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ADMINISTRATIVE LAW

Outline and Notes from the class of Atty. Noel Ostrea

I. Definition
II. AAs (administrative agencies) & powers
i. Quasi-legislative power
ii. Non-delegation of legislative power and its exceptions
iii. Quasi-judicial power
III. Procedural due process in administrative cases
IV. Doctrine of primary jurisdiction
V. Doctrine of exhaustion of administrative remedies
VI. Judicial Review

I. General Principles
II. Administrative Agencies
III. QL/Rule-Making Power
i. Kinds of Administrative R&R
ii. Requisites for Validity
IV. QJ/Adjudicatory Power
i. Administrative Due Process
ii. Administrative Appeal and Review
iii. Administrative Res Judicata
V. Fact-Finding, Investigative, Licensing and Rate-Filing Powers
VI. Judicial Review
i. Doctrines of primary jurisdiction, exhaustion and finality of action
I. Definition  Due to the growing complexity of modern society, it has become
necessary to create more and more administrative bodies to help
What is Administrative Law? [government] in the regulation of its ramified activities. Specialized
in the particular field assigned to them, they [administrative
“It is that branch of modern law under which the Executive Branch of the agencies] can deal with the problems thereof with more expertise
government, acting in a quasi-legislative or quasi-judicial capacity interferes and dispatch than can be expected from the legislature or the
with the conduct of the individual to promote the well-being of the courts of justice.
community.” (Dean Roscoe Pound)  This is the reason for the increasing vesture of quasi-legislative and
quasi-judicial powers in what is not unreasonably called the fourth
 It is that branch of modern law under which department of the government. (Solid Homes, Inc. v. Payawal, 177
 The Executive Branch of the government, acting in a quasi- SCRA 72)
legislative or quasi-judicial capacity
 Interferes with the conduct of the individual Advantages Disadvantages
 To promote the well-being of the community. 1. Expertise in highly technical 1. Narrow vision and
fields arrogance
Notes: 2. Efficiency 2. Trampling of individual
 For this reason, administrative law has also been defined as the part 3. Independence rights
of public law which indicates remedies to an individual for a 3. Lack of accountability for
violation of his rights. Focus on constitutional concepts in Bill of actions and lawlessness
Rights such as due process and equal protection.
 Magtajas v. Pryce Properties concerns the right of a private investor Rationale/Types (Presidential Anti- Administrative Agencies
to protection when his casino license is negated by a local Dollar Salting Task Force v. CA, GR
ordinance. Similarly, in Acebedo Optical, a corporation’s right to do 83578, March 16, 1989)
business is being frustrated by the refusal of an LG unit to issue the 1. Gratuity, grant or special Board of Pensions for Veterans, PVA
requisite Mayor’s permit. And in Corona v. United Harbor Pilots, the privilege
right to practice one’s livelihood and profession is threatened by an 2. Government functions BID/BSI, CSC, BIR, BSP
administrative regulation issued by the PPA. 3. Business service for public Philpost, MWSS, PNR, CAB
4. Regulating business affected Fiber Inspection Board, IPO, IC
II. Administrative Agencies with public interest
5. Regulating businesses under SEC, MTRCB, PRC
How are Administrative Agencies created? police power of State
6. Adjust controversies due to NLRC, DOLE, SSS, BLS
1. The Constitution strong social policy
2. Law, or
3. By authority of law
Administrative Organization
Rationale
What are examples of Administrative Agencies?
COMPLEXITY REQUIRES SPECIALIZATION
including a department, bureau,
 CSC (Civil Service Commission) office, instrumentality, GOCC, LG or
 CBAA district unit therein.
 SEC (Securities and Exchange Commission) Government Instrumentality A NG agency not integrated with the
 OP (Office of the President) department framework vested with
 LRA (Land Registration Authority) special functions or jurisdiction by
 SSS (Social Security System) law, endowed with some if not all
 CAB corporate powers, administering
 IPO (Intellectual Property Office) special funds and enjoying
 NEA operational autonomy, usually thru a
 ERB (Energy Regulatory Board) charter, including SUCs and the
 NTC (National Telecommunications Commission) monetary authority of the State. (Bar
 DAR (Department of Agrarian Reform) Q 2005, 2006.)
 GSIS (Government Service Insurance System) GOCC Any agency organized as a stock or
 ECC non-stock corporation, vested with
 IC functions relating to public needs
 BOI, etc. whether governmental or proprietary
in nature and owned by the gov’t
Notes: either directly or thru
 Appeal to the CA: Appeals from judgments or final orders of any instrumentalities or up to at least
quasi-judicial agency in the exercise of its quasi-judicial functions. 50% CS. It may perform
(Rule 43, Revised Rules of Court.) governmental or proprietary
 COMELEC judgments and those of the COA are reviewable by the functions, or both.
Supreme Court as part of its original and exclusive jurisdiction.
Period is thirty (30) days from receipt of judgment or order What is Administrative Supervision?
appealed from.  Supervision means “overseeing or the power or authority of an
officer to see that their subordinate officers perform their duties. If
Agency Description the latter fail or neglect them, the former may take such action or
Department An executive department created by steps as prescribed by law to make them perform their duties”.
law (Philippine Gamefowl Commission v. IAC, GR 72969, December 17,
Bureau Any principal subdivision or unit of 1986.)
any department. This may be line or
staff. Power of control Power of review
Regional Office Established according to law defining The power of an officer to modify or The power of review is exercised to
field service areas set aside what a subordinate has determine if the acts of the
District Office Established only in cases of clear done in the performance of his subordinates need be corrected.
necessity duties and to substitute his May be by authority exercising
Government Agency Any of the various gov’t. units, judgment for that of the latter. control over the subordinate, or
through courts of justice, or the  Not placed under any other
subordinate motu propio after his department
attention has been called.
Aspects of Presidential Reorganization:
What is the Presidential Power to Reorganize? 1. Restructure OP by abolishing, consolidating or merging units or
 Express power: The President, in order to transferring functions
achieve simplicity, economy and efficiency, shall have the 2. Transfer OP function to any other department or agency or vice-
continuing authority to reorganize the administrative structure of versa
the Office of the President." For this purpose, he may transfer the 3. Transfer agency under OP to other departments or agencies or
functions of other Departments or Agencies to the Office of the vice-versa
President. (Buklod ng EIIB v. Zamora, GR 142801, 2001, July10 - Source: 97AC, Bk. III, Title II, Chap. 8, 9 and 10, Sec. 21-31. (Bar Q 2003.)
deals with abolition of EIIB; Pichay v Office of Deputy ExSec for
Legislative Affairs (DESLA), GR 196425, 2012 July 24 - deals with III. Administrative Powers in General
abolition of PAGC; Section 31, Bk. III of EO 292, the Administrative
Code of 1987) What is Administrative Power?
 Only Section 31 of AC87 gives the President a virtual free hand in  The term administrative power or administrative function is a
dealing with the internal structure of the OP Proper by allowing him convenient rather than a technical term.
to take actions as extreme as abolition, consolidation or merger of  It is any power not explicitly allocated in the Constitution, although
units, apart from the less drastic move of transferring functions and by nature it is legislative, executive or judicial.
offices from one unit to another.  It involves the exercise of judgment and discretion, particularly
 Clearly, the abolition of the PAGC and the transfer of its functions to when referring to the power to regulate and control.
a division specially created within the ODESLA is properly within the
prerogative of the President under his continuing delegated Doctrine of Non-delegability and Administrative Powers
legislative authority to reorganize his own office. (Pichay v OFC-
DESLA) What is non-delegability?

