Administrative LAw PArt 1

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CHAPTER I: INTRODUCTORY

Q. What is Administrative Law

A. Administrative Lawembraces all the lawthat controls or is intended to control the

administrative operations of government.Broad scope of Administrative Law coversboth interna!and e"terna!administration.

1. Interna! considers the legalaspects of public administration asa going concern.

2. E"terna! refers to the legalrelations between administrativeauthorities and private interests

Chie# $%n$ern %#

Administrative Law: protection ofprivate rights, the subject of whichis the nature and the mode ofexercise of administrative powerand the system of reliefs againstadministrative action.

Q. What are the &inds %# AdministrativeLaw

A.Administrative Law is of four kinds:

a) 'tat(tes setting up administrativeauthorities

b) )%d* %# d%$trines and decisionsdealing with the creation, operationand effect of determination andregulations of such administrativeauthorities

c) R(!es+ re,(!ati%ns+ %r %rders ofsuch administrative authorities in-(rs(an$e %# the -(r-%ses forwhich administrative authorities werecreated or endowed

d) Determinati%ns+ de$isi%ns+ and%rders of such administrativeauthorities in the sett!ement %#$%ntr%versies arising in theirparticular fields.

N%te: he !"#$ Administrative %ode &'& ()repeal or modify the *evised Administrative%ode and special legislations because whatthe !"#$ %ode repealed or modified are only

those +laws, decrees, orders, rules andregulations, or portions thereof inconsistentwith this %ode.

Q. What is the administrative #ramew%r%# the Phi!i--ines

A. -overnment of the *epublic of thehilippines / corporate governmental entitythrough which the functions of governmentare exercised throughout the hilippines,including, the various arms through whichpolitical authority is made effective in thehilippines0 the apex of the administrativeframework of the *epublic.

he -overnment includes a,en$ies andinstr(menta!ities:

a. A,en$*/ refers to any of the various

units of -overnment including adepartment, bureau, office,instrumentality, or -)%%, or a L-1.

b. Instr(menta!it* / refers to anyagency of -overnment ()'(2-*A2& within the departmentframework, vested with specialfunctions or jurisdiction by law,endowed with some if not all corporatepowers, administering special funds,and enjoying operational autonomyusually through a charter

Agencies and instrumentalities are eitherin$%r-%ratedor n%n/in$%r-%rated:

a. In$%r-%rated/ are vested by law witha juridical personality distinct from thepersonality of the *epublic0 may bewith our without capital stock 3e.g.(A)%)*, (4A, ()%5

b. N%n/in$%r-%rated/ () vested witha juridical personality distinct from the*epublic, endowed by law with some ifnot all corporate powers 3e.g. 6ugar

*egulatory Administration5

Chartered Instit(ti%n 0 refers to anyagency of organi7ed or operating under aspecific charter and vested by law withfunctions relating to specific constitutionalpolicies or objectives0 includes 61%s and B6.

Administrati%n 0 refers to the aggregate ofthose persons who perform the duties and

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exercise the powers in the administrative set;up of the government.

Q. What is a -(2!i$ %##i$e

A. P(2!i$ O##i$erefers to the right, authority,

and duty, created and conferred by law, bywhich, for a given period either fixed by law orenduring at the pleasure of the appointingpower, an individual is invested with someporition of the sovereign functions of thegovernment, to be exercised by thatindividual for the benefit of the public. ublicoffice refers to two concepts: 3!5 as a#(n$ti%na! (nit %# ,%vernment 3e.g.department, bureau5 or 3


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A. As a rule, the doctrine of separation ofpowers prohibits the delegation of legislativepower, the vesting of judicial officers withnon;judicial functions, as well as investing ofnon;judicial officers with judicial powers.4)22*, the doctrine of separation of

powers is () an iron;clad restriction againstde!e,ati%n %# -%wers. he principle hasbeen made to adapt to the growingcomplexity of modern life.

Administrative agencies fall morelogically under the executivedepartment. hey are granted by thelegislature with administrative,executive, investigatory, legislative, or

judicial powers or a combination, ase"$e-ti%nsto the general rule againstdelegation of power.

Administrative agencies have powers

which are administrative andsometimes ministerial as well as Cuasi;legislative or Cuasi;judicial. hey have%n!* s($h -%wers as are e"-ress!*,ranted 2* them 2* !aw and thosethat are ne$essar* im-!ied in thee"er$ise there%#

he two most important powers are9(asi/!e,is!ative 3enables them topromulgate implanting rules andregulations5 and 9(asi/4(di$ia!3enable them to interpret and applyregulations5.

Q. Is the vest(re %# -%wers !i2era!!*$%nstr(ed

A. Yes. 'n determining whether anadministrative agency has certain powers, theinCuiry should be from the law itself and theauthority given should be liberally construedin the light of the purposes for which it wascreated and that which is incidentallynecessary to full implantation of thelegislative intent should be upheld as beinggermane to the law

The -%wers %# administrative a,en$iesare either:

!. 2xpress or implied


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agency is mandatory or directory. Amandat%r* stat(te is a statute whichcommands either positively that somethingbe done or performed in a particular way ornegatively that something be not doneleaving the person no choice on that matter

except to obey.

A dire$t%r* stat(te is a statute which ispermissive or discretionary in nature andmerely outlines the act to be done in such away that no injury can result from ignoring itor that its purpose can be accomplished in amanner other than that prescribed andsubstantially the same result obtained.

Q. Is the 8%vernment 2%(nd 2* err%rs %#-(2!i$ %##i$ers

A. 'n essence, the government can do nowrongG he state authori7es only legal acts byits officers. 1nauthori7ed acts of officials arenot acts of the state and action against theofficials by one whose rights have beenviolated by such acts is not a suit against thestate within the rule of imm(nit* %# s(it.

6imilarly, an action against a state officer onthe ground that while claiming to act for thestate, he violates the rights of the plaintiff isnot a suit against the 6tate within theconstitutional provision that the state may not

be sued without its consent.

An officer sued in his private capacity for actsdone beyond the scope of his authoritycannot invoke the doctrine of state immunityfrom suit.

Q. What is the Pres(m-ti%n %#re,(!arit*

A. -overnment officials are presumed toperform their functions with regularity andstrong evidence is necessary to rebut thepresumption

CHAPTER III: POWER O5 CONTROL+'UPER7I'ION AND IN7E'TI8ATION

PRE'IDENT A' CHIE5 EECUTI7E ANDAD6INI'TRATI7E O55ICER

Q. What is the E"e$(tive -%wer %# thePresident

A.he resident is the %hief Administrative)fficer of the -overnment. Administrativepower is an adjunct and is designed tocomplement the effective exercise ofexecutive power vested in the resident. 't is

inherent and can be implied from hisexecutive power.

6ar$%s v. 6an,!a-(s: Although the!"#$ %onstituion imposes limitationson the exercise of specific powers ofthe resident, it maintains intact, whatis traditionally considered within thescope of executive power. he powersof the resident cannot be said to belimited only to the specific powersenumerated in the %onstitution.

Q. What is the President;s -%wer %#

$%ntr%!

A. 'e$ti%n


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A. -enerally, the power of control does notinclude:

!. he abolition orcreation of an executive offices power of control over +allthe executive departments, bureaus, and

offices implies that hey may not have thepower of control over agencies which are notcategori7ed as such. 'n regard to L-1s, the%onstitution provides that +the resident shallexercise general supervision over all localgovernments. he %onstitution limits thepower to ensure that local officers areadministered according to law. he generalsupervision is exercised by the residentthough the &'L- secretary

%ontrol, supervision, and review by otherexecutive officials

CONTROL 'UPER7I'ION

RE7IEW

ower toalter, modify,annul, or setaside what asubordinatehad done andto substitutehis judgment

)nly to see toit thatsubordinateperforms hisdutiesaccording tolaw

*econsideration or re;examinationto correctacts ofsubordinate

1nder the !"#$ Administrative %ode,

supervision and control include only theauthority toa5 Act directly whenever a specific

function is entrusted by law orregulation to a subordinate

b5 &irect the performance of duty0restrain the commission of acts

c5 *eview, approve, reverse, or modifyacts and decisions of subordinateofficials

d5 &etermine priorities in the execution ofplans and programs

e5 rescribe standards, guideliens, plansand programs

Also, administrative supervision is limited to

the authority of the department to:!5 -enerally oversee the operations of

such agencies and insure that they aremanaged with =2s

s supervision

and control over all bureaus and officersunder his jurisdiction is limited to the bureausand officers under him, but does not includeatta$hed a,en$ies. Attachment refers to thelateral relationship between the departmentor its eCuivalent and that the attached agencyor corporation for purposes of policy andprogram coordination. 3e.g. (6), (6%B, '&6as attached agencies of (2&A0 (, BD, BF8as attached agencies of &'L-5

POWER O5 IN7E'TI8ATION

Q. What is the E"e$(tive -%wer %#investi,ati%n

A.he resident has the power to order theconduct of investigation for a number ofpurposes, such as for all administrativefunctions, rule;making, adjudication, and forpurposes no more specific than illuminatingobscure areas to find out what if any thingshould be done

Evan,e!ista vs. @aren$i%: Anadministrative agency may beauthori7ed to make investigations, not

only in proceedings of a legislative orjudicial nature, but also in proceedingswhose sole purpose is to obtaininformation upon which future actionof a legislative or judicial nature maybe taken and may reCuire theattendance of witnesses inproceedings of a purely investigatorynature.

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he resident>s investigatory poweremanates from his power ofsupervision and control over allexecutive departments, bureaus andofficers, his power of supervision overL-1s, and his power of appointment of

president appointees which are$%n#erred 2* the C%nstit(ti%n.

he power also comes from powersdelegated to him 2* the !e,is!at(re.

'e$ti%n B$+ RevisedAdministrative C%de: to order,when in his opinion the good of thepublic service so reCuires, aninvestigation of any action orconduct of any person in the-overnment service and inconnection therewith to designate

the official committee or person bywhom such investigation shall beconducted.

