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 FOUR HUNDRED AND SIXTY-NINE (469) 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 April 15, 2004)

PART II

C. ADMINISTRATIVE LAW

1.   Describe the Administrative Code of 1987

Held: The Code is a general law and “incorporates in a unified document the major structural,

functional and procedural principles 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. Thesebooks contain provisions on the organization, powers and general administration of departments, bureausand offices under the executive branch, the organization and functions of the Constitutional Commissionsand other constitutional bodies, the rules on the national government budget, as well as guidelines forthe exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code coversboth the internal administration, i.e.,  internal organization, personnel and recruitment, supervision anddiscipline, and the effects of the functions performed by administrative officials on private individuals orparties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

2.  What is administrative power?

Held:  ADMINISTRATIVE POWER is concerned with the work of applying policies and enforcingorders as determined by proper governmental organs. It enables the President to fix a uniform standardof administrative efficiency and check the official conduct of his agents. To this end, he can issueadministrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998[Puno])  

3.  What is an administrative order?

Held:  An ADMINISTRATIVE ORDER is an ordinance issued by the President which relates tospecific aspects in the administrative operation of government. It must be in harmony with the law andshould 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])

4. 

What is the Government of the Republic of the Philippines?

 Ans.:  The GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES refers to the corporategovernmental entity through which the functions of the government are exercised throughout thePhilippines, including, save as the contrary appears from the context, the various arms through whichpolitical 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)

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5.  What is an Agency of the Government?

 Ans.:  AGENCY OF THE GOVERNMENT refers 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)

6.  What is a Department?

 Ans.: DEPARTMENT refers to an executive department created by law. For purposes of BookIV, 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)

7.  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 therank of a bureau, regardless of actual name or designation, as in the case of department-wide regionaloffices. (Sec. 2[8], Introductory Provisions, Executive Order No. 292)

8.  What is an Office?

 Ans.: OFFICE refers, within the framework of governmental organization, to any majorfunctional unit of a department or bureau including regional offices. It may also   refer to any positionheld or occupied by individual persons, whose functions are defined by law or regulation.   (Sec. 2[9],Introductory Provisions, Executive Order No. 292)

9.  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 operationalautonomy, usually through a charter. The term includes regulatory agencies, chartered institutions andgovernment-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, ExecutiveOrder No. 292)

10. What is a regulatory agency?

 Ans.:  A REGULATORY AGENCY refers to any agency expressly vested with jurisdiction toregulate, administer or adjudicate matters affecting 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)

11. What is a chartered institution?

 Ans.:  A CHARTERED INSTITUTION refers to any agency organized or operating under a specialcharter, and vested by law with functions relating to specific constitutional policies or objectives. Thisterm includes state universities and colleges and the monetary authority of the State. (Section 2[12],Introductory Provisions, Executive Order No. 292)

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12. What is a Government-owned or Controlled Corporation?

 Ans.: GOVERNMENT-OWNED OR CONTROLLED CORPORATION refers to any agency organizedas a stock or non-stock corporation, vested with functions relating to public needs whether governmentalor proprietary in nature, and owned by the Government directly or through its 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)

13. 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 proprietaryfunctions or both, depending on the purpose for which they have been created. If the purpose is toobtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in theinterest of health, safety and for the advancement of public good and welfare, affecting the public ingeneral, the function is governmental. Powers classified as “proprietary” are those intended for privateadvantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc

[Purisima])

14. 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 allduties, taxes, fees and other charges, etc. With the amendment 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, orprivate in nature is simple. Is it created by its own charter for the exercise of a public function, or byincorporation under the general corporation law? Those with special charters are governmentcorporations 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 charterwas 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, 1 st  Div.[Pardo])

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

Held: While it is true that prescription does not run against the State, the same may not beinvoked by the government in this case since it is no longer interested in the subject matter. WhileCamp Wallace may have belonged to the government at the time Rafael Galvez’s title was orderedcancelled 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 interestto protect. Consequently, the Republic is not a real party in interest and it may not institute the instantaction. Nor may it raise the defense of imprescriptibility, the same being applicable only in cases wherethe government is a party in interest. x x x. Being the owner of the areas covered by Camp Wallace, it

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is the Bases Conversion and Development Authority, not the Government, which stands to be benefited ifthe 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 tothe BCDA is basically for the purpose of accelerating the sound and balanced conversion of these militaryreservations 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 Central Luzonand, in general, the country’s 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 anabdication on the part of the Republic of its interests, but simply a recognition of the need to create abody corporate which will act as its agent for the realization of its program. It is consequently assertedthat the Republic remains to be the real party in interest and the Conversion Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with apersonality 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 classifiedinto 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 basicallyproprietary in nature. The promotion of economic and social development of Central Luzon, inparticular, and the country’s 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 therealization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the Court hasruled that these entities, although performing functions aimed at promoting public interest and publicwelfare, are not government-function corporations invested with governmental attributes. It may thusbe said that the BCDA is not a mere agency of the Government but a corporate body performingproprietary functions.

