Beda Notes_admin_ELect.pdf

7/27/2019 Beda Notes_admin_ELect.pdf

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ADMINISTRATIVE LAW- Branch of public law that fixes the

organization of the government anddetermines competence of authorities

who execute the law and indicates tothe individual remedies for the violationsof his rights.

I. ADMINISTRATIVE BODIES ORAGENCIES

- A body, other than the courts andthe legislature, endowed with quasi-legislative and quasi-judicial powers forthe purpose of enabling it to carry outlaws entrusted to it for enforcement orexecution.

How Created:1. by constitutional provision;2. by legislative enactment; and3. by authority of law.

II. POWERS OF ADMINISTRATIVEBODIES:1. Quasi-legislative or rule-making

power;2. Quasi-judicial or adjudicatory

power; and3. Determinative powers.

A. QUASI-LEGISLATIVE OR RULE-MAKING POWER

In exercise of delegated legislativepower, involving no discretion as towhat law shall be, but merelyauthority to fix details in executionor enforcement of a policy set out inlaw itself.

Kinds:1. Legislative regulation

a. Supplementary or detailedlegislation, e.g. Rules andRegulations Implementingthe Labor Code;

b. Contingent regulation2. Interpretative legislation, e.g.

BIR Circulars

Requisites for valid exercise:1. Issued under authority of law;

2. Within the scope and purview of thelaw;

3. Promulgated in accordance with theprescribed procedure:a. notice and hearing generally,

not required; only when:

i. the legislature itself requiresit and mandates that theregulation shall be based oncertain facts as determinedat an appropriateinvestigation;

ii. the regulation is asettlement of a controversybetween specific parties;considered as anadministrative adjudication(Cruz, PhilippineAdministrative Law, p.42 -

43); oriii. the administrative rule is in

the nature of subordinatelegislation designed toimplement a law byproviding its details (CIR v.Court of Appeals, 261 SCRA236).

b. publication4. Reasonable

Requisites for Validity ofAdministrative Rules With Penal

Sanctions:1. law itself must declare as punishable

the violation of administrative ruleor regulation;

2. law should define or fix penaltytherefor; and

3. rule/regulation must be published.

Doctrine of Subordinate Legislation power of administrative agency topromulgate rules and regulations onmatters of their own specialization.

Doctrine of Legislative Approval by Re-enactment - the rules and regulationspromulgated by the properadministrative agency implementing thelaw are deemed confirmed and approvedby the Legislature when said law was re-enacted by later legislation or throughcodification. The Legislature is presumedto have full knowledge of the contents ofthe regulations then at the time of re-enactment.


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QUASI-LEGISLATIVEFUNCTIONS

QUASI-JUDICIAL

FUNCTIONS

1. consists ofissuance of rulesand regulations

1. refers to itsend productcalled order,reward ordecision

2. generalapplicability

2. applies to aspecificsituation

3. prospective; itenvisages thepromulgation ofa rule or

regulationgenerallyapplicable in thefuture

3. presentdeterminationof rights,privileges or

duties as ofprevious orpresent time oroccurrence

B. QUASI-JUDICIAL OR ADJUDICATORYPOWER

Proceedings partake of nature ofjudicial proceedings.Administrative body grantedauthority to promulgate its own

rules of procedure.

Two necessary conditions:1. due process; and2. jurisdiction

Includes the following powers:1. Prescribe rules of procedure2. Subpoena power3. Contempt Power

Administrative Due Process:1. right to a hearing;

2. tribunal must consider evidencepresented;

3. decision must have something tosupport itself;

4. evidence must be substantial;5. decision must be based on evidence

adduced at hearing or at leastcontained in the record anddisclosed to parties;

6. board of judges must act on itsindependent consideration of factsand law of the case, and not simply

accept view of subordinate inarriving at a decision; and

7. decision must be rendered in such amanner that parties to controversy

can know various issues involved andreason for decision rendered.(AngTibay vs CIR, 69 Phil 635)

Substantial Evidence relevantevidence as a reasonable mind mightaccept as adequate to support aconclusion.

Administrative Determinations WhereNotice and Hearing Not Necessary:1. summary proceedings of distraint

and levy upon property of delinquent

taxpayer;2. grant of provisional authority for

increase of rates, or to engage inparticular line of business;

3. cancellation of passport where noabuse of discretion is committed;

4. summary abatement of nuisance perse which affects safety of persons orproperty;

5. preventive suspension of officer oremployee pending investigation; and

6. grant or revocation of licenses forpermits to operate certain

businesses affecting public order ormorals.

Administrative Appeal or Review1. Where provided by law, appeal from

administrative determination may bemade to higher or superioradministrative officer or body.

2. By virtue of power of control ofPresident, President himself orthrough Department Head mayaffirm, modify, alter, or reverseadministrative decision ofsubordinate.

3. Appellate administrative agency mayconduct additional hearing inappealed case, if deemed necessary.

Res judicata effect of AdministritveDecisions- has the force and binding effect of afinal judgment (note: applies only tojudicial and quasi judicial proceedingsnot to exercise of administrativefunctions, Brillantes vs. Castro 99 Phil.

497)


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C. DETERMINATIVE POWERS1. enabling permit the doing of an act

which the law undertakes to

regulate;2. directing order the doing orperformance of particular acts toensure compliance with the law andare often exercised for correctivepurposes

3. dispensing to relax the generaloperation of a law or to exempt fromgeneral prohibition, or relieve anindividual or a corporation from anaffirmative duty;

4. examining - also called investigatorypower;

5. summary power to applycompulsion or force against personsor property to effectuate a legalpurpose without judicial warrants toauthorize such actions.

III. EXHAUSTION OFADMINISTRATIVE REMEDIES

Whenever there is an availableadministrative remedy providedby law, no judicial recourse canbe made until all such remedieshave been availed of and

exhausted.1. Doctrine of Prior Resort or

(Doctrine of Primary AdministrativeJurisdiction) where there iscompetence or jurisdiction vestedupon administrative body to actupon a matter, no resort to courtsmay be made before suchadministrative body shall have actedupon the matter.

1. Doctrine of Finality ofAdministrative Action no resort tocourts will be allowed unlessadministrative action has beencompleted and there is nothing leftto be done in administrativestructure.

2. Judicial Relief from ThreatenedAdministrative Action courts willnot render a decree in advance ofadministrative action and therebyrender such action nugatory. It is notfor the court to stop anadministrative officer fromperforming his statutory duty for

fear he will perform it wrongly.

Effect of Failure to ExhaustAdministrative Remedies: as a generalrule, jurisdiction of the court is not

affected but the complaint is vulnerableto dismissal due to lack of cause ofaction.Exceptions to the Doctrine:1. doctrine of qualified political agency

(when the respondent is adepartment secretary whose acts asan alter ego of the President bearsthe implied and assumed approval ofthe latter); except where lawexpressly provides exhaustion;

2. administrative remedy is fruitless;3. where there is estoppel on part of

administrative agency;4. issue involved is purely legal;5. administrative action is patently

illegal, amounting to lack or excessof jurisdiction;

6. where there is unreasonable delay orofficial inaction;

7. where there is irreparable injury orthreat thereof, unless judicialrecourse is immediately made;

8. in land case, subject matter isprivate land;

9. where law does not make exhaustion

a condition precedent to judicialrecourse;

10. where observance of the doctrinewill result in nullification of claim;

11. where there are special reasons orcircumstances demanding immediatecourt action; and

12. when due process of law is clearlyviolated.

