Administrative Discipline

When you talk about power to appoint, normally it involves the power to remove or
dismiss. The SC has exclusive administrative control and supervision over all court
personnel even if they are presidential appointees. We said that the power to
appoint carries with it the power to remove. But there are a lot of presidential
appointees that the president cannot remove. If the president cannot remove the
SC justices who can remove them? By Impeachment.

Non-presidential Appointees- Civil service may only be removed for cause and may
be provided by law after due process. But in preventive suspension, there is no due
process because it is not for penalty.

GR: The power to appoint includes the power to remove

XP: where there is a law specifically gives the power to remove them

The following are appointed by the President but cannot be removed by president:

a. SC justices
b. Judges of lower court
c. Chairmen of Consti bodies
d. OMB

Ex- associate justices are appointed by the president but the president cannot
remove them. Because they are impeachable officers.

So for example of there is a delay in the disposition of a case, that is actually

administrative in nature, as such it pertains to the exclusive JD of the SC. We are
talking here of the lower court judges when there is delay in the disposition of the
case.

However where there is a falsification of certificates of service. It is not only

criminal in nature for falsification but also administrative in nature because of the
three-fold liability rule.

In three-fold liability rule, the cases can go independently of each other. But not
where there is exclusive jurisdiction.

Discipline over non-presidential appointees

• Civil service EEs cannot be removed/suspended except for cause or

cannot be dismissed or suspended except for cause as may be provided
by law and after due process.
o Does not apply when you are a presidential appointee because
tenure depends upon the pleasure of the president. It is not called
dismissal but end of term.

Grounds for Disciplinary action (Don’t memorize)

1. Dishonesty- one time offense; no second chances; no warning or suspension

2. Oppression
3. Neglect of Duty
4. Misconduct
5. Disgraceful and immoral conduct
a. If you are a single mother are you disgraceful? Not necessarily.
6. Notoriously undesirable- does not need conviction; reputation is more than
enough; there must be some pattern or a habit
a. Notoriety
b. Universality
7. Discourtesy in the course of official duties.
8. Inefficiency in the performance of official duties.
9. Receiving for personal use of a fee, gift, or other valuable thing in the course
of official duties given in hope of returning a favor…
a. Runs counter with culture of gift-giving so this is hard to implement
10.Conviction of a crime involving moral turpitude
11. Improper or unauthorized solicitation of contributions from subordinates
employees
12.Violation of Civil Service law
13.Falsification of official document (involves dishonesty, one-time offense)
14.Frequent and unauthorized absences or tardiness, loafing (naglaag-laag),
etc.
15.Habitual drunkenness
16.Gambling prohibited by law
17.Refusal to render service
18.Disgraceful, immoral or dishonest conduct prior and during entering the
service
19. Physical and mental incapacity due to immoral habits
20. Borrowing from subordinates or lending by subordinates to superior officers
a. Presumption that superior has more money. When you borrow it is
undue influence; the subordinate cannot refuse.
21.Lending money with usurious rates
22.Willful failure to pay just debts, taxes dues to government
a. For as long as you don’t issue a bouncing check, only reprimand
23.Pursuit of private business vocation or profession without the permission
required by the CS rules
a. But there are some public officer who are authorized to engage in
private practice
i. Ex- election of officer who is a lawyer; may engage limited
practice in law for as long as the government is not the other
party and appear in court of maximum of 5x a month.
24. Insubordination
25. Engaging directly or indirectly with partisan political activities by one holding
a non-political office.
26.Conduct prejudicial to the best interest of the service
 a. If you are a difficult person, you cause a lot of trouble.
27. Lobbying for personal interest or gain.
28. Promoting the sale of tickets in behalf of private enterprises
29. Nepotism- even the act of recommending a relative is not allowed (within
the third degree of affinity or consanguinity)
a. Exception her is if you are a confidential ee, and the best person to
make as one is family.
b. But the personal assistant of the president, for example, can be a
relative because of confidential matters.
c. Teachers can be relatives, as well as physicians, members of the AFP
provided that in every instance full report of the appointment shall be
made to the commission.

Impeachment- a method of national inquest into the conduct of public men

• The purpose is to protect the people from official delinquencies

• Not to punish but to remove the public official from the office
• Beyond the power of the president of executive clemency; it cannot be
extended with executive clemency unless with concurrence of
COMELEC
• Without prejudice to filing of appropriate cases; double jeopardy is not a
defense
• Limited only to removal of office and disqualification to hold public office.
• A political process; it does not even state the quantum of proof

Who are impeachable officials? There are 31 of them. This is exclusive.

1. 15 justices in SC
2. President
3. V-president
4. OMB
5. 3 from COA
6. 3 from CSC
7. 7 from COMELEC

Grounds for impeachment

1. Culpable violation of the constitution

2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust
a. SC said this is not merely any violation of oath office but something
else
 b. If you’re late, that is a violation of oath of office, can that be a ground
for impeachment? Sobra ra pud. SC said that it refers to acts which
are just short of criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty,
favoritism, etc.
c. For as long as there is bad faith, and with such gravity and
seriousness as the other grounds for impeachment. If you look at the
enumeration, these are very serious crimes. It cannot just be simple
misconduct.

d. SAF 44 killed; no less than the president bangled the military

operation. Can this be a betrayal of public trust? No, because there is
no bad faith even if the lapse of judgment is fatal that cost 44 lived.
Doctrine of presumption of regularity. But of course, you cannot stop
the HOR to trump up charges and make sure that the allegations will
fall under this definition. You cannot stop that.
e. Luneta hostage taking case; the delay in the resolution of the MR
spawned the incident and the deputy OMB is being faulted. The SC
said that it is not within the category of serious offense. The president
has concurrent jurisdiction with the OMB in so far as disciplinary
authority over the deputy OMB is concerned. Can the deputy OMB be
bodily ejected from his office because the president wants him out? SC
said it cannot be done because it violates the independence of OMB.

Over local elective officials

Grounds for disciplinary actions (don’t memorize)

Disciplined, suspended, or removed from office by order of the proper court in any
of the following ground: (never mind these, its too specific, just read when you
become lawyers)

a. Disloyalty to the republic – sedition, treason, rebellion, violation of

firearms law etc.
b. Culpable violation
c. Dishonesty
d. Oppression
e. Misconduct
f. Inexcusable negligence
g. Dereliction of duty
h. Unauthorized absence…except Sangunian Members (because they
don’t meet regularly)
i. Mere application of foreign citizenship (amounts to division of loyalty);
as a public officer, you must devote your entire life to public office.

PREVENTIVE SUSPENSION
TN: If it is concurrent between the SC and the CA, go to CA first because
exhaustion of remedies.

Who suspends if you are an elective official of a province, highly urbanized city, or
independent component city? It is concurrent with the office of the president and
the OMB. IOW, you can go either way.

Basis for preventive suspension

2 Requisites for preventive suspension:

1. OMB should find that there is strong evidence of guilt AND

a. Strong evidence of guilt- not prejudgment of guilt; not necessarily
follow that there will be conviction; the purpose of this is not to
convict, not yet trying the merits of the case but only for purposes of
preventive suspension; this does not have conclusive but only
persuasive effect
b. Allowed to post bail even if non-bailable offense- when evidence of
guilt is not strong; humanitarian reasons; but does not mean that
cannot be convicted even evidence of guilt is not strong
2. The crime involves grave misconduct, oppression, grave dishonesty and
neglect of duty etc (catch-all phrase) OR
3. any other crime that warrants dismissal OR
4. The continued stay in office will prejudice the investigation

There are instances wherein the CA and the RTC share JD. Can the RTC issue a TRO
against the OMB in so far as petition for certiorari, mandamus, prohibition is
concerned? No. There is an intention to remove such power from RTC because of
fear of indiscriminate filing of TROs. RTC judges can be easily influenced. That is
why in election law, RTC is also not allowed to restrain the COMELEC.

Case: The OMB said that CA cannot issue a TRO. The law was so specific. There is
the no-injunction policy against the OMB. This writ of injunction is actually
temporary because of the law says “relate”. The word means that it presupposes
that there is a main case. In which case, this injunction only refers to the
provisional kind of injunction and not the permanent one. So TRO and prelim
injunction cannot be issued. This is the general rule.

The exception is: unless there is a prima facie evidence that the subject matter of
the investigation is outside the JD of the OMB.

When you say subject matter it refers to the person. Because the law says that the
JD of the OMB is all encompassing it can discipline local elective officials, including
GOCCs and its subsidiaries, etc. Except: Impeachable officers, members of
congress and judiciary. They are already outside the JD of the OMB. So, the CA can
issue an injunction if the subject matter is outside the JD of OMB.
The CA can issue a TRO against the order of the OMB. That’s what happened in this
case, it was the CA that issued the injunction against OMB from preventively
suspending Junjun Binay.

No court shall hear any appeal or application for remedy against the decision or
findings of the OMB except the SC on pure question of law. But the SC noted that it
says any appeal of application. IOW, it refers to Rule 43. SC said that it cannot
refer to appeal because again the SC’s jurisdiction cannot be increased without its
consent. It does not refer to Rule 43 but 65 based on grave abuse of discretion.

Bottomline: the CA can restrain the OMB.

Except: Impeachable officers, members of congress and judiciary. Sir thinks that
this is in so far as the power of the Congress to discipline its own members out of
violation of its own code of conduct. It does not include an order from the OMB.
Let’s wait for the SC to decide.

Salary pending suspension

• Not entitled to salary during suspension. Otherwise it rewards you

because you are not working and you are given a salary.
• But if exonerated and reinstated, will be given full salary and other
emoluments.
• What if on appeal nakadaog ka? The period of suspension you were not
paid, you will be paid full salary and other emoluments

Rights of respondents

• Here, we are talking about discipline, that is administrative counsel can be

dispensed with. In criminal case, the court is duty bound to provide you
with counsel.

Execution pending appeal

• Appeal does not prevent decision from becoming executory. But it does
not mean that it is final. (take note of the
• What happens if nakadaog sa appeal? If respondent wins on appeal, the
period during which the appeal is pending shall be considered as the
period of preventive suspension. If the appeal exonerates, he shall be
paid salary and other emoluments during pendency of the appeal.
• TN: exonerated means that you are acquitted of the charges.
• The remedy of appeal, normally, suspends the execution. But in so far as
the discipline of public officials is concerned it does not stay the execution
of the enforcement.

