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FOUR HUNDRED AND SEVENTY-NINE (479) QUESTIONS AND ANSWERS IN POLITICAL LAW

AND PUBLIC INTERNATIONAL LAW

(Culled from Significant Laws and Decisions of the Supreme Court)

Attorney EDWIN REY SANDOVAL

(As of August 25, 2006)

PART II

C. ADMINISTRATIVE LAW

280. Describe the Administrative Code of 1987.

Held: The Code is a general law and incorporates in a unified document the major structural, functional and proceduralprinciples of governance (Third Whereas Clause, Administrative Code of 1987) and embodies changes in administrative structures and

procedures designed to serve the people. (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7)

books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices underthe executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the

national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial

powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and

discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government.

(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

281. What is Administrative Power?

Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper

governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his

agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

282. What is an Administrative Order?

Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative

operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying

out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

283. What is the Government of the Republic of the Philippines?

Ans.: The Government of the Republic of the Philippines refers to the corporate governmental entity through which thefunctions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the

various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, theprovincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive

Order No. 292)

284. What is an Agency of the Government?

Ans.: Agency of the Governmentrefers to any of the various units of the Government, including a department, bureau, office,

instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory

Provisions, Executive Order No. 292)

285. What is a Department?

Ans.: Department refers to an executive department created by law. For purposes of Book IV, this shall include any

instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation. (Sec. 2[7],

Introductory Provisions, Executive Order No. 292)

286. What is a Bureau?

Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any

principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in

the case of department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive Order No. 292)

287. What is an Office?

Ans.: Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau

includingregional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by lawor regulation. (Sec. 2[9], Introductory Provisions, Executive Order No. 292)

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288. What is a Government Instrumentality? What are included in the term Government Instrumentality?

Ans.: A government instrumentality refers to any agency of the national government, not integrated within the department

framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special

funds, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and

government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292)

289. What is a Regulatory Agency?

Ans.: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate mattersaffecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a

commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order No. 292)

290. What is a Chartered Institution?

Ans.: A chartered institution refers to any agency organized or operating under a special charter, and vested by law with

functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary

authority of the State. (Section 2[12], Introductory Provisions, Executive Order No. 292)

291. What is a Government-Owned or Controlled Corporation?

Ans.: Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested

with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or throughits instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent

of its capital stock; x x x(Sec. 2[13], Introductory Provisions, Executive Order No. 292)

292. When is a Government-Owned or Controlled Corporation deemed to be performing proprietary function? When is it

deemed to be performing governmental function?

Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on

the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function

is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general,

the function is governmental. Powers classified as proprietary are those intended for private advantage and benefit. (Blaquera v.Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

293. The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter

under R.A. No. 95, as amended. Its charter, however, was amended to vest in it the authority to secure loans, be exempted

from payment of all duties, taxes, fees and other charges, etc. With the amendnt of its charter, has it been impliedly

converted to a private corporation?

Held: The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is itcreated by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special

charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service

Commission. The PNRC was not impliedly converted to a private corporation simply because its charter was amended to vest in it the

authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. (Camporedondo v. NLRC, G.R.

No. 129049, Aug. 6, 1999, 1stDiv. [Pardo])

294. When may the Government not validly invoke the rule that prescription does not run against the State? Illustrative Case.

Held: While it is true that prescription does not run against the State, the same may not be invoked by the government in thiscase since it is no longer interested in the subject matter. While Camp Wallace may have belonged to the government at the time Rafael

Galvezs title was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true today.

Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of 1992, created the Bases Conversion

and Development Authority. X x x

X x x

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to protect. Consequently, theRepublic is not a real party in interest and it may not institute the instant action. Nor may it raise the defense of imprescriptibility, the

same being applicable only in cases where the government is a party in interest. x x x. Being the owner of the areas covered by Camp

Wallace, it is the Bases Conversion and Development Authority, not the Government, which stands to be benefited if the land covered by

TCT No. T-5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the

purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance

the benefits to be derived from such property as a measure of promoting the economic and social development, particularly of CentralLuzon and, in general, the countrys goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these

military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests, but simply

a recognition of the need to create a body corporate which will act as its agent for the realization of its program. It is consequently

asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent.