Office of the President  Private Office The power to whose judgment, wisdom and patriotism this high prerogative
 Executive Office has been entrusted cannot relieve itself of the responsibility by choosing other
 Staff Support System/PMS agencies upon which the power shall be delegated. Nor can it substitute the
 PAs (Presidential Assistants or judgment, wisdom and patriotism of any other body for those to which alone/
Advisers) the people have seen fit to confide this sovereign trust.
Attached Executive Agencies  With President as Chair
 Under President’s supervision  Potestas delegata non potest delegari
and control  A delegated power constitutes not only a right but a duty to be
 Under administrative supervision performed by the delegate through the instrumentality of his own
of OP mind
 Attached to OP for policy and  Not to be performed through the intervening mind of another
proper coordination
 The power to whose judgment, wisdom and patriotism this high “necessary in the interest of law
prerogative has been entrusted cannot relieve itself of the and order”; “public interest”, etc.
responsibility by choosing other agencies upon which the power o The discretion cannot be in what the law shall be, only in
shall be delegated. Nor can it substitute the judgment, wisdom and law-execution or law administration.
patriotism of any other body for those to which alone/ the people o The President cannot create municipalities by EO pursuant
have seen fit to confide this sovereign trust. (US v. Barrias, 1 Phil. to Section 68 of the RAC. Said provision does not
327 [1908].) enunciate any policy to be carried out or implemented by
 The legislature neither must nor can transfer the power of making the President. Neither does it give a standard sufficiently
laws to anybody else or place it anywhere but where the people precise to avoid the evil effects referred to. The authority
have. (Locke) to create municipal corporations is essentially and strictly a
legislative function. (Pelaez v. AG, GR L-23825 (1965)/ 15
Exceptions to non-delegability: SCRA 569)
1. When permitted by the Constitution  Constitutional protections
 The emergency powers clause (Art. VI); the flexible tariff o Due process and equal protection considerations
clause (Art. VI); delegation of revenue powers to LGs (Art. o Notice (by way of publication)
X); rule making power of SC (Art. VIII) and the ConComs o Notice (by way of public hearing)
(Art. IX) which although they are constitutional, they  Statutory requirements for regulations
function as government agencies. o Reasonableness
2. Local governments
3. Administrative agencies Bar Question (2005)
 Rule-making power with the force and effect of law (1.) The two accepted tests to determine whether or not there is a valid
delegation of legislative power are the Completeness Test and the Sufficient
Limitations Delegation Powers to the Administrative Agencies Standard Test. Explain each. (4%)
 Validity of granting statute
Completeness Test Sufficient Standard Test Suggested answer: Completeness test means that the law must be complete
The subject, the manner and Three Criteria: in itself, i.e. terms, conditions, and extent are stated therein, such that the
the extent of its operation are (a) There must be a policy clearly one delegated with power will only implement it; Sufficient Standard test
stated in the law. The law must declared. It cannot be left to the means that the law delegating powers must have clear terms that leaves no
be complete in all its terms and discretion of the “grantee” or discretion, standards are stipulated to guide the delegate, and in case of
conditions when it leaves the “delegate”. conditions, there are formal findings of the condition precedent.
legislature. When it reaches (b) Standards must be
the delegate, all that he will pronounced to guide behavior Scope of Administrative Powers
have to do is enforce it. (c) There must be formal findings 1. Express
by the President/agency as 2. Implied (by necessary implication)
conditions precedent to the valid  Inherent powers are excluded
exercise of its delegated
authority Nature of Administrative Powers
Examples: “public welfare”;  Jurisdiction is limited
 Construction is broad rules that are intended to enforce or implement existing laws, attain
 Limited or defined by law binding force and effect
 All statutes, including those of local application and private laws,
Types of Powers shall be published as a condition for their effectivity, which shall
1. Quasi-legislative power begin fifteen days after publication unless a different effectivity date
2. Quasi-judicial power is fixed by the legislature.
3. Others (Determinative and Investigatory)  Covered by this rule are presidential decrees and executive orders
 Former SOJ Neptali GONZALES has referred to these as promulgated by the President in the exercise of legislative powers
“incidental” powers whenever the same are validly delegated by the legislature or, at
 E.g. Investigation, supervising, prosecuting, advising and present, directly conferred by the Constitution.
informally adjudicating  Publications must be in full or it is no publication at all, since its
purpose is to inform the public of the content of the laws
Due Process and Administrative Powers  Administrative rules and regulations must also be published if their
 Administrative agencies are vested with two basic powers, the purpose is to enforce or implement existing law pursuant also to a
quasi-legislative and the quasi-judicial. The first enables them to valid delegation.
promulgate implementing rules and regulations (IRR), and the o However, interpretative regs, those merely internal in
second enables them to interpret and apply such regulations. nature or LOIs need not be published.
o Examples abound: the BIR adjudicates on its own revenue
regulations, the CB/BSP on its own circulars, the SEC on its Filing:
own rules, as so too do the PPO (now IPO) and the VRB Every agency shall file with the University of the Philippines Law Center three
(now OMB) and the Civil Aeronautics Administration and (3) certified copies of every rule adopted by it. Rules in force on the date of
the Department of Natural Resources and so on ad effectivity of this Code which are not filed within three (3) months from the
infinitum on their respective administrative regulations. date shall not thereafter be the basis of any sanction against any party or
 Such an arrangement has been accepted as a fact of life of modern persons (Section 3, Chapter 2, Bk. VII, Administrative Code of 1987)
governments and cannot be considered violative of due process as
long as the cardinal rights laid down by Justice Laurel in the Publication and Rate-fixing:
landmark case of Ang Tibay v. Court of Industrial Relations are  In the fixing of rates, no rule or final order shall be valid unless the
observed. (Eastern Shipping Lines v. POEA, GR 76633, October 18, proposed rates shall have been published in a newspaper of
1988) general circulation at least two (2) weeks before the first hearing
thereon.
Void-for-vagueness doctrine:  Where it (agency) acts in a judicial or QJ manner, the person whose
 It is a statute that fails to give a person of ordinary intelligence fair rights or property may be affected is entitled to notice and hearing.
notice that his contemplated conduct is forbidden. Although the rule-making power and even the power to fix rates
 Places a person in jeopardy of an offense without fair warning. may partake of a legislative character, such is not the nature of the
 It is so indefinite that it encourages arbitrary and erratic arrests. order complained of. It is predicated upon a finding of fact. In
making said finding of fact, respondent performed a function
Publication partaking of a QJ character the valid exercise of which demands
 The Court in Tanada v. Tuvera enunciated that publication is previous notice and hearing.
indispensable in order that all statutes, including administrative
 This case of Alcaz has been somewhat overturned by later decisions sought to be resolved and have the direct opportunity to question the
which validate rate-fixing without prior notice and hearing because parties and their witnesses and to assess the evidence first-hand. (De Leon v
they are provisional. Heirs of Reyes, GR 74687, November 12, 1987)