JURISDICTION OF OMBUDSMAN

• to take appropriate action against public official or employee, and

recommend his removal, suspension, demotion, fine censure, or
 prosecution and ensure compliance therewith (which means
mandatory)
• Not limited to recommendation only, it includes the power to suspend,
censure, fine, and prosecute.
• Power is not merely recommendatory but mandatory.
• DENR EEs were suspended by the OMB for simple misconduct, they argue
the OMB has not power to suspend them because its power is merely
recommendatory; OMB has full administrative authority from
recommendation to ensure compliance.
• If the proper authority who it was coursed with, it has no other choice but
to enforce it. Unless the EE is already out of office.
• The OMB has disciplinary authority over all elective and appointive
officials of the government, etc.
• EXP: it has no JD over impeachable officers, members of the congress and
judiciary.

The OMB has JD even in so far as the GOCCs are concerned. But in case, the
Sc qualified that if that GOCC was organized under the SEC, the OMB is without
authority. It has only JD with GOCCs with original charter.

• Original charter- created by special law as distinguished from

corporations.
• For those created under the SEC, you proceed to either the SEC or regular
courts.
• Case: OMB has no JD with PAL employees. Because PAL has no original
charter.

Case: postmaster who faked the eligibility of his wife; SC said that a public officer
may be dismissed from office from an offense not related to work or not in
performance of his official duties.

• Dishonesty- administrative offense, disposition to lie, cheat or defraud;

concealment of distortion of truth. One-time offense, no second chances.
o TN: it includes concealment of vital information when you have the
duty to divulge.

Case: OMB has jurisdiction over police officers who are civil service employees.
There is nothing in the law which says that the deputy OMB of the military is
prohibited from performing functions over non-military officers. The name alone
does not suggest JD.

Case: the school superintendent has original JD over administrative cases of public
school teachers as such the OMB must yield except where there is estoppel.

• We said that OMB’s JD all-encompassing. But not where there is a law

that says that JD pertains to a particular department.
• Purpose is to impose a separate standard and procedural requirement in
administrative cases involving public school teachers.
Instance of estoppel:

It was only when the decision of the OMB was adverse to him that he raised
the issue of JD for the first time. Must be raised on the earliest opportunity.
If it is denied, just allege that it is your continuing opposition.

The OMB has jurisdiction over elective officials. But LGC says that it pertains to the
President. Statcon rule: there can be no implied repeal except where there is
irreconcilable inconsistencies over the two laws, absent none, the end result is that
both laws are allowed. So OMB and President has concurrent JD.

At the first instance, it was said that the OMB and President have concurrent JD
over the deputy OMB. But this was changed when SC said that it cannot be done
because it violates the independence of the OMB. President cannot bodily eject the
Deputy OMB.

The OMB has concurrent JD with the DOJ. This is because the DOJ is the
prosecutorial arm of the government. The OMB has primary and not exclusive JD
which means that it can take over at any stage of the investigation. It can share JD
with other law-enforcement agencies.

Case: It is not only the administrative code that is the source of administrative law
but also other related statutes.

DOCTRINE OF SEPARATION OF POWERS

Purpose: to prevent concentration of powers.

Is it exclusive? Not necessarily. Because there is such a thing as sharing of

administrative powers of the 3 branches. IOW, the 3 branches’ powers are not
compartmentalized. There is such a thing as blending of powers. But the moment
you stepped into the exclusive JD of a branch, that becomes encroachment.

Ex- the power to legislate pertains to Congress. This is not exclusive because the
president has he final say on whether a bill will become a law. Except when there is
inaction which also may result to passage of law. It’s 30 calendar days from receipt.

Ex- the court shares legislative power when it decides cases which interprets the
law. However, this can only be exercise when there is already a law. Otherwise, it
becomes encroachment or powers.

Ex- Congress shares the executive power in so far as appointments and ratification
of treaties.

Principle of checks and balances- to prevent the supremacy of one branch over the
other.

The power of the Congress to enact laws includes the power to ensure that they are
faithfully executed. The JD of Congress does not end after legislation. It can
exercise the power of oversight which involves the post-enactment measures of
Congress undertaken to monitor compliance.

• Auxiliary power- an additional power

Oversight Congressional Functions:

1. Scrutiny- purpose is to determine economy and efficiency of government

operations. It refers to budgetary appropriations of congress which is the
power to specify the project or activity to be funded.
a. Power of appropriation- made in a budget hearing. Administrative
agencies can make budget proposals wherein it is incumbent upon
them to appear before the Congress to justify the proposal. In here,
the District Reps can express its confidence or disgust in the
performance of public officers. Can be done by District Reps because
appropriations bills originate from lower house.
b. Constitution: Department heads may be summoned by the Congress
for a hearing with the consent of the president.

Power of confirmation in appointments is exercised by the Commission of

Appointments. But this is political such as in one case, an appointee for labor
secretary was rejected because he was too pro-labor.

Who needs to undergo the consent of COA? Nominees coming from the President:

THIS LIST IS EXCLUSIVE:

i. Heads of executive department (cabinet secretaries)

ii. Ambassadors
iii. Other public Ministers and consuls
iv. Officer of the AFP with a rank of colonel
v. Other officers whose appointment are vested with the
President under the constitution
2. Investigation- exercised by Senate and HOR.
a. Limitations:
i. Must be in aid of legislation but it is not necessary that there is
a law to be passed thereafter. Cannot compel congress to
legislate because that is political in nature.
ii. In accordance with duly published rules and regulations
iii. Right of the persons appearing therein should be respected

In refusing to answer questions during the investigation, Congress has the power of
compulsion or cite him in contempt. Because without such, why inquire in the first
place?

A witness cannot invoke that the question is immaterial because that is the duty of
the lawyer. Even lawyers cannot do that if he is on the witness stand. One is not
the judge of his own liability. IOW, it is not for him to decide that the question is
irrelevant or immaterial.

A witness cannot refuse to answer on the ground that it may incriminate him
because he is not the judge of his own liability. Let the lawyer oppose.

Grounds for contumacy:

1. Refusal to obey after duly summoned unless there is a

justifiable reason
2. Refuses to be sworn and placed under affirmation
a. To be charged with perjury once he lies under oath
3. Refuses to answer relevant questions
a. But it is not for the witness to object when
irrelevant
4. Refuses to produce papers, documents which are relevant
(subpoena duces tecum); not only being but must also
identify it before the court.
5. Disrespectful manner/misbehavior
3. Supervision
a. Is the veto power exclusive to the President? No. Congress can
exercise when it asks an administrative agency to craft an IRR after it
passed a general law. Before that IRR takes effect, it needs to be
submitted back to Congress for review. If Congress do not like the
IRR, it can veto it.

Who needs to undergo the consent of COA? Nominees coming from the President:

THIS LIST IS EXCLUSIVE:

i.
Heads of executive department (cabinet secretaries)
ii.
Ambassadors
iii.
Other public Ministers and consuls
iv.Officer of the AFP with a rank of colonel or naval captain
v.Other officers whose appointment are vested with the
President under the constitution
• Who are these officers:
1. Chairs and commissioners of the CSC, COMELEC, COA
2. Regular member of the judicial and bar council
3. Representative of private sector
4. Sectoral representatives

Case: the list is exclusive; the confirmation of COA is not needed in the
appointment of the chair and presiding commissioners of NLRC.
The power to appoint is inherent in the presidency. If the law is silent as to who
should appoint, the default authority is the President without the consent of COA.

Congress to follow through legislation. IOW, if it enacts a law, it may require further
whether that law is properly implemented. This is not encroachment but blending of
power.

Case: There are already established requisites for the validity of voting by mail.
Congress cannot exercise its power of supervision if the law provides for everything
that the administrative body needs to implement.

• Supervision- check compliance

• Control- power to replace the judgement of subordinate

Attachment- relationship between department and agency attached to it for

purpose of policy formulation

• What are the implications of attachment

o No lost of identity and independence because it is only for policy
formulation and coordination.
o Who will discipline the employee of an agency? The agency itself
because it does not lose its independence as far as personnel and
management policy is concerned.
o Identity is not subsumed by the fact of attachment.
o Policy and program coordination, how accomplished
§ Representation
§ Periodic Reporting about progress

Administrative agencies- are to help unclog court dockets and hear cases that
requires special knowledge and training; more expertise.

ex- housing dispute, go to the HLURB because it is more attuned with the real
estate business.

Public officer may created by the constitution, by law, or by authority of law.

Case: the power of the President to reorganize does not include the power to create
an office but in so far as the national government is concerned, SC said that the
President could create an office pursuant to his authority to reorganize because that
is pursuant to a delegated power granted to him (larin vs. executive sec)

The government agencies may be abolished but its issuances and directives
survive.

Case: Conversion of office is not equivalent to abolition.

Minor changes do not amount to abolition.

Case: Congress enacts a law but it was couched in general terms. It needs specific
details. When it delegates power to the admin body to implement the law, it gives
that body a sufficient standard in the creation of the IRR. Here, what it said was
“to create offices deemed necessary to the management”. There was a creation of
first, second, and third vice presidents. It is valid because it stated as “deemed
necessary”. And they saw it necessary.

Sufficient Standards: Guide of the body in creating the IRR

Examples:

1. Promote public safety.

2. Justice and equity
3. Sense and experience of men
4. Fair and equitable practices
5. Along the guidelines

TN: they are couched in general terms to give the admin body the discretion to
create guidelines

Example of insufficient standards:

“As the chair may see fit”- gives the authority an unbridled discretion

a. TN: “as it may deemed necessary”: is sufficient because you can see
what is necessary.

Effect of abolition in security of tenure when another government agency was then
created which has similar functions. Do you have the preferential right to be
appointed? Probably preference or priority but it can be a demandable right. Just
like the next-in-rank rule.

Case: while it is a fundamental rule than an administrative agency has only such
power expressly granted, it has also implied powers that are necessary to exercise
its express power. Otherwise known as doctrine of necessary implication.

We said that we must exhaust administrative remedies first prior to going to the
regular courts because otherwise, it is premature. But this doctrine applies only
when the court exercises judicial powers. When it exercises quasi-legislative, the
doctrine of exhaustion of admin remedies does not apply.

QUASI-LEGILATVE POWER

• Doctrine of subordinate legislation of administrative agencies

• Subordinate legislation in a sense that when Congress passes a law that’s
the general terms, it needs an IRR so that it can be fully implemented
• However there are laws that do not need an IRR
o Ex- Revised Penal Code
INTERPRETATIVE REGULATIONS

Administrative legislation and policies enacted by administrative bodies to interpret

a law are entitled to great respect until the SC says otherwise.

• They are the best people to interpret the law because of their expertise,
however, caveat, until the SC says otherwise.