Investi,at%r* -%wer as main #(n$ti%n

An investigatory body with the solepower of investigation does notexercise judicial functions and itspower is !imited t% investi,atin,the #a$ts and main, #indin,s inres-e$t theret%. 3e.g. %4*, (B'5

Q. H%w t% determine whether 2%d* is

e"er$isin, 4(di$ia! #(n$ti%ns %r mere!*investi,at%r* #(n$ti%ns

A. Ad4(di$ati%n signifies the power andauthority to adjudicate upon the rights andobligations of the parties before it.

'f the only purpose is to evaluateevidence submitted before it and theagency is not authori7ed to make afinal pronouncement, then it is merelyinvesti,at%r*.

Carin% vs. CHR: +he most that may be

conceded to the %ommission in the way ofadjudicative power is that it may investigate.But fact;finding is not adjudication and cannotbe likened to the judicial function of a court of

justice, or even a Cuasi;judicial agency orofficial. he function of receiving evidenceand ascertaining therefrom the facts of acontroversy is not a judicial function, properlyspeaking.

Investi,at%r* -%wers %# theOm2(dsman

he )ffice of the )mbudsman>sauthority to investigate any illegal actor omission of any public officer oremployee is broad enough to include

the investigation of any crimecommitted by a public official.

he %onstitution and the )mbudsmanAct did not intend to confer upon the)mbudsman veto or revisory powerover an exercise of judgment ordiscretion by an agency or office uponwhom the judgment or discretion islawfully vested.

CHAPTER I7: QUA'I/LE8I'LATI7E POWER

Q. Wh% has the !e,is!ative -%wer

A. Le,is!ative -%weris the power to make,alter and repeal laws. 'e$ti%n


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A. 'e$ti%ns F+ Arti$!e + ?=C%nstit(ti%n: 'n times of war or othernational emergency, the %ongress may, bylaw, authori7e the president, for a limitedperiod and subject to such restrictions as itmay prescribe, to exercise powers necessary

and proper to carry out a declared nationalpolicy. 1nless sooner withdrawn by resolutionof the %ongress, such powers shall ceaseupon the next adjournment thereof.

'e$ti%n ?+ Arti$!e + ?=C%nstit(ti%n: +he %ongress may, by law,authori7e the resident to fix within specifiedlimits, and subject to such limitations andrestrictions as it may impose, tariff rates,import and export Cuotas, tonnage andwharfage dues and other duties or impostswithin the framework of the national

development program of the -overnment.

?= Administrative C%de also delegatesto the resident certain ordinance powers inthe form of presidential issuances

Q. What are Presidentia! iss(an$es

A. Presidentia! iss(an$es are those whichthe resident issues in the exercise of hisordinance power which includes: executiveorders, administrative orders, proclamations,memorandum orders, memorandum circulars,

and general or special orders.Im-%rtant: Asa general rule, these issuances have the forceand effect of laws.

E"e$(tiveOrders

Acts of the residentproviding for rules of ageneral or permanentcharacter in implementationor execution ofconstitutional or statutorypowers.

Administrative Orders

Acts of the resident whichrelate to particular aspects

of governmental operationsPr%$!amati%ns

Acts of the resident fixinga date or declaring a statuteor condition of publicmoment or interest, uponthe existence of which theoperation of a specific lawor regulation is made todepend

6em%rand(m Acts of the resident on

%rders matters of administrativedetail or of subordinate ortempory interest which onlyconcern a particular officeror office of the -overnment

6em%rand(m

$ir$(!ars

Acts of the resident on

matters relating to internaladministration which theresident desires to bring tothe attention of alldepartments for compliance

8enera! %rs-e$i#i$%rders

Acts and commands of theresident in his capacity as%ommander;in;%hief of theAD.

Q. What is the -%wer %# the '(-remeC%(rt

A. 'e$ GG+ Arti$!e ?+ C%nstit(ti%n:+promulgate rules concerning the protectionand enforcement of constitutional rights,pleadings, practice and procedure in allcourts, the admission to the practice of law,the 'ntegrated Bar, and legal assistance to theunderprivilegedJ %omplemented by'e$ti%n F+ Arti$!e + ?= C%nstit(ti%n:+(o law shall be passed increasing theappellate jurisdiction of the 6upreme %ourt asprovided in this %onstitution without its adviceand concurrence.

Q. Can there 2e a de!e,ati%n %#!e,is!ative -%wer t% the !%$a!,%vernments

A. 'e$ti%n G+ Arti$!e


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A.he term +r(!e means any administrativeagency statement of general applicability thatimplements or interprets a law, fixed anddescribes the procedures in, or practicereCuirements of, an agency, not affecting therights of, or procedure available to the public.

R(!e/main, means an agencyprocess for the formulation,amendment, or repeal of a rule.

R(!e/main, %# administrativea,en$iesrefers to the power to issuerules and regulations which result fromdelegated legislation in theadministrative level.

Im-%rtant: *ules and regulationspromulgated in pursuance of theauthority conferred upon theadministrative agency by law, partake

of the nature of a stature. hey havethe D)*%2 and 2DD2% )D LA.

Distin,(ished #r%m 9(asi/4(di$ia! -%wer

R(!e/main, %r 9(asi/!e,is!ative-%weroperates in the D11*2, ratherthan on past transactions andcircumstances and -2(2*ALL9, ratherthan particularly. hey are of -2(2*ALAL'%AB'L'9.

Q(asi/4(di$ia! -%wer %rad4(di$ati%nmeans &22*8'(A')()D *'-46, *''L2-26 A(& &1'26

by an administrative agency resultingin a decision or order which applies to62%'D'% 6'1A')(6 or to 62%'D'%2*6)(6. hey are based on *262(or A6 DA%6.

'mart C%mm(ni$ati%ns vs. NTC: Q(asi/!e,is!ative %r r(!e/main, -%wer is thepower to make rules and regulations whichresults in delegated legislation that is withinthe confines of the granting statute and thedoctrine of non;delegability and separabilityof powers. Q(asi/4(di$ia! %r administrative

ad4(di$at%r* -%wer is the power to hearand determine Cuestions of fact to which thelegislative policy is to apply and to decide inaccordance with the standards laid down bythe law itself in enforcing and administeringthe same law.

Q. What is the ri,ht t% n%ti$e andhearin,

A. Centra! )an %# the Phi!i--ines vs.C!%ri2e!: +As a general rule, notice andhearing are not essential to the validity ofadministrative action where theadministrative body acts in the exercise ofexecutive, administrative, or legislative

functions0 but where a public administrativebody acts in a judicial or Cuasi;judicial matter,and its acts are particular and immediaterather than general and prospective, theperson whose rights or property may beaffected by the action is entitled to notice andhearing.

Q. What are the &inds %# r(!e/main,-%wer

A.here are = types of rule;making powers ofadministrative agencies:

(1) R(!e/main, 2* reas%n %#-arti$(!ar de!e,ati%n %# a(th%rit*/power to issue rules and regulationswhich have the force and effect of law

(2) R(!e/main, 2* the $%nstr($ti%nand inter-retati%n %# a stat(te2ein, administered / power ofadministrative agencies to interpretand construe the statutes entrusted tothem for implementation. heinterpretation here is of three kinds:

a. 'nterpretation as incident of theexecution of law

b. 'nterpretation handed down bythe 6ecretary of Fustice uponreCuest of a governmentagency or official

c. 'nterpretation in adversaryproceedings

(3) Determinati%n %# #a$ts (nder ade!e,ated -%wer as t% whi$h astat(te sha!! ,% int% e##e$t/ refersto the ascertainment of facts which willform the basis for the enforcement of astatute.

Q. H%w is !e,is!ative -%wer de!e,ated

A. De!e,ati%n %# Le,is!ative -%wer 0refers to the grant of authority by thelegislative to administrative agencies to issuerule and regulations concerning how the lawentrstued to them for implementation may beenforced. his delegated authority to issuerules and regulations to carry out the

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provisions of the statute is called the -%wer%# s(2%rdinate !e,is!ati%n.

Q. What are the reas%ns #%r de!e,ati%n

A. Reas%ns #%r de!e,ati%n: increasing

complexity of the task of government and thegrowing inability of the legislature to copedirectly with the myriad problems demandingits attention.

Q. What $ann%t 2e de!e,ated

A. o reiterate: he doctrine of separation ofpowers prohibits the delegation of that whichis 1*2L9 L2-'6LA'2 3the power to makethe law, to determine the purpose and itslimits and to alter or repeal it5.

Q. What $an 2e de!e,ated

A. Anything not purely legislative. 't candelegate how the law shall be enforced, toissue rules to fill in details, to ascertain factson which the law will operate, to exercisepolice power, and to fix rates. o be validhowever, the delegation has to pass the$%m-!eteness test and the s(##i$ientstandard test:

(a) C%m-!eteness test/ the law must becomplete in all its terms and conditions

when it leaves the legislative such thatwhen it reaches the delegate the onlything he will have to do is to enforce it.

(b) '(##i$ient 'tandard Test / theremust be adeCuate guidelines orlimitations in the law to map out theboundaries of the delegate>s authorityand prevent the delegation fromrunning riot.

he standard may be e"-ress$an 2e #%(nd in the stat(te orim-!ied ma* inhere in itss(24e$t matter %r -(r-%se.

he standard must bereasonably adeCuate, sufficientand definite of the guidance of theadministrative agency in theexercise of the power and alsosufficient to enable those affectedto know their rights and obligations

E"am-!es %# standards he!das ade9(ate: 6implicity and

dignity, public interest, publicwelfare, law and order, justice andeCuity, public safety, greaternational interest, protection of localconsumers by stabili7ing domesticpump rates, promoting simplicity,

economy and efficiency ingovernment and fair and eCuitableemployment practices.

hether a standard is sufficientor adeCuate depends upon thenature of the statute involved, theissues raised and the factsobtaining.

Q. Can the standard #i"ed 2e en!ar,ed %rrestri$ted

A. N%. here the law sets the standards by

which the delegate may exercise the dlegatedpower, the executive or administrativeagency concerned cannot add thereto and

justify the exercise of the delegated power onthe basis of all such enlarged standards.