When is Publication essential? IV. Administrative Powers in Particular

Essential Determinative Powers


1. Administrative regulations of general application
2. Administrative regulations which are penal in nature Powers Description
1. Enabling Licensing—PERMITS the doing of an
Not essential act which the law undertakes to
1. Interpretative regulations regulate and which would be
2. Internal rules and regulations governing the personnel of the unlawful without gov’t approval
administrative agency 2. Directing Involves the correcting powers of a
3. LOIs issued by superiors concerning guidelines public utility board or equivalent;
powers of assessment under revenue
When Notice and Hearing is not essential laws, etc.
1. Grant of provisional authority for increased rates or to engage in a 3. Dispensing The authority to exempt from or
particular line of business relax a general prohibition, or
2. Summary proceedings for distraint and levy authority to relieve from an
3. Cancellation of passport affirmative duty (Distinguished from
4. Summary abatement of a nuisance per se enabling power in sanctioning
5. Preventive suspension of a public officer or employee deviations from a standard).
4. Summary Those that apply compulsion or
Power of Administrative Review force against a person or property to
It is overseeing, or the power or authority of an officer to see that their effectuate a legal purpose without a
subordinate officers perform their duties judicial warrant to authorize such
• Power of supervision only, not control action (Usually without notice or
• It means “overseeing, or the power or authority of an officer to see hearing, e.g. abatement of nuisance,
that their subordinate officers perform their duties” distraint and levy).
• Does not allow the supervisor to annul the acts of the subordinate 5. Equitable To determine the law upon a
• Only to see to it that the subordinate performs his duties in particular state of facts (Refers to the
accordance with law (Philippine Gamefowl Commission v. IAC, GR 72969-70, right to, and must consider and
December 17, 1986) make proper application of rules of
• While there is no disputing the authority of administrative superiors equity, e.g. power to appoint a
to reverse the findings of their subordinates, this power must be exercised receiver, issue injunctions).
sparingly and only upon a clear showing of error.
• Lacking such law, the decision of lower administrative officials Investigatory Powers
should be sustained, if only because they have closer access to the problem
What are the powers involved? Can Administrative Regulations imposed Penal Sanctions?
 Regulations can impose impose sanctions
 To initiate  It must be:
 To conduct 1. Law provides the violations are punishable
 To inspect and examine 2. Law provides the penalty
 To prescribe forms and methods of accounts 3. There is publication
 To require the attendance of witnesses, giving of testimony and the  Recall that the fixing of penalties is a legislative power. “The spring
production of evidence cannot rise higher than its source.” Since the fixing of penalties is a
 Technical rules of procedure are not strictly applied. legislative power, this power cannot be further delegated.
 Right to counsel is not imperative.
Limitations on the Quasi-legislative Power:
Quasi-Legislative Power  Must be valid (not inconsistent with law or the Constitution)
 Cannot amend, alter, modify, extend, supplant, enlarge, restrict or
The power to make rules and regulations which results in delegated legislation limit the provisions or coverage of the law
 Within powers of the administrative agency (not ultra vires)
 Rule-making power
 The power to make rules and regulations which results in delegated What are the Three Types of Quasi-legislative Power?
legislation
 Valid regulations have the force and effect of law 1. Interpretative rule
 Official constructions of the law. Presumed valid and
Requisites: entitled to great weight and consideration since agency
1. Issued by authority of valid law presumed to be expert in its field. (Sagun v. PHHC, GR No.
2. Within the scope and purview of law L-44738, June 22, 1988 - to illustrate)
 The fundamental principle is that an administrative agency  However, this determination is not final and bows to
cannot amend an act of Congress. judicial interpretation.
3. Reasonable 2. Supplementary or detailed legislation
 Must be issued within the confines of the granting statute  “Filling-in” power. (Eastern Shipping Lines v. POEA, GR
 In accord with prescribed procedure 76633, October 18, 1988)
o subject to limitations such as non-delegability of  This is by reason of a particular delegation of authority.
power and the separation of powers 3. Contingent legislation
o Assumes completeness of law and the existence of a  E.g. Prohibition against the importation of foreign cattle—
sufficient standard law made subject to lifting by Governor General “if
o Previous notice and hearing may be necessary. advisable”. Law is no less a law. (Commissioner of Internal
Revenue v. CA, August 29, 1996)
What is the legal effect of Administrative Regulations?
Interpretative Rule
A valid rule or regulation duly promulgated by an administrative agency has
the force and effect of law.
 Promulgated to interpret, clarify or explain statutory regulations  The power to determine when this has occurred is left to some
(administrative construction) other person or body.
 Resemble judicial adjudication  Findings of administrative agencies here involve exercise of
 Entitled to great weight and respect but are at best advisory discretion (akin to nature of rule-making)
 Need not be published
 No need for a hearing Presidential ordinance power
 The application of legislative rules to particular facts
 Expected to apply to a general category of cases of that type Type Description
 An interpretative rule is improper if it sets out what is effectively a 1. EO Rules of a general or permanent character
new requirement 2. MO Matters of subordinate or temporary interest
3. AO Relate to particular aspects of government operations
What is the test of correctness? 4. Proclamation Fixing a date or declaring a status or condition
5. Memo Circular Matters relating to internal administration
Correctness: Does the rule correctly interpret the statute?
Comparison between Administrative Circulars and Orders
Supplementary/Delegated Legislation Circular Order
 Prescribe policies, rules and  Directed (internally) to particular
 The law has delegated power to the agency to adopt the rule, and regulations and procedures offices, officials or employees,
 It provides that the rules promulgated by the agency within its  Apply to individuals and concerning matters such as
delegated power have authoritative force.
organizations outside assignments, office detail or
o These refer to rules that are “more” than interpretative:
government transfer
supplementing the statute, filling-in or “law-making”  Supplement the law or provide  For observance and compliance
means for carrying them out.
Comparison between Interpretative and Supplementary
Issued by Secretaries and heads of bureaus, offices or agencies.
Interpretative Supplementary
 Interpretative rules are the  Subordinate legislation
Quasi-judicial Power
product of interpretation of the  Create new provisions that have
law the effect of law
Power to hear and determine or ascertain facts and apply the rule of law to the
 Necessarily incidental to  Require an express delegation
ascertained facts
administration of law of law
 Have no statutory sanction  May provide for sanctions
 Administrative adjudicatory power
 Merely advisory  Have force and effect of law
 Power to hear and determine or ascertain facts and apply the rule
of law to the ascertained facts
Contingent Legislation
 Any power of an administrative agency other than rule-making but
including licensing
 Congress may provide that a law shall take effect upon the
happening of future specified contingencies.
Comparison between Quasi-adjudicative and Quasi-judicial
Quasi-adjudicative Quasi-judicial
 Issuance of rules and  Refers to end product: Order, It is the power to make rules and regulations which results in delegated
regulations award or decision legislation that is within the confines of the granting statute and the doctrine
 Of general application  Of particular application of non-delegability and separability of powers. (Concurring opinion, J.
 Generally prospective,  Present determination of rights Bellosillo)
applicable in the future of current parties
What are the three types of quasi-legislative power?
Summary
Source: CIR v CA, G.R. No. 119761, August 29, 1996) 1. Interpretative Rule
2. Supplementary or detailed legislation
What is a Legislative Rule? 3. Contingent legislation

It is in the nature of subordinate legislation, designed to implement primary What is Quasi-judicial Power?
legislation by providing the details thereof.
 Requirement It is the power to hear and determine questions of fact to which the
o In the same way that laws must have the benefit of public legislative policy is to apply and to decide in accordance with the standards
hearing, it is generally required that before a legislative laid down by the law itself in enforcing and administering the same law.
rule is adopted there must be a hearing.
When is quasi-judicial power exercised?
What is an Interpretative Rule?
The administrative body exercises its quasi-judicial power when it performs
 Interpretative rules are designed to provide guidelines to the law in a judicial manner an act which is essentially of an executive or
which the administrative agency is in charge of enforcing. administrative nature, where the power to act in such manner is incidental to
 The purpose or objective of an interpretative rule is merely to or reasonably necessary for the performance of the executive or
construe the statute being administered. It purports to do no more administrative duty entrusted to it.
than interpret the statute. Simply, the rule tries to say what the  When an administrative proceeding is quasi-judicial in character,
statute means. Generally, it refers to no single person or party in notice and fair open hearing are essential to the validity of the
particular but concerns all those belonging to the same class which proceeding.
may be covered by the said interpretative rule.
 Requirement: V. Important Doctrines
o Nothing further than its bare issuance.
o It need not be published and neither is a hearing required Doctrine of Primary Jurisdiction
since it is issued by the administrative body as an incident
of its power to enforce the law and is intended merely to Courts cannot or will not determine a controversy involving a question which
clarify statutory provisions for proper observance by the is within the jurisdiction of the administrative tribunal prior to the resolution of
people. that question by the administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the special knowledge,
What is Quasi-legislative Power? experience and services of the administrative tribunal to determine technical
and intricate matters of fact (Republic v. Lacap, G.R. 158253, 03.02.2007)
 Interchangeable with doctrine of prior resort. 9. Mootness
 Judicial proceedings are suspended pending referral of issues to 10. No other plain, speedy and adequate remedy
specialized administrative agency. 11. Strong public interest

What is the effect of the doctrine? What is its Rationale?


Source: Carale v. Abarintos, et al., citing Delos Santos v. Limbaga, 4 SCRA 224
When invoked, suspend the pending case  Sound practice and policy
 Ensures an orderly procedure which favors a preliminary sifting
What is its Rationale? process, particularly within the competence of the administrative
 Avoid delay and unnecessary expenses agency.
 Give agency chance to correct itself  Underlying principle is the presumption that the administrative
 Principle of comity and convenience agency, if given a chance to pass upon the matter, will decide
 Separation of powers correctly.
 Promotes administrative autonomy and responsibility
Doctrine of Exhaustion of Administrative Remedies  Respects procedures of administrative agency
 Economy: Assures economical use of judicial and administrative
Where a claim is cognizable in the first instance by an administrative agency, resources
judicial interference shall be withheld until the administrative process has been
completed. What is the Effect of the doctrine?
 Not jurisdictional. May be waived.
 Emphasis is the existence of an available remedy  If upheld, there is a lack of cause of action which is fatal to the
 Doctrine is not jurisdictional. It is a ground for a proper motion to cause of action.
dismiss for lack of cause of action. The action is therefore
premature., i.e. not ripe for judicial determination. However, it may Doctrines distinguished
be waived. The failure to raise the issue operates as a waiver
thereof. Exhaustion Primary jurisdiction
 The administrative agency has  Both the administrative agency
Note: exclusive jurisdiction and the judiciary have
 Asked in the Bar 8 times  Judicial interference is withheld concurrent jurisdiction
until the administrative process  The agency only has primary
Exceptions: has been completed jurisdiction
1. Estoppel  Thus, court yields to agency in
2. Challenged administrative act is patently illegal the first instance.
3. Unreasonable delay or official inaction
4. Amount is relatively small to make rule impractical Note:
5. A purely legal question is involved  1996 Bar
6. Judicial intervention is urgent  I don’t agree with this characterization. Saying that an entity or
7. Application of doctrine causes grave and irreparable damage agency has exclusive jurisdiction, in remedial law, is a very precise
8. Controverted acts violate due process
definition which means, to exclude all others. But under the 1. Right to hearing
exceptions to the rule on exhaustion, it is quite clear that at most, 2. Tribunal must consider the evidence presented
the relationship between administrative agencies and the courts is 3. Decision must be supported
one of primary jurisdiction and subsequent judicial review. So I 4. Evidence must be substantial
agree that prior resort to an administrative agency is a necessary 5. Decision is based on evidence presented
precondition for a valid cause of action. However, the finality of 6. Board/judges acted on their own independent consideration
administrative action (resort to appeal to OP) is qualified, since 7. Decision rendered so parties know the various issues involved
under the exceptions, resort may already be had to regular courts.
 Nevertheless, this is the suggested answer of the UP Law Center Note:
and it must be considered carefully.  More than a mere scintilla. Such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
2000 Bar Question  There is no need for the strict observance of judicial rules. The
Explain the doctrine of exhaustion of administrative remedies. Give at least essence of due process must be present. That is all. For this reason,
three (3) exceptions to its application (5%) a hearing really means an opportunity to be heard. It does not
require a trial-type proceeding.
Administrative Proceedings  Asked 2x in Bar as of 2007. (1994, 1999)