Case: the power of subordinate legislation allows admin bodies to implement based
on the statute by filling in details to fully implement them- in the form of IRR or
when in COMELEC, resolutions. Subject to the ff conditions: it is germane to the
purpose of the law and conforms to the standard prescribed therein. It cannot go
beyond the scope of the law.

An example is the liquor ban stating that such is effective for 2 days however,
COMELEC expanded it to 5 days. SC said that it is unconstitutional because it
expanded the law. The spring cannot rise above the source. Why the Congress
delegates that is because it may not have the expertise in election law for example.
It is COMELEC who knows what actually transpires in the field.

The power to interpret the law pertains the judiciary, but it is not exclusive because
it is actually the administrative body that interprets the law in the first instance. But
this interpretation may not be binding to the SC when there is a controversy.

When an admin agency issues an opinion, issues a statement or policy, it merely

interprets the existing law. It is at best advisory because it is the court who
determines what the law means. It is only valid until the SC said otherwise. But it is
afforded great respect. It may be set aside when there is error of law, abuse of
power, lack of JD or grave abuse of discretion.

2 kinds

1. Interpretative- takes the form or letter of instruction as oppose to IRR. An

IRR is under subordinate legislation but once there an IRR that may not be
understood because of its vagueness, it may ask an opinion from the central
office. Once the central office gives back the written opinion, it becomes
letter of instruction. Does it need to be published? No. Because it is only to
guide the people within the agency.
2. Legislative- may require publication before it takes effect.

Source of valid delegation

Case: a subordinate legislation of LTFRB involving road safety being challenged as

unconstitutional because the exact word of the law is not reflected in the IRR. It
may have added more requirements than the mother law.

Generally, legislative power cannot be delegated except to local governments that

participates in its exercise. What cannot be delegated is the authority of Congress
to enact laws, alter, and repeal them. If it involves discretion on what law shall be,
it cannot be delegated. If it involves authority to execute pursuant to the law, it can
be delegated. The law must be complete in its terms and conditions. There must be
sufficient standard that defines legislative policy, sets limits, maps out boundaries
and specifies the public agency to apply them.

• Congress’ power to legislate is not absolute because it can delegate to

administrative agency

Once it delegates, it must pass the test of validity. There must be sufficient
standard. Because there may be standards that are insufficient.

The standard may either be express or implied. If it cannot be found in the express
language of the law, you apply the doctrine of necessary implication and inferences.

Case: IOW, the LTFRB can add additional requirements that may not be found in
the law but can be reasonably deduced from the express language of the law.

Congress is incompetent to anticipate what exactly happens that is why it needs to

delegate to an admin body that has the best expertise in so far as that field of the
law is concerned.

Ex- congress is incompetent to specify what actually happens on election day so it

needs to be the COMELEC that is in the best position to fill in the gap.

Case: this is the mandate: to protect the rights of OFWs to fair and equitable
employment practices. This is the guide, sufficient standard. And yet, POEA says
this: in case of death of the seamen the employer must pay the following: (list of
amount). Take note that this is an admin circular issued by POEA. The problem is
that the law does not even talk about the amounts mentioned. Did the POEA
expand the law? SC said it may not be found in the law but can be reasonably
deduced from the express language of the law it is allowed.

It is true that legislative discretion, as to the substantive contents of the law,

cannot be delegated but what can be delegated is the discretion on how the law
should be enforced. But to determine valid delegation power, we have the
completeness test and sufficient standard test.

Completeness test: the law must express all its terms and conditions such that
there is nothing left to the delegated body to do but to enforce it.

Sufficient Standard test: Adequate guidelines

Case: the standard is “equitable employment practices” but it does not even talk
about the amount. SC said that is allowed because it is pursuant to the fair and
equitable practices. It can be a case to case basis. This is on labor law which must
be resolved in favor of labor.

Case: the president was delegated to create admin agencies to assist him but the
findings of the recommending authority is subject to the discretion of the president.
He can either accept, modify, or reject them. SC said that it is a smiting delegation
of legislative power. Invalid because it is merely up to the president but the
president says that it can delegate it to somebody else and it’s up to him to
approve or disapprove.

Effectivity of admin issuances, rules, and regulations

• Publication is necessary for them to take effect because IRRs/ issuances

has the force and effect of the law and they cannot be enforced without
publication in the interest of due process. Except interpretative rules and
regulation that do not affect public. Need not publication if it is only
guidelines for those within the agency.

Presidential issuances:

Why is the President allowed to issue executive orders that has the force and effect
of laws? In administrative code, there is that section that involves the provision of
the ordinance power of the President. When you say “ordinance power” that is
actually rule-making power.

• One example is when the President is empowered to declare a particular day

a holiday. That is supposed to be a legislative act. But the law says that the
President is in the best position to determine whether or not a particular day
is going to be a holiday. Remember, if we have a holiday, it will cause the
government billions and billions of pesos.

If the activity involves regulations, penal or non-penal, it needs publication and

needs to be filed with the UP Law Center. You can dispense with filing but you
cannot dispense with publication.

• Why is it “UP Law Center” only? Because UP is state-sponsored; it is a state

university.

Nature of administrative rules and regulations:

They have the force and effect of a law partaking the nature of a statute.

Rule-making power of the public administrative agency:

A delegated legislative power

Types of administrative rules and regulations:

If it enforces the law, it is in the form of an implementing rules and regulations

If it interprets the rule, it is in the form of a letter of instruction

Congress delegates the rule-making authority to administrative bodies,

provided the law is complete in itself.

We said that for a lawmaking power to be delegated, it must be complete in itself.

Here is a general law and we said that there are gaps in that law that needs to be
filled up by administrative agencies. How do you reconcile that with the statement
that ‘we only delegate the law if that is complete in itself’? Why do we need to
delegate it for the specifics when we say that it must be complete in itself first?

• When we say that the law must be complete in itself, it means that it must
be complete in itself insofar as the general terms are concerned. But still, it
lacks the specifics that is why it needs to be delegated. The completeness
there refers only to the general terms.

Test of validity of administrative rules and regulations

1. Germane to the object of the law

2. Conforms to standards prescribed by the law
3. Sole purpose of carrying into effect general provisions of the law

Requisites of a valid regulation

1. Authorized by law
2. Promulgated within the scope of authority
3. Promulgated in accordance with prescribed procedure
4. Reasonable and fair
5. Duly published
6. Filed with UP Law Center

Again, filing with the UP Law Center can be dispensed with but you cannot dispense
with publication because it violates due process and the right of information.

TIP: If this comes out in the Agree/Disagree part, your answers must be complete.
I am looking for that word that seals the deal. Pang-hataw [lol]. BOMBSHELL!!!

Authorized by law:

Tayug Rural Bank v. Central Bank – Congress passes a law and the Central
Bank is an administrative agency. Suddenly, the CB imposed penalties on past
overdue loans of rural banks. But that is not found in the express language of the
law. Can we now apply the doctrine of necessary implication? No, because it
involves a penalty. If it involves a penalty, chances are, it might be invalidated if it
has no basis in the express language of the law.

But why do we allow the benefits of labor? Because that is not a form of
penalty but a benefit. That is permitted.

Once it is a form of penalty, the court may frown upon it and say that such is an
undue delegation of power.

Promulgated within the scope of authority:

Boie-Takeda v. Dela Serna, Philippine Fuji Xerox v. Trajano – this case talks
about the entitlement of the 13th month pay. What is the basis of the 13th month
pay? Basic salary. They want commissions to be part and parcel of the computation
for the 13th month pay. Can that be allowed? No. The law only provides that it be
basic salary. SC said that “commissions” are not included in the computation. But
isn’t that the SC likewise said that when it comes to labor, we should be liberal in
favor of labor? Only when there is doubt that we should now resolve in favor of
labor. Here, it is very clear. No need for interpretation because it is clear.

Republic v. CA – Administrative issuances to enforce the law must be

in harmony with it, not modify or supplant it. It must be in consonance of the
general law enacted by Congress.

But of course, there are a lot of nuances there, like the doctrine of necessary
implication and inferences. The challenge there is how to identify whether or not
that is a general rule or the exception.

People v. Maceren – The law only talks about “any poisonous or obnoxious
substance’ that is not allowed. But the administrative order penalizes electrofishing
and electrofishing is not found in the Fisheries Law. So the SC said that such cannot
be allowed because it expands the coverage of the law.

But can we argue that it is the doctrine of necessary implication and

inferences when you want to say that the purpose of the law is to protect marine
life? But then again, this is criminal liability, and if there is doubt, it is resolved in
favor of the accused.

You know what a ‘dead man walking’ is? This is not part and parcel of the case. I
just placed it there for you to remember the case. “Dead man walking” is the story
of Echegaray. The problem there is: how to administer the lethal injection? Because
the officials concerned passed the responsibility on formulating the policy on how to
kill a man. There was a death penalty before but after the 1987 Constitution, it was
abolished. But then, a law revived the death penalty and he was executed under
the new law. The result was that the SC also became hesitant in enforcing because
at the last moment, it issued a TRO enjoining the administration of the lethal
injection on Echegaray because of doubts. But eventually, it was done. He was the
only man who was executed under the law that revived the death penalty. Because
it was abolished again. Now, there are talks to revive it again.

Echegaray Case
Echegaray invokes the constitutional prohibition against unusual/cruel punishment
because he does not exactly know the exact day during which he is to be executed.
He says that that is cruel. In the RPC, it says, “The death sentence shall be carried
out not earlier than 1 year nor later than 18 months after the judgment has
become final and executor” (Article 81, RPC). [he was reading something about
pregnant women pero murag d jud mao iya point so ako gi find ang right
provision]. The IRR expanded the coverage to 3 years. The SC says that cannot be
allowed because that expands the coverage of the law.

Another issue here is invalid delegation of power. What happened here was
probably because of the Catholics in them. The Justice Secretary was authorized by
law to promulgate the IRR for the administration of lethal injection. The Justice
Secretary likewise delegated that authority to the prisons director.

Can the Justice Secretary delegate the authority that was delegated to
him?
-Generally, the answer should be no because a delegated authority cannot be
delegated anymore.

But here in this particular case, the SC said that it can still be delegated because
the Prisons Director is a constituent office of the Department of Justice.

However, the other problem here is the JS, I’m going to leave it to the discretion of
the PD to prepare the manual for the administration of the lethal injection. There is
no reviewing authority there, the JS merely says it’s up to the PD. That becomes
unbridled discretion. And because of that, the SC says your IRR are not valid to
begin with. So what happened there was that the SC issued a TRO against the
administration of the lethal injection. It was so dramatic because media people
were there in the death chamber and then suddenly there was the TRO coming
from the SC.

