the second placer should

be proclaimed as the winner. Is the contention correct? Why?

ANS:   In Labo v. COMELEC, the Court has ruled that a second place candidate cannot

be proclaimed as a substitute winner.

The rule is that, the ineligibility of a candidate receiving majority votes does not entitle

the eligible candidate receiving the next highest number of votes to be declared elected.

A minority or defeated candidate cannot be deemed elected to the office.

As a consequence of ineligibility, a permanent vacancy in the contested office has

occurred. This should now be filled by the vice-mayor in accordance with Sec. 44 of the

Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May

9, 2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297).

Q —    What are the requirements which must concur for the three-term limit to apply?

ANS:   For the three-term limit to apply, the following two conditions must concur:

1)            that the official concerned has been elected for three consecutive terms in the

same local government post; and

2)            that he has fully served three consecutive terms. (Lonzanida v. COMELEC,

G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473;

Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No.

167591, May 9, 2007).

Effect if there is a tie.

Q —    What is the proper procedure to be resorted to in case of a tie? Explain.

ANS:   To resolve the tie, there shall be drawing of lots. Whenever it shall appear from

the canvass that two or more candidates have received an equal and highest number of

votes, or in cases where two or more candidates are to be elected for the same position

and two or more candidates received the same number of votes for the last place in the

number to be elected, the board of canvassers, after recording this fact in its minutes,

shall by resolution, upon five days notice to all the tied candidates, hold a special public

meeting at which the board of canvassers shall proceed to the drawing of lots of the

candidates who have tied and shall proclaim as elected the candidates who may

favored by luck, and the candidates so proclaimed shall have the right to assume office

in the same manner as if he had been elected by plurality of votes. The board of

canvassers shall forthwith make a certificate stating the name of the candidate who had

been favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest

the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March

2, 2007).

Withdrawal of certificate of candidacy.

Q —    Hans Roger filed his certificate of candidacy but withdrew the same. He was

substituted by Joy Luna but the COMELEC denied due course to her certificate on the

ground that Hans being under age, he could not have filed a valid certificate of

candidacy. There was, however, no petition to deny Hans certificate of candidacy. Did

the COMELEC act correctly? Why?

ANS:   No. The COMELEC acted with grave abuse of discretion amounting to lack or

excess of jurisdiction in declaring that Hans Roger, being under age, could not be

considered to have filed a valid certificate of candidacy and, thus, could not be validly

substituted by Luna. The COMELEC may not, by itself, without the proper proceedings,

deny due course to or cancel a certificate of candidacy filed in due form. (Cipriano v.

COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v. Del

Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for

non-age is beyond the usual and proper cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his

certificate of candidacy, his eligibility may only be impugned through a verified petition

to deny due course to or cancel such certificate of candidacy under Section 78 of the

Election Code.

In this case, there was no petition to deny due court to or cancel the certificate of

candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a

valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny

due course to or cancel Luna’s certificate of candidacy. In effect, the COMELEC,

without the proper proceedings, cancelled Hans Roger’s certificate of candidacy and

declared the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983,

April 24, 2007).

Pre-proclamation controversy; extent of power of COMELEC.

Q —    What is the extent of the power of the COMELEC in pre-proclamation

controversy? Explain.

ANS:   It is a well-established rule in pre-proclamation cases that the Board of

Canvassers is without jurisdiction to go beyond what appears on the face of the election

return. The rationale is that a full reception of evidence aliunde and the meticulous

examination of voluminous election documents would run counter to the summary

nature of a pre-proclamation controversy. However, this rule is not without any

exception. In Lee v. Commission on Elections, it was held that if there is a prima facie

showing that the return is not genuine, several entries having been omitted in the

questioned election return, the doctrine does not apply. The COMELEC is thus not

powerless to determine if there is basis for the exclusion of the questioned returns.

(G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al. v. COMELEC, et al., G.R.

No. 171882, April 3, 2007).

Handwritings have only one general appearance.

Q —    May the COMELEC invalidate certain ballots merely on a finding that the writings

have the same general appearance and pictorial effect? Explain.

ANS:   No. General resemblance is not enough to warrant the conclusion that two

writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).