 Administrative proceedings are not bound by the rigid Taking of testimony and Due process
requirements of the Rules of court. The important consideration is  The taking of testimony or the presentation of evidence does not
that both parties were afforded an opportunity to be heard and have to be before the same officer who will decide the case
they availed themselves of it to present their respective positions on  Not an indispensable requirement of administrative due process.
the matters in dispute. (Esquig v. CSC, GR 92490, July 30, 1990, What is indispensable is that the party has a reasonable opportunity
citing Adamson v. Amores, 152 SCRA 237) to present his case and to be heard; to submit evidence, and that
 Proceedings are governed by their own rules of procedure which the decision is supported by the evidence on record, which must be
are to be liberally construed. substantial.
o This is to effect a just, speedy and inexpensive
determination of disputes between the parties. (Castillo v. Judicial Review
Napolcom Adjudication Board, GR 60150, December 11,
1987) Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
What are the Requisites for adjudication? and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
1. Jurisdiction instrumentality of the government. (Second Paragraph (new), Sec. 1, Art. VIII,
2. Notice, and 1987 Constitution.)
3. Hearing
What are the Requisites for Judicial Review?
What are the Aspects of Administrative Due Process? 1. The administrative action was FULLY completed (therefore,
Source: Ang Tibay v. CIR final, but not res judicata): doctrine of finality of administrative
action
 Courts are reluctant to interfere with an administrative
action prior to its completion and not final. Thus courts  Findings of administrative agencies (both factual and legal) which
are averse to review interim steps in an administrative are supported by substantial evidence are considered valid and
proceeding and preliminary or procedural orders of an binding.
administrative body.  Findings are left undisturbed unless there was a whimsical or
2. Generally, subject to the rule, all administrative remedies were capricious exercise of jurisdiction amounting to grave abuse of
exhausted: doctrine of exhaustion of administrative remedies discretion.
 When an administrative remedy is provided by law, relief  Thus, judicial review is limited. Not a trial de novo.
must be sought by exhausting this remedy before the  Res judicata is applicable (San Luis v. CA, 174 SCRA 258)
courts will act. However, appeal to the President is
indispensable where it rests not only on the President’s Administrative res judicata
power of control but upon a statute expressly providing Source: Ysmael v. Deputy ExSec, GR No. 79538, Oct. 18, 1990
for the right of appeal to the President. Conversely, where  The decisions and orders of administrative agencies have, upon
it is not based on statute, appeal to the President is their finality, the force and binding effect of a final judgment within
optional. the purview of the doctrine of res judicata.
 These decisions and orders are as conclusive upon the rights of the
Note: affected parties as though the same had been rendered by a court
 Judicial action may be available regarding an interlocutory order to of competent jurisdiction.
preserve the status quo ante or in cases where it becomes  The rule of res judicata thus forbids the reopening of a matter once
necessary (usually falling under the exceptions to the doctrine of determined by competent authority acting within their exclusive
exhaustion of administrative remedies). (Bar Q 2001.) jurisdiction.

What is the Scope of Judicial Review? Note:


 Not applicable to administrative adjudication of citizenship
Law Fully reviewable
Fact Must be based on substantial
evidence
Discretion  Must not be arbitrary or
capricious
 Courts will not generally
substitute their discretion
for that of the
administrative agency.
 Presumption is that the
administrative agency, by
its specialized knowledge, is
in a better position to make
an informed judgment.
PUBLIC OFFICERS
Outline and Notes from the class of Atty. Noel Ostrea

I. General Principles
II. Modes and Kinds of Appointment (incl. De
Facto Officers)
III. Eligibility and Qualification Requirements
IV. Disabilities and Inhibitions of Public Officers
V. Powers and Duties of Public Officers
VI. Rights of Public Officers
VII. Liabilities of Public Officers, including
preventive suspension, illegal dismissal,
reinstatement and back salaries
VIII. Immunity of Public Officers
IX. Termination of Official Relations
X. The Civil Service
XI. Accountability of Public Officers
i. Impeachment
ii. Ombudsman (OMB)
iii. Sandiganbayan
XII. Term Limits
I. STRUCTURE OF ART. XI
Note:
 Art. XI: Accountability of Public Officers  Generally, the creation of public offices is a legislative function.
Section 1: Public office is a public trust.  According to Cruz:
How do we enforce this principle of public accountability? a) the powers conferred and the duties to be discharged
1. Impeachment must be defined, directly or impliedly, by the legislature or
a. Impeachable Officers and the Procedure for Impeachment through legislative authority;
(Sec. 2, 3) b) the duties must be performed independently and without
2. The Anti-Graft Court/the Sandiganbayan (Sec. 4) the control of a superior power other than the law (an
3. The Ombudsman (OMB) officer, not an employee--discretionary), and
a. Qualifications of the OMB and Deputies; the OMB as the c) it must have some permanence and continuity and not just
protectors of the people; Powers of OMB (Sec. 8, 12 and be temporary or occasional.
13)  The MIAA, BCDA, PPA, MIAA, UP, BSP, PDIC, LLDA, PRRI and all
4. Sec. 17: SALN: The Statement of Assets, Liabilities and NW other so called GOCCs which are not organized as stock or non-
stock corporations, are not considered as GOCCs but as
II. General Principles government instrumentalities or "government corporate entities".
According to the said Supreme Court Decision, they are not subject
Definition to the payment of any taxes, fees or charges of any kind imposed
by provinces, cities, municipalities, and barangays pursuant to
Who are public officers? Section 133(o) of the Local Government Code.
 The GSIS, SSS, The National Kidney Foundation of the Philippines ,
Those who are invested with public offices. the Lung Center of the Philippines (LCP), the Philippine Heart Center
(PHC), PEZA, to name a few, are likewise to be considered as
What is a public office? government instrumentalities or "government corporate entities.“
(Ref. MIAA v. CA, GR 155650 (en banc), 07.20.2006.) LRTA is a GOCC
A public office is a right, authority and duty, created and conferred by law, by but MRTC is a private corporation. And water districts created by
which for a given period (either fixed by law or enduring at the pleasure of the law are chartered GOCCs also. (Tanjay Water District v. Gabaton,
appointing power), an individual is invested with some portion of the sovereign 04.17.1989.)
functions of government, to be exercised by him for the benefit of the public.
1st Element:
Note: Involves the exercise of discretion, as opposed to mere clerk or public An office created and conferred by law (a right, authority and duty)
employee. Also has character of permanency.
2nd Element:
Elements of a Public Office Investing an individual with a delegation of a portion of the sovereign
1. An office created and conferred by law (a right, authority and duty) functions of government
2.
3. Investing an individual with a delegation of a portion of the 3rd Element:
sovereign functions of government To be exercised for public benefit.
4. To be exercised for public benefit.
First Principle Expo Filipino case
Public office is a public trust.
 Public officers and employees MUST AT ALL TIMES be Facts: In June 1991, President Corazon AQUINO issued AO 223 constituting a
ACCOUNTABLE to the people, Committee to prepare for the 1998 National Centennial Celebration.
 SERVE THEM with UTMOST responsibility, integrity, loyalty and Thereafter, President FVR issued EO 128 reconstituting the Committee,
efficiency, renaming it the NCC and appointing former Vice-President Salvador LAUREL
 Act with patriotism and justice as the Chair. Presidents Diosdado MACAPAGAL and Corazon AQUINO were
 And lead modest lives. (Sec. 1, Art. XI.) also named Honorary Chairpersons. EXPOCORP (the Philippine Centennial
Expo’98 Corporation) was created. And former Vice-President Salvador H.
Note: Public officers are chosen either by appointment or election. Laurel was the elected CEO of EXPOCORP. In Aug 1998, Senator Ana
(Asked, 2003 Bar). COSETENG delivered a privilege speech denouncing alleged anomalies in the
construction and operation of the Centennial Project. Referred to the Senate
Characters of Public Office Blue Ribbon Committee for investigation
1. A public office is a public trust.
2. The holders thereof are accountable to the people. Issues: Was the construction of the Expo Filipino in the CEZA attended by
3. The holder is a holder, not an owner. various anomalies? Did former Vice-President Salvador LAUREL incur any
4. The holder has no vested right in any public office. liability therefor (as the CEO of EXPOCORP and the Chairman of the National
5. His office is not property. Centennial Commission?)
 Unless the office is the subject of litigation as to who,
between two persons, is legally entitled. However, due Ruling:
process protects a public officer, since he cannot be  The NCC performs executive functions. It helped execute the policy
deprived of his office without it. Also, salaries earned are to promote the centennial. And it assisted in the economic
private property which generally belong to the public development of Central Luzon. It is therefore a public office.
officer, except de facto officers, under certain  1. SC cited the definition of a public officer under RA 3019, Section
circumstances 2 thereof. As cited therein, a public officer can include a person
6. It cannot be inherited. “receiving compensation, even nominal, from the government”.
 This relates to the prohibition against political dynasties  A salary is a usual but not necessary criterion to determine the
under Section 26 of Art. II of the Constitution, which states: nature of the position. It is a mere incident. It is not part of the
“The State shall guarantee equal access to opportunities office.
for public service, and prohibit political dynasties as may  While the NCC was an “ad hoc” body, the element of continuance
be defined by law.” cannot be considered indispensable if the other elements of a
public office are present.
Memory Work
 Mechem definition III. De Facto Officer
 Sec. 1 Art. XI
 Sec. 26, Art. II Definition

Distinguishing public officer Who is a de facto officer?