But at that time, they said that the SC was also playing safe because you’re talking
here about life. If you kill a person, death is irreversible. If you commit a mistake,
there’s no way you could remedy that. So chances are, everybody was trying to
play it safe. So when the IRR was already revised, indeed, Echegaray was
executed. Three drugs were to be administrated.

Here’s Congress that passes a law that was couched in general terms. As such, it
cannot yet be implemented because it lacks the specifics. So leave it to the
administrative body to fill the gap in the law. But in this case, SC yes, the
administrative body can provide the specifics but it cannot be too specific as to
offend the equal protection clause.

Illustration to that is: There’s a case about appointment. In that case, it’s about the
appointment of the mayor of Olongapo City as the chair of the SBMA (?). It was
nullified because according to the SC, when you say the office of the mayor is going
to be appointed, it’s not really appointment. Because when you talk about
appointment, it presupposes freedom of choice. When you say appoint the
incumbent mayor, you’re telling the appointing authority that you cannot appoint
anybody else but the incumbent mayor. It is too specific and it cannot be allowed.
(discussion about the pros and cos of death penalty)

Another requirement for validity is duly published. There must be publication of

the IRR.
Republic vs Medina
In this case, we said that there should be publication of the IRR for 10 days but
here, on the 6th day of publication, it was implemented. Can that be allowed?

If you remember Tanada vs Tuvera, you can either shorten or lengthen the period
of publication but you cannot dispense with it altogether because it offends the
right to information and due process.

So in this case, they shortened the period of publication from 10 days to 6 days.
Can that be allowed? YES. Because there was still publication. What is not allowed
is if you dispense with the publication. But you can dispense with the filing with the
UP Law Center, if the IRR or the law provides.

There was a DO from DECS. The Education Act of 1992 vests the power of the
DepEd to regulate school fees. But the problem here was, if your power is only to
regulate school fees, do you have the power to allow the increase of school fees?
The law was silent. SC said that it has the power to allow increase in school fees
because it can be reasonably implied. The reason is that granting that it is not
DepEd that allows the increase of tuition fees, who will? So if we cannot identify
that, it’s better that it befalls the DepEd.

TN: DOCTRINE OF SUBORDINATE LEGISLATION

-It cannot expand nor restrict the law. Take note that there’s some nuances.

Is it found in the express language of the law? Yes.

What if it’s not found in the express language of the law? DOCTRINE OF
NECESSARY IMPLICATION AND INFERENCES
What if the doctrine of necessary implication cannot be applied, where do
you go?
Go to the INTENT of the law. Especially if the beneficiaries of the law are labor,
farmer, and other marginalized sectors of the community. If marginalized, chances
are it would be resolved in their favor provided there is doubt.

Where the law is very clear, and there is no room for ambiguity, there is no room
for interpretation. Apply the law as it appears to be.

Take Note:
When does the court intervene insofar as administrative bodies and
agencies are concerned?
-Only when the findings of fact is not supported by substantial evidence. For as long
as it is supported by substantial evidence, that is conclusive except where there is
grave abuse of discretion.
If there’s something excessive there, the court can intervene. We also learned that
the decision of the administrative body is final and executory. The court can still
overturn that when there is GAD or in the interest of justice.

Doctrine of Exhaustion of Administrative Remedies

-The reason why there are administrative bodies is because we want to help unclog
the court dockets. So if you’re going to do the shortcut, you defeat the purpose.
That’s why it can be dismissed based on prematurity.

Take note of the exceptions where you can go directly to the court without
exhausting the administrative remedies:
1. Pure questions of law
-If the question begs the answer is it true or is it false, that is a question of fact.
-But if the question there is what is the law applicable to a given set of facts,
that becomes a question of law

Sir’s discussion on the student’s question:

-The COA cannot disallow the payment on the ground that there no money. It can
only disallow on the ground that there is no legal basis.
-The job of allocating budget is with the Congress, not the COA.
-If there is an existing budget, and you do a realignment, It could be considered
Technical Malversation. So you can’t do that.
-The remedy is to allocate another budget – supplemental budget.
-If the court decision merely awards backwages without specifying the amount,
doctrine of necessary implication, just compute. Or better yet, the remedy is to
submit a motion for clarification to clarify the judgment.

-I’m not going to depart from the general rule that the SC will only take cognizance
of cases of pure questions of law. Because there are cases where the SC actually
entertained questions of facts as in the case of Hubert Webb.

Quasi-judicial Power

Powers of administrative agencies have been discuss in your Election Law.

We discuss quasi-legislative power of the COMELEC, quasi-executive and even
quasi-judicial.

Quasi-judicial power

• the power to hear and determine questions of facts to which the legislative
policies to decide in accordance with standards to enforce and administrate
the law. Acts in the exercise of quasi-judicial power are enumerated.
 • It is required to investigate and ascertain the existence of facts or hearings
by evidence, draw conclusions from them as the basis for their official
function and exercise discretion in the judicial nature.

Remember that we discuss in election law that if the COMELEC exercises quasi-
judicial functions there are enumerated things that we called incidence of quasi-
judicial powers. The power to receive evidence, the power to conduct hearings, to
issue subpoena.

Also, recall that in the election law we said that the power of contumacy can be
only be had if the COMELEC exercises quasi-judicial power. Today, we will learn
that not only on the exercise of quasi-judicial functions but it must be granted by
law either expressly or by implication.

Limitation to quasi-judicial power

• That administrative body cannot assume jurisdiction over a case

pending in the regular courts.

Sometimes there are controversies that are filed in the regular court but
somehow are more appropriate to be filed with the administrative bodies. If that
happens, the administrative body does not have the power to usurp right away
jurisdiction. It should wait for the dismissal of that particular case or if not
dismissal, referral to the administrative body. But most of the time, the court
dismisses that because of lack of jurisdiction or improper venue.

• Administrative agencies are neither part of the judicial system nor they
are deemed judicial tribunals.

Even it performs quasi-judicial functions, it does not depart from its basic
nature as an administrative agency. They remain with the executive branch as
such, they cannot impose judgment upon the judiciary.

You recall that as matter of fact, in election law we define quasi-judicial

power as it is actually judicial power but because the SC is jealous or the judiciary
is jealous, it cannot be called as a judicial power if it the administrative agency
that performs it because if it is judicial power, it is only the judge or the justices of
the SC or CA that can do that. But since you do that essentially, you perform quasi-
judicial functions, don’t call that judicial functions but only quasi-judicial functions.

Requirements for valid exercise

• Jurisdiction
 An international telecommunications company operate a franchise granted by
the law which deliver message abroad. Now you might to say that this is an
obsolete case it talks about a message that was not sent abroad. Today your
telecommunication is so advanced.

So a case was filed before the public service commission which found it
liable for unsatisfactory service . However, is unsatisfactory service is a cause of
action that can be filed before the PSC?

The SC noted that the law authorizing franchise limited the jurisdiction of
PSC only with the rates charged to the public and it does not include acts of
negligence. So if your problem is unsatisfactory service, the jurisdiction does not
pertain to the PSC but to the regular court.

Because PSC is limited only to regulate the rates. Because here, the
jurisdiction of administrative agency is limited to those expressly granted or
necessary implied by law.

But you might be confuse because in your CivPro you learned that it got to
be expressly granted by law. But here, in so far as the administrative bodies are
concerned we say that it can necessarily be implied from the express grant of
jurisdiction. Again, the doctrine of Necessary Implication applies here. Don’t worry
because if something like this will come out in the exam, I will give the facts WON
the law expressly grants the jurisdiction. So the challenge there is whether or not
the additional things that it might acquire be reasonably implied from the grant of
jurisdiction.

• Due process of course

Take note that we are talking about due process before administrative proceedings.

The COMELEC en banc voided the proclamation of the mayor who argued
that his right to due process was denied because the twin notice requirement of
prior notice and hearing was not observed.

Even it was not observed the twin notice requirement does not apply if the
proclamation void ab initio. In administrative proceedings simply means an
opportunity to be heard and to reconsider and explain either written or verbal.

Take note of the difference.

If it were the regular proceedings before the regular court - due process should
got to be observed in its maximum.
But in so far as the administrative proceedings are concerned - not strictly because
the rules on evidence on rules of court are not binding in the administrative agency.

When you say opportunity to be heard that is sufficient in so far as

administrative proceedings are concerned. SO it cannot be that strict in so far as
the rules on procedure before the rules of court are concerned.

These rules applies a fortiori if the respondent chose not to avail of the
opportunity to charges because of the belief that the disciplining authority is
without jurisdiction.

An administrative case was filed by the treasurer against the revenue

collector who refused to attend the scheduled hearings despite notice because he
believes that it is the mayor who has the authority to discipline him. In other
words, he snubs the proceedings because he says you have jurisdiction and if I
were to appear and answer the charges before you then I might be in estoppel. But
the better way to do that is just go there, answer but always insist that there is lack
of jurisdiction.

When a party refuses to answer the charges before him he cannot invoke
denial of due process. The refusal to attend the scheduled hearing despite notice is
at his own peril.

Because sometimes if you think you are close to the Mayor it gives you
some kind of belief that you are beyond the jurisdiction of anybody else. So if you
think that the particular body has no jurisdiction the fact that it issued subpoena or
summons on you to answer, you better answer. As a matter of fact you should be
excited to answer that that does not have jurisdiction. Because all you can do is
invoke lack of jurisdiction but not snub all together.

The Merit Systems Protection Board ruled in the motion for reconsideration
by the manager who is found guilty of grave misconduct and acts prejudicial to the
best interest of the LBP. It was appealed to the CSC which sustained the initial
decision of the LBP.

But the problem here is in the first level there was a decision then it was
submitted for review. The problem was the reviewing officer was also the same
officer that issued the first resolution. Chances are he was promoted along the
way.

The manager argue that they were denied due process because the MPSB
chair that ruled the motion is now the CSC Commissioner who ruled on the appeal.
That is common sense. You cannot review your own finding. The best way to do
that is if you were the CSC Commissioner and you are going to review a decision or
resolution that you yourself made. What should have been the best remedy?
Inhibit.

The reviewing officer must not “purposely??” other than the officer who’s
under the review else there could be no difference real view. You cannot review
your own findings. There is conflict of interest there.

Related Powers: Power to promulgate rules and procedures

The BOC banned the importation of wood products but its jurisdiction was
challenged because the Tariff and Customs Code does not outlined the enforcement
of import ban.

The absence of such rules and procedures does not diminish jurisdiction over
the subject matter. This is important because there was no rules and procedures.

How does it guide you? Here where the law does not require a particular rule
or procedure to be followed by the administrative agency. It may adopt any
reasonable method to carry out its function.

