CHAPTER 1 ± INTRODUCTION
WHY AN ADMINISTRATIVE LAW/AGENCY IS
CREATED
Congress creates a public office. That public office created
by the Congress more or less pertains to the executive
department. The executive department or Congress itself
are incompetent to perform the duties and obligations of
that particular government agency because that is
created exactly because the people that occupy the
offices there are experts in the field.
Insofar insofar as quasi-legislative power is concerned,
Congress is not anymore competent to particularize the
ODZ LW VHHNV WR LPSOHPHQW 7KDW¶V H[DFWO\ ZK\\RX KDYH
the doctrine of subordinate legislation.
CHAPTER 2 ± CREATION OF ADMINISTRATIVE
AGENCIES
HOW ADMINISTRATIVE AGENCIES ARE CREATED
3 ways by which an administrative agency is
created:
1. By the constitution
2. By law
3. By authority of law
4. By express mandate or authority of the
constitution (Added by Atty. Guji)
:KHQWKHFRQVWLWXWLRQVD\V³&RQJUHVVGRWKLVFUHDWHWKLV
RIILFH´ LW LV DFWXDOO\ E\ reason of a law, however,
specifically authorized by the Constitution.
In sum, here are the reasons why there is a
government agency.
1. Executive department in itself is incompetent
WRSHUIRUPWKHILHOGZKHUHWKH\¶UHVXSSRVHG
to be experts
2. Congress is incompetent to legislate insofar
as the details of the law is concerned
(YHQWXDOO\ \RX¶UH JRLQJ WR FODVVLI\ WKHP LQWR WKDW
category where we say that it is actually created by law.
In fact, there is a case that says that the administrative
agencies are actually the fourth department of a
presidential form of government.
A. CREATION BY THE CONSTITUTION:
Of course, the three branches of the government are
created and dictated by the Constitution. Of course, you
have the Executive Department.
SOLID HOMES, INC. V PAYAWAL
As a result of the growing complexity of the modern
society, it has become necessary to create more and more
administrative bodies to help in the regulation of its
ramified activities. Specialized in the particular fields
assigned to them, they can deal with the problems thereof
with more expertise and dispatch than can be expected
from the legislature or the courts of justice. This is the
reason for the increasing vesture of quasi-legislative and
quasi-judicial powers in what is now not unreasonably
called the fourth department of the government.
If it appears however that there might be
concurrent
jurisdiction
between
the
administrative agency and the judiciary
In case of doubt, you rule in favor of that jurisdiction
pertaining to the administrative agency. The reason being
their presumed expertise in the field and by virtue of the
separation of powers.
Remember, when you talk about separation of powers,
administrative agencies are actually part and parcel of the
executive department.
Hence, this is why we create administrative agencies.
Pero for purposes lang of emphasis, these particular
offices are constitutionally authorized and mandated to be
created, I just put in there in the book 4 modes by
which we create public office.
THE THREE BRANCHES OF GOVERNMENT
EXECUTIVE DEPARTMENT
7DNH 1RWH LQ WKH H[HFXWLYH GHSDUWPHQW WKHUH¶V VXFK D
thing such as the Cabinet-- the official family of the
President.
However, the Cabinet is not actually a Constitutional
creation. Even if the constitution mentions the Cabinet
several times over in many provisions, it is not created by
the Constitution.
Thus, the cabinet is an extra-constitutional creation. The
members there, the secretaries, they serve at the behest
and pleasure of the president. If the president designates
a particular secretary, the latter cannot invoke due
process or prior notice and hearing because they serve at
the pleasure of the president.
In other words, if the president is displeased for any
reason, he can always terminate them anytime,
anywhere, without need of prior notice and hearing.
There being a cabinet, members of which are actually the
alter egos of the president, it gives rise to the doctrine
of qualified political agency.
1
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
MANALANG-DEMIGILLO V. TIDCORP
The doctrine of qualified political agency essentially
postulates that the heads of the various executive
departments are the alter egos of the President, and,
thus, the actions taken by such heads in the performance
of their official duties are deemed the acts of the President
unless the President himself should disapprove such acts.
This doctrine is in recognition of the fact that in our
presidential form of government, all executive
organizations are adjuncts of a single Chief Executive;
that the heads of the Executive Departments are
assistants and agents of the Chief Executive; and that the
multiple executive functions of the President as the Chief
Executive are performed through the Executive
Departments.
In the Doctrine of qualified political agency, the
president cannot be omnipresent such that the president
must be represented by his alter egos so that he can
perform all the functions at the same time through the
agents.
However, there are certain laws or constitutional
provisions that actually say that this particular act should
only be personally performed by the president. If there is
a provision of the Constitution or the law that the
president cannot delegate, he cannot invoke the doctrine
of qualified political agency, when the constitution or the
laws specifically says that the president must personally
perform this duty.
Executive powers
Let us emphasize that the executive power here is not
limited to what is enumerated in the Constitution because
there is such a thing as residual powers.
Residual powers
Powers that do not appear to be judicial nor legislative.
So, if it is neither, chances are, it is executive.
However, it is incorrect to say that the executive
department executes the law. That is not its sole function.
The executive department can also perform foreign
relations and that is not execution of laws.
It is not purely execution of laws if you talk about the
executive department.
In residual powers, remember the Manglapus case?
Cory Aquino at that time prevented the body of Marcos to
be taken back to the PH.
They were asking the SUHVLGHQW³\RXZDQWWRSUHYHQWWKH
ERG\RI0DUFRVWRUHWXUQZKHUHLV\RXUEDVLV"´
SC ruled:
:H GRQ¶W QHFHVVDULO\ KDYH WR ILQG WKH EDVLV IRU WKDW
EHFDXVHWKHUHLVQ¶WDQ\WREHJLQZLWK,IWKHUHLVQREDVLV
DQG \RX GRQ¶W ILQG WKDW EDVLV VRPHZKHUH else, it could
only be that it pertains to residual powers.
MARCOS V. MANGLAPUS
Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more
than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to
be executive
Remember also when PRRD shut down Boracay? They
closed it for 6 months for it to rehabilitate. There is no law
or provision in the Constitution that authorizes the
president to do that.
However, the SC ruled: Go back to residual powers. If
you cannot find that anywhere in the Constitution or the
law and it is not legislative nor judicial, it must be
executive in nature.
So take note of residual powers.
6RPHWLPHV\RXPLJKWZDQWWRVD\³ZK\LVWKH3UHVLGHQW
seemingly so powerful or more powerful than the judiciary
RUHYHQ&RQJUHVV"´
6& VDLG ³GR QRW UHVHQW WKDW ,I LW appears that the
president is more powerful than the judiciary, the reason
being is because the president derives direct authority
IURPWKHSHRSOHEHLQJDQHOHFWLYHSXEOLFRIILFLDO´
Power of control of the president
It can be performed by the President from the Cabinet
Secretary down to the lowliest rank in the government.
However, the President does not personally do that,
RWKHUZLVHKH¶VJRLQJWRPLFURPDQDJH'LEDWKHUH¶VVXFK
a thing as chain of command? But normally, after the
Cabinet Secretary, the next step is the Presidency. This is
where the President actually exercises his power of
control.
Power of control
The power to replace, substitute, set aside, annul, modify
the decisions or performance or duty of a subordinate. As
opposed to power of supervision where the president
merely ensures that law are executed and that these
subordinates are performing their duties according to the
law.
Moreover, power of control is actually given by the
Constitution to the president. Thus, Congress cannot
diminish the power of control.
For the doctrine of qualified political agency, you are
appointed as a personal choice of the president. For you
2
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
PLOOHQQLDOV\RXFDOOLW³%))´EXWEHIRUHZHFDOOLWERVRP
buddies. In other words, if you are appointed by the
President to a Cabinet position, you actually enjoy the
bosom confidence of the president. That level iyang
pagsalig nimo. Bitoka level.
However, take note: When we say doctrine of qualified
political agency, it merely refers to your power as a
cabinet secretary as appointed by the president.
Take note: There are cabinet secretaries who also
perform or hold ex-officio positions.
Remember, if ex-officio position, you are appointed by
direct provision of law. Now, if you perform an ex-officio
function the doctrine of qualified political agency does not
apply because you were not appointed by the president,
it is the law that appoints.
Ergo:
Cabinet secretary - appointed by president =
DQPA applies
Cabinet secretary holding an ex-officio position ±
appointed by direct provision of law =
DQPA does not apply
LEGISLATIVE DEPARTMENT
Legislative power is plenary. What is the limitation? The
bill of rights and other constitutional limitations.
Take note: the constitution also creates the independent
Senate Electoral Tribunal and House of
Representatives Electoral Tribunal. What is their
jurisdiction?
The sole jurisdiction over election returns and
qualification of their members. Hence, the Ombudsman
has no jurisdiction to discipline their members because it
pertains to the electoral tribunal, it pertains to the
respective houses.
Composition of the Electoral Tribunal
· Chief Justice
· Other Justices
· 6 members based on proportional representation
Sec. 17. Art. VI - The Senate and the House of
Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or the
House of Representatives, as the case may be, who shall
be chosen on the basis of proportional representation
from the political parties and the parties or organizations
registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall
be its Chairman.
Take note: the tribunal is not actually part and parcel of
either of the Houses. It is an independent constitutional
creation and it is not even under the supervision and
control of Congress.
It is independent, even if the composition is majority
pertaining to Congress.
However, take note that there is a confusion between the
jurisdiction insofar as jurisdiction between the COMELEC
DQG WKH KRXVH RI UHSUHVHQWDWLYHV¶ HOHFWRUDO WULEXQDO LV
concerned.
Jurisdiction: COMELEC v. ET
Normally, when the COMELEC proclaims you as District
Representative for example, it loses jurisdiction. Can the
COMELEC retain jurisdiction? Yes, especially where it was
a void proclamation.
However, the way to distinguish the jurisdiction
between the HRET and COMELEC is this:
Once the district representative is now considered a
member of the house, the COMELEC loses jurisdiction.
When can we say that the district representative is
now a member of the house?
1. If there is a valid proclamation
2. Oath of office - taking your oath of office
before the House Speaker with Congress in
open session.
3. Assumption to office
If these three concur, the COMELEC loses jurisdiction.
7KHQ WKHUH¶V VXFK D WKLQJ DV WKH &RPPLVVLRQ RQ
Appointments.
The Commission On Appointments
12 senators, 12 district reps then the Senate President
becomes your ex-officio chair.
Take note: these are all elected public officials belonging
to Congress but they are actually independent of
Congress. In fact, it is said that they actually perform
executive functions, and not legislative functions.
Jurisdiction
I think we mentioned this in the law of public officers.
ł
ł
We have executive department heads. Otherwise
known as your Cabinet Secretaries.
Then public ministers and consuls, ambassadors,
3
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
ł
ł
officers of the armed forces from the rank of
colonel or naval captain; and
other officers whose appointments are vested in
the President in the Constitution.
The doctrine of ejusdem generis does not apply here
because that enumeration even if it says other officers,
that is still exclusive.
Who are they? (other officers)
The chair and members of the CSC, COA, COMELEC and
the regular members of the Judicial and Bar Council.
Atty: Unsa man diay mahitabo sa ex-officio members of
the judicial and bar council? Are they not to be consented
by the Commission on Appointments?
They do not need consent from the Commission on
$SSRLQWPHQWV :KDW¶V WKH UHDVRQ" 7KH\ GHULYH WKHLU
appointment from direct provision of law. Ex-offcio eh.
JUDICIAL DEPARTMENT
Presidential Electoral Tribunal
Take note that in the Judicial Department, there is also
the Presidential Electoral Tribunal. I think somebody
asked why there is a difference between the rules of
Electoral Tribunals. It is because the Constitution actually
VD\V ³HDFK tribunal has the power to promulgate their
own rules of procedure. So somehow they differ but
VXEVWDQWLDOO\WKH\¶UHTXLWHWKHVDPH
[15:17 ± 15:36] naglibog ko ni atty guys.
It is independent but not separate and distinct entity from
the Supreme Court. Diba? Because class what happens
there is the SC En Banc actually transforms itself into a
Presidential Electoral Tribunal. It is not independent but
is separate and distinct from the Supreme Court. (ATTY
YUNG TOTOO ANUBA)
Atty: So are we saying then, that there are 2 Supreme
Courts? Not Necessarily.
What happens there is, even if by virtue of that
presidential electoral tribunal, they adopt a separate seal
and the nomenclature is different; meaning the chief
justice is not the chief justice but the chairman, the
Associate Justices are not Assoc. Justices but members.
,W¶VMXVWDPDWWHURIQRPHQFODWXUH7KHUHDVRQWKHUHLVLW
is just intended to emphasize the singularity and
exclusivity of the jurisdiction of that Presidential Tribunal.
Election with terms (?) and qualifications of the President
and the Vice President. Do you follow class?? OKAY
THE JUDICIAL & BAR COUNCIL
ł
Recommends appointees to the Judiciary.
Take note: When we say recommend appointees to the
judiciary, it pertains only to the judges and justices of the
Supreme Court and the Court of Appeals. If it were a
Court Sheriff, for example, or processor (?) or a Clerk of
Court; it is not necessary that they be recommended by
the Judicial and Bar Council.
JUDICIAL POWER: Scope
1. To settle actual controversies involving legally
demandable rights blah blah blah (atty. Really said blah
EODK EODK 7KDW¶V WKH WUDGLWLRQDO SRZHU RI WKH 6XSUHPH
Court.
But then, by virtue of the 1987 Constitution, they have
expanded the jurisdiction of the SC where
2. It can actually nullify the acts of a co-equal branch of
the government provided there is grave abuse of
discretion.
Background
During the Marcos regime, the President can always
LQYRNH ³SROLWLFDO TXHVWLRQ GRFWULQH´ ,Q RWKHU ZRUGV WKH
SC will not acquire jurisdiction when the President says
³,W¶VDSROLWLFDOTXHVWLRQHK´'LED",W¶VDERXWWKHZLVGRP
of the President. But then it gave Marcos the license to
abuse his power. That is exactly why when the 1987
Constitution was drafted, what did they say? This totally
in response to the abuses of the Marcos administration.
And so there it expanded jurisdiction of the SC.
Atty: Are we saying then that the doctrine of
Political Question is gone? Not necessarily.
There is such a thing as truly political questions where
it survives the expanded jurisdiction of the SC. What are
the examples of truly political questions?
Example:
Determination of impeachable offense.
If the Constitution textually commits that
jurisdiction to a particular branch of government,
it becomes a truly political question, beyond
judicial review.
Atty:What about the fact that the judiciary nullifies
Jurisdiction of the Presidential Electoral Tribunal
the acts of the co-equal branches of the
4
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
government? Are we saying that the judiciary is
actually over the executive
department? Not necessarily.
and
legislative
:KHQWKHMXGLFLDU\VD\V³0U3UHVLGHQW\RXKDYH
FURVVHG WKH OLQH´ ³&RQJUHVV \RX¶YH FURVVHG WKH
OLQH´ WKH MXGLFLDU\ GRHV QRW DVVHUW LWV RZQ
authority it asserts the sovereignty of the people
through the Constitution.
Atty: What if it is now the judiciary that abuses or
gravely abuses its discretion? :KDW¶VWKHUHPHG\"
Impeachment.
So it still pertains to the people. But, of course,
impeachment is a long shot. You can only do that
if you have the back-up of the president,
probably.
THE CONSTITUTIONAL COMMISSIONS
These are also Constitutional creations.
1. Commission on Audit
2. Civil Service Commission
3. Commission on Election
Take note: They are independent. They are not
under any department or agency of the
government. They are apolitical organizations and,
specifically, they are not under the Office of the President
or the executive department.
There are a lot of prohibitions there that will ensure
their independence and integrity.
Another
prohibition GL
NODUR ««active
management of business LVFRQFHUQHGFODVV7KDW¶VD
prohibition, active management of business. In other
ZRUGVLI\RXRZQWKHEXVLQHVVWKDW¶VDOORZHG<RXGRQ¶W
actually, actively manage the business. Okay?
Fiscal Autonomy
It only means that, in other words, sometimes people will
VD\³DKILVFDODXWRQRP\PDQJXGZDOD\ODERWDQJ&2$
ZDOD\ ODERW WDQDQ VLOD UD\ EDKDOD XQVDRQ SDJ JDVWR´
7KDW¶V QRW ILVFDO DXWRQRP\ Fiscal autonomy means
that the approved annual appropriation for that
constitutional commission for example, is
automatically and regularly released, without preDXGLW7KDW¶VILVFDODXWRQRP\
Are they subject to judicial review?
NormallyWKH\¶UHQRWVXEMHFWWRMXGLFLDOUHYLHZ especially
insofar as factual finding is concerned. Because what did
we say? They are presumed to be experts in their fields.
Factual findings ha. However it must be supported by
substantial evidence. And otherwise if _________ to be
gravely abused, the Supreme Court can still get into the
SLFWXUHDQGVD\³H[SDQGHGMXULVGLFWLRQ´
THE COMMISSION ON AUDIT
Jurisdiction
ł
ł
One of the prohibitions there is, LI \RX¶UH D
commissioner, for example, you cannot anymore
engage into the private practice of your
profession.
EXPN: Teaching.
,I\RX¶UHDODZ\HUIRUH[DPSOHDQG\RXZDQWWRWHDFKlaw,
WKDW LV DOORZHG DV D PDWWHU RI H[FHSWLRQ :KDW¶V WKH
reason, class? If the first premise is you cannot anymore
engage in any profession, the reason there is technically
or essentially, teaching is not a profession, they say it is
a vocation. So maybe that is the reason why it is an
exception. And also, probably, of course, the framers of
the constitution are lawyer friendly. Because these are
QRUPDOO\ODZ\HUVZKRZDQWWRWHDFKODZ,¶PQRWWDONLQJ
DERXW PH WHDFKLQJ ODZ KD EHFDXVH ,¶P QRW D
commissioner. But before the former chair of the
COMELEC, Bautista, when he was chair of the COMELEC,
he was still teaching. People were questioning, is he not
engaged in the private practice of his profession. But then
that is exactly a matter of exception, do you follow?
ł
Even GOCCs with original charters , they (the
COA) can audit that.
And then, primary jurisdiction involving money
claims against the government, agencies
and instrumentalities, they have primary
jurisdiction. In other words class, pag primary
jurisdiction, ikaw ang una, to the exclusion of the
courts. The courts cannot acquire jurisdiction if
primary jurisdiction is brought somewhere else.
That somewhere else, that is the constitutional
commission on audit.
Non-governmental agencies only if public
funds are involved
Atty: What about non-governmental agencies? Diba, of
course, ang jurisdiction sa COA kanang government
agencies diba? What about non-government entities like
for example an NGO, can the COA audit them? They can,
provided that there was public money that was either
given to them either by way of donation or in partnership
with the government. Basta nay public money involved,
COA can still acquire jurisdiction over an otherwise nongovernmental entity.
In fact, the COA is empowered to classify that
particular NGO, that particular GOCC of whether or
not that is under the audit jurisdiction of the COA.
5
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
CIVIL SERVICE COMMISSION
ł
ł
ł
Power to attest appointment.Appointment of
those who are to be in the civil service.
It is not approval, it is not distinction
Attestation means that CSC is only there to
inquire whether or not you possess the minimum
qualifications for your appointment to public
office.
The CSC cannot replace the choice and wisdom of the
appointing authority because it pertains to the sole
exclusive prerogative of the appointing authority.
Even if you are qualified under the law, remember
class ha that we are talking here about the Commission
on Appointments.
