Pointers in Political Law for the 2014 Bar Exams by Atty. Edwin R. Sandoval

®I - Two views on the effect of declaration of unconstitutionality of a law:

1. Orthodox view - An unconstitutional law is no law at all. It creates no office, it creates no rights, it creates no obligation, it is not a source of protection. It is stricken out of the statute books.It is treated as if it was never enacted at all.

2. Modern view (Operative Fact doctrine) - An unconstitutional law is not stricken out of the statute books. It remains there but the court refuses to recognize it. This is because, before it is declared unconstitutional, it enjoys the presumption of constitutionality. At that time, there may be parties who relied on the provisions of that law. As to them it remains to be valid. This is an operative fact that cannot be denied. Because of this, the declaration of unconstitutionality is not given retroactive effect. It is always given prospective application.

®II - Requisites before foreign military bases, troops, or facilities may be allowed in the Philippines (Section 25, Article XVIII, 1987 Constitution) like the Visiting Forces Agreement (VFA) with the US.

General Rule: No foreign military bases, troops, or facilities may be allowed in the Philippines.

Exception: They may be allowed provided that:

1. There must be a treaty duly concurred in by the Senate;2. When Congress so requires, the treaty must be ratified by majority of the votes cast by the people in a national referendum held for that purpose; and3. The treaty must be recognized also as a treaty by the other contracting State.

Section 25, Article XVIII, 1987 Constitution, is a special provision that applies to treaties involving the presence of foreign military bases, troops, or facilities in the Philippines, like the VFA. Whereas Section 21, Article VII, 1987 Constitution, is a general provision that applies to all kinds of treaties entered into by the Philippines, regardless of subject matter, title or designation. (Bayan v. Zamora)

All "Balikatan" Exercises held in several parts of the Philippines are held under the auspices of the VFA.

®III - Recent issue: The President is requesting for emergency powers to address the acute power shortage that the country may experience in the coming years.

Constitutional provision to consider (Section 23 (2), Article VI, 1987 Constitution)

Comment on the provision: The President may not validly exercise emergency powers motu proprio. There must be a law enacted by Congress authorizing the President to exercise emergency powers.

Requisites for Congress to validly delegate emergency powers to the President:

1. There must be war or other national emergency;2. The delegation must be for a limited period only;3. It is always subject to such restrictions as Congress may prescribe; and4. It must be pursuant to a declared national policy.

If Congress will delegate emergency power to the President, a law is required for the purpose. However, if Congress would like to withdraw or revoke the delegated emergency power to the President, another law is no longer required; a mere resolution from Congress will suffice.

®IV - Limitation on the term of office of Elective Local Officials (Section 8, Article X, 1987 Constitution).

The term of office of local elective officials, except barangay officials which shall be determined by law, shall be 3 years and no such official shall serve for more than 3 consecutive terms. Renunciation of office for any length of time shall not be considered an interruption in the continuity of the service for the full term for which he was elected.

For this provision to apply, 2 conditions must concur: first, that the local official concerned must have been elected for 3 consecutive terms to the same office, and second, that he was able to fully serve 3 consecutive terms. Absent 1 or both of these conditions, the disqualification may not yet apply. (Borja jr. v Comelec)

There are 2 policies embodied in this Constitutional provision: first, to prevent the establishment of political dynasties and, second, to enhance the freedom of choice of the people. (Borja jr. v Comelec)

Service of the recall term, since it is less than 3 years, is not to be considered as one full term for the purpose of applying the disqualification under Section 8, Article X of the 1987 Constitution. (Mendoza v Comelec, December 17, 2002)

To constitute an interruption in the continuity of service it must involve loss of title to the office; mere inability to perform the functions appurtenant to the office however short, is not an interruption. When one is placed under preventive suspension, he still remains to be mayor although in the meantime he may not be able to perform the functions appurtenant to the office because of a legal prohibition, thus, he still remains to be mayor; hence the vice mayor will assume office not as mayor but merely as acting mayor. There is no interruption of his term as mayor. (Aldovino jr. v Comelec)