X x x

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action tocancel petitioner’s 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 suitmay 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 theproper party to sue for the recovery of possession of property which at the time of the installation of thesuit was no longer held by the national government body but by the Philippine Ports Authrotiy. In E.B.Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of thePhilippines, acted as principal of the Philippine Ports Authority, directly exercising the commissionit 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, consideringthat by its voluntary act it had transferred the land in question to the Philippine Ports Authorityeffective July 11, 1974. The Republic of the Philippines had simply sought to assist, notsupplant, the Philippine Ports Authority, whose title to the disputed property it continues torecognize. We may expect the that the said rentals, once collected by the Republic of thePhilippines, shall be turned over by it to the Philippine Ports Authority conformably to thepurposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court

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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 the complaint in E.B. Marcha wouldhave brought needless delay in the settlement of the matter since the PPA would have to refile the caseon the same claim already litigated upon. Such is not the case here since to allow the government tosue 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 beendivested, its grantees, although artificial bodies of its own creation, are in the same category as ordinarypersons.  By raising the claim of imprescriptibility, a claim which cannot be raised by the BCDA, theGovernment not only assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course ofaction proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a badprecedent as it would allow the Republic to prosecute, on behalf of government-owned or controlledcorporations, causes of action which have already prescribed, on the pretext that the Government is thereal party in interest against whom prescription does not run, said corporations having been createdmerely 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 athird 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, 3 rd  Div. [Melo])

16.  Discuss the nature and functions of the 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 thefunctions formerly assigned to the Board of Communications and the Communications Control Bureau,which were both abolished under the said Executive Order. Previously, the NTC’s function were merelythose 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 wasthe successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTCbecame an attached agency of the Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue Certificates ofPublic Convenience and Necessity (CPCN) for the installation, operation, and maintenance ofcommunications facilities and services, radio communications systems, telephone and telegraph systems.Such power includes the authority to determine the areas of operations of applicants fortelecommunications 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 serviceswithin the Philippines “whenever the Commission finds that the operation of the public service proposedand the authorization to do business will promote the public interests in a proper and suitable manner.”(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. ExpressTelecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1 st  Div. [Ynares-Santiago])

17.  Is the filing of the administrative rules and regulations with the UP Law Center the operativeact that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:

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 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 or on its own initiative , therelief prayed for, based on the pleading, together with the affidavits and supporting documentsattached thereto, without prejudice to a final decision after completion of the hearing which shallbe called within thirty (30) days from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC should have applied the Revised Ruleswhich were filed with the Office of the National Administrative Register on February 3, 1993. TheseRevised Rules deleted the phrase “on its own initiative”; accordingly, a provisional authority may beissued only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued acertification to the effect that inasmuch as the 1993 Revised Rules have not been published in anewspaper 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 statingthat the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have nottaken 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 nothingin the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is theoperative 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 every rule adopted by it. Rules in force on the date of effectivity of thisCode which are not filed within three (3) months from the date shall not thereafter be the basisof any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out therequirements of this section under pain of disciplinary action.

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

The National Administrative Register is merely a bulletin of codified rules and it is furnished onlyto the Office of the President, Congress, all appellate courts, the National Library, other public offices oragencies as the Congress may select, and to other persons at a price sufficient to cover publication andmailing or distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7) . In a similarcase, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise ofsuch 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 theOfficial 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 oftheir publication in the Official Gazette (or in a newspaper of general circulation in thePhilippines), unless it is otherwise provided. X x x”  

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filedwith, and published by the UP Law Center in the National Administrative Register, does not curethe defect related to the effectivity of the Administrative Order.

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

 “We hold therefore that  all statutes, including those of local application andprivate laws, shall be published as a condition for their effectivity, which shall beginfifteen days after publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgatedby the President in the exercise of legislative power or, at present, directly conferred bythe Constitution. Administrative Rules and Regulations must also be published if theirpurpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulatingonly the personnel of the administrative agency and not the public, need not bepublished. Neither is publication required of the so-called letters of instructions issuedby administrative superiors concerning the rules or guidelines to be followed by theirsubordinates 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 itspurpose is to inform the public of the contents of the laws.”  

The Administrative Order under consideration is one of those issuances which should bepublished for its effectivity, since its purpose is to enforce and implement an existing lawpursuant to a valid delegation, i.e ., P.D. 1071, in relation to LOI 444 and EO 133. 

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sinequa 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 publicationeither in the Official Gazette or in a newspaper of general circulation in the Philippines, unless itis otherwise provided (E.O. 200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the PublicService Act, fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v.Tuvera. 