Tatad vs. 'e$. %# DOE: wo factorsshall only be considered by the &)2 inderegulating the downstream oilindustry: 3!5 declining oil prices and 3


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A. 'e$ti%n %# the Civi! C%de+ asamended 2* 'e$ti%n


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A. here is a &'6'(%')( between anadministrative r(!e %r re,(!ati%n and anadministrative interpretation of a law whoseenforcement is entrusted to an administrativebody.

AdministrativeR(!eRe,(!ati%n

AdministrativeInter-retati%n

'n the exercise of itsrule;making power

8erely interprets thelaw

4as the force andeffect of a valid law

ersuasive only0advisory

Binding on courts (ot binding on courts

C%ntem-%rane%(s C%nstr($ti%n is theconstruction placed upon the statute by anexecutive or administrative officer called uponto execute or administer such statute.

Q. What are the three t*-es %# e"e$(tiveinter-retati%n %# the !aw

!. %onstruction by an executive oradministrative officer directly called toimplement the law


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A. he general rule is that an erroneousconstruction creates no vested right on thepart of those who relied upon, and followedsuch construction

E"$e-ti%n: in the interest of justice and fair

play 3e.g. tax cases where an interpretativecircular is rendered and a taxpayer faithfullycomplies. he taxpayer may not be reCuiredto pay additional tax during the period saidcircular had not been rescinded by asubseCuent circular correcting erroneousinterpretation5

CHAPTER 7: QUA'I/@UDICIAL POWER

Q. What is a 9(asi/4(di$ia! -%wer

A. Q(asi/4(di$ia! / term applied to the

actions or discretions of public administrativeofficers or bodies reCuired to investigatefacts, or ascertain the existence of facts, holdhearings, and draw conclusions from themas a basis for their official action, and toexercise discretion of a judicial nature. hisdefinition includes an official exercisingCuasi; judicial function shot of that of a judge3e.g. public prosecutor5

Q. H%w d% *%( determine whether a$t is4(di$ia! %r 9(asi/4(di$ia!

A. Look at the nature of the act to beperformed rather than of the office, board, orbody which performs it. 't is not essential thatproceedings are judicial in the senses of theword when applied to courts of justice. 't isenough that the officers act judicially inmaking their decisions.

Q. )e#%re a tri2(na!+ 2%ard %r %##i$erma* e"er$ise 4(di$ia! %r 9(asi/4(di$ia!a$ts+ what are ne$essar*

A. 't is necessary that 3!5 there 2e a !aw

that gives rise to some specific rights ofpersons or property under which adverseclaims to such rights are made, and 3etre of courts. his is accomplishedby:

!. Ascertainment of all the material andrelevant facts from thepleadings and from the evidence adducedby the parties


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Distin,(ished #r%m9(asi/!e,is!ative#(n$ti%ns

Muasi; udicial Muasi;Le islative&etermination of

rights, privilegesand duties resultingin a decision or order

covers rules and

regulations ofgeneral applicabilityissued by the

(otice and hearin (otice and hearin not*emedy: file withthe %ourt of

filed with the *%:)rdinary

Q. What are the reas%ns #%r $reati%n %#9(asi/4(di$ia! a,en$ies

A.%reated due to the need for activeintervention of administrative agencies in

matters calling for technical knowledge andspeed in countless controversies whichcannot possibly be handled by regular courts.

o unclog the dockets of the court toto enable it to decide more cases fallingwithin its jurisdiction

Q. What is Ar2itrati%n

A. Ar2itrati%n / is the reference of adispute to an impartial third person fordetermination on the basis of evidence andarguments presented by the parties who

have bound themselves to accept thedecision.a5 Voluntary / referral of a

dispute by the partiespursuant to a voluntaryarbitration clause or agreementto an impartial third person orpanel for a final resolution.

b5 Involuntary / compelled by thegovernment to accept theresolution of the disputethrough the arbitration of a thirdparty

E"am-!e: 'n labor cases, voluntaryarbitrators have original jurisdiction overthe interpretation or implementation of thecollective bargaining agreement and theinterpretation or enforcement of companypolicies, as well as, upon agreement of theparties, over other labor disputes0 8akesthe award or decision which becomes finalafter a certain period from receipt of the

copy of the award or decision by theparties.

@URI'DICTION

Q. What is the de#initi%n %# 4(risdi$ti%n

A.Derived #r%m tw% Latin w%rds / +jurisand +dico / +' speak by the law

ower or capacity conferred by the%onstitution or by law to a court or tribunal toentertain, hear and determine certaincontroversies, and render judgment thereon

&etermined by the statute inforce at the time of commencement ofthe action

@(risdi$ti%n %ver s(24e$t matter /

nature of the cause of action and of the reliefsought

@(risdi$ti%n %ver the -ers%n %#-etiti%ner -!ainti## / acCuired by filingthe initiatory pleading and paying thereCuired docket N filing fees

@(risdi$ti%n %ver the -ers%n %#res-%ndent de#endant /

acCuired by the service of summonsor by his voluntary submission to theauthority of the court or tribunal

Q. R(!es are s(24e$t t% wh%se re,(!ati%n

A. '(-reme C%(rt. All procedural rules,whether issued by Cuasi;judicial agenciesor embodied in statutes enacted by%ongress, are subject to alteration ormodification by the 6upreme %ourt in theexercise of its constitutional rule;makingpower.

Q. What is a re9(irement t% ass(me4(risdi$ti%n %ver a $aseA. A 4(sti$ia2!e $%ntr%vers*

ould reCuire an assertion of a

right of a proper party against who, inturn, contests it. 't is one substituted byand against parties having interest in thesubject matter appropriate for judicialdetermination predicated on a given stateof facts. hat controversy must be raised by

the party entitled to maintain theaction.

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Q. H%w are -r%$eedin,s instit(tedA.

he proceedings are instituted bythe D'L'(- )D A %)8LA'( )* 2'')(which alleges the facts and the reliefs

sought. here applicable, the complaint mustbe verified with the use of an affidavitattesting to the contents therein are true andcorrect to his knowledge and belief.

6ince the rule against forum;shopping applies to Cuasi; judicial agencies,the complaint should also contain acertification under oath that complainant:

a5 has not filed any claim involvingthe same issues in any othercourt

b5 if filed elsewhere, the presentstatus thereofc5 if he thereafter learns that the

same action has beenfiledNpending, shall report suchfact within H days.

Q. What is #%r(m sh%--in,

A.Dorum 6hopping is the improper practiceof:

a5 -oing from one court toanother in the hope ofsecuring favorable relief in onecourt which another court hasdenied

b5 he filing of repetitious suitsin different courts concerningsubstantially the same subjectmatter.

Q. H%w t% test whether a -art* hasvi%!ated the r(!e a,ainst #%r(msh%--in,

A.here is forum shopping when:

6ame cause of action

6ame issues

6ame parties

6ame subject matter

Diled in two different foraNcourts

Q. What are the r(!es %n s(2-%ena and$%ntem-t %# $%(rtA.

8R: hen authority isconferred by law upon anadministrative officer or any non;

judicial person, committee or otherbody to take testimony or evidence,such authority '(%L1&26 the power

to issue subpoena and subpoenaduces tecum and to punish forcontempt violation thereof

'(2-%ena is a process directed to aperson reCuiring him to attend andtestify at the hearing or trial of theaction or at any investigation.

'(2-%ena duces tecum is anorder to produce specified

documents, which are relevant andmaterial to the issue.

he subpoena meets the reCuirementsfor enforcement 'D:

o he inCuiry is within theauthority of the agency

o he demand is not

too definite

o 'nformation is

reasonably relevant

6ubpoena, subpoena duces tecum

and contempt are only

available for exercise by theadministrative agency in its exerciseof Cuasi;judicial power and not itsadministrative or ministerialfunctions.

Q. What is the hierar$h* %# eviden$eva!(esA.

!. Pr%%# 2e*%nd reas%na2!ed%(2t / 3criminal cases5 thelogical result of evidence onrecord, exclusive of any otherconsideration, or moral certaintyor that degree of proof whichproduces conviction in anunprejudiced mind


15/76

convincing than that which isoffered in opposition to

?. '(2stantia! eviden$e 3administrative proceeding5evidence as a reasonable mindmight accept as adeCuate to

support a conclusion. Less thanpreponderance.

61B6A('AL 2'&2(%2 is reCuired tosupport a decision in a contested case in anadministrative proceeding.

Q. What are r(!es %n de!e,ati%n

A. De!e,ati%n %# 9(asi/4(di$ia! -%wer

8R: he power conferred upon anadministrative agency to issue rules and

regulations necessary to carry out itsfunctions has been held to be an adeCuatesource of authority to delegate a particularfunction

E"$e-ti%n: unless by express provision ofthe law or by implication it has beenwithheld.

DUE PROCE'' IN QUA'I/@UDICIAL PROCEEDIN8'

Q. What are tw% $%n$e-ts %#

D(e -r%$ess in Q(asi/4(di$ia! -r%$eedin,s

A. -enerally, due process consists of twoconcepts:

a5 '(2stantive / is responsivenessto the supremacy of reason,obedience to the dictates of

justice or otherwise put, freedomfrom arbitrariness, which reCuiresthat the law itself is fair,reasonable and just.

b5 Pr%$ed(ra! / involves notice and

hearing, which refers to themethod or manner by which thelaw is enforced, as well as theguarantee of being heard by animpartial and competent tribunal.

Q. What are the Cardina! -rimar*re9(irements %# d(e -r%$essA.

!. *ight to a hearing which includes theright to present one>s

case and submit evidencein support thereof


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Q. When is an instan$e where there is n%denia! %# d(e -r%$ess

A. A party who has been notified of thehearing B1 failed to attend the same orrefrained from participating in the agency

proceedings cannot complain that he hasbeen denied due process.

Q. Where sh%(!dde$isi%n 2e 2ased

A. '(2stantia! eviden$e ; Anothercardinal reCuirement of dueprocess in administrative adjudication isthat the decision must be rendered on theevidence presented at the hearing or atleast contained in the record and disclosedto the parties affected. Absent such

substantial evidence, the decision is )'&.