Even if you have all the qualifications under the
law, they can still decide not to confirm your
appointment. What did we say? There are informal
TXDOLILFDWLRQV ,I WKH\ GRQ¶W OLNH \RX WKH\ PLJKW QRW
confirm your appointment.
COMELEC
ł
ł
It is the most powerful agency there is but
only during selected periods (or election
periods ??).
It performs:
ż uasqi-judicial,
ż quasi-legislative and
ż administrative functions
It has limited judicial functions.
Because the premise was, never ever call that judicial
function because the Supreme Court is going to be
jealRXV7KH6XSUHPH&RXUWVDLG³MXGLFLDOIXQFWLRQDPR
UD QD MXGLFLDU\´ 'ED" ,I PX SHUIRUP VRPHZKDW OLNH
judicial function, we call that quasi-judicial function but
never call that judicial function.
$WW\+RZHYHUSDJ&20(/(&FODVVWKDW¶VWKHH[FHSWLRQ
because the COMELEC has limited judicial functions.
When does the COMELEC perform that? When it acquires
original or appellate jurisdiction over the election with
terms and qualifications of local elective officers.
Distinction there is:
Ang local elected officials pertain to the COMELEC but
district representatives, senators, president and vicepresident, they pertain to their respective electoral
tribunals.
What about the regional officials? ± COMELEC gihapon.
OTHER CONSTITUTIONALLY CREATED BODIES
Office of the Ombudsman and the CHR.
OFFICE OF THE OMBUDSMAN
This is a constitutional creation but it is not
in the same category as the constitutional
commission strictly speaking.
Aspect independence:
1. It is constitutional created, in other words,
Congress cannot legislate the ombudsman
out of public office, it cannot abolish the
office of the ombudsman.
2.
And its functions, privileges cannot be
removed
unless
authorized
by
the
constitution.
3.
It enjoys fiscal autonomy.
4.
It is insulated from executive supervision
and control, in other words, the president has
no business in so far as the office of the
ombudsman is concerned.
D ,I WKH SUHVLGHQW VD\V ³WKLV
RPEXGVPDQ,GRQ¶WOLNHKLP´0D\EH
the remedy there is impeachment.
(bc remember ombudsman is
impeachable).
What about the deputy ombudsman or other officers in
the office of the ombudsman?
They are subject to internal disciplinary
authority but not the President.
7KHSURYLVLRQWKHUHWKDWVD\V³WKH3UHVLGHQWFDQDFWXDOO\
remove the tanod bayan, and the deputy RPEXGVPDQ´
that was nullified by the SC in the ground that it offended
the independence of the ombudsman.
However, the independence of the ombudsman, it is to
be insulated from politics, so dapat hands off ang office
of the president or the executive department it being a
political organization.
6R QRZ WKH RPEXGVPDQ VD\V ³VLQFH ZH DUH
constitutionally created, it could be that the SC esp the
&$KDVQREXVLQHVVWR «YHU\FKRSS\ RUWRUHYLHZRXU
IDFWXDOILQGLQJVIURP«LWGRHVQRWLQFOXGHWKHMXGLFLDry.
REASON: the judiciary is not a political organization.
Atty. G: so pwede, the last time we discussed about the
no injunction policy against the ombudsman, that is not
to be allowed because the SC can enjoin the ombudsman
and the court of appeals can, in so far as preventive
suspension issuance of the ombudsman is concerned.
Reason? Hierarchy of courts.
%HFDXVHLWVD\VWKHUH³QRFRXUWFDQH[FHSWWKH6&´GRHV
it mean the CA is not included?
6
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
-
It is still included by virtue of hierarchy of
courts.
might take over the investigation and prosecution
at any stage of the proceedings.
Remember the disciplinary authority of the ombudsman.
TN: Primary jurisdiction is not necessarily exclusive.
Illustration
The OMB also has the power to examine bank
accounts and records.
7KHRPEXGVPDQ 20% VD\V³$OMRQ\RXVXVSHQG9LQFHQW
1DFXDEHFDXVHKHLVXQGHU\RX´
$OMRQ ZLOO VD\ ³2ND\ ,¶OO VHH ZKHWKHU RU QRW KH LQGHHG
committed the breach or infraction that is dismissible or
VXVSHQGDEOH´
6RQRZLWPLJKWDSSHDUWKDWWKHRPEXGVPDQ¶VGHFLVLRQ
is recommendatory. Correct.
The answer there is: Aljon has no choice but to impose
and discipline or suspend Mr. Nacua.
REASON: there was a confusion WON that is
recommendatory or mandatory, but then the SC said, that
is mandatory.
The confusion came from the use if the word
³UHFRPPHQG´ E\ WKH FRQVWLWXWLRQ DQG E\ WKH ODZ
However, VWDQGLQJ DORQH ³UHFRPPHQG´ PLJKW UHDOO\
PHDQ³UHFRPPHQGDWRU\´EXWLf you will contextualize that
with the entire provision of the law, at the end it says
³insure compliance therewith it becomes
PDQGDWRU\´ Even if on its face and standing alone it is
recommendatory, that is mandatory.
Otherwise, it defeats the purpose of the ombudsman.
Power to investigate and prosecute
TAKE NOTE: the power to investigate is constitutional.
3URVHFXWH LW¶V QRW LQ WKH FRQVWLWXWLRQ EXW WKHQ WKH
FRQVWLWXWLRQOLNHZLVHVD\V³DVPD\EHSURYLGHGE\ODZ´DQG
the ombudsman act of 1999 ³RND\ \RX FDQ DFWXDOO\
SURVHFXWH´DQGWKDW¶VDOORZHG
What about WON it is of Primary Jurisdiction?
The power to investigate and prosecute is actually
concurrent with the other similarly authorized
government agencies like DOJ, they also investigate.
Actually, the OMB shares it with them.
The only time that the OMB might not share it with them
is when it involves a Sandiganbayan case. Pag SB,
the power to investigate and prosecute is a matter of
primary jurisdiction pertaining to OMB.
But then, primary jurisdiction DOES
necessarily mean exclusive jurisdiction.
NOT
The OMB can actually share it with the Prosecutors, they
only exception and qualification there is the OMB
Atty G: what did we say? Lifestyle check, SALN, WON you
have accumulated wealth beyond your legitimate source
of income, so the OMB can examine bank accounts
and records.
TN: OMB can only do this if there is a pending case and
they examine by a virtue of a court order.
Because if it were only investigation and the OMB goes to
WKHEDQNDQGVD\V³FDQ\RXJLYHPHWKHEDQNDFFRXQWRI
MXO\DQQH ORPRFVR"´ WKDW EHFRPHV D ILVKLQJ H[SHGLWLRQ
You cannot do that without a court order because it
offends the bank secrecy law.
Power to Discipline
TN: the power to discipline of the OMB, what did we say?
Encompassing. All elective appointive officers of the
government.
Maski asa, the OMB can reach you. However, except
impeachable officers, members of congress, and
members of the judiciary.
What about the Decisions of the OMB?
may be appealable but that is executory
right away.
,I WKH RPEXGVPDQ VD\V ³ZH GLVPLVV \RX´ WKDW LV
immediately executory, without prejudice to your right to
appeal.
Pero ngano executory man siya? Because, if we were to
allow you to suspend or to stay the execution of the case,
chances are it will defeat the purpose of discipline.
:KDWKDSSHQVLI³RND\JLGLVPLVVVXVSHQGNDDQGWKDW
ZDV LPPHGLDWHO\ H[HFXWRU\´ EXW RQ DSSHDO \RX ZHUH
exonerated?
The SC saiG³GRQ¶WZRUU\EHFDXVHDWWKDW
time you were taken out of public office, we
consider that as a period of preventive
suspension and you are entitled to salary
especially where you won the appeal based
on pure innocence.
TN: preventive suspension per se, does not entitle you to
salary, but here you are preventively suspended, that is
RQO\IRUSXUSRVHVRIWHOOLQJ\RXWKDW³GRQ¶WZRUU\WKDWZDV
WHPSRUDU\´EXW\RXDUHHQWLWOHGWRVDODU\
7
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
By the way, the office of the omb, the ombudsman and
the deputy ombudsmen, they actually in the same
category as the member and chair of the constitutional
FRPPLVVLRQV 7KDW¶V KRZ LQGHSHQGHQW WKH\ DUH $QG
WKDW¶VKRZWKHFRQVWLWXWLRQWDNHWKHPZHOORUJLYHVWKHP
importance. Pareha silage rank and status in so far as the
constitutional chair and commissioners are concerned.
COMMISSION ON HUMAN RIGHTS (CHR)
The CHR is also independent.
BUT, take note nga independent siya, but it is not the
same level as the constitutional commission.
REASON: because it is not directly cerated by the
constitution.
However, the tricky part there is, if it is not directly
created by the constitution, what created that?
The one that created that is actually an
Executive Order. However, even it was
created by a mere EO, Congress cannot
dispense it altogether because it will
offend the constitution.
Jurisdiction of the CHR
What happens there?
6RPHWLPHVZHKHDUDORWRISSOVD\³NDURQQJDSROLFHXJ
military and gipatay sa NPA wala na mutingog ang CHR
BUT if it were a person or drug addict ang gipatay tingog
ang CHR but if ang police gipatay sa drug addict hilom ra
VL&+5´
REASON: the background is Martial Law. What happened
during martial law? You can be arrested upon suspicion.
Shades of anti-terror law, you can be detained of
indefinite period without charges.
Then, you cannot stage a strike. Group actions are not
allowed. Then there is censorship (TVs, movies,
newspapers). Then they suspended the issuance of writ
of habeas corpus. AND there was torture.
Here comes the 1987 Constitution drafted in response to
the abuses of the Martial law, now, they created a CHR
that will focus on more serious human rights violations:
Torture
Disappearances (fr romano)
Salvaging
Hamleting
Crimes against the religious
Massacre
Arrest without warrant.
These characterized the abuses of the Marcos
Dictatorship and these are the kind of Human Right
violations that were contemplated to be under the
jurisdiction of the CHR.
Now, when you talk about salvaging, torture,
disappearances, who are the culprits?
Normally it is the military, the big shots, the
high and the mighty in the government.
So now we say pag CHR their jurisdiction pertains
only to those committed by the agents of the state.
1RZ \RX PLJKW ZDQW WR VD\ ³ZKHQ LV KXPDQ ULJhts
violations? ± LW¶V EDVLF LQ RWKHU ZRUGV DQ\ERG\ FDQ
commit human rights violation, any body can violate
human rights. That is correct.
+RZHYHU KHUH¶V ZKDW KDSSHQV 7KH PLOLWDU\ DQG WKH
police supposedly they are there to protect us. If they
betray us instead of protecting us, that becomes human
rights violation within the context of within the jurisdiction
of the CHR.
But if it were the NPA, that kills a police,t aht ambush a
PLOLWDU\ IRU H[DPSOH \RX GRQ¶W FDOO WKDW KXPDQ ULJKWV
violation in the context of the CHR, you call that
something else.
Because we do not expect the NPA to protect us so if it is
the military that is killed, that is not human rights within
the context of CHR.
If you are a drug addict and you are subjected to extra
judicial killing, that is human rights within the context of
CHR.
If you are the police and you are killed by the addict, it is
still HR violation but does not pertain to the jurisdiction of
CHR.
That is why if the victim is police or military, CHR is silent
because it has no jurisdiction. The jurisdiction pertains
to somewhere else.
However, CHR does not have the power to adjudicate,
only has the power to investigate. Exactly why it is
described as a toothless tiger; it has big power but it is
toothless because it can only investigate and file a case in
court, not adjudicate. And also, it cannot issue the remedy
of injunction because injunction is dependent on a main
case and the main case pertains to the power to
adjudication. So it cannot issue ie. TRO - police do not
demolish, because it has no jurisdiction.
8
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Can it still look for preventive measures to protect HR
victims? YES. but they go to the court on behalf of the
victim. Can it cite you for contempt? NO, because there is
no power to adjudicate. Can it cite you in contempt? YES,
if you violate their operational guidelines. In other words,
LI WKH\ LQYHVWLJDWH ³2K PLVWHU SROLFH FRPH KHUH DQG
FRRSHUDWHZLWKRXULQYHVWLJDWLRQ´DQG\RXGRQRWIROORZ
that is a subject for (inaudible)
LGUs
There are the LGUs. The provinces, cities, municipalities
and barangays. Now, even if the constitution somehow
creates them, technically, these are not constitutional
creations. Because when the constitution subdivides into
provinces, cities etc., it actually just tells us about the
standard of territorial subdivision. Because even
prior to the Consti, provinces, cities etc. they are already
acknowledged as territorial subdivisions of the country.
ARMM
ARMM are not a distinct and separate sovereignty. They
are still part and and parcel of the country.
The Cordillera Autonomous Region (CAR) did not or does
not exist because the people there rejected the organic
law creating it but we have the ARMM but is now replaced
with the Bangsamoro Autonomous Region in Muslim
Mindanao. Take note the law there is 11054.
Who are the Bangsamoro People? These are people that
are natives or original inhabitants of Mindanao and Sulu
archipelago. However, historically, Bangsamoro were the
majority in Mindanao but they were displaced by the
Christians. Thus, you understand why they want
autonomy because they were the first inhabitants of
Mindanao but Christians came and the Bangsamoro
people were displaced.
So the law there, the concern is, are we creating a
separate entity? A state or substate? Not necessarily
because in so far as territory is concerned it is actually
integral, indivisible and inseparable from the country.
They are still part and parcel of the country.
them, the Bangsamoro law says that they can be
integrated into the PNP and PNP can waive the (inaudible
- naay ni sapaw ni atty)
So imagine class, the MILF/MNLF is probably below 5 ft.
and now it is PNP because it is waived by the PNP diba?
Pero I think height matters insofar as law enforcers are
concerned because height is might but of course, you are
trying to accommodate them.
Local Autonomy
The President only has the power of supervision over the
LGUs. It is not control but the tricky part is how come the
president can still nullify and overturn the decisions of the
mayors, governors etc. if it is only power of supervision?
He just makes sure that the laws are faithfully complied
with. But SC said that when you say that laws are to be
faithfully complied with, and when the president nullifies
the act of the mayor for example, he is just making sure
that the laws are faithfully complied with. That is
supervision, not necessarily control. Tricky part.
Those are the constitutional creations.
B. CREATION BY EXPRESS CONSTITUTIONAL
MANDATE OR AUTHORITY
Those that are constitutionally mandated and
authorized to be created by the Consti
What are these? BSP (Bangko Sentral) Although they are
considered independent and sentral monetary authority,
it is not independent and not as the same status as the
Constitutional Commissions because ConCom are created
by the Consti, BSP only authorized to be created by the
Consti or meaning, actually created by Congress.
BSP has the sole power to issue currency. Take note, pag
coins, it is legal tender but there is limitation. For example
nag bayad ka and imong coins puro 25 cents, that is only
good for not exceeding 50 php. If beyond na, pwede naka
balibaran, dili nana siya legal tender. Also if 10 cents and
below, it should not exceed 20php.
The admineristing body is the monetary board.
NPC (National Police Commission)
Their form of government is parliamentary. But then take
NPC is removed from the military because police is civilian
note, MILF and MNLF the biggest bargains there is that
in character. Exactly why those military who are in the
you have to end the MILF and MNLF rebellion. So para
active service cannot be appointed to any position, civil
mahuman na sila, ma integrate sila sa Bangsamoro so
service position, GOCC position or any subsequence. This
now katung military sa MILF/MNLF, they can be
is one of the prohibited appointments. It is not
integrated into PNP. However, the tricky part is
allowed to appoint an active military, GOCC or any of its
(inaudible). Pero, as a compromise to accommodate
subsequence.
9
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Administrative Authority of a Local Chief Executive
over the Police
What is the role of the mayor over your local police? The
mayor, governor are just mere deputies of the national
police commission. The reason why the police are taken
out of the control of the mayor and governor is to prevent
bossism, mahimo unyang private army. That is why it is
given to the NPC. the mayor and governor are just
deputies of NPC and as deputies, they can inspect police
units, audit, and exercise other functions as may be
authorized.
If there is a vacancy in your local police chief for example,
can the mayor appoint? NO. but can the mayor choose?
YES. meaning, there is a list of nominees and he will
choose. Power to choose is different from power to
appoint.
Remember our topic insofar as the JBC is concerned? JBC
is there to give the president the list of nominees
(judiciary)
What if the president does not like any one in the list?
Can he ask for another list? YES. Because it will deprive
him the power to appoint them, instead it will become the
power to choose. However, if the president is not
satisfied with the list over and over again, it amounts to
grave abuse of discretion because what is the reason
there is a JBC? Check and balance. To depoliticize the
appointment to the judiciary. And so if the president is
dissatisfied over and over again, he is defeating the
purpose of the JBC. so there has got to be a demarcation
line there. But take note, power to choose is different
from power to appoint.
Can the mayor discipline the police? YES, but ginagmay
lang na kaso. For example, suspension not exceeding 30
days and forfeiture of salary not exceeding 1 month.
Are we saying then that the power of control pertains to
mayor and governor? Not necessarily because that is still
subject to the appellate jurisdiction of the NPC.
What about the President? What is his authority over the
NPC? The Presdient is the civilian commander-in-chief. If
it is internal security, like gubot sa streets or silingan, it is
within the DILGs jurisdiction. Take note that PNP is under
DILG. But if external security, it is now involving of the
Armed Forces of the Philippines.
(long skips because putol2 si atty)
7KHUHLVDMXULVSUXGHQFHZKHUH6&VD\V« VNLSDJDLQ«
But then, even insurgency, that is actually internal in
nature and that it cannot be external security but then
probably because of the gravity of the organization, it is
actually a threat, so it becomes external security.
The National Commission on Indigenous Cultural
Communities/Indigenous Peoples
Also mandated or authorized by the Consti.
The Commission on the Filipino Language
Filipino language is more or less tagalog but the function
there is to integrate all major languages in the country
into one Filipino language.
71 )LOLSLQR OHWWHU ³)´ SDJ 3LOLSLQR ³3´ WKDW LV DFWXDOO\
tagalog and that is not politically correct. FILIPINO
LANGUAGE.
The National
Authority
Economic
and
Development
Mentioned by the Consti, but the Consti says that is
optional for Congress because, the reason there is, the
formal economic planning is not indispensable to
managing the national economy. But still, there is
that National Economic and Development Agency.
C. CREATION BY LAW
We already discussed creation by the Consti, creation by
mandate or authority of the Consti, then creation by law.
What is the reason?
The reason there is the power to create a public office
is essentially legislative, and that is supreme that
can only be limited by the Constitution and other
laws. ,QRWKHUZRUGVLI&RQJUHVVVD\V³RND\ZHZDQWWR
FUHDWHWKLVRIILFH´LWFDQFUHDWHWKDWRIILFH,WFDQPDNH
that office DQGLI&RQJUHVVVD\V³RND\ZHGRQ¶WOLNHWKDW
RIILFHDQ\PRUH´LWFDQXQPDNHWKDWRIILFH7KDW¶VSOHQDU\
WKDW¶VVXSUHPH
C. CREATION BY AUTHORITY OF LAW
Normally we go to the president, that is authorized by
&RQJUHVV6RQRZLIWKHSUHVLGHQWVD\V³RNDy, I have an
H[HFXWLYH RUGHU , DP FUHDWLQJ DQRWKHU FRPPLWWHH´ IRU
example, that is allowed. But take note of the case of
Biraogo v. Truth Commission, where President
10
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Noynoy Aquino, the first executive order that he issued,
he created the Philippine Truth Commission.
immaculately clean otherwise. Okay, we are done with
the discussions!
