admin law and election law questions
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Admin LAwTRANSCRIPT
Q — What is the essence of due process in administrative proceedings? Explain.
ANS: In administrative proceedings, due process simply means an opportunity to seek a
reconsideration of the order complained of; it cannot be fully equated to due process in its strict
jurisprudential sense. A respondent in an administrative case is not entitled to be informed of the
preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard,
and to the administrative decision based on substantial evidence. (Vealasquez v. CA, G.R. No. 150732,
August 31, 2004, 437 SCRA 357). Note that it is the administrative order, not the preliminary report,
which is the basis of any further remedies the losing party in an administrative case may pursue. (Viva
Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27, 2005).
Exhaustion of administrative remedies.
The general rule is that before a party may seek the intervention of the court, he should first avail of all
the means afforded him by administrative processes. The issues which administrative agencies are
authorized to decide should not be summarily taken from them and submitted to a court without first
giving such administrative agency the opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;
that is, courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative
tribunal, 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.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of
primary jurisdiction, which are based on sound public policy and practical considerations, are not
inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of
the party invoking the doctrine; (b) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make
the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately
have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted acts violate due
process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j)
when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved;
and, (l) in quo warranto proceedings. Exceptions (c) and (e) are applicable to the present case. (Rep., et
al. v. Lacap, et al., G.R. No. 158253, March 2, 2007).
Exhaustion of administrative remedies.
The underlying principles of the rule on exhaustion of administrative remedies rests on the presumption
that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the
same correctly. There are both legal and practical reasons for the principle. The administrative process is
intended to provide less expensive and speedier solutions to disputes. Where the enabling statute
indicates a procedure for administrative review and provides a system of administrative appeal or
reconsideration, the courts – for reasons of law, comity, and convenience – will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate authorities have
been given an opportunity to act and correct the errors committed in the administrative forum. (Berdin,
et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6, 2007, Tinga, J).
BAR QUESTIONS IN ADMINISTRATIVE LAW FROM 1989-2003
2001 BAR EXAMINATION
I
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)
The Philippine Ports Authority (PPA) General Manager issued an
administrative order to the fact that all existing regular
appointments to harbor pilot positions shall remain valid only up to
December 31 of the current year and that henceforth all appointments
to harbor pilot positions shall be only for a term of one year from
date of effectivity, subject to yearly renewal or cancellation by the
PPA after conduct of a rigid evaluation of performance. Pilotage as
a profession may be practiced only by duly licensed individuals, who
have to pass five government professional examinations.
The Harbor Pilot Association challenged the validity of said
administrative order arguing that it violated the harbor pilots'
right to exercise their profession and their right to due process of
law and that the said administrative order was issued without prior
notice and hearing. The PPA countered that the administrative order
was valid as it was issued in the exercise of its administrative
control and supervision over harbor pilots under PPA's legislative
charter; and that in issuing the order as a rule or regulation, it
was performing its executive or legislative, and not a quasi-judicial
function.
Due process of law is classified into two kinds, namely, procedural
due process and substantive due process of law. Was there, or, was
there no violation of the harbor pilots' right to exercise their
profession and their right to due process of law?
Suggested Answer:
The right of the pilots to due process was violated. As held, in
Corona vs. United Harbor Pilots Association of the Philippines, 283
SCRA 31 (1997), pilotage as a profession is a property right
protected by the guarantee of due process. The pre-evaluation
cancellation of the licenses of the harbor pilots every year is
unreasonable and violated their right to substantive due process.
The renewal is dependent on the evaluation after the licenses have
been cancelled. The issuance of the administrative order also
violated procedural due process, since no prior public hearing was
conducted. As held in Commissioner r of Internal Revenue vs. Court
of Appeals, 261 SCRA 237 (199 , when a regulation is being issued
under the quasi-legislative authority of an administrative agency,
the requirements of notice, hearing and publication must be observed.
II
TOPIC: JUDICIAL REVIEW
Give the two (2) requisites for the judicial review of administrative
decision/actions, that is, when is an administrative action ripe for
judicial review?
Suggested Answer:
1. The administrative action has already been fully completed
and, therefore, is a final agency action; and
2. All administrative remedies have been exhausted. (Gonzales,
Administrative Law, Rex Bookstore: Manila, p. 136 (1979).
2000 BAR EXAMINATION
I
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and Hearing)
The Maritime Industry Authority (MARINA) issued new rules and
regulations governing pilotage services and fees and the conduct of
pilots in Philippine ports. This it did without notice, hearing nor
consultation with harbor pilots or their associations whose rights
and activities are to be substantially affected. The harbor pilots
then filed suit to have the new MARINA rules and regulations declared
unconstitutional for having been issued without due process.
Suggested Answer:
The issuance of the new rules and regulations violated due process.
Under Section 9, Chapter II, Book VII of the Administrative Code of
1987, as far as practicable, before adopting proposed rules, an
administrative agency should publish or circulate notices of the
proposed rules and afford interested parties the opportunity to
submit their views; and in the fixing of rates, no rule shall be
valid unless the proposed rates shall have been published in a
newspaper of general circulation at least two weeks before the first
hearing on them. In accordance with this provision, in Commissioner
of Internal Revenue vs. Court of Appeals, 261 SCRA 236 (1996), it was
held that when an administrative rule substantially increases the
burden of those directly affected, they should be accorded the chance
to be heard before its issuance.
Alternative Answer:
Submission of the rule to the University of the Philippines Law
Center for publication is mandatory. Unless this requirement is
complied with, the rule cannot be enforced.
II
TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of Administrative
Remedies)
A) Explain the doctrine of exhaustion of administrative remedies.
B) Give at least three exceptions to its application.
Suggested Answer:
A) The doctrine of exhaustion of administrative remedies means
that when an adequate remedy is available within the Executive
Department, a litigant must first exhaust this remedy before he can
resort to the courts. The purpose of the doctrine is to enable the
administrative agencies to correct themselves if they have committed
an error. (Rosales vs. Court of Appeals, 165 SCRA 344 (198 .
B) The following are the exceptions to the application of the
doctrine of exhaustion of administrative remedies.