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We, however, must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the

government. X x x

It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent

and proprietary or ministrant. While public benefit and public welfare, particularly, the promotion of the economic and social

development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that the functions performed by the

BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and thecountrys goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created

by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the

Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are notgovernment-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the

Government but a corporate body performing proprietary functions.

X x x

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to cancel petitioners title, not the

Republic, the former being the real party in interest. One having no right or interest to protect cannot invoke the jurisdiction of the court

as a party plaintiff in an action. A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. x x x

However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is the proper party to sue for the

recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but

by the Philippine Ports Authrotiy. InE.B. Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted as principal of the

Philippine Ports Authority, directly exercising the commission it had earlier conferred on the latter as its agent. We may

presume that, by doing so, the Republic of the Philippines did not intend to retain the said rentals for its own use, considering

that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11, 1974. The

Republic of the Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the disputed

property it continues to recognize. We may expect the that the said rentals, once collected by the Republic of the Philippines,

shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the Republic a proper party to

sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. To dismiss thecomplaint inE.B. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case

on the same claim already litigated upon. Such is not the case here since to allow the government to sue herein enables it to raise the

issue of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the State does not

apply to corporations or artificial bodies created by the State for special purposes, it being said that when the title of the Republic has

been divested, its grantees, although artificial bodies of its own creation, are in the same category as ordinary persons. By raising the

claim of imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B.

Marcha, it even supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the

Republic to prosecute, on behalf of government-owned or controlled corporations, causes of action which have already prescribed, on the

pretext that the Government is the real party in interest against whom prescription does not run, said corporations having been created

merely as agents for the realization of government programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having acquired the property in

1963, or 5 years after the issuance of the original certificate of title, as a third transferee. If only not to do violence and to give some

measure of respect to the Torrens System, petitioner must be afforded some measure of protection. (Shipside Incorporated v. Court of

Appeals, 352 SCRA 334, Feb. 20, 2001, 3rdDiv. [Melo])

295. Discuss the nature and functions of the National Telecommunications Commission (NTC), and analyze its powers and

authority as well as the laws, rules and regulations that govern its existence and operations.

Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the functions formerly assigned to the

Board of Communications and the Communications Control Bureau, which were both abolished under the said Executive Order.

Previously, the NTCs function were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act

No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-

interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department ofTransportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public Convenience and

Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communicationssystems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for

telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to

issue Certificates of Public Convenience for the operation of public services within the Philippines whenever the Commission finds that

the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitablemanner. (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in

Section 29 of the said Act x x x. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1 st Div. [Ynares-

Santiago])

296. Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force

and effect?

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Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules

of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any stage thereafter, the

Board may grant on motion of the pleader oron its own initiative, the relief prayed for, based on the pleading, together with the

affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing whichshall be called within thirty (30) days from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Officeof the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase on its own initiative;

accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch

as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still

governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional

authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment.

There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act

that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of everyrule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date

shall not thereafter be the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section

under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President,

Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at aprice sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a

similar case, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise of such quasi-legislative power.

The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for

importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative

Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads:

Article 2. Laws shall take effect after fifteen days following the completion of their publication in the

Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP

Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative

Order.

This Court, in Tanada v. Tuvera stated, thus:

We hold therefore that all statutes, including those of local application and private laws, shall be published as

a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise

of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published

if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the

administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructionsissued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their

duties.

X x x

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the

public of the contents of the laws.

The Administrative Order under consideration is one of those issuances which should be published for its effectivity,

since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI

444 and EO 133.

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Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules

or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which

states that:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in

a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act, fall squarely within

the scope of these laws, as explicitly mentioned in the case ofTanada v. Tuvera.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be

published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative

regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the

rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services

Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can

take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of

general circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978 Rules that govern. (Republic v.

Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1stDiv. [Ynares-Santiago])

297. May a person be held liable for violation of an administrative regulation which was not published?

Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series

of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera, the Court held, as follows:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a

condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of

legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution.

Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid

delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative

agency and the public, need not be published. Neither is publication required of the so-called letter of instructions issued by the

administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a)

Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the

accreditation of hospitals, medical clinics and laboratories; b) Letter of Instruction No. 416 ordering the suspension of payments due and

payable by distressed copper mining companies to the national government; c) Memorandum Circulars issued by the POEA regulating

the recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International

Trading Corporation regulating applications for importation from the Peoples Republic of China; and e) Corporate Compensation

Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits

to government officials and employees. In all these cited cases, the administrative issuances questioned therein were uniformly struckdown as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987.

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or

filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees

for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from

prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article

32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its

effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation . Considering that POEA

Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the sameis ineffective and may not be enforced. (Philsa International Placement and Services Corporation v. Secretary of Labor and

Employment, 356 SCRA 174, April 4, 2001, 3rdDiv., [Gonzaga-Reyes])

298. Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to

the general public?

Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those

requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general

public.

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Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders,

does not take it away from the ambit of our ruling in Tanada v. Tuvera. In the case ofPhil. Association of Service Exporters v. Torres,

the administrative circulars questioned therein were addressed to an even smaller group, namely Philippine and Hong Kong agencies

engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said

circulars may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their

purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, thosemerely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines

to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown

to fall under any of these exceptions.

In this regard, the Solicitor Generals reliance on the case of Yaokasin v. Commissioner of Customs is misplaced. In the saidcase, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a

particular class of persons, the customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As

such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with

instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not

obtain in the case at bench.

X x x

To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2,

Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. (Philsa International

Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rdDiv., [Gonzaga-Reyes])

299. May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds

the amount appropriated by Congress for the project?

Held: Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be paid out of the Treasury except in

pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government

contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within theappropriations made by law for each fiscal year.

X x x

It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are

indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose

such conditions as a priori requisites to the validity of the proposed contract . Using this as our premise, we cannot accede to

PHOTOKINAs contention that there is already a perfected contract. While we held inMetropolitan Manila Development Authority v.Jancom Environmental Corporation that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a

contract, upon notice of the award to the bidder, however, such statement would be inconsequential in a government where the

acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that

would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be

made. This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids

and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid passed only if

it complies with all the requirements and the submitted price does not exceed the approved budget for the contract. (Implementing Rulesand Regulations [IRR] for Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of

P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund

appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was

available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the

COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the

project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on

the ground that in the eyes of the law, the same is null and void.

X x x

Even the draft contract submitted by Commissioner Sadain that provides for a contract price in the amount of P1.2 Billion Pesosis unacceptable. x x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds,

the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas . In

effect, the implementation of the VRIS Project will be segmented or chopped into several phases. Not only is such arrangement

disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loomover its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the

completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed to sell with the

Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the

COMELECs request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment

of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year

contract without a multi-year obligational authority, thus:

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SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter

into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the

purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year,

shall in no case exceed the amount programmed for implementation during said calendar year.

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into acontract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the

contract would inevitably suffer the vice of nullity. x x x

X x x

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the

Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it

had never been entered into, and hence, cannot be validated either by lapse of time or ratification.

X x x

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since

PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the

COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18,

2002, En Banc [Sandoval-Gutierrez])

300. What is the remedy available to a party who contracts with the government contrary to the requirements of the law and,

therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law

itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-

mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting

party for any consequent damage to the same as if the transaction had been wholly between private parties. So when the contracting

officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the

Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself,

and thus, assumes personal liability thereunder. Otherwise stated, the proposed contract is unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above

constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the

people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the

exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered

into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action.

(Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

301. Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners motion to dismiss, the CHR theorizes that the intention of the members of the

Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In

Carino v. Commission on Human Rights, the Court x x x has observed that it is only the first of the enumerated powers and functions

that bears any resemblance to adjudication of adjudgment, but that resemblance can in no way be synonymous to the adjudicatory power

itself. The Court explained:

x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e.,

receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact

finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official.

