ADMINISTRATIVE LAW BAR QUESTIONS
Administrative Law Questions
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice andHearing)
The Philippine Ports Authority (PPA) General Manager issued anadministrative order to the fact
that all existing regular appointments toharbor pilot positions shall remain valid only up to
December 31 of thecurrent year and that henceforth all appointments to harbor pilot
positionsshall be only for a term of one year from date of effectivity, subject to yearlyrenewal or
cancellation by the PPA after conduct of a rigid evaluation ofperformance. Pilotage as a
profession may be practiced only by dulylicensed individuals, who have to pass five government
professionalexaminations.The Harbor Pilot Association challenged the validity of said
administrativeorder arguing that it violated the harbor pilots' right to exercise theirprofession and
their right to due process of law and that the saidadministrative order was issued without prior
notice and hearing. The PPAcountered that the administrative order was valid as it was issued
in theexercise of its administrative control and supervision over harbor pilots underPPA's
legislative charter; and that in issuing the order as a rule or regulation,it was performing its
executive or legislative, and not a quasi-judicial function.Due process of law is classified into two
kinds, namely, proceduraldue process and substantive due process of law. Was there, or,
wasthere no violation of the harbor pilots' right to exercise theirprofession and their right to due
process of law?
SUGGESTED ANSWER:
The right of the pilots to due process was violated. As held, in Corona vs.United Harbor Pilots
Association of the Philippines, 283 SCRA 31 (1997),pilotage as a profession is a property right
protected by the guarantee of dueprocess. The pre-evaluation cancellation of the licenses of the
harbor pilotsevery year is unreasonable and violated their right to substantive dueprocess. The
renewal is dependent on the evaluation after the licenses havebeen cancelled. The issuance of
the administrative order also violatedprocedural due process, since no prior public hearing was
conducted. Asheld in Commissioner r of Internal Revenue vs. Court of Appeals, 261 SCRA237
(1999), when a regulation is being issued under the quasi-legislativeauthority of an
administrative agency, the requirements of notice, hearingand publication must be observed.
TOPIC: LAW-MAKING POWER; ABOLISH; DESTROY
In 1963, Congress passed a law creating a government-owned corporationnamed Manila War
Memorial Commission (MWMC), with the primaryfunction of overseeing the construction of
a massive memorial in the heart ofManila to commemorate victims of the 1945 Battle of
Manila.The MWMC charter provided an initial appropriation of P1,000,000empowered the
corporation to raise funds in its own name, and set aside aparcel of land in Malate for the
memorial site. The charter set the corporatelife of MWMC at 50 years with a proviso that
Congress may not abolishMWMC until after the completion of the memorial. Forty-five (45)
years later,the memorial was only 1/3 complete, and the memorial site itself had longbeen
overrun by squatters. Congress enacted a law abolishing the MWMCand requiring that the
funds raised by it be remitted to the National Treasury.The MWMC challenged the validity of
the law arguing that under its charterits mandate is to complete the memorial no matter how
long it takes. Decidewith reasons.
SUGGESTED ANSWER:
The law abolishing the MWMC is valid. Within theplenary powers of the Congress, it can create
as well as destroy what iscreated after determination its purpose could no longer be attained
bysubsequent circumstances. The power to create also carries with it the powerto destroy so
long as it was done in good faith and consistent with thepurpose of promoting the
general welfare.
TOPIC: DELEGATION OF POWERS; COMPLETENESS TEST;SUFFICIENT STANDARD
TEST
The two accepted tests to determine whether or not there is a validdelegation of legislative pow
er are the Completeness Test and theSufficient Standard Test.
Explain each.SUGGESTED ANSWER:
Under the COMPLETENESS TEST, a law must be complete in all its termsand provisions when
it leaves the legislature that nothing is left to the judgment of the delegate. The legislature does
not abdicate its functionswhen it describes what job must be done, who is to do it, and what
isthe scope of his authority. However, a delegation of power to make thelaws which necessarily
involves a discretion as to what it shall bemay not constitutionally be done. (Edu v. Ericta, G.R.
No. L-32096, October24, 1970)Under the SUFFICIENCY OF STANDARDS TEST, the statute
mustnot only define a fundamental legislative policy, mark its limits andboundaries, and specify
the public agency to exercise the legislativepower. It must also indicate the circumstances
under which the legislative command is to be effected. To avoid the taint of unlawfuldelegation, there must
be a standard, which implies at the very leastthat the legislature itself determines
matters of principle
and laysdown fundamental policy.
(Free Telephone
Workers Union
v. Ministerof Labor, G.R. No. L-58184, October 30, 1981)
TOPIC: DOCTRINE OF OPERATIVE FACT
Define/Explain (a) Doctrine of operative facts
SUGGESTED ANSWER:
The general rule is that an unconstitutional law is void. It produces no rights,imposes no duties
and affords no protection. However, the doctrine ofoperative fact is an exception to the general
rule and it only applies as amatter of equity and fair play. Under the doctrine of operative fact,
theunconstitutional law remains unconstitutional, but the effects of theunconstitutional law, prior
to its judicial declaration of nullity, may be leftundisturbed as a matter of equity and fair play. It
can never be invoked tovalidate as constitutional an unconstitutional act.
TOPIC: DELEGATION OF POWERS (2002)
Suppose that Congress passed a law creating a Department of HumanHabitat and authorizing t
he Department Secretary to promulgateimplementing rules and regulations.
Suppose further that the lawdeclared that violation of the implementing rules and regulationsso
issued would be punishable as a crime and authorized the DepartmentSecretary to prescribe
the penalty for such violation. If the law defines certainacts as violations of the law and makes
them
punishable,
for
example,
withimprisonment of three (3) years or a fine in the amount of P10,000.00,or both such imprison
ment and fine, in the discretion of the court,can it be
provided
in
the implementing rules and regulationspromulgated by the
Department Secretary
that their
violation will alsobe subject to the same penalties as those provided in the law itself?
Explainyour answer fully.
SUGGESTED ANSWER:
The rules and regulations promulgated by the Secretary of Human Habitatcannot provide
that the
penalties for
their
violation
will
be the
same as
thepenalties for the violation of the law. As held in United States v. Barrias,11 Phil. 327 (1908),
the
fixing
of
the
penalty
for
criminal
offensesinvolves the exercise of legislative power and cannot be delegated.The law itself must p
rescribe the penalty.
TOPIC: JUDICIAL REVIEW
Give the two (2) requisites for the judicial review of administrativedecision/actions, that is, when
is an administrative action ripe for judicial review?
SUGGESTED ANSWER:
1. The administrative action has already been fully completedand, therefore, is a final agency
action; and2. All administrative remedies have been exhausted. (Gonzales, Administrative Law,
Rex Bookstore: Manila, p. 136 (1979).
TOPIC: ELECTORAL TRIBUNAL; SET; PET JURISIDCTION
Mr. Yellow and Mr. Orange were the leading candidates in the vicepresidential elections. After
elections, Yellow emerged as the winner by aslim margin of 100,000 votes. Undaunted, Orange
filed a protest with thePresidential Electoral Tribunal (PET). After due consideration of the facts
andthe issues, the PET ruled that Orange was the real winner of the electionsand ordered
his immediate proclamation.(a) Aggrieved, Yellow filed with the Supreme Court a Petition
for Certiorarichallenging the decision of the PET alleging grave abuse of discretion. Doesthe
Supreme Court have jurisdiction? Explain.
SUGGESTED ANSWER:
The Supreme Court has no jurisdiction over thepetition. The Presidential Electoral Tribunal is
not simply an agency to whichthe Members of the Senate Court were assigned. It is not
separate from theSupreme Court. (Macalintal vs. Presidential Electoral Tribunal, 631
SCRA239.)
(b) Would the answer in (a.) be the same if Yellow and Orange werecontending for a senatorial
slot and it was the Senate Electoral Tribunal(SET) who issued the challenged ruling?
SUGGESTED ANSWER:
The Supreme Court would have jurisdiction if itwere the Senate Electoral Tribunal who issued
the challenged ruling. TheSupreme Court can review its decision if it acted with grave abuse
ofdiscretion. (Lerias vs. House of Representatives Electoral Tribunal, 202SCRA 808.)
TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of AdministrativeRemedies)
A) Explain the doctrine of exhaustion of administrative remedies.B) Give at least three
exceptions to its application.
SUGGESTED ANSWER:
A) The doctrine of exhaustion of administrative remedies meansthat when an adequate
remedy is available within the Executive Department, a litigant must first exhaust this
remedy before he can resort tothe courts. The purpose of the doctrine is to enable the
administrativeagencies to correct themselves if they have committed an error. (Rosales vs.Court
of Appeals, 165 SCRA 344)B) The following are the exceptions to the application of thedoctrine
of exhaustion of administrative remedies.1. The question involved is purely legal;2. The
administrative body is in estoppel;3. The act complained of is patently illegal;4. There is an
urgent need for judicial intervention;5. The claim involved is small;6. Grave and irreparable
injury will be suffered;7. There is no other plain, speedy and adequate remedy;8. Strong public
interest is involved;9. The subject of the controversy is private law;10. The case involves a quo
warranto proceeding11. The party was denied due process12. The decision is that of a
Department Secretary13. Resort to administrative remedies would be futile14. There is
unreasonable delay15. The action involves recovery of physical possession of publicland16.