When during his 2nd term as kagawad, sangguniang bayan, he assumed office as vice mayor due to the retirement of the vice mayor, that is not equivalent to voluntary renunciation of office and therefore constitutes an interruption in the continuity of service as kagawad, sangguniang bayan, that made him qualified to run again as kagawad, sangguniang bayan, for the fourth time. (Montebon v Comelec)

®V - Administrative Jurisdiction of the Ombudsman:

Under RA 6770 (The Ombudsman Act of 1989), the Ombudsman has administrative disciplinary authority over all public offices and employees, whether elective or appointive, national or local, except only with respect to the impeachable officers, the members of Congress, and the members of the Judiciary. Hence, a public officer may be charged administratively before the Office of the Ombudsman.

From the decision of the Ombudsman in an administrative case, appeal goes to the Court of Appeals. Section 27 of RA 6770 providing for direct appeal to the Supreme court from the decision of the Ombudsman in an administrative case had already been declared unconstitutional by the Supreme Court. (Fabian v Ombudsman Desierto)

In the exercise of his administrative jurisdiction, the Ombudsman or his Deputies may impose preventive suspension. The maximum duration of the preventive suspension under RA 6770 is 6 months.

The Ombudsman has no authority whatsoever to impose preventive suspension in a criminal case; only the court where the criminal information was filed may impose preventive suspension in a criminal case. (Section 13, RA 3019, as amended)

®VI - The Rome Statute

It is a multilateral treaty that established/created the International Criminal Court (ICC). The Philippines is the 117th State that ratified this Rome Statute. It is called a statute because it created a tribunal, according to Dean Raul Pangalangan of UP Law.

The offenses falling under the jurisdiction of this ICC are; genocide, crimes against humanity, war crimes and the crime of aggression.

The Principle of Complementarity is an important principle. It states that the ICC shall be complementary to national criminal jurisdiction. It gives primacy to national courts, meaning to say that if the court of one State already assumed jurisdiction over a person accused of having committed any of the four offenses, the ICC will no longer assume jurisdiction. Exceptions: first, If the proceeding in the national court is conducted to protect the accused from liability; or second, if it is not conducted independently or impartially, in which case, the ICC may still assume jurisdiction.

®VII - Jus Cogens Norm (Compelling law)

A peremptory (mandatory) norm of general international law which is recognized and accepted by the international community of States as a norm that does not permit of any derogation, and which can be replaced or modified only by a subsequent norm of general international law of the same character.

Examples: the prohibition against the use of force under the UN charter, the law on genocide, the right to self-determination of peoples.

Under the Vienna Convention on the Law of Treaties, a treaty that violates a Jus Cogens norm should be inviolated.

Erga Omnes ObligationAn obligation of a state towards the international community of states as a whole.

Between an erga omnes obligation and the obligation of a state towards another state pursuant to a treaty, an erga omnes obligation is superior.

Once it is established that it is a jus cogens norm, then it becomes an erga omnes obligation of a State.

Example: The law on genocide is an established jus cogens norm, therefore, it becomes an erga omnes obligation of a State not to commit genocide, or not to allow genocide to be committed anywhere.

These two are developments in international law which evolved only after World War 2. That's why in the case of Vinuya v Exec. Sec. Romulo (the case involving the "comfort women" in the Philippines during World War 2) the Supreme Court did not agree that the duty of the State to espouse the claims of its national against a foreign state has already evolved into a jus cogens norm and therefore, has become an erga omnes obligation.

In that same ruling, the Court further clarified that even the International Law Commission (ILC) concluded in 1963 that there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.®VIII - The Public Assembly Act (BP 880)

It is the law that regulates the holding of rallies, demonstrations and public assemblies. Obviously, it is enacted pursuant to the police power of the state. Under this law, if one will hold a rally or public assembly, one must first secure permit from the local authorities. However, there are instances when one may hold a rally without permit from the local authorities, as:

If the rally is to be held in a private place (only consent of the owner is needed);If the rally is to be held in the campus of a state university or college; andIf the rally is to be held in a freedom park. For this matter all cities and municipalities are mandated to establish/designate a freedom park where one may hold a rally even without permit from the local authorities.