1. The question involved is purely legal;
2. The administrative body is in estoppel;
3. The act complained of is patently illegal;
4. There is an urgent need for judicial intervention;
5. The claim involved is small;
6. Grave and irreparable injury will be suffered;
7. There is no other plain, speedy and adequate remedy;
8. Strong public interest is involved;
9. The subject of the controversy is private law;
10. The case involves a quo warranto proceeding (Sunville Timber
Products, Inc. vs. Abad, 206 SCRA 482 (1992);
11. The party was denied due process (Samahang Magbubukid ng
Kapdula, Inc. vs. Court Appeals, 305 SCRA 147 (1999);
12. The decision is that of a Department Secretary (Nazareno vs.
Court of Appeals, G. R. No. 131641, February 23, 2000);
13. Resort to administrative remedies would be futile (university
of the Philippines Board of Regents vs. Rasul, 200 SCRA 685 (1991)
14. There is unreasonable delay (Republic vs. Sandiganbayan, 301
SCRA 237 (1999)
15. The action involves recovery of physical possession of public
land (Gabrito vs. Court of Appeals, 167 SCRA 771 (198 ;
16. The party is poor (Sabello vs. Department of Education,
Culture and Sports, 180 SCRA 623 (1989); and
17. The law provides for immediate resort to the court (Rullan
vs. Valdez, 12 SCRA 501 (1964).
1999 BAR EXAMINATION
I
TOPIC: RIGHT TO HEARING AND NOTICE
A. Give examples of acts of the state which infringe the due
process clause:
1. In its substantive aspect; and
2. In its procedural aspect
B. On April 6, 1963. Police Officer Mario Gatdula was charged
by the Mayor with Grave Misconduct and Violation of Law before the
Municipal Board. The Board investigated Gatdula but before the case
could be decided, the City charter was approved. The City Fiscal,
citing Section 30 of the city charter, asserted that he was
authorized thereunder to investigate city officers and employees. The
case against Gatdula was then forwarded to him, and are-investigation
was conducted. The office of the Fiscal subsequently recommended
dismissal. On January 11, 1966, the City Mayor returned the records
of the case to the City Fiscal for the submission of an appropriate
resolution but no resolution was submitted. On March 3, 1968, the
City Fiscal transmitted the records to the City Mayor recommending
that final action thereon be made by the City Board of Investigators
(CBI). Although the CBI did not conduct an investigation, the records
show that both the Municipal Board and the Fiscal's Office
exhaustively heard the case with both parties afforded ample
opportunity to adduce their evidence and argue their cause. The
Police Commission found Gatdula guilty on the basis of the records
forwarded by the CBl. Gatdula challenged the adverse decision of the
Police Commission theorizing that he was deprived of due process.
Questions: Is the Police Commission bound by the findings of the City
Fiscal? Is Gatdula's protestation of lack or nonobservance of due
process well-grounded? Explain your answers.
C. On November 7, 1990, nine lawyers of the Legal Department of Y
Bank who were all under Fred Torre, sent a complaint to management
accusing Torre of abusive conduct and mismanagement. Furnished with a
copy of the complaint, Torre denied the charges. Two days later, the
lawyers and Torre were called to a conference in the office of the
Board Chairman to give their respective sides of the controversy.
However, no agreement was reached thereat. Bank Director Romulo Moret
was tasked to look further into the matter. He met with the lawyers
together with Torre several times but to no avail. Moret then
submitted a report sustaining the charges or the lawyers. The Board
Chairman wrote Torre to inform him that the bank had chosen the
compassionate option of "waiting" for Torre's resignation. Torre was
asked, without being dismissed, to turn over the documents of all
cases handled by him to another official of the bank but Torre
refused to resign and requested for a "full hearing", Days later, he
reiterated his request for a "full hearing", claiming that he had
been "constructively dismissed", Moret assured Torre that he is "free
to remain in the employ of the bank" even if he has no particular
work assignment. After another request for a "full hearing" was
ignored, Torre filed a complaint with the arbitration branch of NLRC
for illegal dismissal. Reacting thereto, the bank terminated the
services of Torre.
Questions: (a) Was Torre "constructively dismissed" before he filed
his complaint? (b) Given the multiple meetings held among the bank
officials, the lawyers and Torre, is it correct for him to say that
he was not given an opportunity to be heard? Explain your answers.
SUGGESTED ANSWER:
A.
1.) A law violates substantive due process when it is unreasonable
or unduly oppressive. For example, Presidential Decree No. 1717,
which cancelled all the mortgages and liens of a debtor, was
considered unconstitutional for being oppressive. Likewise, as stated
in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, 20 SCRA 849, a law which is vague so that men of
common intelligence must guess at its meaning and differ as to its
application violates substantive due process. As held in Tañada v.
Tuvera, 146 SCRA 446, due process requires that the law be published.
2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the
dismissal of a case without the benefit of a hearing and without any
notice to the prosecution violated due process. Likewise, as held in
People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of
the judge who will decide a case violates procedural due process.
B.
The Police Commission is not bound by the findings of the City
Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was held that the
Police Commission is not prohibited from making its own findings on
the basis of its own evaluation of the records. Likewise, the
protestation of lack of due process is not well-grounded, since the
hearings before the Municipal Board and the City Fiscal offered
Gatdula the chance to be heard. There is no denial of due process if
the decision was rendered on the basis of evidence contained in the
record and disclosed to the parties affected.
C.
a) Torre was constructively dismissed, as held in Equitable Banking
Corporation v. National Labor Relations Commission, 273 SCRA 352.
Allowing an employee to report for work without being assigned any
work constitutes constructive dismissal.
b) Torre is correct in saying that he was not given the chance to be
heard. The meetings in the nature of consultations and conferences
cannot be considered as valid substitutes for the proper observance
of notice and hearing.
1998 BAR EXAMINATION
I
TOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Department of National Defense entered into contract with
Raintree Corporation for the supply of ponchos to the Armed Forces of
the Philippines (AFP), stipulating that, in the event of breach,
action may be filed in the proper court in Manila.
Suppose the AFP fails to pay for delivered ponchos where must
Raintree Corporation file its claim? Why?
SUGGESTED ANSWER:
Raintree Corporation must file its claim with the Commission on
Audit. Under Section 2(1) IX-D of the Constitution, the Commission on
Audit has the authority to settle all accounts pertaining to
expenditure of public funds. Raintree Corporation cannot file a case
in court. The Republic of the Philippines did not waive its immunity
from suit when it entered into the contract with Raintree Corporation
for the supply of ponchos for the use of the Armed Forces of the
Philippines. The contract involves the defense of the Philippines and
therefore relates to a sovereign function.
In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held:
"The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent
to be sued only when it enters into business contracts. It does not
apply where the contract relates to the exercise of its sovereign
functions. In this case the project are an integral part of the naval
base which is devoted to the defense of both the United States and
the Philippines, indisputably a function of the government of the
highest order: they are not utilized for nor dedicated to commerce or
business purposes"
The provision for venue in the contract does not constitute a waiver
of the State immunity from suit, because the express waiver of this
immunity can only be made by a statute.