What was the purpose? To investigate graft and
corruption committed by the previous administration, the
administration of Gloria Arroyo. So now, the
constitutionality was challenged.
Are you still there? Do you hear me people? ᄩ
ᄬ
ᄫ
ᄪ
What happened there was the Supreme Court said that
there is a continuing authority that is given to the
president to reorganize national government. And
when you say reorganize the national government,
it includes creation of office. However, the Supreme
Court said, the basis there is there are residual powers
given to the president under the law, but then that law,
is actually a presidential decree that is already antiquated.
And so now, the Supreme Court said it has no basis.
However, even if it cannot muster on that presidential
decree that is otherwise stale and already antiquated, it
LV WR EH GRQH LQVRIDU DV WKH SUHVLGHQW¶V SRZHU WR
interfaith? full? (wa ko kasabot 55:07) compliance of the
law is concerned.
But however, the creation of the committee of the
3KLOLSSLQH¶V7UXWK&RPPLVVLRQZDVVWLOOQXOOLILHGE\
the SC not because the president is not allowed to
create another committee but because they said
that offends equal protection clause.
How? Because accordingly, in that executive order, there
were three provisions that would somehow
convince the SC that it singled-out the
administration of Gloria Arroyo. So SC was actually
suggesting that if you really want to do that, if you were
sincere about that, you have to go as far back as
Aguinaldo. Tanang presidente nga nangamatay na atong
iapil. But then, the SC said that well, it might be a long
shot but at least there has got to be a priority.
But then, I think you know in this case, this was the SC
IHDULQJ WKH WUXWK 7KDW¶V ZKDW KDSSHQHG WKHUH H[DFWO\
why this is one of the reasons why PNOY during that time
was so pikon with Corona, because Corona was chief
justice during that time, before Covid there was Corona,
that was avoided by the president. The reason is because,
PNOY at that time was so pikon with Corona because he
FRXQWHG VHYHUDO « QDZDOD MXG VKD « WR FDVHV
GDZLQJRQVKDSDJ*ORULD$UUR\RZDVWKHUHVSRQGHQW««
SUHVLGHQW«WKHUHDQJQDKLWDERZDVQDLPSHDFKJ\XGVL
&RURQD 7KDW¶V ZK\ ZH DOZD\V VD\ WKLV LI \RX DUH XS
against the president, make sure you are 101%
Questions:
Q: The distinction between the internal security and
external security and how do they pertain to the AFP and
PNP?
Atty: Internal security pertains to the DILG which the
PNP is part of. So PNP. Pag law enforcement within the
FRXQWU\WKDW¶V313([WHUQDOVHFXULW\OLNHZKHQ\RXGHDO
with the bestfriend China, that is AFP. However, take note
that even if it were insurgency, NPA, mga Pilipino ra sila,
supposed to be internal but the SC says that is actually to
be categorized as external to be taken cared of by AFP.
So aside from the dealing with bestfriend China, you have
the insurgency. Pero take note that it does not mean that
the PNP is 100% removed from the fight against
insurgency, it can still help the AFP like information
gathering, like giving us inaccurate list, red-tagging,
something like that, pwede. And in fact, the president can
actually summon the PNP and say help the AFP to fight
insurgency, pwede, okay. Pero as it is, if it is not a wrong
situation, for example, AFP law enforcement lng, local,
away sa silingan, extrajudicial killing
Q: 7HFKQLFDOO\ FDQ ZH MXVW VD\ LW¶V OLNH FRQVWUXHG DV
dismissal kapag we give a budget for CHR for like P1,500
or P1,000, can we just immediately say na medyo
constructive dismissal nalang?
Atty: When you say constructive dismissal it pertains to
the employees, but the agency itself, you might have
wanted to say constructive abolition ..
Atty. Guji: So, now take note that there is such a thing
as good faith and bad faith as a yardstick by which you
can say that, that was properly abolished.
Q: What was their purpose in saying that there are only
one (1) thousand CHR?
Atty. Guji: Because they said that this CHR is working
against the government and yet the government is paying
them money. So, now they say if you work against the
JRYHUQPHQWE\WDNLQJDZD\PRQH\LQRWKHUZRUGVWKDW¶V
Retaliation.
Q: If that is retaliation, will they know that is bad faith or
good faith?
Atty Guji: 2IFRXUVHWKDWLVD³QREUDLQHU´LWLVEDGIDLWK
11
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Atty. Guji: 7DNHQRWHWKDWLWLVWKH&+5WKDW\RX¶UHWU\LQJ
to tinker with and even if it were not in the same category
as the Constitutional Commissions, they still cannot
dispense it all together. Even by way of deprivation of
[*money?(not clear huhu)], that is constructive abolition.
Student: Atty., with regards to the Commission on Human
5LJKWVWKH\GRQ¶WKDYHILVFDODXWRQRP\ULJKW"
6WXGHQW $WW\ \RX¶YH PDGH PHQWLRQ DERXW $FWLYH 313
officials are not allowed to have or to at least handle
another office in the public. Why was Barma appointed as
in the Office of PCSO.
Student: My question is with regards to the P1000 di ay.
Atty. Guji: Who is Barma? ᄋ
ᄏጮ
ᄎ
ᄍ
ᄌ
ጴ Is he a retired PNP?
ጳ
ጲ
ጱ
ጰ
ጯ
Student: He was a former PNP Chief during the time of
Mayor Osmena. Who did something in favor of the mayor.
Atty. Guji: And she is now in PCSO, tama ba?
Student: Yes atty.
Atty. Guji: Yeah, I think she retired as PNP. Either she
resigned or she retired as PNP.
Student: So, if that is the case Atty., even if retired or
resigned, can she still go back to her former office or
former position in the public service as a policewoman?
Atty. Guji: Yes she can. Remember that it always
depends on the appointing authority, for as long as
he possesses the qualifications, especially in so far as age
is concerned. In the PNP, the retiUHPHQWLVHDUOLHULW¶VDW
the age of 55. Yes, she can be reemployed. When you
WDONDERXWUHHPSOR\PHQWWKDW¶VDPRGHRIUH-entering the
service, pwede. For as long as she possesses the
qualifications, especially when age is concerned and more
importantly, if she enjoys the trust and confidence of the
appointing authority.
Student: So, does that mean that the next appointing
authority is not an ally of the current administration, will
her application for reemployment be declined or
objected?
Atty Guji: Definitely, the appointing officer has the
sole prerogative. Regardless of the tracking record,
regardless of who you are. If the appointing officer says,
,GRQ¶WOLNH\RXWKHQ\RXZLOOQRWEHDSSRLQWHG,QRWKHU
words, regardless of your background, your
tracking records there or your credentials. One
cannot use that as a matter of right, you are still
under the grace of the appointing officer.
Atty Guji: It is not always the president that is the
appointing authority, sometimes it is the Regional Court
or the PNP Chief that can be the appointing authority.
Atty. Guji: The Ombudsman has fiscal autonomy. The
&+5LWLVVLOHQW6RZKDW¶VWKHTXHVWLRQ"
Atty Guji: .DQLQJ &+5 LW¶V OLNH WKH\ DUH WUDLWRUV 7KH\
are only in the same government and yet they are up
against the military, the police and sometimes even up
against the President. Di ba? When the CHR criticizes the
president for being the inspiration for extrajudicial killings.
That argument is so flawed, are we saying then that the
courts should place the government above the law
because the courts actually derive their income from the
government. Di ba? That is a flawed argument, just
because they are paid by the government, the court
cannot anymore go after the government or its
occupants.
Atty Guji: Just like the Ombudsman as government
authorities,yet the Ombudsman is paid by government
money. Are we saying then that the Ombudsman will say
WKDW³RND\OHt us be legislated out of public office because
ZH FDQQRW DQ\PRUH GLVDEOH" 'L FOHDU KXKX 7KDW¶V D
flawed argument.
Student: In the Constitutional provision, it it found there
that they cannot just be liquidated by Congressional or by
executive provision?
Atty. Guji: It is not found in the Consti but it is found in
the Deliberations of the Consti. As written by Father
Bernas, it was from Father Bernas that I got that. Even if
it is not directly created by the Consti, Congress cannot
desist it all togHWKHU ,W¶V IURP WKH &RQVWLWXWLRQDO
GHOLEHUDWLRQLQRWKHUZRUGVLW¶VIURPWKHLQWHQWRIWKHILUVW
It is not expressed in language of the Consti.
Atty Guji: Remember your statcon? What did I say?
-³7KH ZRUGV RI WKH ODZ DUH DFWXDOO\ VXEVHUYLHQW WR WKH
inWHQWRIWKHODZ´'LED"%HFDXVHVRPHWLPHVWKHLQWHQW
is not expressed in the language of the law.
Student: Regarding the power to hear of the CHR, can
they exercise it for example mandated Jurisdiction of the
CHR but somewhat with hold the information and
somehow hamper the investigation of the CHR? Can they
invoke their right to remain silent? Can he be in
contempt? (Answer: YES)
Atty. Guji: Are you saying that he is an employee of the
CHR?
Student: No Atty., an agent.
12
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Atty Guji: Like a police for example?
If a policeman will defy the order of the CHR, for example
there is someone who is killed then the CHR wanted to
summon the policeman. If you defy the subpoena or do
not cooperate with the CHR, you can be cited for
contempt.
Student: Okay Atty., so do they have the right to remain
silent atty?
Atty Guji: <RXPHDQWRVD\WKDWLW¶VLQFULPLQDWLQJ"7KDW
I have the right to remain silent?
Okay. So here is my take on that, if we give them that
privilege to stay silent, that right to remain silent that
might incriminate them, the subpoena receipt will lose its
compulsory character. Di ba? So there is a granted
compulsory character there. The police has to say
something pero just like in the senate investigation or the
house investigation kanang in aid of legislation where the
witnesses will say I invoke my right to self-incrimination.
Guji: There is this ruling by the Supreme Court way
before that you cannot do that all the time because you
are not the judge of your innocence or guilt. In other
ZRUGVLIWKHSROLFHLVVXPPRQHGDQGKHVD\V³,KDYHWKH
ULJKWWRUHPDLQVLOHQWDQG,¶PQRWJRLQJWRVD\DQ\WKLQJ´
- then it brings to fore the fact that he knows something
that is essential to the investigation. You know something,
diba? Why do you want to be silent? Well, if the police
ZRXOGLQVLVW,WKLQN\RXUTXHVWLRQLV³:KDWLIWKHSROLFH
ZRXOGUHDOO\VD\µ,KDYHWKHULJKWWRUHPDLQVLOHQW¶´,WKLQN
the right to remain silent is available only if you are the
suspect, for example. But what if the CHR would just say
WKDW³2.\RX¶UHSDUWRIWKHRUJDQL]DWLRQ\RXPLJKWNQRZ
something, you need not be the suspect but you know
VRPHWKLQJ´GLED"3ZHGH:KDW,¶PVD\LQJLVWKDWWKHUH¶V
got to be that compulsive character in so far as subpoena
is concerned, otherwise, it becomes a toothless
proposition.
Q: What standard of cooperation is needed for a state to
somehow violate kay kuan the human rights? (Ambot oy,
diko kasabot nimo Kenneth)
Guji: No. 1 (inaudible). I subpoena. Imong gi snob, wala
jud ka nagpakita, then, that would be subject to
FRQWXPDF\ <RX NQRZ ZKDW .HQQHWK LI WKHUH¶V D
subpoena for example, You just subpoena there, you
make your statement, regardless of the value of your
statement, even if probably you denied everything, that
\RXGLGQ¶Wknow anything about it, that will be acceptable
for as long as you just coopeated. You just comply with
the order. Because we're not saying that once you come
to us, that once you respond to our subpoena, make sure
WKDW ZKDWHYHU \RX VD\ ZH¶UH JRLQJ WR OLNH LW :H¶UH QRW
saying that, diba? What you might want to say might even
EHQRWKHOSIXOLQWKHLQYHVWLJDWLRQEXWMXVWVD\LWIRUJRG¶V
sake, Kenneth! Just say it!!!!
Q: This is still in relation to the CHR, Atty. The granting
of the measly 1000 peso budget. You said earlier that Fr.
Bernas said that, the Congress is not allowed to totally
abolish the CHR, yet they passed the general
appropriation law granting a measly budget to the CHR
which I think amounts to a virtual abolition of the
Commission, does this amount to grave abuse of
discretion on the part of COngress, If it does, what is the
remedy that we can resort to?
Guji: It is a grave abuse of discretion, JoneeEEeeL. The
remedy is certiorari. Diba, we said even if it is a co-equal
branch of the government, but if you cross the line, by
H[SDQGHG MXULVGLFWLRQ WKH 6& FDQ VD\ ³&RQJUHVV \RX
FURVVHGWKHOLQH´$QGWDNHQRWH-RQHH((/QROHWPHDVN
VRPHWKLQJ LPSRUWDQW KHUH FODVV :KHQ \RX VD\ LQ µWKH
JHQHUDODSSURSULDWLRQVODZ¶RNWKH\VDLG³NDQDOang
&+5´- in other words, somehow constructively, they are
trying to amend the EO that created the CHR, DO YOU
FOLLOW CLASS? And that is not allowed in a general
appropriations law (GPL). Pag GPL, you just allocate
budget, you cannot use that to amend laws that created
a public office for example. And there is a case where it
VD\V WKDW ³2. *3/ LOD JLNXKDDQ RJ LQWHUQDO UHYHQXH
DOORWPHQWDQJ/*8DQGWKH6&VDLGµ7KDWFDQQRWEHGRQH
EHFDXVH \RX¶UH YLUWXDOO\ DPHQGLQJ WKH /*8¶ $QG WKDW
cannot be part and paUFHORIWKH*3/´7DNHQRWH*3/ allocate budget BUT not in so far as you virtually amend
another law that creates an office or grants internal
revenue allotment to the LGU. DO YOU FOLLOW? But the
answer there and the main answer is IT IS GADALEG.
Q: Who has the legal standing to file?
Guji: If it were transcendental importance, anybody can!
A citizen, taxpayer suit. What do we say in StatCon? Pag
transcendental importance, the Court can always
liberalize the locus standi requirement.
Q: How much residXHLVWKHSUHVLGHQW¶VUHVLGXDOSRZHUV"
Guji: ,I LW¶V QRW OHJLVODWLYH LI LW¶V QRW MXGLFLDO LW PXVW EH
executive. In other words, in case of doubt, go to the
13
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
residual powers of the President. In other words, if you
GRQ¶WILQGDVSHFLILFEDVLVLQODZand in the Constitution, it
becomes the residual power of the President.
Q: Regarding the question on the military men in active
duty being appointed, does it cover those who are under
the reserve officers? Because eventually, they might want
to active service somewhere during the term of an
appointive office so how do you reconcile that Atty?
Guji: The reservists are not necessarily part and parcel of
the armed forces no. In fact, and reservists, they can
actually campaign. Diba, what did we say? Armed focus,
PNP, they cannot engage in partisan political activity
except the reservists. So now, by analogy, my answer to
WKDW LV WKDW LI \RX¶UH D UHVHUYLVW \RX¶UH QRW LQ DFWLYH
service. Reserved ka lang eh diba? So pwede!
In other words class, what we are saying here is that we
cannot militarize the civil service. Civilian authority is
supreme at all times. So now if you mix the PNP with
those people who are active from the military, they ***
WKH 313 DQG ZH¶UH VXSSRVHG WR SURIHVVLRQDOL]H WKH 313
eh. So here comes the military who probably feel that
WKH\ DUH EHWWHU DQG ELJJHU WKDQ WKH 313 WKDW¶V WKH
problem there.
WHY IS 306 SO SHY? :H¶UH QRW $WW\ :H MXVW GRQ¶W
follow. LOL.
Guji: 6L -HZHO QDJ DVN QD ³:KDW LI GDZ QDJ YHUEDOO\
resign ka so dili ma approve imo resignation kay verbal
UPDQ V\D"´ $QG P\ DQVZHU ZDV ³<RX GRQ¶W FDOO WKDW
UHVLJQDWLRQ DQ\PRUH \RX FDOO WKDW DEDQGRQPHQW´ .D\
nilakaw naka eh. The legal basis there is, if you look at
the syllabus for Law and Public Officers, go to
Abandonment, there is a case there that is highlighted.
7KDW FDVH ZLOO DQVZHU \RX DOVR 7KDW¶V WKH EDVLV ZK\ LW
becomes abandonment. (Read the case guys!)
You cannot hold hostage the process of resignation for
WKHPHUHH[SHGLHQWRI³$KGLNRPXIROORZDQDEODEODEDVWD
mubiya QDNRJ JRYHUQPHQW´ ,W¶V OLNH JKRVWLQJ HK EVWD
mawala lang ko! (ouch) So now, if you are confused if
that was resignation or retirement, then we call that
abandonment! And that is still a mode of extinguishing
official relations with the government.
the original director of the CHR a few years back and then
KHPHQWLRQHGWKDW³3UHVLGHQW'XWerte gave verbal orders
to the police to not give them police reports so CHR
FDQQRW LQYHVWLJDWH´ ,I WKH SROLFH ZRXOG SRVW WKDW DV D
defense, what would the CHR do as a remedy?
Guji:
Well, the CHR can always challenge that.
Remember here, Mary Sibyl, that when the CHR cites you
for contempt, the reason why is because of the defiance.
Now, if the police cannot hide under the cloak of order
from a higher authority, chances are the police can say
³,Q JRRG IDLWK PDQ NR ND\ WKHUH LV DQ RUGHU IURP WKH
higher aXWKRULW\,WLVDQRUGHUIURPWKH3UHVLGHQW´:KDW
did we say? The CHR is independent. And so now, if the
3UHVLGHQWVD\V³1RSROLFHRIILFHULVJRLQJWRWHOOWKH&+5
DQ\WKLQJ DW DOO´ 7KDW YLRODWHV WKH LQGHSHQGHQFH RI WKH
&+5 '2 <28 )2//2:" ,W¶V D YLUWXDO encroachment on
the part of the CHR to investigate.
6RZKDWLVWKHUHPHG\RIWKH&+5"$JDLQLW¶V*$'$/(*
so certiorari. Did I answer that?
Yes, Atty!
Student: Grievances Atty when we conducted the
Interview Atty he was really sad about that he felt he
cannot address any remedy for that.
Atty: 7KDW¶VWKHSUREOHPH[DFWO\ZK\WKHUHLVDFDVHWKDW
VD\VWKH&+5LVD³WRRWKOHVVWLJHU´PD\EH\RXNQRZZKDW
class na tali gam an sa framers of the consti saying e had
they been more specific and gave more teeth to the CHR
they could not be like this diba? Sayang ila tali gam an.
Q. Okay, did I answer you Mary Cybel?
Student: Yes, Atty.
Q: Any other questions?
Student: Atty?
Atty: Yes.