Q. Is ri,ht t% $%(nse! a d(e-r%$ess re9(irement

A. N%

Lumiqued v. Eevea! hile investigationsconducted by an administrative body may attimes be akin to a criminal proceeding, thefact remains that under existing laws, aparty in an administrative inCuiry may ormay not be assisted by counsel, irrespectiveof the nature of the charges and of the

respondent>s capacity to represent himselfand no duty rests on such a body to furnishthe person being investigated with a counsel.

DECI'ION+ APPEAL AND@UDICIAL RE7IEW

Q. What is the Peri%d t% renderde$isi%nA.

6ection !?, Book $, !"#$Administrative %ode: +agency shall decide

each case within =K days following itssubmission.

A case is deemed submitted fordecision after both parties shall haveconcluded presentation of their evidence orupon the filing of their respectivememoranda, if reCuired or if they ask and thesame is granted.

he time provision of =K days isconstrued as &'*2%)*9, not mandatory, sothat the failure to decide the case within

=K days does not deprive it ofjurisdiction to thereafter resolve itnor render such decision invalid

*eason: less injury results to thegeneral public in disregarding thanenforcing the letter of the law and to ruleotherwise will be to make Cuasi;judicialagencies refuse to render judgment merelyon the ground of having failed to reachdecision within the prescribed period. Butfailure to decide case within said period mayrender Cuasi;judicial officer administrativelyliable.

Q. 'h%(!d de$isi%n 2e -(2!ished

A. 2very agency shall publish and makeavailable for public inspection all decisionsor final orders in the adjudication ofcontested cases.

Q. Are #ina! de$isi%ns reviewa2!e

A. N%. A final resolution or decision of anadministrative agency binds the parties andalso the )ffice of the resident 3)5 even ifsuch agency is under its administrativesupervision and control.

hat had already been terminatedshould not be disturbed. 'e$ti%n =+ Administrative Order


17/76

a superior officer or higheradministrative agency.

The -%wer %# review is e"er$isedt% determine whether it isne$essar* t% $%rre$t the a$ts %# as(2%rdinate and t% see t% it that

he -er#%rms his d(ties ina$$%rdan$e with !aw.

his power must be exercisedsparingly and only upon clearshowing of error:

o 8R: 2vidence not formallysubmitted during the hearingof an administrative agencymay not be submitted for thefirst time, on appeal, and thereviewing administrative bodymay not consider it.

o E"e$e-ti%n: hen an issue

is not raised before the loweradministrative agency andevidence on connection wasnot presented B1 which issuewas resolved by the latter inits decision.

Q. What is the -res(m-ti%n %# !e,a!it*#%r a,en$iesA. he legal presumption that official

duty has been duly performed isstrong as regards acts of Cuasi;

judicial agencies in connection withthe enforcement of laws affectingparticular fields of activity, properregulation of which reCuires specialtraining, aside from good knowledgeand grasp of conditions relevant tosaid field.

Q. D%es res 4(di$ata a--!* in n%n/$%(rt-r%$eedin,s

A. Yes.he doctrine of res judicata appliesto judicial or Cuasi ; judicial proceedings3not to the exercise of administrative

powers5. he doctrine applies to decisions ororders of administrative agencies that havebecome final. 6uch decisions or orders are%)(%L16'2 upon the rights of the affectedparties as thought the same had beenrendered by a court of general jurisdiction.

Q. When is res 4(di$ata disre,arded

A.

!. hen there are superveningevents which make it imperativein the higher interest of justice tomodify said judgment especially ifno private individual will beprejudiced by overturning the final

judgment.


18/76


19/76

administrative process had run its course,and prevention of attempts to swamp thecourts by a resort to them in the firstinstance.

't rests on the presumption that the

administrative agency if afforded acomplete chance to pass upon the matter,will decide the same correctly.

'f the error is rectified, judicial interventionwould then be unnecessary. 't is intendedto provide less expensive

Q. What are e"$e-ti%ns t% the r(!e+,enera!!*

A. -enerally, doctrine of exhaustion of isdisregarded 3aat vs. %ourt5:

a5 when there is a violation of dueprocess

b5 when the issue involved is purely alegal Cuestion

c5 when the administrative action ispatently illegal amounting to lack orexcess of jurisdiction

d5 when there is estoppels on the partof the administrative agencyconcerned

e5 when there is irreparable injury

f5 when the respondent is adepartment secretary whose acts as

an alter ego of the resident hearsthe implied and assumed approval ofthe latter

g5 when to reCuire exhaustion ofadministrative remedies would beunreasonable

h5 when it would amount to nullificationof a claim

i5 hen the subject matter is a privateland in land cases or proceedings

j5 hen the rule does not providea plain speedy and adeCuateremedy

k5 here are circumstances indicatingthe urgency of judicial

intervention

l5 hen no administrative review isprovided

m5 here the rule of Cualified politicalagency applies, and

n5 hen the issue of non;exhaustionhas been rendered moot.

N%t a--!i$a2!e where -(2!i$ interestre9(ires immediate $%(rt res%!(ti%n.

Arro$ Transpo. #orp. v. %oard ofTransportation doctrine of exhaustion of

administrative remedies may be overlookedwhere public interest reCuires immediateresolution of the issue raised.

N%t a--!i$a2!e where administrative a$tis a n(!!it*. %e&osa v. #'airman

doctrine of exhaustion ofadministrative remedies does notcome into play where the acts of theCuasi;judicial agency are patentlyillegal.

N%t a--!i$a2!e where administrativeremed* is n%t ade9(ate. (arinduque Iron v. Secretary of

Pu)lic *or+s and #omm. wherethe decision of the departmentsecretary is, by law, executor after acertain fixed period, the aggrievedparty need not exhaustadministrative remedy as an appealto the resident will not be sufficient,adeCuate and expeditious to granthim relief as a judicial relief, such asa writ of preliminary injunction.

N%t a--!i$a2!e where 4(di$ia! re!ie# isre9(ired t% -revent vi%!en$e. %ueno v. Patano

%onsiderations of public ordermust transcend the administrativeissue of conflict of boundaries, andonly courts have the weapon tocompel the parties temporarily orperpetually by means of injunction,to maintain peace.

N%t a--!i$a2!e a--!* where a,en$* a$ted

with n% 4(risdi$ti%n. #ontinental mar)le v. ,L-#

exhausting is not necessary wherethe agency acted without jurisdictionor with grave abuse of discretion intaking cogni7ance of a belatedappeal from a decision of a lowerlevel administrative body which hadbecome final and thereafter reversingit.

!"1 BAA& &'8ALA(A8 ' * A ( & A ( A B ) 9 A 6 1 A * 2


20/76

N%t a--!i$a2!e where there is *et n%administrative %rder. Datiles and #o. v. Sucaldito it is assumed that the

administrative body may correct its

mistake, may amend its decision,order or act0 and if there is nodecision, act or order, final incharacter, and at issue is whether ornot the investigation to be conductedby an administrative officer is withinhis competence, then a suit forprohibition may lie against saidadministrative officer.

N%t a--!i$a2!e where there is est%--e!. 2stoppel is in the part of the party

invoking the doctrine or on the part

of the administrative agencyconcerned, like when it led theaggrieved party to believe that only acourt ruling would be accepted by it3Vda. de Tan v. Veterans Backpay5.

N%t a--!i$a2!e where there is (r,en$* %rirre-ara2!e dama,e. Aquino v. Luntok doctrine is notapplicable when a writ of preliminaryinjunction is sought in which thepetitioner has shown that there issubstantial controversy between the

parties and the respondent is committingan act that will cause irreparable injury ordestroy the status Cuo before a fullhearing can be had on the merits of thecase, which relief may not be availablein the administrative proceedings.

N%t a--!i$a2!e where 9(a!i#ied -%!iti$a!a,en$* d%$trine a--!ies. his is when department secretariesare alter egos of the resident, therefore,presumed to be acts of the resident,unless disapproved by the resident.

*ule ?= / appeals to the %A of thedecisions or final orders of the )ffice ofthe resident 3Cuasi;judicial powers5 ispremised that the petitioner hadappealed the decision of the departmentsecretary to the )ffice of the resident. 4owever, if Cualified political agency

applies, *ule IH applies wherepetition is for certiorari for -A&L2F.

N%t a--!i$a2!e where iss(e is -(re!*!e,a!. Appeal to the administrative

officer of orders involvingCuestions of law would be anexercise in futility since

administrative officers cannot decidesuch issues with finality0 only thecourts can.

N%t a--!i$a2!e where administrativeremed* is -ermissive. ermissive means the statute

warrants the conclusion that thelegislature intended to allow the

judicial remedy even though theadministrative remedy has not beenexhausted.

N%t a--!i$a2!e where d%$trine wi!!res(!t in n(!!i#i$ati%n %# $!aim. Also not applicable where the

administrative agency has no powerto grant the relief sought in civilaction, such as the claim fordamages.

N%t a--!i$a2!e in 9(% warrant% $ases. his is because the remedy ofexhaustion are neither

prereCuisite to nor bar the institutionof Cuo warranto proceedings.

Durthermore, ublic interest reCuiresthat the right to a public officeshould be determined as speedily aspracticable.

N%t a--!i$a2!e where there is n% !awre9(irin, remedies. 4owever, his action should be apetition for certiorari 3*ule

IH5, instead of an appeal by petitionfor review under *ule ?=.

N%t a--!i$a2!e where a,en$* has n%

4(risdi$ti%n. 2xample is where the land in dispute

has already been titled as privateland 3being previously a public land5,therefore, Bureau of Land does nothave jurisdiction anymore because ithas jurisdiction only on public lands.

CHAPTER 7I


21/76

@UDICIAL RE7IEW+ 8ENERALLY

Q. What is 4(di$ia! review

A.@(di$ia! Review is the re;examination ordetermination of an act, rule or decision of

an executive, or administrative agency orCuasi;judicial body, by the courts in theexercise of their judicial power in anappropriate case instituted by a partyaggrieved thereby as to whether theCuestioned act, rule or decision has beenvalidly or invalidly issued or whether thesame should be nullified, affirmed, ormodified.

he %ourts may determine thelegality or propriety of the exerciseof discretion by the politicaldepartments of the government,

through Fudicial *eview.