In the absence of the IRR, IOW, you are not required to formulate or enforce
the IRR. So in the absence it cannot cripple you just because there is no IRR. You
cannot say that we do not know what to do. It is an administrative instinct that
you have to do something for as long as it is a reasonable to carry out its function.

Take note: Even if there is no IRR provided the law does not require, but if the law
requires you to have an IRR and yet you just do something without an IRR yet then
that is an abuse of discretion. That cannot be done. So even if contempt power.

The Mayor created a committee to investigate anomalies licensing. The

committee subpoena private citizens to appear before it but he refuse thus a case
for contumacy to file before the court. You use the word contumacy.

Subpoena and contempt power must be granted by law. Whatever power the
committee has comes from the power of the Mayor to investigate as implied from
the power to suspend or remove the employees. There is no statutory grant of the
power to investigate. The power of contumacy should be expressly granted by law.

IOW, what we are saying is the Mayor has no power of contumacy. But of
course his power is bigger than contumacy. The provincial board if they invite you,
they do not have the power of contumacy. If you snub it, that is actually not
subpoena but a mere invitation that you can snub. If a congress does an
investigation, they have contumacy powers. You must go there. But lower bodies
such as provincial board, municipal council, they do not have contumacy power.

Held, the Ombudsman has contempt power because Sec. 15 (g) of the
Ombudsman Act gives it the power to contempt in accordance with the rules of
court under the same procedure and under the same penalties provided therein.

The Ombudsman ordered the prosecutor to show cause why she should not
be punished by contempt after filing the case of acts of lasciviousness instead of
attempted rape.

Held: It constitute defiance, disobedience or resistance of a lawful process.

Order or command of the Ombudsman thus, making her liable for indirect
contempt.

The prosecutor here was told by the Ombudsman to prosecute a particular

case it is actually a rape case involving a policeman over a minor. Instead of filing a
case for attempted rape, she filed a case for acts of lasciviousness in defiance to
the order of the Ombudsman. Because she was deputized, she becomes an alter
ego of the Ombudsman in which case you cannot depart from the authority given to
you by the Ombudsman.

In this particular case, she somehow saw it differently that is why she was
cited for indirect contempt. But of course, we are talking here of contumacy power.
The bottom line is she was merely a deputy of the Office of the Ombudsman that
she cannot depart from of what was ordered from here to do.

Quantum of Proof

The janitor was dismissed by the Mayor due to absence without leave on the
strength of the certification of the officer that the janitor did not report for work for
one month and this was affirmed by the CSC. The question there is mere
certification of the personnel officer sufficient or does it comply with the quantum of
proof required in administrative proceedings?

Held, while findings of fact of administrative agency must be respected, it

must be supported with substantial evidence.

Substantial evidence - is define as such evidence, such relevant evidence as

reasonable mind accept as adequate to support the conclusion.

Here, certification of the personnel officer does not amount to substantial

evidence especially against the allegation that the janitor was prevented from
signing the logbook, replace by another and forced to resign. This is a classic case
of oppression. SC noted the oppression and said that the certification is insufficient;
it does not comply with the quantum of proof required in the administrative
proceedings.

When it is supported by substantial evidence, even if it is not overwhelming

or preponderant, it must be respected. Except when there is grave abuse of
discretion, fraud or error of law.

We learn this election law. For as long as findings of facts of the

administrative agencies are conclusive for as long as they are supported by
substantial evidence. The courts does not even disturb that because they are
afforded with great respect unless there is abuse of discretion, there is arbitrariness
or error of law. Anything that is excessive, that would justify the court to nullify the
acts of the administrative agency.

The ERB approved the application for a retail of gasoline retail outlet on the
trading area but it was reversed by the CA because it results to ??? competition,
feasibility study already stale. The part to determine whether the gasoline station
benefits the oil industry and public interest lies with the ERB and not the appellate
court.

The SC said CA you cannot disturbed that because that is a finding of fact of
an administrative agency in a better position to determine WON that favorable to
the oil industry. But here the presumption here is that they did not exceeded the
authority.

Definition of Substantial Evidence

An employee was dismissed due to stock cards discrepancies but the

employee filed a case for a ULP because the dismissal was a result of his refusal to
disaffiliate from the union. So he says, there is a union, I want to get away from
the union.

ULP was belied by the fact that the employee may pursue the case alone
were normally supported by the union. However you may say that exactly that is
why he wanted to disaffiliate. Why would you say that you should be supported by
the union. That might be entirely not a good point but here there is likewise no
proof of affiliation much less the existence of the union.
 For you to allege that I wanted to disaffiliate from the union, you must prove
first that there is a union. There is no substantial evidence as define as such
substantial evidence as a reasonable mind might accept as adequate to support the
conclusion. Administrative gne, substantial evidence. But of course, if you can go
higher, there is no prohibition. With more reason that it would be ruled in your
favor because you have a higher quantum of proof.

As I emphasized, preponderance of evidence, you cannot put that in the

ranking. Because preponderance, who got the weightier evidence. So that weightier
evidence could be overwhelming evidence, substantial evidence, could be clear and
convincing evidence.

Enforcement and execution

A governor was suspended by the Ombudsman for 1 year after he was found
guilty of conspiracy with other officials for illegal quarrying and collecting of fees
without the benefit of an ordinance. The governor filed a petition for review before
CA and prayed for injunctive relief but it did not act..

The issue here is whether the 1 year suspension is immediately executory? It

depends.

If the law creating the administrative agency states that its orders or
resolutions is immediately final and executory, an appeal does not stay its
execution. Look at Sec. 68 of the LGC. An appeal shall not prevent a decision from
being final and executory.

Remember we talk about the Ombudsman and we say that it does not
become final but it is executory. But here it says it become final and executory.
But of course it can be subject to reverse if there is abuse of discretion. You will
know later that even if decision of administrative agencies is final, it can still be
reversed.

Whereas the Administrative Code of 1997 says an appeal shall not stop a
decision from being executory. Take note of the difference. LGC says it becomes
final and executory here, it merely says it becomes executory. Because it cannot be
final and executory because there is an appeal.

The Ombudsman Act says any order or decision directly imposed a penalty
of public censure, reprimand, suspension of not more than 1 month, shall be final
and unappealable.

All administrative disciplinary cases orders, directives of the Office of the

Ombudsman may be appealed to the SC by filing a petition for certiorari within 10
days from the receipt of the order. Directive or decision or denial of motion for
reconsideration in accordance with Rule 45 of the Rules of Court.
Take Note: By the way, do not memorize timeliness because this is not rules of
procedure. What we are trying to get here is just principles.

The rules of procedure of the Ombudsman likewise says in case of conviction

where the penalty is public censure, reprimand, suspension of not more than 1
month, the decision should be final and unappealable.

In all cases, the decision shall become final after the expiration of 10 days
upon the receipt thereof by the respondent. Suspension for 1 year and without
pay is not enumerated as immediately final and unappealable. That an appeal
prevents finality and execution depends on whether the law expressly says so.

Since the governor was charged before the Ombudsman, the Ombudsman
Act applies. Before the office of the president or the LGC, before the CSC, the
administrative code applies. That is the case of Lapid.

Caveat: Admin Order No. 17 says the decision becomes final and executory and
unappealable when the respondent is absolved from the charge. Meaning, he is
acquitted and that becomes final. Convicted penalty is public censure or
reprimand, suspension for not more than 1 month or fine equivalent to 1 month
salary. In all cases, the decision can be appealed to CA under Rule 43. Do not
memorize because that is procedural. But such appeal shall not stop the decision
from being executory.

The argument there is that isn’t it unfair that the decision becomes
executory. What if on appeal, I am exonerated. In that case, you are considered
under preventive suspension and you are entitled to backwages. So the damage is
repaired.

Q; What could be the reason why it is executory right away?

A: Because you cannot delay disciplinary authority. If you appeal, and it precludes
the enforcement of the penalty because it is not executory, it might take 10 years.
Chances are the public official might have retired already when it acquires finality.
Time is of the essence in so far as the enforcement of the disciplinary authority is
concerned.

Two ??? officers were suspended by 1 year of the Ombudsman for violation
of code of conduct of ethical standards for public officials and employees for
negligence resulting to ???. Are you familiar with this case? The Ozone Disco.
Despite ??? order of the Ombudsman for the suspension and dismissal by the
Ombudsman to enforce the decision but they argue that the administrative order
that amended the rule does not apply to them because it took effect 3 months
after the decision was issued and 3 years after it was enforced. Take note this is a
matter of rules of procedure. Can it be applied retroactively because that is there
contention.

Art. 4 of the Civil Code provides that ??? it does not apply to rules of
procedure of the court . Being retroactive in nature, they apply to actions pending
and unresolved at the time of the passage. As general rule, ??? attaches or arises
from procedural laws and rules hence retroactive application does not violate any
right. The Ombudsman rules of procedure, procedural in nature does can be applied
retroactively to cases pending and unresolved at the time of passage. There is no
such thing as vested interest in an officer even in absolute right ( I think we discuss
that already)

Doctrine of Primary Jurisdiction or Doctrine of Prior Resort ( Definition and Nature)

Under the sense making and expeditious of doctrine of primary jurisdiction,

the court cannot and will not determine the controversy involving a question which
is within the jurisdiction of an administrative tribunal where the question define
exercise of the sound discretion requiring the special knowledge, experiences and
services of the administrative tribunal to determine technically intricate matters
of fact and uniformity ruling is essential to comply with the purposes of the
regulatory statute administrate. Again, if that pertain to a specialized knowledge,
expertise and competence of an administrative body it grants it primary
jurisdiction. So the court will not assume jurisdiction.

Does jurisdiction over unsound real estate practices pertains to NHA and not the
courts that former having granted with regular authority of quasi-judicial function?

A buyer of residential units of ??? being after it failed to beautify subdivision

for contact to sell. This is very common. You buy a certain property in a subdivision
then dunay trick, your broker will bring you there and at the entrance, it looks so
nice so enticing but if you get inside, there is nothing there. What happened there
is it might take longer time than necessary. After the buyer refuses to pay, the
developer rescinded the contract to sell but it was reinstate to NHA which
jurisdiction is now assailed by the developer.

NHA is vested with exclusive jurisdiction over several disputes falling within
its special expertise. Doctrine of Primary Jurisdiction.

But Doctrine of Primary jurisdiction does not necessarily divest the courts of
general jurisdiction it merely suspends the proceedings pending the referral to the
administrative body. IOW, if somehow you now realize that the court has no
jurisdiction, you need to file a motion to dismiss so that the court can refer that or
dismiss that and you can refile that.
 When the claim is originally cognizable by the courts and ??? enforcement of
the thing requires that resolution of issues which under the ??? scheme having
place with the competence of the administrative body such case the judicial
process is suspended pending the referral of such issues to the administrative for
execute .