The party is poor; and17. The law provides for immediate resort to the court
TOPIC: RIGHT TO HEARING AND NOTICE
QUESTION:
Give examples of acts of the state which infringe the dueprocess clause:1. In its substantive
aspect; and2. In its procedural aspect
SUGGESTED ANSWER:
1.) A law violates substantive due process when it is unreasonableor unduly oppressive. For
example, Presidential Decree No. 1717,which cancelled all the mortgages and liens of a debtor,
wasconsidered unconstitutional for being oppressive. Likewise, as statedin Ermita-Malate Hotel
and Motel Operators Association, Inc. v. CityMayor of Manila, 20 SCRA 849, a law which is
vague so that men ofcommon intelligence must guess at its meaning and differ as to
itsapplication violates substantive due process. As held in Tañada v.Tuvera, 146 SCRA 446,
due process requires that the law be published.2.) In State Prosecutors v. Muro, 236 SCRA
505, it was held that thedismissal of a case without the benefit of a hearing and without
anynotice to the prosecution violated due process. Likewise, as held inPeople v. Court of
Appeals, 262 SCRA 452, the lack of impartiality ofthe judge who will decide a case violates
procedural due process.
QUESTION:
On April 6, 1963. Police Officer Mario Gatdula was chargedby the Mayor with Grave Misconduct
and Violation of Law before theMunicipal Board. The Board investigated Gatdula but before the
casecould be decided, the City charter was approved. The City Fiscal, citingSection 30 of the
city charter, asserted that he was authorized thereunder toinvestigate city officers and
employees. The case against Gatdula was thenforwarded to him, and are-investigation was
conducted. The office of theFiscal subsequently recommended dismissal. On January 11, 1966,
the CityMayor returned the records of the case to the City Fiscal for the submissionof an
appropriate resolution but no resolution was submitted. On March 3,1968, the City Fiscal
transmitted the records to the City Mayorrecommending that final action thereon be made by the
City Board ofInvestigators (CBI). Although the CBI did not conduct an investigation, therecords
show that both the Municipal Board and the Fiscal's Officeexhaustively heard the case with
both parties afforded ample opportunity toadduce their evidence and argue their cause. The
Police Commission foundGatdula guilty on the basis of the records forwarded by the CBl.
Gatdulachallenged the adverse decision of the Police Commission theorizing that hewas
deprived of due process.Questions: Is the Police Commission bound by the findings of
the CityFiscal? Is Gatdula's protestation of lack or nonobservance of due processwellgrounded? Explain your answers.
SUGGESTED ANSWER:
The Police Commission is not bound by thefindings of the City Fiscal. In Mangubat v. de Castro,
163 SCRA 608, it washeld that the Police Commission is not prohibited from making its
ownfindings on the basis of its own evaluation of the records. Likewise, theprotestation of lack of
due process is not well-grounded, since thehearings before the Municipal Board and the City
Fiscal offeredGatdula the chance to be heard. There is no denial of due process ifthe decision
was rendered on the basis of evidence contained in therecord and disclosed to the parties
affected.
QUESTION:
On November 7, 1990, nine lawyers of the Legal Department ofY Bank who were all under Fred
Torre, sent a complaint to managementaccusing Torre of abusive conduct and
mismanagement. Furnished with acopy of the complaint, Torre denied the charges. Two days
later, the lawyersand Torre were called to a conference in the office of the Board Chairman
togive their respective sides of the controversy. However, no agreement wasreached thereat.
Bank Director Romulo Moret was tasked to look further intothe matter. He met with the lawyers
together with Torre several times but to no avail. Moret then submitted a report sustaining the
charges or the lawyers.The Board Chairman wrote Torre to inform him that the bank had
chosen thecompassionate option of "waiting" for Torre's resignation. Torre was asked,without
being dismissed, to turn over the documents of all cases handled byhim to another official of the
bank but Torre refused to resign and requestedfor a "full hearing", Days later, he reiterated his
request for a "full hearing",claiming that he had been "constructively dismissed", Moret assured
Torrethat he is "free to remain in the employ of the bank" even if he has noparticular work
assignment. After another request for a "full hearing" wasignored, Torre filed a complaint with
the arbitration branch of NLRC for illegaldismissal. Reacting thereto, the bank terminated the
services of Torre.(a) Was Torre "constructively dismissed" before he filed his complaint?
(b)Given the multiple meetings held among the bank officials, the lawyers andTorre, is it correct
for him to say that he was not given an opportunity to beheard? Explain your answers.
SUGGESTED ANSWER:
a) Torre was constructively dismissed, as held in Equitable BankingCorporation v. National
Labor Relations Commission, 273 SCRA 352. Allowing an employee to report for work without
being assigned anywork constitutes constructive dismissal.b) Torre is correct in saying that he
was not given the chance to beheard. The meetings in the nature of consultations and
conferencescannot be considered as valid substitutes for the proper observanceof notice and
hearing.
TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Department of National Defense entered into contract withRaintree Corporation for the
supply of ponchos to the Armed Forces ofthe Philippines (AFP), stipulating that, in the event of
breach,action may be filed in the proper court in Manila.Suppose the AFP fails to pay for
delivered ponchos where mustRaintree Corporation file its claim? Why?
SUGGESTED ANSWER:
Raintree Corporation must file its claim with the Commission on Audit. Under Section 2(1) IX-D
of the Constitution, the Commission on Audit has the authority to settle all accounts pertaining
toexpenditure of public funds. Raintree Corporation cannot file a casein court. The Republic of
the Philippines did not waive its immunityfrom suit when it entered into the contract with
Raintree Corporationfor the supply of ponchos for the use of the Armed Forces of
thePhilippines. The contract involves the defense of the Philippines andtherefore relates to
a sovereign function.In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court
held:"The restrictive application of State immunity is proper only whenthe proceedings arise out
of commercial transactions of the foreignsovereign, its commercial activities or economic affairs.
Stateddifferently, a State may be said to have descended to the level of anindividual and can
thus be deemed to have tacitly given its consentto be sued only when it enters into business
contracts. It does notapply where the contract relates to the exercise of its sovereignfunctions.
In this case the project are an integral part of the navalbase which is devoted to the defense of
both the United States andthe Philippines, indisputably a function of the government of
thehighest order: they are not utilized for nor dedicated to commerce orbusiness purposes"The
provision for venue in the contract does not constitute a waiverof the State immunity from suit,
because the express waiver of thisimmunity can only be made by a statute.In Republic vs.
Purisima. 78 SCRA 470 474, the Supreme Court ruled:"Apparently respondent Judge was
misled by the terms of the contractbetween the private respondent, plaintiff in his sala, and
defendantRice and Com Administration which, according to him, anticipated thecase of a
breach of contract between the parties and the suits thatmay thereafter arise. The consent, to
be effective though, must comefrom the State acting through a duly enacted statute as pointed
outby Justice Bengzon in Mobil."
Topic: ADMINISTRATIVE RULINGS SUBJECT TO FINALDETERMINATION OF THE COURT
Andres Ang was born of a Chinese father and a Filipino mother inSorsogon, Sorsogon, on
January 20, 1973. In 1988, his father wasnaturalized as a Filipino citizen On May 11, 1998.
Andres Ang waselected Representative of the First District of Sorsogon. Juan Bontowho
received the second highest number of votes, filed a petition forQuo Warranto against Ang. The
petition was filed with the House ofRepresentative Electoral Tribunal (HRET). Bonto contends
that Ang isnot a natural born citizen of the Philippines and therefore isdisqual1fied to be a
member of the House.The HRET ruled in favor of Ang. Bonto filed a petition for certiorariin the
Supreme Court. The following issues are raised:1. Whether the case is justiciable considering
that Article VI.Section 17 of the Constitution declares the HRET to be the sole Judge-of all
contests relating to the election returns anddisqualifications of members of the House of
Representatives.2. Whether Ang is a natural born citizen of the Philippines.How should this
case be decided?
SUGGESTED ANSWER:
1. The case is justiciable. As stated in Lazatin vs.House ElectoralTribunal. 168 SCRA 391, 404,
since judicial power includes the dutyto determine whether or not there has been a grave abuse
ofdiscretion amounting to lack or excess of jurisdiction on the part ofany branch or
instrumentality of the Government, the Supreme Courthas the power to review the decisions of
the House of RepresentativesElectoral Tribunal in case of grave abuse of discretion on its
part.2. Andres Ang should be considered a natural born citizen of thePhilippines. He was born
of a Filipino mother on January 20, 1973.This was after the effectivity of the 1973 Constitution
on January17, 1973. Under Section (I), Article III of the 1973 Constitution,those whose fathers
or-mothers are citizens of the Philippines arecitizens of the Philippines. Andres Ang remained a
citizen of thePhilippines after the effectivity of the 1987 Constitution. Section 1. Article IVof the
1987 Constitution provides: "The following are citizens of thePhilippines: "(1) Those who are
citizens of the Philippines at the time of theadoption of this Constitution:"
TOPIC: SELF INCRIMINATION
Suppose Congress passed a law to implement the Constitutionalprinciple that a public office is a
public trust, by providing asfollows:"No employee of the Civil Service shall be excused from
attending andtestifying or from producing books, records, correspondence, documents orother
evidence in any administrative investigation concerning the office inwhich he is employed on the
ground that his testimony or the evidencerequired of him may tend to incriminate him or subject
him to a penalty orforfeiture: but his testimony or any evidence produced by him shall not
beused against him in criminal prosecution based on the transaction, matter orthing concerning
which is compelled, after invoking his privilege against self-incrimination to testify or produce
evidence. Provided, however, that suchindividual so testifying shall not be exempt from
prosecution and punishmentfor perjury committed in so testifying nor shall he be exempt from
demotionor removal from office. Any employee who refuses to testify or produce anydocuments
under this Act shall be dismissed from the service."Suppose further, that Ong, a member of the
Professional RegulatoryBoard, is required to answer questions in an investigation regardinga
LEAKAGE in a medical examination.1. Can Ong refuse to answer questions on the ground that
he wouldincriminate himself?2. Suppose he refuses to answer, and for that reason, is
dismissedfrom the service; can he pausibly argue that the Civil Commission hasinferred his guilt
from his refusal to answer in violation of theConstitution?3. Suppose on the other hand, he
answers the question and on thebasis of his answers, he is found guilty and is dismissed. Can
hepausibly assert that his dismissa1 is based on coerced confession?