Q. What are '(24e$t t% ReviewA Any A,en$* A$ti%n is subject to

judicial review in an appropriatecase. A,en$* A$ti%n includes thewhole or part of any agency rule,order, license, sanction, relied, or itseCuivalent, or denial thereof.

't may be either:!. N%n/@(di$ia! / %onsists of

purely administrative or

executive acts and rules andregulations0 or


22/76


23/76

Q. What is in the $erti#i$ate a,ainst#%r(m sh%--in,

A.'t should state that petitioner hasnot theretofore commenced any otheraction involving the same issues in the

6upreme %ourt, the %ourt of Appeals, ordifferent divisions thereof, or any othertribunal or agency.

'f there is such other action or proceeding, hemust state the status of the same. 'f heshould thereafter learn that a similaraction or proceeding has been filed or ispending before the 6%, the %A, or, differentdivisions thereof, he shall promptly inform theaforesaid courts and other tribunal or agencythereof within five 3H5 days therefrom.

Q. What is the e##e$t %# 5ai!(re t%$%m-!* with re9(irements.

A. 't shall be a sufficient ground fordismissal thereof.6ubstantial %ompliance with thereCuirements will amount to the petitionbeing given &ue %ourse.

Q. What is the r(!e %n s(2stantia!eviden$e r(!e Are #indin,s are,enera!!* 2indin,

A. he %ourt will then decide whether todismiss petition or give it due course. 'f itdecides to dismiss the petition, it is usually inthe form of a minute resolution. 'f petition isgiven due course, the %ourt will render a full;length decision on the merits of the case.

2xecutive decisions are conclusive onCuestions of fact and not subject to review inthe absence of:

o Draudo 'mposition

o 8istake other than error

Q. What are the e"$e-ti%ns t%s(2stantia! eviden$e r(!e

!. %onflicting findings of initial fact;finding agency and admin. agency


24/76

o -ranted to keep inferiorcourt wNin bounds of

jurisdiction

8enera!!*: when lower court has nojurisdiction over subject matter,

ordersNdecisions , they may not be correctedby certiorari but by appeal

o E"$e-ti%ns:

public welfare and the

advancementof public policy so dictate

broader interest ofjustice so reCuire

writs issued are nulland void or amount to an oppressiveexercise of judicial authority

appeal is satisfactorilyshown to be an inadeCuate remedy

Q. What is the -(r-%se %# $erti%rari

A.annulNmodify Cuestioned actNrulingo annul void proceedingso prevent unlawfulNoppressive

exercise of legal authorityo provide for a fairNorderlyadministration of justice

Q. What are the re9(isites %# $erti%rari

A. 't is dire$ted a,ainst a

tri2(na!2%ard%##i$er e"er$isin,4(di$ia!9(asi/4(di$ia! #(n$ti%ns

o if admin agency does notexercise Cuasi;judicial

power, certioraridoes not lie

. the tri2(na!2%ard%##i$er hasa$ted with%(t %r in e"$ess %#

4(risdi$ti%n %r with ,rave a2(se%# dis$reti%n

o will issue only to correct

errors of jurisdiction

and not errors by court unless

-A&L2Fo certiorari / corrects errors of

jurisdictiono review / corrects errors of

judgment

F. there is n% a--ea! n%r an*-!ain+ s-eed* and ade9(ate

remed* in the %rdinar* $%(rse %#!aw

o -eneral *ule / when appeal

is available as a

remedy, certiorari cannot beavailed of

2xceptions

ublicwelfareNadvancement or public policy

broader interestsof justice writsNorders issued

O null and void order amounts

to anoppressiveexercise of judicial

authorityo -eneral *ule / certiorari

cannot be used tosubstitute lapsed appeal 2xception / when rigidapplication will

result inmanifest failureor miscarriage of

justice

Q. What are e"$e-ti%ns as t% there9(irement %# m%ti%n #%r

re$%nsiderati%n2e#%re $erti%rari

A.!. )rder is a patent nullity / court had no

jurisdictiontNpetitionerNsubj. matter

perishable?. 8otion for reconsideration uselessunder the circumstancesH. etitioner deprived of dueprocessNextreme urgency for

reliefI. 'n criminal case, relief from an order

of arrest is urgentNrelief by trial courtimprobable


25/76

$. roceedings were ex parteNpetitionerhad no opportunity to object

#. 'ssue raised is one purely of lawNpublicinterest is involved". Fudicial intervention is urgent!K. Application may cause great and

irreparable damage!!. Dailure of a high gov>t official fromwhom relief is sought to

act on the matter!


26/76

To compel an official to do anythingwhich is not his duty to do or give theapplicant anything to which he isntentitled y law

To compel performance of an actprohiited y law

To require anyone to fulfillcontractual oligations To compel the appointing authority

to appoint a particular person to aspecific position! though qualified hemay e

To compel the "ugar #eg.Admin to issue rules and

regulations governing the import ofsugar! where the law is silent as tothe standard of control andregulation of sugar importation.

'nstances when 8andamus may lie

$hen a decision of the %"% orderingan employee who had eendismissed to e reinstated andthe decision had ecome final

To compel payment! where anemployee of the L&' is! y law!entitled to retirement enefits.

To compel not only the enactmentand approval of of the necessaryappropriation ordinance! ut also thecorresponding payment of municipalfunds therefor.

Q. 6a* mandam(s !ie t% s%me%ne wh%was (n!aw#(!!* e"$!(ded #r%m %##i$e %r-%siti%n.

A.8andamus will lie, where there is noappeal or plain,

speedy, and adeCuate remedy in theordinary course, commanding theboard or person that unlawfullyexcluded him to reinstate him tosuch office or right. 4e must show3!5 he has a clear legal right, andthat 3t lie to oust theperson who occupies a

position and exercises its functions,if there are < persons who bothclaim the position, in this case theremedy is quo warranto 3tests thetitle to one>s office claimed byanother and to oust the holder from

its enjoyment.5. 8andamus lies onlywhen petitioner>s right is foundedclearly upon law, not when it isdoubtful.

Q. Where t% #i!e mandamus/

A. "% %A ($hether)*ot it is in aid of itsappellate +urisdiction ,-clusively if it involves the acts or

omissions of a quasi ( +udicialagency! unless otherwise provided ylaw or rules.

"andiganayan ( if it is in aid of itsappellate +urisdiction #T% with territorial +urisdiction/

if it relates to acts)omissionsof a lower court! corp.! oard!

officer)person

8enera! r(!e: Diled not later than IKdaysfrom notice of judgment, order orresolution. (o extentions.E"$e-ti%n: Dor compelling reasons, and notexceeding !H days.

PART II: LAW ON PU)LIC O55ICER

CHAPTER


27/76

officer is the servant of the people, reCuiring(tm%st res-%nsi2i!it*+ inte,rit*+ !%*a!t*+e##i$ien$*+ #ide!it*+ ,%%d #aith+ anda$$%(nta2i!it*in the discharge of his dutiesP demands that he takes n% advanta,e ofhis position for his personal benefit or to the

prejudice of the public.

A -(2!i$ %##i$e re#ers t% either tw%$%n$e-ts:

Dunctional unit of government / 't iswithin the framework of governmentorgani7ation, refers to any ma4%r#(n$ti%na! (nit of a department orbureau including regional office

osition / held by individual whosefunctions are defined by law orregulation

ublic office is freCuently used to refer as theright, authority, duty, created and conferredby law, by which, for a given period eitherfixed by law or enduring at the pleasure of thecreating power, an individual is invested withsome portion of the sovereign functions ofgovernment, to be exercised by thatindividual for the benefit of the public

The ri,ht t% h%!d -(2i$ %##i$e (nder %(r-%!iti$a! s*stem is n%t a nat(ra! ri,ht. 'tonly exists only because and by virtue of

some law expressly or impliedly creating andconferring it. here is no s($h thin, asvested ri,ht %r an estate in an %##i$e %reven an absolute right to hold office oraccept salary by reason thereof. 4owever,there are exceptions, constitutional officeswhich provide immunity as regards salary andtenure.

Q. Wh* is -(2!i$ %##i$e a -(2!i$ tr(st

A.his reCuires that all government officialsand employees must at all times be

accountable to the people, serve them withutmost responsibility, integrity, loyalty andefficiency, act with patriotism and justice andlead modest lives.

Q. Wh* is -(2!i$ %##i$e n%t a -r%-ert*

A.'t is not a property right but a -r%te$tedri,ht. It cannot be taken from its incumbent

with%(t d(e -r%$ess. 't is property in the2r%ad sense since the right to hold officein$!(des ever*thin, %# -e$(niar* va!(etoits possessor. he right to public office is-r%te$ted by the right to security of tenureguaranteed by the %onstitution. A public

office is personal to the public officer and isn%t transmissi2!e t% his heirs upon hisdeath. (o heir may be allowed to continueholding his office in his place.

Q. What is a -(2!i$ %##i$er andem-!%*ee

A. ?= Administrative C%de -r%vides:

)fficer as distinguished from clerk ofemployee, refers to a person who duties, n%t2ein, $!eri$a! in nat(re, involves the

exercise of discretion in the performance ofthe functions of the government when usedwith reference to a person having authority todo a particular act or perform a particularfunction in the exercise of government power,officer includes any government employee,agent, or body having authority to do so theact or exercise that function.

Arti$!e F %# the Revised Pena! C%de:

Any person, by direct supervision of the law,popular election, or appointment by

competent authority, shall take part in theperformance of public functions in the * orshall perform in said govt or for any of itsbranches public duties as an employee,agent, or subordinate official, of any rank orclass. emporary performance of publicfunction is s(##i$ientto constitute a person apublic official.