Remember that I said in here that you might want to think that it probably
pertains to situation where at the time it was filed it pertains to the regular court
but during the pendency of the action, here’s a law which says that jurisdiction is
now transferred to the administrative agency. Does that divest the court of
jurisdiction? Not really because jurisdiction is determine at the time the action or
the case was filed. It is what controls. What was the law at the time the case was
filed.

Exhaustion of Administrative Remedies

A complaint was filed against the administrator of PCA for allege

irregularities. The Board created an investigation committee which recommended
administrative charges. But the administrator filed several motions and pleadings
that …

Hence, the investigation committee ruled that it will not be counted for the
period of preventive suspension. He went to court through injunctive relief. Held the
immediate recourse to the court is premature.

Apart from the fact that the investigation was still ongoing and
administrative remedy for the decision of PCA governing board that is appealed to
the CSC.

Under the Doctrine of Exhaustion of Administrative Remedies, direct

recourse to court does not prosper until after all the administrative remedies are
all exhausted. Of course because earlier we discussed the reasons why there are
administrative remedies.

What was that? To help unclog the court dockets. So if you do the shortcut
and directly going to the court without exhausting administrative remedies you are
defeating the purpose.

The remedies not to have the proceedings but to take part a certain indicate
the rights of administrative proceeding.

Exceptions:

1. Due process is violated.

2. Issues involve pure question of law
3. Administrative actions probably illegal amounting to lack or excess of
jurisdiction
 IOW you must exhaust first administrative remedies. Can there be a shortcut?
Yes, if these exceptions arise.

4. Estoppel on the part of the administrative agency concerned

5. There is irreparable injury
6. When the department secretary acts as an alter ego of the President there is
an implied to assume the approval of the latter.

In here, if it is the department secretary, you can actually directly go to the

court to nullify the acts of the department secretary. You cannot say that there
is still the president that might control or supersede the action of the
department secretary. But here, it actually says that that is an exception
because the presumption is, being the alter ego of the president, what he does
is also sanctioned by the president.

7. Exhaustion is unreasonable

Here we are talking about extreme circumstances that will constrain you to
make that shortcut and go directly to the court. Of course if you wanted to
dispense with administrative remedy, you must always allege why you resorted
directly to the court. Without that allegation/justification the court will dismiss
the case because of prematurity.

Exhaustion amounts to nullification of claim subject matter is a private land in

the case proceedings. The rule does not provide for the plain, speedy and
adequate remedy. There’s circumstances indicating the urgency of judicial
intervention when strong ??? is involved in quo warranto proceedings the claimimg
?? is ???. When the claim involve is small, we now have the small claims law. You
can directly go to the court. But there are no lawyers allowed there.

When there is strong public interest, relating to question involving the status of
public office, it must be settled without delay. Because public office cannot be
subjected to prolong uncertainty because it involves public interest. Once it affects
the public, that is what you call public interest.

When it involves questions relating to the validity of organization its serious

implications in the administration ??? which ?? is needed in the stability of strong
public service. Take note of the qualifying there. Strong public interest.

When there is pure question of law. When that differences arise from which law
is on the certain state of facts. IOW, if the question is what law is applicable, iow
the facts have been settled no more dispute in so far as the facts are concerned but
the question is, okay these are the facts but what law is applicable? That becomes a
pure question of law. But when you say, is it true? Is it false? That is still a question
of fact.
 There is a question of fact when the doubt or differences arises from the truth or
falsity of the alleged facts.

A public school teacher was dismissed for disgraceful and immoral public
conduct. But he argue that he warrant suspension only for first time offenders.
When the issue asked what is the applicable law, it is a pure questi0n of law. As
such, it is an exception to the doctrine of exhaustion of administrative remedy.
IOW, the public school teacher does not anymore dispute the fact that he
committed the offense but he said that since he is a first time offender, that should
have been the penalty that is going to be imposed against me. IF that now
becomes the issue, it now becomes pure question of law.

Pure question of law gne, what is the applicable law in so far as the given facts
are concerned. But when you start to ask is it true? Is it false? That is still a
question of fact.

The facts of failure to exhaust administrative remedy, it renders the action

premature meaning the claimed cause of action does not refer to judicial
determination hence there is cause of action for them to bring in court. Again
prematurity. It results to dismissal for failure to comply with a condition precedent.

Take Note: Quasi-judicial, it has incidence of quasi-judicial power the right to

receive evidence, the right to issue subpoena, … But when you go to power of
contumacy, it must be expressly granted by law.

CHECKS AND ADMINISTRATIVE REMEDIES

Check of the president and administrative agencies

The economic intelligence and economic bureaus created investigate and

prosecute illegal acts affecting the economy such as economic sabotage, smuggling,
tax evasion and dollar salting ( manipulating currency).

So that is the primary responsibility under anti-smuggling operations.

However this is what happens. In Law on Public Officer, we used to talk about
reorganization, abolition. Here,it talks about deactivation of a government agency.

The president deactivated the EILB?? And transferred its functions to BOC
and the NBI. Thus the EILB personnel are separated from service under
reorganization. But the Presidential Anti-Smuggling Task Force was likewise created
performing similar function.
 Again, if you have abolished one create another but performing substantially
similar functions, that is an evidence of bad faith. Employees violates security of
tenure and it is bad faith because it is intended to give written task force
performing similarly identical function. It usurps power of congress to abolish
administrative agency.

SolGen says that reorganization is part of the totality of executive power

under the Consti. It is the interest of the national economy to avoid duplicity of
work and the streamline of bureaucracy. What do you understand by the word
streamline within the context of administrative law? To simplify.

It is not abolished thus merely deactivated. Abolition ang deactivation are

both reorganization measures.

To abolish means to do away with, annul, abrogate or destroy completely. To

deactivate means to render it inactive or ineffective to vacant the reassign
discharging personnel. This is just a matter or semantic. The effect is the same.
You are gone from public service.

Mandates of the actual streamline and productivity agency, organization and

?? shall be effected pursuant to Circular Orders issued for the purpose issued by the
Office of the President. The president may reorganize for simplicity, economy and
efficiency. The ultimate purpose of deactivation is economy. The creation of task
force does not entail an additional cost for the government.

No new employees were appointed. Detailed employees are merely assigned

temporarily. It is to maximize personnel capacity and resources of existing agency.
Here, the budget became a lot smaller. The task forces are ?? to effect seizures
and arrest.

The deactivation is a valid measure of reorganization. As a private executive

check on the economy and efficiency of an administrative agency. So actually
deactivation is equivalent to abolition. But here the SC said that they are both
reorganization measures. The effect is the same.

Confirmation of Appointments

Are you familiar with the two-strike rule? Under the rule of CoA if you are
appointed by the president and in the first time you were rejected by the CoA, then
the president will insist. The second time, that’s it you’re done. Two-strike rule.

??? Commissioners need not go to undergo the process of CoA. Central

Bank Governors.

Who are the other officers, we are done of this.

 What about justices, judges, Ombudsman and deputies? How do we go about
their application or appointment? Do they go through the CoA? No, it’s the Judicial
and Bar Council.

Who are other officers in the government whose appointments are not
otherwise provided by law. These are officers whose appointing authority are not
specified by law.

Remember: If the law is silent on who is the appointing authority it defaults to the
president. Because the power to appoint is inherit in the presidency.

There is the CHR. Who appoints them? The president.

What is the significance of their appointment? Do not need the confirmation

by the CoA. Because in one of the cases there they said that the appointment of
that particular chair need to undergo the CoA. But the SC said that it is not part of
the enumeration. And that enumeration is exclusive.

It needs to the exclusion of the courts departments, agencies, commissions,

and boards but congress has the authority to decide whether the appointment of
officers in rank should be exclusive to the president alone or should the court,
department heads, agencies, commissions or boards.

Ad-Interim Appointments

The President shall appoint to make appointments during the recess of the
congress whether voluntary or compulsory. But such appointment shall be effective
only upon until the next adjournment of the Congress.

IOW, if you are an ad-interim appointee until when you should hold into your
position? Your appointment is valid until there is an act of CoA that says they are
going to disapprove. IOw, by action of the CoA. But can it be done by lapse of time?
Yes, it can be done because it says there until the lapse of next adjournment of the
congress. IOW, congress did not do anything so by lapse of time, your appointment
is deemed disapproved.

What is recess? Period in which they are not in session . Voluntary recess ??
shall without the consent of the other adjourn for more than 3 days or to other
place in that which the two houses shall ??

Congress is in recess period when even in existence, Congress is not allowed

by the Constitution to be in session either 30 day period between session, 30 days
before the 4th Monday of July. What is the significane of the 4th Monday of July?
Opening of the Congress and SONA.

The period between and the beginning of the regular session on the 4th
Monday of July. When does the ad-interim appointment become effective? When it
is required consent, when it is accepted by the appointee. IOW, if it does not need
to go under CoA, after the acceptance of the appointee that is effective. If it
requires consent, only until its disapproval and adjournment prior to action by CoA.
IOw, that is already valid until disapproval and lapse of time.

Two modes of identity switch can terminate an ad-interim appointment.

Disapproval of the CoA. Adjournment prior to the action of CoA.

How it is different from appointment in an acting capacity? Both are effective

upon acceptance. Ad-interim appointment is extended only during recess and
during ??? reviewable by the CoA. Whereas acting appointment capacity is
extended any time there is vacancy.

What’s the difference between appointment in an acting capacity and officer

–in-charge?

If officer-in-charge, you do not assume the powers, ex. Treasurer, you do not
assume the powers of the treasurer because you are a mere caretaker. But if acting
treasurer, you can actually perform the functions of the treasurer. Exactly during
election, you cannot appoint an officer in charge as a canvasser but you can
appoint a person in an acting capacity.

Check of the Abuse of the Agencies by the Ombudsman

The court ruled that the prosecutorial power of the Ombudsman is limited to
cases under the jurisdiction of the Sandiganbayan to the exclusion of cases under
the jurisdiction of regular courts. That alone would remind you about the primary
jurisdiction of the OMB in so far as cases cognizable by the SB is concerned. IOw, if
they will investigate they can actually share that with other law enforcement
agency of the government. Their difference is because of the primary jurisdiction, it
can take over any stage of the proceedings. Primary does not mean that it is
exclusive, primary lang you can share that.