IV. JUDICIAL REVIEW OFADMINISTRATIVE DECISIONS

When made:1. to determine constitutionality or

validity of any treaty, law,ordinance, executive order, orregulation;

2. to determine jurisdiction of anyadministrative board, commissionor officer;

3. to determine any other questionsof law; and

4. to determine questions of factswhen necessary to determineeither:


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a. constitutional or jurisdictionalissue;

b. commission of abuse ofauthority; and

c. when administrative factfinding body is undulyrestricted by an error of law.

Modes of review:1. Statutory;2. Non-statutory inherent power of

the court to review suchproceedings upon questions ofjurisdiction and questions of law;

3. Direct proceeding;4. Collateral attack.

General Rule: Findings of facts ofAdministrative Agencies accorded greatweight by the Courts.Exceptions to the Rule:

1. factual findings not supported byevidence;

2. findings are vitiated by fraud,imposition or collusion;

3. procedure which led to factualfindings is irregular;4. palpable errors are committed; and5. grave abuse of discretion,

arbitrariness or capriciousness ismanifest.

Brandeis Doctrine ofAssimilation of Facts onepurports to be finding of fact butis so involved with anddependent upon a question oflatter,courts will review the

entire case including the latter.law as to be in substance andeffect a decision on the .


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San Beda College of Law 5MEMORY AID IN POLITICAL LAW

P L C

LAW ON PUBLIC OFFICERS

I.PUBLIC OFFICE

- right, authority and duty createdand conferred by law, by which for agiven period, either fixed by law orenduring at pleasure of creatingpower, and individual is vested withsome sovereign functions ofgovernment to be exercised by himfor the benefit of thepublic.(Fernandez vs Sto Tomas, 234SCRA 546)

Elements of Public Office: (LSDIP)1. created by law or ordinance

authorized by law;2. possess sovereign functions of

government to be exercised forpublic interests;

3. functions defined expressly orimpliedly by law;

4. functions exercised by an officerdirectly under control of law, notunder that of a superior officerunless they are functioned conferredby law upon inferior officers, who bylaw, are under control of a superior;

(duties performed independently)and5. with permanency or continuity, not

temporary or occasional.

Characteristics:-Public office is a public trust.-Public office is not property and isoutside the commerce of man. It cannotbe subject of a contract. (Cruz, Law onPublic Officers, p.5)

II. PUBLIC OFFICERS

- individuals vested with public office

Classification of Public Officers:1. Executive, legislative and judicial

officers;2. Discretionary or ministerial officers;3. Civil or military officers;4. Officers de jure or de facto; and5. National, provincial or municipal

officials

Eligibility and qualification:

two senses:1. may refer to endowments,

qualities or attributes whichmake an individual eligible forpublic office;

2. may refer to the act of enteringinto performance of functions ofpublic office.

Authority to prescribe qualification:1. when prescribed by Constitution,

ordinarily exclusive, the legislaturemay not increase or reducequalifications except whenConstitution itself providesotherwise as when only minimum orno qualifications are prescribed( ex:Art XIII Sec 17 (2), Art VIII Sec 7 (2)Consti) ;

2. when office created by statute,Congress has generally plenarypower to prescribe qualification butsuch must be:a. germane to purpose of office;

and

b. not too specific so as to refer toonly one individual.

III. DE FACTO OFFICERS- one who has reputation of being an

officer that he assumes to be, andyet is not an officer in point of law.

- a person is a de facto officer wherethe duties of the office are exercisedunder any of the followingcircumstances:1. Without a known appointment or

election, but under suchcircumstances of reputation oracquiescence as were calculatedto induce people, withoutinquiry, to submit to or invokehis action, supposing him to thebe the officer he assumed to be;or

2. Under color of a known and validappointment or election, butwhere the officer has failed toconform to some precedent


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requirement or condition (e.g.,taking an oath or giving a bond);

3. Under color of a known electionor appointment, void because:

a. the officer was not eligible;

b. there was a want of power inthe electing or appointingbody;

c. there was a defect orirregularity in its exercise;such ineligibility, want ofpower, or defect beingunknown to the public.

4. Under color of an election or anappointment by or pursuant to apublic, unconstitutional law,

before the same is adjudged tobe such.

Note: Here, what is unconstitutional isnot the act creating the office, but theact by which the officer is appointed toan office legally existing. (Norton v.County of Shelby)

Requisites:1. valid existing office;2. actual physical possession of said

office;

3. color of title to office;4. by reputation or acquiescence;5. known or valid appointment or

election but officer failed toconform with legal requirements;

6. known appointment or election butvoid because of ineligibility ofofficer or want of authority ofappointing or electing authority orirregularity in appointment orelection not known to public; and

7. known appointment or electionpursuant to unconstitutional lawbefore declaration ofunconstitutionality.

DE JUREOFFICER

DE FACTOOFFICER

1. rests on theright

1. on reputation

2. has lawful ortitle to the

office

2. has possessionand performs

the duties undercolor of right

without being

technicallyqualified in allpoints of law toact

3. cannot beremoved in adirectproceeding

3. may be ousted ina directproceedingagainst him.

DE FACTOOFFICER

INTRUDER

1. officer underany of the 4circumstancesmentioned

1. one who takespossession of anoffice andundertakes to

act officiallywithout anyauthority, eitheractual orapparent

2. has color ofright or title tooffice

2. has neitherlawful title norcolor of right ortitle to office

3. acts are valid as

to the publicuntil such timeas his title tothe office isadjudgedinsufficient

3. acts are

absolutely voidand can beimpeached inany proceedingat any timeunless and untilhe continues toact for so long atime as to afforda presumption ofhis right to act

4. entitled tocompensationfor servicesrendered

4. not entitled tocompensation

Legal Effects of Acts- valid insofar as they affect the

publicEntitlement to SalariesGeneral Rule: rightful incumbent may

recover from de facto officer salaryreceived by latter during time ofwrongful tenure even though latteris in good faith and under color of

title.(Monroy v. CA, 20 SCRA 620)


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Exception: when there is no de jurepublic officer, de facto officerentitled to salaries for period whenhe actually discharged

functions.(Civil Liberties Union v.Exec. Sec., 194 SCRA 317)Challenge to a De Facto Officer: must be

in a direct proceeding where the titlewill be the principal issue

IV. COMMENCEMENT OF OFFICIALRELATIONS:

1. by appointment; or2. by election

Appointment selection, by authorityvested with power, of individual who is

to perform functions of a given office. Essentially a discretionary power

and must be performed by theofficer in which it is vestedaccording to his best lights, theonly condition being that theappointee should possess theminimum qualificationrequirements prescribed by lawfor the position (Nachura,Reviewer in Political Law, p.305)

Commission written evidence ofappointment.

Designation imposition ofadditional duties, usually by law, ona person already in public office.

Classification of Appointments:1. Permanent extended to person

possessing requisitequalification for the position andthus enjoys security of tenure;

2. Temporary actingappointment, given to a non-civilservice eligible is without adefinite tenure and is dependentupon the pleasure of theappointing power;

3. Provisional- is one which maybe issued upon priorauthorization of theCommissioner of Civil service inaccordance with the provisionsof the Civil Service Law and therule and standards to a person

who has no t qualified in an

appropriate examination butwho otherwise meets therequirements for appointment toa regular position in the

competitive service, whenever avacancy occurs and the fillingthereof is necessary in theinterest of the service and thereis no appropriate register ofthose who are eligible at thetime of appointment;

4. Regular made by Presidentwhile Congress is in session andbecomes effective afternomination is confirmed by theCommission on Appointmentsand continues until the end of

term; and5. Ad-interim

a. Recess -- made whileCongress is not in session,before confirmation, isimmediately effective, andceases to be valid ifdisapproved or bypassed byCA upon next adjournmentof Congress;

b. Midnight made by thePresident before his termexpires, whether or not this

is confirmed by theCommission onAppointments.