In order to reach the conclusion that two writings are by the same hand there must not

only be present class characteristics but also individual characteristics or ‘dents and

scratches’ in sufficient quantity to exclude the theory of accidental coincidence; to reach

the conclusion that writings are by different hands we may find numerous likeness in

class characteristics but divergences in individual characteristics, or we may find

divergences in both, but the divergence must be something more than mere superficial

differences. (Osborn’s Questioned Documents, p. 244; Delos Reyes v. COMELEC, et

al., G.R. No. 170070, February 28, 2007).

Neighborhood rule.

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a

candidate for the wrong or inexistent office. In appreciating such votes, the COMELEC

may applied the “neighborhood rule.” As used by the Court, this nomenclature, loosely

based on a rule of the same name devised by the House of Representatives Electoral

Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34, June 16, 1989, 1 HRET

Rep. 138), refers to an exception to the rule on appreciation of misplaced votes under

Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a

candidate for an office for which he did not present himself shall be considered as a

stray vote but it shall not invalidate the whole ballot.

Section 211(19) is meant to avoid confusion in the minds of the election officials as to

the candidates actually voted for and to stave off any scheming design to identify the

vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of

our election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)). Section 211(19) also

enforces Section 195 of the Omnibus Election Code which provides that in preparing

the ballot, each voter must “fill his ballot by writing in the proper place for each office the

name of the individual candidate for whom he desires to vote.”

Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire

series of names intended to be voted for the successive offices appearing in the ballot

(Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152

Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5

SCRA 438) misplacement of names where such names were preceded or followed by

the title of the contested office or where the voter wrote after the candidate’s name a

directional symbol indicating the correct office for which the misplaced name was

intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a

name written (a) off-center from the designated space (Mandac v. Samonte, 54 Phil.

706 (1930)), (b) slightly underneath the line for the contested office (Sarmiento v.

Quemado, No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del Fierro, 69 Phil. 199

(1939)), (c) immediately above the title for the contested office ((Villavert v. Fornier, 84

Phil. 756 (1949)), or (d) in the space for an office immediately following that for which

the candidate presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496

SCRA 505 and Ferrer v. Commission on Elections, 386 Phil. 431 (2000)). In these

instances, the misplaced votes are nevertheless credited to the candidates for the office

for which they presented themselves because the voters’ intention to so vote is clear

from the face of the ballots. This is in consonance with the settled doctrine that ballots

should be appreciated with liberality to give effect to the voters’ will. (Velasco v.

COMELEC, et al., G.R. No. 166931, February 22, 2007).

Marked ballot.

Q —    When is a ballot considered as marked? Explain.

ANS:   In order for a ballot to be considered marked, in the sense necessary to

invalidate it, it must appear that the voter designedly place some superfluous sign or

mark on the ballot which might serve to identify it thereafter. No ballot should be

discarded as a marked ballot unless its character as such is unmistakable. The

distinguishing mark which the law forbids to be placed on the ballot is that which the

elector may have placed with the intention of facilitating the means of identifying said

ballot, for the purpose of defeating the secrecy of suffrage which the law establishes.

Thus, marked ballots are ballots containing distinguishing marks, the purpose of which

is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010, February 8, 2007,

Tinga, J).

Failure of election.

Q —    When is there failure of election?

ANS:   There are three instances where a failure of elections may be declared, thus:

(a) the election in any polling place has not been held on the date fixed on account of

force majeure, violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for

the closing of the voting on account of force majeure, violence, terrorism, fraud or other

analogous causes; or

(c) after the voting and during the preparation and transmission of the election returns or

in the custody or canvass thereof, such election results in a failure to elect on account of

force majeure, violence, terrorism, fraud or other analogous causes.

In all three instances, there is a resulting failure to elect. In the first instance, the

election has not been held. In the second instance, the election has been suspended. In

the third instance, the preparation and the transmission of the election returns give rise

to the consequent failure to elect; the third instance is interpreted to mean that nobody

emerged as a winner. (Mutilan v. COMELEC, et al., G.R. No. 171248, April 2, 2007).

Note:

None of the three instances is present in this case. In this case, the elections took

place. In fact, private respondent was proclaimed the winner. Petitioner contests the

results of the elections on the grounds of massive disenfranchisement, substitute voting,

and farcical and statistically improbable results. Petitioner alleges that no actual election

was conducted because the voters did not actually vote and the ballots were filled up by

non-registered voters.