Student: Yes Atty, this in relation kato ganina imo gi
discuss about resignation Atty I am a little confuse
because am my readings Atty in your books specifically it
was stated there that there is no required form as to
resignation and so it can be oral or written, but tonight
you said but if ing ana mn gani like oral and there is no
written resignation, it can be construed as abandonment
my question Atty would be, what is controlling? The one
Q: You mentioned about Dela Rosa, Atty. That if the
in the book or the one you said tonight or if any case what
police does not help with the investigation of the CHR, he
is the input Atty of becoming abandonment instead of just
resignation, would it be less favorable to the officer Atty?
will be cited in contempt. We conducted an interview with
14
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Ans: Okay, now, I hope you remember also that when I
said that it does require any form and it need not writing
that is more in the context of elective public official
like I said because if you are appointive man gud it¶VHDV\
to do that just a write a letter about, however, if that
VLWXDWLRQVKDSSHQHGZKHUH\RXVWLOOGRQ¶WZDQWWRZULWHD
letter diba? So it could be taken as resignation, however
you offended somebody, wala nimu gi follow ang
procedure so that somebody mLJKWVD\³KDDEDQGRQPHQW
QD¶¶ GLED" 3DJ DEDQGRQPHQW FKDQFHV DUH LW PLJKW
jeopardize your retirement benefits diba or other benefits
that might have agreed to so ano siya murag derogatory
DQJDEDQGRQPHQWDVWRKLVUHVLJQDWLRQWKDW¶VWKHDQVZHU
Okay.
6R LW¶V EHWZHHQ WKH 313 DQG RXWODZ DJDLQ FODVV WKH
reason is oulaw siya e like addict class ng rape diba?
Okay, that is not human rights violation within the context
of the jurisdiction of the CHR because ang addict, you
GRQ¶WH[SHFWDQJDGGLFWWRSURWHFWRQHIRUH[DPSOHGLED"
%XWGRQ¶WJHWPHZURQJFODVVKDEXWWhat is still human
rights violation but not within the context of CHR
jurisdiction. It pertains to somewhere else. The regular
courts but not the CHR. In fact, the CHR does not even
adjudicate, the CHR files the case it still goes to the
regular courts, in other words, the CHR is merely there to
initiate, to investigate and if they find probable cause they
can file it in the court and then eventually it is the regular
FRXUW,IWKH\GRQ¶WKDYHWKDWWKH\FDQQRWPRYH5LJKW"
Student: Thank you Atty.
Q. Did I answer that Quenel?
Atty: Questions?
Quenel: Yes Atty. Thank you so much.
Common lets take advantage of the connection because
anytime I will be disconnected.
Atty: Am I loss again?
Jaed you have something to say there?
Salazar: None so far Atty.
Atty: Okay.
Quenel: Yes atty, good evening.
Atty: Yes, yes Quenel you have something to say.
Quenel: Amhh may be it just a confusion atty as to
CHR in terms of scope regarding Philippine
National Police cause diba as what the constitution
said atty na that PNP is civilian in nature but then
how come in terms of treatment sa CHR its
different?
Atty: different as supposed to?
Quenel: the one you mention earlier like if it is a case na
pinatay yung innocent person CHR will react but if its PNP
no.
Student: No atty, okay lang.
Atty: Hello?
Student: We can hear you atty.
Atty: There somebody ask,
Student: Atty, can I ask, regarding ombudsman
independence under the topic of (dili maklaro ang
voice )
Atty: Ahh, plenary authority over the deputy official, okay,
and the ombudsman and the tanod bayan. Wala siyay
disciplinary authority, the law that authorizes the
president to discipline or remove the deputy ombudsman
but then the SC said that is ineffective not necessary and
constitutional and ineffective because it offense the
constitution so that is anymore allowed, the president is
hands off in so far as the discipline of the deputy
ombudsman in his concern including the other officers
inside the office of the ombudsman. In other words, they
are subject to internal disciplinary authority.
Atty: Ah okay okay, here, in is in the context of saying
that if it were the agent of the state diba like police
military they are the agent of the State, so if they are the
agent of the state that violate human rights then
jurisdiction pertains to the CHR but if they were a private
person or the out law like NPA the jurisdiction does not
pertain to the CHR. So it is the PNP as opposed to an out
law and PNP as to opposed to other government agencies
if probably that is were the condition is.
Q: What about the ombudsman himself? Who can
discipline him?
Q. Did I answer that?
Student: Yes Atty.
Ans: The president cannot, the reason because the
ombudsman is an impeachable officer.
Atty: Did I answer that John Paul?
Atty: Are you still here? Do you still here me?
15
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Atty: Basta kato pangutana ni John Paul meaning,
can the president discipline the deputy
ombudsman and other officers of the tanod bayan
for example.
Ans: No, because it encroaches on the independence of
the ombudsman but take note that you might be mislead
because there is a provision to that effect in the
ombudsman law but that is in effect, that is
unconstitutional.
Okay, questions?
Are you still there?
Students: Yes atty.
Lalaine: Good evening Atty.
Atty: Yes.
Lalaine: I am from 306 Atty, I am kind of confuse
because this is our first meeting with you about
the subject So I just want to know more atty about
the proceedings in the electoral tribunal
particularly the senate electoral tribunal for
example atty, would they have a legal standing as
an individual to file or to disqualify a senator atty,
if they are satisfied with the performance in his
duty atty?
Atty: Ah okay, what you are talking about is that the
remedy of quo warranto meaning pag quo warranto the
proper party there is a registered voter. Are you a
registered voter? Okay, you can file a case for quo
warranto but there is prescriptive period there, I think it
is only 30 days from the proclamation. Okay, if that period
disappears, it might be that he can still file for quo
warranto? Because what did we say pag quo warranto
PDQ JXG FODVV WKH UHDVRQ WKHUH LV ZKDW¶V WKH JURXQG"
Eligibility and disloyalty to the republic and these are
continuing requirements. However, if quo warranto is not
available as a remedy by the lapse of time. The remedy
there is in the senatorial elections meaning you may not
be able to vote for him again. Okay, when there is quo
warranto as opposed to election protest pag election
protest the petitioner there or the protestant is the one
who is interested to me. Pero ikaw as a registered a voter
\RX MXVW ZDQW WR EH UHVSRQVLEOH FLWL]HQ WKDW¶V TXR
ZDUUDQWR WKDW¶V WKH UHPHG\ %XW WKHQ DJDLQ WKDW LV WLPH
bound 30 days from proclamation.
Atty: Yes Lalaine I think I loss you for a while what are
you asking? I think you have a follow up questions.
Lalaine. Yes you have answered my question, follow up
nako atty ahmm,
Atty: Do you hear me?
Lalaine: Yes Atty.
Atty: I think I was not able to hear some words there.
Can you start over?
Lalaine: Na answer na atty. Thank you. You already
answered atty that the petition for quo warranto is
available for the registered voter.
Atty: Okay but you can still hear me? Your follow up
question I am not hearing you anymore. Hello? You have
follow up lalaine?
Lalaine: Wala na atty, side comment unta atty.
Atty: Sarigumba? Your about to say something?
Atty: No questions? Because if there are no questions.
301 and 304 are excuse.
Atty: $Q\RQHZKRGRQ¶WXQGHUVWDQG&HEXDQRKHUH"
Atty: Okay no more questions.
*the end*
Atty: Did I answer that Lalaine?
Lalaine: Yes atty, but would that be kanang lisud atty for
you to judge.
Atty: Okay, other questions?
16
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
CHAPTER III ± POWERS OF ADMINISTRATIVE
AGENCIES
POWERS OF ADMINISTRATIVE AGENCIES
1. Quasi-legislative power
2. Quasi-judicial power
3. Implied power
4. Administrative powers (not really discussed in the
ERRNEHFDXVHLW¶VDOUHDG\JLYHQ
A. QUASI-LEGISLATIVE
The rule-making power of the administrative agency.
Background
The Constitution is couched in general terms. Sometimes
the Constitution says it needs an enabling law, so that this
particular provision can be enforced. (sometimes it says
as may be provided by law) If that's how the Constitution
is written, chances are, it's going to be non-self-executing
and of course you know what it means when you're saying
non-self-executing provision it means that it needs an
enabling law. In other words, in the absence of an
enabling law, you cannot demand that as a matter of
right. It is not demandable as a matter of right.
What if there is no enabling law?
TN: Not all provisions require an enabling law. In fact, in
case of doubt, you interpret the provision as being selfexecuting.
What does an enabling law do?
·
Specifies or particularizes an otherwise motherhood
statement that was stated in the Constitution
DOCTRINE OF SUBORDINATE LEGISLATION
When Congress passes a law, it is couched in
general terms. So what will specify this law that is
otherwise couched in general terms? The
administrative agency.
·
. By virtue of its power to issue rules and regulations
or the rule making power otherwise known as the
doctrine of subordinate legislation
Why subordinate legislation? Because if Congress
legislates, you call that primary legislation. So the quasilegislative power is actually pursuant to the
doctrine of subordinate legislation
But what did we say, did we not say that the power to
GR legislate is non-delegable? It cannot be delegated,
correct?
āEXC
7KDW¶V VXEMHFW WR H[FHSWLRQV DQG one of the
exceptions is Delegation to administrative
agencies.
How do we characterize the rule making power of
administrative agencies?
·
It has the force and effect of a law, exactly why we
call that subordinate legislation, and also it is entitled to
great weight and respect.
·
In the absence of any challenge about its
constitutionality, it is presumed to be constitutional and
in accordance with the mother law and that mother law,
or organic law is actually the one that is legislated by
Congress.
What exactly does a subordinate legislation do?
·
specifies the statute or the mother law and it fills
in the details.
There are missing details in the law that was not provided
for by Congress. Exactly why sometimes, or most of the
WLPH&RQJUHVVLVOLNHRND\³:HKDYHWKLVODZDQGWKLVLV
now the administrative agency that is going to administer
the law. Also administrative agency. It's not only that
you're going to administer but you're so going to
promulgate the rules and regulations that will specify this
ODZ´
FORMS OF SUBORDINATE LEGISLATION
In your labor law, I think it is Department order. In tax,
that this Revenue memorandum regulations, something
to that effect, or Revenue regulations pag tax. COMELEC,
you call that resolutions.
ADMINISTRATIVE REGULATIONS, CLASSIFIED.
1.
2.
3.
Legislative Rule
Interpretative Rule
Contingent rule
Legislative Rule
regiseasiurun
a Interpntasia run
a contingentpun
rulemakingpowerregimes hearingnoticeand
publication
Okay, number one is, it could be a legislative rule. In other
words, it's rule making power. Now if it is, by virtue of
17
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
rule-making power, most of the time, or sometimes it
requires hearing notice, and publication Hearing, diba,
usahay ang mga balaod dunay hearing while it is being
OHJLVODWHG 3XEOLF KHDULQJ LQ RWKHU ZRUGV LW¶V JRLQJ WR
consult the public. Then after that, there's got to be
publication for it to be enforced, just like a law. Because
what did we say? It has the force and effect of a law.
However, legislative rule to be distinguished from
interpretative rule (merely advisory in nature).
might be deficient. It did not exactly treat a particular
situation.
A: Doctrine
Inferences
It is merely advisory. It merely interprets a rule. In which
case, that is only for the consumption of those people
inside the organization. It does not need publication
because it does not involve the General Public.
Contingent Rule
of thelaw
answerpecularities
being
enforced based on Doctrine
Necessary
Doyennes
Implication
of
Okay, now, contingent rule it's justand
about, what did we
say? Congress legislates. But then Congress is not an
expert in every field of law. So for example, Congress is
OLNHRND\&20(/(&KHUH¶VDODZHOHFWLRQODZ,W VXSIRU
you to implement that law. Sometimes when Congress
legislates. It cannot anticipate each and every situation
that comes up or arises as the law is being enforced in
the field.
Illustration: for example, this particular law by Congress,
could not meet a particular situation( Maybe because
Congress was not able to anticipate that) The COMELEC
can actually issue a contingent rule and that rule will
answer peculiarities as the law is being enforced in the
field. What's the basis there? Okay. What is your basis
then? What is the basis for the COMELEC to say that,
³2ND\WKLVLVDFWXDOO\FRQWLQJHQWUXOH´
Okay, can I call Who is this? Prince Darius. Are you here.
Prince. Darius Prince Darius is not here. Anyone would
like to volunteer? [kuyawan mga bayot]
Q: :KDW V WKH EDVLV ZKHQ &20(/(& VD\V ³RND\ ZH UH
going to fill in the missing. Congress was not able to
DQWLFLSDWHWKLV´,QRWKHUZRUGVWKHODQJuage of the law
Doctrine
Necessary
Implication
and
That even if it is not expressly provided for by law, by the
doctrine of necessary implication and inferences, We said
that it has got to be there in the law even if it's not there
and that becomes the basis for contingent rules and
regulations issued by the administrative agency
Interpretative Rule
mealyinterprets a nicedoesnot need
internal consumption
publication as
onlyfor
advisory
the org
as
Illustration)RUH[DPSOH\RXDUHDSURVHFXWRU+HUH¶VD
law that somehow is ambiguous to you. You write to the
Justice Secretary for clarification. Justice Secretary
responds and then it becomes an internal memorandum
for the consumption of the people inside the Department
of Justice.
of
TESTS TO VALIDATE DELEGATION OF
LEGISLATIVE POWER
1.
Completeness Test
2.
Sufficient Standard Test
Diba, EHFDXVH &RQJUHVV LV OLNH ³RND\ $GPLQ
agency, Ikaw na bahala. You promulgate rules and
UHJXODWLRQVWRVSHFLI\WKLVODZ´
Completeness Test
completeinsofar as generaltannen
ear isconcerned
is
picswhich
it lacksmeopen
willbeprouderoyHedelegate
It means that the law is complete in all its terms and
conditions. And once it leaves the hands of Congress, the
only thing that needs to be done by the delegate, like the
administrative agency is to enforce the law.
But now the question is this. If we say that the law
is complete in itself, how come the administrative
agency is still required to fill in the details? Is it not
that tricky class? When you say the law is complete? If
there are missing details, it is not complete to begin with.
Then why do we say complete in itself?
The reason there is because when the rule says,
it must be complete in itself, it merely means that it is
complete insofar as the general statements of the law are
concerned. But not insofar as specifics.
0
Illustration: For example, here's a law that sets a
plebiscite for Palawan. I think it's going to be broken
down into three separate and smaller provinces. So that
is going to be, that is going to be subjected of plebescite
DQG QRZ ,I &RQJUHVV LV RND\ ³&20(/(& NDPR QD¶\
bahala mag-SOHEHVFLWH´ 2ND\ &20(/(& RND\ WKH
plebiscite is going to be done, six o'clock in the morning
until 5 o clock in the afternoon.
18
of Necessary Implication andInferences
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
You don't find that in the law. But the law is complete,
but the details are missing because these details are too
minute, nya imo pa gyung ibutang sa balaod. Exactly why
we have the IRR; we have the rules and regulations to
specify that law.
Sufficient Standard Test
standardscouched
the lawprovides
general termsandteedelegate willuse
in
these standards asguide to
fillintodetails
In other words, if the law leaves the hands of Congress
DQG &RQJUHVV LV RND\ ³DGPLQLVWUDWLYH DJHQF\ \RX WDNH
FDUH RI WKH UXOHV DQG UHJXODWLRQV´ What is the guide
that will lead the administrative agency to fill in
the detail?
their expertin
ā2ND\WKLVLVZKDW\RXFDOODV³thefield
standard
set forth by law´
because they an
TN: These standards class are also couched in general
terms.
Like, for example, Fair and Equitable Employment
Practices. It's General right?
Illustration: But in that case class, you know what
happened there. The POEA required a model contract to
be entered into by Filipino semen and the local and
foreign employees to ensure that the Filipinos are not to
be disadvantaged insofar as negotiation for the contract
is concerned. But then they said, It's not in the law. The
law doesn't say that you have to implement a model
contract or we have to draft a model contract for
everybody to follow. But then the Supreme Court said
³ZHOOLWLVSXUVXDQWWRWKHVH efficient standard that says
IDLU DQG (TXLWDEOH (PSOR\PHQW 3UDFWLFHV´ 6R QRZ LW LV
couched in general terms.
But what's the reason why we trust the
administrative agency? They're experts in the field.
When you say fair and Equitable Employment Practices,
automatic, they know what it means.
So that's a sufficient standard for as long as that
standard is determinate and determinable.
In other words, there are parameters, which you can say,
okay, until here, only beyond that, we're going to expand
the law. So there.
Here are the examples of sufficient standard.
Aside from Fair and Equitable Employment Practices, we
have Simplicity, Economy efficiency. Adequate and
efficient instruction. And this one very broad, public
interest. Or better yet for LTO - Public. Safety. It's so
broad. However, when LTO here is the word Public Safety,
they know exactly what it means. Okay, Public Safety.
³$VLWPD\GHHPQHFHVVDU\´YV³DV\RXGHHPILW´
As it may deem necessary
There are also sufficient standards that would VD\³DVLW
PD\GHHPQHFHVVDU\´
Illustration: Okay, the case in point here is The law that
VD\V ³RND\ /LJD QJ PJD %DUDQJD\ \RX FDQ DFWXDOO\
FUHDWH \RXU SRVLWLRQV DV \RX PD\ GHHP QHFHVVDU\´
exactly, why class sa Liga ng mga barangay you know
what happens is okay, first vice president, second vice
president third vice president kadaghan ba ug, vice
SUHVLGHQW´,W VOLNH\RXFUHDWHSRVLWLRQVWRDFFRPPRGDWH
them, para mastarring lang sila. But then the law says,
okay, it's up to you for as long as you deem it necessary.
TN: WKHSKUDVHWKDWVD\V³DV\RXPD\GHHPQHFHVVDU\´
WKDWLVDVXIILFLHQWVWDQGDUGDVRSSRVHGWR³$VPD\GHHP
ILW´
As may deem fit/As you deem fit
the Supreme Court said that is not a sufficient standard
because it affords administrative agency a roving
commission, unbridled discretion on how to particularize
Difference:
āZKHQ\RXVD\³as may deem necessary´ZKDW
is necessary is quantifiable.
ā%XWZKHQ\RXVD\³as may deem fit´LWLVnot
quantifiable because it's up to your discretion what is
fitting and what is not fitting?
Illustration: Probation Law Also in probation law, the
Supreme Court said ang nahitabo mn gud class sa
probation law before class, karaan ni nga probation law
ha, not this probation law. For purposes of illustration I
FLWHG WKLV FDVH 3UREDWLRQ ODZ EHIRUH VDLG ³RND\ $OO
provinces in the Philippines are going to have a
probationer. Okay. And that probationer is to be is to be
paid by the provincial boards. the So now the Supreme
&RXUW VDLG ³:HOO LI \RX GR that, what if the provincial
ERDUGZRXOGVD\³:HKDYHQREXGJHW"´5LJKW6RLIWKH
provincial board would say we have no budget, we cannot
19
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
iauthorisedbylaw
agermanetotiepunoaacan
pay this probationer. What happens is the law cannot be
applied, uniformly throughout the country because each
province might say we have no budget and what if
another publishes? Well we have budget we can pay for
probationer. In other words the law depends now on the
availability. Not only the availability but also the
willingness of the provincial board to allocate for Budget.
In other words, that becomes again what? probing
commission unbridled discretion. that is not sufficient
standard.
Other examples of sufficient standard:
·
Justice and Equity
·
Public convenience
·
Sense and experience of men
,PDJLQHWKDWLW VVREURDGQR³VHQVHDQGH[SHULHQFHRI
PHQ´ %XW WKHQ DJDLQ ZKDW GLG \RX VD\" ,I WKH
administrative agency hears that phrase, they know
exactly what it means. Because what did we say? They
are experts in that field.
7KHUH¶VDOVRnational security. Take note that even if the
law does not provide for the standard, there are no
choices by which you can see that that is the standard,
SC said we should bend over backwards to locate the
VWDQGDUGVVRPHZKHUHHOVHLQWKHODZ:KDW¶VWKHUHason?