Our pronouncement in Tanada v. Tuvera   is clear and categorical. Administrative rulesand regulations must be published if their purpose is to enforce or implement existing lawpursuant to a valid delegation. The only exception are interpretative regulations, those merelyinternal in nature, or those so-called letters of instructions issued by administrative superiorsconcerning 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 ofgeneral circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rulesshall take effect only after their publication in a newspaper of general circulation (Section 20 thereof) . Inthe absence of such publication, therefore, it is the 1978 Rules that governs. (Republic v. ExpressTelecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1 st  Div. [Ynares-Santiago])

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18.  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 POEAMemorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may becollected 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 afterpublication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by thePresident in the exercise of legislative powers whenever the same are validly delegated by thelegislature or, at present, directly conferred by the Constitution. Administrative rules andregulations must also be published if their purpose is to enforce or implement existing lawpursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only thepersonnel of the administrative agency and the public, need not be published. Neither ispublication required of the so-called letter of instructions issued by the administrative superiorsconcerning the rules or guidelines to be followed by their subordinates in the performance oftheir duties.”  

 Applying this doctrine, we have previously declared as having no force and effect the followingadministrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Laborand Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics andlaboratories; 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 thePOEA regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC89-08-01 issued by the Philippine International Trading Corporation regulating applications forimportation from the People’s 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 fringebenefits to government officials and employees. In all these cited cases, the administrative issuancesquestioned therein were uniformly struck down 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 thesame 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 thesaid Order, the maximum amount which may be collected from prospective Filipino overseas workers isP2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of theLabor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuanceswhich should be published for its effectivity, since its purpose is to enforce and implement an existing lawpursuant to a valid delegation.  Considering that POEA Administrative Circular No. 2, Series of 1983 hasnot as yet been published or filed with the National Administrative Register, the same is ineffective and

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may not be enforced. (Philsa International Placement and Services Corporation v. Secretaryof Labor and Employment, 356 SCRA 174, April 4, 2001, 3 rd  Div., [Gonzaga-Reyes])

19.  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 administrativecircular is not among those requiring publication contemplated by Tanada v. Tuvera  as it is addressedonly to a specific group of persons and not to the general public.

 Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private employmentagencies or authority holders, does not take it away from the ambit of our ruling in Tanada v. Tuvera .In the case of Phil. Association of Service Exporters v. Torres , the administrative circulars questionedtherein were addressed to an even smaller group, namely Philippine and Hong Kong agencies engaged inthe recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of properpublication, the said circulars may not be enforced or implemented.

Our pronouncement in Tanada v. Tuvera   is clear and categorical. Administrative rules andregulations must be published if their purpose is to enforce or implement existing law pursuant to a validdelegation. The only exceptions are interpretative regulations, those merely internal in nature, or thoseso-called letters of instructions issued by administrative superiors concerning the rules and guidelines tobe 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 General’s reliance on the case of Yaokasin v. Commissioner of

Customs   is misplaced. In the said case, the validity of certain Customs Memorandum Orders wereupheld despite their lack of publication as they were addressed to a particular class of persons, thecustoms collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. Assuch, 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 subordinateregarding 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 againstpetitioner for lack of publication. (Philsa International Placement and Services Corporation v.Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3 rd  Div., [Gonzaga-Reyes])

20.  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 bepaid 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 thisconstitutional 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

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Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice ofnullity. 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 effectfrom the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot bevalidated either by lapse of time or ratification.

X x x

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC toformalize the contract. Since PHOTOKINA’s 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])

21. 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 noother recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitlyprovides 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 G overnment or other contracting party forany consequent damage to the same as if the transaction had been wholly between private parties.” Sowhen the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyondthe limits of his contracting authority, the Government is not bound under the contract. It would be as ifthe contract in such case were a private one, whereupon, he binds himself, and thus, assumes personalliability 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, theconstitutional mandate cited above constrains us to remind all public officers that public office is a publictrust and all public officers must at all times be accountable to the people. The authority of publicofficers to enter into government contracts is circumscribed with a heavy burden of responsibility. In theexercise of their contracting prerogative, they should be the first judges of the legality, propriety andwisdom of the contract they entered into. They must exercise a high degree of caution so that theGovernment 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])

22.  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 theintention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. Thisview, however, has not heretofore been shared by this Court. In Carino v. Commission on HumanRights  , the Court x x x has observed that it is “only the first of the enumerated powers and functions thatbears any resemblance to adjudication of adjudgment,” but that resemblance can in no way besynonymous 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 thefunctions of the latter.