One who is in possession of the office and discharging its duties under color of of his office. (Principle enunciated in Rodriguez was applied in Flores v.
authority.(Ong v Topacio) Drilon (GR 104732) to benefit Mayor GORDON.)
 Where there is no de jure officer, a de facto officer, who in good faith
Elements of a De Facto officer had possession of the office and discharged the duties pertaining
1. Existence of a de jure office thereto, is legally entitled to the emoluments of the office and may
2. Colorable title, and recover the salary, fees and other compensations attached to the office.
3. Physical possession of the office. (Funa v Agra)
 The acts of the de facto officer are just as valid for all purposes as those
Colorable/color of Title of a de jure officer, in so far as the public or third persons who are
1. Occupant is without a known appointment or election interested therein are concerned. (Chaguile)
2. Under color of a known and valid appointment or election, but
lacking a condition precedent Elements of De Facto doctrine
3. Under a void appointment or election, or 1. No de jure officer
4. Under an election or appointment pursuant to an unconstitutional 2. Good faith
law. 3. Possession of office and discharge of duties

What is color of authority? Compensation: De Facto


 Possession of title, not office, is decisive.
That derived from an election or appointment, however irregular or informal,  A de facto officer, not having good title, takes the salaries at his risk.
so that the incumbent is not a mere volunteer. (Ong v Topacio) He must therefore account to the de jure officer for whatever
amount of salary he received during the period of his wrongful
What is the status of an appointee who is subsequently declared ineligible? retention of the public office. (Monroy v CA)
o This case also involves the vacating of office upon the
His presumably valid [and previous] appointment will give him color of title filing of a COC by an elective public official. Petitioner is
that will confer on him the status of a de facto officer. Mayor Roberto MONROY, former incumbent mayor of
Navotas, Rizal, against the respondent Vice-Mayor Felipe
De facto doctrine DEL ROSARIO.

Acts of de facto officers are considered valid and binding Situation: B, the winning candidate for municipal mayor, was proclaimed the
winner and entered into his office. However, his opponent, C filed an action
 Generally, the de facto officer cannot benefit from his status. Thus, in to annul B’s proclamation, claiming that he, C, was the rightful winner of
Monroy v. CA, 20 SCRA 620, a mayor who had run for another position election. Just before the completion of B’s term of office, C was adjudged to
but refused to relinquish his post as mayor should pay all salaries be the true winner of the election. And the judgment in favor of C became
collected by him to the vice-mayor as the de jure successor. However, final. Can B be ordered to return all the monies he received as compensation
he may be protected by his good faith, when no de jure officer is during the time he was holding the office of municipal mayor?
claiming the office, such as in the case of Rodriguez v. Tan, 91 Phil. 724, No, because B had already received the monies. It is a fait accompli.
where Tan was proclaimed senator-elect and assumed office until he
was ousted. In such a case, he was declared entitled to the emoluments IV. Entering into Public Office
Appointment o May be exercised by SC (for all officials and employees of the
An act of designation/ selection (by the executive officer, etc. OBB to whom the judiciary in accordance with CS law) (Sec. 5, subparagraph (6),
power has been delegated) of the individual to exercise the powers and Art. VIII.) or by ConComs in accordance with law (Sec. 4, Art. IX
functions of a given office. A.).

Note: Nature and Characteristics


 To be distinguished from election. 1. It is discretionary
 Also defined as the sequence of events which begins with the OBB 2. It is an executive prerogative
which has been given the power to designate an individual to exercise 3. It is a political and administrative decision.
the functions of a given office.
 In Frivaldo, the SC construed the time for a winning candidate for a LG Note:
position to possess the citizenship requirement as at the time of his/her  The essential element concerning the nature of an appointment it is
proclamation. (257 SCRA 727) discretionary
 A designation connotes merely the imposition of additional duties. It  It is the prerogative of the appointing power to decide who, among the
implies temporariness. Thus, it does not confer security of tenure, candidates, is the most qualified.
particularly when the latter designation is in an acting capacity. An  It is akin to a political question. Cannot be questioned as long as it rests
acting appointment is merely temporary, i.e. until a permanent on a reasonable basis. An appointment must be upheld unless the
appointment is made. (Sevilla) Where a person is merely designated and power was exercised in bad faith or in a malicious, harsh, wanton, or
not appointed, the implication is that he shall hold the office only in a vindictive manner.
temporary capacity and may be replaced at will by the appointing  In an appointment, the choice of the appointing authority among
authority. In this sense, the designation is considered only an action or various candidates can be questioned based on grave abuse of
temporary appointment, which does not confer security of tenure on the discretion
person named. (Binamira v. Garrucho, Jr., GR No. 92008, 30 July 1990.)
(Cases: Sevilla v. CA, 209 SCRA 637/06.09.1992; Gloria v. de Guzman, Jr., Classification of Government Positions
10.06.1995; Binamira v. Garrucho, 188 SCRA 154)  Constitutional or statutory
 While generally plenary, may be limited by law, e.g. Constitution  National or local
prohibits designation of member of COMELEC in a temporary or acting  Executive, legislative or judicial
capacity. (Art. IX-C, Section 1(2).) In Brillantes v. Yorac, GR 93867, 18 Dec  Civil or military
1990, Brillantes successfully challenged the appointment of Haidee  Lucrative or honorary or naked
Yorac as the “acting COMELEC Chairman”.  Discretionary or ministerial
 De jure or de facto
Modes of Entry  Competitive or non-competitive
1. Election o Non-competitive can be: Policy-determining; Primarily
2. Appointment confidential; Highly technical