Anti 8ra#t and C%rr(-t Pra$ti$es A$t

ublic officer includes elective and appointiveofficials and employees, permanent ortemporary, whether in the classified orunclassified or exempt service 3non;career orcareer5, re$eivin, $%m-ensati%n, evennominal, from the government 3L-1, -)%%and all other instrumentalities or agencies ofthe *5

C%de %# C%nd($t and Ethi$a! 'tandards%# P(2!i$ O##i$ers


28/76

ublic officer includes elective and appointiveofficials and employees, permanent ortemporary, whether in the career or non;career service, including military and policepersonnel, whether or not they receivecompensation, regardless of amount.

P!(nder Law

)fficer means any person holding any publicoffice in the govt. of the * by virtue of anappointment, election, or contract 3executedbet. private person and government.

Q. Wh% are P(2!i$ O##i$ers

A. he broadest classification is into civil3civilian or civil service5 and military 3those inmilitary uniform5. 't could also be national or

local, elective or appointive, offices createdby %onstitution or by statutes.

2lective, national officials whose officescreated by %onstitution are resident, ,senators, 8embers of the 4ouse. Appointivewhose positions created by %onstitution arethe %hief Fustice of the 6%, Associate Fustices,%hairmen P 8embers of the %onst%ommissions, )mbudsman P &eputies.

%lassification dictated by the nature of theprimary functions of the branch of

government to which they belong to theexecutive, legislative and judiciary.

he bulk of the personnel in bureaucracy iscomposed of civil service officers andemployees. hey are a!! appointive officersand employees. residential appointees arenot subject to approval by the %ivil 6ervice%ommission. (on;presidential appointees aresubject to approval or attestation by the %ivil6ervice %ommission.

Civi! 'ervi$e Law $!assi#ies them int%n%n/$areer and $areer servi$e

!. career service / entrance based on meritand fitness, to be determined as far aspracticable by competitive examination, orbased on highly technical Cualifications0opportunity for advancement to higher careerpositions0 security of tenure

a. open career positions for appointment towNc prior Cualifications in an appropriateexam is reCuiredb. closed career positions wNc are scientific orhighly technical in nature 3eg. faculty andacademic staff of state colleges and

universities0 scientific and technical positionsin scientific or research institutions wNcestablish their own merit system5

c. positions in the %areer 2xecutive 6ervice:1ser, Asec, Bureau &irector, Ass. Bureau&irector, *egional &irector, Ass. *egional&irector, %hief of &ept. 6ervice and otherofficers of eCuivalent rank wNc may beidentified by the %areer 2xecutive Board, allof whom are a--%inted 2* the President

d. career officers, other than those in the

%areer 2xec 6ervice, appointed by the res3Doreign 6ervice )fficers5

e. commissioned officers and enlisted men ofthe Armed Dorces wNc maintain a separatemerit system

f. personnel of -)%% whether performinggovernmental or proprietary functions, whodo not fall under the non;career service

g. permanent laborers, whether skilled, semi;skilled, or unskilled


29/76

technical skills n%t avai!a2!e in theemploying agency, to be accomplished wNin aspecified period, which in no case shallexceed one year, and performs oraccomplishes the specific work or job, underhis own responsibility wN a minimum of

directions and supervision from the hiringagencye. emergency and seasonal personnel

CHAPTER II: APPOINT6ENT O5 PU)LICO55ICER'

Q. What are the 9(a!i#i$ati%ns %#a--%intive %##i$ers

A.-enerally, a public officer to hold a publicoffice, he must possess all the Cualifications

and none of the disCualifications prescribedby law for the position at the time of hiselectionNappointment and during hisincumbency. JQ(a!i#i$ati%n #%r %##i$eKmeans -%ssessin, 9(a!ities %r$ir$(mstan$es whi$h are inherent!* %r!e,a!!* ne$essar* t% render him e!i,i2!et% #i!! an %##i$e. JT% 2e e!i,i2!eK means!e,a!!* 9(a!i#ied 2* !aw t% h%!d an %##i$eJine!i,i2!eK means dis9(a!i#ied.

Q. Has the C%n,ress the -%wer t%-res$ri2e 9(a!i#i$ati%ns

A. 9es, %ongress has the power, consistentwith the %onstitution, to prescribeCualifications for appointive or electivepositions and define who are disCualifiedtherefrom. 6ince the privilege of holding anoffice is a valuable one, laws prescribingCualifications and disCualifications for officeshould be liberally construed in favor ofeligibility.

Q. When sh%(!d e!i,i2i!it* e"ist t% 9(a!i#*#%r %##i$e

A. The C%nstit(ti%n %r stat(te (s(a!!*#i"es the time when the 9(a!i#i$ati%nsm(st 2e -%ssessed 2* the a--%intee %re!e$tive $andidate+ e"-ress %r im-!ied.

2xample: A senator must be +a natural bornciti7en of the hilippines, and, on the day ofelection 3day of election fixed by law is 8ay!!5, is at least =H years of age. 4e must also

be a natural born citi7en as of birth except forpersons born before Fan. !$, !"$= to a Dilipinomother who, upon reaching majority age,elects hilippine citi7enship and alsoconsidered natural born citi7en.

'n a certain case, a Dilipino citi7en who lost hisDilipino citi7enship by naturali7ation abroadmay reacCuire his Dilipino citi7enship by filinga petition for repatriation pursuant to & (o.$


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8ust not have beencandidates for electiveposition in the electionsimmediately precedingtheir appointment

8ajority thereof

including the chairmanshall be members of theBar and at engaged inthe practice of law for atleast !K yrs.

Chairman and 6em2ers %# COA

8ust be natural bornciti7ens

8ust be at least =H yrs.old

8ust not have beencandidates for any

elective position in theelections immediatelypreceding theirappointment

(o time shall allmembers belong to thesame profession

Om2(dsman and his De-(ties

8ust be natural bornciti7ens

8ust be at least ?H yrsold

8ust be recogni7ed forhis probity andindependence

8ust be members of thehil. Bar

8ust not have beencandidates for anyelective office in theimmediately precedingelection

)mbudsman must havebeen a judge or engaged

in the practice of law for!K years.

Q. What are the 9(a!i#i$ati%ns %# $ivi!servants+ ,enera!!*

A.he Cualifications for entrance into the civilservice are prescribed by law. hese includeage, citi7enship, educational attainment forthe specific positions, appropriate civil service

eligibility, experiences in specific fields, heightand weight reCuired by particular positions,physical fitness, etc. he degree ofCualifications of an officerNemployee shall bedetermined by the appointing authority on thebasis of the Cualification standard for the

particular position.

Q. Wh% are 5i!i-in% $iti3ens

A.

%iti7ens at the time of the adoption ofthe %onstitution

hose whose fathers or mothers areciti7ens of the hil

hose born before Fan. !$, !"$=, ofDilipino mothers, who elect hil.citi7enship upon reaching the age ofmajority

hose who are naturali7ed inaccordance with law

Dilipino citi7enship is a continuing reCuirementfor any public office. A voluntary change ofciti7enship or a change thereof by operationof law disCualifies him to continue holding theposition to which he had Cualified and hadbeen appointed or elected. hilippineciti7enship is an indispensable reCuirementfor an elective office. 't can only bereacCuired after compliance with thereCuisites of law and not by election.

). APPOINT6ENT 8ENERALLY

Q. What is A--%intment

A. Appointment is one of the means by whicha person may claim a right to a public office.'t means the selection by the authority vestedwith the power, of an individual who is toexercise the functions of a given office. 't isan act of designation by the executive officer,board or body, to whom that power has been

delegated, of the person who is to exercisethe duties and responsibilities of a givenposition.

An appointment should generally be inwriting of some sort. he better rulereCuires some kind of written memorial thatcould render title to public officeundubitable. 6ince an appointment affects

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the public 3and not merely private rights5and being done under the authority of thesovereign power and not under individualauthority, an appointment should beauthenticated in a way that the public mayknow when and in what manner the duty

has been performed.

here there is no evidence of a priorappointment and all the officer can show isa designation in an acting capacity to thedisputed position, the fact that the officertook his oath and his supposed appointmentwas confirmed by the %ommission onAppointments cannot prevail as against theappointment of another person to the sameposition.

he designation being revocable and

temporary in character, could not ripen intoa permanent appointment, even ifsubseCuently confirmed by the %ommissionon Appointments because confirmationpresupposes a valid nomination or recessappointment, of which there was noevidence.

Q. H%w is a--%intment distin,(ished#r%m desi,nati%n

A. Appointment is the selection by the properauthority of an individual who is to exercise

the functions of a given office. )n the otherhand, designation connotes merely theimposition of additional duties, usually by law,upon a person who is already in the publicservice by virtue of an earlier appointment orelection. A person may be designated in anacting capacity, as when he is called upon tofill a vacancy pending the selection of apermanent appointee thereto or return of theregular incumbent.

Q. What is the nat(re %# a--%intment

A. he appointing power is essentially anexecutive function. 't is essentiallydiscretionary and must be performed by theofficer in which it is vested according to hisbest lights, the only condition being that theappointee should possess the CualificationsreCuired by law. An appointment cannot befaulted on the ground that there are othersbetter Cualified who should have beenpreferred.

ho to appoint is a political Cuestioninvolving considerations of wisdom which onlythe appointing authority can decide. he %ivil6ervice %omm is limited only to the non;discretionary authority of determining

whether or not the person appointedpossessed the appropriate civil serviceeligibility or reCuired Cualifications. his isdifferent where the %onstitution or the lawsubject the appointment to the approval ofanother officer or body, like the %ommissionon Appointments.

Q. Wh% has the a--%intin, a(th%rit*

A. he appointing authority is the officer orbody bested by the %onstitution or by lawwith the power to make appointments of

public officers and employees to public officesor positions. 't is vested with the resident,the courts, heads of departments, agencies,commissions or boards and such otherofficers as the power to appoint may belegally delegated by the legislature.

C. PRE'IDENT;' APPOINTIN8 POWER

Q. Wh% has the C%nstit(ti%na!-rer%,ative t% a--%int

A. he general rule is that the appointing

power is the exclusive prerogative of theresident, upon which no limitations may beimposed by %ongress, except by the%onstitution and the 6tatute. At instanceswhere the law is silent as to who is theappointing authority, it is understood to bethe resident.