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  “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 claimedhuman 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 agencyor 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 ofreceiving evidence and making factual conclusions in a controversy must be accompanied by theauthority of applying the law to those factual conclusions to the end that the controversy may bedecided or determined authoritatively, finally and definitively, subject to such appeals or modesof review as may be provided by law. This function, to repeat, the Commission does not have.

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

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

injunction?

Held:  In Export Processing Zone Authority v. Commission on Human Rights, the Court x x xexplained:

 “The constitutional provision directing the CHR to ‘provide for preventive measures andlegal aid services to the underprivileged whose human rights have been violated or needprotection’ may not be construed to confer jurisdiction on the Commission to issue a restrainingorder or writ of injunction for, if that were the intention, the Constitution would have expresslysaid so. ‘Jurisdiction is conferred only by the Constitution or by law.’ It is never derived byimplication.”  

 “Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitutionrefer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which theCHR may seek from the proper courts on behalf of the victims of human rights violations. Notbeing 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 ispending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x xx. A writ of preliminary injunction is an ancillary remedy. It is available only in a pendingprincipal 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 andrecommendations to any appropriate agency of government. (Simon, Jr. v. Commission on HumanRights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

24.  Does the petition for annulment of proclamation of a candidate merely involve the exercise

by the COMELEC of its administrative power to review, revise and reverse the actions of the

board of canvassers and, therefore, justifies non-observance of procedural due process, ordoes it involve the exercise of the COMELEC's quasi-judicial function?

Held: Taking cognizance of private respondent's petitions for annulment of petitioner'sproclamation, COMELEC was not merely performing an administrative function. The administrativepowers of the COMELEC include the power to determine the number and location of polling places,appoint election officials and inspectors, conduct registration of voters, deputize law enforcementagencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credibleelections, register political parties, organizations or coalition, accredit citizen's arms of the Commission,

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prosecute election offenses, and recommend to the President the removal of or imposition of any otherdisciplinary 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 personnelinvolved in the conduct of election. However, the resolution of the adverse claims of private respondentand petitioner as regards the existence of a manifest error in the questioned certificate of canvassrequires 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 issue calls for the exercise by the COMELEC of its quasi-judicial power. Ithas been said that where a power rests in judgment or discretion, so that it is of judicial nature orcharacter, but does not involve the exercise of functions of a judge, or is conferred upon an officer otherthan a judicial officer, it is deemed quasi-judicial.  The COMELEC therefore, acting as quasi-judicialtribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed byprivate respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])  

25.  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 operationalguidelines and rules of procedure, and cite for contempt for violations thereof in accordance with theRules of Court.”   Accordingly, the CHR acted within its authority in providing in its revised rules, itspower “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 forcontempt, however, should be understood to apply only to violations of its adopted operational guidelinesand rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to citefor contempt could be exercised against persons who refuse to cooperate with the said body, or whounduly withhold relevant information, or who decline to honor summons, and the like, in pursuing itsinvestigative work. The “order to desist” (a semantic interplay for a restraining order) in the instancebefore us, however, is not investigatorial in character but prescinds from an adjudicative power that itdoes not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan.5, 1994, En Banc [Vitug, J.])  

26. 

 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 soundadministrative discretion requiring the special knowledge, experience and services of the administrativetribunal to determine technical and intricate matters of fact. 

In recent years, it has been the jurisprudential trend to apply this doctrine to cases involvingmatters that demand the special competence of administrative agencies even if the question involved isalso judicial in character. It applies “where a claim is originally cognizable in the courts, and comes intoplay whenever enforcement of the claim requires the resolution of issues which, under a regulatoryscheme, 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 arrogateunto itself the authority to resolve a controversy, the jurisdiction over which is lodged with anadministrative body of special competence. (Villaflor v. CA, 280 SCRA 287)

27.  Discuss the Doctrine of Exhaustion of Administrative Remedies. Enumerate exceptionsthereto.

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Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-conditionthat he should have availed of all the means of administrative processes afforded him. Hence, if aremedy within the administrative machinery can still be resorted to by giving the administrative officerconcerned every opportunity to decide on a matter that comes within his jurisdiction then such remedyshould be exhausted first before the court’s judicial power can be sought. The premature invocation of

court’s jurisdiction is fatal to one’ s 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 ofadministrative remedies was not without its practical and legal reasons, for one thing, availment ofadministrative remedy entails lesser expenses and provides for a speedier disposition of controversies. Itis no less true to state that the courts of justice for reasons of comity and convenience will shy awayfrom a dispute until the system of administrative redress has been completed and complied with so as togive the administrative agency concerned every opportunity to correct its error and to dispose of thecase.