Regularappointment

Ad interimappointment

Made during thelegislativesession

Made during therecess

Made only afterthe nominationis confirmed by

the Commissionon Appointments(CA)

Made beforesuchconfirmation

Once confirmedby the CAcontinues until the end of theterm of theappointee

Shall cease to bevalid ifdisapproved bythe CA or uponthe nextadjournment

Nepotism all appointments in thenational, provincial, city andmunicipal governments or in anybranch or instrumentality thereof,


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including GOCC, made in favor of arelative of the (1) appointing or (2)recommending authority or of the (3)chief of the bureau or office or of

the (4) persons exercising immediatesupervision over him. A relative isone within the 3rd degree either ofconsanguinity or affinity

Vacancy when an office is emptyand without a legally qualifiedincumbent appointed or elected to itwith a lawful right to exercise itspowers and performs its duties.

Classifications of vacancy:1. original when an office is

created and no one has beenappointed to fill it;

2. constructive when theincumbent has no legal rightor claim to continue in officeand can be legally replacedby another functionary;

3. accidental when theincumbent having died,resigned, or been removed;

4. absolute when the term ofan incumbent having expiredand the latter not having

held over, no successor is inbeing who is legally qualifiedto assume the office.

V. POWERS AND DUTIES OF APUBLIC OFFICER:

1. Ministerial discharge is imperativeand requires neither judgment nordiscretion, mandamus will lie; and

2. Discretionary imposed by lawwherein officer has right to decidehow and when duty shall beperformed, mandamus will not lie.

II. LIABILITY OF PUBLIC OFFICERGeneral Rule: not liable for injuriessustained by another as a consequenceof official acts done within the scope ofhis authority, except as otherwiseprovided by law.

A Public Officer shall not be civillyliable for acts done in theperformance of his duties

Exceptions:1. statutory liability under the Civil

Code (Arts. 27, 32 and 34);2. When there is a clear showing of bad

faith, malice or negligence(Administrative Code of 1987);3. liability on contracts; and4. liability on tort .

Threefold Liability Rule wrongfulacts or omissions of public officersmay give rise to civil, criminal, andadministrative liability. (CACliability rule)

Liability of Ministerial Officers:1. Nonfeasance neglect or refusal to

perform an act which is officerslegal obligation to perform;

2. Misfeasance failure to use thatdegree of care, skill and diligencerequired in the performance ofofficial duty; and

3. Malfeasance doing, throughignorance, inattention or malice, ofan act which he had no legal right toperform.

Doctrine of Command Responsibility

A superior officer is liable for acts ofa subordinate when: (ERCAL)

1. he negligently or willfully employs orretains unfit or incompetentsubordinates;

2. he negligently or willfully fails torequire subordinate to conform toprescribed regulations;

3. he negligently or carelessly overseesbusiness of office as to furnishsubordinate an opportunity fordefault;

4. he directed or authorized orcooperated in the wrong; or

5. law expressly makes him liable.

Under the Revised Admin. Code of1987, A Superior Officer shall beliable for acts of subordinate officersonly if he has actually authorized bewritten order the specific act ormisconduct complained.

Subordinate officers are also liablefor willful or negligent acts even ifhe acted under orders if such acts


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are contrary to law, morals, publicpolicy and good customs

Preventive Suspension

- a precautionary measure sothat an employee who is formallycharged of an offense may be separatedfrom the scene of his allegedmisfeasance while the same is beinginvestigated (Bautista v. Peralta, 18SCRA 223)

- need not be preceded by priornotice and hearing since it is not apenalty but only a preliminary step in anadministrative investigation (Lastimosav. Vasquez, 243 SCRA 497)

- the period of preventive suspensioncannot be deducted from whateverpenalty may be imposed upon the erringofficer (CSC Resolution No. 90-1066)

PENDINGINVESTIGATION

[Sec.51, E.O.292]

PENDINGAPPEAL

[Sec.27(4), E.O.292]

1. not a penalty

but only a meansof enabling thedisciplinaryauthority toconduct anunhamperedinvestigation.

1. Punitive in

character

2. no compensationdue for theperiod ofsuspension evenif found innocentof the charges.

2. If exonerated,he should bereinstated withfull pay for theperiod ofsuspension.

Rules on Preventive Suspension:

1. Appointive OfficialsNot a Presidential Appointee (Secs. 41-

42, P.D. 807):a. by whom the proper

disciplining authority maypreventively suspend;

b. against whom any subordinateofficer or employee under suchauthority;

c. when pending an investigation;

d. grounds if the charge againstsuch officer or employeeinvolves:i. dishonesty;

ii. oppression or gravemisconduct;iii. neglect in the performance

of duty; oriv. if there are reasons to

believe that respondent isguilty of the charges whichwould warrant his removalfrom the service

e. duration the administrativeinvestigation must be terminatedwithin 90 days; otherwise, therespondent shall be

automatically reinstated unlessthe delay in the disposition ofthe case is due to the fault,negligence or petition of therespondent, in which case theperiod of delay shall not becounted in computing the periodof suspension.

A Presidential Appointee:a. can only be investigated and

removed from office after duenotice and hearing by the

President of the Philippinesunder the principle that thepower to remove is inherent inthe power to appoint as can beimplied from Sec. 5, R.A.2260(Villaluz v. Zaldivar, 15 SCRA710).

b. the Presidential CommissionAgainst Graft and Corruption(PCAGC) shall have the power toinvestigate administrativecomplaints against presidentialappointees in the executivedepartment of the government,including GOCCs charged withgraft and corruption involvingone or a combination of thefollowing criteria:i. presidential appointees with

the rank equivalent to orhigher than an AssistantRegional Director;

ii. amount involved is at leastP10M;


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iii. those which threatengrievous harm or injury tothe national interest; and

iv. those which may be assigned

to it by the President (E.O.No. 151 and 151-A).2. Elective Officials: (Sec 63, R.A.7160)

a. by whom against whomi. President elective official

of a province, a highlyurbanized or an independentcomponent city;

ii. Governor elective officialof a component city ormunicipality;

iii. Mayor elective official of a

barangayb. when at any time after the

issues are joined;c. grounds:

i. reasonable ground to believethat the respondent hascommitted the act or actscomplained of;

ii. evidence of culpability isstrong;

iii. gravity of the offense sowarrants;

iv. continuance in office of the

respondent could influencethe witnesses or pose athreat to the safety andintegrity of the records andother evidence

d. duration:i. single administrative case

not to extend beyond 60days;

ii. several administrative cases not more than 90 dayswithin a single year on thesame ground or groundsexisting and known at thetime of the first suspension

- Section 24 of the OmbudsmanAct (R.A. 6770) expressly providethat the preventive suspensionshall continue until the case isterminated by the Office of theOmbudsman but not more than 6months without pay. Thepreventive suspension for 6months without pay is thusaccording to law (Lastimosa v.

Vasquez, 243 SCRA 497)

- R.A. 3019 makes it mandatory forthe Sandiganbayan to suspend, fora maximum period of 90 daysunless the case is decided within a

shorter period, any public officeragainst whom a valid informationis filed charging violation of:

1. R.A. 3019;2. Book II, Title 7, Revised Penal

Code; or3. offense involving fraud upon

government or public funds orproperty (Cruz, The Law ofPublic Officers, pp. 86-87)

VII. RIGHTS OF PUBLIC OFFICERS:

1. Right to Office just and legal claimto exercise powers andresponsibilities of the publicoffice.

Term period during whichofficer may claim to holdoffice as a right.