We want to ensure that that particular rules and
UHJXODWLRQVZLOOQRWVXIIHUFRQVWLWXWLRQDOLQILUPLW\:KDW¶V
the reason? Out of deference to a co-equal branch of a
government.
Kapag co-equal branch ka, SC will hesitate, judicial
restraint eh. The reason is that you cannot insult a coequal branch. In other words, when SC retrains itself, the
presumption is that the admin agency knows exactly what
it's doing. The court can only come in where it says,
³RND\ DGPLQ DJHQF\ \RX FURVVHG WKH OLQH´ RWKHUZise
known as grave abuse of discretion.
As to validate IRRs, diba? We already discussed na pwede
ma delegate. Admin agencies have IRRs.
Now, how do we validate IRRs?
scope authority
3promulgatedwin
ofuprescribedpneuma
inaccordance
4promulgated
reasonable and
s
fair
Test to validate
regulations
aanypublisher
i pnd wi u upcancenter
implementing
rules
and
(1) it must be authorized by law
(2) germane to the purpose of the law - if admin
issues IRRs that might not be found in the express
language of the law, at least you must be able to establish
that that is germane or related to the purpose of the law
ie. case about the land reform - before, they were to pay
the landowners monthly. However, it was noted that
some landowners would not issue a receipt to the farmer
beneficiaries so if no receipt how do you account or
monitor payments? And so, the admin agency said that
there is a certain point where you must stop payment and
you transfer your payment to Landbank. Now, they say
WKDW \RX GRQ¶W ILQG WKDW LQ WKH ODZ :KDW LV \RXU EDVLV"
Yes, it is not found in the express language of the law but
it is germane to the purpose of the law and that is
allowed. What did we say in statcon? (mbot amit lang
malakas!) intent prevails over the express language of
the law because sometimes the law does not fully
articulate or reflect the intent of Congress. Exactly why,
in case of doubt, you go to the deliberations.
(3) promulgated within scope of authority - in other
words, the case in point there is the 13th month pay. This
is an old case but before the 13th month pay said that is
going to be based on your basic salary. However, the
admiQDJHQF\VDLGWKDWRNOHW¶VLQFOXGHFRPPLVVLRQVEXW
SC said you are now expanding the coverage of the law.
Where the law defines basic salary as basic salary,
commission is not part and parcel of basic salary. But then
\RXPLJKWZDQWWRVD\³EXWVLUGLEDLn labor law, we rule
in favor of the laborers because it is a piece of
OHJLVODWLRQ"´ <HV EXW ZH RQO\ GR WKDW LQ FDVH RI GRXEW
But here, there is no doubt because the definition of basic
salary is very clear; it does not include commissions.
(4) promulgated in accordance with prescribed
procedure
(5) reasonable and fair - what is reasonable is beyond
definition. It is a case to case basis.
Ie. before ang PRC, they issued a (inaudible) and they
VDLG ³RND\ GD\V SULRU WR OLFHQVXUH H[DPV IRU &3$V
examinees are not allowed to see your professors, see
\RXU WHDFKHUV RU DWWHQG UHYLHZ FODVVHV´ ZKDWV WKH
reason? To avoid leakage and to ensure the integrity of
20
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
the licensure examination. However, SC is not reasonable
because you cannot restrain the freedom of movement of
the examinees 3 days prior to the examination and you
are also violating academic freedom of the schools. You
cannot intrude into how schools prepare their examinees
for the exam. So SC said that is not reasonable.
(6) duly published - it has the force and effect of the
law so it has to be duly published. Just like your ordinary
law, however, except where it is an interpretative rule.
There are several rules. If it were interpretative, you do
not need to publish because it does not involve the
general public.
(7) it should be filed with the UP Law Center - what
LI\RXGRQ¶W"<RXU,55FDQQRWEHHQIRUFHG except where
the law says no need to file with the UP Law Center.
VALIDITY OF PENAL REGULATIONS
What about penal law regulations? Diba there are some
penal regulations that can also be formulated and
promulgated by admin agencies. When you say penal
UHJXODWLRQV LW¶V QRW RQO\ DERXW LPSULVRQPHQW RU ILQH LW
could be community service or confiscation of property.
What about perpetual penal regulations? It is to be strictly
construed because it might cost you your liberty, money
and property, thus, it must be strictly construed.
1RZWKHUHZDVDODZWKDWVD\V³RNXVHRIobnoxious
and poisonous substances in fishiQJLVSHQDOL]HG´EXW
WKHQ WKH DGPLQ DJHQF\ VDLG ³RN EDVHG RQ WKDW ZH UH
JRLQJ WR SHQDOL]H HOHFWURFXWLRQ´ 6& VDLG \RX DUH
expanding the law because what is punished is an
obnoxious and poisonous substance and electrocution is
not obnoxious, poisonous or even a substance at all. So
now, that penal regulation was nullified by SC because it
expanded the definition set forth by law.
part because SC will sometimes say sufficient and
sometimes not. It depends on the ratio decidendi or the
intent of the law. Again, go back to statcon. The intent
prevails over the words. Exactly why the tricky part
because you might be lost in translation and you might
VD\LW¶VQRWIRXQGLQWKHODZ:HVD\WKHUHLVQREDVLVLQ
the express language of the law. Exactly why that is a
tricky part because the language of the law is not the only
basis, you go to the intent in case of doubt.
B. QUASI-JUDICIAL POWER
It is an adjudicatory power. It is the authority to hear and
determine questions of facts and apply the law insofar as
that set of facts are concerned. Essentially, that is judicial
EXW6&VD\V³GRQ WFDOOWKDWMXGLFLDOEHFDXVHMXGLFLDOSRZHU
pertains to us only. If it were to be shared with the admin
DJHQF\WKHUH¶VQRGLVWLQFWLRQDQ\PRUH6RWRGLVWLQJXLVK
us, you call that quasi-MXGLFLDO´ %ut essentially, that is
judicial. COMELEC, probably, is the only admin agency
endowed with judicial power, not only quasi-judicial,
because it has regional appellate jurisdiction over election
protests involving local elective officials.
Quasi-judicial power must be granted expressly. You
cannot derive it by implication because it is a special
power.
What about jurisdiction? It also has to be expressly
JUDQWHGRU6&VDLG³RQMXULVGLFWLRQLWFRXOGEHH[SUHVVO\
granted and sometimes necessarily implied from those
JUDQWHG´ 6R JUDQWHG JLKDSRQ ND\ QHFHVVDULO\ LPSOLHG
from those granted man. The reason there is sometimes
the language of the law is deficient, it did not fully
articulate the intent of Congress.
Student³$WW\MXVWIRUFODULILFDWLRQLVWKHUHDEHQFKPDUN
When it is quasi-judicial power, the power to grant
extraordinary remedies of certiorari, mandamus and
prohibition, it must also be expressly provided for by law
because these are extraordinary remedies. Barkada na
sila tulo diba? It cannot be derived by mere implication.
It must be expressly granted. COMELEC is expressly
granted with these extraordinary powers.
for us to tell whether it is or whether a provision has
passed the sufficient standard test or if it expands the
ODZ"´
REQUIREMENTS FOR VALID EXERCISE OF QUASIJUDICIAL POWER
Atty: Any questions before we proceed to quasi-judicial
power?
Atty: According to SC, it is a case to case basis. However,
Doctrine of Primary Jurisdiction
no matter how it varies, go to the ratio decidendi. What
It is the doctrine of prior resort. In other words, it pertains
is the reason of the law? And that will prevail. That is the
to the specific competence of a particular admin agency.
EHQFKPDUN6RLW¶VFDVHWRFDVHEDVLVZKLFKLVWKHWULFN\
For example, importation of items? Bureau of Customs.
21
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
So if there is a problem about importation, RTC cannot
restrain the Bureau of Customs because it has primary
jurisdiction over the matter.
Ombudsman, DOJ, high profile eh, dba? But here we're
talking about the theories lang in actual practice that's
different.
What if nasaag ang litigant, ni adto sa RTC instead of
Bureau of Customs?
1. It can be dismissed right away because of the
doctrine of primary jurisdiction.
But here, let's talk about primary jurisdiction as a matter
of duty. However, sa primary jurisdiction there are
exceptions.
But what if the court acquires jurisdiction and suddenly it
realized that it does not have any and it requires
specialized expertise? Courts can refer the matter to the
DGPLQDJHQF\DQGZDLWXQWLOWKHDGPLQDJHQF\VD\V³RN
WKLVLVRXUV´WKHFRXUWKDVQRFKRLFHEXWWRJLYHLWXSLQ
favor of the admin agency. Kana kung nasayop ang court
sa pag acquire because chances are dapat at the first
instance, dismiss right away because the question there
is jurisdictional.
What if the RTC violates the doctrine? Nipadayon jud siya
until ni issue siyag decision. That decision and all the
other allied orders issued by that court is null and void
because it violated primary jurisdiction. In fact, SC said in
RQH FDVH ³DFTXLHVFHQFH KHUH GRHV QRW DSSO\´ LQ RWKHU
words, estoppel does not apply because the parties
cannot, by themselves, rearrange jurisdiction. It is not for
the convenience of the parties but iW¶V DFWXDOO\ IRU WKH
proper designation of powers between the admin agency
and the judicial body.
+RZHYHUZKHQ\RXVD\SULPDU\MXULVGLFWLRQLW¶VQRWWKDW
ZH¶UH VD\LQJ ³H[FOXVLYH´ MXULVGLFWLRQ <RX FDQ DFWXDOO\
share it with other admin agencies, especiDOO\ZKHUHZH¶UH
talking about the Ombudsman. Pag Ombudsman insofar
as Sandiganbayan case, it has primary jurisdiction to
investigate and prosecute pero if other government
agencies will come into the picture and investigate, the
2%0ZLOOVD\³VLJHRN\RXFDQLQYHVWLJDWH´
%XWWKHQZKHQWKH2PEXGVPDQVD\V³,WKLQNWKHLQWHUHVW
RI WKH JRYHUQPHQW LV JRLQJ WR EH MHRSDUGL]HG´ WKH
2PEXGVPDQZLOOVD\³ZHWDNHRYHUDWDQ\VWDJHRIWKH
SURFHHGLQJV*RDZD\DQRWKHUJRYHUQPHQWDJHQF\´
TN: In actual practice this is usually what happens, if
somebody else acquires jurisdiction, why would you run
after that jurisdiction? Because if you acquire jurisdiction,
LW PHDQV ³WUDEDKR´ VR FKDQFHV DUH WKHVH JRYHUQPHQW
DJHQFLHV ³RND\ EDKDOD ND LNDZ PD\ QLXQD LPRKD QDQJ
jurLVGLFWLRQ´XQOHVVSUREDEO\LWHQWDLOVDKLJKSURILOHFDVH
mag ilog sila. Exactly why katong case ni Honasan,
Primary jurisdiction will not apply:
a. Estoppel (estoppel on the part of the government
administrative agency, not insofar as the parties
are concerned);
b. Lack of jurisdiction;
c. Unreasonable delay;
d. Amount is relatively small;
e. The issue is purely legal;
f. Urgent, if there is urgency;
g. Great and irreparable damage;
h. Violation of due process;
i. Issues of non-exhaustion is mooted;
j. There's no other plain, speedy, and adequate
remedies;
k. Strong public interest;
l. In quo-warranto proceeding
Atty: Here is my reservation insofar as these exceptions
are concerned. My problem is, sometimes they are
interchanged by the Supreme Court. Because primary
jurisdiction and doctrine of exhaustion of administrative
remedies are so related to each other. These
exceptions that we enumerated are also exactly
the exceptions to the doctrine of exhaustion of
administrative remedies. In fact class, sometimes,
they copy each other. However, there are times where I
feel like this pertains only to the doctrine of exhaustion of
administrative remedies. In fact, there are cases, recent
cases that were decided by the Supreme Court, that I was
tempted to cite in the book, but I did not because it might
cause confusion.
Exceptions to the doctrine of primary jurisdiction
might be interchanged with the exceptions to the
doctrine of exhaustion of administrative remedies.
So be careful on that one.
TN: The doctrine of primary jurisdiction does not apply
where the administrative agency exercises quasilegislative power. It applies only where the
administrative agency exercises quasi-judicial
power.
22
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
REQUIREMENTS OF DUE PROCESS
Administrative agency, judicial process, dba quasijudicial. So now unsa may due process sa atong
administrative agencies? What did we say? The classic
case of Ang Tibay vs. CIR.
It enumerates the seven cardinal principles by which we
FDQVD\³RND\WKHUHLVDGPLQLVWUDWLYHGXHSURFHVV´
TN: administrative proceedings are actually
summary in nature. Summary, meaning it does not
entail a full-blown trial, like you were in the court, because
if it were to be a full-blown trial, then it's not anymore
administrative body that does that, it goes to court, that's
why it is summary in nature.
It is not bound by the technical Rules of Evidence.
Because if it's going to be bound by technical Rules of
Evidence, you need a judge there, balik ta sa courte. Pero
again, administrative agency sha, but even if it is not
bound by the technical Rules of Evidence, it is still bound
by fundamentals of due process. Exactly why we have the
seven cardinal rules of due process insofar as
administrative agencies are concerned:
7 cardinalRulesofDueprocess
1. Right to notice of hearing
In administrative due process, the opportunity to be
heard/explain satisfies the right to due process.
2. Right to hearing
It is summary in nature.
Usahay ang hearing class can be dispensed with. In other
words, kanang pag atubangay wala na. The parties might
VD\³RND\ZHMXVWDGPLWSRVLWLRQSDSHU´,WFDQGLVSHQVH
+RZHYHU LI RQH SDUW\ LQYRNHV ³GDSDW PDJ KHDULQJ WD´
that has got to be granted because that is fundamental in
due process. Pero chances are kasagaran administrative
proceedings, the lawyers, especially, would agree
³SRVLWLRQ SDSHU QOQJ WD NDSR\ QD´ DQG SUHVHQW WKH
witness blah, blah blah.
«WKHULJKWWRDQVZHULVWKH5LJKWWRVXEPLWHYLGHQFH
4. Right to be heard
Ni answer na ka, but then, you're not so sure if all your
arguments in the answer, even in the complaint we're
addressed by the administrative agency.
So he received the right to be heard, meaning dapat
tanan nimu arguments gi consider sa administrative
agency. When it issues a resolution it has got to address
all the issues that we raise with the parties . But
sometimes your arguments might be irrelevant. So now
VRPH JRYHUQPHQW DJHQFLHV ZRXOG VD\ ³RND\ OHW V QRW
address that because that's irrelevaQW´ EXW VWLOO \RX
should specify the reason why. So chances are muingon
QDODQJ DQJ JRYHUQPHQW DJHQF\ ³WKH DUJXPHQW DERXW
EODKEODKEODKLVQRWDGGUHVVHGEHFDXVHLWLVLUUHOHYDQW´
and that's it. When you say that is irrelevant, that is
already your resolution. Serving the right to be heard of
the parties.
5. Right to a decision based on quantum of
proof
Unsa may quantum of proof sa administrative agencies?
Substantial evidence. Relevant evidence as a
reasonable mind might accept as adequate to support the
conclusion, even if like-minded individuals may take it
differently.
Here we have quantum of evidence, pinakaubos si
administrative case because we only require substantial
evidence.
Civil case - preponderance of evidence, which has the
«« ZDNRNDVDERWQLDWW\
Criminal case - guilt beyond reasonable doubt. But
something is higher than that, clear and convincing
evidence. Clear and convincing evidence, and then guilt
beyond reasonable doubt.
But then another quantum of proof is higher than that,
and that is overwhelming evidence. Because pag guilt
3. Right to answer
beyond reasonable doubt, there is still doubt but that is
reasonable. Pag overwhelming evidence, there is no more
If you were notified of a complaint against you, you must
doubt. All pieces of evidence point to you. Kasi when we
KDYHWKHULJKWWRDQVZHU%XWWKDWLVZDLYDEOHLI\RXGRQ¶W
VD\ JXLOW EH\RQG UHDVRQDEOH GRXEW LW¶V LQVWLOOLQJ PRUDO
DQVZHUGHVSLWHUHFHLSWRIQRWLFHWKHQLW¶VXSWR\RX<RX
certainty on the part of the judge that this guy is guilty.
take the risk.
Pag maraming evidence, wala na. It's you, who did the
crime.
23
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
6. Right to an informed decision
Rules of Evidence: the decision must be in writing
and it must state clearly and distinctly the facts
and the law on which it is placed.
Again, what did we say? the right to be heard dapat tanan
nimung arguments must be addressed by the
administrative agency. Sayang naman, taas na kaykag
arguments sa imong pleading nya wala g address sa
government agency. Pero, that is actually sometimes a
plus factor because that can be a ground for motion for
I
reconsideration
because
kasagaran
motion
for
reconsideration, can be denied one sentence lng. It's
HLWKHUPRLQJRQOQJVLDGPLQLVWUDWLYHDJHQF\³WKHPRWLRQ
for reconsideration is denied because it does not bring up
any new issue.
In other words, if one issue was not addressed by the
administrative agency, you can bring it up again in a
motion for a consideration.
7. Right to independent review
TN: For example, the subordinate issues resolution
in the administrative agency, that subordinate
must not be the same as the reviewing Authority.
But sometimes it happens. Si subordinate naghimu ug
decision, na promote sha, reviewing authority na sha, iya
ghapon g review without inhibiting himself. That is not
review at all. It must be independent review.
INCIDENTS OF QUASI-JUDICIAL POWER
Pag naa kay quasi-judicial power mura gyud ka ug judge.
Mura ka ug courte.
Power to subpoena and cite for contempt
You have the power to subpoena and cite for contempt if
your subpoena is denied.
TN: that administrative agency, the power to cite for
contempt must also be expressly granted by law, if
not your remedy is, you can actually go to the RTC to file
a case for contumacy. But you cannot issue a contempt
order.
Power to subpoena and cite for contempt, if that is
defined, then take note that the power to subpoena and
cite for contempt are compulsory processes. Exactly why
pag compulsory process, the parties cannot stop you.
Why? there's a consequence and the consequence is
contumacy.
In other words, if that is so strict, it means that there must
be a basis in law. It must be expressly provided for by
law.
TN: kasagaran gyud, the power of contempt is given
WRQDWLRQDOJRYHUQPHQWDJHQFLHVDQGQRWWR/*8¶V
Exactly why your provincial board, your city council
especially barangay council, your SK council, you can
invite people, probably, to your session, but if they stop
you, you can never cite them for contempt because that
is not granted to you.
Power to administer oath
It's not only the notary public that can administer
oath, the president can. Also the vice president, pwede.
Pero simple oath lng class ha. I'm not saying pwede ka
magpa deed of sale didto.
President, Vice President, Members and Secretaries of
both houses, District Representators and the Secretaries,
they can also administer oath. Then members of the
Judiciary and Department Secretaries.
Provincial Governors, Vice Governors, and City Municipal
Mayor, they can. But Vice Mayors, they cannot.
Clerks of Court, Registrars of Deeds, pwede.
However, that is not demandable as a matter of right.
Except where that is related to their duties and functions.
And they cannot charge a fee unless expressly authorized
by law.
Now, what if you are a punong barangay, can you
administer oath? Yes, but only in so far as the oath of
office is concerned and that is an amendment to the
Administrative Code.
Power to promulgate rules of procedure
That is actually incidental.