This doctrine is disregarded:

1)  when there is a violation of due process;2)  when the issue involved is purely a legal question;3)  when the administrative action is patently illegal amounting to lack or excess of jurisdiction;

4) 

when there is estoppel on the part of the administrative agency concerned;5)  when there is irreparable injury;6)  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;7)  when to require exhaustion of administrative remedies would be unreasonable;8)  when it would amount to a nullification of a claim;9)  when the subject matter is a private land in land case proceeding;10) when the rule does not provide a plain, speedy and adequate remedy, and11) when 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 actionpremature , i.e., claimed cause of action is not ripe for judicial determination and for that reason a partyhas no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132)  

D. THE LAW OF PUBLIC OFFICERS

28.  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 therefor of an individual to discharge and perform the duties and functions ofan office or trust. The appointment is deemed complete once the last act required of the appointingauthority  has been complied with and its acceptance thereafter by the appointee in order to render iteffective. Appointment necessarily calls for an exercise of discretion on the part of the appointing

authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court  , reiterated in Flores v.Drilon, this Court has held:

 “The power to appoint is, in essence, discretionary. The appointing power has the rightof choice which he may exercise freely according to his judgment, deciding for himself who isbest qualified among those who have the necessary qualifications and eligibilities. It is aprerogative 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

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exercise of the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311SCRA 733, Aug. 4, 1999, 3 rd  Div. [Vitug])  

29.  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 todecide who can best perform the functions of the office. Appointment is an essentially discretionarypower and must be performed by the officer vested with such power according to his best lights, the onlycondition 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 havebeen 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 andadministrative decision calling for considerations of wisdom, convenience, utility and the interests of theservice which can best be made by the head of the office concerned, the person most familiar with theorganizational 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 toand respect the appointment even if it be proved that there are others with superior credentials. Thelaw limits the Commission’s authority only to whether or not the appointees possess the legalqualifications and the appropriate civil service eligibility, nothing else. If they do then the appointmentsare approved because the Commission cannot exceed its power by substituting its will for that of theappointing authority.  Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, EnBanc [Bellosillo, J.])

30.  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 processwhich denotes a scalar ascent of an officer to another position higher either in rank or salary. And evenin 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 fillvacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointmentof outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legalfiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion tofill 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 holdingthe 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 personnext-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:

 “One who is next-in-rank is entitled to preferential consideration for promotion to thehigher vacancy but it does not necessarily follow that he and no one else can be appointed. Therule neither grants a vested right to the holder nor imposes a ministerial duty on the appointingauthority to promote such person to the next higher position x x x”  

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

31. Can a person who lacks the necessary qualifications for a public position be appointed to it

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in a permanent capacity? Illustrative case.

Held:  At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV isembraced 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 theCareer Executive Service.”  

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

It is settled that a permanent appointment can be issued only “to a person who meets allthe requirements for the position to which he s being appointed, including the appropriateeligibility 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 moment’s notice,” conformably to established jurisprudence. 

The Court, having considered these submissions and the additional arguments of theparties in the petitioner’s Reply and of the Solicitor-General’s Rejoinder, must find for therespondents.

The mere fact that a position belongs to the Career Service does not automatically confersecurity of tenure in its occupant even if he does not possess the required qualifications. Suchright will have to depend on the nature of his appointment, which in turn depends on hiseligibility or lack of it. A person who does not have the requisite qualifications for the positioncannot be appointed to it in the first place or, only as an exception to the rule, may be appointedto it merely in an acting capacity in the absence of appropriate eligibles. The appointmentextended to him cannot be regarded as permanent even if it may be so designated.

Evidently, private respondent’s appointment did not attain permanency. Not having taken thenecessary 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 CareerExecutive Service. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department LegalCounsel and/or Director III, was merely temporary. Such being the case, he could be transferred orreassigned without violating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that themobility and flexibility concepts in the assignment of personnels under the Career Executive Service donot apply to him because he s not a Career Executive Service Officer. Obviously, the contention iswithout merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanentappointments to CES positions were never meant to remain immobile in their status. Otherwise, theirlack of eligibility would be a premium vesting them with permanency in the CES positions, a privilegeeven their eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application inthe present case. To reiterate, private respondent’s appointment is merely temporary; hence, he couldbe transferred or reassigned to other positions without violating his right to security of tenure. (DeLeon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])  

32.  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 forthe acquisition of such security of tenure?

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  Held:  The petitions are impressed with merit.

In the career executive service, the acquisition of security of tenure which presupposes apermanent appointment is governed 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:

a)  CES eligibility; andb)   Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career executiveservice (except first and second level employees in the civil service), pertains only to rank and not to theoffice or to the position to which they may be appointed. Thus, a career executive service officer maybe transferred or reassigned from one position to another without losing his rank which follows himwherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even ifassigned to a CES position with lower salary grade, as he is compensated according to his CES rank andnot 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 RegionalDirector of the LTO (Region V). Falling short of one of the qualifications that would complete hismembership 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, CESpersonnel may be reassigned or transferred from one position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not aCES 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 requiredCareer Executive Service examination and that he shall not be promoted to a higher class until hequalified in such examination.”  