In Republic vs. Purisima. 78 SCRA 470 474, the Supreme Court ruled:
"Apparently respondent Judge was misled by the terms of the contract
between the private respondent, plaintiff in his sala, and defendant
Rice and Com Administration which, according to him, anticipated the
case of a breach of contract between the parties and the suits that
may thereafter arise. The consent, to be effective though, must come
from the State acting through a duly enacted statute as pointed out
by Justice Bengzon in Mobil."
ALTERNATIVE ANSWER:
In accordance with the doctrine of exhaustion of administrative
remedies, Raintree Corporation should first file a claim with the
Commission on Audit. If the claim is denied, it should file a
petition for certiorari with the Supreme Court.
II
Topic: Administrative rulings subject to final determination of the
courts
Andres Ang was born of a Chinese father and a Filipino mother in
Sorsogon, Sorsogon, on January 20, 1973. In 1988, his father was
naturalized as a Filipino citizen On May 11, 1998. Andres Ang was
elected Representative of the First District of Sorsogon. Juan Bonto
who received the second highest number of votes, filed a petition for
Quo Warranto against Ang. The petition was filed with the House of
Representative Electoral Tribunal (HRET). Bonto contends that Ang is
not a natural born citizen of the Philippines and therefore is
disqual1fied to be a member of the House.
The HRET ruled in favor of Ang. Bonto filed a petition for certiorari
in the Supreme Court. The following issues are raised:
1. Whether the case is justiciable considering that Article VI.
Section 17 of the Constitution declares the HRET to be the sole Judge-
of all contests relating to the election returns and
disqualifications of members of the House of Representatives.
2. Whether Ang is a natural born citizen of the Philippines.
How should this case be decided?
SUGGESTED ANSWER:
1. The case is justiciable. As stated in Lazatin vs.House Electoral
Tribunal. 168 SCRA 391, 404, since judicial power includes the duty
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government, the Supreme Court
has the power to review the decisions of the House of Representatives
Electoral Tribunal in case of grave abuse of discretion on its part.
2. Andres Ang should be considered a natural born citizen of the
Philippines. He was born of a Filipino mother on January 20, 1973.
This was after the effectivity of the 1973 Constitution on January
17, 1973. Under Section (I), Article III of the 1973 Constitution,
those whose fathers or-mothers are citizens of the Philippines are
citizens of the Philippines. Andres Ang remained a citizen of the
Philippines after the effectivity of the 1987 Constitution. Section
1. Article IV of the 1987 Constitution provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution:"
III
TOPIC: SELF INCRIMINATION
Suppose Congress passed a law to implement the Constitutional
principle that a public office is a public trust, by providing as
follows:
"No employee of the Civil Service shall be excused from attending and
testifying or from producing books, records, correspondence,
documents or other evidence in any administrative investigation
concerning the office in which he is employed on the ground that his
testimony or the evidence required of him may tend to incriminate him
or subject him to a penalty or forfeiture: but his testimony or any
evidence produced by him shall not be used against him in criminal
prosecution based on the transaction, matter or thing concerning
which is compelled, after invoking his privilege against self-
incrimination to testify or produce evidence. Provided, however, that
such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying nor shall he be
exempt from demotion or removal from office. Any employee who refuses
to testify or produce any documents under this Act shall be dismissed
from the service."
Suppose further, that Ong, a member of the Professional Regulatory
Board, is required to answer questions in an investigation regarding
a LEAKAGE in a medical examination.
1. Can Ong refuse to answer questions on the ground that he would
incriminate himself?
2. Suppose he refuses to answer, and for that reason, is dismissed
from the service; can he pausibly argue that the Civil Commission has
inferred his guilt from his refusal to answer in violation of the
Constitution?
3. Suppose on the other hand, he answers the question and on the
basis of his answers, he is found guilty and is dismissed. Can he
pausibly assert that his dismissa1 is based on coerced confession?
SUGGESTED ANSWER:
1. No. Ong cannot refuse to answer the question on the ground that he
would incriminate himself, since the Jaw grants him immunity and
prohibits the use against him in a criminal prosecution of the
testimony or evidence produced by him. As stated by the United States
Supreme Court in Brown vs. Walker, 161 U.S.591, 597, what the
constitutional prohibition against self-incrimination seeks to
prevent is the conviction of the witness on the basis of testimony
elicited from him. The rule is satisfied when he is granted immunity.
ALTERNATIVE ANSWER:
1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108,
if Ong is being cited merely as a witness, he may not refuse to
answer. However, if the question tends to violate his right against
self-incrimination, he may object to it. On the other hand, under the
ruling in Chavez vs. Court of Appeals. 24 SCRA 663, 680, if be is a
respondent, Ong may refuse to answer any question because of his
right against self-incrimination.
SUGGESTED ANSWER:
2. No Ong cannot argue that the Civil Service Commission inferred
his guilt from his refusal to answer. Be was not dismissed because of
his involvement in the leakage in the medical examination but for his
refusal to answer. This is a violation of the law. He could be
compelled to answer the question on pain of being dismissed in case
of his refusal, because he was granted immunity.
In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States Supreme
Court said:
"Furthermore, the accommodation between the interest of the State and
the Fifth Amendment requires that the State have means at its
disposal to secure testimony if immunity is supplied and testimony is
still refused. This is recognized by the power of courts to compel
testimony, after a grant of immunity, by use of civil contempt and
coerced imprisonment. Shilitani vs. United States, 384 US 364, 16 L
Ed 2d 622, 86 5 Ct 1531 (1966). Also, given adequate immunity the
State may plainly insist that employees either answer questions under
oath about the performance of their job or suffer the loss of
employment."
3. Yes, Ong can argue that his dismissal was based on coerced
confession. In Garrity vs. New Jersey, 385 U.S. 493, 500, the United
States Supreme Court held:
"We now hold the protection of the individual under the Fourteenth
Amendment against coerced statements prohibits use in subsequent
criminal proceedings of statements obtained under threat of removal
from office, and that it extends to all, whether they are policemen
or other members of the body politic."
IV
TOPIC: LIMITATIONS OF POWER
The police had suspicions that. Juan Samson, member of the subversive
New-Proletarian Army, was using the mail for propaganda purposes in
gaining new adherents to its cause. The Chief of Police of
Bantolan., Lanao del Sur ordered the Postmaster of the town to
intercept and open all mail addressed to and coming from Juan Samson
in the interest of the national security. Was the order of the Chief
of Police valid?