But what if the administrative agency has no rules of
procedure? No problem because it can adopt a reasonable
rules of procedure.
In other words, if the administrative agency has no rules
of procedure, it does not diminish its jurisdiction.
24
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Power to enforce decision
So these are incidents of quasi-judicial power.
Your decision is useless if you cannot enforce that. In
other words, you can actually issue a writ of execution to
enforce the decision.
C. IMPLIED POWER
This is the tricky part because pag implied power, you
GRQ¶WVHHWKDWLQWKHH[SUHVVODQJXDJHRIWKHODZ%XWWKHQ
what did we say? Doctrine of necessary implication and
inferences otherwise known as common sense.
Normally pag administrative agency, it is final and
executory, but if the law says so and it does not
stay execution.
Omudsman, if the Ombudsman says you're fired, that is
immediately executory but subject to appeal, and if on
appeal, you win the appeal, you're going to be considered
as having been preventively suspended but entitled to
salary.
For example, the Civil Service Commission, under the
administrative code, the decision of the Civil Service
Commission is immediately executory but appealable.
Now, what about the president under the local
government code? If the president says, okay, Governor,
you're going to be suspended, that is immediately
executory.
In other words, we can execute pending appeal pag
administrative agencies. But take note, even if we say its
immediately executory there is always that risk or chance
that the court will say TRO, temporary restraining order.
Pero insofar as the Ombudsman is concerned, we have
settled that the CA can restrain the preventive suspension
order of the Ombudsman, before we knew that it was only
the SC but now, SC says pwede ang CA by virtue of
hierarchy of courts.
3RZHUWRDZDUGGDPDJHVDQGDWWRUQH\¶VIHHV
Pwede ang administrative agencies, especially for HLURB
WKH\FDQDZDUGGDPDJHVDQGDWWRUQH\¶VIHHV:KDW¶VWKH
reason? All controversies in a case must be included.
2WKHUZLVHLI\RXVD\³RND\DGPLQLVWUDWLYHDJHQF\\RXFDQ
GHFLGH EXW \RX FDQQRW DZDUG GDPDJHV´ ZKDW ZLOO WKH
litigant do? Go to courts. And it will defeat the purpose of
having an administrative agency and will result in
multiplicity of suits. Dapat usa lang.
In other words, that is necessary for the final and
complete resolution of the issues. Even the civil code
provisions on damages can be used and resolved by
administrative agencies like it were a court.
Pero here is the premise, the first premise is this:
That power of injunction must be expressly provided for
by law, granted by law. And the power of injunction is
actually auxiliary remedy or auxiliary function if you have
the adjudicatory power to (46:49 inaudible)
nea yimplication
ay
adjudicatory
pour
LLDA V. CA
But take note of the case of LLDA, Laguna Lake
Development Authority where the SC said, the LLDA
authority can actually restrain the city, municipality or the
province or even the mayors from dumping garbage in
the vicinity of the laguna lake. But if you look at the law,
LW¶VQRWWKHUH7KHODZUHDOO\VD\VWRPDNHRUGHUUHTXLULQJ
discontinuance of pollution. SC said it is implied.
Otherwise if it were not granted to the LLDA, it becomes
a toothless tiger. But compared that to the CHR where we
said that it has no adjudicatory power, in which case,
auxiliary power also.
%XW WKHQ 6& VDLG ³ZHOO WKDW LV WKH OLPLW SRVHG E\ WKH
&RQVWLWXWLRQ´ WKH 6& GLG QRW DSSO\ WKH GRFWULQH RI
necessary implications and inferences because according
to SC, there was no intent on the part of the framers of
the Constitution, to make it a tribunal.
CHR
It was intended to be
merely investigatory. Take note of
this case.
Questions from the class:
Ley Sarigumba: Sir, I have a question.
Ferdinand Garcia Gujilde: yeah, please.
Ley Sarigumba: Yes, sir. And this is in regard to the
doctrine of primary jurisdiction. You said that your
example was when issues about importation, you refer
that to the bureau of Customs. So actually my question is
this is coming from an experience or I'm aware of cases
like elevated to the Ombudsman but the Ombudsman
referred it to the commission of audit so is it proper? Or
is that right? Even to before that to go...
25
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Ferdinand Garcia Gujilde: Okay. Maybe maybe the issue
CHAPTER IV ± CHECK AND BALANCE
there is about Audit. If the issue is audit, then it goes to
PRESIDENTIAL CHECK ON ADMINISTRATIVE
commission on audit. But before about people smuggling
AGENCIES
goods, that's not Bureau of custom (49:32 mam di jud ko
So now we're going to chapter for check and balance on
sure ani di gyud nako maklaro sorry) And also, on Audit,
administrative agencies. Number one is presidential
what did we say Commission on audit? In fact, on audit,
check. The president can actually check on administrative
it has no jurisdiction. Okay?
i Presidential agencies because what did we say? Administrative
agencies are actually part and parcel of the executive
Ley Sarigumba: Okay. thank you.
branch. Because the administrative agency, once it
administers a law or enforces a law, that is now execution
Ferdinand Garcia Gujilde: Can you still hear me. Well,
of law.
okay. Any other questions?
Ang mahitabo karon si President is actually empowered
June Ramer Elesterio: Hi, Attorney. Good evening, I have
WRVD\³2ND\KHDGVRIGHSDUWPHQWVRK\RXUHYLHZ\RXU
a question.
programs of action, you review your performance
blehblehbleh. And tell me, identify what are the points or
Ferdinand Garcia Gujilde: Oh June. Okay. Yes. June
what are the areas in your jurisdiction that are already
LUUHOHYDQW"´%HFDXVHLILWZHUHLUUHOHYDQWWKHSUHVLGHQWKDV
June Ramer Elesterio: yes, my question attorney is what
the power to scale down, phase out or abolish some units
was the authority or the jurisdiction to suspend
in a particular agency. But then you know what class if
implementing rules and guidelines just like what
you do that, it's like you're committing a suicide. So you
happened to like the Universal Health Act na wherein the
QHYHU UHSRUW WR WKH SUHVLGHQW ³0U 3UHVLGHQW WKLV LV QR
PhilHealth has issued the implementing rules on
ORQJHU UHOHYDQW´ RWKHUZLVH WKDW XQLW LV JRLQJ WR EH
guidelines, but it was suspended by the president. Does
GLVVROYHGULJKW",W¶VJRLQJWREHDEROLVKHG7KDW VIRXQG
he have the authority attorney?
in the law. In fact, the president can also deactivate a
EXUHDX IRU VLPSOLFLW\ HFRQRP\ DQG HIILFLHQF\ 7KDW¶V
Ferdinand Garcia Gujilde: Oh okay, you're talking there
presidential check. Okay, so what's the basis there? That
about presidential check of administrative agencies. Okay.
is pursuant to the power of control. The president can
There's such a thing as presidential check on
modify, nullify, set aside the actions or decisions of the
administrative agencies. That's actually our next topic.
subordinate and replace it with his own-- power of
control.
June Ramer Elesterio: Ay sorry ehehe
LEGISLATIVE
CHECK ON ADMINISTRATIVE
Ferdinand Garcia Gujilde: ehehe it's all right, it's all right,
AGENCIES
okay.
Then legislative check. Kinsa may source sa balaod nga gi
implement karon sa
administrative agency? It's
June Ramer Elesterio: Thank you, Atty.
Congress. So Congress cares so much whether or not
ZKDW¶V WKH ODZ SURSHUO\ LPSOHPHQWHG :DV LW HQIRUFHG
Ferdinand Garcia Gujilde: Sige what else? Oh, where's
according to our intent?
Jewel, where is Ram? Why are they silent?
POST-ENACTMENT LEGISLATIVE MEASURES
Jewel Mitzi Wee: I'm here Attorney, but I don't have any
So, because of that, Congress is endowed with postquestions for today.
enactment measures. What is that? power of oversight.
Gusto nila ma monitor how the law is being implemented
Ferdinand Garcia Gujilde: Ah wala pa? Okay, sige.
in the field. So Congress would like to know the
bureaucratic compliance with program objectives and
Ferdinand Garcia Gujilde: I like your questions. Jewel,
what's the basis there? That is actually part of the intrinsic
they make me think actually. Well, come on before we
grant of legislative power and integral to checks and
proceed. You know what class? I'd rather you ask me. I
balances take note class ha.
always welcome questions. La na? Sige padayon ta.
26
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
POWER OF OVERSIGHT
This is integral to checks and balances, meaning Congress
ZRXOGVD\³2ND\HYHQLI\RXSDVVWKHODZDQGLWPLJKW
have left our jurisdiction, we still want to know whether
RUQRWLWZDVSURSHUO\LPSOHPHQWHG´RND\"7KDW VSRZHU
of oversight.
D 1 Scrutiny
2 Investigation
OLVRGDQJWDJD83EHFDXVHWKDW¶VEXGJet proposal hearing
HK $QG VR 0LULDP VDLG ³2K DQJ NDSDO QJ PXNKD Q\R
pumunta ng congresso humingi ng pondo explain nyo
PXQD ZKDW KDSSHQHG WR P\ VRQ %OHKEOHKEOHK´ WKDW V
ZKDWKDSSHQHGWKHUH7KDW¶VEXGJHWSURSRVDO
But not where you have fiscal autonomy. Because from
LEGISLATIVE OVERSIGHT FUNCTIONS,
fiscal autonomy you need not defend a budget proposal
CATEGORIZED
because that is automatically released to you. Pero,
Then let's categorize the power of oversight. Number one
insofar as COMELEC is concerned. Duna gihapon siyay
is scrutiny. Scrutiny determines economy and efficiency in
budget proposal budget proposal, especially if it is
government activities operations.
Power Appropriation election year because it is bigger than usual, election year
of
2 Powerofconfirmation eh. So that's what happens there through the power of
A. SCRUTINY
appropriation. Take note there that the power of the
Duha siya ka pamaagi class. Number one is through
purse belongs to Congress.
Power of appropriation.
administrative
What did we say? I think we mentioned earlier on that
Congressscrutiniusthebudgetproposal
of
agencies
1
1. Scrutiny Through Power Of Appropriation
even the United States Congress could actually abolish a
Now, here comes the power of the purse by contrast. Naa
public office by the new experience (di ko sure ani) of
sa iyaha ang kwarta diba? although the process is diba
denying public funds. But of course, it has got to be in
the president proposes a national budget but congress
good faith because if it were intended to retaliate for
has the final say. So now what happens, kaning
example, or probably to get rid of people that Congress
administrative agencies will go to Congress every year to
does not like in violation of security tenure, that becomes
defend their budget proposals. So they're going to say,
a badge of bad faith, in which case that is reviewable by
³2ND\&RQJUHVVWKLVLVKRZPXFKZHQHHG6RQRZWKDW
certiorari.
becomes an opportunity for Congress to express their
disgust at some executive officers. Murag retaliatory ba.
Consent, when required
Of course, I think in your notes, you can read there. The
And also Congress can invite department heads. It can
case in point is Miriam Santiago? have you read that and
invite department heads, to shed light on how the
you notes from your upper classmen? Come on. I know
Departments are doing blehblehbleh. And even the
that you have notes. Okay. Diba. What happened there is
department heads can, on their own initiative, go to
the son of Miriam applied for applied for UP college of law.
Congress, but that is subject to the approval and control
Karon, in the UP College of law bag-o paman gud to
of the president in deference to a co-equal branch. And if
nahitabo ang impeachment trial ni Erap, where Miriam
WKH SUHVLGHQW VD\V ³RND\ VLJH SZHGH PR PXDGWR´ EXW
Santiago, instead of being just a judge in the
the president can require that it be in executive session
impeachment, somehow acted, like she was the defense
PHDQLQJFORVHGGRRU,W¶VQRWRSHQWRWKHSXEOLF
counsel of Erap Estrada and so because of that, somehow
PXUD VL\D¶J JL H[-communicate sa college of law. Now,
Case in point: There was, of course, that little girl before
when the child applied for UP College of Law, naa man
ZKHUH VKH WROG KHU 'HSDUWPHQW VHFUHWDULHV ³2ND\
VLOD\SDQHOLQWHUYLHZ6RVDSDQHOLQWHUYLHZGDZGDJKD¶J
nobody goes to FRQJUHVV KD ZLWKRXW P\ FRQVHQW´ 6R
pangutana sa bata. Not anymore insofar as the
nobody came because that was the height of the NBN
credentials of the child is concerned, but it went on the
EURDGEDQG GHDO VFDQGDO 6R VKH VDLG ³1RERG\ JRHV WR
territory insofar, as the sanity or insanity of Miriam
&RQJUHVV´ $QG WKDW V DOORZHG EHFDXVH WKDW LV H[HFXWLYH
Santiago. So because of that nauwawan daw ang bata
privilege. In other words, she took advantage of that
and was so depressed, he took his own life. Kawawa
privilege to the hill.
Commission on Appointments
naman siya.
2. Scrutiny Through Power Of Confirmation
Okay, so now the following year UP people came to
Then scrutiny through power of confirmation. But I think
Congress. Asking for money. Yeah, asking for money and
we talked about this power confirmation. The purpose
so Miriam was there waiting and lurking for UP people to
there is to depoliticize the process of appointment and
come. And so didto nakabaws si Miriam. Iyang gi lisodalso as a form of check and balance. The background
27
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
fool
47
Ignominies
there is in 1935 man gud, halos tanang government
positions are subject to confirmation by the commission
on appointments and so because of that it became a
source of horse training (59:59 di ko sure ani huhu sowey
) So sobra ra kaayo diba.
Then came 1973 Marcos Administration. The opposite
naman what Marcos did was walay confirmation for any
position in the government. So exact opposite diba? So
here comes 1987 Constitution, that became the middle
ground then said okay dapat naa confirmation ang
congress power to confirm but only to say that type of
decisions that certain types actually enumerated in the
law and that enumeration is exclusive. Follow class?
Ofcourse you know already.
Department heads, Ambassadors, other department
heads and consuls, Arm Forces of Philippines from the
rank of Colonel and Naval Captain blahblah those whose
appointments are given in the Presidents in the
Constitution.
What did we say?
Not Jus dem generis, but we were specific also when it
pertains only to CSC, COMELEC, and the regular members
of the judiciary and bar council.
Take Note: That in that transitory provision it also
includes what? Sectoral Representatives. But Sectoral
Representatives class wala na siya nahitabo because
there is no enabling law. Do you follow? May be it was
overtaken by the partylist.
And there are actually four groups under the Consti, four
groups of appointees under the president.
1.
2.
3.
4.
The one that requires consent in the appointment
Those appointments not provided by law, in other
ZRUGVZKDWGLGZHVD\"³WKHSRZHUWRDSSRLQWLV
essentially executive, in other words once the law
is silent they are going to be the pointing
authority if not otherwise provided by law.
Whom the President may authorize by law to
appoint. Here comes the law that says that okay
gives the power of President to appoint, no
problem that is specific.
Those lower in rank whose appointment Congress
made by law in the President alone. Okay. What
does in the President alone mean? It emphasizes
the authority of Congress to decide whether
appointment of officers en banc is for the
President or to be shared with other appointing
authorities to the different government agencies.
Do you follow class?
in aid
oflegislation
B. INVESTIGATION
7KHQ LQYHVWLJDWLRQ OHW¶V WDON DERXW investigation.
Investigation at first that was inquiry. Scrutiny class less
invasive probably. Investigation this is were more
aggressive then probably invasive. Of course you know
this diba? Kanang mga in aid of legislation diba? Mag
hearing ang congress blablah.
Now, that is actually co-extinsive with the power to
legislate. Okay, that is auxiliary in the performance of
legislative function. Do you follow class? These are what
we call inquiries in aid of legislation.
WHAT ARE THE LIMITATIONS?
1.
It must only be in aid of legislation. Okay. Now,
take note class when we say, in aid of legislation.
Q. What is the evidence that in aid of legislation siya?
What does the evidence tells us, if after the investigation
there comes a bill that was approved by Congress so klaro
kaayu nga it was in aid of legislation. But when there is a
privilege speech, ang kaso diri class it was illustrating ang
problema was speech by the President. That speech
become a source of investigation. But the SC said that
enough be in aid of legislation because that privilege
speech did not contemplate any peace of legislation it
merely, urge congress to look into the possibility of
Presidential relatives committing graft and corruption. In
so far as governing deals are concerned. There that SC
said that is not in aid of legislation. Do you follow class.
But of course today that is actually in aid prosecution, you
what class the reason is this:
³HYHQ LI ZH VD\ WKDW LV LQ DLG RI OHJLVODWLRQ WKHUH LV QR
requirement for congress to legislate after that
investigation. So, it could be meaningless, then for
example unsay nahitabo kai Katrina Halili and Haiden Co.
7KHUHZDVDYLGHRWDSHNDUXQ-DPEH0DGULJDOVDLG³,¶P
going to hold the investigation, what is my purpose?
%HFDXVH,¶PJRLQJWRstudy whether that mere possession
RIDYLGHRWDSHZLOOJLYHULVHWRJUDYHRIIHQVH´7KDWZKDW
he said in possession daw. Of course, grant standing after
that high profile investigation nothing came out of
legislation.
Is Jambe Madrigal libble?
No, because it is not required it is not mandatory for
Congress to pass legislation after an inquiry in aid of
legislation because it merely says in aid of legislation. It
did no say to legislate. Do you follow class, that is the
difference. Then it must be in accordance with duly
published rules and procedure. Take note that kada
legislate ba they have different procedures because the
composition of Congress changes every election. So the
28
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
SC said different rules and procedure what congress does
is may adopt the prior procedure. High convenience diba?
Public rules of procedures, if congress like that inquires in
aid of legislation, you cannot say wait congress there is a
pending case in court that does not apply. Congress can
proceed even if there is a pending case, wKDW¶V WKH
reason?
Parliamentary privilege=> power to issue subuena,
for contempt. If there are no compulsory process kinsa
may muadtu sa congress, wala. If it mere a mere
invitation, no one will go there they can stop them.
What about constitutional rights of persons appealing in
these investigations? Okay.
Especially in so far as the right to self-incrimination is
concern. But then in one case there the SC said, you know
what class, before that, okay there was a guy, the issue
there was graft and corruption, bribery. Nag-ingon siya
nga okay actually there was an amount of money that
was given to me. Then ingon sila kinsa may nihatag nimu?
Who is that third person and then the guy said that I am
not going to answer because it will incriminate me. So we
need that third person, and then Congress said that we
are going to cite you for contumacy.
4:KDW¶VWKHUHDVRQ"
You are not the judge of your liability. You are the judge
of whether or not this question is going to be
incriminatory. You cannot invoke that for third person or
you cannot inhibit him.
Do you follow class? Imagine class, if you are the witness
of the case involve and then mangutana ang avogado,
and then you say that is immaterial, that is irrelevant, you
cannot do that because that is the job of the lawyer if the
witness answer accordingly. Do you follow. So, recently,
like Janneth Lim Napoles if you watch, halos tanan
pangutana she would say I invoke my right against selfincrimination. Halos tanan against self-incrimination and
then I wonder why the congress men did not press for
answer. They did not threaten her to speak probably
because if Janneth Napoles were to say everything. If she
tell all, it might also incriminate all Congressmen. So they
were kind of devil, even the time of Meriam Santiago if I
were to recall. If I were the Congressman there, my
TXHVWLRQ ZRXOG EH ZKDW¶V \RX QDPH" 2ND\ EHFDXVH LV
she says that is self-incriminatory. That will be contumacy
diba? Do you follow?