Political rallies during the campaign period are governed by the Omnibus Election Code (BP 881), not the Public Assembly Act.

Under BP 880, if within 48 hours from the application of a permit to hold a rally, no acton was taken by the local authorities, the permit is deemed granted.

If the local authority refuses to issue the permit, or if he wants to change the venue, he is required to state the reason for such refusal, or change of venue, to the applicant. The only ground for the local authority to validly refuse to issue the permit, or change the venue, is that there is a clear and present danger of a substantive evil that the state has the right or duty to prevent or suppress if the permit is to be granted, such as imminent public disorder or violence.

Be reminded that any act of government that tends to impair public assembly, freedom of expression and other fundamental freedoms, comes to the Court with a heavy presumption of unconstitutionality. In Reyes v Bagatsing, the Court held that it is not for the applicant to guarantee that the rally will be peaceful, but for the mayor who refuses to issue the permit to justify his refusal, as his act of refusal comes to the court with a heavy presumption of unconstitutionality.

The local authority may not validly refuse to issue the permit, or change the venue of the rally, without informing the applicant of the reason for the refusal to issue the permit or change the venue of the rally. To do so without informing the applicant, would constitute grave abuse of discretion on his part. (IBP v Mayor Atienza)

BP 880 is merely a content-neutral regulation. It does not prohibit the holding of rallies or public assemblies; it merely regulates. (Bayan v Exec. Sec. Ermita)

The Calibrated Pre-emptive Response (CPR) policy adopted by the Arroyo administration in dealing with rallies or public assemblies which, according to Exec. Sec. Ermita simply means the strict implementation of the "no permit, no rally rule," is a superfluity if it means no more than "maximum tolerance" defined by BP 880, as it will only confuse people. However, if it means more than "maximum tolerance" as defined by BP 880, then it is unconstitutional, as it violates freedom of expression. (Bayan v Exec. Sec. Ermita)

"Maximum tolerance" means the highest degree of restraint that the police, the law enforcement officers and the military must observe in dealing with rallies or public assemblies, or in the dispersals thereof, so that under this rule, for as long as the demonstrators are unarmed or they do not exhibit overt acts of violence, although they tend to be unruly, or their speeches show to be incendiary, provocative, inflammatory, that is not enough justification for the dispersal of the rally or for the arrest of the demonstrators. Obviously the Public Assembly Act (BP 880) adheres to the clear and present danger rule.

®IX - Republic Act 9189 (The Absentee Voters Act of 2003)

Under this law, overseas Filipinos, permanent residents in a foreign country, may be allowed to register and vote before our embassies and consulates abroad, for President, Vice President, Senators, and Party-list Representatives provided that, before they register, they will have to execute an affidavit stating therein that within 3 years after such registration, they will return to the Philippines and resume their residence in the country.

In Makalintal v Comelec, the Court held that this is now the exception to the residence qualification of a voter under Section 1, Article V (Suffrage) of the 1987 Constitution. There is a clear intent on the part of the framers of the 1987 Constitution to enfranchise as many overseas Filipinos in recognition of their tremendous contributions to the national economy. It is but fair that their voices should be heard on who should be our leaders.

®X - Prohibition against the Payment of Additional, Double or Indirect CompensationSec. 8, Art. IX-B of the 1987 Constitution provides that no elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office or title of any kind from any foreign government.

Pensions and gratuities shall not be considered as additional, double or indirect compensation.

Does the payment of monthly Representation and Transportation Allowance (RATA) to certain officers of Government-Owned or Controlled Corporations (GOCCs) constitute additional, double or indirect compensation prohibited by the Constitution?

No. RATA is distinct from salary as a form of compensation. Unlike salary which is paid for services rendered, RATA is a form of allowance intended to defray expenses deemed unavoidable in the discharge of office. Hence, RATA is paid only to certain officials who, by the nature of their offices, incur representation and transportation expenses. Indeed, aside from the RATA that they have been receiving, the grant of RATA for every board meeting they attended, in their capacity as members of the Board of Directors of the GOCC, in addition to their per diems, does not violate the constitutional proscription against double compensation (Singson v. COA, 627 SCRA 36 [2010])

®XI - Doctrine of State Immunity from SuitWhen is a suit against a public officer deemed to be a suit against the State itself and, therefore, should be dismissed invoking State immunity from suit?