Evidently, the law allows appointment of those who are not CES eligible, subject to the obtentionof said eligibility, in the same manner that the appointment of respondent who does not possess therequired CES rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in atemporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1 st   Div.[Ynares-Santiago])

33.  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 determinedas 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). 

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The Non-Career Service shall be characterized by  (1) entrance on bases other than of the usualtests of merit or fitness utilized for the career service; and (2)  tenure which is limited to a periodspecified 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).

34. 

What is a primarily confidential position? What is the test to determine whether a positionis primarily confidential or not?

Held:  A PRIMARILY CONFIDENTIAL POSITION is one which denotes not only confidence in theaptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedomfrom intercourse without embarrassment or freedom from misgivings or betrayals of personal trust orconfidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950])  

Under the proximity rule , the occupant of a particular position could be considered a confidentialemployee if the predominant reason why he was chosen by the appointing authority was the latter’ sbelief that he can share a close intimate relationship with the occupant which ensures freedom ofdiscussion 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 theappointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274SCRA 414, June 19, 1997)

35.  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 “thephrase ‘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 wherethe penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceedingthirty 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, 204SCRA 965, 968)   In other words, we overrule prior decisions holding that the Civil Service Law “doesnot 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 ServiceCommission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. CivilService Commission (237 SCRA 184).  (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29,1999, En Banc [Pardo])  

36. 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 maybe separated, for obvious reasons, from the scene of his alleged misfeasance while the same is beinginvestigated. Thus preventive suspension is distinct from the administrative penalty of removal fromoffice such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on arespondent during the investigation of the charges against him, the latter is the penalty which may onlybe 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])

37.  Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil

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 service employee placed under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are chargedwith offenses punishable by removal or suspension: (1) preventive suspension pending investigation  (Sec. 51, Civil Service Law, EO No. 292)   and (2) preventive suspension pending appeal   if the penaltyimposed 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 enablethe disciplining authority to investigate charges against respondent by preventing the latter fromintimidating or in any way influencing witnesses against him. If the investigation is not finished and adecision is not rendered within that period, the suspension will be lifted and the respondent willautomatically be reinstated. If after investigation respondent is found innocent of the charges and isexonerated, he should be reinstated. However, no compensation was due for the period of preventivesuspension pending investigation. The Civil Service Act of 1959 (R.A. No. 2260)   providing forcompensation in such a case once the respondent was exonerated was revised in 1975 and the provisionon the payment of salaries during suspension was deleted.

But although it is held that employees who are preventively suspended pending investigation  arenot entitled to the payment of their salaries even if they are exonerated, they are entitled tocompensation for the period of their suspension pending appeal  if eventually they are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a means of enablingthe disciplining authority to conduct an unhampered investigation. On the other hand, preventivesuspension pending appeal is actually punitive although it is in effect subsequently considered illegal ifrespondent is exonerated and the administrative decision finding him guilty is reversed. Hence, heshould be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012,

 April 21, 1999, En Banc [Mendoza])  

38.  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 ofthe 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 statutorypower to conduct administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to the Ombudsman’s disciplinary authority x xx.

Petitioner is an elective local official accused of grave misconduct and dishonesty. That theOffice 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 aparticular 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 alsotake note that the power to investigate is distinct from the power to suspend preventively an erringpublic officer.

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

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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 Ombudsmancan preventively suspend all officials under investigation by his office, regardless of the branch ofgovernment 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 theDeputy Ombudsman. This is the clear 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 DeputyOmbudsman to issue an order of preventive suspension against an official like the petitioner, to preventthat 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 theprosecution 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 DeputyOmbudsman commit a grave abuse of discretion when he set the period of preventive suspension at sixmonths?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among otherfactors, the evidence of guilt is strong. The period for which an official may be preventively suspendedmust not exceed six months. In this case, petitioner was preventively suspended and ordered to ceaseand 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 preventivesuspension rests with the Ombudsman. The discretion as regards the period of such suspension alsonecessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyondthat provided by law. But, in our view, both the strength of the evidence to warrant said suspension andthe propriety of the length or period of suspension imposed on petitioner are properly raised in thispetition 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 justifythe imposition of preventive suspension against petitioner. But considering its purpose and thecircumstances in the case brought before us, it does appear to us that the imposition of the maximumperiod of six months is unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even withoutconceding that initially it was weak, it is clear to us that the maximum six-month period is excessive anddefinitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. Wemust conclude that the period during which petitioner was already preventively suspended, has beensufficient 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 SCRA207, Sept. 10, 1999, 2 nd  Div. [Quisumbing])