SUGGESTED ANSWER:
1. No. Ong cannot refuse to answer the question on the ground that hewould incriminate
himself, since the Jaw grants him immunity andprohibits the use against him in a criminal
prosecution of thetestimony or evidence produced by him. As stated by the United
StatesSupreme Court in Brown vs. Walker, 161 U.S.591, 597, what theconstitutional prohibition
against self-incrimination seeks toprevent is the conviction of the witness on the basis of
testimonyelicited from him. The rule is satisfied when he is granted immunity.2. No Ong cannot
argue that the Civil Service Commission inferredhis guilt from his refusal to answer. Be was not
dismissed because ofhis involvement in the leakage in the medical examination but for
hisrefusal to answer. This is a violation of the law. He could becompelled to answer the question
on pain of being dismissed in caseof his refusal, because he was granted immunity.In Lefkowitz
vs. Turley, 414 U.S. 70,84, the United States SupremeCourt said: "Furthermore, the
accommodation between the interest of theState and the Fifth Amendment requires that the
State have means at itsdisposal to secure testimony if immunity is supplied and testimony isstill
refused. This is recognized by the power of courts to compeltestimony, after a grant of
immunity, by use of civil contempt andcoerced imprisonment. Shilitani vs. United States, 384 US
364, 16 LEd 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity theState may plainly
insist that employees either answer questions underoath about the performance of their job or
suffer the loss ofemployment."3. Yes, Ong can argue that his dismissal was based on
coercedconfession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the UnitedStates Supreme
Court held: "We now hold the protection of the individualunder the Fourteenth Amendment
against coerced statements prohibits usein subsequent criminal proceedings of statements
obtained under threat of removal from office, and that it extends to all, whether they are
policemen orother members of the body politic."
TOPIC: LIMITATIONS OF POWER
The police had suspicions that. Juan Samson, member of the subversiveNew-Proletarian Army,
was using the mail for propaganda purposes ingaining new adherents to its cause. The Chief of
Police ofBantolan., Lanao del Sur ordered the Postmaster of the town tointercept and open all
mail addressed to and coming from Juan Samsonin the interest of the national security. Was the
order of the Chiefof Police valid?
SUGGESTED ANSWER:
No, the order of the Chief of Police is not valid, because there isno law which authorizes him to
order the Postmaster to open theletters addressed to and coming from Juan Samson. An official
in theExecutive Department cannot interfere with the privacy ofcorrespondence and
communication in the absence of a law authorizinghim to do so or a lawful order of the
court.Section 3(1), Article III of the Constitution provides:"The privacy of communication and
correspondence shall be inviolableexcept upon lawful order of the court, or when public safety
or orderrequires otherwise as prescribed by law."
TOPIC: JURISDICITON
Suppose a Commissioner of the COMELEC is charged before theSandiganbayan for allegedly
tolerating violation of the election lawsagainst proliferation of prohibited billboards and
electionpropaganda with the end in view of removing him from office. Will theaction prosper?
SUGGESTED ANSWER:
No, the action will not prosper. Under Section 8 Article Xl of theConstitution. the
Commissioners of the Commission on Elections areremovable by impeachment. As held in the
case of In re Gonzales, 160SCRA 771,774-775, a public officer who is removable by
impeachmentcannot be charged before the Sandiganbayan with an offense whichcarries with it
the penalty of removal from office unless he is firstimpeached. Otherwise, he will be removed
from office by a methodother than impeachment.
TOPIC: SUPERVISION; COURT & ITS PERSONNEL
Pedro Masipag filed with the Ombudsman a complaint against RTC JudgeJose Palacpac with
violation of Article 204 of the Revised Penal Code forknowingly rendering an unjust judgment in
Criminal Case No. 617. JudgePalacpac filed a motion with the Ombudsman to refer the
complaint to theSupreme Court to determine whether an administrative aspect was involvedin
the said case. The Ombudsman denied the motion on the ground that noadministrative case
against Judge Palacpac relative to the decision inCriminal Case No. 617 was filed and pending
in his office.State with reasons whether the Ombudsman's ruling is correct.
SUGGESTED ANSWER:
The Ombudsman's ruling is not correct. Under Section 6, Article VIII of theConstitution, it is the
Supreme Court which is vested with exclusiveadministrative supervision over all courts and its
personnel. Prescinding fromthis premise, the Ombudsman cannot determine for itself and by
itselfwhether a criminal complaint against a judge, or court employee, involves anadministrative
matter. The Ombudsman is duty bound to have all casesagainst judges and court personnel
filed before it, referred to the SupremeCourt for determination as to whether an administrative
aspect is involvedtherein. (Judge Jose Caoibes v. Ombudsman, G.R. No. 132177,
July 19,2001)
TOPIC: ADMINISTRATIVE CODE
Are the government-owned or controlled corporations within the scopeand meaning of the
"Government of the Philippines"?
SUGGESTED ANSWER:
Section 2 of the Introductory Provisions of the Administrative Codeof 1987 defines the
government of the Philippines as the corporategovernmental entity through which the functions
of government areexercised throughout the Philippines, including, save as the contraryappears
from the context, the various arms through which politicalauthority is made effective in
the Philippines, whether pertaining tothe autonomous regions, the provincial, city, municipal or
barangaysubdivisions or other forms of local government.Government-owned or controlled
corporations are within the scope andmeaning of the Government of the Philippines if they are
performinggovernmental or political functions.
TOPIC: ADMINISTRATIVE CODE; FLAG CEREMONY
Section 28, Title VI, Chapter 9, of the Administrative Code of 1987requires all educational
institutions to observe a simple anddignified flag ceremony, including the playing or singing of
thePhilippine National Anthem, pursuant to rules to be promulgated bythe Secretary of
Education, Culture and Sports. The refusal of ateacher, student or pupil to attend or participate
in the flagceremony is a ground for dismissal after due investigation. The Secretary of
Education, Culture and Sports issued a memorandumimplementing said provision of law. As
ordered, the flag ceremonywould be held on Mondays at 7:30 a.m. during class days. A group
ofteachers, students and pupils requested the Secretary that they beexempted from attending
the flag ceremony on the ground thatattendance thereto was against their religious belief. The
Secretarydenied the request. The teachers, students and pupils concerned wentto the Court to
have the memorandum circular declared null and void.Decide the case.
SUGGESTED ANSWER:
The teachers and the students should be exempted from the flagceremony. As held in
Ebralinag vs. Division Superintendent of Schoolsof Cebu, 251 SCRA 569 , to compel them to
participate in the flagceremony will violate their freedom of religion. Freedom of religioncannot
be impaired except upon the showing of a clear and presentdanger of a substantive evil which
the State has a right to prevent.The refusal of the teachers and the students to participate in
theflag ceremony does not pose a clear and present danger.
TOPIC: ADMINISTRATIVE REMEDIES
1. Distinguish the doctrine of primary jurisdiction from thedoctrine of exhaustion of
administrative remedies.2. Does the failure to exhaust administrative remedies beforefiling a
case in court oust said court of jurisdiction to hear thecase? Explain.
SUGGESTED ANSWER:
1. The doctrine of primary jurisdiction and the doctrine ofexhaustion of administrative remedies
both deal with the properrelationships between the courts and administrative agencies.
Thedoctrine of exhaustion of administrative remedies applies where aclaim is cognizable in the
first instance by an administrative agencyalone. Judicial interference is withheld until the
administrativeprocess has been completed. As stated in Industrial Enterprises, Inc.vs. Court of
Appeals, 184 SCRA 426, the doctrine of primary jurisdiction applies where a case is within
the concurrent jurisdiction of the court and an administrative agency but thedetermination of the
case requires the technical expertise of theadministrative agency. In such a case, although the
matter is withinthe jurisdiction of the court, it must yield to the jurisdiction ofthe administrative
case.2. No, the failure to exhaust administrative remedies beforefiling a case in court does not
oust the court of jurisdiction tohear the case. As held in Rosario vs. Court of Appeals, 211
SCRA 384,the failure to exhaust administrative remedies does not affect the jurisdiction of the
court but results in the lack of a cause ofaction, because a condition precedent that must be
satisfied beforeaction can be filed was not fulfilled.
TOPIC: DUE PROCESS
What is the essence of due process in administrative proceedings? Explain.
SUGGESTED ANSWER:
In administrative proceedings, due process simply means an opportunity toseek a
reconsideration of the order complained of; it cannot be fully equatedto due process in its strict
jurisprudential sense. A respondent in anadministrative case is not entitled to be informed of the
preliminary findingsand recommendations; he is entitled only to a reasonable opportunity to
beheard, and to the administrative decision based on substantial evidence.(Vealasquez v. CA,
G.R. No. 150732, August 31, 2004, 437 SCRA 357).Note that it is the administrative order, not
the preliminary report, which is thebasis of any further remedies the losing party in an
administrative case maypursue. (Viva Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235,
April 27,2005).
TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY
The Municipality of Binangonan, Rizal passed a resolution authorizingthe operation of an open
garbage dumpsite in a 9-hectare land in theReyes Estate within the Municipality's territorial
limits. Some concernedresidents of Binangonan filed a complaint with the Laguna
LakeDevelopment Authority (LLDA) to stop the operation of the dumpsite due toits harmful
effects on the health of the residents.The LLDA conducted an on-site investigation, monitoring,
testing andwater sampling and found that the dumpsite would contaminate Lagunade Bay and
the surrounding areas of the Municipality. The LLDA alsodiscovered that no environmental
clearance was secured by theMunicipality from the Department of Environment and Natural
Resources(DENR) and the LLDA as required by law. The LLDA therefore issued tothe
Binangonan Municipal Government a cease and desist order to stopthe operation of the
dumpsite. The Municipality of Binangonan filed acase to annul the order issued by the LLDA.1.