General Rule: The Doctrine of State Immunity from Suit applies to complaints filed against public officers in the performance of their duties. This is because, in such a case, the public officer merely acts as an agent of the State and. Therefore, his acts are deemed to be the acts of the principal itself, the State, following the principle of agency.

Exceptions: This rule will not apply if the public officer is charged in his official capacity for acts that are unlawful and injurious of the rights of others. Public officers are not exempt in their personal capacity from liability arising from acts committed in bad faith.

Neither does the rule apply where the public officer is charged in his personal capacity, not in his official capacity, although the act complained of was committed while he occupied a public position. (Lansang v. CA)

®XII - The Rule-Making Power of the Supreme Court (Sec. 5[5], Art. VIII, 1987 Constitution)Among the powers of the Supreme Court is the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, admission to the practice of law, the integrated bar, and legal assistance to the underprivileged.

Considering that the GSIS, under its Charter (Sec. 39 of RA 8291), is exempt from “all taxes, assessments, fees, charges or duties of all kinds,” is it also exempt from the payment of legal fees?

No. The provision in its Charter exempting the GSIS from all taxes, assessments, fees, charges or duties of all kinds cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987 Constitution removed this power from Congress. Hence, the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and procedure in all courts. Any exemption from

the payment of legal fees granted by the Congress to government-owned or controlled corporations (GOCCs) and local government units (LGUs) will necessarily reduce the Judiciary Development Fund (JDF) and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Court’s guaranteed fiscal autonomy and erodes its independence. (GSIS v. Heirs of Fernando P. Caballero, 632 SCRA 5 [2010])

®XIII - The Strict Scrutiny StandardThe Court has found the strict scrutiny standard, an American constitutional construct, useful in determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative classification that impermissibly interferes with the exercise of fundamental rights or operates to the peculiar class disadvantage of a suspect class s presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as others fundamental rights, as expansion from its earlier applications to equal protection. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb. 11, 2014, En Banc [Abad])

From the above, it is clear that the strict scrutiny standard is employed by the Court to test the validity of laws that are alleged to have violated the equal protection clause guaranteed by the Bill of Right – although later its application was expanded to apply as well to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights.

In the Disini case cited above (involving the challenge to the provision of the Cybercrime Prevention Act of 2012 [R.A 10175] penalizing illegal access to computer systems), the Court did not apply this standard since no fundamental freedom like speech is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right.

In that same case, the Court has an occasion to clarify also that the Cybercrime law will not jeopardize the work of ethical hackers (those who employ tools and techniques used by criminal hackers but would neither damage the target systems nor steal; information).-----

®XIV - What is a “get out of jail free card?”It is a stipulation in an agreement between a client and an ethical hacker defining the extent of the search, the methods to be used, and the system to be tested by the latter. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb. 11, 2014, En Banc [Abad])

®XV - The Doctrine of OverbreadthUnder the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.

Should the provision of the Cybercrime Prevention Act of 2012 (R.A. 10175) penalizing Data Interference (the intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses) be declared unconstitutional applying the overbreadth doctrine, as it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms?

No. The provision does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism, the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have an inherent chilling effect, an in terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the State powerless in addressing and penalizing socially harmful conduct. Here, the chilling effect that results in paralysis is an illusion since the provision clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of one’s constitutional rights.Besides, the overbreadth doctrine places on petitioners the heavy burden of proving that under no set of circumstances will the provision will be valid. (Disini, Jr., et al. v. The Secretary of Justice, G.R. No. 203335, Feb. 11, 2014, En Banc [Abad])

®XVI - The Right against Self-incriminationIf an accused is already covered by an immunity statute, may he still validly refuse to testify invoking his right against self-incrimination?

No. That is the very purpose of an immunity statute - the accused is granted some kind of immunity in exchange for his testimony so that even if in the course of his testimony he might incriminate himself, no harm can come upon him anymore.