Q —    May an interlocutory order of a COMELEC Division be the subject of certiorari to

the SC? Explain.

ANS:   As a rule, No. The exception is in an unusual case where the petition for

certiorari questioning the interlocutory order of a COMELEC Division was pending

before the SC, the main case which was meanwhile decided by the COMELEC En Banc

was likewise elevated to the Court. Thus, there was a situation where the petition for

certiorari questioning the interlocutory orders of the COMELEC Division and the petition

for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the

main case were consolidated. The issues raised in the petition for certiorari were also

raised in the main case and therefore there was actually no need to resolve the petition

assailing the interlocutory orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741,

March 16, 2007; Soriano, Jr., et al. v. COMELEC, et al., G.R. No. 164496-505, April 2,

2007).

Note:

The general rule is that a decision or an order of a COMELEC Division cannot be

elevated directly to the SupremeCourt through a special civil action for certiorari.

Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a

COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to

reconsider an interlocutory order of a COMELEC Division shall be resolved by the

division which issued the interlocutory order, except when all the members of the

division decide to refer the matter to the COMELEC En Banc.

Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor

can they be proper subject of a petition for certiorari. To rule otherwise would not only

delay the disposition of cases but would also unnecessarily clog the Court docket and

unduly burden the Court. This does not mean that the aggrieved party is without

recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved

party can still assign as error the interlocutory order if in the course of the proceedings

he decides to appeal the main case to the COMELEC En Banc. The exception

enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is

a patent nullity because of absence of jurisdiction to issue the interlocutory order, as

where a COMELEC Division issued a temporary restraining order without a time limit,

which is the Repol case, or where a COMELEC Division admitted an answer with

counter-protest which was filed beyond the reglementary period, which is the Kho case.

The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that “it is the decision,

order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of

the Constitution, may be brought to the Supreme Court on certiorari.” The exception

provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol,

the assailed interlocutory orders of the COMELEC First Division in this case are not a

patent nullity. The assailed orders in this case involve the interpretation of the

COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case

the petition for certiorari questioning the interlocutory orders of the COMELEC Second

Division and the petition for certiorari and prohibition assailing the Resolution of the

COMELEC En Banc on the main case were already consolidated.

The Court also notes that the COMELEC First Division has already issued an Order

dated 31 May 2005 dismissing the protests and counter-protests in EPC Nos. 2004-36,

2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-

45 for failure of the protestants and protestees to pay the required cash deposits. Thus,

the Court have this peculiar situation where the interlocutory order of the COMELEC

First Division is pending before the Court but the main case has already been dismissed

by the COMELEC First Division. This situation is precisely what the Court are trying to

avoid by insisting on strict compliance of the rule that an interlocutory order cannot by

itself be the subject of an appeal or a petition for certiorari.

Misrepresentation in a certificate of candidacy; effect.

Q — When is misrepresentation in a certificate of candidacy material? Explain.

ANS:   A misrepresentation in a certificate of candidacy is material when it refers to a

qualification for elective office and affects the candidate’s eligibility. Second, when a

candidate commits a material misrepresentation, he or she may be proceeded against

through a petition to deny due course to or cancel a certificate of candidacy under

Section 78, or through criminal prosecution under Section 262 for violation of Section

74. Third, a misrepresentation of a non-material fact, or a non-material

misrepresentation, is not a ground to deny due course to or cancel a certificate of

candidacy under Section 78. In other words, for a candidate’s certificate of candidacy to

be denied due course or cancelled by the COMELEC, the fact misrepresented must

pertain to a qualification for the office sought by the candidate. (Nelson T. Lluz, et al. v.

COMELEC, et al., G.R. No. 172840, June 7, 2007).

Q — If a candidate misrepresents his profession, is he disqualified? Explain.

ANS:   No. No elective office, not even the office of the President of the Republic of the

Philippines, requires a certain profession or occupation as a qualification.

Profession or occupation not being a qualification for elective office, misrepresentation

of such does not constitute a material misrepresentation. Certainly, in a situation where

a candidate misrepresents his or her profession or occupation in the certificate of

candidacy, the candidate may not be disqualified from running for office under Section

78 as his or her certificate of candidacy cannot be denied due course or canceled on

such ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7,

2007).