Notes: Note: Constitution-based classification


 Inherent in the people
 Vested/delegated by the people as contained in the Constitution or law. V. Civil Service
 Generally, an executive function.
Composition Note: The prohibition against partisan political activity applies only to career
 Administered by a Chairman and two (2) Commissioners. service officials.
 Nominees must be qualified as per the Constitution.
 Not lame ducks. Purpose
 Presidential appointees 1. To provide a professionalized body of public servants
 Serve a seven (7) year term, w/o reappointment. 2. To perform the manifold tasks of government
 “Rolling” 2 yr. overlap of terms. (Art. IX B 1) 3. Furnish information required in policy-making.
 Covers Chartered GOCCs
Appointments
Classification of service  The Civil Service embraces all branches, subdivisions,
 Constitutional classification of civil service: instrumentalities and agencies of the government (NG/LG),
o Competitive: according to merit and fitness as determined by including GOCC’s with original charter.
competitive exams.  Widest application of merit system.
o Non-competitive: not based on merit and fitness as  Types: career and non-career service.
determined by competitive exams. These include the highly
technical, policy determining or primarily confidential. Chartered GOCCs
 Covered by civil service law
 CS Classification (Career Service: open or closed) o This can even cover a corporation created under the
o Open: sub-professional, professional and CES Corporation Code which was later acquired by the
o Closed career positions are scientific or highly technical in government and is performing governmental functions as
nature, incl. the faculty and academic staff of state colleges and a PNOC subsidiary/marketing arm, Petrophil Corp.
universities and scientific and technical positions in scientific or (Quimpo v. Tanodbayan (en banc), 12.02.1986.) This
research institutions. includes the SSS. (Tolentino v. SSS, 09.06.1985.)
 Positions in the CES (Career Executive Service): Usec,  Cannot go on strike
Asec, Bureau Director, Asst. Bureau Director, Regional  OMB jurisdiction over offenses committed by their officers or
Director, Asst. Regional Director, Chief of Department employees
Service and other officers of equivalent rank as  Can be directed by OMB to perform or expedite any act or duty
identified as CES.  Subject to COA audit, pre- and post-
 Career officers other than CES appointed by the
President, such as FSOs (foreign service officers, DFA) Note:
 Commissioned officers and enlisted men of the AFP  A GOCC is a stock or non-stock corporation, whether performing
 GOCC personnel governmental or proprietary functions, which is directly chartered by a
 Permanent laborers special law, or, if organized under the general corporation law, is owned
 Non career: qualifications other than usual or controlled by the government directly or indirectly, through a parent
test of merit and fitness, with limited tenure. corporation or subsidiary corporation, to the extent of at least a majority
Includes highly technical. Includes of its outstanding capital stock or of its outstanding voting capital stock.
emergency, seasonal, contractual and casual  A government-owned or controlled corporation must be "organized as a
personnel. Also confi and policy det. stock or non-stock corporation." MIAA is not organized as a stock or
(Distinguish fr: non-competitive.) non-stock corporation. MIAA is not a stock corporation because it has
no capital stock divided into shares. MIAA has no stockholders or voting contractuals, emergency and seasonal personnel
shares. Section 10 of the MIAA Charter[9] provides: SECTION 10. Capital. and casual employees.
� The capital of the Authority to be contributed by the National  Security of tenure
Government shall be increased from Two and One-half Billion o Those holding primarily confidential positions hold office
(P2,500,000,000.00) Pesos to Ten Billion (P10,000,000,000.00) Pesos. at the pleasure of the appointing power. When such
(MIAA v. CA (en banc), cited above.). And it is not a non-stock pleasure turns into displeasure, the incumbent’s term
corporation because it has no members. It is a government expires in the same way as a person who has a fixed term
instrumentality. Section 16, Article XII of the 1987 Constitution provides: of office is removed upon the expiration of his term.
 SEC. 16. The Congress shall not, except by general law, provide for the  Opportunity for advancement.
formation, organization, or regulation of private corporations. o Cannot engage in any partisan political activity.
Government-owned or controlled corporations may be created or  Prohibition against partisan political activity
established by special charters in the interest of the common good and applies only to career service officials. (Sec. IX B 2)
subject to the test of economic viability. (Emphasis and underscoring o Includes open and closed career positions
supplied)  Employees with fixed terms of office are chairmen
and members of commissions and boards with
Career Service fixed terms and their staff.
 Based on merit and fitness determined by competitive exams  Closed career tend to be highly scientific or technical positions.
(open), or based on highly technical qualifications. (closed)
o Constitutional classification: Classifications of civil service: Scope of Career Service
Competitive or Non-competitive (highly technical, policy 1. Open Career service: Competitive exams
determining or primarily confidential). While merit and 2. Closed career service: Scientific or highly technical
fitness must still be determined, these are exempt from the 3. Career Executive Service (CES): USecs, Bureau directors, etc.
requirement of competitive exams. 4. AFP: Governed by different merit system
o CS Classification: Career Service: open or closed 5. Career officers (not #3): Governed by different merit system
 Open: sub-professional, professional and CES 6. Personnel of GOCCs with original charters, etc.: Governed by
 Closed career positions are scientific or highly different merit system
technical in nature. These include the faculty and  And permanent laborers, whether skilled, semi-skilled or
academic staff of state colleges and universities unskilled.
and scientific and technical positions in scientific
or research institutions. Non-career service
 Non-career service: Includes emergency,  Criteria different from open career service
seasonal, contractual and casual personnel. Note  Term Limited to:
ambassadors are non-career. (Astraquilo v. o Period specified by law
Manglapus (en banc), 10.03.1990.) Thus, they can o Coterminous with that of the appointing authority
be summarily removed. The non-career service o Enduring at his pleasure or
are generally co-terminous positions, such as the o Limited to duration of project
personal or confidential staff of elective officials,  Includes:
department heads, officials of cabinet rank, o Elective officials, personal and confidential staff
o Department Heads and officials of Cabinet rank who serve
at the pleasure of the President Types of Powers of Public Officers
o Chairmen and members of commissions or boards with 1. Discretionary
fixed terms, etc.  Act involves policy making or judgment, when it is left to
the will or judgment of the performer to determine how an
Non-competitive act shall be performed.
1. Policy determining  Excludes whimsical or arbitrary exercise thereof.
 Officer who lays down principal or fundamental guidelines 2. Ministerial
2. Primarily confidential  Official duty is ministerial when it is absolute, certain and
 Not only confidence in aptitude but primarily close imperative. It involves merely the execution of a specific
intimacy which insures freedom of intercourse duty arising from fixed and designated facts
3. Highly technical
 Requires possession of technical skill to a superior degree Role of Civil Service Commission