39.  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 topetitioner’s claim that the Local Government Code, which he averred should apply to this case of anelective local official, has been violated. True, under said Code, preventive suspension may only be

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imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner wassuspended without having had the chance to refute first the charges against him, and for the maximumperiod of six months provided by the Ombudsman Law. But as respondents argue, administrativecomplaints commenced under the Ombudsman Law are distinct from those initiated under the LocalGovernment Code. Respondents point out that the shorter period of suspension under the LocalGovernment Code is intended to limit the period of suspension that may be imposed by a mayor, a

governor, or the President, who may be motivated by partisan political considerations. In contrast theOmbudsman, who can impose a longer period of preventive suspension, is not likely to be similarlymotivated because it is a constitutional body. The distinction is valid but not decisive, in our view, ofwhether 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 preventivesuspension imposable under the Local Government Code. Political color could taint the exercise of thepower to suspend local officials by the mayor, governor, or President’s office. In contrast the

Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from thevagaries of politics, as respondents would have us believe.

In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped ofhis 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 onthe specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us toonly uphold one and strike down the other.”  

It was also argued in Hagad, that the six-month preventive suspension under the OmbudsmanLaw is “much too repugnant” to the 60-day period that may be imposed under the Local GovernmentCode. But per J. Vitug, “the two provisions govern differently.”

However, petitioner now contends that Hagad did not settle the question of whether a localelective official may be preventively suspended even before the issues could be joined. Indeed it didnot, but we have held in other cases that there could be preventive suspension even before the chargesagainst 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 anyway the final determination of the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section26[2] of the Ombudsman Law x x x.

Petitioner argues that before an inquiry may be converted into a full-blown administrativeinvestigation, the official concerned must be given 72 hours to answer the charges against him. In hiscase, 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 writtenanswer to the complaint against him. This, however, does not make invalid the preventive suspensionorder issued against him. As we have earlier stated, a preventive suspension order may be issued evenbefore the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit tothe complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of

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 Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a punitive measure that isimposed upon determination by the Senate or the House of Representatives, as the case may be, uponan erring member. Thus, in its resolution in the case of Ceferino 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:

 “x x x Petitioner’s invocation of Section 16 (3), Article VI of the Constitution – whichdeals 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 tothe qualification that the penalty of suspension, when imposed, should not exceed sixty days – inunavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA3019, which is not a penalty but a preliminary, preventive measure, prescinding from the factthat the latter is not being imposed on petitioner for misbehavior as a Member of the House ofRepresentatives.”  

The doctrine of separation of powers by itself may not be deemed to have effectively excludedMembers of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes

each of the three co-equal and independent, albeit coordinate, branches of the government  –  theLegislative, the Executive and the Judiciary  – has exclusive prerogatives and cognizance within its ownsphere of influence and effectively prevents one branch from unduly intruding into the internal affairs ofeither branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987Constitution, empowers the Court to act not only in the settlement of “actual controversies involvingrights which are legally demandable and enforceable,” but also in the determination of “whether or no tthere has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the government.”   The provision allowing the Court to look into any possiblegrave abuse of discretion committed by any government instrumentality has evidently been couched ingeneral terms in order to make it malleable to judicial interpretation in the light of any emerging milieu.In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsicalexercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertainsto an affair internal to either of Congress or the Executive, the Court subscribes to the view that unlessan infringement of any specific Constitutional proscription thereby inheres the Court should not deignsubstitute its own judgment over that of any of the other two branches of government. It is an

impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steeldoor for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive tocontemporary needs, it is the people, not the Court, who must promptly react in the manner prescribedby the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that,

therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.

 Attention might be called to the fact that Criminal Case No. 16698 has been decided by the FirstDivision of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court,nevertheless, deems it appropriate to render this decision for future guidance on the significant issueraised by petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc[Vitug])  

41.  May an elective public official be validly appointed or designated to any public office or

 position during his tenure?

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   Ans.:  No elective official shall be eligible for appointment or designation in any capacity to anypublic office or position during his tenure. (Sec. 7, 1 st  par., Art. IX-B, 1987 Constitution)

42.  May an appointive public official hold any other office or employment?

 Ans.:  Unless otherwise allowed by law or by the primary functions of his position, no appointive

official shall hold any other office or employment in the Government or any subdivision, agency orinstrumentality thereof, including government-owned or controlled corporation. (Sec. 7, 2 nd   par., Art.IX-B, 1987 Constitution)

43.  May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold

any other office or employment?

 Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies orassistants shall not, unless otherwise provided in this Constitution, hold any other office or employmentduring their tenure. (Sec. 13, Art. VII, 1987 Constitution)  

44.  Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet

members, their deputies or assistants are concerned admit of the broad exceptions made for

appointive officials in general under Section 7, par. (2), Article IX-B?