Okay, and take note ha it is clear in this investigation you
have the right to counsel. But the counsel is there, but
the counsel cannot speak for you. However, the counsel
can whisper to you on what is the answer. Did you not
notice that? Diba? Sigeg hunghong si avogado.
Okay, so take note there that ³LQDLGRIOHJLVODWLRQ´that
Congress wants the other information. But, it is not the
same as the right public information on matters of public
concern. In other words, as a citizen you cannot go there,
can I participate this is in pursuant to my right to
information on matters of public concern. It is not able to
you because when Congress enforces compulsory process
together that is different from your right of information.
Do you follow class?
And there is such a thing as QUESTION HOUR!
Question hour where congress can actually inquire
department head blablah, okay that is not mandatory.
Because what did we say the congress can always say
GRQ¶W JR WKHUH QRERG\ VKRXOG JR WKHUH RND\ 7KDW LV LQ
the exercise of oversight function. Okay but not there.
Kani class no, kanus a man pwede mandatory ang mga
department secretary muadtu sa congress because diba
it is not mandatory in relation because department
secretaries are alter egos of the President. So indifference
to separation of powers, Congress holds back and say
co-equal branch that is far as the question are in
concerned where it is not mandatory but pag it were in
aid of legislation, that is compulsive that is mandatory in
character. The department secretaries can be constrained
or compelled to appeal if it were in aid of legislation. How?
The problem there class is how do you draw, the line, if it
were in aid of legislation, or merely question hour?
That is difficult to establish, do you follow?
7KDW¶VWKHSUREOHPWKHUHRND\
Now, power of compulsory process okay, it covers
executive officials except when they claimed executive
privilege.
Executive Privilege
Okay, unsa maning executive privilege?
The privilege is the right of executive officials to withhold
information, from the public or congress. Ngano man?
What are this information?
State Secrets, Military Secrets, blah blah so they are
actually free, this privilege this pertains to military trade
secrets and informers privilege for example dunay nag tip.
Who is that, personally give the tip? Who is that informant
that compel that information that is informers privilege
and then there is there is generic privilege okay? In other
words generic privilege there is internal deliberations by
the department secretary for example that is privilege
communication for example.
29
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Then so kaning executive privilege actually provision it
covers conversation and correspondence between the
president and the public officials, in the military or public
relations. So, kanang mag storya storya na sila that is
presidential and executive privilege. Exactly why in the
Neri case, Neri was tasked okay, did the President asked
you to follow up the broadband project, diba so now si
Neri was wit and so smart and said uy this kind of question
is actually looking into the possibility if President
pressuring me because the President as a state has the
interest in that deal diba? So smart siya eh, so then that
what he said executive privilege, do you follow class pero
in that particular hearing class, Neri actually testified for
11 long hours. Gipiga gyud siya sa Congresso but then
when it came to the question where congress said gi
follow up baka ni GB? That why he said executive
privilege and then the SC said that is not subject to
contumacy because for 11 hours he answered everything,
for that questions that might be pertain to privilege wait
I need to consult that little girl diba? You that was
happened. The SC said tan awa lang ninyu he was a
department secretary alter ego of the President. Give due
respect naman.
Okay, then military and diplomatic officers, his
negotiations close door cabinet meetings, national
security and public order okay. This are actually states
secret. Do you follow class? Okay.
Kana nga rights, for example the country negotiates with
best friend china for example diba kasagaran nato
muingon right to public information okay. Invokes there
right to public because they might be selling there country
to China right? But then the SC said that is privilege
communication. That is executive privilege because If you
divulge prematurely , it might jeopardize the negotiation.
Do you follow class, what about the peoples right on
matters of public concern on matters of public interest?
The SC said that executive privilege is exception to the
right of public information. Do you follow?
+RZHYHULIWKH3UHVLGHQWRUWKH3UHVLGHQW¶VPHQZLOOVD\
³2K ZH DUH QRW JRLQJ WR DQVZHU WKDW¶V H[HFXWLYH
SULYLOHJH´&RQJUHVVDOVRKDVWKHULJKWWRNQRZZK\\RX
are refusing to answer.
Meaning, explain why it is Executive privilege.
%XWWKHQ6&DOVRVDLG³%HIRUHZDUQHGKRZHYHUEHFDXVH
what if in the process of explanation you are already
GLYXOJLQJWKHVHFUHWVZKLFK\RXDUHWU\LQJWRSURWHFW"´
In other words, that explanation need not be too specific.
In other words, pwede ra muingon si President nga
³2ND\ZHFDQQRWGLYXOJHEHFDXVHWKDWLVVWDWHVHFUHWWKDW
is military secret, it might jeopardize national interest blab
OD´ 7KDW¶V HQRXJK \RX QHHG QRW JR LQWR WKH GHWDLOV
otherwise you risk the chance of divulging everything that
you wanted to protect.
TOPIC: Elements of Presidential Communication
Privilege
This actually pertains to non-delegable presidential
power.
Illustration
Like as a commander-in-chief, he cannot delegate that.
Appointment, removal power, to grant pardon and the
sole authority to receive ambassadors and the power to
negotiate treaties ± these cannot be delegated.
So, that is one of the elements of Presidential
Communication Privilege.
In other words, if the matter involves any of these (refer
above), that becomes executive privilege.
E.g. Military matters and Foreign relations, the
constitution text to commit that to the executive
department.
The authority to solicit to receive the President to
DQRWKHU« WKere has got to be operational proximity. In
other words, ang mga kaistorya sa President privilege
communication na siya. Pero not everybody, it pertains
only to the Presidential staff and the cabinet members
because this is the official family of the president.
Information sought likely contains important evidence.
TAKE NOTE: Executive privilege limits the power to
information on the power of congress to obtain
information.
TOPIC: SUPERVISION
TOPIC: Legislative Veto
Remember: congress legislates and congress will say
³RND\ WKLV LV EH\RQG RXU FRPSHWHQFH DGPLQLVWUDWLYH
DJHQF\ \RX GUDIW WKH ,55´ Before, this was allowed.
&RQJUHVVZRXOGVD\³SURPXOJDWHWKH,55EXWEHIRUH\RX
enforce that, bring it back to us for our reYLHZLIZHGRQ¶W
OLNH LW ZH¶UH JRLQJ WR GLVDSSURYH DQG WKDW LV RWKHUZLVH
known as OHJLVODWLYHYHWR´
Now, WKH6&VDLGLQ«
Abakada Guro Party List vs Purisima
- SC: legislative veto that is unconstitutional.
REASON: if congress legislates and the law takes effect,
congress loses jurisdiction except post enacted
30
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
legislative measureswhere it merely inquires into the
proper implementation of the law but NOT where
FRQJUHVVFDQVD\³LVWKLV,55HYHQSXUVXDQWWRZKDWZH
ZDQWHG"´Congress cannot do that.
But what if indeed the IRR does not conform to the law
passed by congress?
- REMEDY for congress: to have that IRR
nullified. ,WFDQQRWE\LWVHOIVD\³ZH¶UHJRLQJ
WRYHWRWKDWZH¶UHJRLQJWRGLVDSSURYHWKDW´
Because (1) it violates now separation of
powers.
REASON: once it is going to be implemented, it pertains
to the executive branch AND drafting and promulgation
of the IRR is part and parcel of execution.
TOPIC: JUDICIAL REVIEW
TOPIC: Judicial Review, when availed of.
Kaning mga binuhatan sa mga administrative agencies,
are they reviewable with the judiciary?
Yes, they are. You can never take away the
judiciary, esp. the SC on the picture at all.
They are always in the equation especially
there is grave abuse of discretion.
A. Judicial review over exercise of quasi-legislative
power
What about over Quasi-Legislative power?
- The power to promulgate rules, you can go to
courts at the first instance, automatic adto ka
sa court in first instance.
REASON: it more or less involves pure question of law
so you go to court right away.
In other words, the Doctrine of Exhaustion the
Primary Jurisdiction does NOT apply if it were
Quasi-Legislative.
B. Judicial review over exercise of quasi-judicial
power
BUT if we talk about Quasi-Judicial power, then we are
going to talk about doctrine of primary jurisdiction and
doctrine of exhaustion of administrative remedies.
TOPIC: DOCTRINE OF PRIMARY JURISDICTION
TOPIC: Doctrine of primary jurisdiction and
exhaustion of administrative remedies, distinguish
Difference?
Again, diba, earler I said Primary Jurisdiction and
exhaustion sometimes they can be interchange. But what
is the difference?
Primary Jurisdiction
Doctrine of Exhaustion
of Administrative
Remedies
the
issue
there
is it could still be an issue of
MXULVGLFWLRQ ³WKLV LV RXUV´ jurisdiction
but
this
and it cannot be waived.
jurisdiction
is
shared
between
the
administrative agency and
the court. however, out
of
courtesynot
jurisdiction, the court can
VD\ ³ZH¶UH JRLQJ WR give
you to the administrative
DJHQF\´ DQG LW LV
waivablebecause
the
issue
there
is
not
entirely jurisdictional,
it is merely procedural.
In fact in can be dispensed
with in the interest of
substantial justice.
TOPIC: Doctrine of exhaustion of administrative
remedies
TOPIC: Administrative
exhausted.
remedies,
why
need
Why do we need to exhaust administrative remedies?
1.
Practicality
Administrative agency is the one that is in
the best position to resolve the issues
because they are experts in the field that now
involves your controversy.
Also, you have to give the administrative
agency the chance to correct itself.
Guji: diba if you feel aggrieved, so what you are saying
LV³DGPLQLVWUDWLYHDJHQF\\RXFRPPLWted a mistake, you
PLVDSSUHFLDWHGWKHIDFWVEODEOD´6RGDSDW\RXJLYHWKDW
administrative agency a chance to correct itself because
when it corrects itself or even prior to correction / selfreversal, there is the presumption that the administrative
agency decided correctly and accordingly.
-
Also, practicality to prevent unnecessary and
premature resort to courts.
Guji: diba take note, the courts are suffering from clogged
dockets.
2. Affordability and expediency
- It is cheaper kapag administrative agency. Even
sa lawyers, sa tariff nato, pag MTC RTC this
31
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
PXFK EXW SDJ DGPLQLVWUDWLYH DJHQF\ LW¶V
always cheaper than the court.
TOPIC: Separation of Powers
Administrative agencies, they pertain to the executive
branch, so, judiciary, executive branch, you have to
respect each other by virtue of separation of powers.
1RZOHW¶VJRWRWKHEXCEPTIONS.
TOPIC: ADMINISTRATIVE REMEDIES, WHEN
NEED NOT EXHAUSTED
When do we need not exhaust administrative
remedies? Because remember, what did we say? It is
merely procedural, it is a matter of courtesy, it is not even
a condition precedent to filing a court action.
When:
1. When due process is violated
In alOFDVHVWKH6&ZLOODOZD\VVD\WKLV³SDJ
GXHSURFHVVLVYLRODWHFRPHWRXVULJKWDZD\´
So, short cut pag due process is violated.
- Because if due process is violated, you cannot
expect substantive process.
2.
When issue involves purely legal
question
So, if the issue is purely legal, why waste time
with the administrative agency?
REASON: because, no matter how good the
administrative agency is it cannot resolve a
purely legal question with finality, it is only
the SC can resolve that. So go to court right
away if it were purely a legal question.
-
GLVJUDFHIXO+LVRQO\LVVXHLVLW¶VWRRKDUVKWKHSHQDOW\VR
WKDW¶V SXUHO\ D OHJDO TXHVWLRQ \RX FDQ JR WR FRXUW ULJKW
away.
REASON: DGPLQLVWUDWLYHDJHQFLHV¶QRWPDWWHUKRZJRRG
they are, in resolving legal issues they cannot do it with
finality. So you can go to court right away.
TOPIC: when administrative action is patently
illegal.
Administrative action is patently illegal, klaro that is illegal
DQG ZKHQ \RX VD\ WKDW LV ³SDWHQWO\ LOOHJDO´ \RX DUH
bordering in the territory it being a purely legal question,
so go to court right away.
TOPIC: when administrative agency is estopped
When administrative agency is estopped, dunay estoppel.
Guji: kani class noh ang ang nahitabo ani like ang cases
ani kay sa BIR.
Illustration
Ni appeal si tax payer didto sa BIR, then niingon si BIR
³QRWDQ\PRUH\RXFDQQRWDSSHDODQ\PRUHEHFDXVHWKLV
LVJRLQJWREHILQDO´LQZULWLQJ3HURDFWXDOO\LQIDFWDQG
in law, there is still a remedy within the BIR, you can still
go to the finance secretary even the president blabla.
3HURQLLQJRQQDPDQVL%,5³ILQDOQDQLZDQDND\PDKLPR´
LQZULWLQJ$QGVRQRZVL7D[3D\HUWKRXJK³DKRND\ILQDO
VRPXDULQDNRVNRUWHILQDOQDPDQNDKD´6RQLDGWRVL\DJ
NRUWHQLDQDVL%,5³\RXGLGQRWH[KDXVWWKHDGPLQLVWUDWLYH
UHPHGLHV´
But the tricky part there is how to tell if it were a purely
legal question or mixed factual and legal question or
factual question.
But what did you tell the guy (taxpayer), you told the guy
ILQDOQDVRWKDW¶VHVWRSSHODOUHDG\WD[SD\HUcan now go
to court.
TOPIC: when there is pure question of law
- Pag purely legal question means that there is
no more argument in so far as the truth and
falsity of the facts. The question there is
what is the law applicable, purely legal
na.
TOPIC: when there is irreparable injury
TOPIC: when there is question of fact
- Pag factual, it is when you inquire to the truth
and falsity of the given set of facts.
Illustration
Dunay maestro somewhere here in Cebu, he was
suspended for disgraceful and immoral conduct. Now, his
problem was, he said okay, I admit, I am disgraceful and
immoral, but the penalty is too harsh, he said. So now,
you are talking about the penalty WKDW¶V pure question of
law. You admitted already that you are immoral and
If there is irreparable injury, you can go to court because,
here, the extraordinary remedies and certiorari,
mandamus and prohibition, are NOT available in so far as
administrative agencies are concerned.
REASON: it is because, it requires that there is no plain,
adequate and efficient remedy under the law.
But administrative remedies are actually plain, and
adequate remedies under the law.
TOPIC: When respondent is a department
secretary and the rule of qualified political agency
applies.
Pag department secretary, there is a higher authority than
him, it is the president. So now, pag si department
32
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
secretary ni decide, chances are you might want to say
³RND\,VWLOOKDYHDUHPHG\JRWRWKHSUHVLGHQW´
TOPIC: When observance of exhaustion nullifies
claim.
urgency
Pero what do we say?
Doctrine of Qualified Political Agency where
the acts of the secretary are presumed to be
also the acts of the president, unless, the
SUHVLGHQWH[SUHVVO\VD\V³,GLVDSSURYH´
GUJI: Kani salary pod ni. Dunay isa ka principal, I think
na gusto sya mu claim saiya salary adjustment. Karon, iya
salary adjustment kay dinalian kay ngano man? If you are
not paid your salary adjustment, meaning na save sa
government ang money, it will revert back to the National
Fund or to the National treasury. So di na nimo makuha.
So nagdali sya. He said, dapat ihatag na sa akoa. Diman
musugot. So QLDGWRV\DJNRUWH$QGWKHFRXUWVDLG³<RX
are Justified because otherwise it will nullify your claim if
you were to fall in the line of the administrative remedies.
DO YOU FOLLOW? Okay. So, take note there, the element
of urgency is there.
So, if that is the presumption then, you cannot go to the
president anymore, because that department secretary is
already the president as an alter ego.
So, you can go to court.
But then again, TAKE NOTE, the tricky part there is this,
- yes doctrine of qualified political agency will apply IF
you perform that under your regular capacity as
department secretary. But not in so far as you
performed that in your ex-officio capacity.
:KDW¶VWKHGLIIHUHQFH"
Ex-officio capacity ± it is not the president that appointed
you, it is no less than the law, by direct provision of the
law.
Illustration
Si Transportation secretary, is automatically ex-officio
member of the MARINA (Maritime Industry Authorty). So
karon, sa MARINA in his ex-officio capacity as member,
GXQDVLODGHFLVLRQVRQRZWKH\VDLG³DKRND\ZDODHK,
DPWKHDOWHUHJRRIWKHSUHVLGHQW´\RX FDQJRWRFRXUW
right away. That is NOT correct because even if you are
the alter ego of the president, BUT in ex-officio
capacity you are not the alter ego of the president
because it was not the president that appointed
you BUT it was the law that said you have to be
there in concurrent capacity.
So it still applies if it weren't in ex officio capacity.
TOPIC:
When
unreasonable.
to
require
exhaustion
is
GUJI: Now there's a case here. Salaries sa government
employee, karaan sya na case class. So you might be
shocked. The amount is only 949 pesos, good for four
months. 949 ha pero karaan sya. Maybe now it could be
90,000 tingali$QGWKHQLQJRQVLODQD³2N\RXQHHGWR
H[KDXVWDGPLQLVWUDWLYHUHPHGLHVILUVW´3ZHGHPDFRPSHO
si Municipal secretary because it's so unreasonable to
require the person to fall in the line up heel within the
administrative agency na gamay rag amount. DO YOU
FOLLOW? Okay. So there it's unreasonable.
TOPIC: When subject matter is private land.
GUJI: Then subject matter is private land in land cases,
proceedings. Okay? But private land pwede na, diba?
Pero, diba? Kung yuta, ngadto man ta sa korte pero take
note that you still have your registry deeds na
administrative. In other words here, the Supreme Court
VDLG³:HOODFWXDOO\WKHFRXUWFDQUHFWLI\\RXUVWDWXV)RU
example, for math from single to married, from widower
WRPDUULHGLQ\RXUWUDQVIHUFHUWLILFDWHRIWLWOH´VRSZHGH
sya. Okay, you can go to court.
TOPIC: When neither rule provides a plain, speedy
and adequate remedy nor law provide for
administrative remedy.
GUJI: Then no plain, speedy, adequate remedy provided
or remedy for appeal, under the rules or the Law, pwede,
you can go to court right away. Like for example: You're
suspended for 30 days.Pag 30-day suspension class.
What happens there is that is already final. You cannot
appeal. There's nowhere else to go but to accept the
decision. But what if the decision violated your right to
due process? So karon, if it violated your right to due
process you can go to court.
Ngano man? Because administrative remedies he cannot
go to the Civil Service Commission eh. The reason is
EHFDXVH WKH &LYLO 6HUYLFH &RPPLVVLRQ ZRXOG VD\ ³:H
have no jurisdiction because that is not beyond 30 days,
30 days below lang eh. Wala mi jurisdiction so diba? You
have nowhere else to go. Go to court. What did we say?
If you right to due process is violated there has got to be
a remedy under the loop. DO YOU FOLLOW CLASS?
TOPIC: When there is urgency
GUJI: Karon, ang illustration is this: Dunay memorandum
circular and BIR. Interpretative rule to sya subject to
review by the Finance secretary. Pero by virtue of
imminent Collection, e-collect najud sa BIR nya pending
pa iyang apSHDO.DURQWKHUH¶VXUJHQF\ND\PXED\DGQDV
33
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
ya eh. So I think dako pa na process if you're going to
claim that as a refund or something like that, so the
6XSUHPH &RXUW VDLG ³2ND\ HYHQ LI LW FDQ VWLOO EH
appealable to the finance secretary, you can go to us by
virtue of the urgency of the situation. Or when this is
mooted, meaning the issue of non-*** (sorry guys diko
NDVDERW LVDOUHDG\PRRWHG´3ZHGH\RXFDQJRWRFRXUW
right away,
TOPIC: When there is strong public interest.