SUGGESTED ANSWER:
No, the order of the Chief of Police is not valid, because there is
no law which authorizes him to order the Postmaster to open the
letters addressed to and coming from Juan Samson. An official in the
Executive Department cannot interfere with the privacy of
correspondence and communication in the absence of a law authorizing
him to do so or a lawful order of the court.
Section 3(1), Article III of the Constitution provides:
"The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."
IV
TOPIC: JURISDICITON
Suppose a Commissioner of the COMELEC is charged before the
Sandiganbayan for allegedly tolerating violation of the election laws
against proliferation of prohibited billboards and election
propaganda with the end in view of removing him from office. Will the
action prosper?
SUGGESTED ANSWER:
No, the action will not prosper. Under Section 8 Article Xl of the
Constitution. the Commissioners of the Commission on Elections are
removable by impeachment. As held in the case of In re Gonzales, 160
SCRA 771,774-775, a public officer who is removable by impeachment
cannot be charged before the Sandiganbayan with an offense which
carries with it the penalty of removal from office unless he is first
impeached. Otherwise, he will be removed from office by a method
other than impeachment.
1997 BAR EXAMINATION
I
TOPIC: ADMINISTRATIVE CODE
Are the government-owned or controlled corporations within the scope
and meaning of the "Government of the Philippines"?
Suggested Answer:
Section 2 of the Introductory Provisions of the Administrative Code
of 1987 defines the government of the Philippines as the corporate
governmental entity through which the functions of 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, the provincial, city, municipal or barangay
subdivisions or other forms of local government.
Government-owned or controlled corporations are within the scope and
meaning of the Government of the Philippines if they are performing
governmental or political functions.
II
TOPIC: ADMINISTRATIVE CODE FLAG CEREMON� Y
Section 28, Title VI, Chapter 9, of the Administrative Code of 1987
requires all educational institutions to observe a simple and
dignified flag ceremony, including the playing or singing of the
Philippine National Anthem, pursuant to rules to be promulgated by
the Secretary of Education, Culture and Sports. The refusal of a
teacher, student or pupil to attend or participate in the flag
ceremony is a ground for dismissal after due investigation. The
Secretary of Education, Culture and Sports issued a memorandum
implementing said provision of law. As ordered, the flag ceremony
would be held on Mondays at 7:30 a.m. during class days. A group of
teachers, students and pupils requested the Secretary that they be
exempted from attending the flag ceremony on the ground that
attendance thereto was against their religious belief. The Secretary
denied the request. The teachers, students and pupils concerned went
to the Court to have the memorandum circular declared null and void.
Decide the case.
Suggested Answer:
The teachers and the students should be exempted from the flag
ceremony. As held in Ebralinag vs. Division Superintendent of Schools
of Cebu, 251 SCRA 569 , to compel them to participate in the flag
ceremony will violate their freedom of religion. Freedom of religion
cannot be impaired except upon the showing of a clear and present
danger of a substantive evil which the State has a right to prevent.
The refusal of the teachers and the students to participate in the
flag ceremony does not pose a clear and present danger.
1996 BAR EXAMINATION
I
TOPIC: ADMINISTRATIVE REMEDIES
1. Distinguish the doctrine of primary jurisdiction from the
doctrine of exhaustion of administrative remedies.
2. Does the failure to exhaust administrative remedies before
filing a case in court oust said court of jurisdiction to hear the
case? Explain.
Suggested Answer:
1. The doctrine of primary jurisdiction and the doctrine of
exhaustion of administrative remedies both deal with the proper
relationships between the courts and administrative agencies. The
doctrine of exhaustion of administrative remedies applies where a
claim is cognizable in the first instance by an administrative agency
alone. Judicial interference is withheld until the administrative
process has been completed. As stated in Industrial Enterprises, Inc.
vs. Court of Appeals, 184 SCRA 426, the doctrine of primary
jurisdiction applies where a case is within the concurrent
jurisdiction of the court and an administrative agency but the
determination of the case requires the technical expertise of the
administrative agency. In such a case, although the matter is within
the jurisdiction of the court, it must yield to the jurisdiction of
the administrative case.
2. No, the failure to exhaust administrative remedies before
filing a case in court does not oust the court of jurisdiction to
hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384,
the failure to exhaust administrative remedies does not affect the
jurisdiction of the court but results in the lack of a cause of
action, because a condition precedent that must be satisfied before
action can be filed was not fulfilled.
1995 BAR EXAMINATION
I
TOPIC: LOCAL GOVERNMENT UNIT VS. ADMINISTRATIVE AGENCY
The Municipality of Binangonan, Rizal passed a resolution authorizing
the operation of an open garbage dumpsite in a 9-hectare land in the
Reyes Estate within the Municipality's territorial limits. Some
concerned residents of Binangonan filed a complaint with the Laguna
Lake Development Authority (LLDA) to stop the operation of the
dumpsite due to its harmful effects on the health of the residents.
The LLDA conducted an on-site investigation, monitoring, testing and
water sampling and found that the dumpsite would contaminate Laguna
de Bay and the surrounding areas of the Municipality. The LLDA also
discovered that no environmental clearance was secured by the
Municipality from the Department of Environment and Natural Resources
(DENR) and the LLDA as required by law. The LLDA therefore issued to
the Binangonan Municipal Government a cease and desist order to stop
the operation of the dumpsite. The Municipality of Binangonan filed a
case to annul the order issued by the LLDA.
1. Can the Municipality of Binangonan invoke police power to
prevent its residents and the LLDA from interfering with the
operation of the dumpsite by the Municipality? Explain.
2. Can the LLDA justify its order by asserting that the health
of the residents will be adversely affected? Explain.
Suggested Answer:
1. No, the Municipality of Binangonan cannot invoke its police
power. According to Laguna Lake Development Authority vs. Court of
Appeals, 231 SCRA 292, under Republic Act No. 4850, the LLDA is
mandated to promote the development of the Laguna Lake area,
including the surrounding Province of Rizal, with due regard to the
prevention of pollution. The LLDA is mandated to pass upon and
approve or disapprove all projects proposed by local government
offices within the region.
2. Yes, the LLDA can justify its order. Since it has been
authorized by Executive Order No. 927 to make orders requiring the
discontinuance of pollution, its power to issue the order can be
inferred from this. Otherwise, it will be a toothless agency.
Moreover, the LLDA is specifically authorized under its Charter to
issue cease and desist orders.