Tenure period during whichofficer actually holds office.

2. Right to SalaryBasis: legal title to office and

the fact the law attachescompensation to the office.Salary compensation provided

to be paid to public officerfor his services.

Preventive Suspension publicofficer not entitled during theperiod of preventive suspension,but upon exoneration andreinstatement he must be paidfull salaries and emolumentsduring such period.

Back salaries are also payable toan officer illegally dismissed orotherwise unjustly deprived ofhis office the right to recoveraccruing from the date ofdeprivation. The claim for backsalaries must be coupled with aclaim for reinstatement andsubject to the prescriptiveperiod of one (1) year. (Cruz,Law on Public Officers, p126-126)


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Forms of Compensation:a. salary personal

compensation to be paid topublic officer for his services

and it is generally a fixedannual or periodical paymentdepending on the time andnot on the amount of theservice he may render;

b. per diem allowance fordays actually spent in theperformance of officialduties;

c. honorarium somethinggiven as not as a matter ofobligation, but inappreciation for services

rendered;d. fee payment for services

rendered or on commissionon moneys officially passingthrough their hands; and

e. emoluments profits arisingfrom the office, received ascompensation for services orwhich is annexed to theoffice as salary, fees, orperquisites.

3. Right to Preference in Promotion

Promotion movement from oneposition to another with increasein duties and responsibilities asauthorized by law and usuallyaccompanied by an increase inpay.

Next-in-Rank Rule the personnext in rank shall be givenpreference in promotion when theposition immediately above his isvacated. But the appointingauthority still exercises hisdiscretion and is not bound bythis rule.

Appointing officer is onlyrequired to give specialreasons for not appointingofficer next in rank if he fillsvacancy by promotion indisregard of the next in rankrule. (Pineda vs. Claudio, 28SCRA 34)

Automatic Reversion Rule all

appointments involved in chain of

promotions must be submittedsimultaneously for approval bythe Commission, the disapprovalof the appointment of a person

proposed to a higher positioninvalidates the promotion ofthose in the lower positions andautomatically restores them totheir former positions.

4. Right to vacation leave and sickleave with pay;

5. Right to maternity leave;6. Right to pension and gratuity;

Pension regular allowance paid

to an individual or a group ofindividuals by the government inconsideration of servicesrendered or in recognition ofmerit, civil or military.Gratuity a donation and an actof pure liberality on the part ofthe State.

7. Right to retirement pay;8. Right to reimbursement for expenses

incurred in performance of duty;

9. Right to be indemnified against anyliability which they may incur inbona fide discharge of duties; and

10.Right to longevity pay.

11.Right to Self-OrganizationArt III, Sec 8 1987Consti. Note: Civilservants are now given the right to selforganize but they may not stage strikes(see: SSS Employees Assoc. vs. CA, 175SCRA 686)

VIII. MODES OF TERMINATIONOFFICIAL RELATIONSHIP:

(TR3A3P DIFC2IT)1. expiration ofterm or tenure;2. reaching the age limit;3. resignation;4. recall;5. removal;6. abandonment;7. acceptance ofincompatible office;

8. abolition of office;


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9. prescription of right to office (withinone year after the cause of ouster orthe right to hold such office orposition arose);

10. impeachment;11.death;12. failure to assume elective office

within 6 months from proclamation;13.conviction of a crime; and14. filing of certificate ofcandidacy.

When public officer holds office atpleasure of appointing power, hisreplacement amounts to expirationof his term, not removal.(Alajar vsAlba, 100 Phil 683)

Principle of Hold-Over ifno express orimplied Constitutional or statutoryprovision to the contrary, public officeris entitled to hold office until successorhas been chosen and shall havequalified.

Purpose: to prevent hiatus in publicoffice. (But subject to Art. 237 ofRPC)

Retirement:

Members of Judiciary : 70 years of

age Other government officers and

employees : 65 years of age

Optional retirement age: afterrendition of minimum number ofyears of service.

Accepting Authority for Resignation:1. to competent authority provided by

law;2. If law is silent and public officer is

appointed, tender to appointingofficer;

3. If law is silent and public officer iselected, tender to officer authorizedby law to call election to fillvacancy:a. President and Vice-President -

Congressb. Members of Congress -

respective Chamberse. Governors, Vice Governors,

Mayors and Vice Mayors of HUCsand independent componentcities - President.

f. Municipal Mayors and ViceMayors/City Mayors and ViceMayors of component cities -Provincial Governor;

g. Sanggunian Members Sanggunian concerned; andh. Elective Barangay Officials

Municipal or City Mayors

Recall - termination of officialrelationship for loss of confidenceprior to expiration of his termthrough the will of the people.

Limitations on Recall:1. any elective official may be subject

of a recall election only once during

his term of office for loss ofconfidence; and

2. no recall shall take place within oneyear from date of the officialsassumption to office or one yearimmediately preceding a regularlocal election.

Procedure for Recall (Secs. 70-72, R.A.7160)1. Initiation of the Recall Process:

a. by a Preparatory RecallAssembly(PRA) composed of:

i. Provincial mayors, vicemayors and sanggunian (sg)members of themunicipalities andcomponent cities;

ii. City punong barangay and(sg) barangay members;

iii. Legislative District:iiia. SG Panlalawigan

municipal officials inthe district;

iiib. SG Panglunsod barangay officials inthe district;

iv. Municipal - punong barangayand (sg) barangaymembers;

majority of the PRAmembers shall convene insession in a public place;

recall of the officialsconcerned shall be validlyinitiated through a resolutionadopted by a majority of allthe PRA members concerned


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b. by the Registered Voters (RV) inthe province, city, municipalityor barangay (LGU) concerned -at least 25% of the total number

of RV in the LGU concernedduring the election in which thelocal official sought to berecalled was elected;i. written petition filed with

the COMELEC in the presenceof the representative of thepetitioner and arepresentative of the officialsought to be recalled, and ina public place of the LGU;

ii. COMELEC shall cause thepublication of the petition in

a public and conspicuousplace for a period of not lessthan 10 days nor more than20 days

iii. upon lapse of the saidperiod, COMELEC shallannounce the acceptance ofcandidates and shall preparethe list of candidates whichshall include the name of theofficial sought to be recalled

3. Election on Recall COMELEC shallset the date of the election onrecall:a. for barangay, city or municipal

officials not later than 30 daysafter the filing of the resolutionor petition;

b. for provincial officials - not laterthan 45 days after the filing ofthe resolution or petition;

4. Effectivity of Recall only upon theelection and proclamation of asuccessor in the person of thecandidate receiving the highestnumber of votes cast during theelection on recall.

Should the official sought to berecalled receive the highestnumber of votes, confidence inhim is thereby affirmed, and heshall continue in office.


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ELECTION LAW

I.SUFFRAGE

- right to vote in election ofofficers chosen by people and inthe determination of questionssubmitted to people. It includes:1. election;2. plebiscite;3. initiative; and4. referendum.