Can the Municipality of Binangonan invoke police power toprevent its residents and the LLDA
from interfering with theoperation of the dumpsite by the Municipality? Explain.2. Can the LLDA
justify its order by asserting that the healthof the residents will be adversely affected? Explain.
SUGGESTED ANSWER:
1. No, the Municipality of Binangonan cannot invoke its policepower. According to Laguna Lake
Development Authority vs. Court of Appeals, 231 SCRA 292, under Republic Act No. 4850, the
LLDA ismandated to promote the development of the Laguna Lake area,including the
surrounding Province of Rizal, with due regard to theprevention of pollution. The LLDA is
mandated to pass upon andapprove or disapprove all projects proposed by local
governmentoffices within the region.2. Yes, the LLDA can justify its order. Since it has
beenauthorized by Executive Order No. 927 to make orders requiring thediscontinuance of
pollution, its power to issue the order can beinferred from this. Otherwise, it will be a toothless
agency.Moreover, the LLDA is specifically authorized under its Charter toissue cease and desist
orders.
TOPIC: ADMINISTRATIVE BODIES OR AGENCY
On July 1991, the Energy Regulatory Board (ERB), in response topublic clamor, issued a
resolution approving and adopting a schedulefor bringing down the prices of petroleum products
over a period ofone (1) year starting 15 August 1991, over the objection of the oilcompanies
which claim that the period covered is too long to prejudgeand foresee.Is the resolution valid?
SUGGESTED ANSWER:
No, the resolution is not valid, since the Energy Regulatory Boardissued the resolution without
a hearing. The resolution here is not aprovisional order and therefore it can only be issued after
appropriate
noticeand
hearing
to
affected
parties.
The ruling
in
Philippine
CommunicationsSatellite Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an
orderprovisionally reducing the rates which a public utility could charge, could beissued without
previous notice and hearing, cannot apply.
TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS
Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquinocreated the Presidential
Commission on Good Government (PCGG) andempowered it to sequester any property shown
prima facie to be ill-gotten wealth of the late President Marcos, his relatives andcronies.
Executive Order No. 14 vests on the Sandiganbayan jurisdiction to try hidden wealth cases. On
April 14, 1986, after aninvestigation, the PCGG sequestered the assets of X Corporation, Inc.(1)
X Corporation, Inc, claimed that President Aquino as President,could not lawfully issue
Executive Orders Nos. 1, 2, 14, which havethe force of law, on the ground that legislation is a
function ofCongress. Decide.(2) Said corporation also questioned the validity of the
threeexecutive orders on the ground that they are bills of attainder and,therefore,
unconstitutional. Decide
SUGGESTED ANSWER:
(1) The contention of X Corporation should be rejected. Executiveorders Nos. 1, 2 and 14 were
issued in 1986. At that time PresidentCorazon Aquino exercised legislative power Section 1,
Article II ofthe Provisional Constitution established by Proclamation No. 3,provided: "Until a
legislature is elected and convened under a newconstitution, the President shall continue to
exercise legislativepower."In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng
Pilipinas,Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that theProvisional Constitution
and the 1987 Constitution, both recognizedthe power of the President to exercise legislative
powers until thefirst Congress created under the 1987 Constitution was convened onJune 27,
1987.(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. Abill of attainder is a
legislative act which inflicts punishmentwithout trial. On the contrary, the expressly provide that
any judgment that the property sequestered is ill-gotten wealth is to bemade by a court (the
Sandiganbayan) only after trial.
TOPIC: CONTROL POWER
Does the President exercises the power of control over all executivedepartments and agencies,
including government-owned or controlledcorporations
SUGGESTED ANSWER: YES. The president exercises the power ofcontrol over all executive
departments and agencies, includinggovernment-owned or controlled corporations with or
without originalcharters. But the President does not have the power of control overLGUs (Cruz
vs. Secretary of Environment and Natural Resources, 347SCRA 128 [2000]; National Marketing
Corporation vs. Arca, 29 SCRA648 [1969]).
TOPIC: INTERNAL REVENUE ALLOTMENT FUND
The Provincial Governor of Bataan requested the Department of Budget andManagement
(DBM) to release its Internal Revenue Allocation (IRA) of P100million for the current
budget year. However, the General Appropriations Act provided that the IRA may be released
onIy if the province meets certainconditions as determined by an Oversight Council created by
the President.a. Is this requirement valid?b. The Provincial Governor is a party-mate of the
President. May theBataan Representative instead file a petition to compel the DBM torelease
the funds?
SUGGESTED ANSWER:
a. No, this requirement is not valid. Under the 1987 Constitution, it is provided that “local
government units shall have a just share, as determined by law, in the national taxes which shall
be automatically released to them.” As held in the case of Alternative Center for Organizational
Reforms and Development, et.al. v. Zamora, G.R. No.144256 (June 08, 2005), a basic feature
of local fiscal autonomy isthe automatic release of the shares of LGUs in the national
internalrevenue. The Local Government Code specifies further that therelease shall be made
directly to the LGU concerned within five (5) days after every quarter of the year and “shall not
be subject to any lien or holdback that may be imposed by the national government for
whatever purpose.”
b. Yes. A congressman from a particular LGU may validly havestanding to demand that IRA for
his province be released inaccordance with the Constitution and the Local Government
Code. As a representative of his province, he has a responsibility towardshis constituencies who
can expect no less than faithful compliancewith the Constitution. Moreover, the issue presented
could becharacterized as involving transcendental importance to the peopleand the local
government units which had been guaranteed greaterlocal autonomy.
TOPIC: OMBUDSMAN; POWER TO IMPOSE PENALTIES
Decisions of the Ombudsman imposing penalties in administrativedisciplinary cases are merely
recommendatory.
SUGGESTED ANSWER:
FALSE. Under Section 15(3) of theOmbudsman Act, the Ombudsman has the power to
ensurecompliance with the imposition of penalty on public officers it finds atfault by virtue of its
disciplinary authority (Office of the Ombudsmanvs. Madriaga, 503 SCRA 631 [2006]).
P U B L I C O F F I C E R S Q U E S T I O N S
TOPIC: DE FACTO OFFICER
A person who occupies an office that is defectively created is a de factoofficer.
SUGGESTED ANSWER: FALSE. A de facto officer occupies a validexisting office
however under a color of title of the office. For him to bea de facto officer, the office
must be validly created. (Tuanda vs.Sandiganbayan, 249 SCRA 342 [1995]).TOPIC: LAW ON
PUBLIC OFFICERS
A. After 2 February 1987, the Philippine National bank (PNB) grants aloan to congressman X.
Is the loan violative of the Constitution?Suppose the loan had instead been granted before 2
February 1987, butwas outstanding on that date with a remaining balance on theprincipal in the
amount of P50,000, can the PNB validly giveCongressman X an extension of time after said
date to settle theobligation?B. For being notoriously undesirable and recidivist, Jose Tapulan,
anemployee in the first level of the career service in the Office ofthe Provincial Governor of
Masbate, was dismissed by the Governorwithout formal investigation pursuant to Section 40
of the CivilService Decree (P.D. No. 807) which authorizes summary proceedings insuch
cases. As a lawyer of Jose what steps, if any, would you take to protect hisrights?
SUGGESTED ANSWER:
A. whether or not the loan is violative of the 1987 Constitutiondepends upon its purpose, if it
was obtained for a business purpose,it is violative of the Constitution. If it was obtained for
someother purpose, e.g. for housing, it is not violative of theConstitution because under Section
16, Article XI, Members ofCongress are prohibited from obtaining loans from governmentownedbanks only if it is for a business purpose.If the loan was granted before the effectivity of
the Constitution onFebruary 2, 1987, the Philippine National Bank cannot extend itsmaturity
after February 2, 1987, if the loan was obtained for abusiness purpose. In such case the
extension is a financialaccommodation which is also prohibited by the Constitution.B. Section 40
of the Civil Service Decree has been repealed byrepublic Act No. 6654. As a lawyer of Jose
Tapulan, I will file apetition for mandamus to compel his reinstatement. In accordance withthe
ruling in Mangubat vs. Osmeña, G.R. No. L-12837, April 30, 1959,there is no need to exhaust
all administrative remedies by appealingto Civil Service Commission, since the act of the
governor ispatently illegal.
TOPIC: LAW ON PUBLIC OFFICERS
An existing law grants government employees the option to retire uponreaching the age of 57
years and completion of at least 30 years oftotal, government service. As a fiscal retrenchment
measure, theOffice of the President later issued a Memorandum Circular requiringphysical
incapacity as an additional condition for optionalretirement age of 65 years. A government
employee, whose applicationfor optional retirement was denied because he was below 65 years
ofage and was not physically incapacitated, filed an action in courtquestioning the disapproval of
his application claiming that theMemorandum Circular is void. Is the contention of the
employeecorrect? Explain.
SUGGESTED ANSWER:
Yes, the contention of the employee is correct. In Marasigan vs.Cruz, it was held that such
memorandum circular is void. Byintroducing physical capacity as additional condition for
optionalretirement, the memorandum circular tried to amend the law. Suchpower is lodged with
the legislative branch and not with theexecutive branch.
TOPIC: LAW ON PUBLIC OFFICERS
In 1986, F, then the officer-in-charge of Botolan, Zambales, wasaccused of having violated the
ANTI-Graft and Corrupt Practices Actbefore the Sandigan Bayan. Before he could be arraigned,
he waselected Governor of Zambales. After his arraignment, he put underpreventive
suspension by the Sandiganbayan " for the duration of thetrial".(1) Can F successfully challenge
the legality of his preventivesuspension on the ground that the criminal case against him
involvedacts committed during his term as officer-in-charge and not duringhis term
as Governor?(2) Can F validly object to the aforestated duration of hissuspension?