Held:  The threshold question therefore is: does the prohibition in Section 13, Article VII of the1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of thebroad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, foreasy reference is quoted anew, thus: “Unless otherwise allowed by law or by the primary functions of hisposition, no appointive official shall hold any other office or employment in the government or anysubdivision, agency or instrumentality thereof, including government-owned or controlled corporation ortheir subsidiaries.”  

We rule in the negative.

X x x

The practice of designating members of the Cabinet, their deputies and assistants as members ofthe governing bodies or boards of various government agencies and instrumentalities, includinggovernment-owned and controlled corporations, became prevalent during the time legislative powers inthis country were exercised by former President Ferdinand E. Marcos pursuant to his martial lawauthority. There was a proliferation of newly-created agencies, instrumentalities and government-ownedand controlled corporations created by presidential decrees and other modes of presidential issuanceswhere Cabinet members, their deputies or assistants were designated to head or sit as members of theboard with the corresponding salaries, emoluments, per diems, allowances and other perquisites ofoffice. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by

unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the people’s sense of propriety and morality in governmentservice were the data contained therein that Roberto v. Ongpin was a member of the governing boardsof twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos oftwenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and EdgardoTordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each.

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 The blatant betrayal of public trust evolved into one of the serious causes of discontent with the

Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment ofthe people that the 1986 Constitutional Commission, convened as it was after the people successfullyunseated former President Marcos, should draft into its proposed Constitution the provisions underconsideration which are envisioned to remedy, if not correct, the evils that flow from the holding of

multiple governmental offices and employment. X x x

But what is indeed significant is the fact that although Section 7, Article IX-B already contains ablanket prohibition against the holding of multiple offices or employment in the government subsumingboth elective and appointive public officials, the Constitutional Commission should see it fit to formulateanother provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members ofthe Cabinet, their deputies and assistants from holding any other office or employment during theirtenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisionsin question, the intent of the framers of the Constitution was to impose a stricter prohibition on thePresident and his official family in so far as holding other offices or employment in the government orelsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with otherprovisions of the Constitution on the disqualifications of certain public officials or employees from holdingother offices or employment. Under Section 13, Article VI, “[N]o Senator or Member of the House ofRepresentatives may hold any other office or employment in the Government x x x.” Under section 5(4), Article XVI, “[N]o member of the armed forces in the active service shall, at any time, be appointed inany capacity to a civilian position in the Government, including government-owned or controlledcorporations or any of their subsidiaries.” Even Section 7(2), Article IX-B, relied upon by respondentsprovides “[U]nless otherwise allowed by law or by the primary functions of his position, no appointiveofficial shall hold any other office or employment in the Government.”  

It is quite notable that in all these provisions on disqualifications to hold other office oremployment, the prohibition pertains to an office or employment in the government andgovernment-owned or controlled corporations or their subsidiaries. In striking contrast is the wording ofSection 13, Article VII which states that “[T]he President, Vice-President, the Members of the Cabinet,and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any otheroffice or employment during their tenure.” In the latter provision, the disqualification is absolute, notbeing qualified by the phrase “in the Government.” The prohibition imposed on the President and hisofficial family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: “They shall not, duringsaid tenure, directly or indirectly, practice any other profession, participate in any business, or befinancially interested in any contract with, or in any franchise, or special privilege granted by theGovernment or any subdivision, agency or instrumentality thereof, including government-owned orcontrolled corporations or their subsidiaries.” These sweeping, all-embracing prohibitions imposed on

the President and his official family, which prohibitions are not similarly imposed on other public officialsor employees such as the Members of Congress, members of the civil service in general and members ofthe armed forces, are proof of the intent of the 1987 Constitution to treat the President and his officialfamily as a class by itself and to impose upon said class stricter prohibitions.

X x x

Thus, while all other appointive officials in the civil service are allowed to hold other office oremployment in the government during their tenure when such is allowed by law or by the primary

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functions of their positions, members of the Cabinet, their deputies and assistants may do so only whenexpressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to laydown the general rule applicable to all elective and appointive public officials and employees, whileSection 13, Article VII is meant to be the exception applicable only to the President, the Vice-President,Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase “unless otherwise provided in this Constitution” inSection 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, ArticleIX-B of the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do,would render nugatory and meaningless the manifest intent and purpose of the framers of theConstitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet,their deputies and assistants with respect to holding other offices or employment in the governmentduring their tenure. Respondents’ interpretation that Section 13 of Article VII admits of the exceptionsfound in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framersof the Constitution as to when the high-ranking officials of the Executive Branch from the President toassistant Secretary, on the one hand, and the generality of civil servants from the rank immediatelybelow Assistant Secretary downwards, on the other, may hold any other office or position in thegovernment during their tenure.

Moreover, respondents’ reading of the provisions in question would render