Election means by which peoplechoose their officials for a definiteand fixed period and to whom theyentrust for time being the exerciseof powers of government.Kinds:1. Regular election one provided

by law for election of officerseither nationwide or in certainsubdivisions thereof, afterexpiration of full term of formermembers; and

2. Special election one held to fillvacancy in office beforeexpiration of full term for whichincumbent was elected.

Failure of Elections there areonly 3 instances where a failure ofelections may be declared, namely:

a. The election in any pollingplace has not been held onthe date fixed on account offorce majeure, violence,terrorism, fraud, or otheranalogous causes;

b. The election in any pollingplace had been suspendedbefore the hour fixed by law

for the closing of the votingon account of forcemajeure, violence,terrorism, fraud, or otheranalogous causes; and

c. After the voting and duringthe preparation andtransmission of the electionreturns or in the custody orcanvass thereof suchelection results in a failureto elect on account of forcemajeure, violence,

terrorism, fraud or other

analogous causes. (JosephPeter Sison v. COMELEC,G.R. No. 134096, March 3,1999)

What is common in thesethree instances is theresulting failure to elect. Inthe first instance, noelection is held while in thesecond, the election issuspended. In the thirdinstance, circumstancesattending the preparation,transmission, custody orcanvass of the electionreturns cause a failure toelect. The term failure toelect means nobody emergedas a winner. (Pasandalan vs.Comelec, G.R. No. 150312,July 18, 2002)

The causes for thedeclaration of a failure ofelection may occur before or

after the casting of votes oron the day of the election.(Sec. 4, R.A. 7166)

The COMELEC shall call forthe holding or continuationof the election on a datereasonably close to the dateof the election not held,suspended, or which resultedin a failure to elect but notlater than 30 days after thecessation of the cause ofsuch suspension or failure to

elect. (Sec. 6, B.P. 881) In such election, the location

of polling places shall be thesame as that of thepreceding regular election.However, changes may beinitiated by written petitionof the majority of the votersof the precinct or agreementof all the political parties orby resolution of the Comelecafter notice and hearing.


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(Cawasa vs. Comelec, G.R.No. 150469, July 3, 2002)

Postponement of Elections - An

election may be postponed by theCOMELEC either motu proprio or upona verified petition by any interestedparty when there is violence,terrorism, loss or destruction ofelection paraphernalia or records,force majeure, or other analogouscause of such a nature that theholding of a free, orderly and honestelection becomes impossible in anypolitical subdivision. (Sec. 5, B.P.881)

The COMELEC shall call for theholding of the election on a datereasonably close to the date ofthe election not held,suspended, or which resulted ina failure to elect but not laterthan 30 days after the cessationof the cause for suchpostponement or suspension ofthe election or failure to elect.(Sec. 5, B.P. 881)

Qualification for Suffrage:

1. Filipino citizen;2. At least 18 years of age;3. Resident of the Philippines for at

least one year;4. Resident of place where he proposes

to vote for at least 6 months; and5. Not otherwise disqualified by law.

Disqualification:1. person convicted by final judgment

to suffer imprisonment for not lessthan 1 year, unless pardoned orgranted amnesty; but rightreacquired upon expiration of 5years after service of sentence;

2. person adjudged by final judgmentof having committed any crimeinvolving disloyalty to government orany crime against national security;but right is reacquired uponexpiration of 5 years after service ofsentence; and

3. insane or incompetent persons asdeclared by competent authority(Sec. 118, OEC).

II. POLITICAL PARTY- organized group of citizens

advocating an ideology or platform,principles and policies for the general

conduct of government and which, asthe most immediate means of securingtheir adoption, regularly nominates andsupports certain of its leaders andmembers as candidate in public office.(Bayan Muna v. Comelec, GR No. 147613,June 28, 2001)

To acquire juridical personalityand to entitle it to rights andprivileges granted to politicalparties, it must be registeredwith COMELEC

policies for the general conductof government and which, as themost immediate means ofsecuring their adoption,regularly nominates and supportscertain of its leaders andmembers as candidate in publicoffice. (Bayan Muna v. Comelec,GR No. 147613, June 28, 2001)

To acquire juridical personalityand to entitle it to rights andprivileges granted to politicalparties, it must be registeredwith COMELEC.

Groups Disqualified for Registration:1. religious denominations or sects;2. those who seek to achieve their

goals through violence or unlawfulmeans;

3. those who refuse to uphold andadhere to Constitution; and

4. those supported by foreigngovernments.

Grounds for Cancellation ofRegistration:

1. accepting financial contributionsfrom foreign governments or theiragencies; and

2. failure to obtain at least 10% ofvotes casts in constituency whereparty fielded candidates.


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Party System a free and open partysystem shall be allowed to evolveaccording to free choice of people.

no votes cast in favor of political

party, organization or coalitionshall be valid except for thoseregistered under the party-listsystem provided in theConstitution;

political parties registered underparty-list system shall beentitled to appoint poll watchersin accordance with law; and

part-list representatives shallconstitute 20% of total numberof representatives in the House.

Guidelines for screening party-listparticipants1. The political party, sector,

organization or coalition mustrepresent the marginalized andunderrepresented groups identifiedin Sec. 5 of RA 7941. Majority of itsmember-ship should belong to themarginalized and underrepresented;

2. While even major political partiesare expressly allowed by RA 7941and the Constitution, they must

comply with the declared statutorypolicy of Filipino citizens belongingto marginalized and under-represented sectors to be elected tothe House of Representatives.Thus, they must show that theyrepresent the interest of themarginalized and underrepresented.

3. That religious sector may not berepresented in the party-list system;except that priests, imam or pastorsmay be elected should theyrepresent not their religious sect but

the indigenous community sector;4. A party or an organization must not

be disqualified under Sec. 6, RA 7941as follows:a. it is a religious sect or

denomination, organization orassociation organized forreligious purposes;

b. it advocates violence or unlawfulmeans to seek its goals;

c. it is a foreign party ororganization;

d. it is receiving support from anyforeign government, foreignpolitical party, foundation,organization, whether directly or

through any of its officers ormembers or indirectly throughthird parties for partisanelection purposes;

e. it violates or fails to comply withlaws, rules or regulation relatingto elections;

f. it declares untruthful statementsin its petition;

g. it has ceased to exist for at leastone (1) year; or

h. it fails to participate in the lasttwo (2) preceding elections or

fails to obtain at least two percentum (2%) of the votes castunder the party-list system intwo (2) preceding elections forthe constituency in which it hasregistered.

5. the party or organization must notbe an adjunct of, or a projectorganized or an entity funded orassisted by, the government.

6. the party, including its nomineesmust comply with the qualificationrequirements of section 9, RA 7941

as follows: No person shall benominated as party-listrepresentative unless he is: (a)natural-born citizen of thePhilippines; (b) a registered voter;(c) a resident of the Philippines for aperiod of not less than one yearimmediately preceding the day ofthe election; (d) able to read andwrite; (e) a bona fide member of theparty or organization which he seeksto represent for at least 90 dayspreceding the day of the election;and (f) at least 25 years of age onthe day of the election. In case of anominee of the youth sector, hemust at least be twenty five (25) butnot more than thirty (30) years ofage on the day of the election. Anyyouth sectoral representative whoattains the age of thirty (30) duringhis term shall be allowed to continuein office until the expiration of histerms;


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7. not only the candidate party ororganization must representmarginalized and underrepresentedsectors, so also must its nominees;

8. while lacking the a well-definedpolitical constituency, the nomineemust likewise be able to contributeto the formation and enactment ofappropriate legislation that willbenefit the nation as a whole. (AngBagong Bayani-OFW Labor Party, v.COMELEC, GR No. 147589, June 26,2001).

III. DISQUALIFICATION OFCANDIDATES:

1. declared as incompetent or insane

by competent authority;2. convicted by final judgment for

subversion, insurrection, rebellion orany offense for which he has beensentenced to a penalty of 18 monthsimprisonment;

3. convicted by final judgment forcrime involving moral turpitude;

4. any person who is permanentresident of or immigrant to a foreigncountry; and

5. one who has violated provisions on:a. campaign period;

b. removal, destruction of lawfulelection propaganda;

c. prohibited forms of propaganda;d. regulation of propaganda

through mass media; ande. election offenses.