SUGGESTED ANSWER:
(1) No, F cannot successfully challenge the legality of hispreventive suspension on the ground
that the criminal case againsthim involve acts committed during his term as OIC and not during
histerm as governor because suspension from office under Republic Act3019 refers to any
office that the respondent is presently holdingand not necessarily to the one which he hold when
he committed thecrime with which he is charged. This was the ruling in Deloso
vs.Sandiganbayan, 173 SCRA 409(2) Yes, F Can validly object to the duration of the
suspension. InDeloso vs. Sandiganbayan, 173 SCRA 409, it was held that theimposition of
preventive suspension for an indefinite period of timeis unreasonable and violates the right of
the accused to due process.The people who elected the governor to office would be deprived
ofhis services for an indefinite period, and his right to hold officewould be nullified. Moreover,
since under Section 42 of the CivilService Decree the duration of preventive suspension should
belimited to ninety (90) days, equal protection demands that theduration of preventive
suspension under the Anti-Graft and CorruptPractices Act be also limited to ninety (90) days
only.
TOPIC: FREEDOM OF RELIGION; BENEVOLENT NEUTRALITY TEST
Angelina, a married woman, is a Division Chief in the Department of Scienceand Technology.
She had been living with a married man, not her husband,for the last fifteen (15) years.
Administratively charged with immorality andconduct prejudicial to the best interest of the
service, she admits her live-inarrangement, but maintains that this conjugal understanding is in
conformitywith their religious beliefs. As members of the religious sect,
Yahweh'sObservers
, they had executed a Declaration of Pledging Faithfulness whichhas been confirmed and
blessed by their Council of Elders. At the formalinvestigation of the administrative case, the
Grand Elder of the sect affirmed Angelina's testimony and attested to the sincerity of Angelina
and her partnerin the profession of their faith. If you were to judge this case, will youexonerate
Angelina? Reasons.
SUGGESTED ANSWER:
Yes. (Estrada vs Escritor, August, 4, 2003 andJune 22, 2006)
–
Right to freedom of religion must prevail. Benevolentneutrality recognizes that government
must pursue its secular goals andinterests, but at the same time, strive to uphold religious
liberty to thegreatest extent possible within flexible constitutional limits. Although themorality
contemplated by laws is secular, benevolent neutrality could allowfor accommodation of morality
based on religion, provided it does not offendcompelling state interest. Benevolent neutrality
approach requires that thecourt make an individual determination and not dismiss the claim
outright.
TOPIC: DISCIPLINE; PREVENTIVE SUSPENSION
Maximino, an employee of the Department of Education, is administrativelycharged with
dishonesty and gross misconduct. During the formalinvestigation of the charges, the Secretary
of Education preventivelysuspended him for a period of sixty (60) days. On the 60th day of
thepreventive suspension, the Secretary rendered a verdict, finding Maximinoguilty, and ordered
his immediate dismissal from the service.Maximino appealed to the Civil Service Commission
(CSC), which affirmedthe Secretary's decision. Maximino then elevated the matter to the Court
of Appeals (CA). The CA reversed the CSC decision, exonerating Maximino.The Secretary of
Education then petitions the Supreme Court (SC) for thereview of the CA decision.a. Is the
Secretary of Education a proper party to seek the review of theCA decision exonerating
Maximino? Reasons.b. If the SC affirms the CA decision, is Maximino entitled to recoverback
salaries corresponding to the entire period he was out of theservice? Explain your answer.
SUGGESTED ANSWER:
a. The Secretary of Education is not the proper party to seek review ofthe decision of the Court
of Appeals, because he is the one whoheard the case and imposed the penalty. Being
the disciplinaryauthority, the Secretary of Education should be impartial and shouldnot actively
participate in prosecuting Maximino (National AppellateBoard of the National Police
Commission vs. Mamauag, 446 SCRA624 [2005]).b. As a general rule, Maximo is not entitled to
recover back salariescorresponding to the entire period he was out of the service becauseof the
NO WORK NO PAY RULE. But if it is found that he is illegallydismissed or suspended he is
entitled to back wages and othermonetary benefits from the time of his illegal dismissal or
suspensionup to his reinstatement.
ALTERNATIVE ANSWER:
Maximo cannot recover back salariesduring his preventive suspension. The law does
not provide for it.Preventive suspension is not a penalty. During the preventivesuspension, he
was not yet out of service. However, he is entitled toback wages from the time of his dismissal
until his reinstatement.The enforcement of the dismissal pending appeal was punitive, andhe
was exonerated (Gloria vs. Court of Appeals, 306 SCRA 287[1999]). Impeachment; Grounds
(2013)
TOPIC: VACANCY; SANGGUNIANG PANLALAWIGAN
On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesarsucceeded him by
operation of law. Accordingly, Benito, the highest rankingmember of the Sangguniang
Panlalawigan was elevated to the position ofVice-Governor. By the elevation of Benito to the
office of Vice-Governor, avacancy in the Sangguniang Panlalawigan was created.How should
the vacancy be filed?
SUGGESTED ANSWER:
The vacancy shall be filled in the following manner:1. If Benito is affiliated with a political party,
the vacancy in the SangguiniangPanlalawigan shall be filled by a nomination and certificate of
membership ofthe appointee from the highest official of the political party. (must be filledwith
someone who belongs to the political party to maintain the partyrepresentation as willed by the
people in the election).2. If Benito is not affiliated with a political party, the vacancy shallbe filled
by the PRESIDENT through the executive secretary. (sec. 44-46, RA7160)
TOPIC: LAW OF PUBLIC OFFICERS; NEXT-IN-RANK RULE
No. 15 Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacantposition, the City
Mayor appointed Jose Reyes, a civil engineer who formerlyworked under Cruz but had been
assigned to the Office of the Mayor for thepast five years.Vicente Estrada, the Assistant City
Engineer filed a protest with the CivilService Commission claiming that being the officer next
in rank he shouldhave been appointed as City Engineer.1) Who has a better right to be
appointed to the contested position?
SUGGESTED ANSWER:
1) On the assumption that Jose Reyes possesses the minimum qualificationrequirements
prescribed by law for the position, the appointment extended tohim is valid. Consequently, he
has a better right than Vicente Estrada. Theclaim of Estrada that being the officer next in rank
he should have beenappointed as City Engineer is not meritorious. It is a settled rule that
theappointing authority is not limited to promotion in filling up vacancies but maychoose to fill
them by the appointment of persons with civil service eligibilityappropriate to the position. Even
if a vacancy were to be filled by promotion,the concept of "next in rank" does not import any
mandatory requirement thatthe person next in rank must be appointed to the vacancy. What
the civilservice law provides is that if a vacancy is filled by promotion, the personholding the
position next in rank thereto "shall be considered for promotion."Espanol v. Civil Service
Commission 206 SCRA 715.
E L E C T I O N
L A W
Q U E S T I O N S
TOPIC: ELECTION LAW; SECOND PLACER
Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,Benguet for the May
2004 elections. Thomas Palileng, another candidate forMayor filed a petition to annul/nullify his
certificate of candidacy and/or todisqualify on the ground that Cayat has been convicted of
a crime involving
moral turpitude. Twenty three days before the election, Cayat’s
disqualification became final and executory. He, however won and wasproclaimed and assumed
office. Palileng filed an electoral protest contendingthat Cayat was ineligible to run for mayor.
The Vice-Mayor intervened andcontended that he should succeed Cayat in case he is
disqualified becausePalileng was only a second placer, hence, he cannot be declared as
thewinner. Is the contention of the Vice-Mayor correct? Why?
SUGGESTED ANSWER:
No, because there was no second placer, hence, Palileng should beproclaimed as the winner
on the following grounds:
First, the COMELEC’s Resolution of 12 April 2004 cancelling Cayat’s
certificate of candidacy due to disqualification became final and executory on17 April 2004 when
Cayat failed to pay the prescribed filing fee. Thus,Palileng was the only candidate for Mayor of
Buguias, Benguet in the 10 May2004 elections. Twenty-three days before the election day,
Cayat wasalready disqualified by final judgment to run for Mayor in the 10 May 2004elections.
As the only candidate, Palileng was not a second placer. On thecontrary, Palileng was the sole
and only placer, second to none. The doctrineon the rejection of the second placer, which
triggers the rule on succession,does not apply in the present case because Palileng is not a
second-placer
but the only placer. Consequently, Palileng’s proclamation as Mayor of
Buguias, Benguet is beyond question.Second, there are specific requirements for
the application of the doctrine on
the rejection of the second placer. The doctrine will apply in Bayacsan’s
favor, regardless of his intervention in the present case, if two conditionsconc
ur: (1) the decision on Cayat’s disqualification remained pending on
election day, 10 May 2004, resulting in the presence of two mayoraltycandidates for Buguias,
Benguet in the elections; and (2) the decision on
Cayat’s disqualification became final only
after the elections. (Cayat v.COMELEC, April 27, 2007).
QUESTION:
It was contended that the doctrine of rejection of the secondplacer laid down in Labo v.
COMELEC should apply. Is the contentioncorrect? Why?
SUGGESTED ANSWER:
No. Labo, Jr. v. COMELEC, which enunciates thedoctrine on the rejection of the second placer,
does not apply because inLabo there was no final judgment of disqualification before the
elections. Thedoctrine on the rejection of the second placer was applied in Labo and a hostof
other cases because the judgment declaring the candidate’s
disqualification in Labo and the other cases had not become final before theelections. Labo and
other cases applying the doctrine on the rejection of thesecond placer have one common
essential condition
–
the disqualification ofthe candidate had not become final before the elections. This
essentialcondition does not exist in the present case. (Cayat v. COMELEC).
In Labo, Labo’s disqualification became final only on 14 May 1992, three
days after the 11 May 1992 elections. On election day itself, Labo was stilllegally a candidate. In
the case of Cayat he was disqualified by final judgment 23 days before the 10 May 2004
elections. On election day, Cayatwas no longer legally a candidate for mayor.