1991 BAR EXAMINATION
I
TOPIC: ADMINISTRATIVE BODIES OR AGENCY
On July 1991, the Energy Regulatory Board (ERB), in response to
public clamor, issued a resolution approving and adopting a schedule
for bringing down the prices of petroleum products over a period of
one (1) year starting 15 August 1991, over the objection of the oil
companies which claim that the period covered is too long to prejudge
and foresee.
Is the resolution valid?
Suggested Answer:
No, the resolution is not valid, since the Energy Regulatory Board
issued the resolution without a hearing. The resolution here is not a
provisional order and therefore it can only be issued after
appropriate notice and hearing to affected parties. The ruling in
Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA
218, to the effect that an order provisionally reducing the rates
which a public utility could charge, could be issued without previous
notice and hearing, cannot apply.
1990 BAR EXAMINATION
I
TOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONS
Executive Orders Nos. 1 and 2, issued by President Corazon C. Aquino
created the Presidential Commission on Good Government (PCGG) and
empowered it to sequester any property shown prima facie to be ill-
gotten wealth of the late President Marcos, his relatives and
cronies. Executive Order No. 14 vests on the Sandiganbayan
jurisdiction to try hidden wealth cases. On April 14, 1986, after an
investigation, the PCGG sequestered the assets of X Corporation, Inc.
(1) X Corporation, Inc, claimed that President Aquino as President,
could not lawfully issue Executive Orders Nos. 1, 2, 14, which have
the force of law, on the ground that legislation is a function of
Congress. Decide.
(2) Said corporation also questioned the validity of the three
executive orders on the ground that they are bills of attainder and,
therefore, unconstitutional. Decide
Suggested Answer:
(1) The contention of X Corporation should be rejected. Executive
orders Nos. 1, 2 and 14 were issued in 1986. At that time President
Corazon Aquino exercised legislative power Section 1, Article II of
the Provisional Constitution established by Proclamation No. 3,
provided:
"Until a legislature is elected and convened under a new
constitution, the President shall continue to exercise legislative
power."
In case of Kapatiran ng mga Naglilingkod sa Pamahalan ng Pilipinas,
Inc. vs. Tan, 163 SCRA 371, the Supreme Court ruled that the
Provisional Constitution and the 1987 Constitution, both recognized
the power of the President to exercise legislative powers until the
first Congress created under the 1987 Constitution was convened on
June 27, 1987.
(2) Executive Orders Nos. 1,2 and 14 are not bill of attainder. A
bill of attainder is a legislative act which inflicts punishment
without trial. On the contrary, the expressly provide that any
judgment that the property sequestered is ill-gotten wealth is to be
made by a court (the Sandiganbayan) only after trial.
II
TOPIC: LAW ON PUBLIC OFFICERS
A. After 2 February 1987, the Philippine National bank (PNB) grants a
loan to congressman X. Is the loan violative of the Constitution?
Suppose the loan had instead been granted before 2 February 1987, but
was outstanding on that date with a remaining balance on the
principal in the amount of P50,000, can the PNB validly give
Congressman X an extension of time after said date to stele the
obligation?
B. For being notoriously undesirable and recidivist, Jose Tapulan, an
employee in the first level of the career service in the Office of
the Provincial Governor of Masbate, was dismissed by the Governor
without formal investigation pursuant to Section 40 of the Civil
Service Decree (P.D. No. 807) which authorizes summary proceedings in
such cases.
As a lawyer of Jose what steps, if any, would you take to protect his
rights?
Suggested Answer:
A. whether or not the loan is violative of the 1987 Constitution
depends upon its purpose, if it was obtained for a business purpose,
it is violative of the Constitution. If it was obtained for some
other purpose, e.g. for housing, it is not violative of the
Constitution because under Section 16, Article XI, Members of
Congress are prohibited from obtaining loans from government-owned
banks only if it is for a business purpose.
If the loan was granted before the effectivity of the Constitution on
February 2, 1987, the Philippine National Bank cannot extend its
maturity after February 2, 1987, if the loan was obtained for a
business purpose. In such case the extension is a financial
accommodation which is also prohibited by the Constitution.
B. Section 40 of the Civil Service Decree has been repealed by
republic Act No. 6654. As a lawyer of Jose Tapulan, I will file a
petition for mandamus to compel his reinstatement. In accordance with
the ruling in Mangubat vs. Osmeña, G.R. No. L-12837, April 30, 1959,
there is no need to exhaust all administrative remedies by appealing
to Civil Service Commission, since the act of the governor is
patently illegal.
1989 BAR EXAMINATION
I
TOPIC: LAW ON PUBLIC OFFICERS
An existing law grants government employees the option to retire upon
reaching the age of 57 years and completion of at least 30 years of
total, government service. As a fiscal retrenchment measure, the
Office of the President later issued a Memorandum Circular requiring
physical incapacity as an additional condition for optional
retirement age of 65 years. A government employee, whose application
for optional retirement was denied because he was below 65 years of
age and was not physically incapacitated, filed an action in court
questioning the disapproval of his application claiming that the
Memorandum Circular is void. Is the contention of the employee
correct? Explain.
Suggested Answer:
Yes, the contention of the employee is correct. In Marasigan vs.
Cruz, SCRA , it was held that such memorandum circular is void. By
introducing physical capacity as additional condition for optional
retirement, the memorandum circular tried to amend the law. Such
power is lodged with the legislative branch and not with the
executive branch.
II
TOPIC: LAW ON PUBLIC OFFICERS
In 1986, F, then the officer-in-charge of Botolan, Zambales, was
accused of having violated the ANTI-Graft and Corrupt Practices Act
before the Sandigan Bayan. Before he could be arraigned, he was
elected Governor of Zambales. After his arraignment, he put under
preventive suspension by the Sandiganbayan " for the duration of the
trial".
(1) Can F successfully challenge the legality of his preventive
suspension on the ground that the criminal case against him involved
acts committed during his term as officer-in-charge and not during
his term as Governor?
(2) Can F validly object to the aforestated duration of his
suspension?
Suggested Answer:
(1) No, F cannot successfully challenge the legality of his
preventive suspension on the ground that the criminal case against
him involve acts committed during his term as OIC and not during his
term as governor because suspension from office under Republic Act
3019 refers to any office that the respondent is presently holding
and not necessarily to the one which he hold when he committed the
crime with which he is charged. This was the ruling in Deloso vs.
Sandiganbayan, 173 SCRA 409
(2) Yes, F Can validly object to the duration of the suspension. In
Deloso vs. Sandiganbayan, 173 SCRA 409, it was held that the
imposition of preventive suspension for an indefinite period of time
is unreasonable and violates the right of the accused to due process.