- When a candidate has not yet beendisqualified by final judgment duringthe election day and was voted for,the votes cast in his favor cannot bedeclared stray. To do so wouldamount to disenfranchising theelectorate in whom sovereigntyresides. (Codilla vs. Hon. Jose DeVenecia, G.R. No. 150605, December10, 2002)

Nuisance Candidate COMELEC may motu propio

or upon petition ofinterested party, refuse togive due course to or cancelcertificate of candidacy ifshown that said certificate

was filed:

1. to put election process in mockery ordisrepute;

2. to cause confusion among voters bysimilarity of names of registered

candidates;3. by other circumstances or acts whichdemonstrate that a candidate has nobona fide intention to run for officefor which certificate has been filed,and thus prevent a faithfuldetermination of true will ofelectorate.

IV. FAIR ELECTIONS ACT OF 2001 (RA9006)

Lawful election Propaganda (sec. 3):

1. Written/Printed Materials (does notexceed 8 in. width by 14 in.length)

2. Handwritten/printed letters3. Posters (not exceeding 2 x 3 ft.)

3 by 8 ft. allowed inannouncing, at the site andon the occasion of a publicmeeting or rally, may bedisplayed 5 days before thedate of rally but shall beremoved within 24 hoursafter said rally.

4. Print Ads

page in broadsheets and page in tabloids thrice aweek per newspaper,magazine or otherpublication during thecampaign period

5. Broadcast Media (i.e. TV andRadio)

NATIONAL

POSITIONS

LOCAL

POSITIONS

1. 120 minutesfor TV

1. 60 minutesfor TV

2. 180 minutesfor Radio

2. 90 minutesfor Radio

Prohibited Campaign1. Public exhibition of movie,

cinematograph or documentaryportraying the life or biography of acandidate during campaign period;


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2. Public exhibition of a movie,cinematograph or documentaryportrayed by an actor or mediapersonality who is himself a

candidate;3. Use of airtime for campaign of amedia practitioner who is an officialof a party or a member of thecampaign staff of a candidate orpolitical party;

Limitation on Expenses:1. for candidates:

President and Vice President= P10/voter;

Other candidates, if withparty = P3/voter;

Other candidates, if withoutparty = P5/voter.

2. for political parties = P5/voter

Statement of Contribution andExpenses

every candidate and treasurer ofpolitical party shall, within 30 daysafter day of election, file offices ofCOMELEC the full, true and itemizedstatement of all contribution andexpenditures in connection with

election.

Election Survey

The SC held that Sec. 5.4 of the FairElection Act prohibiting publicationof survey results 15 daysimmediately preceding a nationalelection and 7 days before a localelection violates the constitutionalrights of speech, expression, and thepress because:

it imposes a prior restraint on

the freedom of expression; It is a direct and total

suppression of a category ofexpression even though suchsuppression is only for a limitedperiod; and

the governmental interest soughtto be promoted can be achievedby means other than thesuppression of freedom ofexpression. (Social WeatherStation v. Comelec, G.R. No.147571 May 5, 2001)

Substituted and Substitute Candidate- In case of valid substitutions

after the officials ballots have beenprinted, the votes cast for the

substituted candidates shall beconsidered as stray votes but shall notinvalidate the whole ballot. For thispurpose, the official ballots shall providefor spaces where the voters may writethe name of the substitute candidates ifthey are voting for the latter: Provided,however, That if the substitutecandidate is of the same family name,this provision shall not apply.(Sec.12)

V. PRE-PROCLAMATIONCONTROVERSY

Any question pertaining to oraffecting proceedings of Board ofCanvassers which may be raisedby any candidate or by aregistered political party orcoalition of political partiesbefore the board or directly withCOMELEC or any matter raisedunder Sections 233, 234, 235,and 236, in relation topreparation, transmission,receipt, custody andappreciation of election returns.

Issues which may be raised in a Pre-Proclamation Controversy:1. Illegal composition or proceedings of

the board of Canvassers;2. Canvassed election returns are

incomplete, contain materialdefects, appears to be tamperedwith or falsified; or containdiscrepancies in the same returns orin other authentic copies thereof asmentioned in Sec. 233,234,235 and236 of BP 881;

3. Election returns were preparedunder duress, threat, coercion, orintimidation, or they are obviouslymanufactured or not authentic; and

4. When substitute of fraudulentreturns in controverted pollingplaces were canvassed, the results ofwhich materially affected thestanding of the aggrievedcandidate/s.


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III. ELECTION CONTESTSNature: special summary proceedingobject of which is to expedite

settlement of controversies betweencandidates as to who received majorityof legal votes.Purpose: to ascertain true will of peopleand duly elected officer, and this couldbe achieved by throwing wide open theappeal before the court.

Contest: any matter involving title orclaim of title to an elective office, madebefore or after proclamation of winner,whether or not contestant is claimingoffice in dispute.

Election, Returns and qualification refers to all matters affecting validity ofthe contestees title to the position.

Election conduct of the polls,including the registration of voters,holding of election campaign, andcasting and counting of votes.

Returns include the canvass ofreturns and proclamation of winners,together with questions concerningcomposition of Board of Canvassers

and authenticity of election returns.

Qualifications matter which couldbe raised in a quo warrantoproceedings against the proclaimedwinner, such as his disloyalty to theRepublic or his ineligibility orinadequacy of his certificate ofcandidacy.

Original Exclusive Jurisdiction OverElection Contests1. President and Vice-President -

Supreme Court en banc2. Senator - Senate Electoral Tribunal3. Representative - HR Electoral

Tribunal4. Regional/Provincial/City - COMELEC5. Municipal - RTC6. Barangay- MTC

Appellate Jurisdiction:1. For decisions of RTC and MTC

appeal to COMELEC whosedecision shall be final and

executory;

2. For decisions of COMELEC

petition for review on Certiorariwith SC within 30 days fromreceipt of decision on ground of

grave abuse of discretionamounting to lack or excess ofjurisdiction or violation of dueprocess;

3. For decisions of Electoral Tribunal

petition for review on Certiorariwith SC on ground of grave abuseof discretion amounting to lackor excess of jurisdiction orviolation of due process.

Actions Which May Be Filed:1. Election Protest

- May be filed by any candidate whohas filed a certificate of candidacyand has been voted upon for thesame officer;Grounds:a. fraud;b. terrorism;c. irregularities; ord. illegal acts

committed before, during, orafter casting and counting ofvotes

Time to file: within 10 days fromproclamation of results of election.

2. Quo warranto- Filed by any registered voter in theconstituency

Grounds:a. ineligibility; orb. disloyalty to Republic.Time to file: within 10 days fromproclamation of results of election.

QUO WARRANTOIN ELECTIVE

OFFICE

QUO WARRANTOIN APPOINTIVE

OFFICE1. determination is

eligibility ofcandidate-elect

1. determination is

legality ofappointment

2. when personelected isdeclaredineligible, courtcannot declare 2ndplacer as elected,even if eligible

2. court maydetermine as towho among theparties has legaltitle to office


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IV. ELECTION OFFENSESVote-Buying and Vote-Selling

(1) Any person who gives, offers

or promises money or anything ofvalue, gives or promises anyoffice or employment, franchiseor grant, public or private, ormakes or offers to make anexpenditure, directly orindirectly, or cause anexpenditure to be made to anyperson, association, corporation,entity, or community in order toinduce anyone or the public ingeneral to vote for or againstany candidate or withhold his

vote in the election, or to votefor or against any aspirant forthe nomination or choice of acandidate in a convention orsimilar selection process of apolitical party.(2) Any person, association,corporation, group or communitywho solicits or receives, directlyor indirectly, any expenditure or

promise of any office oremployment, public or private,for any of the foregoingconsiderations. (Sec. 261, B.P.