GUJI: Kanus-a manta makaingon na there is strong
public interest, if the issue is public office, especially
vacancy. What did we say: You cannot subject a public
office to prolong vacancy, because it will jeopardize public
service. Pwede, you can go to court right?
gihapon. It can still be acquired by the court because it's
only a matter of courtesy. In other words, if the court is
OLNH ³2ND\ , P JRLQJ WR EH FRXUW , P QRW JRLQJ WR
UHFRJQL]H DQG OLVWHQ
´ WKH FRXUW FDQ DFTXLUH
jurisdiction, okay? Okay, before I proceed, any questions?
Jonel Amio: Attorney a follow-up.
GUJI: We thought was this. Oh JonneeEL. Yes.
96:05 Jonel Amio: Just clarification attorney. it doesn't
matter of courtesy in so far as the doctrine of
administrative exhaustion of administrative remedies is
concerned but how about attorney, if the doctrine
concern is the doctrine of primary jurisdiction? What is
the effect, Atty?
Or validity of reorganization. *** allowed that reorganizes
your office. and you might be abolished, pwede, you can
go to court right away. DO YOU FOLLOW?
GUJI? Effect if you did not follow primary jurisdiction?
TOPIC: When claim involved is small.
No. 1, the court is going to dismiss that Okay. Because
it's a matter of jurisdiction. But what if nagkamali si court?
Iyang gi acquire and jurisdiction. But along the way, the
FRXUW UHDOL]HG ³2RSV NHUL RRSV SULPDU\ MXULVGLFWLRQ
SHUWDLQVWRDQDGPLQLVWUDWLYHDJHQF\´7KHFRXUWLVJRLQJ
to suspend the proceedings and refer it to the
administrative agency and then wait until the
DGPLQLVWUDWLYHDJHQF\VD\V³7KLVLVRXUV&RXUW2ND\"´
So then the court has no other choice but to dismiss
especially if it does not prejudice the parties.
GUJI: Balik ta sa katung example nga 949 pesos only
good for 4 months in town. Then here is the process class
ha: It was the municipal treasurer that denied the
employee, the 949 pesos. So if they employee were to fall
in the line of appeal, the employee is going this way class:
From Municipal Treasurer to provincial treasure; then to
finance secretary, then to auditor general, and then
finally, to the president.
These are the administrative remedies available to him.
But take note, if he were to exhaust these administrative
remedies ang iyang 949 will certainly be spent out sa dipa
mahuman ang kaso. DO YOU FOLLOW CLASS? Exactly
ZKHUH WKH 6XSUHPH &RXUW VDLG ³,W V WRR VPDOO <RX FDQ
FRPHWRXV´
Okay, You went to court right away. Okay, so if you went
to court right away, the effect is okay:
But what if si court will still continue despite the fact that
there is primary jurisdiction and decided? Now, that
decision and all the Allied orders are null and void for
violating the doctrine of primary jurisdiction. Did I answer
that, JOneeEl?
Jonel: Yes, atty. Thank you.
TOPIC: In quo warranto proceedings
GUJI: Okay. Questions. I'm excited. We might be able to
GUJI: What is this? Public office. There is strong public
interest. Pag quo warranto proceedings the lowest, very
clear, it is not a requisite that you're going to exhaust
administrative remedies.
terminate admintonate. Okay? See questions, I'm sorry
class about the book if you wanted to buy the book. It
might be available. Mid February, okay, mid February
then. I hope you can still be able to connect to what I
said, especially in so far as the illustration. So I can say
it's all in the book and illustrations, not okay.
TOPIC: Administrative remedies, effects of failure
to exhaust.
GUJI: So dika muadto sa administrative remedies diba
kay nagdali ka so adto dayun ka sa korte. Onsay effect?
Take note clas ha that the deficiency there is not
jurisdictional. It will be dismissed, but not because of lack
of jurisdiction. But because of lack of cause of action. DO
YOU FOLLOW?
Then. Exactly why. If it were not jurisdictional pwede
Jewel Mitzi Wee: Attorney, clarification. I'm not sure if
I heard you right. Earlier. Um, you said that Exception of
administrative remedies is not a condition precedent.
GUJI: Yeah.
Jewel Mitzi Wee: But why are there some cases that
they are dismissed because they are premature? So does
that mean that it is a condition precedent?
34
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
GUJI: 1R LW¶V QRW EXW LW V QRW D KDUG DQG IDVW UXOH ,Q
other words, when you say, it's not a condition precedent,
It could be that, the court can liberalize. Because,
anyway, it's a matter of procedure. It's not jurisdictional.
Pwede! The court can acquire jurisdiction because shared
jurisdiction sya eh with the administrative agency, okay?
So if the court is going to be strict, it will say okay you
have to go to the administrative agency, first. In other
ZRUGV-HZHOLW¶VPRUHRUOHVVGLVFUHWLRQDU\RQWKHSDUW
of the court. Exactly why we said that is waivable. Pero
pag doctrine of primary jurisdiction, that is not waivable.
It is mandatory. Yes, you were about to say something.
Jewel?
Jewel Mitzi Wee: Ok ra Atty. Thank you.
GUJI: Take note class ha, Doctrine of primary jurisdiction
and exhaustion of administrative remedies, SUKI NI SA
BAR HA. CHANCES ARE, IT COMES OUT IN THE BAR. I
tell you. This is the administrative law aspect that will
always come out in the bar. Okay, that's why I think I also
exhausted the discussion in the book. You have all the
examples there, okay.
C. Judicial review over exercise of administrative
power.
court'sdiscretion
GUJI: What did we say? Naa jud ni si judiciary pirmi,
diba? So now what if it were Administrative power? Take
note, exercise of discretion. What did we say? How did
ZH 'HILQH GLVFUHWLRQ" 'HFLGH HLWKHU ZD\ DQG LW¶G VWLOO EH
right. So if it is really discretionary, chances are the court
ZLOO VD\ ³+DQGV RII ,W SHUWDLQV WR DQ DGPLQLVWUDWLYH
DJHQF\´ :KDW V Whe reason again? They are experts in
the field, they know better especially in so far as findings
of fact are concerned. Diba? Pag findings of facts. What
did we say? It is final and unappealable except where
there is grave abuse of discretion. YOU FOLLOW?
D. Judicial review over quasi-judicial decisions.
GUJI: Okay, pag findings of fact again, the court normally
does not disturb, provided that is supported by substantial
evidence. Diba? And also, this actually accorded great
respect by the court. If not finality in so far as findings of
facts are concerned.
Exceptions! If again, and walang kamatayan: grave of use
of this question. That gives the Supreme Court the license
to nullify the acts of the administrative agencies. Of
course, lack of jurisdiction. Gross misappreciation of
evidence, it was arbitrary, when there's fraud, error of law
and also the walang kamatayan na denial of due process.
YOU FOLLOW CLASS?
Then. Okay, only four pages in my notes we're about to
terminate admin law.
TOPICS: Final decisions of
agencies, effects of.
res judicator
administrative
GUJI: Then. What is the effect of a final decision of the
administrative agency? Final decision ang decision ha. It
has the effect of res judicata. In other words, you cannot
open it up again and go to court. It will defeat the purpose
of the entire proceedings. Diba, what did we say? Admin
Muna! Why? Because we want to de clog the court
dockets. And now that it's done, it's finally, you go to
court, you cannot do that, diba!. It has the effect of res
judicata. Okay?
However, ang final decisions sa usa ka administrative
agency, can that still be subject to judicial review? Yes, it
can still be subject to judicial review! Okay, here are the
examples: Under the Civil Code, it says there that arbitral
award is final. Labor Code says, the Arbitral Award is final
10 days after receipt of the award. Then Construction
Industry Arbitration Law. What does it say? It is final and
unappealable except on pure questions of law. Are we
saying then that that is untouchable? That, that is beyond
judicial review? The answer is no!
Here are the exceptions: Again, lack of jurisdiction, grave
abuse discretion, violation of due process, denial of
substantive justice and erroneous interpretation of the
law.
Here is the best example: Dunay duha ka partido. TwoSDUW\OLWLJDQWVWKH\VDLG³2ND\GLWDPDJNDVRKD:HJR
WRWKHDUELWUDWRU´$QGWKHQZKDWGLGWKH\VD\"³2ND\KD
we are going to accept whatever the decision of the
arbitrator is. We will accept. Even if it is advantageous to
you. if it is disadvantages to me, it is adverse to me, okay
ODQJ ,W LV ILQDO´ $QG LQ IDFW WKH\ HYHQ VDLG ³1R RWKHU
UHPHGLHV EHIRUH WKH FRXUW RND\"´ +RZHYHU ZKHQ WKH
arbitrator decided it was too lopsided. The arbitrator went
beyond the line and committed a grave of discretion. In
fact, his decision was not based on the terms and
conditions of the contract that was in this case. And so
WKH6XSUHPH&RXUWVDLG³:HFDQVWLOOVHWWKDWDVLGHHYHQ
if you agreed that it is final, even if he agreed that no one
FDQ JR WR FRXUW ZH FDQ VWLOO VHW WKDW DVLGH´ '2 <28
FOLLOW CLASS?
So, again even if it were final, it can still be subject to
judicial review, if it falls under any of the exceptions,
okay?
$WW\*XML/HW¶VJRWR$GPLQLVWUDtive Relationships.
ADMINISTRATIVE RELATIONSHIP
TOPIC:
ADMINISTRATIVE
RELATIONSHIPS
AMONG AGENCIES:
1. Supervision
2. Control
3. Attachment
35
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
TOPIC: Supervision and Control
- A control is more encompassing because in Control it
includes supervision.
- In Supervision, it does not include control.
TOPIC: Attachment
$WW\*XML1RZOHW¶VJRWR$WWDFKPHQWSDJDWWDFKPHQW
agencies attached, like your NLRC. Di ba? It is attached
to your Labor and Employment.
Q: So what is their relationship if they are attached to
each other?
Atty Guji: That is lateral relationship class. In other
words, you do not lose your identity just because
you are attached to another agency. This is
because the reason you are attached is only for
policy and program coordination. In fact, disciplinary
action insofar as employment is concerned, and also
appointment, it is retained by the attached agency and it
is not absorbed by the agency to which it is attached.
Atty Guji: Unsa ra man di ay ang mahitabo sa atong Policy
and Program Coordination?
A: You do not lose independence. It is still intact, in so far
as independence is and the autonomy is concerned.
Atty.Guji: Then, here is another manifestation of your
independence is best manifested by the fact that if you
have a position there, your DECISION is NOT
REVIEWABLE BY THE AGENCY. It means that you are
QRW DWWDFKHG LQGHSHQGHQW J\XG ,W¶V MXVW D ODWHUDO
relationship.
Student: I want to clarify the effect of the final decision
of the administrative agency and you said it has the effect
of res judicata. So, can I cite the same decision of the
administrative agency before the Court of Justice as a
precedential jurisprudence?
Atty.Guji: Yes you can. Provided that it has been affirmed
by the SC. Pwede, but if it is not affirmed by the SC, at
best it can only be persuasive.
Atty.Guji: Take not class, do not confuse that with the
Three-Fold Liability Rule. There might be administrative
decision already but you can still go to the Court for
criminal liability. Res judicata there does not apply
because different liabilities na eh. Di ba?
CHAPTER V: ABOLITION OF ADMINISTRATION
AGENCIES
TOPIC: Abolition
$WW\*XML:HDUHQRZJRLQJWRWDONDERXWWKH³'HDWKRI
WKH $GPLQLVWUDWLRQ $JHQF\´ 0HDQLQJ ODVW QD VL\D QD
topic.
Abolition by Congress
Atty.Guji: So the congress will say, we have no more
funds for you. That can be done, provided that IT IS IN
THE INTEREST OF ECONOMY. It means that it is done in
good faith, but not to get rid of employees for example
because that will violate security of tenure. Then again,
EDGIDLWKJRRGIDLWKLW¶VLQWKHVWDWHRIPLQG,W¶VVRKDUG
WRSURYHWKDW\RXQHHGFRQFUHWHDFWLRQVDQGLW¶VVRHDV\
to hide that trait eh.
Q: Can the President abolish?
power toreorganize carries
power to abolishprovided
done ingoodfaith
Atty.Guji: Now, take note that the President has
AUTHORITY TO REORGANIZE. Now, when
you
reorganize, when the President reorganizes for example,
it includes creation of office in the department or agency
within the executive branch and when you say reorganize,
it includes scaling down, facing out or abolition.
Department heads and agencies are required to report to
the President.
$WW\*XML³0U3UHVLGHQWWKHVHDUHWKHDUHDVWKDWDUHQRW
relevant anymore and so when the President hears that
and probably agrees to that recommendation then it will
scale it down or even abolish that particular unit in your
agency.
Q: How do we abolish a public office or agency?
Atty.Guji: It must be in good faith and never for
political or personal reasons because if it were political or
personal reasons, it becomes bad faith but then again,
like I said, the challenge there is that how do you establish
WKDW ,W¶V D VWDWH RI PLQG LW VKRXOG QRW EH LQWHQGHG WR
circumvent security of tenure and it should do away only
and permanently. Meaning, if Congress will do away of a
particular public office for example or administrative
agency, dapat Entire Abolition.
36
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
Atty.Guji: However, there is a difference between
abolition of a public office and declaring it as
vacant.
Atty.Guji: Pag VACANT, meaning the agents of the office
are still there but the occupant is no longer there. You
know what that has serious validity questions there
because when you say it is vacant, the Congress is
exercising the power to remove which it does not have to
begin with. Then, there can be IMPLIED ABOLITION,
but that is not favoured because EXPRESS
ABOLITION is what favoured by law.
TOPIC: Reorganization
Q: Reorganization entails what?
Atty.Guji: It is reduction of personnel, consolidation and
abolition of office in the name of economy, redundancy,
efficiency and simplicity.
Q: When do we say that the reorganization is done in bad
faith?
Atty.Guji: This is when it is MOTIVATED BY POLITICS or
WHEN IT IS INTENDED TO DEFEAT SECURITY OF
TENURE.
)RU H[DPSOH *L XVDE ODQJ DQJ SDQJDODQ ³&KDQJH LQ
1RPHQFODWXUH´SHURSHUIormance substantially the same
or gi abolish ang office, creating another, performing
substantially the same functions. That is in bad faith, it is
not a real organization.
BADGES OF BAD FAITH OF REORGANIZATION:
1. When the positions significantly increased.
Atty.Guji: This is because reorganization is to economize,
to save government resources. Pero ang nahitabo you
DEROLVKWKLVRIILFHRIOHW¶VVD\SHRSOHWKHQ\RXFUHDWHG
an office of 2000 people. Where is the economy there?
There is no economy there.
2. When the incumbents are replaced by less
qualified in so far as status of appointment,
performance and merit.
Atty.Guji: Example here is a governor who terminated his
own legible civil service clerk and replaced him with his
own man, the one who campaigned for him during
elections. He said that because he trusts them, they have
my loyalty. But the SC said, when did loyalty become a
UHTXLVLWHRISXEOLFRIILFH"7KDW¶VLQEDGIDLWK
3. Reclassification where the classified offices
performing substantially the same functions.
Atty.Guji: The yardstick there is if they perform
substantially the same functions, not necessarily identical
but substantially the same. That is a badge of bad faith.
4. Removal violates order of separation
Atty.Guji: Valid ang reorganization, grounded in good
faith. However, one hinay hinayan man na ug ilisan in the
office, reorganize, abolish, so karon kinsa mau na ma
tangtang?
Order of Separation:
1.
2.
3.
4.
Casuals with less than 5 years of service
Casuals with 5 or more years of service
Employees holding temporary appointments
Employees holding permanent appointments
Q: So, katong mga na tangtang sa office, Can they not be
re-appointed in the new office?
Atty.Guji: Yes, they can be, as a matter of priority but it
is not demandable as a matter of right. The reason is
because, the SC said, this is to give chance to the
appointing authority to decide and to choose.
Atty.Guji: But for the offices outside of the office proper,
it merely grants the power to transfer units but not
abolish.
Q: Now, what if your government agency is suddenly
DEROLVKHG E\ &RQJUHVV" :KDW KDSSHQV" :KDW¶V WKH
effect? Now, abolished na ang agency. For example, gi
hatagan siya ug license sa LTO. Then, you are told to wait
for 5 days, then suddenly the LTO was abolished by
Congress. So, what happens to the license later on?
Atty.Guji: It survives the death of the abolition of the
administrative agency. It is still valid because at the time
of issuance controls.
Effect of Conversion
Atty.Guji: Gi convert ang isa ka administrative agency. For
example:
The College of Commerce was converted into Polytechnic
University of the Philippines, unsa man ang effect niya?
37
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa
A: The effect there is, it did not abolish the College of
Commerce, it did not even change the corporation, it
merely changed the status of education in particular with
the course offerings.
Atty.Guji: But the question there was duna man gud uy
high ranking official there na gi tangtang siya when it was
still the College of Commerce. Karon, he was ordered
reinstated pero pag balik niya, wala na sa College of
Commerce pero Polytechnic University of the Philippines
na. So where does he go?
considerations will be negated by the fact that ni comply
ang abolition sa balaod.
Exactly why I want to quote Dean Largo here, si Dean
Largo on the controversy of the shutting down of ABS&%1 VKH VDLG ³7KHUH DUH OHJDO UHDVRQV WKHUH DUH DOVR
JRRGUHDVRQVEXWWKHUHDUHUHDOUHDVRQV´
--------END-------
Atty.Guji: The SC said, that it was not a problem. You can
be appointed to a ³&203$5$%/(326,7,21´ If that
comparable position is not available, then the position
next lower in rank. That can still be acceptable.
Student: What are the consequences if an abolition of
office was proven to be in bad faith? Will there be a
consequence for the officer, for example the President?
What are the consequences for the office itself and the
employees who were terminated in bad faith?
Atty. Guji: In so far as for the one who is responsible for
the abolition is concerned, in bad faith niya gi abolish.
Public officers are protected by the Doctrine of Official
Immunity, they cannot be civilly liable for third persons,
SURYLGHGWKDWLWZHUHQ¶WGRQHLQEDGIDLWK,ILWZHUHGRQH
in bad faith, he can be held civilly liable for damages.
Atty.Guji: Now, the other question is what will happen to
the employees.
If the abolition is founded by the SC to be done in bad
faith, it means that the abolition is also abolished.
Meaning, the abolition is nullified and so you reinstate
those in public office. So, those who were removed by the
abolition will also be reinstated. That is insofar as theory
LV FRQFHUQHG EHFDXVH LQ DFWXDO , GRQ¶W WKLQN WKDW HYHU
happens. The SC will really say na Congress, you crossed
the line, again class, bad faith/good faith state of mind
siya. It is so hard to establish that. Exactly why in one
case, the SC said even if it appears that it were politically
motivated but if they perform different functions, we have
no other choice but to sustain the reorganization. Nakita
sa SC na there is bad faith, there is political retaliation,
pero wala eh, by virtue of the concrete acts, wala man
kay separate and distinct ang functions eh. Abolished ang
office and another office was created with a separate and
distinct function, the evidence of bad faith and political
38
ADMINISTRATIVE LAW C1-5 / ATTY.GUJILDE | Alonzo, Evangelista, Garcia, Gregorio, Nacua, Panerio, Taucan, Villa