In short, Cayat’s candidacy for
Mayor was legally non-existent in the 10 May 2004 elections.
QUESTION:
What is the effect if a candidate is disqualified by final judgment? Explain.
SUGGESTED ANSWER
: The law expressly declares that a candidatedisqualified by final judgment before an election
cannot be voted for, andvotes cast for him shall not be counted. This is a mandatory provision of
law.Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987,states: Any
candidate who has been declared by final judgment to be disqualifiedshall not be voted for, and
the votes cast for him shall not be counted. If forany reason a candidate is not declared by final
judgment before an electionto be disqualified and he is voted for and receives the winning
number ofvotes in such election, the Court or Commission shall continue with the trialand
hearing of the action, inquiry, or protest and, upon motion of thecomplainant or any intervenor,
may during the pendency thereof order thesuspension of the proclamation of such candidate
whenever the evidence ofhis guilt is strong.Section 6 of the Electoral Reforms Law of 1987
covers two situations. Thefirst is when the disqualification becomes final before the elections,
which isthe situation covered in the first sentence of Section 6. The second is whenthe
disqualification becomes final after the elections, which is the situationcovered in the second
sentence of Section 6.The present case falls under the first situation. Section 6 of the
ElectoralReforms Law governing the first situation is categorical: a candidatedisqualified by final
judgment before an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayatbecame final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8, 164 votes cast in Cayat’s favor are stray. Cayat wasnever a candidate in
the 10 May 2004 elections. Palileng’s proclamation is proper because he was the sole and only
candidate, second to none. (Cayatv. COMELEC).
QUESTION:
Why is the proclamation of Cayat void? Explain.
SUGGESTED ANSWER:
Cayat’s proclamation is void because the decision
disqualifying him had already become final on 17 April 2004. There is nolonger any need to
ascertain whether there was actual knowledge by thevoters of his disqualification when they
casted their votes on election day
because the law mandates that Cayat’s votes “shall not be counted”. There is
no disenfranchisement of the voters. Rather, the voters are deemed by law tohave deliberately
voted for a non-candidate, and thus their votes are stray
and “shall not be counted”. (Cayat. v. COMELEC).
QUESTION:
Is the intervention of the Vice-Mayor proper? Why?
SUGGESTED ANSWER
: No. The petition-in-intervention should be rejectedbecause the doctrine on the rejection of the
second placer does not apply to
this case. The doctrine applies only if the winning candidate’s disqualification
has not yet become final and executory before the election. In this case, thedisqualification was
final and executory before the election, hence, there wasno second placer. (Cayat v.
COMELEC).
TOPIC: SECOND PLACER
It was contended that since Morales was disqualified, the second placershould be proclaimed
as the winner. Is the contention correct? Why?
SUGGESTED ANSWER:
In Labo v. COMELEC, the Court has ruled that asecond place candidate cannot be proclaimed
as a substitute winner.The rule is that, the ineligibility of a candidate receiving majority votes
doesnot entitle the eligible candidate receiving the next highest number of votes tobe declared
elected. A minority or defeated candidate cannot be deemedelected to the office. As a
consequence of ineligibility, a permanent vacancy in the contestedoffice has occurred. This
should now be filled by the vice-mayor inaccordance with Sec. 44 of the Local Government
Code. (Rivera III, et al. v.COMELEC, et al., G.R. No. 167591, May 9, 2007 citing Labo v.
COMELEC,G.R. No. 105111, July 3, 1992, 211 SCRA 297).
TOPIC: THREE TERM LIMIT; EVEN AS CARETAKER
QUESTION:
Mayor Marino Morales ran for a fourth term despite havingserved for three (3) consecutive
terms as Mayor of Mabalacat, Pampanga. Inanswer to a petition to cancel his certificate of
candidacy, he alleged thatwhile he served
his second term, he did it as a “caretaker of the office” or asa “de facto officer” because he was
suspended by the Ombudsman from
January 16, 1999 to July 15, 1999 and that his proclamation was declaredvoid and which
became final and executory on August 6, 2001. TheCOMELEC declared him disqualified.
Before the Supreme Court, hecontended that his second term from July 1, 1999 to June 30,
2001 may notbe counted since his proclamation was void. Is the contention correct? Why?
SUGGESTED ANSWER:
No, because his service from July 1, 1999 to June30, 2001 was for a full term, hence, the
three-term limit rule applies to him.This is especially so that he assumed office. He served as
mayor up to June30, 2001. He was mayor for the entire period notwithstanding the decision
inthe electoral protest case ousting him as mayor. As held in Ong v. Alegre,G.R. Nos. 162395
and 163354, January 23, 2006, 479 SCRA 473, suchcircumstance does not constitute an
interruption in serving the full term. InOng, he served the full term even as there was a
declaration of failure ofelection.Section 8, Article X of the Constitution provides that the terms of
the office ofelected local officials x x x, shall be three years and no such official shallserve for
more than three consecutive terms. x x xSection 43(b) of R.A. No. 7160 (the Local Government
Code) clearlyprovides that no local official shall serve for more than three consecutiveterms in
the same position.Morales has been mayor of Mabalacat continuously without any break
sinceJuly 1, 1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R.No. 167591
and Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).
QUESTION:
Explain the reason for the maximum term limit.
SUGGESTED ANSWER:
The framers of the Constitution wanted to establishsome safeguards against the excessive
accumulation of power as a result ofconsecutive terms. As held in Latasa v. COMELEC, G.R.
No. 154829, December 10, 2003, 417SCRA 601, the three-term limit is an exception to the
peop
le’s freedom to
choose those who will govern them in order to avoid the evil of a singleperson accumulating
excessive power over a particular territorial jurisdictionas a result of a prolonged stay in the
same office. (Rivera III, et al. v COMELEC, et al., G.R. No. 167591 and companion case, May 9, 2007).
QUESTION:
Is not the case of Morales similar to the case of Lonzanida vCOMELEC? Explain.
SUGGESTED ANSWER:
No. In Lonzanida v. COMELEC, while he assumedoffice, he voluntarily vacated when there
was a declaration of failure ofelection. He did not fully serve the term, hence, he was qualified to
run for athird term.The difference between the case at bench and Lonzanida is at onceapparent.
For one, in Lonzanida, the result of the mayoralty elections was
declared a nullity for the stated reason of “failure of election”, and, as a
consequence thereof, the proclamation of Lonzanida as mayor-elect wasnullified, followed by an
order for him to vacate the office of the mayor. Foranother, Lonzanida did not fully serve
the 1995-1998 mayoral term, therebeing an involuntary severance from office as a result of
legal processes. Infine, there was an effective interruption of the continuity of service.On the
other hand, the failure-of-election factor does not obtain in the presentcase. But more
importantly, here, there was actually no interruption or break
in the continuity of Francis’ service respecting the 1998
-2001 term. UnlikeLonzanida, Francis was never unseated during the term in question; henever
ceased discharging his duties and responsibilities as mayor of SanVicente, Camarines Norte for
the entire period covering the 1998-2001 term.Instead, Ong v. Alegre applies to Morales.
Francis Ong was elected andassumed the duties of the mayor of San Vicente, Camarines Norte
for threeconsecutive terms. But his proclamation as mayor in the May 1998 electionwas
declared void. As ruled, his service for the term 1998 to 2001 is for thefull term. Clearly, the
three-term limit rule applies to him. There is no reasonwhy this ruling should not also apply to
Morales who is similarly situated.(Rivera III, et al. v. COMELEC, et al., May 9, 2007).
QUESTION:
What are the requirements which must concur for the three-term limit to apply?
SUGGESTED ANSWER:
For the three-term limit to apply, the following twoconditions must concur:1) that the official
concerned has been elected for three consecutive terms inthe same local government post;
and2) that he has fully served three consecutive terms. (Lonzanida v.COMELEC, G.R. No.
133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473; Adormeo v.
COMELEC, 376 SCRA 90; Rivera III, etal. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).
TOPIC: ASSUMPTION OF OFFICE; TERM
Morales cited Borja v. COMELEC to apply to him. Is this case applicable?Why?
SUGGESTED ANSWER:
No, because with the death of Mayor Cruz, Capcoassumed office as mayor by virtue of the
principle of succession, he beingthe vice-mayor. He was not therefore, elected even if he served
the rest ofthe term of the mayor, hence, his assumption of the office of the mayor uponthe death
of the incumbent mayor may not be regarded as a term.Similarly, in Adormeo v. COMELEC,
G.R. No. 147927, February 4, 2002, 376SCRA 90, it was held that assumption of the office of
mayor in a recall
election for the remaining term is not the “term” contemplated under Section
8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local
Government Code). There was a “break” in the service of the mayor. H
e was
a “private citizen” for a time before running for mayor in the recall elections.
(Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).
TOPIC: VACANCY; SUCCESSION; RECALL
Governor Diy was serving his third term when he lost his governorship in arecall election.(a)
Who shall succeed Governor Diy in his office as Governor?
SUGGESTED ANSWER:
The candidate who received the highest number of votes in the recallwill succeed Governor Diy
(Section 72 of the Local Government Code).
(b) Can Governor Diy run again as governor in the next election?
SUGGESTED ANSWER:
Yes, because recall election is aninterruption of the consecutiveness of the term of office it
cannot becounted. A recall election is a mid-way election and the term is notcompleted when
one is conducted. The third term of Governor Diyshould not be included in computing the
the=ree-term limit.(Lonzanida vs. Commission on Elections, 311 SCRA 602 [1999]).(c) Can
Governor Diy refuse to run in the recall election and insteadresign from his position as
governor?
SUGGESTED ANSWER:
Governor Diy cannot refuse to run in therecall election. He is automatically considered as a duly
registeredcandidate. (Section 71, Local Government Code).