881)

One of the effective ways ofpreventing the commissionof vote-buying and ofprosecuting thosecommitting it is the grant ofimmunity from criminalliability in favor of the party(person/s) whose vote wasbought. This grant ofimmunity will encourage the

recipient or acceptor tocome into the open anddenounce the culprit-candidate, and will ensurethe successful prosecution ofthe criminal case against thelatter. (Comelec vs. Hon.Tagle, G.R. Nos. 148948 &148951, February 17, 2003)


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LAW ON PUBLIC CORPORATION

I. LOCAL GOVERNMENT CODE OF 1991(R.A. 7160)

Effectivity: January 1, 1992

Scope of Application of LocalGovernment Code:Applicable to:

1. all provinces,2. cities,3. municipalities,4. barangays;5. and other political subdivisions

as may be created by law; and6. to the extent provided in theLocal Government Code:a. to officials,b. offices, orc. agencies of the National

Government.

Local Autonomy in its constitutionalsense, to polarize LGUs from overdependence on central government anddo not make LGUs mini-republics orimperium in imperia.

Decentralization of Administration central government delegatesadministrative powers to politicalsubdivisions in order to broaden base ofgovernment power and in process makeLGUs more responsive and accountableand ensure their fullest development asself-reliant communities and make themeffective partners in the pursuit ofnational development and socialprogress.

Decentralization of Power involvesabdication of political power in favor ofLGUs declared autonomous.(Limbona v.Mengelin, 170 SCRA 786).

Devolution act by which nationalgovernment confers power and authorityupon various LGUs to perform specificfunctions and responsibilities.[Sec.17(e),par.2, LGC].

Declaration of Policy:

1. Territorial and subdivisions of Stateshall enjoy genuine and meaningfullocal autonomy to enable them toattain fullest development and makethem more effective partners inattaining national goals;

2. Ensure accountability of LGUsthrough institution of effectivemechanisms of recall, initiative andreferendum; and

3. Require all national agencies and

offices to conduct periodicconsultations with appropriateLGUs, NGOs and PeoplesOrganizations and other concernedsector of community before anyproject or program is implementedin their respective jurisdictions.

Rules on Interpretation:1. provision on power: liberally

interpreted in favor of LGU; in caseof doubt, resolved in favor ofdevolution of powers;

2. ordinance or revenue measure:construed strictly against LGUenacting it and liberally in favor oftax payer;

3. tax exemptions, incentive or reliefgranted by LGU: construed againstperson claiming;

4. general welfare provisions: liberallyinterpreted to give more powers toLGUs in accelerating economicdevelopment and upgrading qualityof life for people in community;

5. rights and obligations existing on

date of effectivity of LGC of 1991and arising out of contracts or anyother source of prestation involvingLGU, shall be governed by originalterms and conditions of saidcontracts or law in force at timesuch rights were vested; and

6. resolution of controversies arisingunder LGC of 1991 where no legalprovision or jurisprudence applies,resort may be had to customs andtraditions in place wherecontroversies take place.


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II. PUBLIC CORPORATION- one formed and organized for the

government of a portion of the State.

Elements of Public Corporation:1. legal creation or incorporation;2. corporate name;3. inhabitants; and4. territory.

Classes of Corporation:1. Quasi-corporation public

corporations created as agencies ofState for narrow and limitedpurposes.

2. Municipal corporation body politicand corporate constituted by

incorporation of inhabitants of cityor town purposes of localgovernment thereof or as agency ofState to assist in civil government ofthe country.

3. Quasi-public corporation privatecorporation that renders publicservice or supplies public wants.

PUBLICCORPORATION

PRIVATECORPORATION

1. established for

purposes ofadministration ofcivil and localgovernments

1. created for private

aim, gain or benefitof members

2. creation of Stateeither by special or

general act

2. created by will ofincorporators with

recognizance ofState

3. involuntaryconsequencelegislation

3. voluntaryagreement by andamong members

III.DE FACTO MUNICIPALCORPORATION

Requisites:1. valid law authorizing incorporation;2. attempt in good faith to organize

under it;3. colorable compliance with law; and4. assumption of corporate powers.

IV. TERRITORIAL AND POLITICALSUBDIVISIONS ENJOYINGLOCAL AUTONOMY:

1. Province cluster of municipalities,

or municipalities and componentcities, and serves as dynamicmechanism for developmentalprocesses and effective governanceof LGUs within its territorialjurisdiction.

2. City composed of more urbanizedand developed barangays, serves asa general purpose government forcoordination and delivery of basic,regular and direct services andeffective governance of inhabitants

within its territorial jurisdiction;

3. Municipality consisting of group ofbarangays, serves primarily as ageneral purpose government forcoordination and delivery of basic,regular and direct services andeffective governance of inhabitantswithin its territorial jurisdiction;

4. Barangay basic political unit whichserves as primary planning andimplementing unit of government

policies, plans, programs, projectsand activities in community, and as aforum wherein collective views ofpeople may be expressed,crystalized and considered andwhere disputes may be amicablysettled;

5. Autonomous Regions created fordecentralization of administration ordecentralization of government; and

6. Special metropolitan politicalsubdivisions created for solepurpose of coordination of deliveryof basic services.

Creation of Municipal Corporations1. For province, city or municipality,

only by Act of Congress;2. For barangays, ordinance passed by

respective Sanggunian


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Plebiscite Requirement approved by a majority ofthe votes cast in a plebiscitecalled for the purpose in the

political unit/s directlyaffected (Sec. 10, R.A. 7160)

Based on verifiableindicators of viability andprojected capacity toprovide services (Sec. 7, R.A.7160) [Note: see Annex C]

Beginning of Corporate Existence

upon election and qualificationof its chief executive andmajority of members of itsSanggunian, unless some other

time is fixed therefore by law orordinance creating it.

Mode of Inquiry to LegalExistence of LGU: Quo warrantowhich is reserved to State orother direct proceedings

Abolition of LGU:

When income, population, or landarea of LGU has been reduced to lessthan minimum standards prescribedfor its creation. The law or

ordinance abolishing LGU shallspecify the province, city,municipality or barangaywith whichLGU sought to be abolished will beincorporated or merged.

Division and Merger of LGUs

shall comply with samerequirements, provided:

1. shall not reduce income, populationor land area of LGU concerned toless than the minimum requirementsprescribed;

2. income classification of original LGUshall not fall below its currentincome classification prior todivision;

3. Plebiscite be held in LGUs affected.4. Assets and liabilities of creation shall

be equitably distributed between theLGUs affected and new LGU. Whenmunicipal district of other territorialdivisions is converted or fused into amunicipality all property rightsvested in original territorial

organization shall become vested ingovernment of municipality.

V. POWERS OF LGUs

Classification of Powers of LocalGovernment Units1. Express, implied and inherent;2. Public or governmental, private or

proprietary;3. Intramural and extramural; and4. Mandatory and directory; ministerial

and discretionary.

Governmental Powers of LGU:1. General Welfare (Sec. 16, R.A.

7160) statutory grant of police

power to LGUs. It is limited to:a. territoriality;b. equal protection clause;c. due process clause; andd. must not be contrary to law.