Who can declare a position as primary confidential, etc.? The only function of the Civil Service Commission x x x is to review the
appointment in the light of the requirements of the Civil Service Law, and
 The CSC, by virtue of the Administrative Code of 1987. when it finds the appointee to be qualified and all other legal requirements
 The CSC can supplement the enumeration in the CS decree. have been otherwise satisfied, it has no choice but to attest to the
appointment. It is a political question. (Gaspar v. Court of Appeals, October
Note: 18, 1990.)
 Montecillo v. CSC, GR No. 131954, June 28, 2001.  In an appointment, if the CSC finds that the appointee lacks the
 When this is done independently by an agency, this is an executive or requisite civil service eligibility, this makes the appointment
legislative declaration that is not conclusive upon the courts. The true TEMPORARY
test is the nature of the position.  In Lapinid v. CSC (en banc), 05.14.1991, citing previous precedent
o PAGCOR v. Rilloraza, GR 141141, June 25, 2001. Also see cases, the SC declared that, “The CSC is not empowered to
PAGCOR v. Salas, GR No. 123708, June 19, 1997. Executive determine the kind or nature of the appointment extended by the
pronouncements can be no more than initial determinations appointing officer, its authority being limited to approving or
that are not conclusive in case of conflict. Otherwise it would reviewing the appointment in light of the requirements of the CS
lie within the discretion of the Chief Executive to deny to any law.” (Luego v. CSC, 143 SCRA 327.)
officer, by executive fiat, the constitutional protection of  In Gaspar v. Court of Appeals, 10.18.1990, this Court said: The only
security of tenure. function of the Civil Service Commission in cases of this nature,
according to Luego, is to review the appointment in the light of the
Authority of Public Officers requirements of the Civil Service Law, and when it finds the
 Expressly conferred by the Act appointing him appointee to be qualified and all other legal requirements have
 Expressly annexed to the office by LAW been otherwise satisfied, it has no choice but to attest to the
 Attached to the office by common law as incidents thereof appointment. It is a political question.
 Doctrine of necessary Implication
o All powers necessary for the exercise of the express Appointment in Civil Service
powers are deemed included in the powers of the office.
1. Absolute chief provincial official concerned, all the subordinate officers and
 If absolute, the choice of the appointing authority is employees in the various branches of the provincial government whose
CONCLUSIVE salaries, compensation or wages are paid, wholly from provincial funds,
2. Conditional in conformity with the provisions of the Civil Service Law, except x x x
 If conditional, then the appointment is complete only (As amended by RA 528.)
when assent or confirmation is obtained. This is the “last  Later, their appointments were disapproved by the Provincial Board
act”.  It was held that the PB incurred no liability in not approving their
appointments
Note:
 However, acceptance thereof is needed to complete and close the VI. Presidential Appointment Power
appointment. The only exception is in defense of the State (Section 4,
Art. II.), since all citizens may be compelled to render military or civil Appointment Power (Art. VII, Sec. 16)
service. (No need for acceptance.) The President shall nominate [regular appointments] and, with the consent
 An attestation of appointments made by governors without the of the CONA [nominations subject to CONA confirmation]:
concurrence of the provincial boards (SP) as required by law will not o Appoint the heads of the executive departments [Cabinet
validate said appointments, even if the appointees had already served Secretaries who are Department Heads], ambassadors, other
for several years. (Alinsugay v. CA, 148 SCRA 521.) public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and
Situation: Alinsugay v CA o Other officers whose appointments are vested in him in this
Constitution [JBC members; ConCom Chair/Members; SC
Summary: GR No. L-48639, March 16, 1987. The appointments of the 4 members and Judges of lower courts; Tanodbayan and his
laborers were later disapproved. There initial appointments were therefore Deputies; Veep when Cabinet member, with stated exceptions
held to invalid for lack of approval of the provincial Board. (This makes them excluding them from confirmation by express constitutional
de facto.) provision].
o He shall also appoint all other officers of the Government
Facts: Four (4) persons were appointed as laborers by the governor in various whose appointments are not otherwise provided for by law
offices of the provincial government of Cebu. Afterward, upon advice of the [Offices with rank of Cabinet Secretaries; offices created by law
provincial auditor and later, the CSC, the governor was advised that pursuant without stated appointing power], and those whom he may be
to the RAC, appointments to the unclassified or non-competitive positions in authorized by law to appoint [Chair/Members of CHR; GOCC
the provincial service must be approved by the provincial board to be valid heads (PAGCOR Chair); USecs; Heads of bureaus and offices].
and effective. o The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in
Ruling: the heads of departments, agencies, commissions, or boards
 SEC. 2081. Employment of subordinates. — The Provincial Board shall fix [The civil service (CS) should cover those lower in rank. Thus,
the number of assistants, deputies, clerks, and other employees for the their appointments are according to merit and fitness].
various branches of the provincial government and in accordance with
the Salary Law to fix the rates of salary or wage they shall receive. After Ad Interim Appointment
their number and compensation shall have been thus determined, the The President shall have the power to make appointments during the recess
Provincial Governor shall, x x x appoint, upon recommendation of the of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproved by the Commission on  Vested: Generally, CS covers those lower in rank. Thus, they are
Appointments or until the next adjournment of the Congress. appointed based on merit and fitness.
o The President may make appointments during Congress’ recess,  Under Sarmiento v. Mison, confirmation is required for groups 1 and 2
effective only upon disapproval by C on A or next adjournment. (Ad contained in first sentence of Section 16. This was reiterated in Bautista
interim appointments) v. Salonga, with reference to CHR chair, which is not contained in the
first sentence.
Summary of Appointment Power  The spouse and relatives of the President by consanguinity or affinity
1. Shall nominate, and with C on A consent, appoint: within the 4th civil degree cannot be appointed to certain positions.
o Heads of the executive departments (Sec. 13) Appointments made by acting Prez may be revoked by elected
o Ambassadors Prez within 90d from latter’s assumption into office. (Sec. 14) And under
o Other public ministers and consuls, OR Sec. 15 thereof, the President is generally barred from making
o AFP Officers (Col., Navy Capt.) appointments within 2 mos. immediately before the next presidential
o And Other officers whose appointments are vested in the President elections, except emergency temporary appointments when continued
by the Constitution. vacancies will “prejudice public service” or “endanger public safety”.
2. Shall also appoint officers:
o Whose appointments are not otherwise provided by law. Last Act
o Those he is authorized by law to appoint.  Where the power of appointment is absolute, and the appointee
o As Congress may, by law, vest in the President5 or others has been determined upon, no further consent or approval is
necessary, and the formal evidence of the appointment, the
Note: commission, may issue at once. Where, however, the assent or
 Heads (Cabinet Secretaries who are Department Heads) confirmation of some other officer or body is required, the
 Other officers (JBC members, ConCom Chair/Members; SC members and commission can issue or the appointment may be complete only
LC judges; Ombudsman and his deputies; Veep when Cabinet member. when such assent or confirmation is obtained.
However, by express Constitutional provision, the appointment of  In either case, the appointment becomes complete when the last
members of the judiciary “need no confirmation”. Similarly, the act required of the appointing power is performed. Until the
appointment of the OMB and his deputies “shall require no process is completed, the appointee can claim no vested right in
confirmation”. And finally, when the Veep is appointed as a Cabinet the office nor invoke security of tenure.
Member, his appointment “requires no confirmation”. But note there is  Hence, in the case of CORPUZ, since the last act required for the
no such exemption for sectoral reps under Sec. 7, Art. XVIII completion of his appointment, viz., approval by the MTRCB itself,
 PN ranks are: Ensign, Lieutenant Junior Grade (Tenyente na was not obtained, as a matter of fact, the MTRCB ultimately
Mabababang Baitang), Lieutenant or Lieutenant Senior Grade (Tenyente disapproved it, his appointment ceased to have effect, if at all, and
or Tenyente na Mataas na Baitang), Lieutenant Commander (Tenyente his services were properly terminated. (Corpuz v CA)
Kumander), Commander (Kumander), Captain (Kapitan), Commodore,
Rear Admiral, Vice Admiral(Bise Admiral), Admiral-- Sarmiento Principle
 Not provided by law: Officers with rank of Cabinet Secretaries; officers  The constitutional provision classifies and identifies four (4) groups
created by law without stated appointing power of officers of the Government who can be appointed by the
 Authorized by law: Chair/Members of CHR; GOCC heads (e.g. PAGCOR President.
Chair); Usecs; Heads of Bureaus and Offices  Only the first group require CONA confirmation.
o There is a difference in language.
o The first sentence speaks of nomination by the President phrase “those whose appointments are vested in the President by the
and appointment by the President with the consent of the Constitution, by express constitutional provision, the appointment of the
CA, whereas the second sentence speaks only of OMB and his deputies “requires no confirmation”. (Sec. 9, Art. XI.).
appointment by the President. 4. Sectoral representatives require confirmation. Sectoral representatives
 Congress cannot by law expand the power of confirmation of the require confirmation. (Quintos-Deles v. Commission on Constitutional
CONA and require the confirmation of other appointees apart from Commissions and CA, GR No. 83216, September 4, 1989.) In relation to
those stipulated in the Constitution. Sec. 7, Art. XVIII, sectoral representatives are among the “other officers
whose appointments are vested in the President by this Constitution”.
Note: 5. When the President appoints a new PNP Chief Superintendent, his
 The case upholds constitutional supremacy over all laws. The leading appointment power is absolute. This is Manalo v. Sistoza, GR No.
case is Sarmiento III v. Mison, GR No. 79974, December 17, 1987. Here, 107369, August 11, 1999 (en banc). In the case, five (5) Chief
the authority of the President to appoint the Customs Commissioner Superintendents were made Directors; and ten (10) Senior
without need of CONA confirmation was upheld based on the Superintendents were made Chief Superintendents. They were
Constitution and on law. appointed in a permanent capacity. But despite the provision in the
 The Constitutional provision is a ‘middle ground’. Only the appointment DILG law, they assumed office without having their names submitted to
of certain officers requires CONA confirmation. If all officers required the CONA. Sec. 26 and 31 of RA 6975 were later declared
confirmation, as in the 1935 Constitution, the Commission can become a unconstitutional. Similarly, appointments to the Philippine Coast Guard
venue for ‘horse trading’. And in the 1973 counterpart provision, there do not require confirmation. Soriano III v. Lista, GR 153881, March 24,
was no need for any confirmation. 2003.
 Current provision is a middle ground between “no check and balance”
and “absolute check and balance” which would impinge heavily on the Classification of Appointments by the President
discretion and power of the President to appoint. 1. Permanent
 Last until they are lawfully terminated.
Application: 2. Temporary
1. A qualified party-list representative official does not require the  Last until a permanent appointment is issued
confirmation of the Commission on Appointments  Under Section 15 of Article VII, by necessity, a president or acting
2. Failure to comply with a condition precedent (e.g. failure to submit president can make temporary appointments to executive
name to the Commission on Appointments for its consent) or under a positions beginning two months immediately before the next
void appointment makes A’s assumption into office under color of title presidential elections, and up to the end of his term. Where a
or colorable title, making him a de facto public officer. His appointment person is not completely qualified, his appointment is temporary
should not be considered void, because he is not a usurper. It should be and he enjoys no tenure. Where the nominee holds another office,
considered voidable, since the defect can be cured by submitting his this could be a mere designation, e.g. “acting city engineer”.
name to the CONA. Of course, if the CONA does not confirm his (Sevilla v. CA, above-cited.)
appointment, he loses his right to hold the office. But under the de 3. Regular
facto doctrine, his acts until he fails confirmation would be considered  Made while Congress is in session
valid. 4. Ad Interim
3. A Presidential adviser holding cabinet rank, the Ombudsman and his  Made while Congress is not in session (on recess).
deputies, the Commissioner of Customs: these public officials do not  Effective only until ConA disapproval (active) or next adjournment
require confirmation. While the OMB and his deputies fall under the (passive). (Section 16, Art. VII.) The term “recess” refers to the
interval between a session of Congress that has adjourned and may be extended any time there is a vacancy. Moreover ad-
another of the same Congress. It does not refer to the interval interim appointments are submitted to the Commission on
between the session of one Congress and that of another. That Appointments for confirmation or rejection; acting
would be an adjournment sine die. By the time of such appointments are not submitted to the Commission on
adjournment, Congress can no longer convene, ceases to exist, and Appointments. Acting appointments are a way of temporarily
thus cannot confirm. J. Angelo-Bautista, concurring, Aytona v. filling important offices but, if abused, they can also be a way
Castillo, GR No. L-19313, January 19, 1962. of circumventing the need for confirmation by the Commission
on Appointments.
Steps in Appointment Process
 Regular Situation: President N appointed A as his DENR Secretary but failed to
1. Nomination by President submit A’s name to the Commission on Appointments for its consent. A’s
2. Confirmation by CONA appointment is conditional.
3. Issuance of the Commission o The failure to comply with a condition precedent or under a
4. Acceptance by the appointee void appointment makes A’s assumption into office under color
5. Oath and assumption of office of title or colorable title, making him a de facto public officer.
o Failure to assume elective office within six (6) months from His appointment should not be considered void, because he is
proclamation is a valid ground for removal from said elective not a usurper. It should be considered voidable, since the
office. defect can be cured by submitting his name to the CONA. Of
 An Interim course, if the CONA does not confirm his appointment, he
1. Nomination by President loses his right to hold the office. But under the de facto
2. Issuance of the Commission doctrine, his acts until he fails confirmation would be
3. Acceptance by the appointee considered valid.
4. Confirmation by CONA
5. Oath and assumption of office Constitutional Limitations on Appointing Power
1. Nepotism
Acting Appointments a. The spouse and relatives of the President by consanguinity or
The President can issue acting appointments while Congress is in session affinity w/in the 4th civil degree shall not, during his tenure, be
o In this case, she appointed several persons as her Department appointed as members of the ConComs, OMB, Secs/Usecs,
Secretaries. By its nature, the persons therein must have her Chairmen or Heads of Bureaus or Offices, including GOCC’s
trust and confidence. EO 292 allows her to appoint “any and their subsidiaries. (Section 13(2), Art. VII.)
competent person.” (Pimentel v. Ermita, GR 164978, October b. Exemptions from the operation of the CS rules on nepotism:
13, 2005.) (a) persons employed in a confidential capacity, (b) teachers, (c)
o In distinguishing ad interim appointments from appointments physicians, and (d) members of the Armed Forces of the
in an acting capacity, a noted textbook writer on constitutional Philippines.
law has observed: c. But the rules on nepotism shall not be applicable to the case of
o Ad-interim appointments must be distinguished from a member of any family who, after his or her appointment to
appointments in an acting capacity. Both of them are effective any position in an office or bureau, contracts marriage with
upon acceptance. But ad-interim appointments are extended someone in the same office or bureau, in which event the
only during a recess of Congress, whereas acting appointments employment or retention therein of both husband and wife
may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. o Retired member of the SC
No. 292) o Private sector representative
2. Midnight Appointments  Appointment: By President with CONA approval (For non ex-oficio
a. Under Section 15 of Article VII, by necessity, a president or members, or the regular members. (Sec. 8 (2), Art. VIII, 1987
acting president can only make temporary appointments to Constitution.)
executive positions beginning two months immediately before  Tenure: 4 years with staggered terms
the next presidential elections, and up to the end of his term,  Salary: Determined by the SC
when continued vacancies will prejudice public service or  Appropriations: Taken from SC annual budget
endanger public safety. (Section 15, Art. VII.)  Regular members of the JBC require confirmation by the Commission on
3. Relating to an acting President Appointments after appointment by the President
a. Appointments made by an Acting President shall remain  On the military:
effective unless revoked by the elected President w/in 90 days o No member of the AFP in the active service can be appointed
from his assumption or re-assumption of office. (Sec. 14, Art. or designated in any capacity to a civilian position in gov’t.,
VII.) Also, as can be seen, the #2 exception applies to an Acting including GOCC’s. (Art. XVI, Sec. 5(4) [retired, resign: valid]
President. o No member of the military shall engage directly or indirectly in
any partisan political activity, except to vote. (Art. XVI, Sec.
VII. JBC 5(3).)
o No officer or employee in the Civil Service including members
Composition of the Armed Forces, shall engage directly or indirectly in any
A Judicial and Bar Council is hereby created under the supervision of the partisan political activity or take part in any election except to
Supreme Court composed of the Chief Justice as ex officio Chairman, the vote nor shall he use his official authority or influence to coerce
Secretary of Justice, and a representative of the Congress as ex officio the political activity of any other person or body. Nothing
Members, a representative of the Integrated Bar, a professor of law, a retired herein provided shall be understood to prevent any officer or
Member of the Supreme Court, and a representative of the private sector. employee from expressing his views on current political
(Par. 1 of Section 8, Art. VIII) problems or issues, or from mentioning the names of
candidates for public office whom he supports: Provided, That
When the Constitution says “a representative of the Congress”, is it an public officers and employees holding political offices may take
oversight considering that Congress is in fact bicameral in nature? (Chavez v part in political and electoral activities but it shall be unlawful
JBC, GR 202242, 2012.Jul17 (en banc) for them to solicit contributions from their subordinates or
subject them to any of the acts involving subordinates
7 members prohibited in the Election Code. (Sec. 45, Civil Service Decree.)
 Ex-oficio Members The term "election campaign" or "partisan political activity"
o Chief Justice, SC refers to an act designed to promote the election or defeat of a
o SOJ particular candidate or candidates to a public office which shall
o Representative of Congress include:
 SC Clerk (as JBC Secretary) (1) Forming organizations, associations, clubs, committees or
 Regular Members (4 regular members) other groups of persons for the purpose of soliciting votes
o IBP Representative and/or undertaking any campaign for or against a candidate;
o Law professor (2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of o When the law is silent, when must prescribed qualifications be
soliciting votes and/or undertaking any campaign or possessed by the applicant/candidate?
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or Material Representation
holding interviews for or against the election of any candidate  Refers to qualifications for elective office
for public office;  Aside from materiality, there must be a deliberate attempt to mislead,
(4) Publishing or distributing campaign literature or materials misinform, or hide a fact which would otherwise render a candidate
designed to support or oppose the election of any candidate; ineligible. (Salcedo II v. COMELEC (en banc), 16 August 1999.)
or  For this reason, under said ruling, the use of a different surname in one’s
(5) Directly or indirectly soliciting votes, pledges or support for COC different from that appearing on one’s BC is not a material
or against a candidate. (Sec. 79, OEC, BP 881.) misrepresentation, when not intended to mislead or deceive the public.