The OMB Act says that primary JD of cases cognizable by SB and special
prosecutor to conduct preliminary investigation prosecute criminal cases within the
jurisdiction of the SB. The grant of primary jurisdiction merely authorizes the OMB
to take over at any stage of any investigatory agency of the government the
investigation of such cases. It does not exclude the authority to investigate and
prosecute cases over public officer and employees cognizable by regular courts.
IOW, if it is the regular courts, the OMB can actually share that also because it has
no primary jurisdiction.

The power of the OMB to check on administrative agency through

investigation and prosecution of illegal unjust and improper acts is broad and
encompass all kinds of malfeasance misfeasance and non-feasance. Such power is
not only recommendatory but mandatory.
The word recommend and in tandem with ensure compliance therewith,
that becomes mandatory.

The OMB power to recommend is not only recommendatory but mandatory in

nature within the bounds of the law and in again we said that if you are the officer,
the OMB can suspend, terminate, or censure public official you have no other choice
but to impose that because that is mandatory. There is even a provision in law that
says you are also administratively liable if you refuse without justifiable reason.
IOW, it is not all the time that you need to follow the order of the OMB. If you have
justifiable reason, you can refuse. Ex. If the employee already resign, how can you
enforce the suspension.

The power of the OMB to investigate and prosecute is not exclusive it has a
concurrent jurisdiction with other investigative agencies of the government. That is
the case of Honasan vs. DOJ.

Judicial Review

Two entities entered into construction agreement but one party violated its
terms and conditions by virtue of which a case was filed in court. They decided to
submit the case to the arbitrator and whatever the decision of the arbitrator is
should be final and unappealable that was the agreement. So the question now
what if the Arbitrators says okay this is my decision. What if you feel aggrieved ,
are you bound to accept because in the beginning you said that there is going to be
final and unappealable?

There is no further judicial recourse if either the parties disagrees to the

whole or any part of the arbitrators award except to enforce it. Thus the arbitrator
awarded a substantial amount to one of the party. The other party disagreed.

Is that estoppel? Exactly, because you agreed voluntary submission to the

arbitrator and you said whatever you decide on, we accept. That is final and
unappealable.

But suddenly you said that I am not going to accept. Is that allowed? Is that
beyond the judicial review? Under Article 2044 of the Civil Code, the finality of
arbitration award is deemed not absolute. It is subject to exceptions where it is
clearly shown that the arbitrator gravely abuse discretion. It amounts to lack of
jurisdiction does the review on Certiorari under Rule 65 of the Rules of Court.

What we are saying here is even the arbitral award is deemed final and
executory that can still be reversed by regular court on Certiorari if there is grave
abuse of discretion in excess of jurisdiction. Just remember, anything excessive and
arbitrary that will give the SC the license to intervene and nullify the acts of the
admin agency.
 Unless errors of law are so patent and gross prejudicial amounting to grave
abuse of discretion. In the same way, decisions of admin agencies declared final by
law are not exmept from judicial review when so warranted.

Final decisions of admin agencies may still be subject to judicial review for
lack of jurisdiction.

Grave abuse of discretion, violation of due process, and denial of substantial

justice. Again, that still can be overturned even if it is final.

Erroneous interpretation of law.

The arbitrator gravely abused its discretion when it failed to apply the terms
and condition of the construction agreement. IOW, the arbitrator departed from the
terms and conditions of the agreement. When you depart from that, it is now grave
abuse of discretion.

He exceeded his power when he awarded extra compensation. The trial court
has gravely abuse. It gravely abuse its discretion when it denied due course of the
petition despite grounds to vacate the order.

You cannot also blame the court for affirming the arbitration award because
of that agreement that you are going to submit and it becomes final and
unappealable. But not when these conditions exists.

Money claim of ???. Thus it was awarded to entity which ahs registered it
first. WON there was a valid ??? and discover the mining claims is a question of fact
thus for the determination of admin agency charged with the implementation of the
law. What is required is facts supported with substantial evidence which is such
relevant evidence. It should not be disturbed even if not overwhelming or
preponderant. The reason is do not disturbed because they are in the best position
to determine the facts because they have the expertise and the specialization.

Except in cases of denial of due process, mistake of law affirmed, conviction

of the arbitrary action of the admin proceeding, procedure leading to factual
findings, palpable errors are committed, grave abuse of discretion, manifest error,
arbitrariness or capriciousness. SO those are the instances that justify reversal.

A foreign corporation traded socks Goes to the Bureau of Patents to cancel

the trademark of a domestic corporation Gold Top. After considering the totality of
similarities between the two sets of marks the bureaus found such degree such
qualities to give the overall impression they confusingly and deceivingly the same.
The same sustain by the bureau after it noted that there is no variance between the
two since both represents a man’s foot wearing a sock, and the marks are printed
in identical font.

Contention of the domestic corporation. It first used the trademark in 1956

whereas the foreign corporation used it in 1962.But the bureau found that foreign
corporation registered it in 1954.

The findings of fact of admin agencies on matters falling it jurisdiction are

generally accorded great respect if not finality. By reason of special knowledge and
expertise, the admin agencies are in the better position to pass judgment. The
court cannot once weight evidence and substitute judgment. Unless there is a
showing of grave abuse of discretion.

Funa v. COA Chair

D. Commission on Audit
SECTION 1. (1) There shall be a Commission on Audit composed of a Chairman and
two Commissioners, who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, certified public
accountants with not less than ten years of auditing experience, or members of the
Philippine Bar who have been engaged in the practice of law for at least ten years,
and must not have been candidates for any elective position in the elections
immediately preceding their appointment. At no time shall all Members of the
Commission belong to the same profession.
(2) The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold office for
seven years, one Commissioner for five years, and the other Commissioner
for three years, without reappointment. Appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity.

This case talks about the term of office of the Commissioners of the Constitutional
Commissions.

The aggregate period must not exceed seven (7) years.

What do you mean by “aggregate”? Whether continuous or not.

If I am COA Commissioner for three years, is there a chance that I can be a COA
Chair? Yes, provided that the vacancy of the predecessor is for reasons other than
expiration of period of his terms as Chairman because if the reason for the vacancy
of the office of the predecessor is expiration of term, the person to be appointed
next is entitled to a period of seven (7) years.

The basis is for there to be “rotation”.

When you say rotational, you don’t start and end the terms of office at the same
time. As a matter of fact, the first appointees there are staggered. Some would
serve for seven, some for four, etc.

What is the purpose for it being “rotational”? Since the President appoints them, it
is to prevent the President to appoint a lot of appointees there during his term of
office. So their terms of office end and start differently. So this is so that there is no
way that the President can control the composition of these constitutional bodies.

Does that apply to Commissioners of COMELEC and CSC?

B. The Civil Service Commission

SECTION 1. (1) The Civil Service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners who shall be natural
born citizens of the Philippines and, at the time of their appointment, at least thirty-
five years of age, with proven capacity for public administration, and must not have
been candidates for any elective position in the elections immediately preceding
their appointment.
(2) The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold office for
seven years, a Commissioner for five years, and another Commissioner for
three years, without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case shall any Member
be appointed or designated in a temporary or acting capacity.

C. The Commission on Elections

SECTION 1. (1) There shall be a Commission on Elections composed of a Chairman
and six Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding elections. However, a majority thereof, including the
Chairman, shall be Members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.
(2) The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for
seven years, two Members for five years, and the last Members for three
years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.

Are you saying that it is applicable to COMELEC and CSC by analogy? Yes. There is
nothing in the “Common Provisions” which talks about term of office. If it were
found in the Common Provisions, then it would have been very clear that it is
applicable to all. But if not, where do you go? Probably, by analogy. Because again,
the purpose is to avoid control by the President.
So I think that would be applicable by analogy, insofar as the Comelec and the CSC
are concerned.

TIP: If you were to be asked in the Agree/Disagree Part of the exam, “What is the
term of office of the Chair of the Constitutional Bodies?,” what will be your answer?
It must not exceed seven (7) years. It may be said that it may be shorter than
seven years, when the appointee serves the unexpired portion of the predecessor.

Remember the part where it says, provided the reason for the end of term is
expiration of term of office.

If the reason was other than the expiration of the term of office, what does
it mean? The successor will only serve for the unexpired period. That can be
allowed. It is called “promotional appointment” because there is no prohibition
for you to be appointed within the same Constitutional Commission. The only
limitation is, if the vacancy is because of the expiration of the term of office
of the predecessor.

So you can be promoted in the same Constitutional Commission provided

your aggregate term of office does not exceed seven (7) years. In other
words, if you are finished with seven years as Commissioner, can you be appointed
again in another position? Not anymore, because it will exceed the seven-year
period.

Philippine Airlines v. COA

Was there an instance where Petron was not able to serve PAL? Yes, they actually a
sent to letter and recommended to PAL to just get from other proprietors.

Why was the case mooted? Because PAL was eventually privatized so now its major
stockholder is not GSIS anymore.

So this case talks about the jurisdiction of the COA insofar as a GOCC is concerned.
If you cease to be a GOCC, the COA has no jurisdiction over you. PAL having
ceased to be a government-owned or controlled corporation, is no longer under the
audit jurisdiction of the COA.

SC also had the occasion to define what an agency is.

Chapter I, Subtitle 8, of the Revised Administrative Code of 1987, thus:

(8) "Government agency" or "agency of the government," or "agency"

refers to any department, bureau or office of the National Government, or any of its
branches and instrumentalities, or any political sub-division, as well as any
government-owned or controlled corporation, including its subsidiaries or other self-
governing board or commission of the Government.

When you say “agency”, is that a generic or specific term? Agency is a generic
term, it includes GOCCs, instrumentalities, departments, etc.
Sometimes, these words are used interchangeably.

When the COA relied on those government memorandums and circulars insofar as
the requirement to get fuel from one particular supplier, is that mandatory; that the
government agencies concerned are going to purchase fuel only from Petron?
Within the context of the case, it is not mandatory.

Is Petron a GOCC? According to the case, yes. In other words, the government
wants to make sure that GOCCs are supposed to purchase from another GOCC, to
monopolize the revenues. But here, we learned that it is not mandatory especially
insofar as the policy is concerned where we had an experience that the provider
could not even supply the necessary fuel for that particular route so it impaired the
services of PAL.

Today, is PAL still a GOCC? No. Just like PNB, it is no longer a GOCC.

National Housing Corp v. COA

The issue here is: can a foreign entity dictate upon Philippine affairs?

COA is going to disallow the expenditure if it is found to be irregular, unnecessary,

excessive, extravagant or unconscionable (IUEEU) expenditures. SC ruled: "Since
the COA is responsible for the enforcement of the rules and regulations, it goes
without saying that failure to comply with them is a ground for disapproving the
payment of the proposed expenditure."