2. Delivery of basic services andfacilities (Sec. 17, of R.A. 7160);

3. Power to generate and applyresources (Sec. 18, of R.A. 7160);

4. Eminent Domain (Sec. 19, of R.A.7160);Additional Limitations for Exerciseby LGU:

a. exercise by local chief executivepursuant to an ordinance;

b. for public use, purpose orwelfare for benefit of poor andlandless;

c. payment of just compensation;and

d. only after valid and definiteoffer had been made to, and notaccepted by owner.(Municipalityof Paraaque v. V.M. RealtyCorp., 292 SCRA 678)

5. Reclassification of Lands (Sec. 20of RA 7160)Limited by following percentage oftotal agricultural land area:a. for HUC and independent

component cities: 15%;b. for component cities and 1st to

3rd class municipalities: 10% ;and

c. for 4th to 6th class municipalities:5%.

6. Closure and opening of roads (Sec.21 of RA 7160)


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In case of permanent closure:a. adequate provision for public

safety must be made; andb. may be properly used or

conveyed for any purpose forwhich other real property maybe lawfully used or conveyed;provided no freedom park bepermanently closed withoutprovisions or transfer to newsite.

7. Local legislative power (Secs. 48-59 of RA 7160)Approval of ordinances:a. local chief executive with his

signature on each and everypage;

b. if local chief executive vetoesthe same, may be overridden by2/3 vote of all sanggunianmembers;(i) grounds for veto:

ordinance is ultra viresor prejudicial to publicwelfare;

(ii) local chief executivemay veto particularitem/s of appropriationordinance, adoption oflocal development plan

and public investmentplan, or ordinancedirecting payment ofmoney or creatingliability; and

(iii) local chief executivemay veto an ordinanceonly once;

c. veto communicated tosanggunian within 15 days forprovince and 10 days for city ormunicipality.

Requisites for validity:a. must not contravene the

Constitution and any statute;b. must not be unfair or oppressive;c. must not be partial or

discriminatory;d.must not prohibit, but may

regulate trade;e.must not be unreasonable; andf. must be general in application

and consistent with public policy.

Barangay Chairman has noveto power.

Corporate Powers of LGU:1. to have continuous succession in its

corporate name;2. to sue and be sued;3. to have and use a corporate seal;4. to acquire and convey real or

personal property;5. power to enter into contracts;

Requisites of valid municipalcontracts:a. LGU has express, implied, or

inherent power to enter into aparticular contract;

b. Entered into by properdepartment, board,

committee, or agent;c. Must comply with substantive

requirements;d. Must comply with formal

requirements; ande. In case entered into by local

chief executive on behalf ofLGU, prior authorization bySanggunian concerned isneeded

6. to exercise such other powers asgranted to corporation, subject tolimitations provided in Local

Government Code of 1991 and otherlaws.

VI. MUNICIPAL LIABILITY:

Rule: Local government units and theirofficials are not exempt from liability fordeath or injury to persons or damage toproperty (Sec. 24, R.A. 7160)1. Statutory provisions on liability:

a. Art. 2189, Civil Code defectivecondition of roads, streets,bridges, public buildings, andother public works;

b. Art. 2180(6th par.), Civil Code acts through a special agent;

d. Art. 34, Civil Code failure orrefusal of a member of thepolice force to render aid andprotection in case of danger tolife and property

2. for Tort depends if engaged in:a. governmental functions not

liable;b. proprietary functions liable


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3. for Violation of Law4. for Contracts if contract is:

a. intra vires liable;b. ultra vires not liable

Doctrine of Implied MunicipalLiability a municipality maybecome obligated upon animplied contract to pay thereasonable value of the benefitsaccepted or appropriated by itas to which it has the generalpower to contract (Province ofCebu v. IAC, 147 SCRA 447); thedoctrine applies to all caseswhere money or other propertyof a party is received under suchcircumstances that the general

law, independent of an expresscontract, implies an obligationto do justice with respect to thesame (Nachura, Reviewer inPolitical Law, p. 431)

VII. QUALIFICATION OF ELECTIVELOCAL OFFICIALS:

1. citizen of the Philippines;2. registered voter of barangay,

municipality, city, province, ordistrict where he intends to beelected;

3. resident therein for at least 1 yearpreceding election;

4. able to read and write Filipino orlocal language or dialect; and

5. age:a. 23 years of age Governor, Vice

Governor, Board Member,Mayor, Vice Mayor or Member ofCity Council for HUCs.

b. 21 years of age Mayor or ViceMayor of ICCs, component citiesor municipalities;

c. 18 years of age members ofICC or component city ormunicipal council or punongbarangay or member ofbarangay council;

d. at least 15 but not 21 years ofage candidate for sangguniankabataan.(Sec. 39, RA 7160)

Disqualification of Elective LocalOfficial:1. sentenced by final judgment for

offense involving moral turpitude or

punishable by 1 year or more ofimprisonment within 2 after serviceof sentence;

2. those removed from office due to

administrative cases;3. those convicted by final judgmentfor violating oath of allegiance tothe Republic;

4. those with dual citizenship;5. fugitives from justice in criminal or

non-political cases here or abroad;6. permanent resident in foreign

country; and7. insane or feeble-minded.(Sec.40,

RA.7160)

VIII. MANNER OF ELECTION

1. Elected at largea. Governor; Vice Governor;b. City or municipal mayor; City or

municipal vice-mayor;c. Punong barangay,d. SK chairman, elected by voters

ofKatipunan ng Kabataan

2. Elected by Districta. regular members ofSanggunianb. ex-officio members of

Sanggunian(i.) panlalawigan

president of leagues ofsanggunian members ofcomponent cities andmunicipalities; and

president of liga ng mgabarangay and pederasyonng mga sangguniankabataan

(ii.)panlunsod

president of liga ng mgabarangay and thepederasyon ng mga SB

(iii.) bayan

president of liga ng mgabarangay and thepederasyon ng mgasanggunian kabataan

3. Sectoral representatives women,worker, urban poor, and othersectors allowed by law.

Date of Election: Every 3 years on2nd Monday of May, unless otherwiseprovided by law.


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P L C

Term of Office: 3 years startingfrom noon of June 30 next followingthe election or such date as may beprovided by law, except that of

elective barangay officials, formaximum of 3 consecutive terms insame position.

Consecutive: After threeconsecutive terms, an electivelocal official cannot seekimmediate reelection for afourth term. The prohibitedelection refers to the nextregular election for the sameoffice following the end of thethird consecutive term. Anyother subsequent election, like a

recall election is no longercovered by the prohibition(Socrates vs. Comelec, G.R. No.154512, November 12, 2002).

IX. GROUNDS FOR DISCIPLINARYACTIONS:

1. disloyalty to the Republic;2. culpable violation of the

Constitution;

3. dishonesty, oppression, misconductin office, gross negligence or

dereliction of duty;

4. commission of offense involvingmoral turpitude or offensepunishable by at least prision mayor;

5. abuse of authority;

6. unauthorized absence for 15consecutive working days exceptsanggunian members;

7. application for, acquisition of ,foreign citizenship or residence orstatus of an immigrant of anothercountry; and

8. such other grounds as may beprovided in EC and other laws

Under Sec. 60 of RA 7160 anelective local official may beremoved from office on the

grounds enumerated aboveby order of the proper courtonly (Salalima vs Guingona,257 SCRA 55)


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POLITICAL LAW COMMITTEECHAIRPERSON: Jonathan Mangundayao ASST. CHAIRPERSON: Andre Jacobo EDP: Shantel Aceret MEMBERS: Jeff

Documents

Beda Notes_admin_ELect.pdf