Q. Can the C%n,ress im-%se additi%na!d(ties

A.9es, the grant by law of additional duties topublic officer does not constitute anencroachment on the resident>s appointingpower.

Q. Are a--%intments s(24e$t t%$%n#irmati%n 2* the C%mmissi%n %nA--%intments

A. 9es, but not all. he %ommission onAppointments is composed of the resident ofthe 6enate, as ex officio %hairman!< 6enators

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P 8embers of the 4ouse, elected by each4ouse on the basis of proportionalrepresentation. 't 6hall be constituted within=K days 6enate and 4ouse shall have beenorgani7ed with the election of the residentand the 6peaker. he %ommission shall only

meet while %ongress is in session, at the callof its %hairman or a majority of all its8embers.

residential appointments of 4eads ofexecutive departments0 ambassadors, otherpublic ministers and consuls0 officers of thearmed forces from the rank of colonel or navalcaptain other officers whose appointmentsare vested in him in the %onst. 32xample:%hairman and 8embers of the %)82L2%, %ivil6ervice, %ommission on Audit and 6ectoral*epresentatives5 are subject to the

confirmation of the %ommission onAppointments.

Q. What are Ad interim A--%intments

A. he Ad interim appointments are thosemade by the resident during the recess of%ongress whose confirmation by the%ommission on Appointments is reCuired bythe %onstitution. hese ad interimappointments are permanent untildisapproved 3B9;A662&5 by the %ommissionon Appointments and until the next

adjournment of the %ongress 3regular orspecial session5. hese < modes oftermination of an ad interim appointment areindependent of each other.

Q. Wh% has the -%wer t% iss(etem-%rar* desi,nati%n

A.he resident has the power to temporarilydesignate an officer already in thegovernment service or any other competentperson to perform the functions of an office inthe executive branch, appointment to which isvested in him by law when the officerregularly appointed is unable to perform hisduties by reason of illness, absence, or anyother cause or there exists a vacancy. heappointment must not exceed one year.

Q. What are the Limitati%ns %nPresident;s -%wer t% a--%int

A.

Appointing power / executive prerogativea. hat limits do the %onstitution

providei. 2x. ower of review of

%ommission onAppointments

ii. Art. '' 6ecs. !? P !H 6ec. !?:

appointments byan actingresident unlessrevoked byelected res.

6ec. !H: t appoint

official and employees ofthe Fudiciary / powerbelongs to 6%

v. res. can>t appoint anyperson who lost in anyelection wNin ! year aftersuch election, in gov>t or-)%%

vi. res. can only appoint)mbudsman and&eputies from list of at

least I nomineesprepared andrecommended by the

FB%vii. )fficials and employees

of )ffice of )mbudsman/ appointed by)mbudsman

=


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viii. %ommission on 4uman*ights appoints itsofficers and employees

ix. %ongress may by lawvest appointment oflower in rank in courts,

or in heads of dep>t,agencies, comms,boards

x. Art. 'E;B 6ec. : electiveofficial can>t beappointed unlessprovided by law

xi. Art. '' 6ec. !=: res, ,%abinet, their deputiesand assistants shall nothold any other officeunless provided by law

Q. What is the C'C

A. %entral personnel agency of thegovernment

a. %omposed of %hairman, tand retention of workforce

xi. 4ear and decide admin.cases

xii. 'ssue subpoena Psubpoena duces tecumxiii. Advise res.xiv. ake action on

appointments

xv. 'nspectNaudit personnelactions and programs

xvi. &elegate authority todept>s, agencies etc.

xvii. Administer retirementprograms

xviii. 8aintain personnelrecords

xix. erform functionsbelonging to a centralpersonnel agency andothers provided by law

Q. What is the $%vera,e

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a. %onstitution: all branches of-ov>t even -)%%s 3created by%onsti5

i. 2xception: -)%%screated by statutes

Q. What are the three ,enera! -%siti%nsii. olicy determining:

formulating methods ofaction

iii. 4ighly confidential: notmerely clerical, reCuires

judgment

iv. 4ighly technical:reCuires skillsNtraining inhighest degree

Q. H%w is $areer servi$e $hara$teri3eda. 2ntrance based on merit andfitness usually determined byexaminations

b. )pportunity for advancementto higher career positions

c. 6ecurity of tenure

Q. What are the -%siti%ns (nder $areerservi$e

d. )pen %areer / Cualifications Pexamination reCuired

e. %losed %areer / scientific or

highly technicalf. ositions in the %areer

2xecutive 6ervice: appointed byres like undersec, asst. sec,bureau director

g. %areer officers other than inpreceding letter: appointed byres sich as Doreign 6ervice)fficers

h. %ommissioned officers, enlistedmen of the AD: separate meritsystem

i. ersonnel of -)%% wN originalcharters

j. ermanent laborers

Q. H%w is N%n/Career 'ervi$e$hara$teri3ed

k. 2ntrance on bases other thanusual merit and fitness

l. enure which is limited to aperiod specified by law

t heads and other %abinet

officials who hold positions atthe pleasure of the res.

c. %hairman and members ofcommissions and boards withfixed terms of office

d. %ontractual personnelNspecialcontract employees

e. 2mergency and seasonalpersonnel

=. hat is the exception toappointments

a. 2lective officials in non;careerservice

?. hat are the levels of positions in the

career servicea. Dirst level: clerical, trades,crafts, custodial, etc.

b. 6econd level: professional,technical, scientific positions

c. hird level: career executiveservice 3undersec, asst. sec,etc.5

Q. H%w d% *%( enter these !eve!sd. !st and


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i. %oterminous withproject

ii. %oterminous with theappointing authority

iii. %oterminous with theincumbent

iv. %oterminous with aspecific period

Q. What are the re9(isites %#a--%intment

a. Appointing authority has powerto appoint

b. Appointee possesses allCualifications

c. Appointment approved by the%6%

d. Appointee accepts appointment

A--%intin, a(th%rit* e"er$ise %#dis$reti%n

!. What is the e##e$t %# a--%intin,with%(t -%wer

a. (ull and void appointmentt secs., bureau

heads, governor, mayors

=. Is a -ers%n with tem-%rari!*a--%intment entit!ed t% 2e re/a--%inted in a -ermanent$a-a$it*

a. (ot as a matter of right

?. What;s the -re#eren$e with re,ardt% -ermanent em-!%*ees wh%were rem%ved a#terre%r,ani3ati%n

a. hey are given preference tonew positions

A--%intee m(st 2e 9(a!i#ied

2ligible andCualifications met

here should bevacancy

P%wer %# C'C t% a--r%ve a--%intments

!. What;s the ,enera! r(!e re:a--%intments in $ivi! servi$e

a. *eCuires approval of %6%i. Limited to reviewing

appointments

Limitati%ns %n the -%wer t% a--r%vea--%intments

!. What are s%me !imitati%ns %#-%wer %# C'C t%a--r%vedisa--r%vea--%intments

a. &oes not include authority tomake appointment itself

b. Appointment rests on

appointing authorityc. -eneral rule: no authority torevoke appointment

i. 2xception: does notapply security of tenureattached

d. (o authority to pass uponCualifications

e. (ot empowered to determinekindNnature of appointment

f. %onditional appointment:conditions should be met tobecome permanent

O--%siti%n t% A--%intment!. Wh% $an %--%se a--%intment

a. Any person who feels aggrievedby appointment

i. Dile a protest based oncause, which is based onthese grounds:

!. Appointee notCualified


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hence different protests foreach

c. &ue process to be followed:opportunity to be heard,opportunity to present case

d. rotest cases: first decided by

head of dep>t or agency

Rev%$ati%n %r re$a!! %# a--%intment

What is the ,enera! r(!eo Appointment once made:

irrevocableo *ule is Cualified: subject to

%6%>s approval

When sh%(!d rev%$ati%n 2e madeo Before appointment is

completed

o )r before %6% approval When d%es C'C have -%wer t%

re$a!! an a--%intmento (on;compliance with

procedures in merit promotionplan

o Dailure to pass thru agency>s

selectionNpromotion boardo iolation of existing collective

agreement between mgmt andemployees

o iolation of other existing civil

service law rules and reg.

When a--%intment is $%m-!etea$$e-tan$e %# a--%intment ne$essar*

!. When is a--%intment $%m-!eteo here all reCuisites for position

have been met

ritten appointment

acant position

Appointing authority haspower

Approved by the %6%

Accepted by theappointee

o Absence of any of these

reCuirements makes it invalidor incomplete

o 1ntil such approval, he is de

facto officero aking an oath is indispensible

o aking an oath @ discharge O

acceptance

Permanent a--%intment

T% wh%m $an -ermanenta--%intment 2e e"tended

o erson who meets all

reCuirements and eligibilities

Term and ten(re

!. What is a terma. Dixed and definite period of

time which the law prescribesthat an officer may hold anoffice

b. eriod during which an office

may be held


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otherwise incident to theappointing power

$. What are s%me terms #i"ed 2* theC%nsti

a. res, , 6enators, %ong.b. 6enators: I years, %ong: =

yearsi. heir tenure may be

shortened:

!. Dorfeiture of hisseat by holdingany other officeArt. ' 6ec. !=


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A. It is %# n% m%mentand does not ipsofacto convert his temporary appointment intoa permanent one. A new a--%intment#r%m a$tin, t% -ermanent 2* thea--%intin, a(th%rit* is ne$essar*.

Pr%m%ti%na! A--%intment

Q. What is the 2asis %# -r%m%ti%n in theCivi! 'ervi$e

A. Q(a!i#i$ati%ns.

Q. What are the #a$t%rs that sh%(!d 2e$%nsidered

1. Occupational competence0

2. (oral c'aracter0

3. Devotion to duty0 and

4. Loyalty to service.

Q. Can the $%(rt reverserev%e thea--%intment d%ne 2* the a--%intin,a(th%rit*

A+ N%. he %ourt should not substitute itsown judgment for that of the appointingauthority. 4is final choice should be respectedand left undisturbed.