ALTERNATIVE ANSWER:
YES, Governor Diy is not compelled to runin a recall election. Recall election is called because
the electorate haslost confidence to the elective official. He may instead resign from hisposition.
TOPIC: EFFECT OF CANCELLED CERTIFICATE OF CANDIDACY
What is the effect if the certificate of candidacy of a candidate is cancelled?Explain.
SUGGESTED ANSWER:
Any candidate who has been declared by final judgment to be disqualifiedshall not be voted for,
and the votes cast for him shall not be counted. (Secs.6 and 7, RA 6646). Any vote in favor of a
person who has not filed a certificate of candidacy or infavor of a candidate for an office for
which he did not present himself shall beconsidered as a stray vote but it shall not invalidate the
whole ballot. (Sec.211, Omnibus Election Code)Morales can not be considered a candidate in
the May 2004 elections. Notbeing a candidate, the votes cast for him should not be counted and
must beconsidered stray votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591,May 9, 2007).
TOPIC: EFFECT OF A TIE
What is the proper procedure to be resorted to in case of a tie? Explain.
SUGGESTED ANSWER:
To resolve the tie, there shall be drawing of lots.Whenever it shall appear from the canvass that
two or more candidates havereceived an equal and highest number of votes, or in cases where
two ormore candidates are to be elected for the same position and two or morecandidates
received the same number of votes for the last place in thenumber to be elected, the board of
canvassers, after recording this fact in itsminutes, shall by resolution, upon five days notice to all
the tied candidates,hold a special public meeting at which the board of canvassers shall
proceedto the drawing of lots of the candidates who have tied and shall proclaim aselected the
candidates who may favored by luck, and the candidates soproclaimed shall have the right to
assume office in the same manner as if hehad been elected by plurality of votes. The board
of canvassers shallforthwith make a certificate stating the name of the candidate who
had beenfavored by luck and his proclamation on the basis thereof.Nothing in this section shall
be construed as depriving a candidate of his rightto contest the election. (Sec. 240, BP 881;
Tugade v. COMELEC, et al., G.R.No. 171063, March 2, 2007).
TOPIC: EFFECT OF WITHDRAWAL OF CERTIFICATE OF CANDIDACY
Hans Roger filed his certificate of candidacy but withdrew the same. He wassubstituted by Joy
Luna but the COMELEC denied due course to hercertificate on the ground that Hans being
under age, he could not have filed avalid certificate of candidacy. There was, however,
no petition to deny Hanscertificate of candidacy. Did the COMELEC act correctly? Why?
SUGGESTED ANSWER:
No. The COMELEC acted with grave abuse ofdiscretion amounting to lack or excess
of jurisdiction in declaring that HansRoger, being under age, could not be considered to have
filed a validcertificate of candidacy and, thus, could not be validly substituted by Luna.The
COMELEC may not, by itself, without the proper proceedings, deny duecourse to or cancel a
certificate of candidacy filed in due form. (Cipriano v.COMELEC, G.R. No. 158830, August 10,
2004, 436 SCRA 45). In Sanchezv. Del Rosario, the Court ruled that the question of eligibility or
ineligibility ofa candidate for non-age is beyond the usual and proper cognizance of
theCOMELEC.If Hans Roger made a material misrepresentation as to his date of birth orage in
his certificate of candidacy, his eligibility may only be impugnedthrough a verified petition to
deny due course to or cancel such certificate ofcandidacy under Section 78 of the Election
Code.In this case, there was no petition to deny due court to or cancel thecertificate of
candidacy of Hans Roger. The COMELEC only declared thatHans Roger did not file a valid
certificate of candidacy and, thus, was not a
valid candidate in the petition to deny due course to or cancel Luna’s
certificate of candidacy. In effect, the COMELEC, without the proper
proceedings, cancelled Hans Roger’s certificate of candidacy and declared
the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983, April 24, 2007).
TOPIC: PRE-PROCLAMATION CONTESTS
The 1st Legislative District of South Cotabato is composed of GeneralSantos and
three municipalities including Polomolok. During the canvassingproceedings before the District
Board of Canvassers in connection with the2007 congressional election, candidate MP objected
to the certificate pfcanvass for Polomolok on the ground that it was obviously
manufactured,submitting as evidence the affidavit of a mayoralty candidate of Polomolok.The
certificate of canvass for General Santos was likewise objected to by MPon the basis of the
confirmed report of the local NAMFREL that 10 electionreturns from non-existent precincts were
included in the certificate. MPmoved that the certificate of canvass for General Santos be
corrected toexclude the the result from the non-existent precincts. The District Board of
Canvassers denied both objections and ruled to include the certificate ofcanvass. May MP
appeal the rulings to the COMELEC? Explain.
SUGGESTED ANSWER:
NO. COMELEC’s Jurisdiction over pre
-proclamation cases pertains only toelections of regional, provincial and city officials. (Sec. 15,
RA 7166)
–
Nopre-proclamation cases in election of national officials. For purposes of theelections for
President, V-President, Senator and Member of the House ofRepresentatives, no preproclamation cases shall be allowed on mattersrelating to the preparation, transmission, receipt,
custody and appreciation ofthe election returns or the certificates of canvass, as the case may
be.
TOPIC: PRE-PROCLAMATION CONTROVERSIES; EXTENT OF
COMELEC’S POWER
What is the extent of the power of the COMELEC in pre-proclamationcontroversy? Explain.
SUGGESTED ANSWER:
It is a well-established rule in pre-proclamationcases that the Board of Canvassers is without
jurisdiction to go beyond whatappears on the face of the election return. The rationale is that
a fullreception of evidence aliunde and the meticulous examination of voluminouselection
documents would run counter to the summary nature of a pre-proclamation controversy.
However, this rule is not without any exception. InLee v. Commission on Elections, it was held
that if there is a prima facieshowing that the return is not genuine, several entries having been
omitted inthe questioned election return, the doctrine does not apply. The COMELECis thus not
powerless to determine if there is basis for the exclusion of thequestioned returns. (G.R. No.
157004, July 4, 2003, 405 SCRA 303; Ewoc,et al. v. COMELEC, et al., G.R. No. 171882, April
3, 2007).
TOPIC: INVALIDATION OF BALLOTS; SAME GENERAL APPEARANCEAND PICTORIAL EFFECT
May the COMELEC invalidate certain ballots merely on a finding that thewritings have the same
general appearance and pictorial effect? Explain.
SUGGESTED ANSWER:
No. General resemblance is not enough to warrantthe conclusion that two writings are by the
same hand. (Silverio v. Clamor,125 Phil. 917 (1967)).In order to reach the conclusion that two
writings are by the same hand theremust not only be present class characteristics but also
individualcharacter
istics or ‘dents and scratches’ in sufficient quantity to exclude the
theory of accidental coincidence; to reach the conclusion that writings are bydifferent hands we
may find numerous likeness in class characteristics butdivergences in individual characteristics,
or we may find divergences in both,but the divergence must be something more than mere
superficial
differences. (Osborn’s Questioned Documents, p. 244; Delos Reyes v.
COMELEC, et al., G.R. No. 170070, February 28, 2007).
TOPIC: NEIGHBORHOOD RULE
What is the “neighborhood rule”? Explain.
SUGGESTED ANSWER:
The votes contested in this appeal are all misplaced votes, i.e., votes cast fora candidate for
the wrong or inexistent office. In appreciating such votes, the
COMELEC may applied the “neighborhood rule.” As used by the Court, this
nomenclature, loosely based on a rule of the same name devised by theHouse of
Representatives Electoral Tribunal (HRET) in Nograles v. Dureza,HRET Case No. 34, June 16,
1989, 1 HRET Rep. 138), refers to anexception to the rule on appreciation of misplaced votes
under Section211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) whichprovides:
“Any vote in favor of a person who has not filed a certificate of candidacy or
in favor of a candidate for an office for which he did not present himself shall
be considered as a stray vote but it shall not invalidate the whole ballot.”
Section 211(19) is meant to avoid confusion in the minds of the electionofficials as to the
candidates actually voted for and to stave off any schemingdesign to identify the vote of the
elector, thus defeating the secrecy of theballot which is a cardinal feature of our election laws.
(Amurao v. Calangi, 10Phil. 347 (1958)). Section 211(19) also enforces Section 195 of the
OmnibusEle
ction Code which provides that in preparing the ballot, each voter must “fill
his ballot by writing in the proper place for each office the name of the
individual candidate for whom he desires to vote.”
Excepted from Section 211(19) are ballots with:(1) a general misplacement of an entire series
of names intended tobe voted for the successive offices appearing in the ballot (Corderov. Hon.
Moscardon, 217 Phil. 392 (1984));(2) a single (Farin v. Gonzales, 152 Phil. 598 (1973))
or double(Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438)misplacement of
names where such names were preceded orfollowed by the title of the contested office or where
the voter wrote
after the candidate’s name a directional symbol indicating the correct
office for which the misplaced name was intended (Moya v. DelFierro, 69 Phil. 199 (1939));
and(3) a single misplacement of a name written(a) off-center from the designated space
(Mandac v.Samonte, 54 Phil. 706 (1930)),
(b) slightly underneath the line for the contested office(Sarmiento v. Quemado, No. L-18027, 29
June 1962, 5SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)),(c) immediately above the title
for the contested office((Villavert v. Fornier, 84 Phil. 756 (1949)), or(d) in the space for an office
immediately following that forwhich the candidate presented himself. ((Abad v. Co, G.R.No.
167438, 25 July 2006, 496 SCRA 505 and Ferrer v.Commission on Elections, 386 Phil. 431
(2000)).In these instances, the misplaced votes are nevertheless credited to thecandidates for
the office for which they presented themselves because the
voters’ intention to so vote is clear from the face of the ballots. This is in
consonance with the settled doctrine that ballots should be appreciated with
liberality to give effect to the voters’ will. (Velasco v. COMELEC, et al., G.R.