Immunity statutes are of two types, i.e., transactional immunity and the use-and-derivative- used immunity – but the first is broader in the scope of its protection.By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

Immunity statutes should be construed liberally in favor of the accused and strictly against the state as it is not a bonanza from the government. Those who have been granted immunity paid a high price for it – the surrender of their precious right to remain silent. (Mapa, Jr. v.

Sandiganbayan, 231 SCRA 783, 1994, En Banc [Puno])

®XVII - The Power of AugmentationGeneral Rule: No law shall be passed authorizing any transfer of appropriations. (Sec. 25[5], Art. VI, 1987 Constitution)Exception: The President, the Senate President, the Speaker of the House of Representatives, the Chief Justice, and the Heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (Sec. 5[5], Art. VI, 1987 Constitution)

Cross-border transfer of funds is not allowed. Example: Savings from any of the executive offices (like the Office of the President) may not be transferred to augment appropriations for any of the Constitutional Commissions, like the Commission on Audit (COA) or the Civil Service Commission (CSC). This is known as the cross-border transfer of funds which is prohibited.

This is one reason why the Disbursement Acceleration Program (DAP) was declared unconstitutional by the SC. There was an unauthorized cross-border transfer of funds.

®XVIII – What is International Humanitarian Law (IHL)That branch of Public International Law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by limiting the means of military operations and by protecting persons who do not or no longer participate in the hostilities.

This used to be referred to as "The Laws of War". The cornerstone of IHL is the Principle of Distinction. Under this principle, persons engaged in armed conflicts must, at all times, distinguish between civilians and combatants and between civilian objects and military objectives.

The 6 principal legal instruments of IHL are: The Four Geneva Conventions of 1949, and the Two Additional Protocols of 1977.

Following the Principle of Distinction, "Combatants" are those directly engaged in the armed conflicts like members of the regular armed forces, members of the irregular forces (guerillas and militias), the levee en masse, officers and crew of merchant marine vessels who forcibly resist attack.

Combatants when captured, should be treated as Prisoners of War (POWs), who have rights under IHL.

However, there are combatants who are non-privileged, like spies, saboteurs, mercenaries (soldiers for a fee). They are non-privileged, because when captured they should not be entitled to be treated as Prisoners of War although they have that minimum right to a hearing.

©©©Reviewer in Administrative Law by Atty. Edwin SandovalPosted by Philippine Bar Exam CoachDescribe the Administrative Code of 1987.

Held: The Code is a general law and “incorporates in a unified document the major structural, functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and “embodies changes in administrative structures and procedures designed to serve the people.” (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What is Administrative Power?

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

What is an Administrative Order?

Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What is the Government of the Republic of the Philippines?

Ans.: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive Order No. 292)

What is an Agency of the Government?

Ans.: Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory Provisions, Executive Order No. 292)

What is a Department?

Ans.: Department refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation. (Sec. 2[7], Introductory Provisions, Executive Order No. 292)

What is a Bureau?

Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive Order No. 292)

What is an Office?

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

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

Ans.: A government instrumentality refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292)

What is a Regulatory Agency?

Ans.: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order No. 292)

What is a Chartered Institution?

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

What is a Government-Owned or Controlled Corporation?

Ans.: Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock; x x x (Sec. 2[13], Introductory Provisions, Executive Order No. 292)

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

Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as “proprietary” are those intended for private advantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])

The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter under R.A. No. 95, as amended. Its charter, however, was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. With the amendnt of its charter, has it been “impliedly converted to a private corporation”?

Held: The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission. The PNRC was not “impliedly converted to a private corporation” simply because its charter was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo])

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

Held: While it is true that prescription does not run against the State, the same may not be invoked by the government in this case since it is no longer interested in the subject matter. While Camp Wallace may have belonged to the government at the time Rafael Galvez’s title was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true today.

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

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to protect. Consequently, the Republic is not a real party in interest and it may not institute the instant action. Nor may it raise the defense of imprescriptibility, the same being applicable only in cases where the government is a party in interest. x x x. Being the owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development Authority, not the Government, which stands to be benefited if the land covered by TCT No. T-5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development, particularly of Central Luzon and, in general, the country’s goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests, but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent.