The people who elected the governor to office would be deprived of
his services for an indefinite period, and his right to hold office
would be nullified. Moreover, since under Section 42 of the Civil
Service Decree the duration of preventive suspension should be
limited to ninety (90) days, equal protection demands that the
duration of preventive suspension under the Anti-Graft and Corrupt
Practices Act be also limited to ninety (90) days only.
ELECTION LAWS QUESTIONS AND ANSWERS
Q — Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,
Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor filed
a petition to annul/nullify his certificate of candidacy and/or to disqualify on the ground
that Cayat has been convicted of a crime involving moral turpitude. Twenty three days
before the election, Cayat’s disqualification became final and executory. He, however
won and was proclaimed and assumed office. Palileng filed an electoral protest
contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and
contended that he should succeed Cayat in case he is disqualified because Palileng
was only a second placer, hence, he cannot be declared as the winner. Is the
contention of the Vice-Mayor correct? Why?
ANS: No, because there was no second placer, hence, Palileng should be proclaimed
as the winner on the following grounds:
First, the COMELEC’s Resolution of 12 April 2004 cancelling Cayat’s certificate of
candidacy due to disqualification became final and executory on 17 April 2004 when
Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for
Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty-three days before the
election day, Cayat was already disqualified by final judgment to run for Mayor in the 10
May 2004 elections. As the only candidate, Palileng was not a second placer. On the
contrary, Palileng was the sole and only placer, second to none. The doctrine on the
rejection of the second placer, which triggers the rule on succession, does not apply in
the present case because Palileng is not a second-placer but the only placer.
Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond
question.
Second, there are specific requirements for the application of the doctrine on the
rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of
his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s
disqualification remained pending on election day, 10 May 2004, resulting in the
presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the
decision on Cayat’s disqualification became final only after the elections. (Cayat v.
COMELEC, April 27, 2007).
Q — It was contended that the doctrine of rejection of the second placer laid down in
Labo v. COMELEC should apply. Is the contention correct? Why?
ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the
second placer, does not apply because in Labo there was no final judgment of
disqualification before the elections. The doctrine on the rejection of the second placer
was applied in Labo and a host of other cases because the judgment declaring the
candidate’s disqualification in Labo and the other cases had not become final before the
elections. Labo and other cases applying the doctrine on the rejection of the second
placer have one common essential condition – the disqualification of the candidate had
not become final before the elections. This essential condition does not exist in the
present case. (Cayat v. COMELEC).
Reason in Labo.
In Labo, Labo’s disqualification became final only on 14 May 1992, three days after the
11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the
case of Cayat he was disqualified by final judgment 23 days before the 10 May 2004
lections. On election day, Cayat was no longer legally a candidate for mayor. In short,
Cayat’s candidacy for Mayor was legally non-existent in the 10 May 2004 elections.
Q — What is the effect if a candidate is disqualified by final judgment? Explain.
ANS: The law expressly declares that a candidate disqualified by final judgment before
an election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms
Law of 1987, states:
Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong.
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when
the disqualification becomes final before the elections, which is the situation covered in
the first sentence of Section 6. The second is when the disqualification becomes final
after the elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment
before an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May
2004 elections. Therefore, all the 8, 164 votes cast in Cayat’s favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper
because he was the sole and only candidate, second to none. (Cayat v. COMELEC).
Q — Why is the proclamation of Cayat void? Explain.
ANS: Cayat’s proclamation is void because the decision disqualifying him had already
become final on 17 April 2004. There is no longer any need to ascertain whether there
was actual knowledge by the voters of his disqualification when they casted their votes
on election day because the law mandates that Cayat’s votes “shall not be counted”.
There is no disenfranchisement of the voters. Rather, the voters are deemed by law to
have deliberately voted for a non-candidate, and thus their votes are stray and “shall not
be counted”. (Cayat. v. COMELEC).
Q — Is the intervention of the Vice-Mayor proper? Why?
ANS: No. The petition-in-intervention should be rejected because the doctrine on the
rejection of the second placer does not apply to this case. The doctrine applies only if
the winning candidate’s disqualification has not yet become final and executory before
the election. In this case, the disqualification was final and executory before the
election, hence, there was no second placer. (Cayat v. COMELEC).
Three-term limit; even if “as caretaker”.
Q — Mayor Marino Morales ran for a fourth term despite having served for three (3)
consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel
his certificate of candidacy, he alleged that while he served his second term, he did it as
a “caretaker of the office” or as a “de facto officer” because he was suspended by the
Ombudsman from January 16, 1999 to July 15, 1999 and that his proclamation was
declared void and which became final and executory on August 6, 2001. The
COMELEC declared him disqualified. Before the Supreme Court, he contended that his
second term from July 1, 1999 to June 30, 2001 may not be counted since his
proclamation was void. Is the contention correct? Why?
ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full term,
hence, the three-term limit rule applies to him. This is especially so that he assumed
office. He served as mayor up to June 30, 2001. He was mayor for the entire period
notwithstanding the decision in the electoral protest case ousting him as mayor. As held
in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473,
such circumstance does not constitute an interruption in serving the full term. In Ong, he
served the full term even as there was a declaration of failure of election.
Section 8, Article X of the Constitution provides that the terms of the office of elected
local officials x x x, shall be three years and no such official shall serve for more than
three consecutive terms. x x x
Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no
local official shall serve for more than three consecutive terms in the same position.
Morales has been mayor of Mabalacat continuously without any break since July 1,
1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and
Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007).
Q — Explain the reason for the maximum term limit.
ANS: The framers of the Constitution wanted to establish some safeguards against the
excessive accumulation of power as a result of consecutive terms.
As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601,
the three-term limit is an exception to the people’s freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of a prolonged stay in the same office.
(Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and companion case, May 9,
2007).
Q — Is not the case of Morales similar to the case of Lonzanida v COMELEC?
Explain.
ANS: No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily vacated
when there was a declaration of failure of election. He did not fully serve the term,
hence, he was qualified to run for a third term.
The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated
reason of “failure of election”, and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office
of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term,
there being an involuntary severance from office as a result of legal processes. In fine,
there was an effective interruption of the continuity of service.
On the other hand, the failure-of-election factor does not obtain in the present case. But
more importantly, here, there was actually no interruption or break in the continuity of
Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never
unseated during the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering
the 1998-2001 term.
Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the
duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But
his proclamation as mayor in the May 1998 election was declared void. As ruled, his
service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule
applies to him. There is no reason why this ruling should not also apply to Morales who
is similarly situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007).
Q — Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?
ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by
virtue of the principle of succession, he being the vice-mayor. He was not therefore,
elected even if he served the rest of the term of the mayor, hence, his assumption of the
office of the mayor upon the death of the incumbent mayor may not be regarded as a
term.
Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90,
it was held that assumption of the office of mayor in a recall election for the remaining
term is not the “term” contemplated under Section 8, Article X of the Constitution and
Section 43(b) of R.A. 7160 (the Local Government Code). There was a “break” in the
service of the mayor. He was a “private citizen” for a time before running for mayor in
the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9,
2007).
Q — What is the effect if the certificate of candidacy of a candidate is cancelled?
Explain.
ANS: Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. (Secs. 6 and 7, RA
6646).
Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a
stray vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus Election
Code).
Morales can not be considered a candidate in the May 2004 elections. Not being a
candidate, the votes cast for him should not be counted and must be considered stray
votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007).
Q — It was contended that since Morales was disqualified, the second placer should
be proclaimed as the winner. Is the contention correct? Why?
ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate cannot
be proclaimed as a substitute winner.
The rule is that, the ineligibility of a candidate receiving majority votes does not entitle
the eligible candidate receiving the next highest number of votes to be declared elected.
A minority or defeated candidate cannot be deemed elected to the office.
As a consequence of ineligibility, a permanent vacancy in the contested office has
occurred. This should now be filled by the vice-mayor in accordance with Sec. 44 of the
Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May
9, 2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297).
Q — What are the requirements which must concur for the three-term limit to apply?
ANS: For the three-term limit to apply, the following two conditions must concur:
1) that the official concerned has been elected for three consecutive terms in the
same local government post; and
2) that he has fully served three consecutive terms. (Lonzanida v. COMELEC,
G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473;
Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No.
167591, May 9, 2007).
Effect if there is a tie.
Q — What is the proper procedure to be resorted to in case of a tie? Explain.
ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear from
the canvass that two or more candidates have received an equal and highest number of
votes, or in cases where two or more candidates are to be elected for the same position
and two or more candidates received the same number of votes for the last place in the
number to be elected, the board of canvassers, after recording this fact in its minutes,
shall by resolution, upon five days notice to all the tied candidates, hold a special public
meeting at which the board of canvassers shall proceed to the drawing of lots of the
candidates who have tied and shall proclaim as elected the candidates who may
favored by luck, and the candidates so proclaimed shall have the right to assume office
in the same manner as if he had been elected by plurality of votes. The board of
canvassers shall forthwith make a certificate stating the name of the candidate who had
been favored by luck and his proclamation on the basis thereof.
Nothing in this section shall be construed as depriving a candidate of his right to contest
the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March
2, 2007).
Withdrawal of certificate of candidacy.
Q — Hans Roger filed his certificate of candidacy but withdrew the same. He was
substituted by Joy Luna but the COMELEC denied due course to her certificate on the
ground that Hans being under age, he could not have filed a valid certificate of
candidacy. There was, however, no petition to deny Hans certificate of candidacy. Did
the COMELEC act correctly? Why?
ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in declaring that Hans Roger, being under age, could not be
considered to have filed a valid certificate of candidacy and, thus, could not be validly
substituted by Luna. The COMELEC may not, by itself, without the proper proceedings,
deny due course to or cancel a certificate of candidacy filed in due form. (Cipriano v.
COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v. Del
Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for
non-age is beyond the usual and proper cognizance of the COMELEC.
If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified petition
to deny due course to or cancel such certificate of candidacy under Section 78 of the
Election Code.
In this case, there was no petition to deny due court to or cancel the certificate of
candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a
valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny
due course to or cancel Luna’s certificate of candidacy. In effect, the COMELEC,
without the proper proceedings, cancelled Hans Roger’s certificate of candidacy and
declared the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983,
April 24, 2007).
Pre-proclamation controversy; extent of power of COMELEC.
Q — What is the extent of the power of the COMELEC in pre-proclamation
controversy? Explain.
ANS: It is a well-established rule in pre-proclamation cases that the Board of
Canvassers is without jurisdiction to go beyond what appears on the face of the election
return. The rationale is that a full reception of evidence aliunde and the meticulous
examination of voluminous election documents would run counter to the summary
nature of a pre-proclamation controversy. However, this rule is not without any
exception. In Lee v. Commission on Elections, it was held that if there is a prima facie
showing that the return is not genuine, several entries having been omitted in the
questioned election return, the doctrine does not apply. The COMELEC is thus not
powerless to determine if there is basis for the exclusion of the questioned returns.
(G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al. v. COMELEC, et al., G.R.
No. 171882, April 3, 2007).
Handwritings have only one general appearance.
Q — May the COMELEC invalidate certain ballots merely on a finding that the writings
have the same general appearance and pictorial effect? Explain.
ANS: No. General resemblance is not enough to warrant the conclusion that two
writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).
In order to reach the conclusion that two writings are by the same hand there must not
only be present class characteristics but also individual characteristics or ‘dents and
scratches’ in sufficient quantity to exclude the theory of accidental coincidence; to reach
the conclusion that writings are by different hands we may find numerous likeness in
class characteristics but divergences in individual characteristics, or we may find
divergences in both, but the divergence must be something more than mere superficial
differences. (Osborn’s Questioned Documents, p. 244; Delos Reyes v. COMELEC, et
al., G.R. No. 170070, February 28, 2007).
Neighborhood rule.
The votes contested in this appeal are all misplaced votes, i.e., votes cast for a
candidate for the wrong or inexistent office. In appreciating such votes, the COMELEC
may applied the “neighborhood rule.” As used by the Court, this nomenclature, loosely
based on a rule of the same name devised by the House of Representatives Electoral
Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34, June 16, 1989, 1 HRET
Rep. 138), refers to an exception to the rule on appreciation of misplaced votes under
Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:
Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a
stray vote but it shall not invalidate the whole ballot.
Section 211(19) is meant to avoid confusion in the minds of the election officials as to
the candidates actually voted for and to stave off any scheming design to identify the
vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of
our election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)). Section 211(19) also
enforces Section 195 of the Omnibus Election Code which provides that in preparing
the ballot, each voter must “fill his ballot by writing in the proper place for each office the
name of the individual candidate for whom he desires to vote.”
Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire
series of names intended to be voted for the successive offices appearing in the ballot
(Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152
Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5
SCRA 438) misplacement of names where such names were preceded or followed by
the title of the contested office or where the voter wrote after the candidate’s name a
directional symbol indicating the correct office for which the misplaced name was
intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a
name written (a) off-center from the designated space (Mandac v. Samonte, 54 Phil.