The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To

be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the

authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively,

finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, theCommission does not have.

(Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])

302. Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction?

Held: InExport Processing Zone Authority v. Commission on Human Rights, the Court x x x explained:

The constitutional provision directing the CHR to provide for preventive measures and legal aid services to theunderprivileged whose human rights have been violated or need protection may not be construed to confer jurisdiction on the

Commission to issue a restraining order or writ of injunction for, if that were the intention, the Constitution would have

expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication.

Evidently, the preventive measures and legal aid services mentioned in the Constitution refer to extrajudicial and

judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the

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victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of

preliminary injunction may only be issued by the judge of any court in which the action is pending [within his district], or by a

Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is

available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for

no other purpose.

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agencyof government. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

303. Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of itsadministrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-

observance of procedural due process, or does it involve the exercise of the COMELEC's quasi-judicial function?

Held: Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not

merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the numberand location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies

and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations

or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and recommend to the President the removal of or

imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order

or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election.

However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the

questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to

determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issuecalls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion,

so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other

than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the

requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R.

No. 133842, Jan. 26, 2000 [Puno])

304. Discuss the contempt power of the Commission on Human Rights (CHR). When may it be validly exercised?

Held: On its contempt powers, the CHR is constitutionally authorized to adopt its operational guidelines and rules of

procedure, and cite for contempt for violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted within itsauthority in providing in its revised rules, its power to cite or hold any person in direct or indirect contempt, and to impose the

appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. That power to cite for contempt,

however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry

out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate

with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its

investigative work. The order to desist (a semantic interplay for a restraining order) in the instance before us, however, is not

investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on

Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.])

305. Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative

tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge,

experience and services of the administrative tribunal to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special

competence of administrative agencies even if the question involved is also judicial in character. It applies where a claim is originallycognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a

regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is

suspended pending referral of such issues to the administrative body for its view.

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to

resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. (Villaflor v. CA, 280

SCRA 297, Oct. 9, 1992, 3rdDiv. [Panganiban])

306. Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the exceptions thereto.

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the

means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by

giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedyshould be exhausted first before the courts judicial power can be sought. The premature invocation of courts jurisdiction is fatal to

ones cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of

action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of

administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that thecourts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been

completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the

case.

This doctrine is disregarded:

when there is a violation of due process;

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when the issue involved is purely a legal question;

when the administrative action is patently illegal amounting to lack or excess of jurisdiction;

when there is estoppel on the part of the administrative agency concerned;

when there is irreparable injury;

when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed

approval of the latter;

when to require exhaustion of administrative remedies would be unreasonable;when it would amount to a nullification of a claim;

when the subject matter is a private land in land case proceeding;

when the rule does not provide a plain, speedy and adequate remedy, andwhen there are circumstances indicating the urgency of judicial intervention.

(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of

action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos,269 SCRA 132, March 3, 1997, 3rdDiv. [Davide])

D. THE LAW OF PUBLIC OFFICERS

307. Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting by one having the authority thereforof an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last

act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it

effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. InPamantasan ng Lungsod

ng Maynila v. Intermediate Appellate Court, reiterated inFlores v. Drilon, this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may

exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary

qualifications and eligibilities. It is a prerogative of the appointing power x x x.

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power of appointment,discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rdDiv. [Vitug])

308. May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground that somebody

else is better qualified?

Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the

functions of the office. Appointment is an essentially discretionary power and must be performed by the officer vested with such power

according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, thenthe appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is a

prerogative of the appointing authority which he alone can decide. The choice of an appointee from among those who possess the

required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the

interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational

structure and environmental circumstances within which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect the appointment

even if it be proved that there are others with superior credentials. The law limits the Commissions authority only to whether or not the

appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments areapproved because the Commission cannot exceed its power by substituting its will for that of the appointing authority . Neither can we.

(Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])

309. Does the next-in-rank rule import any mandatory or peremptory requirement that the person next-in-rank must be

appointed to the vacancy?

Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a scalar ascent of an

officer to another position higher either in rank or salary. And even in promotions, it can be disregarded for sound reasons made known

to the next-in-rank, as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must beappointed to the vacancy. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of

present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not

necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide

discretion to fill a vacancy from among the several alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the position next in rank

thereto shall be considered for promotion.

In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-in-rank would be among

the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission, the Court elaborated the import of

the rule in the following manner:

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One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not

necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a

ministerial duty on the appointing authority to promote such person to the next higher position x x x

(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])

310. Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity?

Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is embraced in the Career

Executive Service. X x x

In the case at bar, there is no question that private respondent does not have the required CES eligibility. As admitted by private

respondent in his Comment, he is not a CESO or a member of the Career Executive Service.

In the case ofAchacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the

position to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his

appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a

moments notice, conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitioners Reply

and of the Solicitor-Generals Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure in its

occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which

in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be

appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of

appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

Evidently, private respondents appointment did not attain permanency. Not having taken the necessary Career Executive

Service examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed

eligibility for a position in the Career Executive Service. Consequently, his appointment as Ministry Legal Counsel-CESOIV/Department Legal Counsel and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned

without violating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in

the assignment of personnels under the Career Executive Service do not apply to him because he s not a Career Executive Service

Officer. Obviously, the contention is without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent

appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a

premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application in the present case. To reiterate,

private respondents appointment is merely temporary; hence, he could be transferred or reassigned to other positions without violating

his right to security of tenure. (De Leon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])

311. In the career executive service, is a career executive service (CES) eligibility all that an employee needs to acquire security

of tenure? Is appointment to a CES rank necessary for the acquisition of such security of tenure?

Held: In the career executive service, the acquisition of security of tenure which presupposes a permanent appointment isgoverned by the rules and regulations promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the career executive

service may attain security of tenure, to wit:

CES eligibility; and

Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and secondlevel employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a

career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him

wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower

salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possess the appropriate

CES rank, which is CES rank level V, for the position of Regional Director of the LTO (Region V). Falling short of one of the

qualifications that would complete his membership in the CES, respondent cannot successfully interpose violation of security of tenure.Accordingly, he could be validly reassigned to other positions in the career executive service. x x x

Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES personnel may be reassigned

or transferred from one position to another x x x.

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One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES eligible. The absence,

however, of such CES eligibility is of no moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated

Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible;

provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be

promoted to a higher class until he qualified in such examination.

Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said eligibility, in the same

manner that the appointment of respondent who does not possess the required CES rank (CES rank level V) for the position of RegionalDirector of the LTO, is permitted in a temporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1stDiv. [Ynares-Santiago])

312. How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-Career Positions.

Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as practicable by

competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3)

security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or fitness utilized

for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing

authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made(Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

313. What is a primarily confidential position? What is the test to determine whether a position is primarily confidential or

not?

Held: Aprimarily confidential position is one which denotes not only confidence in the aptitude of the appointee for the duties

of the office but primarily close intimacy which ensures freedom from intercourse without embarrassment or freedom from misgivings or

betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under theproximity rule, the occupant of a particular position could be considered a confidential employee if the predominantreason why he was chosen by the appointing authority was the latters belief that he can share a close intimate relationship with the

occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or

confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of

trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

314. Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative

charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by

the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which

may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office and not included are cases

where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary

(Paredes v. Civil Service Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges, there is no occasion for

appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule prior decisions holding that the Civil

Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges enunciated in

Paredes v. Civil Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service

Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and morerecentlyDel Castillo v. Civil Service Commission (237 SCRA 184).(CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En

Banc [Pardo])

315. What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is

merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged

misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from

office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during theinvestigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the

investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])

316. Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employee placed underpreventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by

removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventivesuspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the

respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292).

Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to

investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the

investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will

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automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated.