Let us focus on the word “unnecessary” because that is actually the bone of
contention in this particular case. Here, COA said that the foreign consultant is no
longer necessary and that as a matter of fact, what he does can be done by a
Filipino engineer. The COA is trying to tell us that the foreign consultant is no
longer necessary and what we pay him (in dollars) becomes unnecessary expenses.

How do we simplify “unconscionable”? Shocking to the conscience. It is too huge.

So how do we define “unnecessary expenses”, within the context of the case?

Based on the COA observation, can the project be finished even without the foreign
consultant? Yes, that makes him unnecessary. So from there, how do we define
“unnecessary expenses”?

“Unnecessary expenditures are those not supportive of the implementation of

the objectives and mission of the agency relative to the nature of its operation. This
would also include incurrence of expenditure not dictated by the demands of good
government, and those the utility of which cannot be ascertained at a specific time.
An expenditure that is not essential or that which can be dispensed with without
loss or damage to property is considered unnecessary. The mission and thrust of
the agency incurring the expenditures must be considered in determining whether
or not an expenditure is necessary.”
Here, the project can be completed without the foreign engineer. When we say
“unnecessary” it means that the objective of the government program can
still be realized even without that unnecessary undertaking, in this case, the
hiring of the foreign engineer. In other words, it does not hurt the realization of the
objective of that particular government agency; it can be dispensed with
(dispensable) without hurting the completion of the work and realization of the
project.

TIP: Remember the definition of “unnecessary expenses”.

Here, SC used the words ‘almighty dollar’. . .

“No amount of the almighty dollar can justify anybody, especially foreigners, to
mangle the mandates of our fundamental law. The postulates of our Constitution
are not mere platitudes which we should honor only in rhetorics but not in reality.
In fine, the power to contract a foreign loan does not carry with it the authority to
bargain away the ideals of our Constitution.”

Part VII

National Commissions

Commission on Human Rights

Bautista v. Salonga

The CHR Comissioners are not impeachable officers. Remember the 31 people
(impeachable officers), CHR is not one of them.

At first, she was extended the temporary appointment. How come that she was
extended the permanent appointment in such a short span of time? Cory Aquino
realized that she cannot extend the temporary appointment of CHR. But this was
understandable because during this time, the Constitution was still very new so we
were bound to commit a mistake.

But here, what if the President voluntary submitted the appointment of the CHR
Chair to Commission of Appointments? The SC ruled that the CoAp cannot review
still.

The officers whose appointments need confirmation by the Commission of

Appointments are, other than ‘such other officers whose appointments are provided
for and are done by the President conferred by the Constitution,’ Secretaries of
Departments, Commissioners, Naval Captains, etc.

Does the Constitution expressly provide who appoints the CHR Commissioners? No.
How come that it is the President who appoints the CHR Commissioners? President
exercises residual powers. It is inherent in the President. If the law is silent, we
go to the default appointing authority, the President.
In this particular case, the SC somehow talked about and noted the fact that the
Commission on Appointments wanted to afford itself jurisdiction. So what if the
President also voluntarily submits to the CoAp. How did the SC describe that
particular situation when they tried to afford each other with the jurisdiction not
provided for by the Constitution?

“Respondent Commission vigorously contends that, granting that petitioner's

appointment as Chairman of the Commission on Human Rights is one that, under
Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for
the President to make, yet, it is within the president's prerogative to voluntarily
submit such appointment to the Commission on Appointment for confirmation. The
mischief in this contention, as the Court perceives it, lies in the suggestion that the
President (with Congress agreeing) may, from time to time move power
boundaries, in the Constitution differently from where they are placed by the
Constitution.”

Congress cannot move constitutional boundaries by way of legislation.

Carino v. CHR

The Commission on Human Rights has no power to adjudicate at all times.

It cannot hear and decide cases. It cannot settle legal controversies. But
what is that particular power which has a semblance of adjudicatory power? The
power to investigate. But it does not really qualify as an adjudicatory power.

If the CHR is limited only to investigation or fact-finding, is it not a useless

constitutional body? No, because after finding facts, it lodges cases before the
courts in behalf of the human rights violation victims. So in that sense, the CHR is
not a useless body.

Prior to CHR, what was the body then? It was under the Office of the President and
not a constitutional body.

The CHR merely determines facts and if it finds something that is probably
a human rights violation, it now either files or recommends the filing of the
case.

EPZA v. CHR

This is a TRO enjoining a TRO issued by the CHR.

Here, we established that the CHR has no adjudicatory power. Now, we are talking
about an injunctive relief. So even without this case, if we have already established
that since CHR has no adjudicatory power, the reason why it cannot issue an
injunctive relief? Because a court or quasi-judicial agency cannot issue an injunctive
relief when there is no main case to begin with, since an injunctive relief is actually
an ancillary remedy. So there has got to be a main case before you can issue that.
And because we established already that CHR has no adjudicatory power,
there is no main case to speak of and if there is no such main case, it
cannot issue any ancillary remedy, including that in the form of a cease-
and-desist order.

Normally, when we talk of courts, it is TRO. But if it is an administrative body, it is

cease-and-desist order. They mean actually the same thing, to restrain temporarily
the performance of the body that might result in irreparable damage to certain
people.

There is a provision in the Constitution which talks about ‘preventive measures’.

How did the SC construe that particular provision vis-à-vis clarifying that the CHR
has no power to issue injunctive relief? It is not expressly provided by the
Constitution that it has power to issue injunctive relief as a preventive measure. If
the CHR really feels the need to provide preventive measures for the
underprivileged, what must it do then? It may actually file a case before the courts
of justice in behalf of the victims whose human rights may have been violated.

Since the CHR has no adjudicatory power, it follows that it likewise has no
power to issue injunctive relief.

Simon, Jr. v. CHR

TIP: If I were to ask you in the Agree/Disagree part in the exam, “The CHR has no
power to cite contumacy.” What is your answer? The Constitution does not prohibit
the CHR from citing any person or officer in contempt. However, such power of
contumacy should be understood only in relation to its investigatory functions and
not to adjudicatory functions, which only pertains to the power of the courts.

Can you cite some instances where you can be cited in contempt based in pursuant
to the investigatory power of the CHR? The CHR in the exercise of its investigatory
function can ask people to provide evidences, and if such person refuses to provide
evidence which will help the CHR in its investigation, then the CHR can cite that
person in contempt.

If in case in the exercise of a quasi-judicial function, the Commission on

Human Rights does not have a power of contumacy because in the first
place, it has no quasi-judicial function since it has no adjudicatory power.
But pursuant to its power of investigation, you can be cited in contempt by
the CHR if you do not cooperate with it.

Here, the SC also had the occasion to enumerate the more serious and graver
forms of human rights violations. What are these?

(1) protection of rights of political detainees

(2) treatment of prisoners and the prevention of tortures
 (3) fair and public trials
(4) cases of disappearances (desapariciones)
(5) salvagings and hamletting
(6) other crimes committed against the religious

Case of involuntary disappearance: In Cebu, there is a case of Father Roman

(1970’s). He suddenly disappeared and no one knows where exactly he is now.
Some speculates that he was put inside a drum and such drum was cemented and
thrown in the sea. Up until now, he is nowhere to be found. That was due to the
Marcos dictatorship.

This case was about the demolition of carenderia, and sari-sari stalls. The SC said
that as a matter of fact, we are actually protecting them when they demolished the
stalls. How? Because these stalls were located along the national highway.

So if it is just a case like this (demolition of carenderia and sari-sari stalls), the CHR
would just “snub” such case? No. Insofar as the enumeration above of the forms of
human rights violations, what if it is not found in the enumeration, can’t the CHR
acquire jurisdiction insofar as investigation is concerned? With respect to
investigation only, yes. So if it were a less severe case of human rights violation,
can the CHR still investigate? Yes, because the enumeration there merely says that
such are to be prioritized. We are not saying that if not one of the enumerated
cases, it will be ignored by the CHR. Not necessarily. What this case tells us that
such cases are not prioritized.

In all these three cases of Carino, EPZA, and Simon, Jr., what have you learned?
Here is my question . . .

Can the New People’s Army commit human rights violation? Can anybody commit a
human rights violation, like an ordinary student or any private person or group?

Based on these three cases, you can see a perspective that shows that only
the State or its agents can commit human rights violations. Private individuals and
groups can violate different rights of people but you do not call such violation as
human rights violation. If it were the police officers or the military (State or its
officers) that commit human rights violation, you call that “human rights violation”
because they are supposedly there to protect us. But if they become ‘bantay-
salakay’ that is what we call human rights violation. If it were an ordinary person
who commits human rights violation, we do not call them as such but criminal
offenses or civil offenses, but not human rights violation.

It is only the State and/or its agents that can commit human rights
violation.

We are not saying that if you are a private individual, you are going to be scot-free.
You are still going to be liable but do not call that human rights violation. Insofar as
the NPA is concerned, they also cannot commit human rights violation because they
are already outlawed so expectedly, they will commit these crimes and you do not
expect them to protect us so if they hurt us they are being expected to do that.
Such is not the same when it comes to the police or military officers since they are
supposed to protect us. If they are going to commit these offenses, we call that
human rights violations.

The CHR is created to be vigilant against state’s commission of human rights

violations.

TIP: Concentrate on the CHR cases for the Finals Exam.

QUESTION:

What do you think should be changed first, the system or the people?

The arguments there are these: no matter how good the system is, if the
people are still bad the system will not work; or if vice-versa. The answer to that is,
we change both at the same time. We change the system and change the people at
the same time.

[Related to Labor Relations, opinion of Atty. Guji] Are “voluntary arbitrators” public
officers?

Do they perform sovereign functions? If they perform sovereign functions,

they can be public officer but that is only for the purpose of the Ombudsman and
Sandiganbayan acquiring jurisdiction over them. Only for that purpose.

If they perform quasi-judicial functions in conspiracy with public officers,

then that it is the time that they can be considered as public officers. Because it is
only for the purpose of jurisdiction.

They are private persons who arbitrate on labor issues. When they arbitrate,
are they funded by the government? Because if they are not funded by the
government, even if they perform sovereign functions they cannot be considered
public officers. We said that ‘salary is an incidence of public office’ but if arbitrators
do not get salary from the government and when they arbitrate, they are not in any
way funded by the funds of the government, they cannot be considered as public
officers. If they are subsidized by the government, chances are, they can be
considered as public officers but again, only for the purpose of acquiring
jurisdiction.

Remember the case involving the book publishing industry where she was
considered as public officer even if she was a private person, because there was
involvement of government money. In such case, it was not even a ‘salary’ but
transportation and travelling expenses.

—fin—