706 (1930)), (b) slightly underneath the line for the contested office (Sarmiento v.
Quemado, No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del Fierro, 69 Phil. 199
(1939)), (c) immediately above the title for the contested office ((Villavert v. Fornier, 84
Phil. 756 (1949)), or (d) in the space for an office immediately following that for which
the candidate presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496
SCRA 505 and Ferrer v. Commission on Elections, 386 Phil. 431 (2000)). In these
instances, the misplaced votes are nevertheless credited to the candidates for the office
for which they presented themselves because the voters’ intention to so vote is clear
from the face of the ballots. This is in consonance with the settled doctrine that ballots
should be appreciated with liberality to give effect to the voters’ will. (Velasco v.
COMELEC, et al., G.R. No. 166931, February 22, 2007).
Marked ballot.
Q — When is a ballot considered as marked? Explain.
ANS: In order for a ballot to be considered marked, in the sense necessary to
invalidate it, it must appear that the voter designedly place some superfluous sign or
mark on the ballot which might serve to identify it thereafter. No ballot should be
discarded as a marked ballot unless its character as such is unmistakable. The
distinguishing mark which the law forbids to be placed on the ballot is that which the
elector may have placed with the intention of facilitating the means of identifying said
ballot, for the purpose of defeating the secrecy of suffrage which the law establishes.
Thus, marked ballots are ballots containing distinguishing marks, the purpose of which
is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010, February 8, 2007,
Tinga, J).
Failure of election.
Q — When is there failure of election?
ANS: There are three instances where a failure of elections may be declared, thus:
(a) the election in any polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by law for
the closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect on account of
force majeure, violence, terrorism, fraud or other analogous causes.
In all three instances, there is a resulting failure to elect. In the first instance, the
election has not been held. In the second instance, the election has been suspended. In
the third instance, the preparation and the transmission of the election returns give rise
to the consequent failure to elect; the third instance is interpreted to mean that nobody
emerged as a winner. (Mutilan v. COMELEC, et al., G.R. No. 171248, April 2, 2007).
Note:
None of the three instances is present in this case. In this case, the elections took
place. In fact, private respondent was proclaimed the winner. Petitioner contests the
results of the elections on the grounds of massive disenfranchisement, substitute voting,
and farcical and statistically improbable results. Petitioner alleges that no actual election
was conducted because the voters did not actually vote and the ballots were filled up by
non-registered voters.
Q — May an interlocutory order of a COMELEC Division be the subject of certiorari to
the SC? Explain.
ANS: As a rule, No. The exception is in an unusual case where the petition for
certiorari questioning the interlocutory order of a COMELEC Division was pending
before the SC, the main case which was meanwhile decided by the COMELEC En Banc
was likewise elevated to the Court. Thus, there was a situation where the petition for
certiorari questioning the interlocutory orders of the COMELEC Division and the petition
for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the
main case were consolidated. The issues raised in the petition for certiorari were also
raised in the main case and therefore there was actually no need to resolve the petition
assailing the interlocutory orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741,
March 16, 2007; Soriano, Jr., et al. v. COMELEC, et al., G.R. No. 164496-505, April 2,
2007).
Note:
The general rule is that a decision or an order of a COMELEC Division cannot be
elevated directly to the SupremeCourt through a special civil action for certiorari.
Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a
COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to
reconsider an interlocutory order of a COMELEC Division shall be resolved by the
division which issued the interlocutory order, except when all the members of the
division decide to refer the matter to the COMELEC En Banc.
Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor
can they be proper subject of a petition for certiorari. To rule otherwise would not only
delay the disposition of cases but would also unnecessarily clog the Court docket and
unduly burden the Court. This does not mean that the aggrieved party is without
recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved
party can still assign as error the interlocutory order if in the course of the proceedings
he decides to appeal the main case to the COMELEC En Banc. The exception
enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is
a patent nullity because of absence of jurisdiction to issue the interlocutory order, as
where a COMELEC Division issued a temporary restraining order without a time limit,
which is the Repol case, or where a COMELEC Division admitted an answer with
counter-protest which was filed beyond the reglementary period, which is the Kho case.
The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that “it is the decision,
order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of
the Constitution, may be brought to the Supreme Court on certiorari.” The exception
provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol,
the assailed interlocutory orders of the COMELEC First Division in this case are not a
patent nullity. The assailed orders in this case involve the interpretation of the
COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case
the petition for certiorari questioning the interlocutory orders of the COMELEC Second
Division and the petition for certiorari and prohibition assailing the Resolution of the
COMELEC En Banc on the main case were already consolidated.
The Court also notes that the COMELEC First Division has already issued an Order
dated 31 May 2005 dismissing the protests and counter-protests in EPC Nos. 2004-36,
2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-
45 for failure of the protestants and protestees to pay the required cash deposits. Thus,
the Court have this peculiar situation where the interlocutory order of the COMELEC
First Division is pending before the Court but the main case has already been dismissed
by the COMELEC First Division. This situation is precisely what the Court are trying to
avoid by insisting on strict compliance of the rule that an interlocutory order cannot by
itself be the subject of an appeal or a petition for certiorari.
Misrepresentation in a certificate of candidacy; effect.
Q — When is misrepresentation in a certificate of candidacy material? Explain.
ANS: A misrepresentation in a certificate of candidacy is material when it refers to a
qualification for elective office and affects the candidate’s eligibility. Second, when a
candidate commits a material misrepresentation, he or she may be proceeded against
through a petition to deny due course to or cancel a certificate of candidacy under
Section 78, or through criminal prosecution under Section 262 for violation of Section
74. Third, a misrepresentation of a non-material fact, or a non-material
misrepresentation, is not a ground to deny due course to or cancel a certificate of
candidacy under Section 78. In other words, for a candidate’s certificate of candidacy to
be denied due course or cancelled by the COMELEC, the fact misrepresented must
pertain to a qualification for the office sought by the candidate. (Nelson T. Lluz, et al. v.
COMELEC, et al., G.R. No. 172840, June 7, 2007).
Q — If a candidate misrepresents his profession, is he disqualified? Explain.
ANS: No. No elective office, not even the office of the President of the Republic of the
Philippines, requires a certain profession or occupation as a qualification.
Profession or occupation not being a qualification for elective office, misrepresentation
of such does not constitute a material misrepresentation. Certainly, in a situation where
a candidate misrepresents his or her profession or occupation in the certificate of
candidacy, the candidate may not be disqualified from running for office under Section
78 as his or her certificate of candidacy cannot be denied due course or canceled on
such ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7,
2007).