Reinstatement

Q. What is reinstatement

A. 't is the issuance of a new appointmentwhich is essentially discretionary, to beperformed by the officer in which it is vested.

Q+ What is the !imitati%n

A. he appointee should possess theCualifications reCuired by law.

Q. Can the $%(rt reverserev%e thereinstatement d%ne 2* the a--%intin,

a(th%rit*

A. N%. he %ourt should not substitute itsown judgment for that of the appointingauthority. 4is final choice should be respectedand left undisturbed.

Ne-%tism

Q. What is ne-%tism

A. 't means #av%(ritism in the appointmentin the public service in favour of a re!ativewithin third de,ree %# a##init* OR$%nsan,(init* by the appointing or

recommending authority.

Q. Is it -r%hi2ited

A . Yes. 't is expressly prohibited by theRevised Administrative C%de %# ?=. 'talso a $rime under the %ode of %onduct and2thical 6tandards for ublic )fficials and2mployees.

Q.What is the s$%-e %# the -r%hi2iti%n

A. It e"tends t%:

1. Promotional appointments0

2. Desi&nations in an actin&capacity0 and

3. All personnel actions occurrin&after an ori&inal appointment$'ic' require t'e issuance of ane$ appointment to anot'er

position or to t'e ori&inal positionin t'e case of reinstatement.

Q. What is the -(r-%se %# the-r%hi2iti%n

A. T% ens(re that a!! a--%intments and%ther -ers%nne! a$ti%ns in the $ivi!servi$e sh%(!d 2e 2ased %n merit and#itness and should never depend on howclose or intimate an appointee is to theappointing power.Q. What are the e"$e-ti%ns

1. Persons employed in aconfidential capacity0

2. Teac'ers0

3. (em)ers of t'e A5P0

4. (arria&e $it' someone in t'esame office or )ureau A5TE-appointment0 and

6. T'ose appointed in "O##s $'ic'are or&ani7ed under t'e#orporation La$.

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7%id a--%intments

Q. What is the e##e$t %# a v%ida--%intment

A.A v%id a--%intment $%n#ers n% ri,ht

whats%ever, except those recogni7ed underthe doctrine of a de facto officer, but never sofar as to entitle the incumbent to take shelterunder the guarantee of security of tenure.

D%(2!e a--%intment

Q. Is it -r%hi2ited

A. (o as long as the positions are notincompatible except that the officer oremployee appointed cannot receive additionalor double compensation unless specifically

authori7ed by law.

Primar* $%n#identia! -%siti%ns

Q. Is the a--%intment 2ased %n Jmeritand #itnessK as mandated 2* theC%nstit(ti%n

A. N%. 't is one of the exceptions.

Q. Are the a--%intees $%vered 2* these$(rit* %# ten(re -r%visi%n %# the$%nstit(ti%n

A. Yes.he security of tenure provision doesnot make a distinction. HOWE7ER+ Jloss ofconfidence is considered as a +causeprovided by law. 4ence, those holdingprimarily confidential positions continue for solong as confidence in them endures.

Q.What determines whether a -%siti%n is-rimari!* $%n#identia!

A. The nat(re %# the #(n$ti%ns %# the%##i$e.

A--%intment %# ne"t/in/ran

Q. What is a ne"t/in/ran -%siti%n

A.'t refers to a position which is determinedto be in the nearest degree of relationship toa higher position.

Q. What are the #a$t%rs t% 2e$%nsidered

0. 1rgani5ation structure6

7. %lassification and)or functionalrelationships6

8. "alary and)or range allocation6 and

9. &eographical location.

Q. Is the a--%intment %# ne"t/in/ranmandat%r*

A. NO.he law merely reCuires that the next;in;rank shall be $%nsidered for promotionwhenever a position in the first level becomesvacant.

$hy:

The rule neither grants a vested rightto the holder nor imposes a ministerialduty on the appointing authority.1therwise! it could result to diminutionof the discretion and prerogative ofthe appointing authority.

Q. What is the remed* %# an a,,rievedne"t/in/ran em-!%*ee

A. Dile a protest with the department oragency head. 6uch decision may be appealedto the %ivil 6ervice %ommission.

8%vernment/%wned %r $%ntr%!!ed$%r-%rati%ns

Q. What is a 8OCC

A. 't is a stock or non;stock corporationwhether performing governmental orproprietary functions, which is directlychartered by special law or if organi7ed underthe general corporation law is owned orcontrolled by the government or subsidiarycorporation, to the extent of at least a

majority of its outstanding capital stock or ofits outstanding voting capital stock.

Q. Are a!! 8OCCs $%vered 2* the Civi!'ervi$e

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A. N%. -)%%s with%(t original charters aren%t comprehended within the civil serviceand their employees are not subject to civilservice law.

%A*22* 2E2%1'2 62*'%2

'e$(rit* %# ten(re in CE'

Q. H%w d%es a $ivi! servi$e em-!%*eea$9(ire se$(rit* %# ten(re

A.6ecurity of tenure is acCuired with respectto rank and notto position. he guarantee ofsecurity of tenure to members of the %26does not extend to the particular positions towNc they may be appointed 3only applicable tothe first and second level employees in thecivil service5 but to the ranto wNc they are

appointed by the resident

Q. What are the re9(isites #%r se$(rit* %#ten(re

1. #ES eli&i)ility0 and

2. Appointment to t'e appropriateran+

Q(% Warrant%

Q. What is 9(% warrant%A. 't is a special civil action commenced byfiling a verified complaint in court against aperson who usurps, intrudes into, orunlawfully holds or exercises a public office orposition0 or who does or suffers an act which,by the provision of law, constitutes a groundfor the forfeiture of his officeQ(% warrant% in a--%intive and e!e$tive-%siti%ns+ distin,(ishedAPPOINTI7EPO'ITION

ELECTI7E PO'ITION

;raises issue oflegality ofappointment

;filed by oneclaiming office;courtdetermineswho has beenlegallyappointed andcan and oughtto declare who

;raises issues of disloyaltyand ineligibility of winningcandidate

;filed within !K days;petitioner is any voter;purpose is to unseatrespondent from office butdoesn>t install thepetitioner in his place 3i.e.,where a person elected isineligible, the court cannotdeclare the candidate

is entitled tooccupy hisoffice

occupying the second placehas been elected, even if

he were eligible the lawonly authori7es adeclaration of election inhis cert. of candidacy5

Q(% warrant% and mandam(sdistin,(ished

Q. 6a* a tit!e 2e $%!!atera!!* atta$ed

A. N%. itle to a public office may only beCuestioned by direct proceedings by means ofthe special civil action of quo warranto

Q. Wh% ma* #i!e the a$ti%n

0. "olicitor &eneral6

7. 4ulic prosecutor6 and

8. An individual entitled to the position.

Q. When m(st it 2e #i!ed

A. 't must be filed within ! year after thecause of such ouster, or the right of the

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QUO WARRANTO6ANDA6U';tests the titleof one>s officeclaimed by

another;objective:ouster of theholder from itsenjoyment;proper remedywhere itappears thatanother personhas alreadybeenappointed toand is already

occupying thedisputed office;remedy teststhe tit!e toone>s officeclaimed byanother andhas for itsobject theouster of theholder from itsenjoyment;there is

(s(r-ati%n %rintr(si%n

;avails to enforce a $!earlegal duties and not to trydisputed titles;proper remedy if it isshown that petitioner has aclear legal right to aparticular public office Prespondent is unlawfully

preventing him fromoccupying the same;remedy available onlywhere the petitioner>s rightis founded $!ear!* in lawand not when it is doubtful;respondent, with%(t$!aimin, an* ri,ht t% an%##i$e, e-cludes petitionertherefrom 3respondentneed not a$t(a!!*hold thedisputed position5; favor of the person whohas obtained a plurality ofvotes, and has presentedhis cert. of candidacy


41/76

petitioner to hold such officer or positionarose.

$hy:

Pu)lic interest and &overnmentsta)ility require t'at t'e ri&'t to a

pu)lic office )e determined asspeedily as possi)le and to avoiddisruptions in t'e conduct of

pu)lic )usiness.

Q. Is there an e"$e-ti%n

A. Yes when the failure to file the action canbe attri2(ted to the acts of a responsiblegovernment officer and not of the dismissedemployee.

Q. What are the 4(d,ments and re!ie#s

A. 'f it is found that the respondent isusurping or introducing into the office, orunlawfully holding the same,the court mayorder:!. )uster and exclusion of defendant fromoffice


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PART II: LAW ON PU)LIC O55ICER

CHAPTER F: DE 5ACTO O55ICER

Q. Wh% is a de #a$t% %##i$er

A. A public officer may either be de jure or de

facto.o distinguish:

DE @URE DE 5ACTOotal compliance withall reCuisites of thelaw

here is defect in thecompliance

)ne who is in allrespects legallyappointed or electedand Cualified toexercise the office

)ne who assumedoffice under a color ofa known appointmentor election

alid

oid because officerwas not eligible or

because there was awant of power in theelecting body, or byreasons of somedefect or irregularity inits exercise, suchineligibility, want ofpower, or defect being(nn%wnto public

Actually entitled toemolument

2ntitled to emolumentonly for actual servicesrendered4e cannot be made to

reimburse fundsdisbursed during histerm of office becausehis acts are as valid asthose of a de jureofficer

N%te: here can be a de #a$t% %##i$er in a de4(re %##i$e, there cannot be a de #a$t%%##i$er in a de #a$t% %##i$e3there is n% s($hthin, as a de #a$t% %##i$e under anunconstitutional law5

Q. What is a de #a$t% %##i$er

A. A pubic officer or employee who assumedoffice under a color of a known appointment orelection, even if such assumption is toleratedor acCuiesced by superior officers and evenwhen the appointee had served for years, he is

merely a de facto officer for the duration of hisoccupancy of the office for the reason that heassumed office under color of knownappointment wNc is void by reason of somedefect or irregularity in its service. 4e is onew

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Administrative LAw PArt 1