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

It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. While public benefit and public welfare, particularly, the promotion of the economic and social development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that the functions performed by the BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and the country’s goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are not government-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions.

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to

cancel petitioner’s title, not the Republic, the former being the real party in interest. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action. A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. x x x

However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted as principal of the Philippine Ports Authority, directly exercising the commission it had earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic of the Philippines did not intend to retain the said rentals for its own use, considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the disputed property it continues to recognize. We may expect the that the said rentals, once collected by the Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P.D. No. 857.

E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. To dismiss the complaint in E.B. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated upon. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes, it being said that when the title of the Republic has been divested, its grantees, although artificial bodies of its own creation, are in the same category as ordinary persons. By raising the claim of imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the Republic to prosecute, on behalf of government-owned or controlled corporations, causes of action which have already prescribed, on the pretext that the Government is the real party in interest against whom prescription does not run, said corporations having been created merely as agents for the realization of government programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having acquired the property in 1963, or 5 years after the issuance of the original certificate of title, as a third transferee. If only not to do violence and to give some measure of respect to the Torrens System, petitioner must be afforded some measure of protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3rd Div. [Melo])

Discuss the nature and functions of the National Telecommunications Commission (NTC), and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations.

Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTC’s function were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines “whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner.” (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

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

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

Sec. 3. Provisional Relief. – Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for.

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

In answer to this argument, the NTC, through the Secretary of the Commission, issued a

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

The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons.

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

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

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

This does not imply, however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads:

“Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x”

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

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

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

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

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.”

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

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1).

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

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section

20 thereof). In the absence of such publication, therefore, it is the 1978 Rules that govern. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

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

Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication.

There is merit in the argument.

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

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

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

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

Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories; b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government; c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China; and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees. In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987.

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the

same was never published or filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation. Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and may not be enforced. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])

Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to the general public?

Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general public.

Again, there is no merit in this argument.

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

Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of these exceptions.

In this regard, the Solicitor General’s reliance on the case of Yaokasin v. Commissioner of Customs is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the

publication requirement, namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench. X x x

To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])

May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project?

Held: Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year.

It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract. Using this as our premise, we cannot accede to PHOTOKINA’s contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation that “the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,” however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made. This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid “passed” only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract.”(Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.),the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA

whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void.

Even the draft contract submitted by Commissioner Sadain that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. x x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas. In effect, the implementation of the VRIS Project will be “segmented” or “chopped” into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed “to sell” with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC’s request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus:

“SECTION 33. Contracting Multi-Year Projects. – In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year.”

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

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification.

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and “the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties.” So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus, assumes personal liability thereunder. Otherwise stated, the proposed contract is unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

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

Held: In its Order x x x denying petitioners’ motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Carino v. Commission on Human Rights, the Court x x x has observed that it is “only the first of the enumerated powers and functions that bears any resemblance to adjudication of adjudgment,” but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:

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

“The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be

provided by law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])

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

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

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

“Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued ‘by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for no other purpose.”

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

Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-observance of procedural due process, or does it involve the exercise of the COMELEC’s quasi-judicial function?

Held: Taking cognizance of private respondent’s petitions for annulment of petitioner’s proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalition, accredit citizen’s arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of

election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

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

Held: On its contempt powers, the CHR is constitutionally authorized to “adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court.” Accordingly, the CHR acted within its authority in providing in its revised rules, its power “to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court.” That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The “order to desist” (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.])

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

Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. It applies “where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view.”

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA 297, Oct. 9, 1992, 3rd Div. [Panganiban])

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

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the court’s judicial power can be sought. The premature invocation of court’s jurisdiction is fatal to one’s cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case.

This doctrine is disregarded:

when there is a violation of due process;

when the issue involved is purely a legal question;

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

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

when there is irreparable injury;

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

when to require exhaustion of administrative remedies would be unreasonable;

when it would amount to a nullification of a claim;

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

when the rule does not provide a plain, speedy and adequate remedy, and

when there are circumstances indicating the urgency of judicial intervention.

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

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132, March 3, 1997, 3rd Div. [Davide])