However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of 1959 (R.A.

No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the

payment of salaries during suspension was deleted.

But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of

their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appealif eventuallythey are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority toconduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in

effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence,

he should be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc

[Mendoza])

317. Discuss the power of Ombudsman to conduct administrative investigations, and to impose preventive suspension.

Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct

administrative investigations is mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative

investigations. x x x

Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x.

Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the Ombudsman may

conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission is

different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought

here to be kept in mind even as we must also take note that the power to investigate is distinct from the power to suspend preventively an

erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its

administrative investigation is provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively suspend all

officials under investigation by his office, regardless of the branch of government in which they are employed, excepting of course those

removable by impeachment, members of Congress and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is theclear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of

preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence

witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the

prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our

view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the

circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive

suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the evidence of guilt is

strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was

preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum

provided by law.

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the

Ombudsman. The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot

extend the period of suspension beyond that provided by law. But, in our view, both the strength of the evidence to warrant saidsuspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari

and prohibition. X x x

X x x

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive

suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that

the imposition of the maximum period of six months is unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it

is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its

legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has

been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing

witnesses who wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv. [Quisumbing])

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318. Distinguish preventive suspension under the Local Government Code from preventive suspension under the Ombudsman

Act.

Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that the Local

Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code,

preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner

was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months providedby the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from

those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local

Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who maybe motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension,

is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether

there has been grave abuse of discretion in a specific case of preventive suspension.

X x x

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local

Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or Presidents

office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of

politics, as respondents would have us believe.

InHagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his power to investigate local

elective officials by virtue of the Local Government Code, we said:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the

pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone

irreconcilable, as to compel us to only uphold one and strike down the other.

It was also argued inHagad, that the six-month preventive suspension under the Ombudsman Law is much too repugnant to

the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, the two provisions govern differently.

However, petitioner now contends thatHagaddid not settle the question of whether a local elective official may be preventively

suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventivesuspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence.

Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the

guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of the Ombudsman Law x x

x.

Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concernedmust be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative

investigation without him being given the required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against

him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive

suspension order may be issued even before the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by

respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of Procedure of the Office of theOmbudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv. [Quisumbing])

319. Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and, therefore, the

Sandiganbayan erred in decreeing the preventive suspension order against Senator Miriam Defensor-Santiago? Will the

order of suspension prescribed by Republic Act No. 3019 not encroach on the power of Congress to discipline its own

ranks under the Constitution?

Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam

Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to theSenate of the Philippines for the implementation of the suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of

the provisions of Republic Act No. 3019 has both legal and jurisprudential support. X x x

In the relatively recent case ofSegovia v. Sandiganbayan, the Court reiterated:

The validity of Section 13, R.A. 3019, as amended treating of the suspension pendente lite of an accused publicofficer may no longer be put at issue, having been repeatedly upheld by this Court.

X x x

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The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act,

whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career

service. (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of

the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order

of suspension as a matter of course, and there seems to be no ifs and buts about it. Explaining the nature of the preventive suspension,the Court in the case ofBayot v. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the officialconcerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear and unequivocal mandate of

the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension

of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where

he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word office would

indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands

accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

En passant, while the imposition of suspension is not automatic or self-operative as the validity of the information must be

determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that

x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should

be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he

has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of

the provisions of Republic Act 3019 or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension

from office under Section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule

117 of the Rules of Court x x x.

x x x

Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he

is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to

present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is

charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal

Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the

ground provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute anoffense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be

limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an

offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v. Mariano, 40

SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the

merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the

gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety

and integrity of the records and other evidence before the court could have a valid basis in decreeing preventive suspension pending thetrial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against

him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a

specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is

subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure.

X x x

The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its

mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks

under the Constitution which provides that each

x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the

concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty

days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by

the Senate or the House of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case ofCeferino

Paredes, Jr. v. Sandiganbayan, et al., the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite

his protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled:

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x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each

House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of

all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days in unavailing, as

it appears

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