Functions  Prohibiting political dynasties is a declared national policy


 Recommend appointees to the Judiciary
o From a list of three (3) nominees prepared for every vacancy. VIII. Disqualifications and Constitutional
Such appointments need no confirmation. (Sec. 9, Art. VIII.)
SC/LC Judges—appoint w/in 90 days from receipt of nominees; Constitutional Prohibitions
OMB/Deputies: fill three (3) months from vacancy.  Elective Officials
 Recommend appointees to the OMB and his five (5) deputies o Ineligible for appointment or designation to any public office
o Sec. 9, Art. XI. during his tenure (unless he ends tenure).
 Perform other functions and duties as the Supreme Court may assign o Re: Members of Congress. Forbidden office: An office created
or whose emoluments were increased during his term (Sec. 13,
Qualifications Art. VI) Incompatible office: Any kind of office or employment
 Congress is generally empowered to prescribe qualifications or in the government, including GOCCs. (Id.) Case: Flores v.
disqualifications for public office. Drilon, 223 SCRA 568/June 22, 1993). Case of Mayor
o Reasonable Gordon. Notice the distinction in the disqualifications for
o In accord with law elective v. appointive public officials.
 Exception: Offices created by the Constitution  Appointive Officials
 In such cases, the constitutional criteria are exclusive. o Cannot hold any other office or employment in government
 Generally, holders of public office are presumed to be eligible and including GOCC’s and subsidiaries. (Sec. 7, Art. IX-B)
qualified. o Exception: ex-oficio; allowed by law or by the primary functions
 Thus, the right to public office should be liberally construed in favor of of his position. However, note Civil Liberties Union v. ExecSec,
eligibility. 194 SCRA 317, further citing EO 292, whereby, “even if allowed
o Time may be a factor regarding the time when a qualification by law or the primary functions of his position, a member of
must be possessed: upon election or appointment, upon the Cabinet, undersecretary, assistant secretary or other
proclamation or assumption. appointive official of the Executive Department may hold no
o 1. Note Frivaldo v. COMELEC, 257 SCRA 727 more than two positions in the government and GOCCs and
o Fajardo v. Villafuerte, 21 December 1989 (en banc), Minute receive the corresponding compensation therefor”. In fact, if
Resolution. this limit is exceeded, he must relinquish the excess positions in
favor of a subordinate who is next in rank. However, this
elaboration of the prohibition is inapplicable to ad hoc bodies
or committees, or to boards, councils or bodies of which the
President is the Chairman.
 Elective/Appointive
o Cannot receive additional, double or indirect compensation,
unless specifically authorized by law.
o Thus, you can be attached to another office. But you cannot
legally draw salary from the second office unless specifically
authorized by law. Also, pensions or gratuities are not
considered additional or double compensation. So retired
officials can continue to receive their pensions unless the law
otherwise provides.
o Cannot accept gifts, any present, emolument from any foreign
government, without the consent of Congress. (Sec. 8, Art. IX-B)
o Private or personal gifts may be received.

IX. Accountability of Public Officers