No. 166931, February 22, 2007).
TOPIC: MARKED BALLOT
When is a ballot considered as marked? Explain.
SUGGESTED ANSWER:
In order for a ballot to be considered marked, inthe sense necessary to invalidate it, it must
appear that the voter designedlyplace some superfluous sign or mark on the ballot which might
serve toidentify it thereafter. No ballot should be discarded as a marked ballot unlessits
character as such is unmistakable. The distinguishing mark which the lawforbids to be placed
on the ballot is that which the elector may have placedwith the intention of facilitating the
means of identifying said ballot, for thepurpose of defeating the secrecy of suffrage which the
law establishes. Thus,marked ballots are ballots containing distinguishing marks, the purpose
ofwhich is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010,February 8, 2007,
Tinga, J).
TOPIC: FAILURE OF ELECTION
When is there failure of election?
SUGGESTED ANSWER:
There are three instances where a failure ofelections may be declared, thus:(a) the election in
any polling place has not been held on the date fixedon account of force majeure, violence,
terrorism, fraud or otheranalogous causes;(b) the election in any polling place has been
suspended before thehour fixed by law for the closing of the voting on account of forcemajeure,
violence, terrorism, fraud or other analogous causes; or(c) after the voting and during the
preparation and transmission ofthe election returns or in the custody or canvass thereof,
suchelection results in a failure to elect on account of force majeure,violence, terrorism, fraud or
other analogous causes.In all three instances, there is a resulting failure to elect. In the
firstinstance, the election has not been held. In the second instance, theelection has been
suspended. In the third instance, the preparationand the transmission of the election returns
give rise to theconsequent failure to elect; the third instance is interpreted to meanthat nobody
emerged as a winner. (Mutilan v. COMELEC, et al., G.R.No. 171248, April 2, 2007).
TOPIC: CERTIORARI OF INTERLOCUTORY ORDER OF A COMELECDIVISION
May an interlocutory order of a COMELEC Division be the subject ofcertiorari to the SC?
Explain.
SUGGESTED ANSWER:
As a rule, No. The exception is in an unusual casewhere the petition for certiorari questioning
the interlocutory order of aCOMELEC Division was pending before the SC, the main case which
wasmeanwhile decided by the COMELEC En Banc was likewise elevated to theCourt. Thus,
there was a situation where the petition for certiorari questioningthe interlocutory orders of
the COMELEC Division and the petition forcertiorari and prohibition assailing the Resolution of
the COMELEC En Bancon the main case were consolidated. The issues raised in the petition
forcertiorari were also raised in the main case and therefore there was actuallyno need to
resolve the petition assailing the interlocutory orders. (Rosal v.COMELEC, G.R. No. 168253 and
172741, March 16, 2007; Soriano, Jr., etal. v. COMELEC, et al., G.R. No. 164496-505, April 2,
2007).Note:Thus, in general, interlocutory orders of a COMELEC Division are notappealable,
nor can they be proper subject of a petition for certiorari. To ruleotherwise would not only delay
the disposition of cases but would alsounnecessarily clog the Court docket and unduly
burden the Court. This doesnot mean that the aggrieved party is without recourse if a
COMELEC Divisiondenies the motion for reconsideration. The aggrieved party can still assign
aserror the interlocutory order if in the course of the proceedings he decides toappeal the main
case to the COMELEC En Banc. The exception enunciatedin Kho and Repol is when the
interlocutory order of a COMELEC Division is apatent nullity because of absence of jurisdiction
to issue the interlocutoryorder, as where a COMELEC Division issued a temporary restraining
orderwithout a time limit, which is the Repol case, or where a COMELEC Division admitted an
answer with counter-protest which was filed beyond thereglementary period, which is the Kho case. The
Court has already ruled in Reyes v. RTC of Oriental Mindoro, that “it is the decision, order or
ruling of the COMELEC En Banc that, in accordancewith Section 7, Art. IX-A of the Constitution,
may be brought to the Supreme Court on certiorari.” The exception provided in Kho and Repol
is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory ordersof
the COMELEC First Division in this case are not a patent nullity. Theassailed orders in this case
involve the interpretation of the COMELEC Rulesof Procedure. Neither will the Rosal case apply
because in that case thepetition for certiorari questioning the interlocutory orders of the
COMELECSecond Division and the petition for certiorari and prohibition assailing theResolution
of the COMELEC En Banc on the main case were alreadyconsolidated.The Court also notes
that the COMELEC First Division has already issued anOrder dated 31 May 2005 dismissing
the protests and counter-protests inEPC Nos. 2004-36, 2004-37, 2004-38, 2004-39, 2004-40,
2004-41, 2004-42,2004-43, 2004-44, and 2004-45 for failure of the protestants and protesteesto
pay the required cash deposits. Thus, the Court have this peculiarsituation where the
interlocutory order of the COMELEC First Division ispending before the Court but the main case
has already been dismissed bythe COMELEC First Division. This situation is precisely what
the Court aretrying to avoid by insisting on strict compliance of the rule that aninterlocutory order
cannot by itself be the subject of an appeal or a petitionfor certiorari.
TOPIC: MISREPRESENTATION IN THE CERTIFICATE OF CANDIDACY
QUESTION:
When is misrepresentation in a certificate of candidacymaterial? Explain.
SUGGESTED ANSWER:
A misrepresentation in a certificate of candidacy ismaterial when it refers to a qualification for
elective office and affects the
candidate’s eligibil
ity. Second, when a candidate commits a materialmisrepresentation, he or she may be
proceeded against through a petition todeny due course to or cancel a certificate of candidacy
under Section 78, orthrough criminal prosecution under Section 262 for violation of Section
74.Third, a misrepresentation of a non-material fact, or a non-materialmisrepresentation, is not a
ground to deny due course to or cancel a
certificate of candidacy under Section 78. In other words, for a candidate’s
certificate of candidacy to be denied due course or cancelled by theCOMELEC, the fact
misrepresented must pertain to a qualification for theoffice sought by the candidate. (Nelson T.
Lluz, et al. v. COMELEC, et al.,G.R. No. 172840, June 7, 2007).
QUESTION:
If a candidate misrepresents his profession, is he disqualified?Explain.
SUGGESTED ANSWER:
No. No elective office, not even the office of thePresident of the Republic of the Philippines,
requires a certain profession oroccupation as a qualification.Profession or occupation not being
a qualification for elective office,misrepresentation of such does not constitute a material
misrepresentation.Certainly, in a situation where a candidate misrepresents his or herprofession
or occupation in the certificate of candidacy, the candidate maynot be disqualified from running
for office under Section 78 as his or hercertificate of candidacy cannot be denied due course or
canceled on suchground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June
7,2007).
TOPIC: PARDON; RUNNING FOR ELECTIVE POSITION
During his campaign sortie in Barangay Salamanca, Mayor Galicia wasarrested at a PNP
checkpoint for carrying high-powered firearms in his car.He was charged and convicted for
violation of the COMELEC gun ban. Hedid not appeal his conviction and instead applied for
executive clemency. Acting on the favorable recommendation of the Board of Pardons and
Parole,the President granted him pardon. Is he eligible to run against for an electiveposition?.
Explain Briefly.
SUGGESTED ANSWER:
Mayor Galicia can run again for an elective officebut not immediately. Under Section 40 of the
Local Government Code, hecannot run for an elective office within two (2) years after serving
sentence.Under Section 12 of the Omnibus Election Code, he can run for an electivenational
office after the expiration of five (5) years from his service ofsentence. The pardon granted
to him is invalid. The offense involved aviolation of the Omnibus Election Code and the pardon
was granted withoutthe favorable recommendation of the Commission on Elections. (Section
5, Article IX-C of the Constitution).
ALTERNATIVE ANSWER:
No. Galicia is not eligible to run for an electiveposition because the executive clemency is not
valid and effective because itwas granted with constitutional infirmity. The Constitution
requiresrecommendation from the COMELEC before the President may grantexecutive
clemency for offenses violating election laws.
TOPIC: THREE-TERM LIMIT; CONTEST; SUBSTITUTION
Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi.
After being proclaimed Vice-Governor in the 2004elections, his opponent, Khalil, filed an
election protest before theCommission on Election. Ruling with finalty on the protest, the
COMELEC declared Khalil as the duly elected Vice-Governor though the decision waspromulgated only in
2007, when Abdul had fully served his 2004-2007 termand was in fact already on his 2007-2010
term as Vice Governor.a. Abdul now consults you if the can still run for Vice-Governor of TawiTawi in the forthcoming May 2010 election on the premise that hecould not be considered as
having served as Vice-Governor from2004-2007 because he was not duly elected to the post,
as heassumed office merely as a presumptive winner and thatpresumption was later overturned
when COMELEC decided withfinality that had lost in the May 2004 elections. What will be
youradvice?b. Abdul also consults you whether his political party can validlynominate his wife as
subtitute candidate for Vice-Mayor of Tawi-Tawiin May 2010 elections in case the COMELEC
disqualifies him anddenies due course to or cancels his certificate of candidacy in view ofa false
material representation therein. What will be your advice?
SUGGESTED ANSWER:
a. Abdul can no longer run for Vice-Governor in the forthcoming May2010 election because
there is no interruption of service of his 2004-2007 term. He is considered to have already
served and thereof it iscounted in the consecutiveness of his term of office. (Ong v. Alegre,Jan.
23, 2006).b. I will advise him that his wife can be a substitute if his wife is amember of the
political party and is certified by such political partythat she is going to substitute Abdul as
candidate for Vice-Governorand that the substitution must be made within the prescribed
periodprovided by law. Provided further that his wife is eligible to holdpublic office meaning she
has all the qualifications and none of the disqualifications.